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Un des symboles suivants apparattra sur la darnlAre image de cheque microfiche, selon le caa: le symbols — »> signifie "A SUIVRE", le symbols ▼ signifie "FIN". Mapa, plates, charts, etc., may be filmad at different reduction ratioa. Those too large to be entirely included in one expoauro ica filmad beginning in the upper left hand corner, left to right and top to bottom, as many framea as required. The following diegrema illustrate the method: Lea cartas, pianchea, tableaux, etc., pauvent hue filmAs A dee taux da reduction diff^rants. Loraqua la document est trop grand pour Atra raproduit an un saul cliche, 11 est film* A partir da I'angle aupAriaur gauche, de gauche h droite, et de haut an b&«, an prenant la nombra d'imagas nAcessaira. Las diagrammea suivants illustrent la mAthode. 1 2 3 32X 1 2 3 4 5 6 C] TREATISE ON THE CRIMINAL LAW OF CANADA. SBOOITID BIDITIOISr BY SAMUEL ROBINSON CLARKE, Esq., AND HENRY PIGOTT SHEPPARD, Esq., OF 08000DI HALL, BARRlBTWia-AT-LAW. TORONTO: 31 AND 38 Kino Strnt Wist. 1882. BIBLIOTHEQUE DE DROIT U.d'O. O.U. Entered according to Act of the Parliament of Canada in the year of Our Lord one thousand eight hundred and eighty-two, by Samttel Robinson Clarkb, in the office of the Minister of Agriculture. no"/ j^i f-Z^ I (■■ ^ /Oj/^'^^ . PREFACE TO TBI SECOND EDITION. Our The favor with which the former edition of the Criminal Law was received by the profession has induced the authors to venture on a new edition. They have condensed the work somewhat, and have embodied in it both the decisions of the various provinces of the Dominion and those contained in the English Law Reports down to the end of the year 1881. A collection of the cases detenuined in our criminal courts cannot but be useful under a system of government like our own, whose aim is the substitution of one criminal jurisprudence and procedure for the somewhat diverse systems obtaining in the different provinces at the time of confederation. Should this work to any extent aid in this consolidation, the aim of the authors vrill be accomplished. 8. R. 0. H. P. S. I, OsoooDB Hall, Tosonto, March let, 1882. Th( Ori Infi Per Per Ign< Prii Acc« Coin Fore Sedu Pirac Cu8t< £xci{ Comi Offen Salei Mono Cham Bigan Libel Riot. Forcil Nuistt Obstn TABLE OF CONTENTS. INTRODUCTORY CHAPTER PA«I. The English Criminal Laws prevailing in the Dominion 1 Extradition 10 CHAPTER I. Crimes in General 49 CHAPTER II. THE PBB80NS CAPABLE OF COMMITTINO GBIBIBS, AND THEIR SEVERAL DEGREES OF GUILT. Infants 64 Persons non composes m«nank8 Corby V, Mc Daniel Corignan v. Harbor Montreal 431 176 8 Comrs. 409, 424 Cornwall v. Beg. 224, 393, 395, 460. 462, 473 Corp. of Montreal v. Doolan 216 Corp. of Wellington v. Wilson 176 C'orrivean, Ex parte 480 Corwin. Ex parte 399 Cota. Ex parte 438 Cottc, Ex parte 464 Counhaye. Be 29, 37 Cousine, Exparte 97 Cousins V. Merrill 132, 379, 608 Coward v. baddeley 216 Cox V. Lee 133 Crane v. Holland 612 Crawford v. Beattie 385, 408 Croft V. Stevens 145 Cronvn v. Widder 6, 157 Crosby v. Leng 60, 61 Cross V. Richardson 378, 379 Croukhite v. Sommerville 426 Crow, Be 405, 427, 428, 433 Culton V. Carter 172 Culvillier v. Munro 190 Cumming, Exparte 461 Cuthbert v. The Commercial Trav. Association 1^ Dagenay v. Hunter Daley, Exparte Daniels v. Tp. of Burford Dartnell, Be Davidson, Exparte Davidson v. Boomer Davies, Ex parte Davis V. Lennon Davis V. Stewart Davison v. Duncan Daw v. Metro. Board Co. Dawkins v. Lord Paulet 375, Dawson ▼. Fraser Deal, Be Deercourt v. Corbishley Deguire v. Despins Delaney v. Macnab, Be Delisle and Delisle Demers Dennis v. Hughes Derouin v. Archambault Devy V. Fabre Dewernay, Etx parte 136, 139, 142, 425, 427, TABLE OF OASES OITED. 1 •. Dickenson v. Burrell Dickion v. Crabhe Dillingham v. Wilton Dimua V. P» tioy Donelly, tie Donnelly, Re Donogli, q. t. V. Ijongworth Donovan, Ex parte Doray, Ex parte Dougall V. Reg, Downing v. Capel D.yle, Re Drake, 7. t, v. Preston Drew V. Baby Duboird, Re Dulioird v Boivin Dugdale v. Reg. Dumonchel, Ex parte Duncan, Ex parte Dunlop, Bix parte Dunlop V. Reg. Durette v. Cardinal Durragh, q. t. v. Paterson Duval d'U Barbinas v. Reg 380, 508, 511, Dwight V. Ellsworth E 121 Foley V. Tucker 204 422. 428 Poott V. Bullock 0, 111 6 Forrester v, Clarke 206 150 Fortier v. Mercier 53 105, 106 Foster, Ex parte Foster and Tucker 46 410 331 334 Fourmor and Olivia 181 290 Fran'.i v. Carson 120 401 Frank, Ex parte 381 511 Fraser v. Dickson 433, 476 203 Fraser, Re 107 458 Fretlericton v. Reg. 4 334 150 405 406, 410 61 330 461 412 514 141 334 103, 379, 515, 522 107 ISAgXw, Ex parte 407,313,416 Eastabrook, Exparte 318, 461 Eastman v. Reid 417 East Nissouri v. Horseman 1 12 E. C. Ry. Co. V. Broom 13 Edwards v. Kerr 51 Egginton v. Lichfield 106 EUdn V. Janson 347 Elliott V. Richardson 121 Ellis V. Power 358 Evans v. Williams 318 F Fabrique of Montreal, The, Ex parte 461 Fairman v. Ives 138 Falconbridge 7. t. v. Touran- geau 413 Falkland Islands Co. v. Reg. 523 Farrer v. Close 116 Ferguson, Ex parte 469 Ferris v. Irwin 254, 256 Filiau, Exparte 339, 468 Findon v. Parker 120 Fiset, Ex parte 463 Fish V. Doyle 10 Flannagan ▼. Bishop Wear- moaui V ^ 340 Friel V. Ferguson 404, 407, 408, 413 O Gage V. Bates Qanong v. F'awcett Gaston v. Wald Gauntlet, The Oauthier, Ex parte Genest v. Normand George v. Reg. Georgian, Re Georgian Bay Tr. Co. v. Fisher Gibb v. Tilstone Gilbert v. Campbell Gilbert v. Goouerham Gillespie v Wixon Glass v. O'Grady Glass V. Wigmore Golding, Exparte Gooilhue, Re Gordon v. Fuller Goueh v. Morton Gould v. Cowan Graham v. Crozier Graham v. Grill Graham v. McArthur Grant 9. t. v. McFadden Grant v. Lockhead Gray v, Reg 179 300 10 82,86 459 143 523 323 10 521 434 359 9 222 188 416 5 10 447 244 141 109 376 S36 467 499 Gugy, Ex parte 148, 476, 477, 479 Haacke v. Adamson Hadley v. Perks Hadley v. Taylor Haidee, The Hall V. Carty Hall's case Hall's estate. Re Hallock V. Wilnon Hambly v. Fuller Hamilton &N. W. Ry. Co., Handock v. Baker Hanna v. De Blaquiere , Re 422 205 169 410 276 364 124 le 19 4 207 141 ! TABLE OF CASES CITED. Hargreavea v. Deddsnes 410 Harrington v. Long 120 Harris v. Cooper 130 Harrison v. Bush 137 Harley, Ex parte 461 Haro'd V. Corp. of Simcoe 176 Hartley v. Russell 120 Hartly v. Heams 10 Hartly v. Hindmarsh 377, 411 Hartt, Ex parte 422 Hawkeshaw v. District Council of Dalhousie 175 Hawkins, Be 450 451 Hawkins v. Baker m, 167 Hayle v. Hayle 51 Heaney v. Lynn 509 Hearie v. Ross 10 Heame v. Stowell 141 Hebert, Ex parte Helps and £!no 97 442 Henderson v. Broomhead 136 Hennessey, Re 416 Henry v. Little 377 Herbert, Ex parte 462 Herbert q. t. v. Dowswell 404 Hesketh v. Ward 10 Hespeler and Shaw 319, 336, 457, 458 Hill V. Hogg 147 Hillary v. Gay 152 Hilton V. Eckersly 116 117 Hilton V. Woods 120 Hodgins v. McNeil 9, 127. 128 Hog e V. Hogle 298, 299 Hoguo, Ex parte Ho der, Ex parte 95, 9£ I, 99 406, 418 HoUiday v. Ontario Farmers' M. Ins. Co. 141 HoUingham v. Head 346 Holman, Be 406 Honilston v. Parsons 336 Hook, Ex parte 290 Hooker v. Gurnett 109 Hopkins v. Prescott 112 Hornby v. Close 117 Horseman v. Beg. 309, 312, 401 Hough, Ex parte 463 Howell, Ex parte 465 Hudson V. McRae 410 Hunt V. Bishop 122 Hunt V. Remnant 122 Hunter v. Daniel 120 Hunter v. Hunter 235 Hunter, Be 441 Huron D. C. v. London D . C. 390 International, The jrvine, Ex parte 82, 86 466 Jackson v. Kaasel 303 James v. McLean 10 Jarvis, Ex parte 381 Jenner v. A'Beckett 132 Johansen, Ex parte 89 Johnson v. WiUiston 434 Johnston v. Boyle 171 Johnstone v. Odell 390 Joice, Be 470 Jones V. Glassford 438 Jones V. Ross 413 Jordan v. Gibbon 207 Judge Be 475 Julien V. King 390 Justices of York, Be 443, 445 Kalar v. Cornwall 373 Keating and Lush 272 Keenahan q. t. v. Egleson 335 Kellet, Be 459 Kelly V. Tinling 146 Kelly 7. t. V. Cowan 835 Kent V. Olds 441 Kermott, Be 34, 39. 40 Kerrv. Brunton 117, il9 Kerr v. Bums 7 Kerr v. Beg. 199 King V. Orr 486 Ktrkpatrick v. Asken 406 Knowlden v. Beg. 486, 487 Kokhine v. Snadden 524 Konigs, Be 26, 35 Lahayes, Er parte JjAi V. Stall Lake, Be Lalonde, Ex parte Lamirande, Ex parte 23, Lamoths v. Chevalier Lanier, Ex parte Lang V. Gilbert Langwith v. Dawson Lapenotiere. Be Larouche v. Lenneux Lavoie, Ex parte Lawless v. A. E. Cotton Lawrasoa v. Paul Lawrence and King Leary v. Saunders Leconiield v. Longsdale Leete v. Hart Leonard, Ex parte Leprophon v. Globenaki 468 337 466 457, 458 32, 47, 275 53 408 188 406 475 407 191 144 167 181 m 181 204 1)5, 422 58 Co. TABLE OP CASES CITED. m ion 303 10 381 132 89 434 171 390 470 438 413 207 475 390 443,445 373 272 335 459 146 335 441 34, 39. 40 117, 119 7 199 482 406 486, 487 524 26,35 468 337 466 457, 458 32, 47, 275 53 458 133 406 475 407 191 144 167 181 166 181 204 1|5, 422 58 Co. Leroux, Bx parte 469 Leslie v. Hervey 341 Levienv. Beg. 472, 524 Levinger v. B^. 319, 490, 491, 492 Lewis V. Levy 135, 136 Lewis, Re 23, 38 58, 156, Lindsay, Ex parte L'Institut Canadien v. Le Nou veau Monde Little V. Ince Little V. Keating Livingstone v. Massey Lloyd V. Clark Ijord V. Turner Lord Wellesley's case Lucas and McGlashan 458, 49, Lumley, Ex parte Lusty V. Magrath Lutterell v. Reynall Lynden v. King Lyons, Mc parte Lyons, Be M 50, 53, 422 131 159 333 50 8 469 190 441 406 376 52 429 466 10 Macdonald v. Hamilton and P. D. P. L. Co. 173 Macdonald v. Stuckey 422 Macfarlane, Ex parte 460 Macfarlane v. Dewey 107 Madden, Be 619 Madden v. Farley . 290 Maguire, Ex parte 480 Mansell v. Beg. 492 Marks V. Gilmou: 10 Marry, ex parte 424 Marsh v. Keating 52 Marsh v. Loader 65 Marshall v. Piatt 8, 158 Martin, Ex parte 32, 33, 36 Martin, Be 83, 84 Matthews, Ex parte 457 Maulson v. Commercial Bank 10 May q. t. v. Dettrick 8, 107 May q. t. v. Middleton 335 Mellor and Lush 136 Meloney v. Morrison 434 Mercer v. Hewston 10 Mercer v. Woodgate 165, 166, 169 Metcalf, q. t. v. Reeve 334 Mewbum v. Street 8 Meyer, Be 441, 442, 443, 445 McAdam v. Weaver 299, 303 MoBride, Be 172 McCuUoch, Ex parte 88 McCuUoughv.MoInteeUl, 143, 144 McCumber, Be «^ 446 MoCurdy v. Swift 62, 216, 224 265, A. 144, McDermott, Be McDonald v. Cameron McDonald, Ex parte McFarlane v. Lindsay McGilvery v. Gault McGinnes, Be McGregor v. Scarlett McGuire v. Liverpaol and L, Co. Mulnnes v. Davidson Mclntee v. McCuUough Mclntyre v. McBean 143, McKay v. McKay McKenzie v. Gibson McKenzie v. Miller 8, McKenzie v. Newbum McKinnon. Be 217, 221, 224, 327, 328, 410, 428, 450, 451, 455, 480 McLaren v. Caldwell McLean and McLean McLellan q. t. v. Mclntyre McNab v. "McGrath 291, 292, McNeills V. Gartshore Messier, Ex parte Miller v. Johnston Milligan, Ex parte Mills, Be Milner v. Gilbert Mitchell V. Brown Mitchell V. Defries Mitchell V. Thompson Moffatt V. Barnard Moioy, Ex parte Monk, Ex parte Montgomery, Ex parte Montreal, Corp. of, v. Doolan Moore v. Corp. of Esquesing Moore v. Jarron Moore, Be Morasse v. Guevremont Morisset, Ex parte Morrison, Ex parte 170, 457, 461, 469, Morrison ". McAlpine Mosher v. Doran Mountjoy v. Beg, Mowry, Ex parte Muloahy v. Beg. 309, 312, 390, 396, 399, 488, 489, 490, 494, 498, 499 Mulhem, Ex parte 200, Mulling and Bellamere Mulock, Be Munro v. Abbot Murphy v. Ellii Murphy q t. v. Harvey Murphy, Be Murray, Bx parte 623 247 103 317 07 88 426 63 482 144 192 446 206 121 439 10, 154, 105, 339,' 179 476 336 293 408 468 141 117 97 304 66 223 166 422 106 1«1 457 216 171 416 418 190 468 470 10 469 164 423 462 99 434 292 206 336 440 472 Vi ^i f T Xll TABLE OF GASES CITED. Murray t. Dawson 179 Mutters, Rt 246 Mytton ▼. Duck 164 N Naiker v. Yettia 524 Nary v. Owen 404 Nash, Re 467 Neill V. McMillan 375, 376 Neill V. Taylor 53 Newton v. Harland 152 Noble V. Billings 496 Notman v. Reg. 506, 514 Nowlin, Sx parte 457 Nutt, Mc parte 421 O'Flagherty v. McDowell 320 Olivia V. Bissonnault 179 Ollard q. t. v. Owens 335 O'NeiU V. Kruger . 117 O'Neill V. Longman 117 O'Regan Ex parte 462 O'Reflly q. t. V. Allan 335, 472 Orr, Ex varte 460 Ovens V. Taylor 224, 414, 437, 475, 518 Paige, Ex parte 422 Paige, Re 104 Painter v. Liverpool Gas Co. 414 Palmer, Ex parte 463 Papin, Ex parte 5 Parker v. Elliott 163, 181 Parks, Ex parte 50, 76, 77, 96, 104, 347, 412 Parks V. Prescott 76 Parsons q. t. v. Grabbe 423 Pater, Re 476 Pease v. M'Aloon 50, 51, 52, 248 Peltier V. Miville 53 Perley v. Dibblee 180 Peters v. Cowie 340 Peters v. Irish 358 Petrin v. Laroohelle 143 Philibert v. Laoerte 104 Phillips V. Eyre 62, 113, 114, 152, 318 Pioton, Town of, x McDonald 469 Pire and The Corp. of Dundas 115 Piton V. Lemoine 467 Plante, Fx parte 462 Poitevin v. Morgan 141, 142, 143, 144, 192 Pollard, Re 436 Pomeroy and Wilsoa 57, 448 Poole V. Huskinson Pope, Re Popham V. Pickbum Port Whitby Ry. Co. of Brantford Porter's trusts. Re Powell V. Williamson Power V. Canniff Prefontaine, Ex parte Price V. Perceval Pringle v. Allan Prosser v. Edmonds Prouse V. Corporation posa Provost V. Masson Purdy q. t. v. Ryder Queen's case, The 167 Reg.^ 104 ti 14ft i( V. Corp. li 174 >i 124 ti 115, 289, 407 4< 158 t( 463 t< 109 fc i 10, 129 >t 118 it of Man- 41 168 it 440 11 10 it 313 B Ramsay, Re 523 | it Ramsay v. Reg. 438, 513 | tt Ranne y q. t. V. Jones 336 ■ ley v. Hutchinson 444 1 it Rawns It Recorder, Re, smd Judge D. C. 1 tt Toronto 113 1 if Rectory of St. John v. Craw- | tt ford 619 ft Reeve V. Wood 840 i< Reg.y . Abbott 262 tt Abrahams 261, 394, 475 It Adams 334, 467 it Allan 187 it Allen 90, 91, 106, 123, it 319, 435, 436, 445 it Alsop 302 tt Amer 606, 623 it Anderson 90, 334 tt Archer 274 tt Ardley 264 it Armstrong 319, 424 it AspinaU 309, 310, 311 Atlunson 183, 151, 193, (. tt 302, 303, 304, 346, It 347, 848, 398, 403 tt Aumond 06 ft Avery 246 it Aylett 298 ft Baby 383, 883 ft Bailey 227, 286 (t Baia 61 tt Bake 162 ft Baker 281 it Baldry 866 t BaUs 269 Bannerman 286 Barbean 467 -4 TABLE OF CASES CITED. i xiii Reg. y. Barnes 10, 249, 387, 393 Beg. V. Brown and Street 162 . It Barrett 213, 326 tt Browne 25, 37 , li Barrow 210 It Bruce 158, 621 ii Bartbelmy 486 It Bryans 62, 264, 291, J t (i Bathgate 92, 96, 386, 400 | 294, 372, 386, 387 1 X Bayley 271 It Brydges 458 \ t( Beale 213, 216 It Brynes 480 . t< Beavan 153, 369 ti Buchanan 57, 165 * s tt Beckwith 355 It Bull 271 1 i t< Beekman 336 tt Bullock 290 ; « i Beeston 369 It Buimer 267 i ii Bell 9, 130 It Burdell ^- 490 \ If t< Bellingham 151 It Burgon 262 -^. II Bray 4»7 ft Chouinard 258 ii Breen 103 ft Christian 258 It Brewster 76, 158. 160, 182 ft Christopher 238 il Brissac 312 ft Chubbs 346, 348 II Brittain 170 ft Churson 203 It Broad 307, 400 ft Clancey 405 li Brooks 69 ft Claret and Lougbridge. ^ Inhabitants of 175 II Brown 186, 2C9, 275, 276, 331, 317, 349, If aark 505 359, 360, 371 It Clarke 123, 514 riv TABLB OF CASES CITED. iii! i; y. V . Clement 69, 307, 368, 401 Beg. V . Davidson 290, 410 ■ II Clennan 421 << Davies 238, 244 ■ •i Clewes 866 i< Davis 223, 227, 266, 330 ■ II CloBS ' 279, 288 II Dnwes ^ 1 11 Clouter 353 II Dawson 284 ■ II Cookburu 213 << Deane 16ff ■ II Cockroft 860 oration of Louth 174 II Dogherty Dolan 290 ii Corporation of Paris 168, 173 II 278 11 Corp. of St. Saviour 183 II Donaghue 77 11 Cory 234 II Doty 302 Ii Cotte 343, 344 i< DougaU l&l. 143, 144 ii Coulter 493. 496, 497 147, 393, 491, 499 it Courtney 302 Dowey 262 ii Cowan 303 Downes 203, 216 ti Coyle 510 Downey 198, 402 it Crab 262 Dring 274 ti Crabbe 451, 458 Druitt 117 ti Cracknall 342 Duff 125 11 Craig277,278, 287,418, 507 Duffield 117, 313 ti Cramp 209 Duffy 139 ii Craw 73 Dunavey 415 ii Creamer 124, 130, 506 Dunlop 159, 277, 278. it Cregan 218 Cridland 410 286, 286, r2 ii Dunning 305, o06 ti Cronan 216 Eagle 196 II Cronin 296, 385, 392, 393 Eagleton 61, 264, 288 ii Crooke 279 Eamsbaw 396 11 Crooks ^ 477 Ebrington 411 it Cross 160 Ecclcs 314 ti Croteau 483,485 Edwards 342 ii Cruse 69 Eirerton 870 1 Crutchley 194 1* Eldershaw 65 1 Cudihey 484 II Ellis 464, 465 i CuUum 266 II Elston 289 t Cummings 54, 236, 253, Elworthy 373 1 25 ), 257, 260, 383, II Enoch 194 1 384, 387, 394, 401 II Erridge 474 1 Cunard 486 II Esdaile 315 i Curgerwen 125 II Esroonde 60, 74 i Currie 309, 472, 473 II Esspry 442 1 Curtley 70, 71, 72 II Essex 257 1 Cutbush 424 II Evans 263. 287, 838 1 Dale 264 II Eveleth 248 1 Danger 266 II Ewing53,238,243,268, 319 Dant 201 <« Eyre 342 1 D'Aoust 610, 521 II Falkingham 325 1 David 257 II Fallon 76 1 M\ \ i TABLE OF CASES CITED. m J. V . Faneuf Garrett II Gaylor II Gemmell 1. Gkorge 4« G«rber 11 Gibbons II Giles 264, 216 123 481 87U 294 209 495 899 367, 490, 504 864 198, 505 380, S95 379, 507 362, 363 366, 867 445 248 289 474 469, 470 211 213, 299 840 383, 392 175 125 185 113, 504 885 371, 379 254 272 67 232, 372 71 491. 506 102, 468 280, 287 197, 220 392, 393 393 151 801 256 406 190, 392 218 858 265, 308 366 244 75 264 853 853 302, 405 285, 286 Jteg. V, It It . 162, 195, 400 ft Hunter 266 ft Huppel 262 ft Hutchinson 201 If Hyams 226 ft Hyde 416, 468 Reg. V. Hynes 268. 319 " Ingram " Inbab. of Claret 69. 430 and Longbridge 175 " Ipstones 471 " Jackson 184, 250, 392 " Jacobs 123, 318 " Jarvis 865 " Jenkins 228, 373, 374 " Jennings 249, 351 " Jenniaon 261 " Jerrott 362, 353, 861 " Jessop 262 " Johnson 227, 252, 253. 341, 416, 422 , 458, 481 " Jones 257, 346, 347, 348, 349, 361, 362, 366, 378, 380 *• Jope .382, 388 " Josephs " JowIe 459 459 " Joy " Jukes 608, 509 97 " Justices of Cumberland 411 " Justices of Huron 519 " Justices of Newcastle 460 " Justices of Queen's 97, 100 " Justices of Surrey 456, 457 " Justices of Westmore- land 474 " Justices of York 519 " Kay 281 *' Keeler 481 " Keena 259 " Keith 282 " Kelly 148, 149 " Kennedy 200. 350, 351, 352, 379, 490, 498, 500, 501, 506, 512, 517, 518, 521. " Kenny 245 •' Kenrick 309, 815 " Kilham 240, 266, 270 " King 76, 97, 105, 358 •• Kinneraley 816 " Kinsman 91 " Kirkwood 282 " Knight 176 '• Labadie 294 " Lackey 219 " Lacombe 491, 492 " Lafferty 468, 459 " Trfike 102 " Lambert 257 " Lamere 600 ', Langton 380 " Larkin 893 " LaUook 258 TABLE OF CASES CITED. J xvii Beg. V II i> II 11 II II It 11 II II II II II • l 11 11 << II <( II II iarcu8 279 II Marsden 207 II Marshall 266 Marston 466 Martin 59, 67, 80. 156, 195, 265, 269, 276, 506, 507 Mason 57, 58, 103, 107, 233, 299, 341, 396, 400, 404, 485, 608, 509, 512, 514 Massey 246, 361 Masters 271 Mathew 37, 343 Mawbery 310 2 Maxwell 304, 402 Mayle 266 Mayor of St. John 183 Mayor of Tewkesbury 70 McAilan Mc Allen McCann McConnell McConohy McCorkill McCormack 465, 471 468 60, 61, 62 97 610 287, 433 6, 10 McDonald 185, 269,283, 381, 472, 473 McDougall 194 McDowell 193, 196, 197, 608 McElderry 147 McEvoy 218 McOowan 162, 184, 421 McGrath 231, 233, 235, 241, 270, 323 McGregor McHolme Mcllroy Mcintosh McKale McLaughlin McLean McLellan McLeod McMahon McMillan McNaney McNaughton McNevin McPherson McQuarrie McQuiggan McWhinnie Mead Meakin Mears Mellish Mellor 176 48 348 299 241 343, 401 386, 393 510 398, 484 73, 321, 322 101, 408 470 , 66 277 60, 62 , 269 130 97, 98, 99 373 262 315 256 495, 497 Mercer 9, 57, 110, 111, 476 Messingham 273 Meyer 115, 156, 158, 159, 160. 172. 177, 178, 181, 183, 405 Middleton Millar Milledge Miller Mills Milne Moah Moodie Morgan Morris 211, 238 370 405 495 173. 264 407, 494 257, 279 9, 70, 111 241 68, 317, 389 XVIU TABLE OF CASES CITED. M: :g. V. Morrison 113, 393 Beg. V. Penson 128 It Morston 466 44 Perkins 161, 414, 416 Reg. i< Morton 16, 18. 29, 32, 44 Perley 49G 44 34, 405, 415 44 Perry 209, 286 44 «i Mosier 448,449 4' Peterman 464. 465 • 4 11 Moylan !49 14 PhilUps 160 44 i( M. S.&L. Ry. Co. 114, 116 11 Phipps Pioh5 463 44 li Mulholland 219, 430, 447, 453 44 209. 454 44 (( MuUady 480,483 44 Pickford , 341 44 < Rose 184. 505 230, 234, 247, 272, , INTRODUCTORY CHAPTER. same are supreme as to the courts and people of the Province, and cannot be objected to as contrary to reason or justice ; (i) and in such case they may have power to make any viola- tion of their provisions in relation thereto a crime even in the technical sense of the term, and to enforce observ- ance by the imposition of punishment, by way of fine or imprisonment, {j) Thus it was held that under section 92 of the British North America Act, Nos. 9 and 16, the Local Legislature not only had the power, but the exclusive right to legislate in relation to shop, tavern, and other licensss, in order to raise a revenue, and that, having such right, they had also power under No. 15 to enact that any person who, having violated any of the provisions of the Act, should compromise the offence, and any person who should be a party to loh compromise, should, on conviction, be imprisoned in the com- mon gaol for three months, and that such enactment was not opposed to section 91, No. 27, by which the power to legislate with reference to criminal law is assigned exclusively to the Dominion Parliament, (k) But the punishment imposed by the local legislatures cannot be cumulative. It must be either fine, penalty, or imprisonment, not both fine and imprisonment. (/) And it has been doubted whether they have' power to authorize imprisonment at hard labor, (m) The criminal jurisdiction, then, in this country rests entirely with the Dominion Parliament, saving in so far as the power to erect acts or omissions into crimes is given to the local legislatures as incident to their right of legislation in civil matters, and as a means of enforcing their enactments ; and saving, also, in so far as the Imperial Parliament may see fit at any time to interfere in colonial affairs, which it is perfectly competent to them to do, (n) but which is little (i) lie Goodhue, 19 U. C. Chy. 366. See also Toronto d- L. 'Huron Ry. Co. V. Crookshank, 4 U. C. Q. B. 318. ij) Reg. V. Boardman, 30 U. G. Q. B. 555-6, per Richards, C. J. (k) /but. (1) ExpartePapin, 8 C.L. 3. 'iii.S. 122. (to) Reg. V. Black, 43 U. C. Q. B. 192. (n) Smith v. McOowan, 11 U. C. Q. B. 399 ; Gnhrifl v. Derlmhire, I U. C. C. P. 422. H 6 THE CRIMINAL LAW OF CANADA. to be apprehended except with reference to foreign rela- tions, (o) It remains to be considered what Imperial statutes have been held to have been introduced into the various Provinces of the Dominion and the principle of theiradoption,premisingthatthe 40 Geo. III., c. 1, did not introduce the English law into the Province of Ontario to any other or greater extent than the 14 Geo. III., c. 83, had into the Province of Quebec ; and that as to the extent of introduction, there is no material difference between those colonies of the Dominion in which it is held to be in force on common law principles and those in which it is so by an express statute or proclamation. There is no precise or defined rule, nor any direct decision as to what Imperial statutes extend to the colonies. This must of necessity be left open for decision in each particular colony and case by the courts, the ultimate forum being the Privy Council, (p) English statutes of general and universal application, regu- lating the ordinary affairs of life, apply to the colonies, and in some cases where an act is only impliedly made an offence in England, [q) And an Imperial Act, though in force gener- ally for the reason just stated, may be held inapplicable in cases of a special nature, where the peculiar condition of the country would render its enforcement inconvenient, (r) In applying these rules, however, it is to be borne in mind, that in the early settlement of a colony, when the local legis- lature has been just called into existence, and has its atten- tion engrossed by the immediate wants of the members of the infant community in their new situation, the courts of judicature would look naturally for guidance, in deciding upon the claims of litigants, to the general laws of the Mother Country, and would exercise greater latitude in the (o) Beg. V. Schram, 14 U. C. C. P. 322. (p) Uniacke v. Dickson, 1 James, 299, per HiU, J. ; ex parte Rousse, S. L. C. A. 322, per Sewell, C. J. ; Dillingham v. Wthrn, 6 U. C. Q. B. 0. S. 86, per Sherwood, J. iq) Cronyn v. Widder, 16 U. C. Q. B. 361, per Robinson, C. J. (r) Reg. v. McCormack, 18 U. C. Q. B. 131. INTRODUCTORY CHAPTER. adoption of them than they would be entitled to do as their local legislature, in the gradual development of its powers, assumed its proper position. And increasing lapse of time should render the courts more cautious in recognizing Eng- lish statutes which have not been r^reviously introduced, (s) It is suggested as even worthy of grave consideration whether, after the existence of an independent legislature for nearly a century, the adoption of Imperial enactments is not ratlier the province of the legislature than of the courts, {t) If, after the grant of a constitution and independent powers of legislation, an English statute is introduced into a colony, tliough afterwards repealed in England, it will still continue to apply in the colony ; because the provisions of the re- pealing statute, which are substituted for the repealed statute, extend not to the colony, (u) There seems to be a distinction between the common and statute law extending to the colonies. As a code colonists have been disposed to adopt the whole of the former, with the exception of such parts only as are obviously incon- sistent with their new situation ; whilst far from being inclined to adopt the whole body of the statute law, they hold that such parts only are in force as are obviously applicable and necessary for them. As respects the common law, adoption forms the rule ; as regards the statute law, the exception, (v) In conclusion, we will give the more important English criminal statutes which have been held to be in force in Jhis country, stating as far as possible the reasons for their adoption. Notwithstanding the 19 Vic, c. 49, passed in this Pro- vince, the 12 Geo. II., c. 28, as to lotteries, is in force here ; first, because it comes within our adoption of the criminal u y («) Uniacke v. Dickson, 1 James, 287, per Haliburton, C. J. (t) Ibid. {u} Kerr v. Bums, 4 Allen, 609 ; following James v. McLean, 3 Allen, 164. (v) Uniacke v. Dickson, 1 James, 289, per Haliburton, C. J. s THE CRIMINAL LAW OF CANADA. law of Eiifjland a8 it stood in 1792, and next, because this statute ar»d other statutes of the same nature, and resting on the same footing, have been treated in our courts as being in force, (v)) The statute 32 Henry VIII.,c. 9, which prohibits the buying of disputed titles, is in force in Otitario, aa it constitutes part of the criminal law of England adopted by the 40 Geo. III., c. I. (x) In the case of i!>hea v. Choat, {y) it was held that the statute 5 Eliz., c. 4, is not in force in Ontario, but the statute 20 Geo. II., c. 19, is, though both statutes aie of a date long anterior to the introduction of the English law in this Pro- vince. In giving judgment in this case, the learned Chief Justice Robinson says in reference to the 5 Eliz., c. 4, that " it cannot possibly admit of doubt that its provisions are inapplicable to any state of things that ever existed here. A clause here and there might be carried into effect in this colony, or anywhere, from the general nature of their provi- sions, but that is not sufficient to make such a statute part of our law, when the main object and tenor of it is wholly foreign to the nature of our institutions, and is therefore incapable of being carried substantially and as a whole into execution." (a) . . , > The 28 Geo. TIL, c. 49, s. 1, as to perjury, is local in its character, and therefore is not in force here, {a) In Reg. v. Mercer (h) it was held that the 5 & 6 Edw. VI., 0. 16, against buying and selling offices, is in force in this country, under the 40 Geo. III., c. 1, as part of the criminal {w) Uniacke v. Di kson, 1 James, 356-361 :see also as to lotteries and the 12 Geo. II., c. 28 ; Corby v. MvDaniel, 16 U. C. Q. B. 378; Marshall v. PlaU, 8 U. C. C. P. 189 ; Lloyd v. Clark, 11 U. C. C. P. 250, per Drajjer, C. J. ; Meivbum v. Street, 21 U. C. Q. B. 306. (x) Beasley q. t. v. Gahill, 2 U. C. Q. B. 320 ; see also Baldioin q. t. v. Henderson, 3 U. C. Q. B. 287 ; Benns q. t. v. Eddie, 2 U. C. Q B 28« ; Aubrey, q. t. v. Smith, 7 U. C. Q. B. 213 ; May, q. t. v. Dettrick, 5 U. C. Q. B. O. S. 77 ; Ross, q. t. v. Meyers, 9 U. C. Q B. 284 ; McKenzie v. Miller, 6 U. C. Q. B. O. S. 459 ; SmUh v. Hall, 25 U. C. Q. B. 554. {y)2V. C. Q. B 211. , (2) Ibid. 221. . , (a) Beg. v. Bot^, 14 IL C". C. P. IWl. ,; . (6) 17 U.O.ti. B. 602. . : . , y ("••■■ ; i ■*, .-•.v. . ' INTRODUCTORY CHAPTER. law of England. The 49 Geo. III., c. 126, applies here, and ex- pressly extends the 5 & 6 Edw. VI., c. 16, to the colonies, or at least such of its provisions as are in their nature appli- cable, (c) Probably the 3 Edw. I., c. 26, is in force here. (^) The 1 W. & M., c. 18, s. 18, is in force here, notwithstand- ing the Con. Stats. Can., c. 92, s. 18, and a person offending against the former statute mny be punishod. (e) The 32 Geo. III., c. 1, introducing the law of England as to property and civil rights into the Province of Ontario, in- cluded the law generally which related to marriage, that is, the common and statute law of England applicable to the state of things existing in this colony at the time the Act was passed. The stat. 26 Geo. II., c. 33, being in force in England when our stat. 32 Geo. III., c. 1, became law, was adopted, as well as other statutes, so far as it consisted with our civil institutions, being part of the law of England at that time "relating to civil rights." It would seem, however, that the nth clause of 26 Geo. II., c. 33, is not in force in this coun- try. (/) The 8 Henry VI., c. 9, 6 Henry VIII., c. 9, 8 Henry IV., c. 9, and 21 James I., c. 15, as to forcible entry, are in force here ; (g) so the 8 & 9 Wm. Ill, c. 27; (h) so the 33 Henry VIII., c. 20 ; (i) so the Mutiny Act, 25 Vic, c. 5, s. 72 ; (j) so by the 14 Geo. III., c. 83, the 9 Geo. I., c. 19, and 6 Geo. II., c. 35, which impose certain penalties on persons selling foreign lottery tickets, have been made to form part of the law of Quebec, (k) (c) Reg. V. Mercer, 17 U. C. Q. B. 6J2 ; see also Reif. v. Moodie, 20 U. C. Q. B. .389 ; Foott v. Bullock, 4 U. C. Q. B. 480. (rf) Aakin v. London District Council, 1 U. C. Q. B. 292. {e) Reid v. Inglis, 12 U. C. C. P. 195, per Draper, C. J. (/) Retj. V. Roblin, 21 U. C. Q. B. 352-5 ; Hodgim v. McNtr.1, 9 Grant, 305 ; 9 U. C. L. J. 125 ; Reg. v. Seeker, 14 U. C. Q. B. 604 ; b it see Reg. V. Bell, 15 U. C. Q. B. 287. («/) BouUon V. FUzgerald, 1 U. C. Q. B. 343 ; Rex. v. M-Kreaoy, 5 U. C. Q. B. 0. S. 625. (A) Wragg v. Jarvi8, 4 U. C. Q. B. O. S. 317. (i) Doe dem Gillespie v. Wixon, 5 U. 0. Q. B. 132. (./) Reg. V. Dawes, 22 U. C. Q. B. 333. BIBLIOTHEQUE DE DROIT {k) Mc parte Rousse, S. L. C. A. 321. U.d'O. O.U. LAW LIBRARY u Q : ■■*. 10 THE CRIMINAL LAW OF CANADA. ■ifi-' The 21 Geo. III., c. 49, prohibiting amusements and enter- tainments on the Lord's Day has been held to be in force in Ontario, though the propriety of the decision may be ques- tioned. (I) EXTRADITION, For the purposes of this chapter, it may be said that where, upon a requisition by the Government of Canada or the United States, f person found within the territories of either nation, charged with murder, assault with inteat to commit murder, piracy, arson, robbery, the utterance of forged paper, or forgery committed within the Jurisdiction of the other, is delivered up to justice, pursuant to the Ashburton Treaty, and the statutes passed to give effect thereto, the surrender under such circumstances is called extradition. Jurists are not unanimous on the question whether in the absence of treaty stipu'ations there is any obligation recog- nized between nations to make such surrender. But the better opinion seems to be that, in an international point of view, the extradition of criminals is a matter of comity, and not ol" right, except in cases specially provided for by treaty, (m) The law of England does not recognize it as an inter- im) Reg. V. Barnes, 45 U. C. Q B. 276. See further on the general subject Hesketh v. Ward, 17 U. C. C. P. 667 ; Mercer v. Hewston, 9 U. C. C. P. 349 ; Heartly v. Hearns, 6 U. C. Q. B. O. S. 452 ; Torrance v. Smith, .3 U. C. C. P. 411 ; James v. McLean, 3 Allen, 164 ; Marks v. Oilmour, 3 Allen, 170; ex parte Bustin, 2 Allen, 211 ; Fish V. Doyle, Draper, 328 ; Purely q. t. v. Ryder, Taylor, 236 ; Reg. V. Street, 1 Kerr, 373 ; Doe dem Allen v. Murray, 2 Kerr, 359 ; Milner v. Gilbert, 3 Kerr, 617 ; Morrison v. Mc Alpine, 2 Kerr, 36 ; ex parte Ritchie, 2 Kerr, 75 ; Reg. v. McOormick, 18 U. C. Q. B. 131 ; Pringle v. Allan, 18 U. C. Q. B. 575 ; Warner v. Fyson, 2 L. C. J. 105 ; Reg. V. Beveridge, I Kerr, 58 ; AUoi-ney-Oeneral v. Warner, 7 U. C. C. Q. B. 399 ; Lyons in re, 6 U. C. Q. B. O. S. 627 ; Hallock v. Wilson, 7 U. C. C. P. 28 ; Davidson v. Boomer, 15 U. C. Chy. 1, 218 ; Hambly v. FiUler, 22 U. C. O. P. 141 ; Maulson v. Commercial Bank, 2 U. C. Q. B. 338 ; Stark v. Ford, 11 U. C. Q. B. 363 ; Hearle v. Ross, 15 U. C. Q. B. 259 ; Reg. v. Wells, 17 U. C. Q. B. 545 ; Andrew v. WhUe, 18 U. C. Q. B. 170 ; Reg. v. Slavin, 17 U. C. C. P. 205 ; Thompson v. Bennett, 22 U. C. C. P. 393 ; Gordon v. Fuller, 5 U. C. Q. B. 0. S. 174 ; Oasfon v. Wald, 19 U. C. Q. B. 586 ; Stinson v. Pennock, 14 U. C. Chy. 604 ; Georgian Bay Transportation Co. v. Fisher, 27 U. C. Chy. .346. (to) Re Anderson, 11 U. 0. C. P. 61, per Richards, J. ; Reg. v. Young ; 9 L. C. J. 44, per Badgley, J. EXTBADITION. / 11 national duty in the absence cf treaty stipulations, and the Habeas Corpus Act, 31 Car. II., c. 2, s. 12, in effect prohibits it in the case of subjects, except fugitives from one part of Her Majesty's dominions to another, (w) As the same views were maintained by the United States, the necessity for a treaty on the subject between that nation and Great Britain was soon felt. Accordingly on the 19th of November, 1794, Jay'.s Treaty, which, however, extended only to murder and felony, was entered into. It continued in force till the outbreak of the American war in 1812, when its operation ceased, and from the conclusion of the treaty of peace between Great Britain and the United States until the passing of the 3 Wm. IV., c. 6, in 1833, the extradition of criminals between the two countries rested entirely upon state authority and the general law of nations, (o) The first case in which the subject of extradition was discussed in this country was Re Fisher, (p) decided in 1827. Jay's Treaty not then being in force in Quebec, the decision proceeded on the general principles of international law. The court held that the Executive Government had power to deliver up to a foreign state a fugitive from justice charged with having committed any crime within its jurisdiction, In another case, in 1833, Lord Aylmer, then Governor of Canada, refused to deliver up four prisoners for extradition, saying the executive could not, in the absence of treaty or legislation on the subject, dispense with the Habeas Corpus Act ; but in the same year this defect was remedied iu Ontario by passing the 3 Wm. IV., c. 6, Con. Stat., U. C, c. 96. The extradition of criminals between the United States and Canada is now regulated by the Ashburton Treaty or Treaty of Washington, and the statutes passed to give effect thereto. The treaty, which was passed for purely national purposes, {q) was signed at Washington on the 9th of August, (n) Rtg. V. Tvhhee, 1 U. C. P. R. 102-3, per Afacaulay, C. J. (0) See judgment of Macaulay, C. J. Reg. v. Ttd>bee, 1 U. C. P. R. 100-1. (p)S. L C. A. 245. (q) Reg. V. Young, the St. Alban's Raid, 167, per Smith, J. u I ! a I ■■.» ti TIIR CRIMINAL LAW OF CANADA. 1842, by Lord Ashburton on behalf of Great Britain, aii(i Daniel Webster on belialf of the United States. The rati- fications were exchanj^ed at London on the 30th of October followinj,'. Immediately on its ratification, the necessity of legishitiun for the purpose of carrying its provisions into complete etfect, was felt by each of the high contracting parties. The English legislature, on the 22nd August, 1843, passed the 6 & 7 Vic, c. 76, entitled " An Act for giving effect to a Treaty between Her Majesty and the United States of America, for the apprehension of certain offenders." The 5th section of that statute gave the Parliament ot this country supreme authority to enact laws, and effectually carry out the provisions of the treaty within the limits of our territory, (r) But colonial legislative action was allowed only tor the purpose ot carrying into effect the objects of tlie Imperial Act within the colonial jurisdiction, according to the local circumstances and position of each colony and dependency. This delegated power of local legislation was therefore absolute in its nature, but restricted in its purport and extent by the objects of the Imperial Act. These objects once secured by the ;wcal law, the procedure, or, in other words, the machinery for obtaining its required purposes, was left to the discretion of the local legislature, to be provided ibr according to the circumstances and position of each colony ; (s) and the procedure under the treaty may be changed by our legislature, {l) In pursuance of the powers thus conferred, provision was^ afterwards made by our legislature for giving effect to the treaty by the enactment of the 12 Vic, c 19, {u) upon the passage of which, the operation of the Imperial Statute 6 & 7 Vic, c. 76, was suspended by Order in Council, dated the (r) Reg. v. Young, 9 L. C. J. 38, per Smith, J. («) Ibid. 45, per Bacigley, J. {t) Ibid. \t} J Ota. {u) Con. Stat. Can., c. 89. EXTUADITION. V^ 28(h of March, 1850, and the suspensivin directed to c«)ntinuo so Ion*; as our substituted enactment sliould remain in force. This statute, after recitinj^ certain inconveniences whicli had arisen from the English Act, in effect enacted sections 2, 3, and 4 of the latter, with this addition, that section 2 of our Act sanctioned a requisition from the United States, or "any of such States." No further change was made until the passing of the 2!i Vic, c. 41, in 1860, which repealed the Con. Stals. U. C, c 96. In 1861, the 24 Vic, c. 6, was passed. This Act did nitt require the Queen's proclamation, or an order of Her MaJHsty in Privy Council, to give it effect, but had the force of law here without either, (v) The statute was passed in consequence of the legal complications arising in the Andersan case, ("u)) In order to avoid, if possible, the blunders ol' ignorant and incompetent magistrates, the Act deprived ordinary justices of the peace of the power to deal with extradition offences, and vested it only in superior offiot."* of the courts, such as judges of the superior or county courts, recorders, police or stipendiary magistrates. It repealed tlie 1st, 2nd, and 3rd sections of the Con. Stat. Can., c. 89, and substituted other provisions in lieu thereof. These substituted sections applied only to the technical procedure of the local law, by giving practical, improved, and additional facilities for carrying out the law, and in this respect were simply verbal amendments in eodem sensu of the previously existing enactments, {x) The Act has omitted the words "any such States," which la the prior Acts were superfluous, and their omission in this Act renders it more perfectly conformable with the terms of the treaty and of the Imperial Act, and with the delegated power of legislation by the colonial legislature ; (y) for by the terms of the treaty and the Imperial Act, "jurisdiction" and " territories" are syuony- bl a l 1 a 8 (v) Reg. V. Young, 9 L. C. J. 29. (w) 20 U. C. Q. B. 124. (x) Reg. V. Young, 9 L. C. J. 48, per Badgleif, J. (y) Ibid. 49, per Badgley, J. 14 THE CUIMINAL LAW OF CANADA. mous, and the addition of the words " or of any such States " would be useless, as being, in fact, included in the general aggregate expression "United States of America." (z) Tliese words are not in the Imperial Act, and it seems our legislature exceeded its authority in introducing them into the 12 Vic, c. 19. The mistake probably arose from a desire more fully to explain that the word jurisdiction used in the treaty was to extend over the several States in the same sense in which it was used when applied to the United States, (a) In this case it was strongly contended that these words were necessary in the statute — that the jurisdiction of the United States, and that of the several States, are separate and independent of each other, and that the omission of these words necessarily and intentionally re- stricted the operation of the Ashburton Treaty to offences committed solely within the jurisdiction of the United States,, and that when the offence was committed within the limits of any one of the States, it was not covered by the treaty. The court, in holding as already shown, declared that the surrender of persons for imputed crimes can only be made by the supreme executive authority of independent nations, and that in the United States it existed in thd supreme federal legislature of the nation, and thus, as the object of the treaty could only be attained by the national power, it did not reside in any one of the United States. (6) The Act also makes two alterations in the rules of pro- cedure. The evidence produced before the magistrate was not to be " sufficient to sustain the charsfe according to the laws of this Province," but '* such as, according to the laws of this Province, would justify the appreh'msion and com- mittal for trial of the person accused," etc. The language of Eobinson, C. J., in the Anderson case, (c) shows that, accord- ing to the proper construction of the treaty, the former (z) Reg. V. Young, 9 L. C. J. 51, per Badgky, 5. (o) Reg. V. Young, the St. A Iban'a Paid, 169, per Smith, J. (6) Ibid. 167-9, per SmUh, J. (c) Re Anderson, 20 U. C. Q. B. 168, per Robinson, C. J. EXTRADITION. expression has the same meaning as the latter ; and as the 12 Vic, c. 19, used the former only, probably it was amended so as not to conflict with the treaty in this respect. The other alteration is in the second clause, and consisted in oniittinj; the words, " or under tlie hand of the oMcer or person having the legal custody thereof" (d) The 31 Vic, c 94, (e) the next statute on the subject, came into operation on the 8th of August, 1868, and was passed to extend the provisions of the 24 Vic, c 6, to the whole Doniinion. (/) It is in substance the same as that statute which it superseded and repealed, together with the Con. Stat. Can., c 89. So much of the first section of this Act as is in the words following, that is to say, "or any Police Magistrate or Stipendiary Magistrate in Canada, or any Judge of the Sessions of the Peace in the Province of Quebec, or any Inspector and Superintendent of Police empowered to act as a justice of the peace in the Province of Quebce," was repealed by the 33 Vic, c 25. This was the condition of our statute law at the time of the passing of the Imperial Extradition Act, 1870, an enact- ment that has given to our procedure a degree of uncertainty which it would have been wise to have avoided. The statute, after providing for the practice to be applicable to extradition in general, in sec. 27, enacts that " The Acts specified in the third schedule to this Act" (including the 6 & 7 Vic, c. 76) " are hereby repealed as to the whole of Her Majesty's do- minions ; and this Act (with the exception of anything contained in it which is inconsistent with the treaties referred to in the Acts so repealed; shall apply (as regards crimes committed either before or after the passing of this Act) in the case of the foreign States with which those treaties are made, in the same manner as if an Order in Council referring to such treaties had been made in pursuance of this Act, and s u Or. S (rf) See 31 Vic, c. 94, 8. 2. (e) See Stat. 1869, Reserved Acta. (/) Reg. V. Morton, 19 U. C. C. P. 21, per WiUton, J. 1(J THE CRIMINAL LAW OF CANADA. nl! 1 .:;, m m •■■:i'l' as if such order had directed that every law and ordinance which is in force in any British possession with respect to such treaties should have effect as pare of this Act." Two cases have arisen for adjudication in this country under the above statute, one in Ontario, (ff) the other in Quebec, (h) in wiiich the section just quoted was heid to render the Imperial Act, as modified by our 31 Vic, c. 94, and 33 Vic, c. 25, the governing enactment with regard to extradition of criminals from this country to the United States; and the same statute has also been held to be in force with reference to extradition to France, (i) It had been thought that sec. 132 of the B. N. A. Act, delegated to the Dominion Parliament full authority to legislate for Canada with reference to treaties between the Empire and foreign nations, and it was under this impression that our 31 Vic, c 94, was passed ; (j) and it might be contended that the Extradition Act, 1870, being general in its terms, and the powers conferred by the B.N.A. Act on our Parliament beino special, and an integral part of our constitution, has not the effect of overriding sec. 132 of that enactment, and therefore is not in force in this country. It seems hardly reasonable that the provisions of a statute which affect the constitution of the Empire should be held to be annulled by general words. Tliis point, however, was not taken in either of the cases above cited, and remains unde- termined, so that at present the Extradition Act, 1870, must be considered as part of the extradition law of this country. And perhaps the Extradition Act, 1877, (k) passed by our Parliament, which by its terms is to come into force pro- vided the operation of the Imperial Extradition Act, 1870, *' shall have ceased or been suspended within Canada," might be held to liave the effect of obviating the difficulty referred to. But these cases, though they determine that the Imperial Act is in force in this country, throw but little light upon (d) Be WUliams, 7 U. C. P. R. 275. (h) Be Rosenbaum, 18 L. C. J. 200. (i) Ex parte Taschmacker, 6 R. L. 328. {j) See remarks of Ramsay, J., in Re Roaenbaum, 18 L. C. J. 200. (k) 40 Vic, c. 25, D. EXTRADITION. 17 the manner in which it is to be read in connection with our statute. The apparent object of the British Parliament in passinj; the Act in question was to repeal the different statutes which had, from time to time, been enacted with reference to extradition, and to introduce a uniform procedure under all treaties then made, or which might thereafter be entered into, and at the same time to save all existing treaties in their full integrity and force. (I) A further provision is made by the section above quoted for cases where, in any British poises- sion any law or ordinance exists with respect to treaties in force at the time of passing the Act. But for that section the operation of our 31 Vic.,c. 94, and 33 Vic, c. 25, would have ceased, as they depended on the Imperial statute, 6 & 7 Vic.,c. 76, which the Extradition Act, 1870, repeals. This action of the British Parliament in saving existing colonial legislation, would seem to indicate an inten- tion not to disturb our local procedure ; and if this surmise be correct, the proper construction of the several enactments would be to give precedence to our statute in all cases where Imperial and Canadian legislation conflict. As the statutes already mentioned are the only legislation on the subject in this, country, it follows that the Extradition Act, 1870, in its integrity, is the code of procedure in extra- dition from Canada to all foreign countries other than the United States ; and with reference to that country the same statute is in force, but modified by our colonial legislation existing at the time of its passage. In 1873 the statute 36 & 37 Vic, c 60, was passed by the Imperial Parliament, amending the Extradition Act, 1870; bub none of its provisions require particular mention in this place. Having discussed the various enactments relating to the extradition of criminals, let us now consider how the treaty and statutes are to be construed and carried out in order to a u a 3 s 3 a {I) Re Bouviei, 42 L. J. N. S. Q B. 17. B THE CRIMINAL LAW OF CANADA. effect the objects they were designed to accomplish. These were the surrender by each country to the other of fuj^itives from justice, charged with certain specified crimes ; (jn) ard thereby to subject parties against whom a charge coining v/ithin the treaty and statutes is sustained by evidence of criminality to be put upon trial before the proper tribunal of the country wherd the offance was committed; (w.) ani thus to prevent the failure of justice which would naturally result from offenders in one country seeking refuge in the other, and thv.jre being amenable to no punishment : for by the principles of the common law pervading the jurisprudence of both Great Britain and the United States, crimes are un- questionably considered local, and cognizable exclusively wiliiin the country where they are committed, (o) Extradition laws are to be interpreted by the law of nations, in so far as the obligations created by them on the part of one nation to another are concerned ; and the then existing public law of both nations forms an essential part of the national compact which is created by the passage of an extradition treaty. Consequ3ntly, on the passing of our Ex- tradition Acts, the public law of Great Britain, as well as the public law of the United States, became incorporated into the national compact, (p) The words of this treaty should not be held to too narrow a construction ; and if the words used to carry out a design of general utility can properly be construed so as to give effect to and not defeat that design, the larger construction must b'j adopted, (q) The treaty must be construed in a liberal and just spirit ; not laboring with legal astuteness to find flaws or doubtful meanings in its words, or in those of the legal forms required for carrying it into effect. Its avowed object is to allow each country to bring to trial all prisoners (ni) Beg. v. Motion, J9 U. C. C. P. 18, per Hagarty, C. J. (n) Reg. v. Reno, 4 U. C. P. R. 299, per Draifer, U. J. ; tho Chesapeake ■ease, 44. per Ritrkie, '. (o) (bid. 44, per Ritchie, J. (p) Reg. V. Young, the St. Alban's Raid, 469, per Smith, J. Iq) Re Warner, 1 U. C. L. J. N. 8. 18, per Hagarty. J. Pm EXTRADITION. 19 charged with the expressed offences, and it is based on the assumption that each country should be trusted with the trial ofoff«inces committed within its own jurisdiction. We are to regard its avowed object in construing its provisions, (r) and sliould look to it for an indication of what was probably meant by anytliing that may seem anibi^'ious in the language of the statutes, (s) The 'Teaty applies to all persons being subjects of both nations, and as well slaves as freemen, (t) The words of the 31 Vic, c. 94, and of tlis Extradition Act, 1870, are large enough to embrace all persons, subjects, denizens, or aliens, who have committed tiie crimes enumerated in the United IStates and who are found in Canada; and a British sul)ject committing one of the crimes enumerated in the treaty within the jurisdiction of the United States, and afterwards fleeitig to Canada, is subject to the provisions of the treaty, and the statutes which provide for the surrender of " all persons " who, being charged, etc. (u) So a person convicted of for.^ery, or uttering forged paper, in the United States, who escapes to Canada after verdict but before judg- ment, is liable to be surrendered, although, technically speak- ing, after judgment or verdict of guilty, a man is incorrectly spoken of as "charged with a crime" in the language of the statute, (v) But political offenders have always been held to be excluded from any obligation of the country in which they take refuge to deliver them up, whether such del' very is claimed to be due under friendly relationship or under treaty, unless, in the latter c^se, the treaty expressly includes thein. (w) The treaty, in express terms, includes seven different offences, viz., murder, assault with intent to commit murder, (r) Re Burley, 1 U. C. L. J. N. S. 49-50, per Hagarty, J. ; and see Reg. V. Paxton, 10 L. C. J. 216, per Drummond, J. («) Re Anderson, 20 U. C. Q. B. 160, per Robinson, C. J. {t)/f}Ul 124; 11 U. C. C. P. 1. (tt) Re Burley, 1 U. C. L. J N. S. 34 ; Ibid. 20. (w) Re Warner, 1 U. C. L J. N. S. 16. \w) Reg. V. Young, the St. Alhan's Raid, 470, per Smith, J. 1 U I Q Ul Q 2 h 3 a 4 20 THE CRIMINAL LAW OF CANADA. 111?! Ifi: I lpli piracy, arson, robbery, forgery, and the utterance of forged paper. These ofll'ences aro not political but social, though the governments of Great Britain and the United States have made national laws for each respectively, thereby giving them a municipal legal character, (x) The stipulations of the treaty, with regard to the definitions of the crimes covered by it, are to be carried out in conformity with the municipal laws of both countries, in so far as they airree. (y) The governments of these two countries, in making the treaty, were dealing with each other upon the footing that each had at that time recognized laws applicable to the offences enumerated, and that these laws would not, in all cases, be the same in both countries. The agreement to sur- render to each other criminals of certain classes was based upon the fact of the persons being criminals by the laws of the country from which they came, provided the evidence of criminality, according to the laws of the place where the fugitive so charged should be found, would justify his appre- hension and commitment for trial if the crime or offence had been there committed, (z) In the case in which this principle was enunciated, it was held that, as slavery was tolerated in the United States, and the apprehension of a fugitive slave was authorized by law, such slave could not lawfully resist apprehension in older to gain his freedom, though oilr law conferred it upon every man, and consequently, that a slave, so resisting, might be guilty of murder, and not necessarily of mfinslaughter only, (a) So far as we in Canada are concerned, the treaty and statutes are to be construed according to our laws in regard to the offences comprised within their provisions. In otiier words, the offence must be one of those enumerated accord- ing to our law, and the notions we entertain as to the ingredients necessary to constitute it. (6) (x) Seg. V. Young, 9 L. C. J. 44, per Badgky, J. {y) Ibid., the St. Alban'a Haid, 46U, per Smith. J. (z) Re Anderam, 20 U. C. Q. B. 190, per Buitu, J. (a) Ibid. (6) He Smith, 4 U. C. P. R. 215. EXTRADITION. 21 But our law is not absolutely to govern as to the particular offence in all its ingredients, and in relation to whatever circumstances may have influenced the party in committing it. Before this rule could prevail, there should be a similarity between the law of the State from which the person has fled and that of our country, in all the features and attributes of the particular crime. To some extent it might be reasonable to hold that the law of the two countries should be found to correspond. For example, if it were the law of a State that every intentional killing by a slave of his master, how- ever sudden, should be held to be murder, witliout regard to any circumstances of provocation, or of any necessity of self-defence against mortal or cruel injury, then a fugitive slave who, according to the evidence, could not be found guilty of murder without applying sucli a principle to the case, could not legally be surrendered by the treaty. It can- not, however, be held that, because a man could not, in the nature of things, be killed in this country while he was pursuing a slave, because there are not, and by law cannot be, any slaves here, therefore a slave who has fled from a slave State into this country, cannot be given up to justice because he murdered a man in that State who was at the time attempting to arrest him under the authority of the law, in order to take him before a magistrate, with a view to his being sent back to his master. Under such circumstances, reference should be had to the positiv" law of the slave State, to the conduct of the party pursuing and the party pursued, to the knowledge of the latter that the purpose for which it was desired to arrest him was not contrary to the law of the country, or to the fact (if it should be so) that there was no apparent necessity to inflict death in order to escape, (c) • There are several decisions in our own courts as to the particular offences covered by the treaty. Among the earliest and most important of these is the Anderbon case, {(l) (c) Be Anderson, 20 U. C. Q. B. 170-1, per Bobinaon, C. J. (d) Ibid, 124. S Q a I ! eo S 22 THE CRIMINAL LAW OF CANADA. In that case, A., being a slave in the State of Missouri, belonging to one M., had left his owner's house with the intention of escaping. Being about thirty miles from his home, he met with D., a planter, working in the field with his negroes, who told A. that as he had not a pass he could not allow him to proceed; but tliat he must remain until after dinner, when he, D., would g,> with him to the adjoin- ing plantation, where A. had told him that he was going. As they were walking towards D.'s house, A. ran off, and D. ordered his slaves, four in number, to take him. During the pursuit, D., who had only a small stick in his hand, met A.» and was about to take hold of him, when A. stabbed him with a knife, and as D, turned and fell, he stabbed him again. D. soon afterwards died of his wounds. By the law of Missouri, any person may apprehend a negro susp^-v^ted of being a runaway slave, and take him before a justice of the peace. Any slave found more than twenty miles from his home is declared a runaway, and a reward is given to whom- soever shall apprehend and return him to his master. A.,^ having made his escape to this country, was arrested here upon a charge of murder; and the justice before whom he appeared having committed him, he was brought up in the Court of Queen's Bench upon a habeas corpus, and the evi- dence returned upon a certiorari. It was contended that as A. acted only in defence of his liberty, and upon a desire to gain his freedom, there was no evidence upon which to found a charge of murder, if the alleged offence had been committed here, and tha^ he could not be demanded under the treaty ; but the court held that the prisoner was liable to be surrendered, for his right to resist apprehension must bj governed by the law of the place where the offence was committed. In lie Beebe (e) the court held that burglary is not an offence within the meaning of the treaty, or the statutes passed to give effect to the treaty. (e) 3 U. C. P. R. 273. EXTKADITION. 23 A prisoner was arrested in Or.tario for havinj? committed in the United States the crime of forgery, by forging, coining, counterfeiting, and making spurious silver coin; but the court held thai the oH'ence as above char^^ed does not constitute the crime of forgery within the meaning of the treaty or Act, for it was not forgery according to our law. (/) In ex parte E. S. Lamirande, {g) the couit held that the making of false entries in the books of a bank r!.oes not coustitute the crime of forgery according to the law of England or Canada, and the prisoner, therefore, was not liable to be extradited oii the requisition of the French authorities under the Imp. statute 6 & 7 Vic, c. 75. But where a prisoner was charged with having forged a resolution of a city council as to the issue of bonds, by altering the amount for which the issue was author- ized, and of having forged a bond of the said city, it was held, on an application for his discharge^ tha^ the resolution being an essential prelimina'-y to the issue of Jae bond, and the bond being an instrument which might je the subject of forgery, although not executed in strict accordance with the code of th*" State in which the bond was issued, there was a prima facie case made out against the prisoner, and that ho should be remanded. (K) \nRe Lewis, {i) where the piisoner was charged with assault with intent to commit murder, in that he had opened a railway switch with intent to cause a collision, wherebv two trains did come into cuilision, causing a severe injury to a person on one of them, it was held that this was not an assault within the treaty. It seems piracy, as used in the treaty, was intended to apply to piracy in its municipal acceptation, cognizable only by tribunals having jurisdiction either territorially or over the person of the offender. If, however, it sig.'ify piracy in its primary and general sense, as an offence against the law g Q U \\ 2 eg (/) Re SviUh, 4 U. C. P. R. 216. {g) 10 L. C. J. 280. (h) Reg. v. Hovey, 8 U. C. P. R. 346. (0 6 U. C. P. R. 236. i: 24 THE CRIMINAL LAW OF CANADA. i I I ■ ; \ ■' ' \: I ,i!i; of nations, it can only come within the operation of the treaty when a pirate, havin<» gone into one or other of the countries, and so made himself amenable to its courts, and after having been there legally charged with the offence, has fled or been subsequently found within the territory of the other, (j) When an act assumes an international character, and is sanctioned by the aggregate power of a nation claimin;' to exercise belligerent rights, all private jurisdiction over i , as regards individual responsibility, ceases, and it is beyond the reach of the treaty or the statutes. In such case, refercLce can only be had to the arbitrament of the sword. And an offence cannot be divested of its international charaov r, by selecting from an act — referable for its approval ov censure only to the law of nations — a portion of, or an incident in, such act, and then attempting to subject such portion or such incident to trial by a municipal tribunal ; for the whole of the details and incidents which in the aggregate constitute a national or hostile act, must be taken together, {k) In accordance with these principles, it was held that the St. Alban's Eaid (the facts of which are given in the report) was a liostile expedition, authorized by a Government entitled to claim belligerent rights, and should be disposed of by inter- national law, founded on the rights of belligerents, and not by a neutral judge, (ii) This principle was also recognized in Burley's case, {jj) In the latter case, the counsel for the defence contended that the act charged was committed by the prisoner while engaged in an act of hostility duly authorized by the Confederate States agai; it the United States ; and no doubt, if this had been established, the court would have discharged the prisoner. But it was held that, under the circumstances of the case as "shown, as well on the part of the prosecution as of the defence, the accused, who took the property of a non- (i) The Chesapeake case, 44-5. {k) Reg. v. Young, the St. Alban's Raid, 454, per Smith, J. (ii) Ibid. (jj) I U. C. L. J. N. 8. 20 and 34. EXTUADITION. 26- oombatant citizen, by violence, from bis person, was guilty of robbery, and liable to be surrendered under the treaty. The same principle was also very fully recoj»nized in thf most , important case of the Chesapeake in New Brunswick. There evidence was produced to establish an authority from th» Government of the Confederate States, as reco^^nized bel- lijTfcrents, for tlie commission of the acts charged. An accessory before the fact is liable to extradition, but not an accessory after the fact, {kk) Where the crime comes within the treaty, it is imm'^terial whether it is, according to the laws of the United States, only a misdemeanor and not a felony; our concern is to deal with these foreign offences in our own conntiy in like manner as if they had been committed here — to enforce the treaty effectually and in good faith, and to leave all questions of municipal law between the foreign authorities and their prisoners to be dealt with and settled by their own system, with which, in that respect, we have nothing whatever to do. (/) Having set out the cases in which the construction of the treaty was involved, the procedure for giving effect thereto will now be considered. This, as before stated, is governed by the Imperial Extradition Act, 1870, as modified by our 31 Vic, c. 94, and 33 Vic, c 25. With reference to the warrant of arrest, the 31 Vic, c 94, sec. 1, as amended by the 33 Vic, c 25, provides that any Superior or County Court Judge, or any Recorder of a city in Canada, or a ly Commissioner appoint-ed for the purpose by the Governor under the Great Seal, may issue such warrant. The Extradition Act, 1870, by section 8, gives the same power to "a Police Magistrate or any Justice of the Peace in any part of the United Kingdom," and vl section 17 pro- vides that the Act shall " extend to every British possession in the same manner as if throughout this Act the British pos- sessions were substituted for the United Kingdom or England, (kh) Reg. v. Browne, 6 App. 386. (/) Re CaldweU, 6 C. L. J. N. S. 227 , 6 U. C. P. R. 217. Q S TUB CRIMINAL LA.W OF CANADA. ; \ I-" E as the case may require," but with certain modifications, which in many respects are inapplicable to Canada. The authority to try extradition cases was formerly vested in police magis- trates and justices of the peace, but that authority was expressly taken from them by our legislature, as already stated ; and a difficulty now raised by the above sections of the Imperial Act, is whether they have the effect of re- clothing magizitrates and justices with the powers of which they had been stripped. It has been held in Quebec, on a construction of these sec- tions, (m) that a judge in sessions may take the preliminary enqtiete in matters of extradition, and this apparently on the ground that he is while so acting a justice of the peace. However this may be, the Imperial Act, being permissive in its terms, has not, it is submitted, the efifect of ousting the jurisdiction of our superior and county court judges under our 31 Vic, c. 94. When application is made to a judge or magistrate for a warrant of arrest under the treaty, his first consideration, pro- vided he have jurisdiction in other respects, should be, whether the alleged offence is within its terms. But for the treaty and the statutes, the proceedings by a magistrate, in respect of a crime committed in the United States, by way of arresting or committing the accused to prison, would be coram non jttdice, and upon habeas corpus the prisoner would be entitled to his discharge. The whole power to deal with a crime in a foreign country is derived from the treaty and the statutes, and there is no jurisdiction or power to take any proceedings under the treaty, except for one of the offences mentioned therein ; (n) and if the judge or magistrate does not find by his warrant that one of these offences has been committed, the whole case fails, and no legal power exists to cori*ect or supply the defect, (o) (m) Re Konigs, 6 Bevue Legale, 213, Q. B. 1874. (n) lie Anderaon, 1 1 U. G. C. P. 62-3, per Draper, C. J. (o) Ibid. 68, per Hagarty, J. f"Nls EXTRADITION. 27 In considering, themfore, the right to arrest and detain, it ouglit clearly to appear that the prisoner is cliarged witli an offence within the treaty. If doubtful whether it is one of those enumerated or not — if, for instance.it is not clear whether the offence alleged to have been committed amounts to murder or manslaughter — that interpretation should be adopted which is most in favor of the liberty of the accused; ai;d as man- slaughter is not mentioned in the treaty, the party should not be arrested and detained, {p) It was held in the Chesapeake case, that the magistrate must have jurisdiction, judicially as well as territorially, over the offence, and that if it were of such a character that he would have no jurisdiction over it when committed in this conntry, neither the tveaty nor the statute authorized an inquiry for the purpose of committing the offender, when his offence arose in the United States. This case, however, was under the Imp. Stat. 6 A 7 Vic, c. 76, which only era- powered any " j ustice of the peace or other persons " to act under the treaty. The tendency of recent legislation in Canada has been to vest this power in the superior magis- tracy of the country ; and if it is still held that they must have a judicial as well as territorial jurisdiction over the offence, the jurisdiction is nevertheless very much enlarged ; unless, indeed, the Extradition Act, 1870, be held to have the effect of enlarging our statutes in this respect. The following case, which may still be useful, shows the authority for a()pointing a magistrate to act under the 31 Vic, c 94, the powers which the appointment confers, and also that they are not affected by the circumstances that another magistrate has, after hearing evidence, etc, dis- charged the fugitive : The prisoners were arrested at Toronto, under a warrant issued by one M., on an information laid by B., charging them with robbery, committed with violence, in one of the i Ss', Q '' 3 ec flS !i (p) Re Anderson, 11 U. C. C. P. 62-3, per Rkharda, J. 28 THE CRIMINAL LAW OF CANADA. illl Ik I- United States of America, and stating the information to have been laid before " the undersigned police magistrate in and for the county of the city of Toronto, amongst other counties appointed under and by virtue of the Act of the Parliament of Canada, 28 Vic, c. 20, entitled," etc. The war- rant of arrest described M. as police magistrate for all tliese counties, naming them in full, and the warrant of commit- ment as police magistrate for the county of Essex, amongst other counties appointed under and by virtue of the. above Act (but no commission empowering him to act was pro- duced on this application, which was for the prisoners' dis- charge under a writ of habeas corpus). Jnder this warrant tlie prisoners were conveyed to S., in the county of E-isex, and evidence was given there, before M., of the robbery in question, consisting of certain depositions taken in the United States, before a justice of the peace there, on which an original warrant of arrest was issued by liim. These depositions had been taken, and warrant issued, after the arrest at Toronto. On this evidence, the prisoners were committed to custody, to await the warrant of the Governor General for their extradition to the United States. The prisoners, it seemed, had been previously arrested in Toronto on the same charge, and been discharged by the local police magistrate, after a lengthened investigation had before him. It was held that this discharge did not prevent another duly qualified officer from entertaining the charge against them, on the same or on fresh materials, and that the failure of one magistrate, from mistake or otherwise, to commit persons charged for extradition, cannot prevent the action of another. It was held, also, that the 29 & 30 Vic, c. 51, s. 373 (now repealed and re-enacted by (Ont.) 32 Vic, c 6, s. 11), only applied to any case arising in any town or city in Ontario, and did not preclude M. from taking the informa- tion of B. and issuing his warrant in Toronto, where there was already a police magistrate ; for that the words of the section merely excluded him from jurisdiction there in local EXTRADITION. 29 cases, but did not apply to cases arising under the extradi- tion laws. It was further held, that the appointment' of M. might well have been made under 28 Vic, c. 20, for any one or for all the counties of Ontario, including Toronto, and his power made the same as a police magistrate in cities, except as regarded purely municipal matters, and that this Act was continued by (Ont.) 31 Vic, c 17, s. 4 ; but that as nothing was suggested in any way impugning the possession by M. of the authority to act, the ordinary rule must prevail, and the warrant be treated as executed by an officer possessing such authority, (q) Under our statute, the 31 Vic, c 94, a warrant might be issued in the first instance in this country, and the proceed- ings under the treaty and statutes initiated here, (r) it not being necessary that an original warrant should have been granted in the United States; but section 10 of the Extra- dition Act, 1870, seems to require the foreign warrant to be issued at any rate before the commitment of the prisoner. It is not a condition precedent to the jurisdiction of the magistrate tliat a requisition should be first made by the Government of the United States upon the Canadian Gov- ernment, or that the Governor General of Canada should first issue his warrant requiring magistrates to aid in the arrest of the fugitives, (s) If, however, a Secretary of State should order a magistrate to proceed under the statute, his jurisdiction cannot be impeached upon the ground that the terms of the treaty have not been complied with. This might be a reason for the Secretary refusing to make such an order ; but having made it, and the magistrate having acted under it, all the court has to do is to look at the statute and see whether he had jurisdiction under it. (t) 'I S Q a g a 3 CO S It (q) Reg. V. ilort(m, 19 U. C C. P. 9. (r) Re Anderson, II U. C. C. P. 5.3, per Draper, C. J. ; Reg. v. Morton, 19 U. C. C. P. 19, per Hagarty, 3., Re Caldwell, 8 C. L. J. N. S. 227 ; 5 U C P R 217 \s)Re Burlqfl I U. C. L. J. N. S. 34 ; Reg, v. Young, 9 L. C. J. 29 ; Extraditiuu Act, 1870, see. 8. (0 Re Counhaye, L. B. 8, Q. B. 416, per Blackburn, J. 30 THE CRIMINAL LAW OF CANADA. m. The judge or magistrate issuing the warrant for the appre- hension of the (»ffender, is the person before whom the evidence in support of the charge must afterwards be heard, and who must determine upon its suflficiency ; {u) but his decision is not binding on the governor, and the latter may, notwith- standing, order the prisoner's discharge ; (v) for the magistrate must send or deliver to the governor a copy of all testimony taken before him, that a warrant may issue upon the requisi- tion of the United States for the surrender of the prisoner pursuant to the treaty, (w) Nor is the opinion of the committing magistrate conclusive on the prisoner ; for, if adverse to the latter, he may still apply to t!»e governor, whose decision may possibly be influenced by considerations which a court could not entertain, (x) And it seems doubtful whether it was not the intention of the extradition statutes to transfer to the governor exclusively the consideration of all the evi- dence, that he might determine whether the prisoner should be delivered up. It may be observed here, that the surrender of persons for imputed crimes can only be made by the supreme executive authority of independent nations, (y) By the British North America Act, 1867, s. 132, the Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada, or of any Province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries. No doubt, the Ashburton Treaty is covered bv this clause, and that under it the Governor General has power lo deal with extradition cases to the exclusion of the Lieutenant-Governors of the several Provinces. («,) The Chesapeake case, 46 ; He Anderson, 20 U. C. Q. B. 165-9, per Robinson, C. J. (17) Ibid. 189, per Bums, J. ; Reg. v. Reno and Anderson, 4 U. C. P. R. 295, per Draper, C. J. (w) Re BurUy, 1 U. C. L. J. N. S. 45, per Richards, C. J. ; Re Ander- son, 20 U. C. Q. 6. 165-189 ; see 31 Vic., c. 94, s. 1 ; also Extradition Act. 1870, s 8. (x) Reg. V. Reno and Anderson, 4 U. C. P. R. 296, per Draper^ C. J. ly) Reg. v. Young, the St. Atban's Raid, 167, per SmUA, J. EXTRADITION. 81 The surrender, also, must be by the Governor General, as representing the Government. (2) But his power is confined within the letter of the local law ; and he is powerless to act against fugitives charged with the commission of any other of the formidable list of oifences, social and political, not enumerated in the treaty, because these are not con- tained within the local law. It seems, too, that the courts may, to some extent, control or direct the action of the Executive ; for when a party is committed under a magis- trate's warrant, he may apply to any of tlie superior courts or judges for a habeas corpus^ and that the court in terra, or the judges in vacation, may determine whether the case be within the treaty, and, if not, whether a legal power to surrender the prisoner is, nevertheless, reposed in the Execu- tive Government; and if so, then whether a case was made out which entitled the Government to grant such sur- render, (a) The governor is not authorized to surrender the prisoner until the expiration of fifteen days after his cora- niiiment. (b) This provision was probably inserted in the statute to give the prisoner an opportunity of having the magistrate's decision reviewed on habeas corpus wnd certiorari. The fact tliat the person is charged witli piracy committed iix the foreign country ought not to prevent the governor from surrendering him on the charge made and proved in tliis country. But if the charge in this country is robbery, and the requisition on behalf of the government of tlie foreign countrv be for his extradition for the crime of piracy, he could not be surrendered under a warrant of commitment for mbbery. And if his surrender is demanded for any other offence than the one for which he has been committed, it must be refused, (c) Looking at the statute, (d) we find that the commitment of the prisoner is to be made upon such evidence as, according (z) Re^. V. Tubbee, 1 U. C. P. R. 98. {a) Ibid. (6) Extradition Act, 1870. b. 11. (c) Be Burlev, I U. C. L. J. N. S. 45-6, per Bkhards, C. J. {d) Extradition Act, 1870, as. 10 and 17. I 1! 32 THE CRIMINAL LAW OF CANADA. u I to the laws of the Province in which he has been apprehended, would justify his couiniittal for trial, if the crime of which he is accused had been committed therein. This seems to impose on the judge or magistrate the same duties as devolve upon justices of the peace, on charges of indictable offences committed within our own jurisdiction ; and when he would commit for trial under a similar state of facts arising in this country, he is bound to commit for trial under the treaty, and our statutes passed to carry it out. (e) The authority of the judge or magistrate does not extend beyond the inquiry indicated by the statute ; (/) but he is bound to see that the commitment for extradition is warranted by the statute, and that the offence is sustained by evidence which in our own courts would prima facie establish the crime charged, (g) When such prima facie case is made out, and the evidence in defence is not clear and conclusive, a jury is the only constitutional tribunal which can determine whether evidence offered to displace the inipressiou which the prima facie case is calculated to make, does or does not satisfactorily displace it; and all questions of intent, or of fact or inference, should be submitted to them. (Ji) The judge or magistrate, therefore, should not go beyond a bare inquiry as to the prima f de criminality of the accused, and should not inquire into matters of defence which do not affect such criminality ; such, for instance, as whether the prosecution of the offender is barred by a statute of limitations in the foreign country, or whether there is a probability of the ultimate conviction of the prisoner therein, {i) Conflicting or unsatisfactory evidence in answer to a strong prima facie case, though perhaps properly receivable, would not jua^ify the magistrate in discharging the prisoner ; (j) for it is to be (e) Re Burky, 1 U. C. L. J. N. S. 48, per Rkhards, C. J. (V) Beg. V. Beno andAndernm, 4 U. C. P. R. 281. Ig) Beg. V. Morion, 19 U. C. C. P. 25, per W'daon, J. ; ex parte Lamirande, 10 L. C. J. 2t0. (h) Beg. V. Oould, 20 U. C. C. P. 159, per Owynne, J. ; the Chesapeake case, 48. (t) Ex parte Martin, 4 C. L. J. N. S. 200, per Morrison, J. {j) Beg. V. Beno and Anderson, 4 U. C. P. K. 281. EXTRADITION. 33 observed that he cannot try the case here, nor weigh conflicting evidence, nor assume the functions of a jury by deciding as to the credibility of witnes es. (k) In the Bnrley case, the accused, on his examination before the magislrate, admitted the acts charged, which prima facie amounted to robbery, and alleged, by way of defence, matter o\ excuse which was of an equivocal character and bore different interpretations, and the court held that the magistrate could not try *\h. case, nor act on the explanatory evidence by way of defence; bui; the prima facie evidence being sufiioient to justiiy the committal of the prisoner, the facts necessary to rebut the prima facie case could only be determined by the courts of the United States. If there is not sufficient evidence of crirainailty, the magistrate ought not to commit ; if there is, he ought, not- withstanding the evidence is sufficient, if true, to prove an alibi. If he discharges because the evidence pro and con. is equally strong, and lie cannot determine which side is telling the truth, he is in error, because, in either of these cases, if he pursued any other course, he would, for many purposes,, be assuming the functions of a jury, and, on a preliminary investigation, trying the whole merits of the case, though the inquiry was only instituted to ascertain whether the evidence of criminality would justify the apprehension and committal for trial of the person accused. (/) If the facts proved admit of different interpretations as to the intent with which the prisoner acted, this is no ground for refusing to commit for extradition, because the question of intent is for the jury 0.1 the trial, (m) Thus, if the charge is of assault with intent to commit murder, it is no objection that the facts proved are as much evidence of other felonious [k) Reg. v. Reno and Anderson, 4 U. C. P. R. 281; Re Burley, 1 U. C. L. J. N. S. 34 ; Reg. v. Young, 'the St. AWan'8 Raid, 449, per Smith, J.; ex parte Martin, 4 C. L. J. N. S. 200, per Morrinon, J. (l\ Reg. V. Reno and Anderson. 4 U. 0. P. R. 299, per Draper, C. J. ; Re. Burky, 1 U. C. L. J. N. S. 46, per Richards, C. J, (m) The Chesapeake case, 48. M THE CRIMINAL LAW OF CANADA. 'il; mm intents as of the intent to murder, (n) And if the evidence presents several views, on any one of which there may be a conviction, if adopted by the jury, the court is not called upon to determine which of the views is best supported, but may commit the prisoner for surrender, (o) The magistrate should remember that the citizens of a foreign country aie entitled to precisely the same measure of justice as our own people, (p) But he should not hesitate in committinj; the prisoner for extradition from any fear that he will not be fairly deal., with in the United States ; and, even if he is satisfied that the prisoner will not be tried fairly and without prejudice in the foreiij;n country, he cannot refuse to give effect to the statute by acting on such an assump- tion, (q) But he must assume that courts in other countries will be governed by the same generiil principles of justice which prevail in our own courts, and that tiie prisoner will have a fair trial after his surrender, (r) We are not to over- look or forget for an instant that we are dealing with a highly civilized people, most tenacious of their liberty, whose laws are similar to our own, but administered with more of the common law technicality than we have thought it ex- pedient to retain, by which many avenues are left open for criminals to escape which we have closed ; (s) so that a prisoner is more likely to be acquitted in the United States than here. An information stating that the prisoner was appiehended " on suspicion of felony " was held too general, as not con- taining a charge of any specific offence, (t) The information in this case was considered as for an ordinary offence, com- mitted within our own jurisdiction. But it is no objection (n) Beg. v. Beno and Anderson, 4 (7. C. P. R. 296, per Draper, C. J. (0) Beg. V. Gould, 20 U. C. C. P. 154. (p) Be KeimoU, 1 Chr. Reps. 256, ^t Sullivan, J. Iq) Be Anderwn, 20 U. O. Q. B 173. per Bobinson, C. J. (r) Beg. v. Bene and Anderson, 4 U. 0. P. R. 299, per Draper^ d J. ; Be Burky, 1 U. U. L. J. M. 8 48. per Bichardn, C. J. («) Beg. V. Morton, 19 U. C. C. P. 26, per W%l»(M, J. (<) Rig. V. Young, the St. Aiban'» Baid. EXTRADITION. 35 /idence ty be a \, called ted, but ns of a asure of dilate in that he id, even illy and it refuse assump- jountries f justice )uer will to over- 5 with a y, whose uiore of lit it ex- lopeii for |o that a id States [eh ended lOt cou- >riuation |ce, cotn- ibjection L C. J. to the inforrration and complaint on which the magistrate issues his warrant for the arrest of the party, in the first instance, that the complainant was not an eye-witness of the facts to which he deposes, or that they are sti'^^d on infor- mation and belief ; at least, the offender may be lawfully brought before a justice, and detained a reasonable time, until the proper evidence can be produced, (u) In lie Kermott (v) a question was raised, whether a com- mitting magistrate could detain a prisoner on evidence amounting only to a ground of suspicion, for the purpose of other evidence being imported into the case, so as to bring it within the treaty ; but it was held tliat neither the treaty nor the statutes contemplate the surrender of an accused person upon mere suspicion, [w) But where a magistrate was in receipt of telegrams from h"gh persons in Fran "e and England, informing the police and the Consul of France of the escape of an individual whom they descHbed, and also of an affidavit of the German Consul, stating that he had reason to believe him guilty, it was held that he was justified in detaining him uutil the arrival of proof, {x) However this may be, there is no doubt of the magistrate's power to detain the prisoner when the evidence is clear and satisfactory as to his guilt, and this ev3n although he has been arrested upon a void warrant. Thus, where a prisoner was committed for extradition, it was held on habeas corpus that the material question was, being in custody, whether a sufficient case was made out to justify his commitment for the crime charged ; tliat it was immaterial that the originr I information, warrant, etc., were irregular and detective, if, on Che hearing, sufficient appeared to justify the commitment; that it would be absurd to discharge the prisoner because tiie warrant might be void when the evidence, on the hearing, would justify re-arresting (tt) Jie Andersim, 20 U. C. Q. B. 151, per Robinson, C.J. ; Reg. v. Reno and Anderson, 4 U. 0. P. R. 287. (t;) 1 Chr. Rep. 253. ^10) Ibid. 256. (.«) Re Konigs, 6 R. L. 213. Q. B. ^ 36 THE CRIMINAL LAW OF CANADA. . him the next liionient, and that the commitment must there- fore be upheld, (y) In Jte Anderson, (z) it was held that, when a person is brou<»ht before the court upon a writ of habeas corpus, and the warrant of commitment upon which he is detained appears on its face to be defective, the court before whom the priso»-3r is brought has no authority to remand him, and that such power is only possessed by the court in virtue of its inherent jurisdiction at common law, and does not extend to proceedings under the Extradition Treaty and statutes. But it has been held in Quebec that a Judge of Sessions, when a prisoner is brought before him on the original warrant of arrest, has power to remand under the treaty and statutes; and when the remand appointed no day for the further examination of the prisoner, and an application was made ibr a habeas corpus (before the eight days after the remand had expired), (a) on this ground, and on the ground that the judge had no power to remand, the writ was refused, the court holding that the power to remand was essential to the performance of the magistrate's duties, and that the irregularity in not fixing the day was unimportant, (b) The provision in the statutes as to the evidence of crim- inality being sufficient to justify the apprehension and comnuttal for trial, if the offence had been committf J here, merely furnishes a test as to the kind of evidence required, {c) So far as regai-ds the means of proof, <:here can be no doubt that it is our law which must govcjrn, according to the provision in the statute. If, foi instance, the law of the States, or any of them, should admit a confession extorted from a party by violence or threats, to be used against him on a charge of an offence coming within the provisions of the treaty, such Evidence could not be admitted here, {d) (v) Ex parte Martin, 4 C. L. J. N. S. 198. 2) 11 l5. C. 0. P. 1. (o) See 32 & 33 Vic, c. 30, s. 41. (6) Reg. v. Ywing, the St. Albania Raid, 15. (c) Re Warner, 1 U. C. L. J. N. S 18, per Hagarty, J. (d) Re Anderson, 20 U. C. Q. B. 169, per Robinson, U. J. BXTRADITION. 37 cnm- and here, red. (c) doubt to the of the torted 3t him of the The judge, or other person acting, may proceed upon original viva voce testimony, in like manner as " if the crime had been committed in this Province." He may, however, also receive the original depositions, (e) or duly authenticated copies thereof, on which the original warrant was issued in the United States, in evidence of the criminality of the accused. (/) But as the Extradition Statutes are enabling Acts, there is no obligation on the part of the prosecutor to produce such depositions, (g) Under the third section of our statute, 31 Vic, c. 94, the depositions that may be received as evidence of the crimin- ality of the prisoner must be those upon which the ori'^inal warrant was granted in the United States, certified und"** the hand of the person issuing it, and not depositions taken sub- sequently to the issue of the warrant, or, not in any way connected therewith, (h) But under the Imperial Extradition Act, 1870, depositions duly authenticated aie receivable in evidence, whether they are taken in the particular charge or not, and whether taken in the presence of the accused or not, it being left to the magistrate to give what weight he thinks proper to depositions so taken, (i) And the depositions and statements on oath, and the copies thereof, referred to in the 14th section of the Extradition Act, 1870, are made to include affirmations and copies of such affirmations, (j) As the statute permits depositions taken in a foreign court to be used in lieu of oral testimony, when the case depends wholly upon such depositions, we must be strict in seeing that they are depositions coming clearly within the meaning and provisions of the section, (k) and that the forms and technicalities of the statute have been strictly complied (e) Reg. v. Mathew, 7 U. C. P. R. 199 ; Reg. v. Browne, 6 App. R. 386. (/) Re Caldwell, 6 C. L. J. N. S. 227 ; 5 U. C. P. R. 217, per^. iVilson, J. ig) Ibid. 227, ver A. Wilson, J. (A) Reg. v. Robimon, 6 C. L. J. N. S. 98 ; 5 U. C. P. R. 189 : Reg. r. Broume, 6 App. R. 386. (i) Re Counhaye, L. R. 8, Q. B. 410. ()') Extradition Act, 1873, 36 & 37 Vic, c. 60. Qc) Reg. v. Robiiuon, 6 C. L. J. N. 8. 99, per Morriaon, J. So flfl 88 THE CRIMINAL LAW OF CANADA. I ']\ f Mv m with. (/) An affidavit sworn before a justice of the peace in the United States, not beinj? a copy of any original deposition* properly certified, is not admissible as evidence, nor is the objection cured by the consent of the prisoner's counsel, (m) The evidence of a professional gentleman as to the law of the United States is properly admissible be^bie the magis- trate, (n) But where the evidence against a prisoner of having uttered a forged instrument was not otherwise suffi- cient, the court would not look at an indictment against him found by the grand jury of an American court, (o) and a mere copy of such an instrument is clearly inadmissible, (p) In the St. Albania Raid case, the examination of the wit- nesses for the prosecution was conducted in the manner prescribed by the 32 & 33 Vic, c. 30, s. 29 et seq., as to offences committed here. The prisoner was allowed to cross- examine the witnesses, and the depositions certified that he had the opportunity of doing so. The voluntary statement of the prisoner was taken, as by s. 31 of this statute, at the request of the Crown counsel. The judge, however, declined to express an opinion as to its legality, (q) Previously to the passing of the Extradition Act, 1870, the extent of the magistrate's authority to receive evidence on behalf of the prisoner was not very clearly defined, although the question had been discussed in several important cases, (r) But by section 9 of that statute it is provided that the magistrate shall " hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an in- dictable offence committed " here ; and " shall receive any {I) Re Lewis, 6 U. C. P. R. 236. (to) Re Anderson. 20 U. C. Q. B. 183, per McLean, J. (n) Ibid. 172, per Robinson, C. J. (0) Reg. V. Hovy, 8 U. C. P. R. 345. (p) Re Rosenbaum, 18 L. C. J. 200 ; Reg. v. Browne, 6 App. R. 386. \q See also the Chesapeake rase on these points. (r) Reg. v. Young, the St. Alban's Raid ; the Chesapeake case ; Re Burkff, 1 U. C. L. J. N. S. 34. EXTRADITION. 39 evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been con- victed is an offence of a political character, or is not an ex- tradition crime." Under this statute it has been held that the judge or magistrate has no authority to hear the prisoner's defence, but that in the exercise of his discretion he miyht hear any evidence tendered to show that the offence was of a political character or one not comprised in the treaty, or that the ac- cuser was not to be believed upon oath, or that the demand for the prisoner's extradition was the result of a conspiracy, (s) In Be Caldwell, (t) the court held that the evidence of an accomplice was sufficient to establish the charge for the purpose of extradition, and that magistrates holding pre- liminary examinations might undoubtedly act on the evi- dence of an accomplice, as the matter in investigation is merely whether the accused shall be put upon his trial or not ; and when all questions as to how far the accomplice is entitled to credit will be duly considered at the proper time. It seems, also, the evidence of a slave may be received, (u) If the pri&oner is committed for surrender on insufficient evidence, a judge in chambers will, on writs of habeas corpus and certiorari, order his discharge, {v) It had been held by the Court of Queen's Bench, in Eng- land, in the Anderson case, {w)a.fter the judges of our courts had refused to discharge the prisoner, that the Imperial courts had jurisdiction to issue a writ of habeas corpus into this country to bring up the body of Anderson, and they accord- ingly granted the writ. This action of the English courts caused much complaint in Canada, as being an unwarranted interference with our judicial prerogatives ; and to prevent future proceedings of a like kind, the Imperial Statute 25 is) He Bosenbaum, 20 L. C. J. 165, Q. B. (0 6 0. L. J. N. S. 227 ; 5 U. C. P. R. 217. (u) Re Anderson, 20 U. C. Q. B. 182, per McLean, J. («) Re Kermott, 1 Chr. Rep. 253. (to) Ex parte Anderson, 3 L. T. Reps. N. S. 622 ; 7 Jur. N. S. 122. i 40 THE CRIMINAL LAW OF CANADA. I Vic, c. 20, was passed, which provides that no habeas corpim shall issue out of any court in England to any colony or foreign dominion of the Crown in which any courts exist having power to issue and ensure the due execution of writs. Some doubt was entertained under our 31 Vic, c 94, wiiether it was competent for the Superior Courts to inter- fere in the case of an offender coming clearly within the treaty, after the judge or magistrate who heard the evidence had determined that, in his opinion, it sustained the charge, and had transmitted to the governor a copy of the testimony and committed the prisoner to gaol under the first section of the Act. No provision is made by that statute for granting a writ (*r /uxbeas corpus, except in the case where the prisoner has not been delivered up within two months after his com- mitment ; and although the necessity for a controlling power in the superior courts was strongly felt, grave doubts were expressed by several judges of high authority as to whether any such power existed, (x) But by section 11 of the Extra- dition Act, 1870, the police magistrate, on committing a prisoner, shall inform him that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of habeas corpus ; so that it would seem that under this section, independently of the general question, our superior courts have authority to exercise the same control in extradition matters as they have over raagis- trutes acting in the administration of the ordinary criminal law. The following case is important as to the sufficiency of the evidence. The express car of a railway train, on one of the roads in the United States of America, was broken into, and plundered by five or more men, two or three of whom fired at the conductor who was endeavoring to stop them as they were moving off with the engine. The conductor was at the (x) See Reg. v. Reno and Anderson, 4 U. C. P. R. 281 ; Re Anaerson, 20 U. C. Q. B. 124 ; Re Warner, 1 U. C. L. J. N. S. 16 ; KermoU'a caae, 1 Chr. Rep. 253 ; Tubbee'a cane, 1 U. C. P. R. 98 ; Re Burley, 1 U. 0. L. J. N. S. 46. IXTRADITION. 41 I corpuH lony or tB exist >f writs. , c. 94, ,0 inter- hiu the vidence charge, stimony iction of granting prisoner lis com- g power )t9 were whether e Extra- itting a •endered lie has a it would general cise the r raagis- mminal y of the e of the nto, and om iired as they 13 at the (lerson, 20 U'a case, I . 1 U. 0. time about eight feet from the person who fired the first shot, and the ball passed through his coat. This person was a brother of Keiio, one of the prisoners apprehended. The express messenger swore to the identity of the prisoners, and as to the identity of the person who fired the first shot. Tha prisoners were arrested in Canadn.nt the instance of the Express Company, and demanded for extradition by the United States authorities. The prisoners offered evidence on their examination to prove an alibi. Draper, C. J. (in Chambers), held that, under Mie circumstances of this case, there was sufficient prima facie evidence of the criminality of the prisoners to warrant a refusal to discharge them, and that tlicre was evidence to go to a jury to lead to the conclusion that the intent of the prisoners was, at the time of shooting, to commit murder, {y) The court above must be fully satisfied there is no legal ground on which the decision of the magistrate can be supported before it is reversed, (2) and i* would seem that if in one view of the evidence the court find the decision sustainable, they ought not to interfere and reverse it. (a) Where the prisoner was brought before a judge in General Sessions, on the original warrant of arrest, and remanded Isfore final commitment, the court doubted their power to interfere by habeas corjms until final commitment, {b) The following case bears on the question of return to the writ of habeas corpus : Where, after the prisoners were committed by a justice for extradition, a writ of habeas corpus^ directed to a gaoler, was sent to the Clerk of the Crown, with a return stating that he held the prisoners under a warrant of committal annexed, but was unable to produce them for want of means to pay their conveyance. This return having been marked by the clerk, " received and filed, 26th September, 1868," and (y) Reg. v. Reno and Anderson, 4 U. C. P. R. 281. (2) Reg. V. GouM, 20 U. C. 0. P. 161, per Hagarty, J. (a) Ibid. (b) Reg. V. Young, the St. Albania Raid, 15. n 42 THE CRIMINAL LAW OF CANADA. ilr I ' 111 signed l\v him, a judge in chambers made an order allowing these papers to be withdrawn, for the purpose of having another return made. The prisoners were aftei wards pro- duced, with the writ to which the foregoing return was annexed, and another, stating that the prisoners were held under the ^«"^ant already spoken of, and a subsequent warrant, by which an alleged defect in the first was intended to be cured. It was held that the first return was, in lact, no return, merely alleging matters of excuse for not making a return, and that, when a writ of habeas corpus is return- able before a judge in chambers, the return cannot be filed until it has been read before the judge, and that the second return was the only one in this case, and, it having been openly read, was duly filed, (c) The return might have been amended if necessary, {d) / The commitment authorized by the Extradition Act is peculiar, and should conform to our 31 Vic, c. 94. {e) It is not a commitment for safe custody, in order that the party may be afterwards brought to trial within our jurisdiction, but a commitment for safe custody, there to await the warrant of a Secretary of State for his surrender. (,/) For it is uot the function of the magistrate to determine wh. ther the prisoner should be extradited, but to remand him and report the facts to the proper executive authority, {g) ^^ The warrrant of commitment should follow the terms of the statute, and should use the technical term " murder" (or as the case may be) in describing the offence, for although in ordinary cases, where the crime under investigation has been committed in our own country, the technical precision and accuracy necessary in an indictment is not required in a warrant, yet neither this rule, nor the reason for it, apply to extradition cases. In the latter, there is only a special statu- (<;) Reg. V. Reno and Anderson, 4 U. C. P. R. 281. (d) Ibid. 291, per Draper, C. J. («) Ex parte Zink, 6 Q. I R. 260. (/) Extradition .Act, 1870, b. 10 ; ex parte Zink, stcpra. (g) Ex parte Zink, 6 Q. L. R. 260. EXTRADITION. tory jurisdiction conferred on the magistrate, and, therefore, the warrant in the execution of the statutory power, thus limited, should adhere to the terms of the statute, in order that it may appear clearly that the offence is one of those to which the treaty and the statutes directly apply, (h) In the Anderson case, when before the Court of Common ' Pleas, it was held that a warrant of commitment which used the words, "did wilfully, maliciously, and feloniously stab and kill," and omitted the word " murder," and " with malice aforethought," and concluded by instructing the gaoler to " there safely keep him (the prisoner) until he shall be thence delivered by due course of law," instead of the words of the Act, directing the prisoner to remain in gaol until his sur- render, upon the requisition of the proper authority, or until he should be discharged according to law, did not come w'thin the provisions of the treaty oi statute, and was consequently defective, (i) If the warrant has not the proper statutory conclusion, all that appears on its face is, that the prisoner remains in custody for an offence alleged to have been committed by him in a country over which our courts have no jurisdiction, and without any explanation of the authority for such com- mitment, or of the object of it ; and the prisoner would be released on habeas corpus. (J) Tn ordinary cases, where the offence is against the Queen's peace, and where the court acts in virtue of its inherent jurisdiction as a court over the offence, if the warrant of commitment appears to be de- fective, but the depositions show that a felony has been com- mitted, the court will look at the depositions, and remand the prisoner, in order that the defect may be corrected. But in extrr.dition cases, as the authority of the court is derived wholly from the treaty and the statutes, and by the latter ihe (A) Jie Anderson, 20 U. C. Q B. 162, per Robinson, C. J. ; 11 U. C. C. P. 53-63 ; the Chesapeake case, 41. (i) 11 U. U. C. P. 1 ; the Chesapeake case, 50. {j) Re Anderson, 20 U. C. Q. B. 163, per Robinson, C. J. ; ex parte Zink, 6 Q. L. R. 260. ca mi a* 44 THE CRIMINAL LAW OF CANADA. duty of deciding on the sufficiency of the evidence is cast on the committing magistrate, {k) they cannot look at the depo- sitions, to ascertain whether the detention is warranted ; and as they cannot remand the prisoner, (/) if the warrant of commitment does not show a sufficient cause for the deten- tion of the latter, he must be discharged, (w) A warrant of commitment, which does not show that the magistrate deemed the evidence sufficient, according to the laws of the Province in which he has been apprehended, to justify the apprehension and committal for trial of the person accused, if the crime of which he is so accused had been committed therein, is bad. (n) The warrant must show that the offence was committed within the jurisdiction of the United States, (o) But it need not set out the evidence taken before the committing magistrate, nor show any pre- vious charge made in the foreign country, or requisition from the Government of that country, or warrant from the Governor General of Canada, authorizing and requiring the magistrate to act. (p) But a warrant of commitment which omitted to state that the accused was brought before the magistrate or that the witnesses against him were examined in his presence was held to be bad on its face, and set aside, (q) The adju- dication of the committing magistrate, as to the sufficiency of the evidence for committal may, however, be stated, by way of recital, in the warrant, (r) A warrant of commitment, which directed the gaoler to receive the body of W. H., " and him safely keep for examin- ation," was held defective in not mentioning the day, or limiting the time during which the prisoner was to be confiuv^d. (s) But in this case the warrant was considered as (k) Ante p. 30. {I) Ante p. ^. (m) Ee Anderson, 11 U. C. C. P, 1 et. seq. (n) The Chesapeake case, 51; Re Anderson, 11 U. C. C. P. 64, per Richards, C. J. ; ex parte Zink, 6 Q. L. R. 260. (o) The Chesapeake case, 4-46. (p) Re Burley, 1 U. C. L. J. N. S. 34. \q) Ex parte Brown, 2 L. C. L. J. 23, Q. B. (r) Re Burtey, supra. («) Reg. V. Young, the St. Alban*» Raid, 6. |14, EXTRADITION. 46 for an offence curamitted in Canada. It was held, in one case, that the words in an information and warrant of com- iiiitinent " did feloniously shoot at with intent, and in so doin<^, feloniously, wilt ally, and of malice aforethought to kill and murder," involved " an assault with intent to commit murder," within the language of the last Act, 31 Vic, c. 94, and, therefore, they were not bad on that gi'ound, thougli it would have been more prudent to have followed the precise description of the offence given by t!ie statute, (t) It is not indispensable that the authority of the magistrate should be shown on the face of the warrant of commitment ; and where the crime has been committed in a foreign coun- try, and the committing magistrate has jurisdiction in every county in Ontario, the warrant is not bad though dated at Toronto, the county mentioned in tlie margin being York, but directed to the constables, etc. of the county of Essex, and being signed by the police magistrate, as such, for the county of Essex, (u) But where the commital is in pursuance of a special authority, the warrant must be special and must exactly pursue that authority, (v) In He Wam&r {w) the court held that it is in the power of a magistrate, acting under the treaty and statutes, after issue of a writ of habeas cm-pus, but before its return, though after an informal return, to deliver to the gaoler a second or amended warrant, which, if returned in obedience to the writ, must be looked at by the court, or a judge, before whom the prisoner is brought ; and Hagarty, J., {x) thought that although a magistrate, after his first warrant, transmitted copies of the testimony to the Governor, or even after com- mitting the prisoner in the first instance, he is not precluded from issuing a second warrant in proper form against the prisoner. (0 Reg. V. Rem and Anderson, 4 U. C. P. R. 281. (u) Ibid. (v) Ex parte Zink, 6 Q. L. R. 260 (w) I U. C. L. J. N. S. 16. (x) tfnd. 17. «5tJ c:] 46 THE CRIMINAL LAW OF CANADA. uwm I' :§ Bail may be granted to extradition prisoners in a proper case, as to other offenders. And where a prisoner was com- mitted for extradition to the United States, as the court would not sit at Montreal before the lapse of seven days from the commitment, his counsel applied to the court at Quebec by habeas corpus for bail, which was granted, (y) 1* the prisoner is discharged on the hear ng of the warrant of arrest, there can be no bail required as a condition of such discharge, (z) A prisoner charged with forgery in Canada was arrested in the United States and surrendered by the Government of that country under the treaty, upon application for bail, on the ground that there was no evidence of the corpus delicti. It was held that the depositions taken in Canada expressly charging the prisoner with forgery, followed by an application for the prisoner's surrender and his surrender accordingly, taken in connection with the fact that the evidence and proofs on which he was committed for surrender in the States must be held to be such as, under the treaty, to justify it according to the laws there, were sufficient evidence, (a) The warrant of the Governor General, requiring the extra- dition of a prisoner from the U nited States for forgery, is no proof that he was charged with or extradited for that crime. (6) In Ii>,g. V. Paxton (c) the question was raised, but not decided, whether a party extradited from the United States for forgery was liable here to be tried for any other offence than the one for which he was surrendered. The point came up again in^e Mosenbaum, (d) when it was decided that he was so liable, and that section 3 and sub- section 2 of the Imperial Extradition Act, 1870, being incon- sistent with the subsisting treaty between Great Britain and the United States, was not in force as to any application iy) Ex parte Foster, 3 R. C. 46, Q. B. (2) Beg. V. Beno and Anderson, 4 U. C. P. R. 295, per Draper, C. J. (a) Rey. v. Vanaerman, 4 U. C. C. P. 288. (6) Beg. v. Paxton, 10 L. C. J. 212, ic)Ibid. id) 18 L. C. J. 200, Q. B. EXTRADITION. / J. under such treaty. And it has been held in the United States that whether or not a prisoner hw d been extradited in good faith is a question for the two governments to determine, and not the courts ; and the prisoner being, in fact, within the jurisdiction of the court, he must be tned. (e) The provisions of the treaty for the payment of the ex- penses of the apprehension and delivery of the fugitive, by the party making the requisition, can be literally carried out by calling on the United States Government to pay such expenses when they make the requisition and receive the fugitive. By making the requisition they assume the respon- sibility of payinrr the expensas of apprehending as well as delivering him. (/ ) Only one case has arisen in this country under the treaty between Great Britain and France, ratified in 1843. In this case it was held that, under the Imp. Stat. 6^7 Vic, c. 75, passed to give effect to the treaty, the Consul-General of France had no authority to demand the rendition of a fugitive criminal, such consul not being an accredited oiplomatic agent of the French Government. That an inform .v^ transla- tion of an acte de renvoi is not a judicial doi^ument equivalent to the warrant of arrest, of which the party applying for extradition is required to be the bearer, according to the statute. That the evidence of criminality to support the demand for extradition must be sufficient to commit for trial according to the laws of the place where the fugitive is arrested, and not according to the law of the place where the offence is alleged to have been committed, (g) The Chesapeake case is the only one under the Imp. Stat. 6 «& 7 Vic, c. 76. It was decided in 1864, before the suspension of the statute in New Brunswick. The many important points involved in this case have been given in the foregoing pages. *:2 en I eg It (e) Clarke on Extradition, 2nd Ed. p. 75. (/) ReBurley, I U. C. L. J. N. S. 45, per Richards, C. J. (^) £h: parte Lamiraiuie, 10 L. C. J. 280. 48 THE CRIMINAL LAW OF CANADA. It may be observed, in conclusion, that the Imp. Stat. 6 & 7 Vic, c. 34, makes provision for the apprehension and surrender to the authorities of the place wliere the offence has been committed, of persons who have committed offences either in the United Kingdom of Great Britain and Ireland, or in any part of Her Majesty's dominions, whether or not within the said United Kingdom, and who are found in any place in the United Kingdom, or any other part of Her Majesty's dominions, other than where the offence was committed. The provisions of this statute as between the United Kingdom and the colonies, are very similar to those of our own statutes in aid of the Ashburtoa Treaty. The enactment only applies to treason, or some felony, such as justices of the peace in General Sessions have not authority to try in England under the provisions of an Act passed in the sixth year of the reign of Her Majesty, intituled "An Act to define iihe j urisdictiou of Justices in General Sessions of the Peace." {h) A person cannot under the 6 & 7 Vic, c 34, be legally arrested or detained here for an offence committed out of Canada, unless upon a warrant issued where the offence was committed, and endorsed by a judge of a superior court in thi.«i country, (i) And such warrant must disclose a felony according to the law of this country ; and the expression "felony, to wit, larceny," would seem to be insufficient, (j) (h) See s. 10. (i) Heg. V. McHolme, 8 U. C. P. R. 452. 0) ^bid. CRIMES IN GENERAL. # CHAPTER I. • >>, , CRIMES IN GENERAL, In the present work it is proposed to treat in the first place of the subject of crimes in general, and the distinctions between a public and a private injury ; secondly, of the per- sons capable of conimitting crimes, and their several degrees of guilt, as principals or accessories ; thirdly, of the several species of crimes recognized by law ; after which will follow annotations of the Canadian statutes on criminal law and dissertations on the subjects of evidence, pleading and prac- tice, as developed in our own cases. A crime is the violation of a right when considered in reference to the evil tendency of such violation as regards the community at large, (a) Where, therefore, an Act declared that every person having a distilling apparatus in his possession, without making a, return tl".ereof as therein provided, should forfeit and pay a penalty of SI 00, and rendered the apparatus liable to seizure and forfeiture to tlie Crown, it was held that an infringement of this Act was a crime, (b) The violation of a statute containing provisions of a public nature, and more particularly so when that violation is spoken of as an offence, and is punishable by fine, or imprisonment as substitutionary for the fine, is a crime in law. (c) When an offence is made a crime by statute, the proceed- ings instituted for the punishment thereof are criminal pro- ceedings. (([) An information by the Attorney-General for an (a) Sto. Bla. Com., Bk. 6, p &4. (6) Be Lucas Ji McOlashan, 29 U. C. Q. B. 81 ; and see Reg. v. Boardnuvn, 30 U. C. Q. B, 553. (c) Ibid. 2D U. C. Q. B. 92, per WiUon, J. (d) Ibid. 92, per WHaon, J. ; Bancroft v. Mitchell, L. R. 2 Q. B. 665, per Blackbum, J. D I— C.*} ui u\ C") rmmi 1^ 50 THE CRIMINAL LAW OF CANADA. offence against the revenue laws is a criminal proceeding, («) although offences against the customs and excise laws are not ordinarily treated as criminal but as merely penal in their nature ; and the contingent liability to fine and imprison- ment does not alter the character of the offence. (/) A pro- ceeding to obtain an order of affiliation under the (N.B.) 1 Kev. Stat., c. 57, is not a criminal proceeding, in which the party charged is punishable on indictment or summary con- viction, {g) bastardy not being a crime punishable in this .manner. (A) ; /? doctiine that all crimes concern the public prevails to such an extent, that by the policy of the law if a civil actiou is instituted, and it appears on the evidence that the facts amount to felony, the judge is bound to stop the proceedings and nonsuit the plaintiff, in order that the public justice may be first vindicated by the prosecution of the offender, (t) The true grouud of this rule is to prevent the criminal y AiQQ of the country from being defeated, (/) and the prin- ciple on which it rests is, not that the felony appearing con- stitutes any defence to the action, but that by the rule of law the civil remedy is suspended until the defendant charged with the felony shall have been acquitted or convicted in due course of law. (A;) The rule applies, whether the plaintiff be the jiarty upon whose person the alleged felony was com- mitted, or a person who can sustain his cause of action only in virtue of a wrong done to him through another, by an act which, as between the defendant and that other, constitutes felony ; (/) and it seems the lule equally applies in an acti )n against third persons, (m) The civil remedy is only suspended (e) Re Lucas d: McOlashan, 89, per Richards, C. J. (/) iiLc parte Par/bs, 3 Allen, 24U, per Carter, C. J. (gf^ J&c parte Cook, 4 Allen, 506. (AJ Ibid. (i) Walsh V. Nattrass, 19 U. C. C. P. 453 ; Brovm v. Dolby, 7 U. C. Q. B. )6U ; Limngstonev. Massey, 23 U. C. Q. B. 156 ; Williams v. Robinson,. 20 U. C. C. P. 2u5 ; Pease v. M'Aloon, 1 Kerr, HI. (j) Vrjsby v. Leny, 12 Ea. 414, per Grose, J. (k) Walsh V. Nattrass, 19 U. C. C. P. 454, per Ovoynne, J. ; Brovm v. JJalby, 7 U. C. Q. li. Ib2, per Robinson, C. .1. {/) Waisli V. Nattrass, supra, 455, per (Jwynne, J. (to) Pease v. M'Aloon, 1 Kerr, 118, per Parker, J. CRIMES IN GENERAL. n mitil an acquittal or conviction after a bona fide prosecution of the criminal charge. When either event takes place as the public justice will then be satisfied, the partv .ay proceed with his civil action, (n) It has not been d rded whether a complaint to a justice of the peace, and statement on oath of the facts, would or would not be sufficient prose- cution, if the justice should decline to interfere ; but at all events, it would be sufficient to prefer a bill before the grand jury, who would of course ignore it if the pn)secutor's evi- ence negatived the felonious intent, unless there should ap- pear grounds for suspocting conr'vance or collusion, (o) A difference has been suggested bi> wt. i the case of a prior conviction and that of an acqu' .al, . mely, that the latter may have been brought aboi> hj the defendant colluding with the prosecutor, and it secma viience would be admis- sible to show this; (p) and tha* ♦^ would suspend the action, (q) If there be two acts, the oiits lelonious and the other not, and either one be sufficient to support the action, it may proceed, notwithstanding the evi dence of the felony ; (r) for it seems that only an action brou<»ht to recover compen- sation for an injury, resulting from the felonious act, is sus- pended, (s) At all events, in case of seduction, unless the loss of service, which is the gist of the action, directly springs from the very act supposed to be felonious, the civil remedy is not defeated, (t) The question of felony or not cannot be tried by the jury, in the civil action, even though the judge may have a doubt on the evidence as to the facts showing a felony, (u) If a prima facie case is made out, and the evidence, uncontradicted (n) Waiah v. Nattt-ass, 19 U. C, C. P. 456, per Gwynne, J. ; Pease v. M'Aloon, 1 Kerr, 117, per Parker. J. ; Edtoards v. Kerr, 13 U. C. 0. P. 25, per Draper, (J. ; Crosby v. Leng, 12 Ea. 409. (o) Peaae v. M' A loon, 1 Kerr, 117, per Parker, J. (p) Crosby v. Leng, 12 £!a. 41.3-4, per Lord EUenborough, 0. J. (9) Ibid. (r) Walsh v. NaUrass, 19 U. C. C. P. 457, per Gtrynne, J. («) Hayle v. Hayle, 3 U. C. Q. B. O. S. 295. (<) Ibid. (u) Williams v. Robinson, 20 U. C. C. P. 255 ; WaXsh v. Nattrase, 19 U. G. C. P. 453 ; Pease v. M'Aloon, 1 Kerr, 111. c:> c:i zvxA at: J— • •a.i at) 52 THE CRIMINAL LAW OF CANADA. I and unexplained, would warrant a jury in convicting for the felony, the judge should require the party to go before the criminal tribunal, before pursuing his civ»' remedy, (v) If the judge is not morally satisfied that a felony has been committed, yet if the act were proved by only one witness to have been feloniously done, and there were no circum- stances inconsistent with such evidence, nothing tliat could make the di8l)elief of it otherwise than purely arbitrary, the judge would not be wrong in nonsuiting tiie phiintiff. (w) It is for tiie judge to decide whether the case shall go to tl)e jury in the civil action, (x) If the judge has roa-^oii for doubtin'4 whether the act is felonious, but nevertliuless allows the case to go to the jury, and a verdict is found for the plaintiff, it will not be set aside, as this will only be iloiie in the interests of public justice, (y) We now proceed to notice the exceptions to the general rule suspending tlie civil remedy in case of felony. Under the Temperance Act of 1864, 27 J 2>3 ; St me V. Marsh, 6 B. & 0. 551 ; Marsh v. Keaiiug, I liing N. (J. 19^^ ; WeUoi:k v. Constantbie, 7 L. T. N. S. 751 ; 32 L. J. Ex. 235; 9 Jur. N. S. IM ; Ckowne V. Bay lis, 8 Jur N. S. Iii28. (a) McCurdy v. Swift, 17 U. C. C. P. 12o. (o) 11 iJeo.'lV. and 1 Wm. IV , c. 68, a. 8. ^ (h) McCurdy v. Swift, supra, 136, per Wilson, J. . j GRIMES IN GENERAL. 63 is maintainable, thou<:;h the act causing the death amounts to felony, and the party has neither been acquitted nor con- victed ; (e) and, lastly, neither this rule nor the reasons for it apply to the Crown, {d) It is to be regretted that the decisions in Quebec are quite adverse to those in the other provinces on the above points. This is the only branch of the criminal law upon which there is any serious conflict in the decisions of tlie different provinces. It has been held in Quebec that the civil remedy is not suspended when e felony is disclosed in evidence, and this with reference to assault, perjury, arson, rape, and felony in general. («) It is an established principle of the common law that all crimes are considered local, and cognizable only in the place where they were committed ; (/) but this rule has received several modifications by various statutes. By the term crime, in its stricter sense, is meant such offences only as are punishable by indictment ; those of an inferior character, punishable on summary conviction before a justice of the peace, being usually designated offences. (^) Crimes are divided into two classes, namely, felonies and misdemeanors, (h) Felony is defined as an offence which occasions a total forfeiture of either lands or goods, or both, at the common law, and to which capital or other punishment may be superadded, according to the degree of guilt, (i) All crimes which are made felonies by the express words of a statute, or to which capital punishment is thereby affixed, become felonies, whether the word " felony " be omitted or mentioned. ( /') Where a statute declares that the offender shall, under the circumstance.^!, be deemed to have feloniously com- ic) McCurdy v. Stoijt, 17 U. C. C. P. 136, per A. Wihumy J ; Clarke v. Wilam, Rob. Dig. 260. (rf) Reg. V. Reiffenstein, 6 U. C. L. J. N. S. 38 ; 6 U. C. P. R. 175. (e) Dagenay v. Hunter, Rob. Dig. 128 ; Larmithe v. Chevalier, 4 L. C. R. 160 ; Fortier v. Mercier, Rob. Dig. 127 ; Pe/tier v, MivUle, Md. ; McOuvre T. Liverpool and London Assurance Company, 7 L. C. R. 343 ; NeUt v. Taylor, 15 L. C. R. 102. (/) The Chesapeake case, 44, per Ritchie, J. ig) Ste. Bla. Ck)m Bk. 6, p. 96. (A) Re Lucas d: McGUmhan, 29 U. C. Q. B. 92, per Wihon, J. (•) 4 Bla. Ck>in. 95. ij) Ru88. Cr. 4th Ed. 78 ; Reg. v. Home, 4 Cox, C. C. 263. 1-^ •••• 0(1 54 THE CRIMINAL LAW OF CANADA. mitted the act, it makes the offence a felony, and iinposea all the common and ordinary consequences attending a felony, (jk) So where a statute says that an offence, previously a mis- demeanor, " shall be deemed and construed to be a felony," instead of declaring it to be a felony in distinct and positive terms, the offence is thereby made a felony. (/) An enact- ment that an offence shall be a felony, which was felony at common law, does not create a new offence, (m) But an offence shall never be made felony by the constructiem of any doubtful and ambiguous words of a statute ; and, there- fore, it it be prohibited under " pain of forfeiting all that a man has," or of " forfeiting body and goods," or of " being at the King's will for body, lands and goods," it shall amount to no more than a high misdemeanor ; (71) and though a statute make the doing of an offence felonious, yet, if a subsequent statute make it penal only, the latter statute is considered as a virtual repeal of the former, so far as rehtes to the punish- ment of the offence. (0) So if an offence be felony by one statute, and be reduced to a misdemeanor by a later statute, the first statute is repealed, (p) When a statute on which the indictment is framed is repealed, after the bill has been found by the grand jury, but before plea, the judgment must be arrested ; (q) and where a statute creating an offence is repealed, a person cannot afterwards be proceeded against for an offence within it, committed while it was in operation, even though the repealing statute re-enacts the penal clauses of the statute repealed, (r) If a later statute expressly alters the quality of an offence, as by making it a misdemeanor instead of a felony, or a felony instead of a misdemeanor, the (k) Bex V. JoAnsm, 3 M. & S. 556, per Bayley, J. {I) JRex V. Solomons, M. C. C. R. 292, overruling Rex. v. Cole, M. 0. C. R. 11. (m) WiUiams v. Reg., 7 Q. B. 253, per Patteaon, J. (n) Buss. Cr. 79. (0) Ihid. 79. (p) Reg. V. Sherman, 17 U. C. C. P. 171, per A. WiUon, J. ; Rex^r. Davi§, 1 Leach, 271. iq) Reg. v. Denton, 17 Jur. 453 ; Reg. v. Stoan, 4 Cox C. 0. 108. ir) Reg. v. Cumminge, 4 U. C. L. J. 187, per Macaulay, C. J. ;i CRIMES IN OENKKAL. 55 offence cannot be proceeded for under the earlier statute ; (a) or if a later statute a^ain describes an offence created by a former statute, and affixes to it a different punisliment, vary- ing the procedure, and giving an appeal where there was no appeal before, the prosecutor must proceed for the offence, under the latter statute, {t) If, however, in the case of a common law misdemeanor, a new mode of punishment, or new mode of proceeding, merely be directed, without altering the class of tiie offence, the new punishmeut, or new mode of proceeding, is cumulative, and the offender may be indicted as' before for the common law misdemeanor, (u) Where a statute makes a second offence felony, or subject to a heavier punishment than the first, it is always implied tliat such second offence has been committed after a conviction for the first ; (v) and where a stat ute makes an offence felony which was before only a misdemeanor, an indictment will not lie for it as a misdemeanor, (w) for the lesser offence merges in the greater. But now, by the 32 & 33 Vic, c. 29 , s. 50, although a felony appears on the facts given in evi- dence, a misdemeanor for which the party may be indicted will not merge therein, and the party may be convicted of such misdemeanor. But the statute has no other effect than to authorize a verdict of guilty on the indictment as it is framed, although the evidence would warrant a conviction for the higher offence. In other words, a party indicted for misdemeanor cannot, under this clause, be couvicted of any felony that may be disclosed in evidence, but only of the mis- demeanor for which he is indicted, if included in the felony proved ; and in accordance with this it has been held that a defendant indicted for a misdemeanor, in obtaining money under false pretences, could not, under the Con. Stat. Can., («) MicheU v. Brown, 1 E. & E. 267 ; 28 L. J. (M C) 53 ; Reg. v. Sher- man, 17 U. C. C. P. 169, per A. Wilam, J. ; Rex v. Croaa, 1 Ld. Raym. 711, SSalk. 193. (/) MicheU V. Brown, supra. («) Rex V. Carlile, 3 B. & Aid. 161 ; Arch. C< Pldg. 17th E ; see also Reg. V. PaUiaer, 4 L. C. J. 276. (t») Rnss. Or. 79. (10) Rex V. Oross, I Ld. Raym. 711 ; 3 Salk. 193. 1-^ <:? «:) J-lJ ?3 :3c: I C5CJ 56 THE CRIMINAL LAW OF CANADA. c. 99 8. 62, be found guilty of larceny, although the facts would have warranted such finding, {x) The word misdemeanor is usually applied to ail those crimes and offences for which the law has not provided a particular name, (y) A misdemeanor is in truth any crime less than felony, and the word is generally used in contradistinction to felony, misdemeanors comprehending all indictable offences which do not amount to felony, as perjury, battery, libels, conspiracies, and public nuisances, (z) Misprision of felony is concealment of felony, or procuring the concealment thereof, whether it be felony at the common law or by statute, (a) It is clear that all felciies and all kinds of inferior crimes of a public nature, as . misprisions, and all other contempts, all disturbances of the peace, oppressions, misbehaviour by public officers, and all other misdemeanors whatsoever of a public evil example against the common law, may be n- dicted ; (6) and it seems to be an established principle, that whatever openly outrages decency, and is injurious to public morals, is indictable as a misdemeanor at common law. (c) If a statute prohibit a matter of public grievance, or com- mand a matter of public convenience, all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictments if the statute specify no other mode of proceeding, (d) But no injuries of a private nature are indictable, unless they in some way concern the king, (e) A general prohibitory clause supports an indictment, though there be afterwards a particular provision and a partial (x) Beg. V. Etoing, 21 U. C. Q. B. 523. (y) Ru88. Cr. 79. {z)Ibid. 79. (a) Ibid. 79-80. (ft) Runs. Cr. 80. V (c) Itnii. (rf) Heg. V. Toronto Street Ry. Co., 24 U. C. Q. B. 457, per Draper, C. J. ; Rex V. Davis, Say. 133 ; and see Rex v. Sainsbury, 4 T. R. 451 ; Rum. Cr. 80. (e) Rex V. Richarda, 8 T. R. 634 ; Rubb. Cr. 80. CRIMES IN GENERAL. 57 facts remedy, (/) even though the act prescribes a summary mode of proceeding; {g) and it is not in all cases necessary to annex to it words showing that the intention was to make it an indictable offence, if the statute be violated, {h) If an Act of Parliament prohibits a thing beingvdone under some specific penalty, then that penalty is all that can be enforced, but if in a different part of the statute certain consequences are entailed upon the prohibited act, then that is cumulative to the prohibition, and the act done contrary to the prjhibi- tion may or may not, according to the subject dealt with, be an indictable offence, (i) Where a statute forbids the doing of a thing, the doing it wilfully, although without any cor- rupt motive, is indictable, {j ) If a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legis- lature, {k) This mode of proceeding in such case is not taken away by a subsequent statute, pointing out a particular mode of pi nishment for such disobedience. (/) Where the same- statute which enjoins an act to be done contains also an en- actment providing for a particular mode of proceeding, as commitment in case of neglect or refusal, it has been doubted whether an indictment will lie. (m) But where a statute only adds a further penalty to an offence prohibited by the common law, there is no doubt that the offender may still be indicted, if the prosecutor think fit, at the common law. (n) An offence is not indictable where an Act of Parliament has pi)inted out a particular punishment and a specific method of recovering the penalty which it inflicts ; and the rule is (/) Reg. V. Mason, 17 U. C. C P. 536, per Richards, C. J. ; Rex\. Boyall, 2 Burr. 832 ; Rex v. Wnght, 1 Burr. 543 ; Reg. v. Buchanan, 8 Q. B. 883 ; Arch. Cr. Pldg. 17th Ed. 2. (g ) Pomeroy rincipal circura- ion into empt to greed to one C, Etmondc, but C. was kept away by his father, wlio had discovered theu design^ The two prisoners were seen about twelve o'cioel: that night to enter a gate about fifty feet from the ^o'Wii , they came towards the house to a picket fence in fr fat, In which there was a small gate, but they did not come rw^rtr the house than twelve or thirteen feet, nor did they pas!^ i fiO picket gate ; they thea went, as was supposed, to the rear of the house, and were not seen afterwards. About two o'clock some persons came to the front door and turned the knob, but went off on being alarmed and were not identified. The court held that there was no evidence of an attempt to commit the offence, no overt act directly approximating to its execution, and that a conviction therefor C'lld not be sustained, (k) It, however, it httd been proved that they attempted to enter the house, and were either interrupted or surprised in doing so, and made their escape, and that but for such surprise or interrup- tion they could have carried out their design of stealing cer- tain money said to be in the house, there would have been evi- dence to go to the jury. (/) Its must appear upon the evideii^;e that the felony might have been completed had there beeu no interruption. It, therefore, upon an indictment for attempt- ing to commit a felony, by putting the hand into a »voni.*ii's pocket with intent to steal her property thereir It anpi'ars that she had nothing in her pockets, a coiivictiou can.uot be sustained, (in) The prisoner was indicted unde J2 & 33 Vic, c. 21, <. 56, for breaking and entering a shop, Wii-h intent to comrnit lelony. He was seen upon the roof, where a hole was found broken in, but there was no evidence of his having entered the build- ing. The jury were directed Miat if they thought he broke the roof with intent to enter the shop and steal, they might find him guilty of an attempt. They accordingly coavicted, and the court held that the conviction was right, (n) ik) R'q. V. McOann, 28 U. C. Q. B. 514. ('^ /6»(i. 516, per Morrison, J. ; see also Re(f. v, Eajleton, 1 U. C. L. J. 179 ; Dears. C. C 515 ; Rcfj. v. Rob.:rt8, :-'ul. 539 ; Rex v. Martin, 2 Mood. C. 0. 123 ; 9 1. & P. 2i;;-215 ; Dajdxk v. Req. 1 E. & B. 4H5. (m) Reg. v. Collim. L. & C. 471 ; 33 L. J. (AI. C.) 177 ; 10 U. C. L. J. 308. |«) Reg. V. Bain, 8 U. C. L. J. 279 ; L. & C. 129 ; 31 L. J. (M. C.) 88. ■••.I ii! -Li ?;s I ft •••• :3Ci 62 THE CRIMINAL LAW OF CANADA. l!^ Ik IB But attempting to commit a felony is clearly distinguish- able from intending to commit it, for the bare wish or desire of the mind to do an illegal act is not indictable. So long as an act rests in bare intention it is not punishable by our laws, (o) but immediately when an act is done the law judges not only of the act itself, but of the intent with which it was done, (p) and an act, though otherwise innocent, if accom- panied by an unlawful and malicious intent, the intent being criminal, the act becomes criminal and punishable, (q) It has been held under the corresponding English section of the 31 Vic, c. 72, s, 2, that the offence of soliciting and inciting a man to commit a felony is, where no such felony is actually committed, a misdemeanor only, and not a felony under the Act, which only applies to cases where a felony is committed as the result of the counselling and procuring therein mentioned, (r) The motives of a party, though unimportant in civil cases, may be taken into account in criminal proceedings, (s) In the latter, ^owever, the maxim, actiis non facit reum nisi mens sit rea, does not hold universally. When a particular act is positively prohibited by law, it becomes thereupon ipso facto illegal to do it wilfully, and in some cases even ignorantly, and a party may be indicted for doing it without any corrupt motive, (t) Where a statute, in order to render a party criminally liable, requires the act to be done feloniously, maliciously, fraudulently, corruptly, or with any other ex- pressed motive or intention, such motive or intention is a necessary ingredient in the crime ; but where the euactmen t simply prohibits the doing of an act, motive or intention is immaterial so far as regards the legal liability of the party (o) Mulcaky v. Reg., L. R. 3 E. & I. App. 317, per WilUa, J. (p) Reg. \r. McOann, 28 U. C. Q. B. 516, per Morrison, J. McPheram, i De;!.r8 & B. C. C. 197, per Cockbum, C. J. ; Rex v. 'J Ea. 5, per Le Blanc, J. ; Rex v. Scofield, Gald. 403. («/) Reg. V. Bryam, 12 U. C. C. P. 172, per Hagarty, J. (r) Reg. v. Gregoi-y., L. R. 1 C. C. R. 77. («) PhUlips V. Eyre, L. R. 6 Q. B. 21, per Willes, J. (0 Rexs. Sainsbury, 4 T. R. 457, per Ashm-at, J. Reg. ▼. HiggvM, mm^^ CRIMES IN GKNERAL. 63 committing the forbidden act ; (u) and it would seem that a party cannot exempt himself from criminal liability on the ground that his object was lawful or even laudable, in com- mitting an act simply prohibited by law ; (v) for the law infers that every person intends the natural consequences of his own act when that act is wrongful, injurious, and without legal justification, (w) The inference equally arises although the party has an honest or laudable object in view, and he will nevertheless be legally liable, unless the object is such as, under the circumstances, to render the act lawful, (x) Misdemeanors differ from felonies in these particulars — the crime is of an inferior degree, and the penal consequences are not 80 severe ; secondly, all persons concerned in the com- mission of a misdemeanor, if guilty at all, are principals, and the law recognizes no degrees in their guilt. With regard to the punishment of misdemeanors, it is a general rule that all those offences less than felony which exist at common law, and have not been regulated by any particular statute, are within the discretion of the court to punish, (y) and the punishment usually inflicted is fine and imprisonment. («) The punishment of felonies is generally prescribed by statute. (11) 4 C. L. J. N. S. 194. («) Reg. V. Hicklin, L. R. S Q. B. 360 ; Reg. v. Recorder of Wolverhamp- Um, ; 18 L. T. Reps. N. 8. 395. (to) Reg. V. Hicklin, supra. (x) Ibid. 375, per Blackbum, J. ; and see Reg. v. SaUer, 3 Allen, 327* per Carter, C. J. (y) Ru88. Cr. 92. (8) Ilnd. 2;; , J Oijt \ 64 THE CllIMINAL LAW OF CANADA. CHAPTER II. THE PERSONS CAPABLE OF COMMITTING CRIMES, AND THEIR SEVERAL DEGREES OF GUILT. m Hi 'K ■M As a prima facie criminal liability attaches on every person, it is necessary to consider what defences may, in different cases, be nr;^'ed by different persons, as grounds of exemption from puiiisliment. The law requires an exercise of under- standing and of will to render a person criininally responsible, therefore a want or defect of either may be a good defence, (a) Infants. — The general rule is, that infants under the age of discretion are not punishable by any criminal prosecution whatever, but the age of discretion varies according to the nature of the offence, {h) Thus, in some misdemeanors and offences that are not capital, an infant is privileged, by reason of his nonage if under twenty-one ; for instance, if the offence charged by the indictment be a mere nonfeasance, unless it be such as he is bound to do by reason of his tenure, or the like as to repair a bridge, (c) then, in some cases he shall be privileged, if under twenty-one, because laches shall not be imputed to him. {d) But if lie be indicted for any notorious breach of the peace, as riot, battery, or for perjury, cheating, or the like, he is equally liable as a person of full age, because upon his trial the court, ex officio, ought to consider whether he was doli capax, and had discretion to do the act with which he was charged, (c) The law as to an infant's liability is more clearly defined with reference to capital cricnes, though their criminal responsibility does not so much de[)end upon (a) Russ Or. 6. (b) Ai-cfi. Cr. Pldg. 16. (c) Rex V. Sutton, 3 A. & E. 697. (d) Arch. Cr. Pldg. 17. {e) Ibid. 17. PERSONS CAPABLE OF COMMITTING CRIMES. 65 their age as upon their judgment and intelligence. (/) But V ithin the age of sevea years, no infant can be guilty of felony, or be punished for any capital offence, for withia that age there is an irrebuttable presumption of law that he has no mischievous discreti n. (g) On attaining the age of fourteen years, they are presumed to be dolicapaces, and capable of dis- cerning good from evil, and are, with respect to their criminal actions, subject to the same rule of construction as others of more mature age. (h) Between the age of seven and fourteen years, an infant is deemed prima facie to be doli incapax, but inalitia supplci cetatem, and this presumption may be rebutted by strong and pregnant evidence of mischievous discretion, establishing it beyond all doubt and contradiction, {i) When a child be- tv" en the ages of seven and fourteen vears is indicted for felony, two questions are to be left to the jury — first, whether he committed the offence ; and secondly, whether at the time he had a guilty knowledge that he was doing wrong, {j ) Ai: infant under fourteen is presumed by law to be unable to commit a rape, and therefore cannot be found guilty of it, and this on the ground of impotency as well as the want of discretion. This presumption, it seems, is not affected by the 32 & 33 Vic, c. 20, s. C5 — making the offence complete on proof of penetration, without evidence of emission, {k) Nor is any evidence admissible to show that, in fact, the defendant had arrived at the full state of puberty, and could commit the offence. (/) But he may be principal in the second degree if he aid add assist in the commission of the offence, and it appear that he has a mischievous discretion, {m) if) Russ. Cr. 7. (g) Ibid. ; Marsh v. Loader, 14 C. B. N. S. .535. {/i) Arch. Cr. Pldg. Ki. * (i)md. ( ;■) Rex V. Owen, 4 C. & P. 236. (k) Rex V. Oroombridge, 7 C. & P. 582. (1) Rex V. Philips, 8 C. & P. 736 ; Rex v. Jordan, 9 C. & P. 118 ; i?«c v. Brimilow, ibid. 366 ; 2 Mood. C. C. 122. (m) Rex V. Eldershaw, 3 C. & P. 396 ; see Rex v. Allen, 1 Den. C. C. 364 ; Arch. Cr. Pldg. 17. ■ • E ■•■• ■> ::ci 66 THE CRIMINAL LAW OF CANADA. < Ml It UK. a. It seems a statute creating a new felony does not extend to infants under the age of discretion, (n) and that statutes giv- ing corporal punishment do not bind infants, but other and general statutes do, if infants are not excepted, (o) And where a fact is made felony, or treason, it extends as well to infants, if above fourteen, as to others. (j>) An infant, being unable to trade, cannot be prosecuted criminally for defrauding his creditors, as it cannot be con- tended that the contracts of an infant for goods supplied in the way of trade or for money lent are valid and result in deots, so as to give rise to the relation of debtor and creditor, (r) Persons non compotes mentis. — Every person, at the age of discretion, is, unless the contrary be proved, presumed by law to be sane, and to be accountable for his actions. But il there be any incapacity, or defect of the understanding, as there can be no consent of the will, so the act cannot be culpable, (s) Where the deprivation of the understanding and memory is total, fixed and permanent, it excuses all acts, so, likewise, a man laboring under adventitious insanity is, during the frenzy, entitled to the same indulgence, in the same degree, with one whose disorder is fixed and permanent, (t) It seeuis clear, however,^ that to excuse a man from punishment on the ground of insanity,, it must be proved distinctly that he was not capable of distinguishing right from wrong at the time }ie did the act, and did not know it to be an offence against the laws of God and nature, {u) If there be a partial degree of reason ; a competent use of it sufficient to restrain those pas- sions which produce the crime ; if there be thought and de- sign ; a faculty to distinguish the nature of action ; to discern the difference between moral good and evil, — then he will be responsible for his actions, (v) (n) Kuss. Cr 10. (o) Dwarr's 516". i . (»)Ru88. v^r. 10. • V (r) Reg. v. WUson, L. R. 5. Q. B, D. 28. («) Arch. Cr. Pldg. 17. it) Ibid. 18 ; Beverley's Case Co. 125. (u) Rex V. Offord, 5 C. & P. 168. (tt) Rex V. afford, 5 C. & P. 168. (i>) Rer V. McNaughten, 10 Cl. & Fin. 200 ; 1 C. & K. 130 n. Higginson, 1 C. & K. 129. Rex V. PERSONS CAPABLE 0? COMMITTING CRIMES. 67 Where the intellectual faculties are sound, mere moral in- sanity — where a person knows perfectly well what he is doin*», and that lie is doing wrong, but has no control over himself, and acts under an uncontrollable impulse, — does not render him irresponsible, (w) Whether the prisoner were sane or insane at the time the act was committed is a ques- tion of fact triable by the jury, and dependent upon the previous and contemporaneous acts of the party. Upon a question of insanity, a witness of medical skill may be asked whether, assuming certain facts proved by other witnesses to be true, they, in his opinion, indicate in- sanity, (x) It is said that, as to the criminal liability of a lunatic, the maxim is, actus nan facit reum nisi mens sit rea. (y) Imbecility, and loss of mental power, whether arising from natural decay, or from paralysis, softening of the brain, or other natural cause, although unaccoinpanied by frenzy, or delusion of any kind, constitutes unsoundness of mind, amounting to lunacy, within 8 & 9 Vic, c. 100. (z) It is the duly of the Government to assume the care and custody of persons acquitted of criminal charges on the ground of insanity, and this pov/er is vested in the Govern- ment, iPxdependently of any statute, (a) The policy of the law in detaining insane persons in custody is to prevent them from committing the same offences again. (&) The vice of drunkenness, which produces a perfect though temporary frenzy, or insanity, will not excuse the commis- sion of any crime ; and an offender under the influence of intoxication can derive no privilege from a madness volun- tarily contracted, but is answerable to the law equally as if he had been in the full possession of his faculties at the time, (c) (w) Rex V. Burton, 3 F. & F. 772. (x) Reg. V. Frances, 4 Cox, 57, per Alderson B. and Creaswell, J. ; Reg. v, Wright, R. & R. 456 ; Reg. v. Searle, 1 M. & Rob. 75 ; Arch, Cr. Pldg. 10. (y) Taggardv. Innes, 12 U; C. C. P. 77, per Draper, C. J. (2) Reg. V. Shaw, L. R. 1 C. C. R. 145, 37 L. J. (M. C.) 112. (a) Reg. v. Martin, 1 James, 322. (b) Ibvi. 324, per Bliss, J. ; see as to insane persons 32 k 33 Vic. , c. 29, 8. 99 ^ seq. (c)Arch. '^ Pldg. 18. ,. ^:^'i; • 3:; IMAGE EVALUATION TEST TARGET (MT-3) V y y 4^ 1.0 I.I lU HI W u us. L25 III 1.4 U4 y HiotDgraphic ScMices Corporation ^ ^ «■ <^ V ^^V ^ ^5^*^ ^.V^ 6^ 23 WBT MAIN STMiT WfBSTIII,N.Y. MSM (7I6)S72-4S03 68 THE CRIMINAL LAW OF CANADA. «r: c: ci It has been said that, upon an indictment for murder, the intoxication of the defendant may be taken i.ito considera- tion as a circumstance to show that the act was not pre- meditated, (d) But if the primary cause of the frenzy be involuntary, or it has become habitual and confirmed, this species of insanity will excuse the offender equally as the other descriptions of this malady, (e) A deaf mute, incapable of undei'standing the proceediui|;s at his trial, cannot be convicted, but must be detained as non-sane. (/) / Persons in subjection to the power of others. — Tn general, a person committing a crime will not be answerable if he was noc a free agent and was subject to actual force at the time the act was done, {g) This exemption also exists in the ' public and private relations of society ; public as between subject and prince, obedience to existing laws being a sulH- cient extenuation of civil guilt before a municipal tribunal ; and private, proceeding from the matrimonial subjection of the wife to the husband, from which t.lie law presu-nes a coercion which, in many cases, excuses the wife from thp consequences of criminal misconduct. The private relations which exist between parent and child, and master and servant, will not, however, excuse or extenuate the comnaission of any crime of whatever denomination ; for the command is voic'. in law and can protect neither the commander nor the instru- ment, {h) In general, if a crime be committed by a feme covert in the presence of her husband, the law presumes that she acted under his immediate coercion, and excuses her from punishment, (t) But if she commit an offence in the absence of her husband, even by his order or procurement, her cover- ture will be no defence ; (i) even though he appear at the {d) Beg. v. Orindley, ] Rum. 8 ; Rex. v. Thomcu 7 C. & P. 817 ; Bex. v. Meakiii, ibid. 297 ; but see Rex. v. CarroU, ibid. 14^ (c) Arch. Cr. Pldg. 18. (/) Reg. V. Berry, L. R. 1 Q. B. D. 447. (g) Ku88. Cr. 32. (A) Arcb. Cr. PIiIk. 22. jt) Ibid 22 ; and see Ren. v. Smith, Dears, ft B. C. C. 553. (» Ibid. 22 ; 2 Reach, C. C. 1102 ; Reg. v. Morr%$, R. ft R. 270 PERSONS CAPABLE OF COMSnTTINO CRIMES. 69 any very moment after the commission of the offence; and no subsequent act of his, though it may render him accessory to the felony of his wife, can be referred to what was done in his absence, (k) This presumption, however, may be rebutted by evidence ; and if it appear that the wife was principally instrumental in the commission of the crime, acting volun- tarily and not by restraint of her husband, although he was present and concurred, she will be guilty and liable to punish- ment. (/) The protection does not extend to crimes which are mala in se, and prohibited by the law of nature, nor to such as are heinous in their character, or dangerous in their consequences ; and, therefore, if a married woman be guilty of treason, murder, or offences of the like description, in company with, or by coercion of, her husband, she is punishable equally as if she were sole, (m) So a married woman may bo indicted jointly with her husband for keeping a bawdy house, (n) or gaming house, (o) for these are offences connected with the government of the house in which the wife has a principal share, (p) According to the prevailing opinion, it seems the wife may be indicted with her husband in all misdemean- ors, {q) If a married woman incite her husband to the com- mission of a felony, she is accessory before the fact, (r) But she cannot be treated as an accessory fur receiving her hus- band, knowing that he has committed a felony, nor for con- cealing a felony jointly with her husband, (s) nor for receiving from her husband goods stolen by him. (t) And she will not Rex. V. (*) Reg. V. Hughes, 1 Rum. 21. \l) Reg. V. Cofun, 1 1 Cox, 99 ; Reg. v. Dicha, 1 Russ. 19 ; Reg. v. Ham- mond, Leach, 447 ; Arch. Cr. Pldg. 22. (m) Ibid. 23 ; see Reg. v. Cnue, 8 C. & P. 541 ; 2 Mood. C. C. 53 ; Reg. V. Manning, 2 C. & K. 003 n. (n) Rsg. V. WiUiams, 10 Mod. 63, 1 Salk. 384. (o) Reg. V. Dixon, 10 Mod. 33& (p) Arch. Cr. Pldg. 23. (q) find. 23 ; Reg. v. Ingram, 1 Salk. 384 ; but see Reg. v. Price, 8 C. ft P. 19. (r) Reg. v. Manning, 2 C. & K. 903 n. («) Arch. Cr. Plde. 23. (t) Reg. V. BrooKB, Dean. C. C. 184 ; see Reg. v. Archer, 1 Mood. C. C. 143. THE CRIMINAL LAW OF CANADA. I: m c: MM** «: be answerable for her husband's breach of duty, however fatal, though she may be privy to his misconduct, if no duty be cast upon her, and she is merely passive, (u) Ignorance. — The laws can only be administered upon the principle that they are known, because all persons are bound to know and obey them, (v) A mistake, or ignorance of law, is no defence for a party charged with a criminal act ; (w) but it may be ground for an application to the merciful consider- ation of the Government, (x) But ignorance, or mistake of fact, may, in some cases, be a defence ; (y) as, for instance, if a man in onding to kill a thief in his own house, kill one of his own family, he will be guilty of no offence, {z) But this rule proceeds upon a supposition ♦^hat the original intention was lawful ; for if an unforeseen consequence ensue from an act which was in itself unlawful, and its original nature wrong and mischievDus, the actor is criminally responsible for whatever consequences may ensue, (a) Principals in the first and second degrees. — ^The general de- finition of a principal in the first degree is one who is the actor or actual perpetrator of the fact, {b) Principals in the second degree are those who are present aiding and abetting at the commission of the fact, (c) To prove a person .m aider or abettor, it must be shown either that he was actually present aiding and in some way assisting in the commission of the offence, or constructively present for the same purpose — that is, in such a convenient situation as readily to come to the assistance of the others, and with the intention of doing so, should occasion require, (d) But there must be Beg. V. Reg. V. (u) Beg. V. Squires, 1 Rubs. 16 ; Aroh. Cr. Pldg. 23. (v) Beg. V. Moodie, 20 U. C. Q. B. 399, per B(Mna(m, G. J. Mailtoux, 3 Puffsley, 493. (w) Bfg. V. Moodie, supra; Unwin v. Clark, L. R. 1 Q. B. 417 ; Mayor of Tewkesbury, L. R. 3 Q. B. 635, per Blackburn, J. (x) Beg. V. Madden, 10 L. C. J. 344, per Johnson, J. (y) Unwin v. Glark. L. R. 1 Q. B. 417, per Blarhbum, J. {z) Beg. V. Levett, Cro. Car. 538. (a) Arch. Cr. Pldg. 24. (6) Jbid. 7. {c) Ibid. 8. (d) Ashley v. Dundas, 5 U. C. Q. B. 0. S. 768, per Sherwood, J. ; Beg. r CmrUey, 27 U. C. Q. B. 617, per Morrison, J. PERSONS CAPABLE OF COMMITTING CRIMES. I 71 v^ever > duty )n the bound if law, w) but isider- ake of mce, if one of ut this bention rom an nature onsible ral de- ) is the J in the betting •son an ictually mission purpose ;o come ition of lust be ; Reg. v. ; Reg. v. . ; Reg. r some participation, for the fact that a person is actually present at the commission jf a crime does not necessarily make him an aider or abettor. If one sees a felony is about to be committed, and in no manner interferes to prevent it, he does not thereby participate in the felony committed, so as to render him liable as a principal in the second degree. It should be proved that he did or said something showing his consent to the felonious purpose, and contributing to its execution, (e) If a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, all persons who had gone in order to give assistance, if necessary, for carrying such unlawful purpose into execution, would be guilty of murder. But this applies only to a case where the murder is committed in prosecution of some unlawful purpose — some common design, in which the combining parties were united, and for the effecting whereof they had assembled. (/) For when the act of homi- cide is not done with the concurrence of all those present, there must be evidence of a precedent common purpose to prosecute the unlawful enterprise, even to the extent of extreme and deadiy violence, {g) Even in case of felony, there must either be a previous or present concurrence in the act by all to render them liable, {h) otherwise none but the party actually committing the act will be liable, (i) In the Curtley case the prisoner C. was indicted for aiding and abetting one M. in a murder, of which M. was convicted. It appeared that, about six in the evening, the deceased was with H. and his wife on the river bank at Amhertsburg, stand- ing near a pile of wood. R's wife testified that she saw M. standing behind the pile, who, on deceased going up to him, («) Reg. V. Curtley, 27 U. C. Q. B. 619, per Morrison, J. (/) Ibid. 617, per Morrison, J. (g) Ibid. 617, ^r Morrison, J. ; Rex v. Gollison, 4 C. & P. 666 ; Reg. v. Howai, 9 C. & P. 437. (A) Ibid. 617, per Morrison, J. ; Reg. v. jPVanz, 2 F. & F. 680. (t) Ibid. 617, per Morrison, J. ; Reg. v. Skeet, 4 F. & F. 931 ; Reg. ▼. Price, 8 Cox, C. C. 96. ••• •■• **> :>a ••• :;> "1 ••• i\ 72 THE CRIMINAL LAW OF CANADA. MM. «... «... 1... •••ill W»|l» »■•■• struck deceaseu a blow with a stick, of which he ultimately died. Some time after the stroke, deceased ran,, when two other men sprang out, and followed him ; but in a few seconds two of them returned, and assaulted witness and R.» her husband. She could not identify the prisoner. Two other witnesses saw deceased running from the direction of the wood pile, and across the road, when he fell over a stick of timber. They saw a man, at the same time, come running from the wood pile, and, as deceased got up, he struck him with a stick, knocking him down, and again struck him on the head, and then the man ran off to the north. One of them identified this man as M., but the other did not know him. One witness, B., swore that, about six on that evening,, deceased left his office with K. and his wife, and that, about twenty minutes after, he saw the prisoner, with M. and another, go into the vacant lot where the wood pile was, M. having a stick in his hand, and heatd M. sa\ to the ptiiers, "Let us go for him." It was also proved by others that^ before the affray, the three were together near the wood pile in question, and were also in a saloon together about nine o'clock alterwards. The prisoner was convicted on this evi- dence, and a rule nm was obtained for a new trial on his behalf on the ground that there was no evidence to go to the jury suflBcient to justify his conviction. The rule was made absolute, for there was no direct proof that the prisoner was present when the blows were struck, or when the affray began, and no evidence whatever that he and the others were together with any common unlawful purpose, and the expres- sion used by M., " Let us go for him," in the absence of evi- dence that M. was alluding to the deceased, or that the prisoner and M. were aware that the deceased was at the wood pile, was unimportant per se, as indicating the intention of the parties, and was obviously susceptible of difiPerent ap> plications, (j) Whenever a joint participation in an act is shown, or there (j) Reg. V. Curtky, 27 U. C. Q. B. 613. \ PERSONS CA.PABLE OF COMMITTING CRIMES. ^ is a general resolution against all opposers, each person is liable for every act of the others, in furtherance of the com- mon design, (k) And if a number of persons are confederated for an unlawful purpose, and in pursuit of their object commit felony, any person present in any character, aiding and abet- ting, or encouraging the prosecution of the unlawful design, is involved in a share of the common guilt. (/) But this doctrine will apply only to cases where the act intended to be accomplished is unlawful in itself. For if the original purpose is lawful and prosecuted by lawful means, if one of the purty commit a felonious act, the others will not be involved in his guilt, unless they actually aided or abetted him in tlie fact, (m) In other woi^s, a felonious act com- mitted by one person in prosecution of a common unlawful purpose is the act of all, but if the purpose i*^ lawful, the per- son committing the act will alone be liable. By an unlawful purpose is meant such as is either felonious, or if it be to com- mit a misdemeanor, then there must be evidence to show that the parties engaged intended to carry it out at all hazards, (n) The act must also be committed in prosecution of the unlaw- ful purpose, and be the result of the confederacy, (o) A prisoner was convicted of unlawfully attempting to steal the goods of one J. G. It appeared that he had gone with one A. from Toronto to Cooksville, and examined J. G'.s store, with a view of robbing it; and that afterwards A. and three others having arranged the scheme with the prisoner, started from Toronto, and made the attempt, but were disturbed, after one had gone into the store through a panel taken out by them ; the prisoner saw them off from Toronto, but did not go himself. It was held that ejs those actually engaged were guilty of an attempt to steal, and as the evidence established, (*) Reg V. Slavin, 17 U. C. C. P. 205 ; Russ. Cr. 66. (/) Reg. V. Lynch, 26 U. C. Q. B. 208 ; see also Reg. v. McMahon, 26 U. G. Q. B. 195. (m) Ku88. Cr 56. (n) Reg. v. Skeet, 4 F. & F. 931 ; see also Reg. v. Lude, 3 F. ft F. 483 ; Reg. V. Craw, 8 Cox, 335. (o) Reg. V. White, R. & R. 99 ; Arch. Cr. Pldg. 960. ••• «■«« ■*) ■!• -» s .lJ g 3 S ::> a « «: ••• \ 74 THE CRIMINAL LAW OF CANADA. «r.' t.. c:; / the prisoner had counselled and procured the doing of that act, and as such attempt was a misdeitieanor, bein^; an attempt to commit a felony, the prisoner, under the 31 Vic, c, 72, s. 9, was properly convicted, (p) This statute is clear, that if the prisoner was accessory before the act, he could be indicted as if he were personally present, (q) So where J. and T. were driving a trap along the turnpike road for a lawful purpose, and J. got out of the trap, went into a field and shot a hare, which he gave to T., wlio had remained in the trap. J. having been convicted of trespass in pursuit of game, an information was laid under the 11 & 12 Vic, c 43, against T., charging him with being present aiding and abetting. Orf a case stated by the jusiices, it was held that there was abundant evidence on which the justices might have come to the conclusion that both were engaged in a common purpose, and that T. guilty, (r) But where upon an indictment . ..st E., H., and another for stealing and receiving, it was proved that H. was walking by the side of the prosecutrix, and E. was seen just previously following her ; that the prosecutrix felt a tug at her pocket and found her purse gone, and, on looking roun^^, saw H. walking with E. in the opposite direction, and saw H. hand- ing something to him, and the jury, in accordance with the direction of the presiding judge, found H. guilty of stealing and E. of receiving, it was objected, that the jury should have been told to find E. guilty of stealing or of no offence, as upon the facts proved he was a principal in the second degree, aiding and abetting, present, and near enough to afford assistance. But the court held the charge and conviction were right, WilliamSfJ., being of opinion that the evidence did not show a common purpose and intention ; while Wiffhtmarit J., thought that the iury might very well have inferred concert, but they had not done so, and their finding should not be disturbed, (s) ip) Beg. V. Eamonde, 26 U. C. Q. B. 162. iq) lb%d. per Hagarty, J. (r) Stacey v. Whitehurtt, 13 W. R. 384. («) Beg. V. iliUon, 5 U. C. L. J. 70 ; BeU, 20 ; 28 L. J. (M. C.) 28. li PERSONS CAPABLE OF GOMMimNO CRIMES. i 75 Accessories h^m'e and after the fact. — An accessory before the fact is he who, being absent at the time of the feh)ny committed, doth yet procure, counsel, command, or abet another to commit a felony, (t) An accessorj^ after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon, (u) It is only in felonies that there can be accessories, for in mis- demeanors all are principals, {v) By the 31 Vic, c. 72. s. 9, aiders and abettors in misdemeanors are liable to bu indicted, tried, and punished as principal offenders. There can be no accessories to a felony unless a felony has been committed, {w) Ordinarily, there can be no acces- sories before the fact in manslaughter, for the offence is sudden and unpremeditated, {x) Where, however, the prison- er procured and gave a woman poison, in order that she might take it, and so procure abortion, and she did take it in his absence and died of its effects, it was held that he might be convicted as an accessory before the fact to the crime of manslaughter, (y) There may, however, be acces- sories after the fact in manslaughter, {z) The ofi^ence of an accessory is distinguishable from that of a principal in the second degree : the latter must be actually or constructively present at the commission of the fact. But it is essential to constitute the offence of accessory that the party should be absent at the time the offence is committed, (a) On an in- dictment charging a man as a principal felon onl};, he cannot be convicted of the offence of being an accessory after the fact (6) (0 Arch. Cr. Pldg. 11. (u) Ihid. 14. (t>) Reg. V. TiadaU, 20 U. C. Q. B. 273, per R sumed authority, (c) The owner of a shop is liable for any unlawful act done therein in his absence by a clerk or assist- ant in the ordinary course of business, for prima facie it would be his act; but it would seem that if the act was wholly unauthorized by him, and out of the usual course of business, he might escape personal responsibility, (d) Bat the agent is also liable for an unlawful act, although he may have the express or implied authority of his principal for its commission, (e) And a party who maintains a public nui- sance as the agent of another, is a principal in the mis- demeanor, and cannot justify on the ground of his agency. (/) There seems, however, to be a great distinction between the authority or procurement which will render a man liable civilly and that which will render him liable criminally. In the former, the authority must be strictly pursued ; but, in the latter, the principal may be criminally liable, though the agent deviate widely from his authority, (g) Thus the owner of works carried on for his profit by his agents is liable to be indicted for a public nuisance caused by acts of his work- men in carrying on the works, though done by them without his knowledge, and contrary to his general orders, (h) So, in a prosecution for a penalty in selling liquor without license, proof that the sale was made by a person in the defendant's shop, in his absence, and without showing any general or special employment of such peison by the defend- ant in the sale of liquors, is sufficient prima facie evidence against him. (i) So, the proprietor of a newspaper was held indictable for a libel published therein, though he took no actual share in the publication, and lived one hundred miles (c) Beg. V. King, 20 U. C. C. P. 248, per HagaHy, C. J. ; see also AUy, Gen. V. Hiddon, 1 Tyr. 47. id) Ibid. (e) Reg. v. Brewster, 8 U. C. C. P. 208. ( f) Ibid. {g} Paries v. Prescott, L. R. 4 Ex. 182, per Byles, J. (A) Beg. v. Stephens, L R. 1 Q. B. 702, 35 L. J. Q: B. 251. («) Ex parte Parks, 3 Allen, 237. ^ PERSONS CAPABLE OF COMMITTING CRIMES. 77 distant from tlie place of publication, and was confined to his house by illness when the paper complained of appeared. (/) Where the defendant was absent in New York, and his wife, who was intrusted with the ordinary management of the de- fendant's \}usiness in his absence, had a wild duck in her possession, contrary to the Lower Canada Game Act, 22 Vic, c. 103, the court held tliat the defendant was res|V3nsible, on the ground tliat the wife was acting as the agent of the hus- band, and should be presumed to have his authority for the illegnl act complained of ; and a conviction of the husband (the defendant) and imposition of a penalty was consequently sustained, (k) ' • Upon information for unlawfifUy selling beer, under 4 «& 5 Wm. I V,c. 85, s. 17, it was proved that the appellant's wife had actually supplied the beer to three persons who had asked the appellant for beer, and to whom he had said, whilst point- in«^ to iiis wife, " You must ask her," it was held that upon this evidence the conviction was riy;ht. In this case there was an appeal against the decision of the justices. It was argued that if the wife acted as agent for her husband, they both ought to have been summoned and convicted together. However, the court gave judguient for the respondent. (/) It is conceived that the principles involved in the foregoing cnses will apply to principals and accessories in felonies. In other words, that the authority or procurement which will in misdemeanors render a man liable as a principal for the act of his agent, will, in fflunies, render him liable as an acces- sory before the fact . for it is a principle of law that he who procures a felony to be done is a felon, (m) The procurement may be personal, or through the inter- vention ol a third person, (n) It may also be direct by hire, counsel, command, or conspiracy ; or indirect, by evincing an express liking, approbation, or assent to auotiier's felonious (i) Ex parte Parht. 3 Allen, 241, per Garter, C. J. (*) Beg V. Donaghue, 5 L. C J. 104. il) Reg. V. SvMth, 5 U. C. L. J 142. (m) Kug such orders or advice will be an accessory to that felony, (t) A wife is not punishable as accessory for receiving her husband although she knew him to have committed a felony ; (u) for she is presumed to act under his coercion. But no other relation of persons can excuse the wilful receipt or assistance of felons, (v) (o) Bex V. Cooper, 6 C. & P. 636. ip) Reg. V. Taylor, L. R. 2 C. C. R. 147. iq) Arch. Cr. Pldg. 11. (r) Ibid. 12. («) Ibid. \ {t) Ru88. Cr..62. (u) Reg. V. Manning, 2 C. & K. 903 n. ; Arch. Cr. Pldg. 14. (v) Arch. Cr. Pldg. 14. (10) Ibid. 16. (x) Ru88. Cr. 61 ; Dwarris, 518 ; and see 31 Vic, c. ^2 ; Reg. v. Snuth, L. R. 1 C. C. R. 266 ; per BoviU, C. J. PIRSONS CAPABLE OF COMMITTING CRIMES. 79 To constitute the offence of accessory after the fact, it is necessary that the accessory have notice, direct or implied, at the time he assi<«ts or comforts the felon, that he had com- mitl ed a felony ; and it is also necessary that the felony be complete at the time the assistance is given, {w) As to felonies created by statute, if an Act of Parliament ordain an offence to be felony, though it mention nothing of accessories before and after the tact, yet, virtually and con- sequentially, those that counsel or command the offence are accessories before the fact, and those who knowingly receive the oflendt'rs are accessories after, (x) It is a maxim that acceasorius sequitur naturam suipnncipalis, and, therefore, an accessory cannot be guilty of a higher crime than his prin- cipal, (y) The 31 Vic, c. 72, makes provision for the trial of acces- sories before and after the fact. This statute alters the old rule by which an accessory could not be brought to trial until the guilt of his principal had been legally ascertained by con- viction. By this act, accessories before the fact are triable in all respects as principal felons ; and every principal in the second degree is punishable in the same manner as the prin- cipal in the first degree is punishable. By s. 8, in the case of a felony wholly committed within Canada, the offence of any person who is an accessory either before or after the fact, to such felony, may be dealt with, inquired of, tried, determined, and punished by any court which has jurisdiction to try the principal felony, or any felonies committed in any district, county, or place in which the act by reason whereof such person shall have become such accessory has been committed. i •m' a (y) Russ. Cr. 61. 80 THE CRIMINAL LAW OF CANADA. ••«.■■; CHAPTER III. OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE PUBLIC PEACE, OR THE PUBLIC RIGHTS. Coinage offences. — These offences are now regulated by the 32 & 33 Vic, c. 1 8. Where a prisoner ordered dies of a maker impressed with the resemblance of the sides of a sovereign, and the maker gave information to the police, who communicated with the authorities of the mint, and the latter, tlirough the police, permitted him to give them to the prisoner, it was held no lawful authority under section 24. (a) It is necessary in the indictment to negative lawful authority or excuse, not- withstanding that the burden of proof lies upon the accused ; but the word "excuse" includes "authority," and therefore the word " excuse" alone in an indictment under this section is good. (&) A prisoner knowingly in possession of dies lias sufficient guilty knowledge to constitute felony, whatever his intention as to their use may be, for there is nothing in the act to make the intent any part of the offence, (c) The 32 & 33 Vic, c 29, s. 26, applies to a trial on an indict- ment under s. 12 of the Coinage Act for feloniously having in possession countcrteit coin after a previous conviction lor uttering counterfeit coin ; and, therefore, the previous convic- tion cannot be proved until the jury find the prisoner guilty of the subsequent offence : (d) and a prisoner, indicted under 8. 12 of the Coinage Act for the felony of uttering, after a previous conviction for a like offence, cannot be convicted of the misdemeanor of uttering if the jury negative the previous (a) Refi. V. Harvey, L. R. 1 C. U. R. 284. {b)Ibid. (c) JbUi. {d) Jieg. V. Martin, L. R 10. C. R. 214 ; 39 L. J. (M. C.) 31 ; Seg. r Ooodwin, 10 Cox, 634, overruled. OFFENCES AFFECTING GOVERNMENT, ETC. 8^ 8 coavic- conviction ; for felony and riisdemeanoT are different things, and on an indictment for one there can be no conviction for tlie other, except by express enactment, (e) Where coin was counterfeited to resemble smooth worn shillings then in cir- cnlaiion, without any impression whatever upon them, it was held to be a sufficient counterfeiting. (/") So a genuine sove- reign filed at the edges to such an extent as to reduce its weiglit by one twenty-fourth part and to remove the milling almost entirely, and a new milling added in order to restore the appearance of the coin, was held to be false and counter- feit, (g) By the old law, the counterfeit coin must have ap- peared to have that degree of resembJance to the real coin that it would likely be received as the coin for which it was intended to pass by persons using the caution customary in taking money ; and the coin must have been in a complete and perfect state, ready for circulation, (h) Now, however, by the 82 & 33 Vic, c. 18, s. 32, the offence shall be deemed complete although the coin was not in a fit state to be uttered or the counterfeiting thereof was not finished or perfected. By sec. 30 any creditable witness may prove the coin to be false or counterfeit, (t) The Imp. Act 16 & 17 Vic, c. 48, is not in force here, {j) But the Imp. Stat. 16 & 17 Vic, c 102, respecting gold, silver, and copoer coin, applies to this country, (k) In an indictment under sec. 22 of the Coinage Act, it would seem to be necessary to allege that the coin was not current by law in this province. (/) Foreif/n enlistment offences. — ^The Imperial statute 33 & 34 Vic, c 90, is now the governing enactment on this subject. (e) Reg. v. Thomag, L. R. 2 C. 0. R. 141. I/) Reg. V. WiUon, 1 Leach, 285 ; Reg. v. Welah, ibid. 364 ; Arch. Cr. Pldg 745. \ g ) Reg. V. Hermann, L. R. 4 Q. B. D. 284. [h) Reg. v. Vhirky, 2 W. Bl. 682; Reg. v. Harris, 1 Leach, 135 ; Arch. Cr. Pldg 745. (t) See also sec. 31. ( ;') See H2 k 33 Vic, c. 18, s. 36. (k) Warner v. Fy^ia, 2 L. C. J. 105. (0 Reg. V. Ti^mey, 29 U. C. Q. B. 181. F 82 THE CRIMINAL LAW OF CANADA. ic::- Z"" « €„,." ■WW"" It extends to the whole Dominion of Canada, including the adjacent territorial watei-s. (m) This statute is highly penal in its character, {n) It, however, strengthens the hands of the Government, and enables it to fultil more easily than heretofore that particular class of international obligatijiis which may arise out of the conduct of Her Majesty's sub- jects towards belligerent foreign states with whom Her Majesty is at peace. It should be so construed as, on the one hand, to give, if possible, due and full execution to its main purpose, and, on the other hand, not to strain its provisions so as to fetter tlie private commerce of Her Majesty's subjects beyond the ex- press limits which the statute, for the general interests of the public weal, has prescribed, (o) The 59 Geo. IIL, c. 69, was in force here until the passing of the former statute, the Provincial Act 28 Vic, c. 2, having been passed in aid of it ; so that any provisions of the local statute in conflict with the Imperial. Act would not prevail against the latter, (p) The local enactment will now stand repealed in so far as it is repugnant to the Imp. 33 & 34 Vic, c 90, but no farther, (q) But little judicial light has been thrown on the latter statute, but several cases have been decided in our courts under the old Act the results of which are given here. A warrant of commitment, issued uuder the 59 Geo. Ill, c 69, is sufficiently certain if it charges the prisoner with attempting or endeavoring to hire, retain, engage, or prevail on to enlist as a soldier, in the land or sea service, for, or uuder, or in aid of Abraham Lincoln, President of the United States of America, and in the service of the Federal States of America. The foregoing is also a sufficient description of the foreign po'ver in the warrant ; the power being one whose (f») See sec. 2. (n) The Gauntlet, L. R. 3 Ad. & Ec. 388, per Sir R Phillimore. (o) The Internatiional, Ij R. 3 Ad & Re. 3.32, per Sir R. Phillimore. (p) Reg. V. Sherman, 17 U. C. C. P. 16<> ; Reg. v. Schram, 14 U. C. 0. P. 318. (9) See sec. 2 ; see Alt- Imp. Stat. 28 & 29 Vic, c. 63, s. 2. existe words plusa^ the ac be sue from 1 which keep tl be dis suretie latter ^ valid ( raitted cretion amoun U T »> ■*■» SO as tc it bein^ seal, (s K Cla before magisti offence, the coi into cu the pri ciently mittal execute hand at reciting that he (r) Re («) Re i (0 Re ( (u) Km OFFENCES AFFECTING GOVERNMENT, ETC. 83 existence the court is bound to notice judicially, and the words relating to the Federal States being rejected as sur- plusage. In such a warrant, it is not neces.sary to allege that the accused is a British subject, the law presuming him to be such until the contrary appears ; nor to negative a license from Her Majesty the Queen to do the act or acts concerning which the complaint is laid, (r) A direction to the gaoler to keep the prisoner in the common gaol, " until he shall thence be discharged by. due course of law, or good and sufficient sureties be received for his appearance," is sufficient — the latter words being looked upon either as surplusage, or as a valid direction, inasmuch as the magistrates having com- mitted the prisoner for want of bail, it would be in the dis- cretion of the magistrates or court ordering bail to fix the amount. " I," in the text of a warrant, may be read as " I and I," so as to read " given under my and my " hand and seal, etc., it being presumed that both magistrates use one and the same seal, (s) A warrant of commitment reciting that Tliadaeus K Clarke " was this day charged (not saying upon oath) before us," and without showing any examination by the magistrates, upon oath or otherwise, into the nature of the offence, and commanding the ^constables or peace officers of the county of Welland to take the said Thaddeus K. Clarke into custody, was held sufficient. (<) A warrant committing the prisoner " until discharged by due course of law," suffi- ciently complies with the statute, which provides for a com- mittal until delivered by due course of law. A warrant executed by two parties, and concluding " given under our hand and seal," is sufficient, (u) A warrant of commitment, reciting that F. M. was charged, on the oath of J. W., " for that he (F. M.) was this day charged with enlisting men for (r) Re SmUh, 10 U. C. L. J. 247 ; but see re Martin, 3 U. C. P. R. 298. (») Re SmUh, 10 U. C. L. J. 247. (t) Re Clarke, 10 U. C. L. J. 331. (u) Ibid.; see also re SmUh, 10 U. C. L. J. 247. 84 THE CRIMINAL LAW OF CANADA. '^^ '\>: mm *"■■ the United States army, offering them S350 each as bounty," without charging any offence with certainty, was held bad. (v) The third part of the seventh section of this Act, pro- hibiting vessels from engaging in foreign service, is in the alternative, and it is not necessaiy that the vessel should be acting in the service of " any person or persons exercising, or assuming to exercise, any powers of government in or over any foreign state, colony, province, or part of any province or people," if the vessel is " employed in the service of any foreign state, or people, or part of any province or people." (w) It has been doubted whether the jurisdiction conferred by the 28 Vic. c. 2, is a general or a local one. (x) A commitment under that statute, stating the offence as follows : ** For that he on, etc., at, etc., did attempt to procure A. B. to serve in a warlike or military operation, in the ser- vice of the Government of the United States of America, ouiittjtjg the words "as an officer, soldier, sailor, etc.," is bad. (y) A judgment for too little is as bad as a judgment for too much, and a condemnation to pay $100 and costs — the statute imposing $200 and costs — is bad. (z) So a commitment on a judgment for the penalty and costs, not stating, in the body of the commitment, or a recital in it, the amount of costs, is bad. (a) But a warrant of commitment, on a conviction had before the police magistrate for the town of Chatham, in Ontario, under the 28 Vic, c. *?, averring that, on a day named, " at the town of Chatham, in said county, he, the said Andrew Smith, did attempt to procure A. B. to enlist to serve as a soldier in the army of the United States of America, contrary to the statute of Canada in such case made and provided," and then proceeding, ** and whereas the said Andrew Smith was duly convicted of the said offence before me, the said (v) Re Martin, 3 U. C. P. R. 298. {to) Reg V. Uarlin, the Salvador, L. R. 3 P. C. App. 218. {x) Re Bright, lU. 0. L. J. N. S. 240. (y) Ibid. (z) md. / Rex V. Salomons, 1 T. R. 249 ; Whitehead v. Reg. 7 Q. B. 682. (o) Re Bright, lU. C. L J. N. S. 240; Rex. v. HaU, Cowp. 60. OFFENCES AFFECTING GOVERNMENT, ETC. 85 police magistrate, and condemned," sufficiently shows jurisdic- tion, (h) A direction to take the prisoner " to the common gaol at Chatham," the warrant being addressed " to the con- stables, etc., in the county of Kent, and to the keeper of the common jy^aol at Chatham, in the said county," is sufficient, (c) And the adjudication as to the offi^nce may be by way of recital, (d) The words "to enlist to serve" do not show a double offiince, and sufficiently describe that created by the statute; and such a warrant is not bad as to duration or nature of imprisonment. The commitment for the further time beyond six months should be at hard labor, (e) The statute was intended to allow both fine and imprisonment, or either, and it is not compulsory to award both. So there is power to commit for non-payment of costs. (/) The amount of costs v/u^ held to be sufficiently fixed in a warrant of commitment, which, in addition to $4.50 for costs, proceeded to give all costs and charges of commitment, and conveying the prisoner to gaol, amounting to the further sum of $1. {g) The statute inflicts a penalty, " with costs," and in such case the costs of con- veying the defendant to prison may be lawfully added, (h) The intent is the material ingredient in the offence under the Act being considered; and the mere fact that arms are on board for the use of a foreign state against a nation at peace with her Majesty, without showing such intent, is no contraventio'ii of the Act. (t) The object of the statute is to prevent warlike enterprises, not commercial adventures. (/) And a steam tug which, in puiduance of an agreement made between its master and the officer in command of a vessel captured as prize, lying in (6) Be SmUh, 1 U. C. L. J. N. S. 241. (c) /bid. {d) Ibid. (e) Ibid. {/) Ibid. I (ff) Ibid. (h) Ibid. {i) The Atalaya, 7 Q. L. K. 1. (j) Ibid. ■ • w .J 11 86 THE CRIMINAL LAW OF CANADA. .'!•'. British waters, and under the direction of such officer, towed the prize out of British waters for the ordinary towage re- muneration, which was afterwards paid by the Consul-General of the belligerent state in London, was held not liable to con- demnation, though the master, who was one of the owners of the steam tug, had reasonable cause to believe that the prize was a prize of war, as it could not be said to have been em- ployed in the military or naval service of the belligerent state, (k) It would seem, however, that a ship employed in the service of a foreign belligerent state to lay down a sub- marine cable, the main object of which is, and is known to be, the subserving the military operations of the belligerent state, is employed in the military or naval service of that state, within the meaning of the Act. (/) When a cause is instituted against a ship in the Admiralty Court, for an offence under this Act, the court may, with the consent of the Crown, order the ship to be released on bail, {m) Seducing soldiers or sailors to desert. — The Con. Stat. U. C, c. 100, has been repealed, and the 32 & 33 Vic, c. 25, is now the governing enactment on this subject. The Imp. Mutiny Act did not override the Con. Stat. U. C, c. 100; but the latter was passed in aid of the former, and was in force, notwith- standing the Imp. Mutiny Act. The two statutes were con- strued as if they had been both Canadian, or both English Acts, {n) The punishment by fine and imprisonment imposed by the Provincial Act, however, stood abolished as long as the Mutiny Act was in force, and the imprisonment could in no case exceed six calendar months. The power of trial by the Court of Oyer and Terminer, under the Con. Stat. U. C, c. 100, was not taken away by the Mutiny Act. It was, therefore, held no objection that a defendant had been tried by a Court of Oyer and Terminer, and sentenced to six mouths' imprisonment, and a fine of (k) The Gauntlet, L. R. 3 Ad. & Eo. 381. * (I) The International, L. R. 3 Ad. 9r. Ec. 32L (m) The OauntUt, L. R. 3 Ad. & Ec. 319. (n) Bt-g. V. Sherman, 17 U. C. C. P. 168, per J. WUaon, J. ; 169, per A. WUwn, J. lOs. im the sta judgine Alth of trial that st meaiior jurisdic may ah justices ible wit constru and pui force in The c. 100, desertei Act, 29 viction tion ex] civil 01 mentioi therefor under t that the desertei was no which \ still m assistau ing. (r) appiical {o)Reg N. 8. 161 (p)See {q)Jieg {r)Jbk OFFENCES AFFECTING GOVERNMENT, ETC. 87 lOs. imposed ; for this was merely a nominal compliance with the statute, and the court had power to pass the proper judgment, if an improper one had been given, (o) Although the 32 & 33 Vic, c. 25, in terms gives no power of trial to a Court of Oyer and Terminer, yet section 5 of that statute, by making every offence against it a misde- meanor and punishable as such, would seem to continue the jurisdiction over such cases in tl»at tribunal. The offender may also be convicted in a summary manner before any two justices of the peace, on the evidence of one or more cred- ible witness or witnesses, etc. Nothing in the Act shall be construed to prevent any person being prosecuted, convicted, and punished, under any Act of the Imperial Parliament in force in Canada, (p) The defendant was indicted under the Con. Stat. U. C, c. 100. s. 2, and convicted of receiving and concealing a deserter from the Royal Navy. The Naval Discipline (Imp.) Act, 29 & 30 Vic, c. 109, s. 25, authorizes a summary con- viction before mag'^trates for this offence ; but the lOlst sec- tion expressly preserves the power of any court, of ordinary civil or criminal jurisdiction, with respect to any offence mentioned in the Act punishable by common or statute law therefore, a defendant can be indicted and properly convicted under the Provincial Acfe: (q) Where an indictment charged that the defendant did receive, conceal, or assist " one W., a deserter from the navy," the court inclined to think that this was not sufficiently certain or precise ; for although acts which would prove concealment must involve receiving, and still more certainly assisting, yet there might be acts of assistance quite ^part from either concealment or receiv- ing, (r) The Mutiny Act of 1867, 30 Vic, c :i3, has no applicability to the above case. The provisions of that Act (o) Reg. V. Sherman, supra, 166-172 ; Daw v. Metro. Board Co. 12 C. B. N. 8. 161:8Jur. N. S. 1040. (p) See also 34 Vic, c. 3i ; 33 Vic, c 19 ; and 36 Vic, c 58. (g) Reg. v. PaUeraon, '27 U. C. Q. B. 142. (r)Jbid. :5 m :> .J :) .J - «< ' o a CQ i! I 88 THE CRIMINAL LAW OF CANADA. relate to soldiers, and to others only in regard to their con- duct towards those who are soldiers within the meaning of the Act. («) A warrant of commitment, in which it was charged that the prisoner, on the 20th June, 1864, " and on divers other days and times," at the city of Kingston, did unlawfully attempt to persuade one James Hewitt, a soldier in Her Majesty's service, to desert, was held bad ; for it was impos- sible to say, upon reading the warrant, how many offences lie had committed, or how the punishment was awarded for each specitic otfence ; and if the prisoner were brought up again, he would be unable to say whether he had been tried or not, for he could not tell for which attempt he had already been imprisoned. In this case the court held also that there was no conviction to sustain the warrant of commitment, noi-, in fact, any conviction to sustain an imprisonment at all ; for if the very words were used in the commitment which were cited in the alleged conviction, the commitment could not be sustained, (t) When a soldier commits felony, by firing, without orders, on a crowd of peoplu, in the streets of a city, such conduct being insubordinate, unsoldier-like, and lo the prejudice of good order and military discipline, he must first be held to answer before the constituted tribunals in the colony proceed- ing under the common law, before a military court, under the Mutiny Act and the Articles of War, can legally take cogni- zance of the charge, (u) A volunteer is liable, by 29 & 30 Vic, c. 12, to be tried by a court martial for misconduct while present at a parade of his corps, though not actually serving in the ranks at the time, (v) • Section 125 of the Imperial Statute 36 Vic, c 129, does not modify or limit sec. 124 so as to restrict the application (jj) Reg. V. Patterson, U. C. Q. B. 144, per Draper, C. J. (0 Be McOinnes, 1 U. C. L. J. N. S. 15. (tt) ExparU McCuUoch, 4 L. U. B. 467. (v) Br parte JUckaby, 17 L. C. B. 270. OPPENCES AFFECTING GOVERNMENT, ETC. 89 of that Act in relation to ships in the merchant service of foreign countries to the offence of desertion only, but the wiiule provisions of the Act apply to such foreign vessels, so far as is consistent with existing treaties between Great Britain and foreign countries, (w) Piracy. — This offence at common law consists in commit- ting those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there, (x) It was not a felony triable by jury at common law, but was made so b^ <;he 28 Hy. VIII., c. 15, and 11 & 12 Wm. III., c. 7. (y) Tliese two statutes may, perhaps, be treated as in force here, being part of the law of England at the time of its introduction. In Canada, piracy is, in fact, felony committed within the juiisdiction of any Court of Adnjiralty; for any felony punishable under the laws of Canada, if committed within the jurisdiction of the Admiralty Courts, may be dealt with, inquired of, tried, and determined in the same manner as any other felony com- miited within that jurisdiction, {z) The Imp. Stat. 12 & 13 Vic, c. 96, extends to the Dominion, and makes iurther and better provision for the trial of piracy than is made in and by the two former statutes, and may, perhaps, to some extent, supersede them. Com- " missions were required for the trial of oflfences under the earlier statutes, but it is conceived that the latter enactment is in itself a sufficient authority for the trial of these offences, and that commissions are now unnecessary. By that statute jurisdiction is given to the colonial courts to try offences cognizable in the Admiralty Court of England, so that in this country the material inquiry in cases of piracy is as to the jurisdiction of the Admiralty Courts. The admiralty jurisdiction of England extends over British vessels, not only when they are sailing on the high seas, but {to) Ex Mrte Johansen, 18 L. C. J. 164. (x) Ruw. Cr. 144. {y) Ibid. (z) 32 & 33 Vic, c. 29, ■. 136 ; aee also 12 h. 13 Vic, o. 96, s. 1. \ I a Opg :> -: I •5 \ 90 THE CRIMINAL LAW OF CANADA. ^ -,.*..•■ K^-" also when they are in the rivers of a foreign territory, at a place below bridges where the tide ebbs and flows, and where great ships go, althoui,'h the municipal a*' "ities of the foreign country may be entitled to conct ^ jurisdiction. And all seamen, whato-ver their nationality, serving on board British vessels, are amenable to the provisions of British law. (a) An American citizen, serving on board a British ship, causing the death of another American citizen, serving on board the same ship, under circumstances amounting to man- slaughter, the ship at the time being in the River Garonne, within French territory, at a place below bridges where the tide ebbed and fllowed, and great ships went. It was held that the ship was within the Admiralty jurisdiction, and that the prisoner was rightly tried and convicted at the Central Criminal Court. (6) On a trial for maliciously wounding on the high seas, it was stated by three witnesses that the vessel on board which the offence was alleged to have been committed was a British ship, of Shields, and that she was sailing under the British flag, but no proof was given of the register of the vessel, or of the ownership. It was nevertheless decided that the court had jurisdiction over the offence — first, because the evidence was sufficient to prove that the vessel was a British vessel ; secon'^^y, because, even if it had appeared that the vessel was not registered, the court would still have juris- diction, as there is nothing in the Merchant Shipping Act to ^^ke away that jurisdiction, and also by reason of s. 106 of the latter Act, 1854, which provides that, as regards the punishment of offences committed on board such a ship, she shall be dealt with in the same manner as if she were a recognized British ship, (c) The prisoner was indicted for stealing three chests of tea (o) Reg. V. Anderwn, L. R. 1 C. C. R. 161 ; 38 L. J. (M. C.) 12 ; and see Iteg. \. Lopez, 1 Dears. & R 1 G. C. 525 ; Beg. v. Lesley, 1 Bell. C. C. 220. (6) Beg. v. Anderton, supra ; and see Beg. v. AUen, 1 Mood. C. C. 494. (c) Beg. V. Seberg, L. R. 1 C. C. B. 264 ; 39 L. J. (M. C.) 183. from a vei when the lay twent given of tl lay. On was with flows in 1 imaginary courts of mitted w concurren The gn juri8dicti( authority an offeuc waters, ir The powe as if the the limit! jurisdicti for then functions nature, e act. (jsi) etc., in fc has juris( A Brit for an of against makes ] ing to m (d) Bex ' A. Wilson, («) Ibid. (/) Beg. (g) Ibid, (h) Ibid. (») Beg. U) See 1 \ ■ OFFENCES AFFECTING GOVEHNMENT, ETC. ft from a vessel, which sailed from London, ou the hi«^h seas, when the vessel was lying off Wampa, in China. The vessel lay twenty or thirty miles from the sea. No evidence was given of the flowing of the tide, or otherwise, where the vessel lay. On a case reserved, the court held that the ofifence was within the Admiralty jurisdictio'i. (d) Where tlie sea flows in between two points of land in England, a straight imaginary line being drawn from one point to the other, the courts of common law have jurisdiction of all offences com- mitted within that line, thou<;^h it is said the Admiralty hu^ concurrent jurisdiction within the same, (e) The great inland lakes of Canada are within the Admiralty jurisdiction, and by the Imp. Act 12 & 13 Vic.,c. 96, there is authority in our courts and magistrates to take cognizance of an offence committed in the lakes, although in American waters, in the same manner as if committed on the high seas. The power may be exercised by all magistrates in the colony, as if the offence had been committed in the waters 'ithin the limits of the colony, and within the limits of the local jurisdiction of the courts of criminal justice in the colony ; (/ ) for there is nothing in the statute to give any particular functionary jurisdiction, or to make the offence of a local nature, and, therefore, any magistrate in the province may act. (ff) If a robbery be committed on lakes, harbors, ports, etc., in foreign countries, the Court of Admiralty indisputably has jurisdiction, (h) A Biitish court, has no jurisdiction to punish a foreigner for an offence committed on the high seas in a foreign ship, against a British subject, (i) The 32 &; 33 Vic, c. 20, a. 9, ma kes provision for the trial in Canada of offences amount- ing to murder or manslaughter committed upon the sea. {J ) {d) Bex V. AUen, 7 C. & P. 664 ; Beg. v. Sharp, 5 U. C. P. R. 138, per A. Wilson, .1. (e) Ibid. 139, per A. WiUm, J. ; Bex v. Bruce, R. k R. 243. (/) Beg. V. Sharp, 5 U. C. P. R. 136. Ig) Ibid. 140, per Wilson, J. (A) Ibid. 139, per Wilson, J. (•) Beg. V. Kinsman, 1 James, 62. ij) See also o. 29, s. 9. ■i y J " m •• ""I I o a S I 92 THE CRIMINAL LAW OF CANADA. CDC Customs and Excise offences. — These offences are now re- gulated by the 40 Vic. c. 10. {k) Although section 81 of that Act provides that persons removin^j; ^ouds from a bonded warehouse shall incur the penalties imposed on persons for smu}];^'ling, and by s. 76 of the same Act, smuggling is made a misdemeanor, punishable by a penalty not exceeding $200, or by imprisonment for a term not exceeding one year, or by both, yet an indictment will not lie under s. 81, for the mis- demeanor created by s. 76, for the 8 1st secMon does not declare that the parties offending, etc., shall be deemed guilty of the misdemeanor created by the 76th, and the clause cannot be extended to the creation of a new crime by implication. (/) It is unnecessary to allege, in the indictment for offences against this Act, that the warehouse ia a customs warehouse, or one duly appointed and established according to the pro- visions of the law; for the raeauinLj of the word " warehouse" is clearly defined by the Customs Act, and it would be matter of proof lj to whether the building alluded to comes within that definition or not. Nor is it necessary to allege that the goods had been marked and stamped in accordance with the requirements of the Act, for the security of the revenue of Canada, nor that the goods had previously been duly entered for warehousing, in accordance with the pro- visions of law, nor to allege by whom the goods were kept in the warehouse, for not one of these statements is required by the statute; and, moreover, in official matters, all things are presumed to have been properly done. An allegation that the goods were fraudulently removed implies sufficiently that they were not legally cleared from, etc. (/») Ou a statute somewhat similar to the 40 Vic, c. 10, s. 91> subsec. 2 (using, however, the words *' information on oath shall be given"), it was held that, to justify the breaking open of a building, there should have been, first, a written informa- {k) See as to customs 31 Vic , cs. 6, 6, 7, 43& 44 ; aisoSa Vic, c. 9 ; and 34 Vic, cs. 10 and 11. (l\ Reg. y. Bathgate, 13 L. C. J. 299. (m) lUd. OFFENCES AFFECTING GOVERNMENT, ETC. i tion on otith ; and, second, the actual presence of the justice at the breaking, so that the parties may understand the demand for admittance conies from the juiitice, by virtue of his le;{al authority, and ma;;isterial character, (n) Not openin«» a door, after a proper demand, is a sufficient denial within the Act. If tiie breaking open is unlawful, and the officer is concerned therein, Im cannot justify the seizure of smuggled jjoods found within the buihiing; but if a party not concerned in the unlawful breaking, seizjd the goods, the case might be different. It seems that an order to enter uiven to a police officer, present with the levenue officer, would be sufficient, and that he would be presunnd lobe acting in aid. (o) If the door be closed, and admission denied, then the Act clearly intends that the justice siiould be the person to demand admittance, and to declare the purpose for which the entry is demanded. Possibly he might ilo this by the mouth of the officer, but it should be done in suoh a way as to be well understood as coming from the justice, by virtue of hijt legal authority and uMgisterial character, (p) An indictment for smuggling, under the (N. R) Uev. Stat., c. 29, s. 1, charged, in the several counts (I) that the defend- ant unlawfully landed alcohol, subject to duty, and thereby smuggled the same ; (2) that defendant unlawfully landed alcohol, subject to duty, without reporting to the treasurer, and thereby smuggled, etc. ; (3) that the defendant landed the alcohol without a permit, and thereby smuggled; and (4) that the defendant landed aU-ohol w tbout paying the duties. The indictment was held insufficient, as (1) the mere unlawfr.l landing of goods, without alleging any intent to defraud the revenue, did not constitute the ofi't-nce of smuggling ; (2) merely landing goods, without reporting them to the treasurer, or without obtaining a permit, though it may subject the party to a penalty, does not amount to smuggling ; (3) and the mere landing of goods, without a previous piynient of duty, is not •y i 1 J J >' 'X. O 3 S (n) Rig V. WahK 2 Allen, 387. (o) IhiA. (p) Ibid. 391, per CarUr^ C. J.* 94 THE CRIMINAL LAW OF CANADA. l\'\ ■Till***'' «■:«•;; a breach of the revenue laws, as the duty may be secured as pointed out in the Act. Tho indictment must negative the fact that the duties were secured, (q) The colonial legislature has power to impose additional grounds of forfeiture, for breach of the revenue laws, on goods subject to forfeiture, under an Act of the Imperial Parlia- ment, (r) In the Atty. General v. Warner, (s) the question was raised, but not decided, whether an information would lie under the 66th clause of the Imp. Act 8 & 9 Vic, c. 93, where the party informed against was a person shown not to have trans- ported or harbored the goods of another, but his own goods, smuggled by himself, on his own account. By this Stat. 8 & 9 Vic, c 93, gunpowder is prohibited from being imported into the British possessions in America, except from the United Kingdom, or some British possession. Gunpowder coming from a foreign counlry was held not liable to be proceeded against as a non-enumerated dutiable article under the Provincial Ee venue Act, 11 Vic, c 1, for being imported into the Province, at a place not a port of entry, contrary to the Act 11 \'ic., c. 2, s. 21 ; but that it was liable to seizure and forfeiture, under the 17th section of that Act, for being landed without entry at the Treasury, (t) Spirits in casks less than 100 gallons were also held liable to forfeiture, under the (N.B.) 11 Vic, c. 67, though the vessel in which they were imported is over 30 tons register, (u) In an information for the condemnation of goods as illegally imported, it is allowable, under a plea that they were not imported moda et forma, to show that the goods were landed through stress of weather, {v) In an information, at the suit of the Crown, for goods seized at the Custom House, there must have been a substan- {q Reg. v. Ccutsidy, 4 Allen, 623. (r) Atty Oeril. and Myers, 2 Allen, 493. («) 7 U. C. Q. B. 399. (0 Ibid. (u) Atty. Genl. v. Wahh, 2 Allen, 467. (w) Atty. Genl. v. Spafford, Draper, 320. OFFENCES AFFECTING GOVERNMENT, ETC. 95 tive allegation that the goods were imported and brought in in violation of the Custom House regulations, {w) It has been held that the omission of the words '' against the form of the statute " is fatal, (x) The omission of these words is probably cured by the 32 & 33 Vic, c. 29, s. 23. In an information for a penalty under the Customs Act, 3 & 4 Wm. IV., c. 59, for knowingly harboring smuggled goods, it was held that the scienter was a proper question for the jury ; and that in such information, the particular illegal act, as that the goods were imported without payment of duties, etc., should be specified ; and that the information should expressly show that the offence charged to have been committed was contrary to the form of the statute, and that saying merely that the statute gives a right to the penalty was not enough, (y) If a quantity of smuggled goods be purchased at one time, but seizures of them are made at different times, only one penalty for harboring them can be recovered, (z) An entry at the Custom House declared that the packages contained articles not subject to duty, but some of them contained contraband goods. This was held but one entry, and that being false as to some of the packages, the goods were not duly entered, and the whole were forfeited under the (N.B.) 1 Rev. Stat., c. 27, s. 10. (a) A revenue inspector, suing in the Queen's name for penalties under the 14 & 15 Vic, c 100, was held not liable for costs, because he came within the ordinary common law rule, ex- empting the Crown from costs. (6) The 34 Vic, c 11, was passed for the purpose of preventing corrupt practices in relation to the collection of the revenue. Excise. — The excise is at present regulated by 31 Vic, c 8, as amended by 40 Vic, c. 12, and by the various statutes in (tr) Solr. Oenl. v. Darling, 2 L. C. R. 20. (x) Ibid. {y) Beg v. Aumond, 2 U. C. Q. B. 166. (z) Ibid. (a) Reg. v. Southward, 3 Allen, 387. (6) Ex parte Hogue, 3 L. C. R. 287. 1 I J > i •m m > \ s . i O M CQ ■ o = r. i mr 96 THE CRIMINAL LAW OF CANADA. <:=: «5= force in the several provinces in relation to the sale of liquors. An indictment under sec. 143 of the first mentioned statute for breaking a lock, etc., after other statements, alleged : In which said warehouse certain goods for and in respect of which a certain duty of excise was then and there by law imposed, were then and there kept and secured, without the knowledge and consent of the collector of inland revenue. It was held that the redundant expression, " were then and there kept and secured," made the words which form the gist of the offence, *' without the knowledge and consent of the collector of inland revenue," apply apparently not to the opening of the lock, but to the keeping and securing ot certain goods in the warehouse, and was therefore bad. (c) The indictment need not show the description of goods, nor that they are subject to excise, nor by whom the goods were kept and secured, nor that the goods were retained in any wareiiouse, under the supervision of any officer of inland revenue, nor that defendant opened a lock attached to a warehouse in which goods were so retained, nor that the excise duty was then and there unpaid, for all these allegations are mere surplusage, (d) A deputy revenue inspector may validly sign a plaint or information for selling liquor without a license, (e) The prosecutor is not bound to jJrove that the defen-lant has no license, as he is not called on to prove a negative. (/) It seems the Crown is not obliged, under Acts relating to the excise, to proceed in the manner prescribed -therein as a private individual would be, unless expressly included, but may institute proceedings in the superior courts by informa- tion, (g) {c) Ri-g. V. Bathgate., 13 L. C. J. 303. \d) Ibid. ; see also aa to excise 31 Vic, cs. 49 & 60 ; 33 Vic, c 9; and 34 Vic, c 15. (c) Reynolds and Durnford, 7 L. C. J. 228. Ij) Ex parte Parks, 3 Allen, 237 ; see post Evid ; re Barrett, 28 U. C. Q. B. 561, per A. Wilson, J. (g) Reg. v. Taylor, 36 U. C. Q. B. 183, per A. Wilson, J. In pre opinion oath, ev€ Ifafc the pros( even the But, in required whether prohibit' " by retj hibited 1 aver tha the time stated ; be negai vious CO not nec( takes p Thet converti (A) Reg 7 L. C. J {i)R«id C. P. 182 0") Jieg L. C R. ! {k) Ex ; (0 R^g. 564; JIfd (m) Rei Pugsley, (n) Ex (0) Rrg V. c. c. {p)Re V, Jukes, {q)Ii'V Pugslev, ir) ]^eg cork, 7 El is) Reg {t) Reii OFFENOES AFFECTING GOVERNMENT, ETC. 17 ^ of In prosecutious for selling liquor without license, the better opinion seems to be that the information should be under oath, even where the statute does not expressly require it. {h) If a form of conviction is given in the statute under which the prosecution is had, it is sufficient if that form be followed, even though, from a technical point of view, it is defective, (i) But, in the absence of such statutory guide, grtat care is required in the preparation of a conviction. It should show whether the offence is for selling without license, or during prohibited hours, or in illegal quantities ; (/) if for selling " by retail" it should so state it ; (k) if for selling during pro- hibited hours, or not keeping up a proper signboard, should aver that the defendant was pfoperly licensed. (/) It seems the time, (m) place, (n) and to whom sold, (p) should also be stated ; and if there are any exceptions in the Act, they should be negatived, (p) If for a second or third ofl'ence, the pre- vious convictions should be recited and proved, (q) But it is not necessary to give the statute under which the conviction takes place, (r) nor the kind or quantity of liquor sold, (s) The terms "spirituous liquor" and "intoxicating liquors" are convertible ; (t) and " at" the hotel, is equivalent to "therein (A) Beg. v. McConneU, 6 U. C. Q. B. 0. S. 629 ; but see ex parte Cownne; 7 L C J 112 (») Beid V. McWhinnie, 27 U. C. Q. B. 289 ; Beg. v. Strachan, 20 U. 0. C. P. 182. 0") Beg. V. Haggard, 30 U. C. Q. B. 152; ex parte Woodhouse, 3 Li C IL 93. {k) Ex parte Hebert, 18 L. C. J. 156. (0 Bfg. V. French, 34 U. C Q. B. 403 ; «a: parte BirmingJiam, 2 P. ft B. 664 ; McGUvery v. Qatdt., 1 P. & B. 641. (m) Beg. v. French, 2 Kerr, 121 ; but see Beg. v. Jacket qf Queeti't, 2 Fugsley, 485. (n) Ex parte HeheH, 18 L. 0. J. 166. (o) Btg. V. Cavanagh, 27 U. C. C. P. 537 ; but see Bsg. v. Strachan, 20 IT C C P 182. {p)Be MiUs, 9 U. C. L. J. 246 ; Beg. v. White. 21 U. C. C. P. 364 ; Beg. y. Jukes, 8 T. K. 542 ; Beg v. WhUe, 21 U. C. C. P. 354. {q) Beg. v. French, 34 U. C. Q. B. 403 ; Beg. v. Juatke* qf Queen'0, 2 Pugslev, 485. (r) ^eg. v. Strachan, supra ; Wrap v. Toke, 12 Q. B. 492; Bex. v. Wood- cork, 7 East, 146. («) Beg. V. King, 20 U. C. C. P. 246. (<)J2eWv. ifcH'Wnnie, 27U. C.Q. B.289. ' &V G 98 THE CRIMINAL LAW OF CANADA. or or on the premises thereof." {v) A conviction which described the defendant as one " G. P. an innkeeper" was held bad, the word " innkeeper" amounting only to a description of the person, and not to an averment of his filling such a character ; and the words " in and at his tavern" are held not to supply the deficiency, as those words are consistent with ownership without occupancy, (v) A conviction for that one H., on, etc., ••' did keep his bar-room open, and allow parties to frequent and remain in the same, contrary to law," was held clearly bad as showing no offence, {w) Where the statute limits the time within which proceed- ings under it are to be taken, it is sufficient if it appear from the statements in the conviction to have been begun in time without auy averment of the fact, (aj) Tlie information is the commencement of proceedings for this purpose, {y) Under R S. Ont, c. 181, it would seem to be unnecessary to show such fact, as the clause of limitation is entirely distinct from those creating the offences and imposing the penalties. (2) A conviction which imposes a fine in excess of that allowed by the statute under which it is raade, is bad. (a) An information charging several offences In the disjunctive is bad, and the defect will not be cured by the confession of the defendant. (6) The charge in a conviction must be certain, and so stated as to be pleadable in the jvent of a second prosecution for the same ofifence. (c) The conviction must be of the offence charged in the infor- mation, and not of a different offence, or of several offences in the conjunctive, charged in the disjunctive, (rf) Therefore, (u) Rtg. V. Cavanagh,^V. C. C. F. 637. v {v) Rfg. V. ParlM, 23 U. C. C. P. 369. ' (w) Rtg. V. Haggard, 30 U. C. Q. B. 152. * (e) Reid v. JieWhinnie, 27 U. C Q. B. 289. (y) Reg. v. Lennox, 34 U. C. Q. B. 28. (t) Reg. V. Strachan, 20 U. C. C. P. 182 ; Wray y. Take, 12 Q. B. 492 ; Bex y. Woodcock, 7 East, 146. (a) Reg y. Lennox, 26 U. C. Q. B. 141 ; Reg. y. Frmch, 34 U. C. Q. B. 403. (6) ExparU Hogue, 3 L. C. R. 94. (c) Reg. y. Haggard, 30 U. C. Q. B. 162. (d) JBx parte Hague, 3 L. C. R. 94. \ OFFENCES AFFECTING GOVERNMENT, ETC. 99 a conviction adjudging the defendant guilty of the several offences therein enumerated, and condemning him " for his said offences " to but one penalty, is bad ; (e) and a convic- tion against two jointly is bad, nor can one penalty be awarded against two jointly, and such a conviction cannot be amended. (/) A conviction will lie against a partner alone foi selling liquor without license, lor all torts are several as well as joint, (g) When a conviction concludes contra formam statuti, it should first show something done which is contrary to the statute, and the conclusion should follow properly from the premises, otherwise a criminal charge would contain no certainty at all. (A) A conviction under 40 Geo. III., c. 4, for selling liquor without license, was quashed, because, among other reasons, it directed the defendant to pay the costs of the prosecution, without specifying the amount. {%) But it was no objection, under the 29 & 30 Vic, c. 51, s. 254, that the costs of con- veying the defendant to gaol, in the event of imprisonment in default of distress, were specified, {j ) it is no ground for quashing a conviction that the informa- tion stated the offence to be " selling liquor without license without the word "spirituous" or other word descriptive of the quality of the liqu ^r ; (]c) but it has been doubted whether such a clause would be sufficient in the conviction. (/)• It is no objection to state the offence as selling to divers per- sons unknown to the informant, provided sales to particular persons be proved ; (m) at any rate, if no objection be taken by the prisoner to the variance ; (n) and the statute as to< variances (o) would likely aid such defect. •' i (e) Ex parte Hogue, 3 L. C. R. 94. {/) Bf-g. V. Sutton, 42 U. C. Q. B. (g) MulUna atid Bettamere, 7 L. C. J. 228. (A) Wilson V. OraybUl, 6 U. C. Q. B. 229, per Bobinton, C. J. (i) Bex V. Ferguson, 3 U. C. Q. B. 0. S. 220. (1) Beid V. McWhinnie, 27 U. C. Q. B. 289. ' (*) Beg. V. Harshman, 1 Puesley, 317. (/) Campbell v. FleweUing, 2 Fugsley. 403. . . ^ (m) Beg, v. Harshman, supra. "'-^ * (n)Ihid. (o) 32 ft 33 Vic, c. 31, 8. 6. >» -•:\ ,\«r= 100 THE CRIMINAL LAW OF CANADA. J^#i»i w The exact day oi selling need not be stated in the convic- tion, (p) Costs of coraniiiment or conveying to gaol can only be imposed when expressly authorized by statute ; and a convic- tion granting such costs without authority is bad. (q) So a conviction imposing, in default of fine, imprisonment withjut legislative authority, would be quashed, (r) Aconviction for selling, &c., contrary to the Acts of Assembly, and stating the titles of the Acts, is sufficiently certain, one statute rendering the selling illegal and the other imposing the penalty, (s) An order of justices to condemn liquor with packages, &c. is indivisible, and if bad in part, is bad altogether, (t) The Ontario Act 44 Vic, c. 27, s. 9, if constitutional, authorizes the destruction of the vessels containing the liquor as well as the liquor itself. Magistrates cannot, where a formr.l existing license is pro- duced, go behind it for the purpose of inquiring whether cer- tain preliminary requisites have been complied with l^efore its issue, (u) And the quashing of a by-law under which a certificate has been granted, does not, it seems, nullify a license issued under it (v) Where the licensee to sell "in and upon the premises known as," &c., cariied on the business of a tavern keeper in a house at the front of a deep lot, for which house such license was granted, was held properly convicted of selling liquor without license on the lot in rear, which had for many years been used as a fair ground, {w) It is within the couipetence of the local legislatures to impose penalties for selling liquor without license, though (p) Beg. v. Justices of Queen's, 2 Pugsley, 485. (q) Beg. v. Harshman, supra. (r) Ex parte Slack. 7 L. C. J. ft. («) Beg. V. Harshman, 1 Pagsley, 317. {t) Ex parte Breeze, 3 Allen, 390. («) Beg. V. Stafford, 22 U. C. C. P. 177. (v) Ibid. (w) Beg. ▼. Palmer, 46 U. C. Q. B. 262. ] convic- only be L convic- ) So a withjut ssembly, bain, one Imposing ajres, &c. (t) The uthorizes IS well as OFFENCES AFFECTING GOVERNMENT, ETC. 101 se 18 pro- ether cer- th Ijefore which a ullify a es known a house ense was without tars betn atures to tliough they may be restricted as t,o 'he modes of enforcing them, (x) But where the means provided for the recovery of such penal- ties are ultra vires, the statute is void only to the extent of such excess, (y) In tlie Province of Ontario the sale of liquor is at present regulated by R S. 0., c. 181, as amended by 44 Vic, c. 27. The former statute consolidates and amends the previous enactments on the subject, and makes ample pro- vision for amending and upholding convictions defective in point of form. It also contains clauses regulating the evidence necessary to be adduced in order to procure a conviction ; and gives, moreover, civil remedies to persons suffering as a result of the improper supply of liquor to relatives and others. Several cases have been decided under tliis statrte and those which it embodies, the results of which are given below. Under s. 52, R.S.O. 181, the previous offence need not be against the same license. That statute only authorizes the alternative of fine or ino prison men t for second offence, but gives no power to imprison at hard labor for non-payment of line ; and a conviction bad in this respect, cannot be amended under s. 77, as it cannot be said that any other punishment was intended, (z) A brewer, licensed as such by the Government of Canada under 31 Vic, c. 8, requires no license under above statute, (a) It was held that 40 Vic, c 13, the provisions of which are in the main embodied in the R. S. 0., c 181, must be con- strued either as providing that a wholesale license must be taken out in municipalities where the Temperance Act of 1864 was in force, for the quantities to be sold therein under that Act; and making a sale thereof without license a contraven- tion of sees. 24 & 25 of 37 Vic, c. 32, as a selling by wholesale without license ; or as providing in addition that a sale in such municipalities of the quantities prohibited by the fa;) Beg. v. McMillan, 2 Pugsley, 110. {y)Ibid. {z) Beg. V. Black, 43 U. C. Q. B 180. (a) Severn v. Beg., 2 S. C. B. 70 ; Beg. v. ScoU, 34 U. C. Q. B. 20. 102 THB CRIMINAL LAW OP CANADA. e=: tsd T*)mperance Act should be a contravention of the said sees. 24 .Sk 25 as a selling by retail without license, (b) A conviction for an offence falling within the Canada Temperance Act of 1864, improperly had under the Ont. 32 Vic, c. 32, was amended under 29 & 30 Vic, c 50. (c) And it has been held that, after a first conviction has been returned to the Sessions, and filed, the justices, if they think it defective, may make out and file a second, (d) Section 51 of R. S. O., c. 181, which imposes the penalties, omits all reference to a third offence (which was provided fur in the enactments of which it is a consolidation), though such an offence is referred to in sec. 73, which deals with the procedure, and in the forms of conviction given by the Act. A conviction, therefore, for a third offence was quashed, although the penalty imposed thereby might have been inflicted for a second offence, (e) This omission is, however, supplied by 44 Vic, c 27, s. 5. The servant of a keeper of an unlicensed tavern may be convicted of selling in his master's absence ; (/) and a married woman, the lessee of premises where her husband sold liquor, was held liable to conviction though not present when the sale took place, (g) The competency of the local legislature to delegate to the commissioners power to regulate the number of licenses, or otherwise to legislate with regard to the liquor traflQc, has been doubted, (h) The purchaser of liquors is a competent witness to prove its sale, (i) A conviction of a registered druggist for selling spirituous (5) Reg. v. Lake, 43 U. C. Q. B. 615. (c) Be Watts, 6 U. C. P. R. 287. (d) WUmn v. Graybiel, 5 U. C. Q. B. 227 ; Chancey v. Payne, 1 Q. B. 712. (c) Reg. V. Frawley, 45 U. (3. Q. B. 227. (/) Reg. V. WiUiams, 42 U. C. Q. B. 462 ; Reg. v. Hoioard, 45 U. C. Q. B. 346 ; Reg. v. Campbell, 8 U. C, P. R. 56. [g) Reg. v. Campbell, supra. (A) Ibid. : Reg. v. Hodge, 46 U. C. Q. B. 141 ; Robtrts v. Climie, 46 U. C. Q. B. 264. (() Ex parte Birmingham, 2 Pugslej k B. 664. '% mV \ aid sees. Canada he Oat. (. 50. (c) [las been ey think lenalties, dded for , though als with 1 by the quashed, ive been [lowever, may be I married d liquor, hen the ;e to the enses, or Sic, has ;o prove irituous Q. B. 712. C. Q. B. 46 U. C. OFFENCES AFFECTING GOVERNMENT, ETC. 103 ) and intoxicating liquors by retail, to wit, one bottle of brandy to one 0. S., at and for the price of $1.25 without having a license so to do as by law required, the said spirituous and intoxicating liquor being so sold for other than strictly medi- cinal purposes only was held valid, for the defendant was not as a druggist authorized to sell without license, and it was unnecessary for the prosecutor to show that he was not licensed, or to negative any exemption or exceptions, (j) But such conviction should aver that the sale was not made on a requisition for medicinal purposes, (k) Sec. 55 of R S. 0., c. 181, is within the competence of the local legislature. (/) An information under sec. 43, for selling liquor on Sunday, is for a crime within R. S. O., c. 62, so as to render the defendant incompetent as a witness, (m) Section 83 applies where the act complained of was done either by the occupant or by some other person, (n) Under the Canada Temperance Act, 1878, it has been held necessary to prove before the magistrate that the second part of the statute is in force, by the production of the gazette con- taining the proclamation ; (o) but it may well be doubted whether the court would not be found as a matter of law to take notice whether such proclamation has issued. Certiorari, on proceedings under this Act, is taken away, (p) except in cases of want or excess of jurisdiction, (q) It must be shown that the licenses have expired, (r) Costs may be awarded on conviction, (s) The Quebec License Act, 34 Vic, c. 2, is constitutional, (t) ( }•) Reg. V. Denham, 35 U. C. Q. B. 503. (k) Beg. v. WhUe, 21 U. C. C. P. 354. (I) Reg. V. Board/nan, 30 U. C. Q. B. 653 ; see also Beg. v. Afaaon 17 U. C. P. 534. (m) Reg. v. Boddy, 41 U. C. Q. B. 291. (») Beg. V. Breen, 36 U. C. Q. B. 84. ^ ' (o) Ex parte BusaeU, 4 Pugsley & B. 536. (p) Ex parte Orr, 4 Pugsley Jfc B. 67. (q) Ex parte Btmael, supra. (/•) Ex parte McDonald, 4 Pugsley, & B. 542 ; ex parte Wh\lte, 4 Pug sley A B. 652. («) /6irf., per F aimer, J. (0 Ex parU Duncan, 4 Bevue Leg. 228 ; 16 L. 0. J 188. 104 THB CmMINAL LAW OF CANADA. : / There was no penalty which could be inflicted on a tavern- keeper for allowing gambling in his house under the above statute ; («) this omission, however, is supplied by the 36 Vic., c. 3, s. 18. In an action for recovery of a fine under sections 245 and 24H of the above Act, it is sufficient to allege and prove the giving of drink by the candidate to an elector, without alleg- ing or proving the existence of any improper motive, (v) On a prosecution for a penalty for selling liquors without license, proof that the sa)e was made by a person in the de- fendant's shop in his absence, and without showing any general or special employn.^ut of such person by the defend- ant in the sale of liquors, was held in one case sufficient prima fade evidence against him. (w) Under the Quebec License Act, which constitutes a tri- bunal of two justices, it hab been held that a conviction by three is bad ; (a?) and a conviction for selling liquor in the bouse of another has, in the same province, been held bad. (y) No appeal lies to the Queen's Bench on a conviction by two justices under the Quebec License Act. {z) The quashing of a by-law under which a certificate has been granted, and license issued for the sale of spirituous liquors, does not nullify the license under the RS.O., c. 181 ; and a conviction for selling without license cannot, therefore, under these circumstances, be supported, (a) Under this statute, a license to sell spirituous liquors whether by wholesale or retail, is now necessary, either in the case of a tavern or a shop ; and in the case of a shop, it must not be consumed on the premises, or sold in quantities less than a quart. Therefore, the sale of a bottle of gin, without license, is contrary to law ; and it wouki seem that even if a («) Botvin V. Vigneux, 4 Bevue Leg. 704. (v) Philibert v. Lacerte, 3 Que. L. R. 162. (w) Ex parte Parks, 3 Allen, 237. (x) Be Paige, 18 L. C. J. 119. (y) Ibid. («) Be Pope, 16 L. C. J. 169. (o) Beg. V. Stafford, 22 U. C. C. P. 177. ^ 0F7ENCE8 ATrSCTINO OOYBRMMENT, ETC. 106 license be necessary only on a sale by retail, the sale of a bottle valued at sixty cents would be a sale by retail. (6) Under an Imperial statute it was held that the handing of beer, in a mug through an open window of the defendant's premises to a person who, after paying for it, drank it im- mediately, standing on the highway as close as possible to the window, was not a selling to be consumed on the premises where sold, (c) Where the conviction is for a fine — as a fine is imposed by 8. 51 for the first offence — it is not necessary to specify whether the conviction is for the first or second offence, as, from the punishment awarded, the court would imply the first offence ; and as the offence is selling liquor without license, it is not necessary to state to whom the liquor was sold. Section 68 of the Act provides that the magistrate shall proceed in a summary manner, according to the pro- visions, and after the forms, contained in and appended to the Act of the Parliament of Canada, entitled, " An Act re- specting the Duties of Justices of the Peace out of Sessions in relation to Summary Convictions and Orders." It was held, therefore, that the magistrate following a similar Act, in awarding imprisonment in default of distress and commit- ment, and conveying to gaol, was not acting illegally, and that il was also sufficient for the conviction to follow the forms given by same statute, (d) A conviction under this statute, alleging that defendant sold spirituous liquors by retail, without license, stating time and place, is sufficient, without specifying kind and quantity, as this is a particular act, and it is enough to de- scribe it in the words of the legislature, (e) Under the statute, the owner of a shop is criminally liable for any unlawful act done therein in his absence by clerk or assistant, as for in- (6) Beg. v. Strachan, 20 U. C. C. P. 182. (c) Re Deed, L. R. 3 Q. B. 8. {d) Reg. v. Strachan, 20 U. C. C. P. 182 ; Re AlRson, 10 Ex. 568, per Park, B.; Mqfat v. Barnard, 24 U. 0. Q. B. 499 ; Egginton v. Lictifiddy 6 E. & B. 1U3. (e) Re DoneUy, 20 U. C. 0. P. 166 ; Reg. v. King, 20 U. C. C. P. 246. i {q) Pirie and the CorporcUion of Dundaa, 29 U. C. Q. B: 401. (r) lUd. 407, per J. Wilson. J. («) Beg. V. Stain^', L. R. 1 C. C. R. 230, 39 L. J. (M. G.) 54. §5 I 116 THE CRIMINAL LAW OF CANADA. objects. They may be criminal, if part of a combination for the purpose of injuring or molesting either masters or men, or they may be simply illegal, as when they are the result of an arrangement depriving those engaged therein of the liberty of action, (t) The Trade Unions Act, 1872, (u) (35 Vic, c. 30) declares that the purposes of any trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful, so as to render any member of such trade union liable to a criminal prosecution for conspiracy, or otherwise By 35 Vic, c 31., D., every person who uses violence to any person, or any property, or threatens or intimidates any person in such a manner as would justify a justice of the peaAe, on complaint made to him, to bind over the person so threatening or intimidating to keep the peace, or who " molests" or " obstructs " any person in manner defined by the Act, with a view to coerce such'pei-son — being a master, to dismiss or cease to employ any workman; or, being a workman, to quit any employment, or return work before It is finished ; being a master, not to offer, or, being a work- man, not to accept, any employment or work; being a master or workman, to belong to, or not to belong to, any temporary or permanent association or combination; being a master or workman, to pay any fine or penalty imposed by any temporary or permanent association or combination ; being a master, to alter the mode of carrying on his busi- ness, or the number or description of any persons employed byhim — shall be guilty of an offence against the A'-t, and shal 1 beliable to imprisonment, with or without hard labor for a term not exceeding three months. Any person shall, for the p'lrposes of this Act, be deemed to molest or obstruct another person in any of the following eases : that is to say, (1) if he persistently follows such other {t) Farrer v. Ghae, L. R. 4 Q. B. 612, per Hannen, J. ; Hilton v. Echeraly, E. ft B. 47. (tt}35 Vic, c. 30. OFFENCES AFFECTING GOVERNMENT, ETC. 117 jemed person about from piece to place; (2) if he hides any tools, dlothes, or other property owned or used by such other person, or deprives him oi:, or hinders him in the use thereof ; (3) if he watches or besets the house or place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place, or if with two or more other persons he follows such other person, in a disorderly manner, in or through any street or road. By the 32 & 33 Vic, c. 20, s. 42, assaults in pursuance of any unlawful combination or conspiracy to raise the rate of wages, are punishable as misdemeanors. These statutes, in a great measure, assimilate the law as to trades unions and strikes to that existing in England. Several cases have been decided in England, which may assist in the construction of the Canadian statutes, (v) A by-law of Fredericton, to regulate the public market, required the stalls in the market to be leased annually, and declared that the lessee of a stall should receive from the mayor a license to occupy, and that any person occupying without a license should be liable to a penalty. In a prose- cution for the penalty the court held that the only question was, whether t\ defendant had a license, (w) Chmnperty and maintenance. — The offence of champerty is defined in the old books to be the unlawful maintenance of a suit, in consideration of some bargain to have part of the thing in dispute, or some profit out of it. (x) The object of the law is not so much to prevent the purchase or assign- ment of a matter in litigation, as such purchase or assign- (w) See Jteg. v. Byderdike, 1 M. & Rob. 179 ; Beg. v. Rowlanda, 2 Den. 364, 17 Q. B. 671 ; Reg. v. Duffield, 5 Cox, 404 ; Walsby v. AnUy, 30 L. J. (M. C.) 121 ; O'Nem v. Longman, 4 B. & S. 376 ; O'Nem v. Kroger, 4 B. ft S. 389 ; Reg. v. Druitt, 10 Cox, 692, 601-2 ; Reg. v. Shepherd, 11 Cox, 325 ; Reg. v. SeUiby, 5 Cox, C. C. 496 ; HUtm v. Eckeraly, 6 E. & B. 47-53 ; 24 L. J. Q. B. 353 ; Hornby v. Clme, L. R. 2 Q. B. 153 ; Reg. v. Hunt., 8 C. & P. 642 ; Reg. v. HewU, 6 Cox, C. C. 162. (vo) Ex parte AtUligan, 2 Allen, 683 ; see as to forestalling, Wilson v. Corporation of St. Caiharinea, 21 U. C. C. P. 462. (x) Carr v. Tannahill, 31 U. C. Q. B. 223, per Morrison, J. ; Kerr v. Bnmton, 24 U. C. Q. B. 306, per Hagarty, J. ; Stanley v. Jones, 7 Bing, 369. P3§ I / 118 THE CRIMINAL LAW OF CANADA. iiiant unth the object of maintaining and taking part in the litigation, {y) All the cases of champerty and maintenance ar^ founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce, {z) The principles of the law of maintenance are recognized and adhered to in the modern cases, (a) But the general doctrines o^' the law are largely modified, and restrained in their operation to cases where there is danger of oppression or abuse ; (b) or where a man improperly, and for the purpose of stirrinj; up litigation or strife, or of profiting by it, encour- ages others to bring actions, or make defences, which they have no right to make, (c) Champerty is punishable at common law. (d) It seems the Crown is bound by the law on this subject. In Smyth v. M'Donald, (e) it was held that the Crown must first eject the occupant before selling land of which it is not in possession ; and that neither the 32 Hy. VIII., c. 9, nor the ordinary principles of the common law, allowed the conveyance of such land by the Crown. (/) The plaintiff having recovered judgment against B. & P. agreed with the defendant that, if such judgment, or any portion of it, should be realized from property to be pointed out by him, the defendant should have one-third of the amount so realized The agreement further provided that " all costs that may be incurred in endeavoring to make the money to be payable by him (the defendant), if unsuccessful, and the amount of such costs to be the first charge on any proceeds, the net balance to be divided." Goods pointed out by the (y) Carr v. TannakUl, 31 U. C. Q. B. 223, per Morrison, J. (z) Ibid. 224, per Morrison, J. ; Prosser v. Edmonds, 1 Y. & C. 497. (o) Carr v. TannahiU, supra, 227, per Morrison, J. <6) Allan y. M'Heffey, 1 Oldright, 121, per Young, C. J. (c) Ibid. 122, per Young, C. J. {d) Scott V. Henderson, 2 Thomson, 116, per Haliburton, C. J. hold a claim to the dis- turbance of common right, (s) The 32 Hy. VIII., c. 9, as to selling pretended titles, is in force here, (t) The intention of this statute, and the ground of the principle of the common law, which is said to be fully in accordance with it, was that a person claiming a right which he knew to be disputed, should nut sell a mere law- suit, but should first reduce the right to possession and then sell, (u) A person cannot be convicted on this statute merely upon his own admission that he has taken a deed from a party out of possession. Some evidence aliunde must be adduced of the existence of such deed, (v) Buying an equity of redemption in a mortgaged property, of which the person selling has been out of possession for many years, is not buying a disputed title within the statute, (w) {q) Andergon v. Radcliffe, 7 U. C. L. J. 23 (Ex Chr.) E. B. & E. 806-819. (r) Dickenson v. BurreU, L. R. 1 Eq. 337. («) EliwU V. SichardiKm, L. R. 5 C. P. 748, per WUks, J. it) Ante p. 8. {u)RoMq. t. y. Meffer8,9V.C.Q. B. 288, ]per Bobmson, C.J. (v) Aubrey q. t. v. SmUh, 7 U. C. Q. B. 213. (u») M'Kenme v. MiUer, 6 U. C. Q. B. O. 8. 459. 122 THE CRIMINAL LAW OF CANADA. In the province of Ontario by the R. S. O., o. 98, s. 5, the 32 Hy. VI II., c. 9, is to some extent repealed, and a person selling a right of entry is protected from the penalties imposed by the 32 Hy.VIII., c. 9 ; for he can no longer be looked upon as selling a pretended right, when the law allows such right to be the subject of legal conveyance, (x) But it would seem that the statute is only repealed to the extent of pe'rmitting a man to sell and convey a right of entry which is actually subsisting in himself, and that the sale of a pretended right which does not in fact exidt is still within the statute, (y) Moreover, the E. S. O., c. 98, applies only to rights of entry as on a disseizin, (z) The E. S. O., c. 110, s. 7, renders choses in action assign- able at law. This enactment conflicts in principle with the 32 Hy. VIII., c. 9, and it may be questioned whether a coa- viction would now be had under it. Bigamy. — It might be contended from the language of the 32 & 33 Vic, c. 20, s. 58, that it only applies to the case of a second marriage, and that the offence of polygamy, in its ordinary acceptation, is not comprehended within its provi- sions. Assuming that under this statute a person guilty of polygamy cannot relieve himself from the penalties attaching to bigamy, it may be a question, in the event of a plurality of marriages, to which of them proof should be directed; whether any two of them, or the first and second, or all. The 4 Ed. VI., stat. 3, c. 5, and 1 Jac. I., c. 11, may perhaps apply here, except in so far as they are superseded by the Colonial Act. On trials for bigamy, the guilt or innocence of the de- fendant depends upon the legality of the first marriage ; and before the jury can convict him they must clearly see that a prior legal marriage has in fact taken place, (a) It seems {x)Baby q. t. v. Watsm, 13 U. C. Q. B. 531. (z) Hunt V. Biahop, 8 Ex. 675 ; Hunt v. Bemnant, 9 £x. 636 ; Betmett r. Herring, 3 C. B. K S. 370. (o) Breakey v. Breakey, 2 \J, C. Q. B, 363, per Bchinwn, C. J. OFFENCES AFFECTING GOVERNMENT, ETC. 123 right that if the marriage is voidable merely, it will sufiice to con- stitute bigamy, (b) It has been held that though the secoAd marriage would have been void, as for consanguinity or the like, the defendant is guilty of bigamy, (c) But the majority of the judges of the Irish Court of Criminal Appeal have held that to constitute the offence of bigamy, the second marriage must be one which, but for the existence of the previous marriage, would have, been a valid marriage, (d) This doctrine has been ver^ materially modified in a late case, (e) It is there laid down that it is the appearing to contract a second marriage, and the going through the cere- mony, which constitutes the crime of bigamy. (/) Where a person already bound by an existing marriage, goes through a form of marriage known to and recognized < by the law as capable of producing a valid marriage, for the purpose of a pretended and fictitious marriage, such person is guilty of bigamy, notwithstanding any special circum- stances which, independently of the bigamous character of the marriage, r^iay constitute a legal disability in the parties, or make the form of marriage resorted to inappli- cable to their particular case. Thus where the prisoner, having a wife living, went through the ceremony of mar- riage with another woman who was within the prohibited degrees of consanguinity, so that the second marriage, even if not bigamous, would have been void under the 5 & 6 Wm. IV., c. 54, s. 2, it was held that he was guilty of bigamy, (g) The material inquiry, therefore, in cases of bigamy, is as to the validity of the alleged marriages, and the evidence by which such validity may be established. (6) Reg. v. Jacobs, 2 Mood. C. C. 140 ; Arch. Cr. Pldg. 886. (c) Beg. V. Brawn, 1 C. & K. 144. (d) Beg. v. Fanning, 10 Cox, 411 ,* see also Beg. v. Clarke, Uml. 474 ; Arch, a Cr. Pldg. 887. f (e) Beg. v. Allen, ii^fra. (/) See Beg. v. Brawn, supra, 144, per Lord Denman ; Beg. v. Penton, 5 C. & P. 412. (0) Beg. V. Allen, L. R. 1 C. C. R. 367 ; Beg. v. Fanning, supra, diii^- , proved. 124 THE CRIMINAL LAW OF CANADA. ^ Under the Con. Stat. U. C, c. 32, s. 6, a copy of an ex- trl«t from the register of the marriage produced from the proper custody, if signed and certified in compliance with this clause, is sufficient evidence of the marriage, provided some proof, either direct or presumptive, be given of the identity of the parties, {h) Evidence of reputation, or the presumption of marriage, arising from long cohabitation, will not suffice on indict- ments for bigamy, but there mu§t be proof of a marriage m fact, such as the court can judicially hold to be valid, {i) The admission of the first marriage by the prisoner, un- supported by other testimony, is sufficient to support a con- viction for bigamy, {j) The prisoner's admission of a prior marriage is evidence that it was lawfully solemnized, {k) The first wife is not admissible as a witness to prove that her marriage with the prisoner was invalid ; {I) and she cannot be allowed to give evidence either for or against the prisoner. (/«) But, after proof of the first marriage, the second wife may be a witness ; {n) for then it appears that she is not the legal wife of the prisoner, (o) On an indictment for bigamy, the witness called to prov^ the first marriage swore that it was solemnized by a justice of the peace, in the state of New York, who had power to marry ; but this witness was not a lawyer or inhabitant of the United States, and did not state how the authority was derived, as by written law or otherwise. Although the court, in their individual capacity, knew that justices of (A) Re Hail's estate, 22 L. J. (Ch.) 177 ; re Porter's trusts, 25 L. J. (Ch.) 688 ; Arch. Cr. Pldg. 884. (t) Beg. V. SmUh, 14 U. C. Q. B. 667-8, per Robinson, C. J. ; Breakey v. Breakey, 2 U. C. Q. B. 353, per Robinson, C. J. ; and see doe dem Wheeler V. M^WUUams, 3 U. C. Q. B. 166. ( »■) Reg. V. Creamer, 10 L. C. R. 404. (k) Reg. v. Newton, 2 M. & Rob. 503 ; Reg. v. Simmonsto, 1 C. &; K. 164 ; Arch. Cr. Pldg. 885. (I) Reg. V. Madden, 14 U. C. Q. B. 588 ; 3 U. C. L. J. 106 ; Reg. v. Tvbbee,l U. C. P. R. 103. per Macaulay, C. J. (m) Reg. v. Bienvenu, 15 L. C. J. 141. (m) Reg. V. Tubbee, supra, 98. (o) Reg. V. Madden, supra, 3 U. C. L. J. 106, per Robinson, C. J. OFFENCES AFFECTING GOVERNMENT, ETC. 125 the peace had such power in the state of New York, and that the evidence given was correct, yet they held it in- sufficient, (p) The production and proof of a deed executed by the prisoner, containing a recital of his having a wife and child in England, and conveying lands in trust for them, is not sufficient evidence to prove a prior marriage, even when coupled with evidence of statements made by him at the time of execution to one of the trustees, to the effect that he had quarrelled with his present wife, and had a lawsuit with her ; that the place had been bought with his wife's money, and he wished it to go to her ; the trustees never having paid over anything to her, nor written to or heard from her. (q) In one case, where the prisoner relied on the first wife's lengthened absence, and his ignorance of her being alive, it was held that he must show inquiries made, and that he had reason to believe her dead, or, at least, could not ascer- tain where she was, or that she was living, more especially where as in this case he had deserted her, and this notwith- standing that the first wife has married again, (r) In another case, when it was proved that the prisoner and his first wife had lived apart for the seven years preceding the second marriage, it was held incumbent on the prosecution to show that during that tiiP" lie was aware of her existence ; and that in the absence of such proof, the prisoner was entitled to an acquital. (s) From these cases it would seem that the circumstances connected with the separation, affect materially the burden of proof. On an indictment for bigamy, it is incumbent on the prosecution to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date ip) Reg. V. Smith, 14 U. C. Q. B. 666. (q) Reg. v. Dvg, 29 U. C. C. P. 255. (r) Reg. v. Smiik; 14 U. C. Q. B. 666. («) Reg. V. Gurgerwen, L. R. 1, C. C. R. 1 ; 35 L. J. (M. C.) 58 ; Reg. v. Bienvenu, 15 L. C. J. 341 ; Reg. v. Ftntaine, 15 L. C. J. 141 ; see also Reg. V. Heaton, 3 F. & F. 819. S 126 THE CRIMINAL LAW OF CANADA. of the second marriage. This is purel}; a qui^stion of fact for the jury to decide on the particular circumstances of the case, and there is no presumption of law either that the party is alive or dead, (t) Therefore, where, on a trial for bigamy, it was proved that the prisoner married A. in 1 836, left him in 1843, and married again in 1847. Nothing was heard of A. after the prisoner left him, nor was any evidence given of his age. The court held that there was no presump- tion of law either in favor of or against the continuance of A.'8 life up to 1847, but that it was a question for the jury, as a matter of fact, whether or not A. was alive at the date of the second marriage, (u) But when the case is brought within the operation of the proviso in the 32 & 33 Vic, c. 20, s. 58, which exempts from criminal liability " any person mairvinj/ a second time, whose husband or wife has been ■J c* ' continually absent from such person for the space of seven years, then last past," there is no question for the jury, and the prisoner is exonerated from criminal liability, though the first husband or wife be proved to have been living at the time when the second marriage was contracted. By this proviso, the legislature sanctions a presumption that a person who has not bean heard of for seven years is dead; but the proviso affords no ground for the converse proposition, — namely, that when a person has been seen or heard of within seven years, a presumption arises that he is still living, (v) M The prisoner having a wife living, was married to another woman in the presence of the registrar, describing himself, not as E. R., his true name, but as B. R. There was no evi- dence to show that the second wife knew that his Christian name was misdescribed. It was held, nevertheless, that the prisoner was guilty of bigamy, for the presumption in favor of marriage clearly imposed the burden of proving the in- validity of the second marriage upon the prisoner, (w) (0 Reg. V. Lumley, L. R. 1, C. C. R. 196 ; 38 L. J. (M. C.) 86. hi) Ibid. (v) Reg. V. Lumley, L. R. 1 Q. C. R. 198, per Z/i«A, J. (10) R^. V. Rea, L. R. 1 C. C. R. 365. OFFENCES AFFECTING GOVERNMENT, ETC. 127 Where the prisoner had sucessively married A., B., C. and D., on an indictment foi marrying D., C. being then alive, it was held that, whether or not any evidence of the fact were offered, it was for the jury to gay whether A. was living at the time of the prisoner's marriage with C. (x) The common and statute law of England in relation to marriage, as existing at the time of the enactment of the 32 Greo. III., c. 1, was introduced by this^ statute. The canon law, so far as it was part of the law of England at that time, was also introduced, with the 26 Geo. II., c. 33 ; 25 Hy. VIII., c. 22; 28 Henry VIII, c. 7; 28 Henry VIII, c. 16; and 32 Henry VIII., c. 38 ; so far as they remained in force in England, (y) Before the 26 Geo. II, c. 33, clandestine marriages, though not void, were illegal, and subjected the parties to ecclesi- astical censure : ?. e., all marriages were required to be cele- brated in facie ecclesice, and by banns or license, or if a minor,, by consent of parents, otherwise they were voidable in the ecclesiastical courts. Such marriages were rendered void by this statute, but the 11th clause thereof, in jvhich the avoid- ing provision is contained, does not apply here. It is there- fore illegal in this country, as it was in England before the 26 Geo. II., c. 33, to marry by license, where both or either of the parties are under twenty- one, without the consent of parents or guardians. But such marriages are not absolutely void. They are, however, irregular, (z) The Imp. Act 5 and 6 Wm. IV, c. 54, is one of convenience and policy, and does not expressly, or by necessary intend- ment, extend to the colonies. It is, therefore, not in force here. This statute avoids all malrriages celebrated between persons within the prohibited degrees of consanguinity; and, under it, a marriage by a man with the sister of his I (x) Rex V. WiUthire, L. R. 6 Q. B. D. 366. (y) Hodgim v. McNeil, 9 U. C. L. J. 126, per Efiten, V.-C. ; 9 Grant, 305 ; Reg. v. Roblin, 21 U. C. Q. B. 367 ; see 9 U. C. L. J. 1, as to the Eng- lish marriage laws, when the 32 Geo. III., c. 1, was passed. (z) Hodgina v. McNeil ; Reg. v. Roblin, awpra. 128 THE CRIMINAL LA.W OF CANADA. !'; deceSpsed wife is absolutly void, (a) though solemnized abroad between British subjects, in a country by the law of which the marriage would have been valid. (&) This doctrine does not apply here ; consequently the marriage of a man with the sister of his deceased wife is not void, (c) To render a marriage contracted by banns invalid, it must be contracted with a knowledge by both parties that no true publication of banns has taken place, (d) It seems that if parties are married by banns, it is no objection that they are under age ; at all events, such was the law in England prior to the 26 Geo. II., c. 33. (e) As the publication of banns in the open manner required gives parents and guardians timely notice of the intended mar- riage, and an opportunity of forbidding it, so that, if they make no effort to prevent it, their consent may reasonably be assumed, (/) it would not seem unreasonable to hold that the marriage by banns of a minor should be valid. Where banns have been published, and no dissent been expressed by parents or guardians at the time of publication, the husband being under age does not make the marriage void, even by the English Marriage Act 26 Geo. II., c, 33. (g) It is not necessary that marriages should be solemnized in a church, or wi'.ihin any particular hours, (h) The Imp. stat. 28 and 29 Vic, c. 64, declares that colonial laws establishing the validity of marriages shall have effect throughout Her Majesty's dominions. The 11 Geo. IV., c. 36, cured defects in the form of marriages solemnized by justices of the peace before the pjssing of the Act. (i) The 18 Vic, c 129, indicates clearly that the former statute was not intended to operate retrospectively, except . (a) Reg. v. Chadwick, II Q. B 173 ; 17 L. J. (M. C.) 33. (b) Brook v. Brook, 3 Smale & O. 481. (c) Hodgina v. McNeil, 9 Grant, 305 ; 9 U. C. L. J. 126. (rf) Reg. V. Rea, L. K. 1 C. C. R. 3rt5, per KeUy, C. B. ; Rex v. 4 B. & Ad. 640 ; Tongue v. Tongue, 1 Moore, P. O. cases, 90. {e) Rex V. Inhah. Hodnetts, 1 T. R. 99, per Lord Mansfield. ( f) Reg. V. Roblin, 21 U. C. Q. B. 454, per Robinson, G. J. (g) Reg. v. Seeker, 14 U. C. Q. B. iuOi. (h) Reg. v. Seeker, supra ; Con. Stat. U. C, c. 72, s. 3. ,(t) Doe dem. Wheeler v. McWiUiams, 2 U. C. Q. B. 77. Wro.nton, } OFFENCES AFFECTING GOVERNMENT, ETC. 129 in the case of marriages solemnized by pe^'sons who before that Act had authority to solemnire marriage. The 11 Geo. IV., c. 36, had two distinct objects, — first, to remove difficulties which might arise in consequence of marriages havinpf been irregularly performed by persons who had authority to marry; and, secondly, to confer authority to solemnize marriages upon ministers of certain religious bodies, whose ministers had no such authority before that Act was passed. The Act has retrospective force as to the latter object only, {j) The 23 Vic, <'.. 11, and 24 Vic, c 46, confirm and legalize certain marriages therein mentioned. Chaptei-s 46 and 47 of the 25 Vic. contain certain provisions as to registering marriages and the offences connected therewith. Marriages contracted in Ireland between members of the Church of England and Presbyterians celebrated by ministers not be- longing to the Church of England are legalized by the Imp^ stat. 6 & 6 Vic, c. 26, and such marriages celebrated before that Act was passed are legal marriages in this country. (Jc) A writteu contract is not essential to the validity of a Jewish marriage, which has been solemnized with all the usual forms and ceremonies of the Jewish service and faith. Such mar> riage is valid, though there exists in relation to it a written contract which is not produced. (/) A case has been decided in Quebec as to the marriage of a Lower Canadian by birth with a squaw of the Cree nation, (m) In this case it was held {inter alia) that a marriage contracted where there are no priests, no magistrates, or civil or religious authority, and no registers, is valid, th3ugh not accompanied by any re- ligious or civil ceremony. An Indian marriage between a Christian and a woman of that nation or tribe, is valid, not- withstanding the assumed existence of polygamy and divorce {}) Pnngk v. AUan, 18 U. C. Q. B. 578, per BobinooH, C. J. (k) Breakey v. BreaJeey, 2 XJ. C. Q. B. 349. {I) Frank v. Carton, 15 U. C. C. P. 136. (m) Connolly v. Woolrich, 11 L. C. J. 197. 130 THE CRIMINAL LAW OF CANADA. at will which are no obstacles to the recognition by our courts of a marriage contracted according to the usages and cus- toms of the country ; and an Indian marriage, according to the usage of the Cree country, followed by cohabitation and repute, and the bringing up of a numerous family, will be recognized as a valid marriage by our courts, (n) A marriage in a foreign country between persons not being British subjects, if invalid there, must be held invalid in this country, though the parties have done all in their power to make it a valid legal marriage, (o) The age of consent to maniage in a woman is twelve, (p) and for a man fourteen. If a boy under fourteen, or a girl under twelve contracts matrimony, it is void, unless both husband and wife consent to and confirm the mairiage after the minor arrives at the age of consent, (gi) In an indictment for bigamy committed in the United States, it is ne'cessary that the indictment should contain alle- gations that the accused is a British subject ; that he is or was resident in the province, and that he left it with intent to commit the offence, (r) The words, "or elsewhere," in the 32 & 33 Vic, c. 20, s. 58, extend to bigamy committed in a foreign jurisdiction, (s) It is immaterial whether the second marriage takes place in Canada or in a foreign country, pro- vided, if the second marriage take place out of Canada, the accused be a subject of Her Majesty, (t) A soldier convicted of bigamy is not thereby discharged from military service. (») It has been held that, under the 65 Geo. III., c. 3, a writ of exigi facias against a person against whom an indictment for bigamy has been found at the assizes, will be awarded by this court upon the application of the prosecutor, without its being applied for by the attorney-general, (v) (n) Connolly v. Woolrick, 11 L. C. J. 197. (o) Harris v. Cooper, 31 U. C. Q. B. 182. ip) Beg. V. Bell, 15 U. C. Q. B. 287-9. iq) Beg. v. Gordon, R. & R. 48 ; Arch. Cr. Fldg. 886. \ (r) Beg. v. Mcf^uiggan, Rob. Dig. 123-4. {8) Ibid. {t) See sec. 58. (It) Beg. T. Creamer, 10 L. C. R. 404. (v) Bex V. Elrod, Taylor, 120. OFFENCES AFFECTING GOVERNMENT, ETC. 131 Libel. — ^A liVel upon an individual is a malicious defama- tion of any person made public, either by printing, writing, signs, or pictures, in order to pro/oke him to wrath, or to expose him to public hatred, contempt, or ridicule, {to) « Wherever an action will lie for a libel, without laying special damf>.ge. an indictment will also lie. (a;) An action for libel lies against a corporation aggregate where malice in law may be inferred from the publication of the words, (y) It would seem also that a corporation may be indicted by its corporate name, and fined for tba publication of such libel, (z) and an action for libel may be brought by one cor- poration against another, {a) A joint action may be main- tained against several persons for the joint publication of a libel, {b) It seems also that an indictment or information will lie against all persons concerned in the joint publication of a libel, (c) The Imperial statute 32 Geo. III., c. 60, is in force in Canada, and consequently it is for the jury to say whether under the facts proved there is a libel, and whether the de-^ fendant published it. (cc) Where the defendant published the following of and con- ceming the plaintiff, — " Caution : To all persons who may be entering into any arrangements with J. M. C. for his self- action .attle and stock pump, who claims to have patented the same in April last, I wish by this notice to caution the public against having anything to do with Cousins' or his pumps, it being an infringement on my patent, which wa& obtained by me in 1868. I intend to prosecute him imme- diately. Beware of the fraud and save costs," — it was held that this publication disclosed a libel on the plaintiff person- (w) Arch. Cr. Pldg. 867. (x) Arch. Cr. Pldg. 857 per Macaulay, J. (y) Whitfield v. 8. E. Ry. Co., 4 U. C. L. J. 242 ; (a) B. C. By. Go. v. Broom, 6 Ex. 314 ; Arch. Cr. (a) L'InstUut Ganadien v. Le Nouvedu Monde, 17 L. C. J. 296. (ft) Brown v. Hirley, 5 U. C. Q. B. 0. S. 734. (c) Ibid. : Rex t. Bti\field, Burr. 980 ; 6 Mod. 167.^ (ec) Reg. v. Dougall, 18 L. C. J. 85. Stanton v. Andrews, 5 U. C. Q. B. O. S. 229, E. B. & £. 115; Pldg. 7. 9 §3 I i;?2 THE CKIMINA.L LAW OF CANADA. ally, in the caution to all persons about to enter into arrange- ments with the plaintiff for his pumps, against having any- thing to do with plaintiff or his pumps, and in the words ** beware of the fraud," in relation to the infringement of the patent, (d) Where the plaintiffs were manufacturers of bags, and manufactured a bag which they called the " bag of bags ; " and the defendant printed and published concerning the plaintiffs and their business the words following : " As we have not seen the bag of bags, we cannot say that it is useful, or that it is portable, or that it is elegant. All these it may be. Bat the only point we can deal with is the title, which we tiiink very silly, very slangy, and very vulgar, and which has been forced upon the notice of the public ad naiiseam." It was held on demurrer (by Mellor and Hannen, J.J.) that it was a question for the jury whether the words did not convey an imputation on the plaintiffs' conduct in their business, and whether the language went beyond the limits of fair criticism ; by Lush, J., that the words could not be deemed libellous, ■either upon the plaintiffs, or upon the mode of conducting their business, (e) The defendant published in a newspaper an article respect- ing the plaintiff as inspecting field-officer of volunteers and militia, in which, after referring to a recent inspection of a particular battalion, and stating that it was not often that " an example of swearing and drunkenness was set by the oflBcers to their men," it was said it was very little to the plaintiff's credit that " he appears before the volunteers as a transgressor without apology of those laws of discipline and good conduct, the observance of which he so strictly enjoins." In another part, it was said, " we have been for some time aware that the plaintiff was often incapable of attending to his duty here and elsewhere, and now that his evil habits appear to be entirely beyond his control, it is high time for (d) OoMiM r. MerriU, 16 U. C. C P. 114. (e) Jfnner v. A'BeckeU, L. R. 7 Q. B. U. OFFENCES AFFECTING GOVERNMENT, ETC. 13% jpect- and of a that the the time the head of the department to deal with the case." Per Draper, C. J., the publication complained of, without the aid of any inuendo or explanation, is libellous. (/) To charge a man with ingratitude is libellous, and such charge may also be libellous, notwithstanding that the fact» upon which it is founded are stated, and they do not support the charge. (^) A written paper charging the plaintiff with having wrong- fully taken the defendant's logs, sawing them up and selling the lumber, is libellous, without any averment or proof that lai-ceny w..s thereby imputed, {h) So a written paper, charging the plaintiff, an attorney, with being governed entirely by a craving after his own gains, without regard to the interests of his clients, and reckless of bringing them to ruin, is libel- lous, (i) But it is not libellous to write of a man that his outward appearance is more like that of an assassin than of an honest man. (/) The publication of any obscene writings is unlawful and indictable^ (k) The test of an obscene publication is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. (I) It is no defencv^ to an indictment for such a publication that the object of the party was laud- able ; (m) for, in case of libel, the law presumes that the party intended what the libel is calculated to effect (n) It is now well established that faithful and fair reports of the proceedings of courts of justice, though the character of individuals may incidentally suffer, are privileged, and that for the publication of such reports the publishers are (/) BareUo v. Pirie, 26 U. C. Q. B. 469. ig) Cox V. Lee, L. R. 4 Ex. 284. {h) Connick v. Wilson, 2 Kerr, 496. (i) Andrews v. Wilson, 3 Kerr, 86. U) Lang v. Gilbert, 4 Allen, 445. (A) Jieg. V. Hicklin, L. R. 3 Q. B. 360 ; 37 L. J. (M. C.) 89. (0 Ibid. 371, per Cockbum, C. J. (m) Ibid. in) Reg. v. Atkinson, 17 U. C. C. P. 304, per/. Wilson, J. 134 THE CRIMINAL LAW OF CANADA. ii I neither criminally nor civilly responsible, (o) The immunity thus afforded in respect to the publication of the proceedings of courts of justice rests on a twofold ground : First, the occasion is such as repels the presumption of malice, for they are published without any reference to the individuals con- cerned, and solely to afford information to the public for the benefit of society. The other and broader principle on which this exception to the general law of libel is founded is, that the advantage to the community from publicity being given to the proceedings of courts of justice is so great, that the occasional inconvenience to individuals arising from it must yield to the general good, (p) As to the publication of ex parte proceedings of courts of justice, such as before magistrates, and even before the superior courts— as, for instance, applications for criminal informations — if an indictment were preferred for such pub- lication, it would probably be held that the criterion of the privilege is not whether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public, and innocent of all intention to do injury to the party affected, (q) As to the privilege of reporting legal proceedings, the dignity of the court cannot be regarded, but only the nature of the alleged judicial proceeding which is reported. For this purpose, no distinction can be made between a court pie protidre and the House of Lords sitting as a court of justice, But as to magistrates, if, while occupying the bench from which magisterial business is usually administered, they, under pretence of giving advice, publicly hear slanderous complaints, over which they have no jurisdiction although their names may be in'the commission of the peace, a report (o) Wason v. Walter, L. R. 4 Q. B. 87, per Cockbum, C. J. 38 ; L. J. mmQn lament », C.J.; yoood,i. OFFENCES AFFECTING GOVERNMENT, ETC. 139 In consequence of the decision in Stockdale v, Hansard, (e) the 31 Vic, c, 23, was passed. Section 4 of this Act provides that in any proceeding, civil or criminal, against a person for publishing any r2port, paper, vote, or proceeding, by or under the authority of the Senate or House of Commons, the court or judge may stay all proceedings, on production of a certificate, under the hand of the speaker or clerk of the Senate or House of Commons, shewing the authority for the publication!. (/) Where a presumptive case of publication, by the act of any other person, by his authority, has been established, it will be a good defence for the defendant to show that such publication was made without his authority, consent, or knowledge, and did not arise from want of due care or caution on his part, (g) i It would seem that s. 9 of this statute applies to private and personal libels only. {K) Members of parliament are neither civilly nor criminally liable for anything they may say in parliament, in the course of any proceedings therein ; and, from motives of the highest policy and convenience, ministers of the Crown cannot be held liable for any advice given to the Sovereign, however prejudicial such advice may be to individuals, (i) But prior to the decision in Wason v. Walter, (j) there was no authority that the publication of a debate in par- liament was privileged. In this case, it was held that a faithful report, in a public newspaper, of a debate in either house of parliament, containing matter disparaging to the character of an individual, which had been spoken in the course of the debate, is privileged, on the same principle as («)9A. &E. 1; 2P€r. &D. 1. ij) Stockdale v. Hansard, 11 A. & E. 297 ; 3 Per. & D. 346. (g)Con. Stat. U. C, c. 103, s. 13; and see Beg. v. Holhrook, L. R. 3 Q. B. D. 60. (A) Reg. v. Duffy, 2 Cox, 46. (») Dawhins v. Lord Paulet, L. R. 5, Q. B. 116-7, per MeUor, J.; BaealM ex parte Wason, L. R. 4 Q. B. 673. U) L. R. 4 Q. B. 73 ; 38 L. J. (Q. B.) 34. f^ Il 140 THE CRIMINAL LAW OF CANADA. an accurate report of proceedings in a court of justice is privileged — namely, that the advantage of publicity to the community at large outweighs any private injury resulting from the publication. The plaintiff presented a petition to the House of Lords, charging a high judicial officer with having, thirty years before, made a statement, false to his own knowledge, in order to deceive a committee of the House of Commons, and praying inquiry, and the removal of the officer, if the charge was found true. A debate ensued on the presenta- tion of the petition, and tlie charge was utterly refuted. That was held to be a subject of great public concern, on which a writer in a public newspaper had full right to comment, and the occasion was therefore so far privileged that the comments would not be actionable so long a8 a jury should think them honest, and made in a fair spirit, and such as were justified by the circumstances, as disclosed in an accurate report of the debate. (Jc) But all the limitations placed on the publication of the proceedings of courts of justice, to prevent injustice to indi- viduals, apply to parliamentary debates. A garbled or par- tial report, or of detached parts of proceedings, published with intent to injure individuals, will equally be disentitled to protection ; and the publication of a single speech in parlia- ment, for the purpose or with the effect of injuring an indi- vidual, will be unlawful. (/) But such a speech is privileged, if bona fide published by a mem ber, for the information of his constituents, {m) Whatever will deprive reports of proceedings in courts of justice of immunity will apply equally to a report of proceed- ings in parliament. Independently of the orders of the House, there is nothing (*) Waam v. Walter, L. R. 4 Q. B. 73 ; 38 L. J. (Q. B.) 34. {l) Ibid. 94, per Gockburn, C. J.; Bex v. Lord Abingdan, 1 Eap. 226 ; Bex V. Greevey, 1 M. & S. 273. (m) Davison v. Duncan, 7 E. & B. 229 ; 26 L. J. (Q. B.) 104 ; Wa$m v. Walter, cupra, 96, per Cockbum, C. J. OFFENCES AFFECTING GOVERNMENT, ETC. 141 justice is Y to the •esulting f Lords, y years adge, in >mmons, r, if the resenta- refuted. ^em, on •ight to ivileged ig an a ' spirit, isclosed of the io indi- ar par- id with bled to parlia- indi- • ileged, ion of irts of oceed- Dthing [>. 226 ; ascm V. unlawful in publishing reports of parliamentary proceed- ings, (w) It has been held that ministers of religion in the Province of Quebec are amenable to the courts of civil jurisdiction in the same manner and to the same extent as other persons ; and that an action of slander will lie against a lioman Catholic priest for injurious expressions regarding private individuals, uttered by him in his sermon, (o) When a party acts in good faith, and not oflBcially, in a matter of business, in which he has a personal interest, and is also employed by others, a letter written under such cir- cumstances, though it contains a term in its gravest sense libellous, is privileged, on account of his particular and legiti- mate connection with the subject of which he was writing, rebutting the presumption of malice ; and in the absence of evidence of actual malice, he could not be prosecuted for libel, {p) The bona fides is made out when the privilege is ascertained. The truth of the word.s is assumed to support the privilege, and the defendant is not called upon to prove it. (2) The privilege which a communication receives must result either from some right on the part of the defendant to say what is complained of, or from a sense of duty, public or pri- vate, legal or moral, under which the defendant is acting, (r) But where the violence of the language, or the manner of publication, is in excess of what the occasion justifies, the privilege is gone, (s) The proper meaning of a privileged communication is this : that the occasion on which the communication was made (n) Wason v. Walter, L. R. 4 Q. B. 96, per Cockbum, C. J. (o) Derouin v. ArchamhavU, 19 L. 0. J. 157 ; see also Brosaoit v. TurcoUe, 20 L. C. J. 141 ; Blanchard v. Richer, 20 L. C. J. 146. (p) Harma v. De Blaquiere, 11 U. C. Q. B. 310 ; Tench v. O. W. Ry. Go., 33 U. C. Q. B. 8 ; Ronaym v. l/ffood, 5 Revue Leg. 301 ; DureUe v. Cardinal, 4 Retme Leg. 232. (q) McCullough v. Mclntee, 2 £. ) Teach V. G. W. Ry. Co. 36 U. C. Q. B. 8. (to) PoUevin v. Morgan, 10 L. C. J. 98, per Badgley, J. (x) Dawkins v. Lord PauUt, L. H. 6 Q. B. 102, per CocJAum, C. J. OFFENCES AFFECTING GOVERNMENT, ETC. 143 ent pre- pon him ?fendaut [I, inde- ion WB& nsuring general intiff, a rections iaintirs ifices for jyees, it igh the 11 cases, ers him h cases, by him )tectioD ment of and to e com- ity but de with ion, the he libel ;e must Ithough BO Shaver ffawkms. . J. it may turn out to be unfounded, but the plaintifif must also prove the statement to be false as well as malicious, (y) Malice, in its legal sense, means a wrongful act done inten- tionally, without just cause or excuse, (z) By legal malice is meant no more than the wrongful intention, which the law always presumes as accompanying a wrongful act, without any proof of malice in fact, (a) For the purpose of proving express malice, the plaintiff may show that the libel is really untrue ; but this alone will not constitute express malice, but it may, along with other cir- cumstances, raise an inference that express malice exists, (b) Libellous expressions, used in a privileged communication, may be evidence of actual malice for the jury ; but if taken in connection with admitted facts, they are such as might have been used honestly and bona fide by the defendant, the judge may withdraw the case from the jury, and direct a. verdict for the defendant, (c) The defendant, in a privileged communication, described the plaintiff's conduct as " most disgraceful and dishonest." The conduct so described was equivocal, and might honestly have been supposed by the defendant to be as he described it. The court held that the above words were not of themselves evidence of actual malice, {d) The question is not simply whether the act or fact stated is true or untrue, but whether the defendant had reason honestly to believe the act or fact to have been as he repre- sented, (e) And the truth of the statement may not always be justification. ( /") (y) Mclntyre v. McBean, 13 U. C. Q. B. 5.34. See also McGvllough v. Melntee, 13 U. C. C. P. 43? ; Shaver v. Linton, 22 U. C. Q. B. 183. (z) Poitevin v. Morgan, 10 L. C. J. 97, per BadgUy, J.; MeU v.ntyr McBean, 13 U. C. Q. B. 542. per Robinson, C. J. (o) Waaon v. Walter, L. R. 4 Q. B. 87, per Gockbum, C. J. (6) McCullough v. McIntee, 13 U. C. C. P. 441, per A. WiUm, J. (c) SpUl V. Mavle, L. R. 4 Ex. 232. . (d) Ibid. (c) McGulhugh v. McIntee, 13 U. C. C. P. 441, per A. Wilson, J. ; Har- rison V. Bush, 6 E. & B. 344. (/) Petrin v. Larochelle, 4 Pevue Leg. 286 ; Peg. v. Dougall, 18 L. C. J. 85 ; but see as to truth in actions against public officers, Oenest v. Normand, 5 Pevue Leg. 161. 144 THE GBIMINAL LAW OF CANADA. ^iilB: ii When express malice is shown, by proving the libel false as well as malicious, the defendant may still make out a good defbiice, by showing that he had good ground for believing the statement true, and acted honestly under that persua- sion, (g) And acts of the defendant occurring immediately after the publication may be given in evidence to show that there was no malice, (A) Before it can become material for the jury to inquire whether the deft car cfced maliciously or not, the plaintifT must satisfy thekt Ui^a He defendant's statements are not true, and that he 1 nv reasonable ground for believing them to be true, (i) It is matter of law for the judge to determine whether the occasion of writing or speaking criminatory language, which would otherwise be actionable, repels the inference of malice, constituting what is called a privileged communication, (j) If, at the close of the plaintiff's case, there is no intrinsic or extrinsic evidence of malice, it is the duty of the judge to direct a nonsuit or veriict for the defendant, without leaving the question of malice to the jury. But whenever there is evidence of malice, either extrinsic or intrinsic, in answer to the immunity claimed, by reason of the occasion, a question arises which the jury, and the jury alone, ought to determine ; (k) and the proper course then is for the judge to ask the jury whether the matter was pub- lished bona fide. If they come to the conclusion that it was, then it is for the judge to say whether, under all the circum- stances, it is or is not a privileged communication. (J) It is wrong to leave tc the jury whether an alleged libel is (g) McLityre v. McBean, 13 U. C. Q. B. 634. (V Reg. V. DougaU, 18 L. 0. J. 86. («) McfrUyrt v. McBean, 13 U. C. Q. B. 634. ( *') McGuHough ?. Mclntee, 2 E. & A. 390. (le) Shaver v. Linton, 22 U. C. Q. B. 183, per Hagariy, J. ; Cooke ▼. Wildes, 5 £. & B. 340 ; see also Poitevin v. Morgan, 10 L. C. J. 99, per Badgley, J. ; Lawleaa \. A. E. Cotton Co., L. B. 4 Q. B. 262 ; Mclntee. t. McCuilough, 10 U. C. L. J. 238 (in E & A) (i) Stace v. Griffith, L. R. 2 P. G. App. 428, per Lord Chelmsford. OFFENCES AFFECTING GOVERNMENT, ETC. 145 contained in an official document and privileged communi- cation, (m) In some cases the presumption of privilege is altogether conclusive, and the law will not allow any evidence to be adduced to remove or impeach it. The regular and established proceedings in parliament and in courts of justice are of this character, and no action for libel can be supported upon any part of their contents. The reasons given for this absolute privilege are, first, that the safety and welfare of the com- munity requires that all sUch public proceedings should be perfectly, unrestrained and free, and only subject to the authority and discretion of the tribunals in which they ttikr place; second, that such tribunals possess the power of expunging all defamatory matters, if irrelevant from Irit proceedings, and of obliging the offending party to maK" satisfaction, (n) When a communication is not absolutely privileged, i; i sufficient answer in point of law to say that it was malicious, and made without reasonable and probable cause, (o) The defendant, hearing that a tradesman had been hoaxed by a letter written in his name, and ordering a certain article, wrote to the tradesman a letter to the effect that, in his opinion, the letter was written by the plaintiff. It turned out that it was not ; but the jury found that the defendant sincerely believed that it was ; and the court held that, even if the letter was a libel, it was a privileged com- munication, (jp) The defendant having published in his newspaper a report read at a vestry meeting, containing a statement to the effect that cfirtain returns of the plaintiff, a medical man, to the registrar under the statute, were wilfully false, such report not having been published by the vestry, it was held that the publication was not privileged, (q) ^ (m) 8t€ux V. ffriffith, L. S. 2 P. C. App. 428, per Lord Chelmsfiyrd. (ft) Stanton v. Andrem, 5 U. C. Q. B. O. S. 221, et »eq.,per Sherwood, J. (o) Dawkins v. Lord Pavlet, L. R. 5 Q. B. 101, per Coekbum, C. J. (p) Crofi V. Stevtna, 8 U. C. L. J. 280 ; 7 H. & N. 670. {q) Popham v. Picttum, 8 U. C. L. J. 336 ; 7 H. & N. 891 ; 31 L. J. {Bx.) 13S. J J? :5s 146 THE CRIMINAL LAW OF CANADA. A churchwarden having written to the plaintiff', the in- cumbent, accusing him of having desecrated the church, by allowing books to be sold in it during service, and by turning the vestry room into a cooking apartment, the corresjxmd- ence was published without the plaintiff's permission, in the defendant's newspaper, with comments on the plaintiffs con- duct; it was held that this was a matter of public interest, which might be made the subject of public discussion, and that the publication was therefore not libellous, unless the language used was stronger than, in the opinion of the jury, the occasion justified, (r) A charge against the plaintiff, of wrongfully taking the defendant's logs, sawing them into lumber, and selling it, was contained in a letter written by the defendant to one M., an intimate friend of his, who was a near relative to the plaintiff, but in no way interested or concerned in business with either party, with the avowed object of defendant's availing himself of M.'s influence and good offices in his controversies with the plaintiff, and to warn the plaintiff and his mother against the consequences of lawsuits, and the alleged interested motives of his attorney. M. being absent from the country, the letter was opened by his agents and relatives, and became public ; it was held that this was not a privileged communication, (s) It seems the 67th section of 32 & 33 Vic, c. 29, will apply to cases of libel. In Hughes v. Linoi'hen, {t) to prove that libels declared on were written by the defendant, certain documents, admitted to be in his handwriting, were used as standards of comparison. The plaintiff called several witnesses, and, to support and strengthen such evidence, he produced seven anonymous letters, generally relating to the same matters as the libels declared on. This evidence was admitted to prove malice, and the letters were also used as a (r) KeUy v. Tinling, L. R. 1 Q. B. 699 ; 36 L. J. (Q. B.) 231. (a) Connick v. Wilson, 2 Kerr, 496 ; ibid. 617 ; and see Andrews v. Wilson, 3 Kerr, 86. (t) 32 L. T. Rep. 271. comparii was mac seven ai relevant objectioi not have Upon instance was not prosecut publicat This wai to rende In Qr to say tl his read( that whi report o: violence public ^ had to b was froi written public •renerall- tion fror effect stj And i mation i^ knowlec received that a c applican («) Reg. Steioart v. (v) Devi {w) Reg OFFENCES AFFECTING GOVEKNMENT, ETC. 147 comparison of the handwriting in dispute, and no objection was made by defendant's counsel. It was held that these seven anonymous letters were admissible — that they were relevant to the issue to show malice ; but that, if a proper objection had been made at the time of the trial, they could not have been received as evidence of handwriting. Upon an indictment for libel, publiancd at defendant's instance, in a newspaper, it appeared that the editor, wlio was not indicted, before inserting the libel, showed it to the prosecutor, who did not express any wish to suppress the publication, but wrote a reply, which was also inserted. This was held not such a defence for the parties indicted as to render a conviction illegal, (u) In Quebec it has been held no defence to an action for libel to say that the defendant, a newspaper proprietor, must give his readers all the information he can on public matters ; or that what was said of the plaintiff formed part of a general report of the proceedings at a nomination ; or, that scenes of violence took place at such nomination, concerning which the public was desirous of being informed ; or that the article had to be written in haste ; or that the information obtained was from pei-sons worthy of belief ; or that the article was written with the sole object of giving information to the public in the manner usually practised by newspaper. s generally ; or that the plaintiff had not demanded a rectifica- tion from the defendant; (v) or that a rumor existed to the effect stated in the article complained of as libellous, (w) And it is no answer to an application for a criminal infor- mation for libel, to say that the defendants had no personal knowledge of the matter contained in the alleged libels, but received them from persons whom theydeeined trustworthy; that a certain newspaper (naming it) was controlled by the applicant, who was an active politician, and had published a (m) Reg. V. McElderry, 19 U. C. Q. B. 168 ; see, as to justification, StetmH V. Rowktnda, 14 U. C. C. P. 485 ; HiU v. Hogg, 4 Allen, 108. {v) Devy v. Fahre, 4 Q. L. R. 286. (w) Reg. V. DougaU, 18 L. C. J. 85. •si O I 148 THK CRIMINAL LAW OF CANADA. number of articles violently attacking one S., who was a can- didate for a public office, and the libels in question were published with a view of counteracting the effect of these articles, and believing them to be true and without malice, (x) The courts in this country, following the English decisions, confine the granting of criminal informations for libel to the case of persons occupying an official or judicial position, and filling some office which gives the public an interest in the speedy vindication of their character, or to the case of a charge of a very grave (tr atrocious nature, (ij) Therefore, leave to the manager of a very large railway company to file a criminal information for libel was refused, (z) There should be no delay in making the application. Tlie complainant should come into court either during the term next after the cause of complaint arose, or so soon in the second term thereafter as to enable the defendant, unless prevented by the accumulation of business in the court, to show cause within that term ; and this without reference to the fact whether an assize has intervened or not. (a) The court, on such an application, is placed in the position of a grand jury, and must have the same amount of infor- mation as would warrant a grand jury in returning a true bill. A grand jury would not be justified in returning a true bill unless the libel itself were laid before them. There- fore, the application for a criminal information must be rejected, unless the libel is filed with the affidavit on which the application is based. (&) The denial on such an application should be as full, clear, and specific as possible, and all the circumstances must be laid before the court fully and candidly in order that they may deal with the matter, (c) Undei for libel Theu explain 1 are appi The doc applied < doubtful in the o inuendo and for i and pro\ Eiot- ance of together to assist them in nature, i violent s whether ful. iff) Thed is this upon SOI ience, ai purpose which t cute, (h) There rout. 1 assembb •f (x) Reg. V. Thompson, 24 U. C. C. P. 252. ly) Reg. v. WUaon, 43 U. C. Q. B. 583; but see Reg. v. Thompton, 24 U. C. C. P. 252. V (2) md. (a) Reg. v. WUkmgm, 41 U. C. Q. B. I ; Reg. v. KeUy, 28 U. C. C. P. 36. (6) Ex parU Quay, 8 L. C. R. 353. (c) Reg. V. Wmnson, 41 U. C. Q. B. 1. (d) Reg. (e) Some. {/) Stut WUaon, J. {g) Reg. {h)nnd. 0FFENCK8 AFPECTINC} GOVERNMKNT, ETC. U\f Under the Con. Stats. U. C, c. 103, a plea to an information tor libel muat allege the truth of all the matters charged, (d) The use of the inuendo in an indictment for libel is to explain the evil meaning of the defendant when the words are apparently innocent and inoffensive, or ambiguous. The doctrine of taking words in their mildest sense ia applied only when the words, in their natural import, are doubtful, and equally to be understood in one sense as iu the other, (e) It is for the court to say whether the inuendo is capable of bearing the meaning assigned by it, and for the jury to say whether that meaning was intended and proved. (/) JRiot — This offence is defined to be a tumultuous disturb- ance of the peace, by three persons or more assembling together, of their own authority, with an intent mutually to assist one another against any one who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlaw- ful. (ff) The difference between a riot and an unlawful assembly is this: the former is a tumultuous meeting of persons, upon some purpose which they actually execute with vio- lence, and the latter is a mere assembly of persons, upon a purpose which, if executed, would make them rioters, but which they do not execute, nor make any motion to exe- cute, (h) There is also an offence of a similar character, called a rout This offence ij>^ distinguishable from an unlawful assembly in this, that the parties actually make a motion (d) Reg. v. Moylan, 19 U. C. Q. B. 521. (e) Somers v. Howe, Holt, 39. (/) Sturt V. Blagg, 10 Q. B. 906 ; Anonymous, 29 U. C. Q. B. 462, per Wilton, J. (o) Heg. V. KeUy, 6 U. C. C. P. 372, per Draper, C. J. (A) Ibid.; Rex v, BiH, 6 C. & P. 154. s either *ent ten- B people eatening uld have alarm to subjects t>6 a pre- ult; and occasion, ry, 1 Lord w. Cr. 379 . Cr. Pldg become involved in a sudden aflfray, none are guilty but those who actually engage in it, for the breach of the fieace was not part of their original purpose, {q) But it seems to be immaterial whether the act intended to be done by the per- sons assembling be in itself lawful or unlawful, (r) Where a riot is proved to have taken place, the mere presence of a person among the rioters, even although he possessed the power of stopping the riot, and refused to exercise it, does not render him liable as one of the rioters, (s) In order to render him so liable, it must be shown that he did something by word or act, to take part in, help, or incite the riotous proceeding, {t) It is not necessary to constitute a riot that the Riot Act {u) should be read. Before the procla- mation can be read, a riot must exist, and the eflFect of the proclamation will not change the character of the meeting, but will make those guilty of felony who do not disperse within an hour after the proclamation is read, {v) An assemblage of persons to witness a prize fight is an unlawful assembly, and every one present and countenancing the fight is guilty of an offence, {w) By the common law, every private individual may lawfully endeavor, of his own authority, and without any warrant or sanction from a magistrate, to suppress a riot, by every means in his power. He may disperse, or assist in dispers- ing, those assembled, and stay those engaged in it from executing their purpose, as well as stop and prevent others whom he may see coming up fr6m joining the rest. It is his bounden duty to do this, and even to arm himself, in order to preserve the peace, if the riot be general and dangerous. If the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of a magistrate, (g) Russ. Cr. 381 ; Reg. v. Corcoran, 26 U. C. C. P. 134. (r)lhid. 380. .. J'^'1 («) Reg. V. Atldmon, U Cox, 330, per KeUy, C. B. ' M (t)/6irf. (u)31Vic.,c. 70. (v) Reg. V. Furzey, 6 C. & P. 81. {w) Reg. V. BeUingham, 2 C. & P. 234 ; Rey. v. Perktm, 4 C. & P. 637 ; Arch. Cr. Pldg. 842-3. Under these statutes, the party aggrieved by a forcible entry and detainer, or a forcible detainer, may proceed by complaint made to a local justice of the peace, who will summon a jury, and call the defendant before him, and examine witnesses on both sides if offered, and^ave the matter tried by the jury. (/) The party may, however, also proceed by action or by indictment at the General Sessions, (g) And if a forcible entry or detainer be made by three persons, or more, it is also a riot, and may be pro- ceeded against as such, if no inquiry has before been made of the force, (h) It has been held that the private prosecutor, on an indict- ment for forcible entry or detainer, cannot be examined as a witness, if the court may order restitution, (i) As this disability, however, rests solely on the ground of interest^ it is, no doubt, removed in Ontario, at least, by the Con, Stats. U. C, c. 32. If, since the forcible entry, the prose- cutor has been restored to possession, he may be a wit- ness. U) An inquisition taken before a justice is bad if it appears to the court that the defendant had no notice, or that any of the jury had not lands or tenements to the value of forty shillings, for the 8 Hy. IV., c. 9, expressly requires that persons who are to pass on such an inquisition should have lands of that value, (k) The notice is not required by the 8 Hy. VI., c. 9, but the uniform course of criminal proceed- ings renders it necessary that, before a person shall be found a criminal, he shall be called upon to make defence ; and, in addition to this principle, the courts have recognized the propriety of notice in this proceeding, on the ground that it would be wrong to put a person out of possession (/) Boswell and Loyd, 13 L. C. R. 10, per Maguire, J. ig) Rubs. Cr. 428. (h) Ibid. (i) Beg. v. Hughaon, Rob. Dig. 124 ; Beg. v. Beavan, Ry. * M. 242 ; Beg. V. WUliants, 4 Man. & R. 471 ; 9 B, & C. 549. (j) Beg. V. Hughson, supra, (k) Bex V. McKreavy, 5 U. C. Q. B. O. S. 620. : <0 :S3 6 £ i ■ '1.1 ^ 154 THE CRIMINAL LAW OF CANADA. 4tld coiD plaint of which he viouse or kuoMrJedgt). (I) On an indictment for forcible entry or detainer of land, evidence of title in the defendant is not admissible, (m) Where ^e defendants applied for delay, in order to give evidence of title, but on the prosecutor consenting to waive restitution in the event of conviction, they were compelled to go to trial, and were convicted, a w dt of restitution was afterwards refused, though it seems it would in any case have been improper to delay the trial for the reason urged, (n) An inquisition for a forcible entry, taken under 6 Hy, VIII., c. 9, must show what estate the party expelled had in the premises, and if it do not, the inquisition will be quashed, and the court will order restitution, (o) The 8 Hy. VI,, c. 9, was construed to authorize restitution only in cases where the person expelled was seized of an estate of inheritance. The 21 Jac. I., c. 15, extends the remedy to a tenant for years : and, in the opinion of Lord Coke, the latter statute will apply to a tenant lor a term less than a year, (p) When the inquisition finding a forcible entry is quashed, the court, upon the prayer of the party dispossessed under the justice's wri*- must award a writ of restitution to place him \i posse; lioa, q) It was formerly held that where tiie prosecutor had been examined as a witness, restitution should not be granted, (r) This wa& because the evidence Act, 16 Vic, c. 19, excluded any claimant or tenant of premises sought to be recovered in ejectment. On an indictment for forcible entry, containing two counts, one at common law and the other under the statutes, the prosecutor alleging that he had a term of years {') B^.'^. V. McKreaw/, 5 U. C. Q. B. 0. S. 626, per Robimon, C. J. (;r.' f,leg. v. Cokely, ?.3 U. C. Q. B. 521. , (n) Reg. v. Connor, 2 U. C. P. R. 139. / s :, \ (o) Mi'lell V. Thompson, 5 U. C. Q. B. O. S. 620. (p) /tix ', McKreavy, fmpra a26, per Robinwn, C. J. iq) 'Ud *>?6, pf i- Robins m, 0. J. (r) hi a >, Oonnor, 2 v. C.V.R. 139. OFFfii^'CES AFFECTINO GOVERNMENT, ETC. 155 years in the land, there was a general verdict of guilty ; a wiit of restitution was refused, it appearing that the lease of Uielaad liad expired, (s) Eestitution cannot be awarded to onte who never was in possession, or one who never has been dispos- sessed, (t) The Court of Queen's Bench had at common law no juris- diction to issue a writ of restitution, except as part of the judgment in an appeal of larceny, (u) But, by an equitable construction of the statutes, it has now a discretionary power to grant such writ, (v) A defendant, having been con- victed at the Quarter Sessions on an indictment for forcible entiy, was fined ; but that court refused to order a writ of restitution, and the case was removed into the Queen's Bench by certiorari, and a rule obtained to show cause why a writ of restitution should not be issued ; it was held in the dis- cretion of this court either to grant or refuse the writ ; and, under the circumstances, the verdict being against the charge of the learned chairman, and he having declined to grant the writ, and the prosecutor's case not being favored, it was refused, {w) The Court of General Sessions, where the indictment is found, may, before trial, award a writ of restitution ; but it is entirely in the discretion of the court to grant or refuse such writ, (x) But a justice out of sessions cannot award restitution on an indictment of forcible entry, or forcible detainer, fou' d before him by the grand jury, at the sessions. He can c ly do so if seized of the case out of sessions, and after inquiry before a jury, pn a regular inquisition. The statement that the justices in court, or out of court, may award a writ of restitution only holds to the extent above-mentioned, (y) (h) Rex V. Jackson, Draper, 53. • ' (t) Boswellancl Lloyd, 13 L. C. R. 11, per Maguire, J. (u) Beg. V. Lord Mayor of London, L. R.,4 Q. B. 371. (v) MitcMl V. Thompson, 5 U. C. Q. B. 0. S. 628, per Robinson, C. ^. (w) Reg. V. Wightman, 29 U. C Q. B. 211. (x) Boewell and Loyd, 13 L. C. R. 6.. • - • /« {y) Ibid. -s *. ' . ... . ' o 5 156 THE CRIMINAL LAW OF CANADA. if an indictment is brought at common law for a forcible entiy, it is only necessary to state the bare possession of the prosecutor ; but in such case no restitution follows the con- viction, (z) A mere trespass will not support an indictment for forcible entry. There must be such force, or sht)w of force, as is calculated to prevent resistance, {a) But where the defend- ant, and persons with him, having entered a dwelling-house through an open door, and one of the persons having been seen to push out the windows, the defendant himself taking them off" the hinges, it was held that a conviction for forcible entry should not be disturbed. (6) A wife may be guilty of a forcible entry into the dwelling- house of her husband, and other persons also, if they assist her in the force, although her entry, in itself, is lawful, (c) Nuisav-ces. — A nuisance is an injury to land not amounting to a trespass. F^iisances are of two kinds, namely, public or common, and private, {d) To constitute a public nuisance, the tl *ng complained of must be such as, in its nature or its consequences, is a nuisance, and an injury or damage to all persons who come within the sphere of its operation, though it may be in greater or less degree, {c) Throwing noxious rrifliter into navigable waters is a public nuisance, and the person guilty thereof is liable to an indict- ment for committing a public nuisance, or to a private action, at the suit of any individual distinctly and peculiarly injured. (/) So obstructions to navigable rivers are public nuisances, ijg) The coUectior of a !i:"iwd of noisy and disorderly people, to the annoyai-'fo of the r.p.ighDorhood, or outside grounds, in which entertainments, with music and fireworks, are given (2) Rex V. McKreavy, o U. 0. Q. B. 0. S. 629, per Sherwood, J. (o) Bex V. Smviyth, 1 M. & Rob. 165 ; Arch. Cr. Pldg. 849. Id) LUtle > ince, 3 U. C. C. P. 646, per Mcicaulay, C. J. (e) Jbid.; .eg. v. Meyers, 3 U. C. C. F. 333, per Macaulay, C. J. (/) Watson ^. City oj Twor^JLo Qae and Water Co., 4 U. C. Q. B. 16a (y) Grown and Ougy, 14 L. C. R. 213. OFFENCES AFFECTING GOVERNMENT, ETC. 157 for profit, is a nuisance, for which the giver of the entertain- ment is liable to an injunction, even although he has excluded all improper characters from the grounds, and the amusements within the grounds have been conducted in an orderly way, to the satisfaction of the police, (h) It 3eems that a person who is atinoyed by the noise of horses kicking in a stable contiguous to his dwelling, and by the stench from the manure, etc., cannot maintain an indict- ment to remove it. (i) All disorderly houses are public nuisances, and their keepers may be indicted. (/) And a house to which men and women resort for the purpose of prostitution, even where no indecency or disorderly conduct . is perceptible from the exterior, is a disorderly house, {k) . En general all open lewdness, grossly scandalous, is indict- able at common law, and it appears to be an established principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor. (/) The prisoners were convicted of indecently exposing their persons in a urinal, open to the public, which stood on a public footpath in Hyde Park, and the entrance to which was from the footpath : it was held that the jury might well find the urinal to be a public place, and that, therefore, the conviction was good, (m) And an indictment charging the prisoner with keeping a booth for the purpose of showing an indecent exhibition, and in another count w^^h showing for gain an indecent exhibition, and in a third for showing an indecent exhibition in a public ])lace, was held to show sufficiently an indictable offence, (n) By the 10 • iy) Reg. v. PaUon, 13 L. C. R. 311. (z) Beg. V. Hendry, 1 James, 105. ' • " (a) Beg. v. Dunlop, 11 L. C. J. 186. (b) Drew v. Baby, 6 U. C. Q. B. O. S. 240, per Bobinson, C. J. (c) Bex V. Pedley, 1 A. & E. 822 ; Beg. v. Stephens, L. R. 1 Q. B. 702 ; 35 L. J. (Q. B.) 251, (d) Bross V. Huber, 18 U. C. Q. B. 286, per Bobinson. C. J. 160 THE CRIMINAL LA.W OF CANADA. and order to pay a continuing fine until the removal of auch obstruction, was held bad, as unwarranted by any Act of Parliament, (e) Twenty years' user will not legitimate a public nui- sance. (/) The maxim that no length of time will legalize such nuisance generally holds ; {g) but as applied to a ques- tion of dedication, equivocal in itself, after a lapse of thirty years, without any public enjoyment, before or after suit, it forms a proper subject to be taken into consideration, {h) Highways exist both by land and water. In Ontario, those by land have accrued to the public by dedication of the Crown, in what is commonly termed allowances for roads in the original survey of towns and townships ; or by dedication of private individuals, or under the pro- visions of the statute law, or by usurpation and long enjoyment. Upon land, therefore, highways are estab- lished only by some positive act, indicating the object and its accomplishm'ent. They are, it may be said, artificially made, or only become such by acts in pais. It ia otherwise with navigable rivers and watercourses. They t e 7iatural highways, pre-existing and coeval with the first occupancy of the soil, and formed, practically, the first or original highways, in point of actual use. (i) Where the <3xistence of certain streets as public high- ways was shown by the work on the ground at the original survey by the Crown, and by the adoption, on the part of the Crown, of that work as exhibited on the plan thereof returned, which adoption was established by the disposition of lands according to that plan and survey : it was held that these streets thereby became public highways ; and although, prior to such adoption, the Crown would not have been bound by either plan or survey, after such adop- tion, it was. (j) (e) Reg. v. Huber, 15 U. C. Q. B. 589 (/) Reg. V. Brewster, 8 U. C. C. P. 208. ig) Reg. v. CroJis, 3 Camp. 227 ; 4 Bing, N. C. 183. (h) Rex y. Allan, 2 U. C. Q. B. O. S. 105, per Macaulay, C. J. (i) Reg. v. Meyers, 3 U. C. C. P. 352, per Macaulay, C. J. ij) Reg. V, Hunt, 17 U. C. C. P. 443, (in fi. & A.) OFFENCES AFFKCTING GOVEUNMENT, ETC. 161 J For a period of nearly fifty years, there had been a tra^ veiled road, irregular in direction and varied at times in its course, crossing the defendant s land, which road was not laid out by any proper authority, but used by the public at pleasure, owing to thu original allowances not having been opened. During two years only statute labor had been performed upon it, and when the regular allowances were opened, defendant obstruct(^d it, other similar roads in the neighborhood having been closed in the same manner. The court held that the road could not be considered a highway, for the evidence showed not a perpetual dedi- cation, but at most a permission to use until the proper allowance was opened, when, if not before, the defendant had a right to close it ; nor was it a highway under the 29 & 30 Vic, c. 51, s. 315, now superseded, for it could not be said that statute labor had been "usually performed" upon it ; and as it was, in fact, only a substitute for the regular allowance, it might fairly be treated as "altered" within the spirit of that clause when the allowance was open, (k) Where the defendant was convicted on an indictment charging him with having obstructed a " highway " on evidence which, as reported to the court, did not show that the alleged highway had been established by a plan, filed or signed by the owners of the adjoining lots, or by the general user of the public, it having been used by one or two persons only for a short time, or that any clearly defined portion of land had been marked off and used ; but there appeared to have been merely an open space, not bounded by posts or fences, over which the owners of the adjoining land had been in the habit of passing in the carriage of goods, wood, etc., to the rear of the premises ; it was held that there was not sufficient evidence to support the conviction, and it was therefore quashed. (/) It has {k) Reg. v. Plunkett, 21 U. C. Q. B. 536. (0 Reg. V. Ouellette, 15 U. C. 0. P. 260 ; see also Rex v. Sanderson, 3 U. C. Q. B. O. S. 103, as to similar indictment under 50 Geo. III., c. I. K ■'. - I IMAGE EVALUATION TEST TARGET (MT-3) A /M/., {./ ^ >. ^.% 'ii7 ^' ^^f^ y. ^ 4^ 1.0 I.I 11.25 12.5 m £f li£ 12.0 IJ4I 1.6 Hiotographic Sciences Corporation ^ v k*^' •SJ w^ ^ 23 WIST MAIN STRHT WllSTn,N.Y. MSM (716)t72-4503 ;\ 162 THE CRIMINAL LAW OF CANADA. l)een held, however, in New Brunswick to be unnecessary for the commissioners of hi|^hways in laying out streets under 5 William IV., c. 2, to put up fences or grade the road. It is sufficient if a nian can go upon the ground with their return and plan, and discover where the street is, its course, length and breadth, (m) The roads of joint-stock companies were held not public roads or highways, within the meaning of the old 22 Vic, c 54, s. 336. {n) Under Con. Stats. U. G. c. 54, s. 313, now repealed, the fact of the government surveyor having laid out a road in his plan of the original survey, would have made it a high- way, unless there was evidence of his work on the ground clearly inconsistent with such plan, (o) A public road, laid out in the original survey of crown lands, by a duly authorized crown surveyor, is a public highway, though not laid out upon the ground. After a road has once acquired the legal character of a highway, it is not in the power of the Crov/n, by grant of the soil, and freehold thereof, to a private person, to defeat the public of their right to use the road, (p) The defendant being indicted for overflowing a highway with water, by means of a mill dam maintained by him, objected that there was no highway, and could be no convic- tion, because the road overflowed, which was an original allowance, had been in some places enclosed and cultivated. It was used, however, at other points, and those who had enclosed it were anxious that it should be opened and travelled, which, they said, was impossible, owing to the overflow. The overflow was at other parts than those so enclosed. It was held by the court that the conviction was clearly right, and the 335th section of the 29 & 30 Vic, c. 51, now superseded, did not apply, because no other road had been in use in lieu (m) Beg. v. McOoioan, 1 Pugsley & B. 191. (n) Beg. v. Broum and Street, 13 U. C. C. P. 366. (o) Carriek v. Johnston, 26 U. C. Q. B. 69 ; Sfg. v. MeOowan, 1 Pugilejr & B. 191. (p) Beg. V. Hunt, 16 U. C. C. P. I4B. OFFENCES AFFECTING GOVERNMENT, ETC. 16:; of the proper allowance, nor had any road been established by law in lieu thereof, (q) The original public allowances for road made in the first survey of a township continued to be puljlic highways, not- withstanding a new road deviating from any such allowaiice might have been opened under the provisions of the statute 50 Geo. III., c. 1, or might have been confirmed as a highway by reason of statute labor or public money having be«ii applied upon it. (r) But where, in the original plan of a township, a piece of ground was laid out as a highway, which was subsequently granted by the Crown, in fee, to several individuals, and was occupied by them, and others claiming under them, for up- wards of thirty years, and never had been used as a highway, it was held that an indictment for a nuisance for stopping up that piece of ground, claiming it as a highway, could not be sustained, (s) Where the Crown granted a lot of land on the bank ot~ Lake Ontario, and along the bank of the lake, and to Lake Ontario, it was held that the Crown had power to grant the beach up to high-water mark ; and in this case the grant being to a private individual, and having conveyed to him the land to the water of the lake, there was no common or public highway along the beach, (t) The actual sea shore may be granted by the Crown, and then there is no highway over it : and even when ungranted, unless by dedication,^ there is no highway against the will of the Crown. It would seem that in grants of land in our waters having a river or lake boundary, the grant exteqds to the water, and there is no place between the land conceded and the water on which to place the highway, (u) A government survey will prevail in establishing a high- (q) Beg. v. Lees, 29 U. C. Q. B. 221. (r) SfMlding v. Bogera, 1 U. C. Q. B. 269. («) Bex V. Allan, 2 U. C. Q. B. O. S. 90. (0 Parker v. EUiott, 1 U. C. C. P. 470. (fi) Parker v. EUiott supra, 490, per S^Mtvan, J. 164 THE CRIMINAL LA.W OF CANADA. way against the right of a party in possession, to whom a patent afterwards issues, (v) A highway, of which the origin was not clear, had been travelled for forty years across the plaintiff's lot, the patent for which was issued in J 836. The municipality, in 1866, passed a b3'-law shutting up the road ; but no conveyance was ever made to the plaintiff; but the court held that the user for thirty years after the patent would be conclusive evidence of a dedication against the owner, and that such evidence was equivalent to a laying out by him, so that the road, under Con. Stat. U. C, c. 54, s. 336, was vested in the municipality, (w) Under 4 & 5 Vic, c. 10, the district council could not open a new road, except by by-law; and wherC; therefore, no by-law was shown, it was held that the road was not sufficiently established, and upon the evidence there was nothing to show dedication, (x) Merely opening or widening a street, for the convenience of the person doing it, or leaving land open where it is immediately adjacent to a highway, and permitting the public to use it, will not constitute a dedication, (y) A. being owner of a large tract of land, laid out a plot for a town at the mouth of the river B., upon the map of which town a road was marked off, leading along the edge of the river, to its mouth. The road was made originally at the expense of A., but afterwards repaired and improved by statute labor and public money, and holes filled up in the part upon which the obstruction complained of was erected. After indictment, and verdict of guilty, it was held that there was sufficient evidence of intention to dedicate the street by the plan, by user and the declamtion of the owner to estab- iv) Moun^oy v. Rea. 10 T. C. L. J. 122. (to) MyUon v. Duck, 26 U. C. Q. B. 61. (X) Reg. y. Ranki», 16 U. 0. Q. B. 304. {u) Baford y. Haynea, 7 U. C. Q. B. 464; and see R«g. v. Spence, 11 U.C. Q. B8I. OFFENCES AFFECTING GOVERNMENT, ETC. 1G5 lish a dedication, and that the verdjci of guilty was in accord'- auce with the evidence, (z) In order to prove that a way was, in fact, public, evidence was given of acts of user extending over nearly seventy years* but during the whole period the land crossed by the way had been in lease. The judge told the jury that they were at liberty, if they thought proper, to presume from these acts a dedication of the way by the defendant, or his ancestors, at a time anterior to the land being leased : and the court held the direction proper, (a) A public highway may be established in this country by dedication and user ; but if the question arises between the public and the owner of the land, in a newly settled part of the country, stronger evidence may be required than in a more settled and populous neighborhood. A right reserved to the Crown to enter on land at any time, and erect barracks, batteries, etc., does not prevent a dedication of a part of the land to the public for a highway, (b) There may, in certain cases, be a limited or partial dedi- cation of a road to the public. And a footway may be so dedicated, subject to the condition that the owners of the soil are to plough it up, such a right being considered reasonable, and not inconsistent with dedication, (c) So there may be a dedication of a way to the public, subject to a right of the owner of the land through which it passes to have a gate, at certain seasons, run across it. (d) The owner, who dedicates to public use, as a highway, a portion of his land, parts with no other right than a right of passage to the public over the lands so dedicated, and may exercise all other rights of ownership not inconsistent there- with ; and the appropriation made to and adopted by the («) Beg. V. Gordon, 6 U. C. C. P. 213. (a) WirUerboUom v. Lord Derby, L. R. 2 Ex. 316. (() JReg. V. Deane, 2 Allen, 233 ; Beg. v. Buchanan, 3 Kerr, 674 ; see as to dedication by the Crown, Cole v. MaxweU, 3 Allen, 183. (c) Arnold V. Btaker, L. R. 6 Q. B. 433 (Ex. Chr.); Mercer v. Wood- goU, L. R. 5 Q. B. 26 ; 39 L. J. (M. C.) 21, affirmed. (d) Bartlett v Pratt, 2 Thomson, 11. '§3 3 I let) THt: CRIMINAL LAW OF CANADA. public, of a part of the street, to one kind of passage, and another part to anc' her, does not deprive him of any rights, as owner of the land, which are not inconsistent with the right of passage by the public, (e) In order to constitute a valid dedication to the public of a highway, by the owner of the soil, it is clearly settled that there must be an intention to dedicate, an animus dedicandit of which the user by the public is evidence, and no more ; and a single act of interruption by the owner is of much moi-e weight upon a question of intention than many acts of enjoym'^nt (/) Adoption by the public, and acquiescence, at least, if not user, are most material ingredients to constitute a binding dedication, (g) The intention of the party to dedicate must be clear, and time is considered an essential ingredient. The a(it or a.ssent of the public must be manifest and complete, and «ven then a subject cannot, by any spontaneous act of Appropriation, impose a highway upon the public. If a highway, the public become bound to repair it, and, con- sequently, their adoption or assent becomes impoi'tant. Such adoption and assent, in the case of allowances, are waived by the expenditure of public money in opening or repairing, the performance of statute labor, user, etc. ; but, without some evidence of adoption by user, or other mani- festation, an allowance for road at common law would con- tinue an allowance only, and not a road in fact, {h) A reservation inconsistent with the legal character of a dedi- cation would be void, (i) It seems there may be a public highway without its (e) St. Mary Newington v. Jacobs, L. R. 7 Q. B. 53, per MeUor, J. ( /) Mercer v. Woodgate, L. R. 5 Q. B. 32, per Hannen, J. ; HawJana t. Boxer, 1 Oldright, 423, per Des Barrea, J.; Leary v. Saunders, 1 Old- right, 17. (g) Rex V. Inhab. St. Benedict, 4 B. & A., 447 ; 12 Ea. 192 ; Hex v. Allan, i U. C. Q. B. O. S. 100, per Bobinson, C. J. {h) Ibid.l03A, per MacaulAy, C. J. ,(») Arnold v. Blaker, L. R. 6 Q. B. 437, p6r KeUy, C. B. OFFENCKri AFFECTING GOVERNMENT, ETC. 167 being a thoroughfare ; at all events, if a highway were stopped at one end so as to cease to be a thoroughfare, it would, in its altered state, continue a highway. The old doctrine that a highway implied a thoroughfare, has been so far modified by more recent decisions that there may be in a square in a great city, lighted and paved at the public expense, which the public, in fact, frequent, passing along its three sides, or to the houses therein situate, a highway in legal contemplation, although it is a cul de sac. (j) But where such highway is claimed by dedication, the acts or declarations relied on to support it must be clear and unequivocal, with manifest intention to dedicate. There is a difference between a cul de sac in the city and one in the country ; much stronger acts being required to establish a public highway by dedication in the latter than in the former. The mere acting so as to lead persons to suppose that a way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction, (k) The question of dedication or no dedication is a question of fact for the jury. (/) Whether a certain road constitutes a highway or not is generally a mixed question of law and fact, depending much upon circumstances and the peculiar features of each case, (m) The expenditure of public money on a road laid out thirt}'' feet wide can only make it a public highway to that extent, and will not have the effect of extending it to a highway four rods wide, (n) Where a road has been used as a public highway, and the usual statute labor of the locality done upon it from year to year, this will, in the absence of explanation, establish the road as a public high- , I U) Hawkins v. Baker, 1 Oldright, 419-24 ; Rex v. Marquis of Devonshire, 4 A. ft £. 713, per Patteson, J. (i) Ibid. 419 ; see also Poole v. Hushnaon, 11 M. ft W. 827 ; Bateman v. Black, 18 Q. B. 870 ; 21 L. J. Q. B. 406. (I) Bet/ord v. Haynes, 7 U. C. Q. B. 464 ; Reg. v. Gordon, 6 U. C. C. P. 213 ; Reg. v. G. W. R. Co., 12 U. C. Q. B. 261, per Robmion, C. J. (m) Rex V. Allan, 2 U. 0. Q. B. O. 8. 102, per Macaulay, J. (n) Basterach, v. Atkinson, 2 Allen, 439. 168 THK CRIMINAL LAW OF OANAD^ way. (o) But where it appeared from the evidence that statute labor had been performed on part of the road in question, but only to a limited extent, and not from time to time, so &s to show it was a road " whereon the statute labor hath been usually performed," it was held not suffi- cient to establish the road as a public highway under the 22 Vic, c. 54. (p) Where about fifteen .years before the finding of the indictment the township council had built a bridge on the road, and expended money thereon, and statute labor had been done thereon, it was considered under the authority of s. 313 Con. Sf at. U. C, c. 54, that it must be deemed a public highway, (q) Nuisances to highways are of two classes : positive, as by obstruction ; and negative, by want of sufficient repair. Where a railway company, bound by their charter to restore any highway intersected by their track "to its former state, or in a sufficient manner not to impai "« usefulness," con- structed their road acioss a street wi wits sixty-six feet wide, and connected the street again uy a bridge across the track forty feet two inches in width, it was held that the jury might with propriety find this to be a sufficient compliance with the Act, and that the defendants were not necei sarily guilty of a nuisance because the bridge was not of equal width with the street crossed, (r) But where a railway company, in passing over a highway, had lowered the highway at the point of intersection so as to make it inconvenient and dangerous, this was held to be an indictable nuisance, (s) Where a street ran into a road allowance, but did not cross it, and the defendants, being incorporated under 16 Vic, c 190, for gravelling the road, so far lowered the level, in order to get the grade prescribed by the statute, as to make the (o) Beg. V. Hall. 17 U. C. 0. P. 286, per J. Wilton, J. ip) Ibid. 282, per J. WUion, J. (9) Prouae v. Corporatmn af Marvpota, 13 U. C. C. P. 560. (r) R^. V. Q. W. Ji. Go., 12 U. G, Q. B. 250. («) Reg. V. O. T. R. Co., 17 U. C. Q. B. 165. OFFENCES AFFECTIN(} GOVERNMENT, ETC. 169' con- equal cross f^ic, c. order le the approach from this street impassable, it was held that they were justified in so doing, and not guilty of a nuisance in obstructing the street, or obliged to restore the approach, {t) A fire lighted by a wheelwright for the purposes of his business, within fifty feet of the centre of the highway, such fire being fed by lifting a lid in the wall on the outside of the premises, is not a public nuisance within the Trap. 5 & 6 Wra. IV., c. 50, s. 72 ; for to constitute the act an offence within this section, it must be shown that some injury is done to the highway, or some danger or annoyance is occa- sioned to passengers in using it. (u) "When there has been a dedication of a highway to the public, anything afterwards done by the owner interfering with that right of way is a nuisance, (v) The use of a velocipede on the sidewalk, though no one be near it, may be an obstruction within the provisions of a by-law that no person shall, by any vehicle, encumber or obstruct the sidewalk, (w) In Reg. v. Fralick, (x) it was held under the facts stated in thtou case that the defendant, being the lessee of the ord- nance department, had no right to obstruct the road leading to the Niagara Falls Ferry, and that he was guilty of an? indictable nuisance in so doing. But where an allowance for a road has never been opened as a public highway, the notice and order required by the 9 Vic, c. 8, not being given, an indictment for a nuisance in obstructing it cannot be maintained, (y) Where a waggon is left standing in the highway, the owner cannot exempt himself from liability by showing that the person injured thereby was drunk at the time of the accident ; for it cannot be permitted to a person to place any («) Beg. V. W. «fc. D. P. A O. R. Co., 18 U. C. Q. B. 49. («) Stinson v. Brouming, L. R. 1 C. P. 321 ; and see Hadley v. Taylor, •bid. 63. («) Mercer v. WoodgcUe, L. R. 5 Q. B. 31; per Blackburn, J. (w) Beg. V. Plummer, 30 U. 0. Q. B. 41. (38)11 U.C. Q. B. 340. (V) Beg. V. Purdy, 10 U. C. Q. B. 646 ; Beg. v. O. W. B. Co., 12 U^ a Q. B.2&0. *.:iS 3 I o I 170 THE CRIMINAL LA.W OF CANADA. obstruction that he pleases in the highway, and to consider himself responsible for no injury that may happen from it, «xcept to persons who are sober and vigilant in looking out for nuisances that they had no reason to expect to find there. («) If a road is laid out over land upon which a fence is standing, it is the duty of the commissioners of highways to remove the fence, and the owner of the land omitting to do so IS not punishable under the Act 5 Wm. IV., c. 2, s. 16, as for obstructing or encroaching upon a highway, (a) A conviction for obstructing a highway is bad unless it appears on the face of it that the place was a public highway, (h) Where a person has sold lots according to a plan in which a lane is laid out in the rear, he cannot afterwards shut up such lane, and the fact that he had previously conveyed portions of the laud comprised iu the lane would only affect so much as he had thus precluded himself from, giving up to the public, and would not entitle him to close up the whole, (c) C. owned township lot 32, and H. lot 31, adjoining it on the east. In 1856 H. laid out part of 31 with village lots, according to a registered plan, which showed streets called First, Second, Third and Fourth Streets, etc., running from east to west across the block to the east limit of lot 32. In 1858 C. laid out the east part of lot 32 by a plan also regis- tered, by which a street called Augusta Street ran north and south, along the east side of 32, and from it streets ran westerly numbered 1, 2, 3, 4, etc., corresponding to and a continuation of First, Second, Third and Fourth Streets on H.'s block, Augusta Street only intervening. Village lots had been sold on street 4 in G.'s block, but none in Fourth 5 174 THE CRIMINAL LAW OF CANADA,. A company having been formed under the provisions of the Joint-Stock Eoad Act in several townships, including the defendants, subsequently mortgaged said road to the counties of Lincoln and Welland, which coua^ies, at a later date, took an absolute conveyance, and passed a by-law, by which they assumed it as a county road. They aft-erwards passed a by- law, requiring the respective townships (the defendant's being one of them) through 'vhich the road passed to keep the same in repair. On the trial, the defendants were found guilty. On special case left to this court it was held that the road never vested in or became a county road within the meaning of the statute, but as one acquired by the county, as assignees of the road company, ana, as such assignees, they held the same, with all the rights and subject to all the duties and obligations which the law imposed upon the said company, which constructed it, and that the county had no power to divest itself of this obligation, and throw the duty of repair- ing on the defendants, (s) Where a road ran through the town of Whitby, and was part of a macadamized road, made by the Government, before the 13 & 14 Vic, c. 14, and afterwards transferred to the plaintiffs, it was held that, under this statute, the cor- poration of the tov/n were clearly bound to keep in repair that portion of it within their limits, {t^ Municipal corporations are, under the R. S. O., c. 174, s. 491, bound to keep all highways in the township in repair, and they have all necessary powers given to them for enabling them to perform that duty, (u) The Con. Stats U. C, c. 49, s. 84, provides that, after any road has been completed, and tolls established thereon, the company shall keep it in repair, (v) The Des Jardins Canal Co. having been indicted for not keeping in repair the bridge over their canal, where it («) Beg. V. The Corporation of Louth, 18 U. C. C. P. 615. {t) Port WhUby R. Co. v. Gorporatitm Town of Whitby, 18 U. C. Q. B. 40. («) Cofbeck V. Corporation o/Brant/ord, 21 U. C. Q. B. 276. {v) Caawell v. The St. M. «fc P. L. J. R. Co., 28 U. C. Q. B. 250, per 4. W%Unt that applied, A.) S. C. ; Reg. v. OFFENCES AFFECTING GOVERNMENT, ETC. 177 As to public highways in the navigable rivers of this country, the civil law prevailed in the whole Province of Quebec until the division thereof in 1792. The 32 Geo. III., c. 1, which introduced into the Province of Ontario the law of England as to property and civil rights, included the law as to highways on roads and in streams. After the passing of that Act, the civil law continued applicable to Quebec. Although, in this Province, we have adopted the law of England as to public highways, yet as in other cases * of our adoption of English laws, it only prevails here so far as applicable to the state and condition of this country. It is obvious that usage from time immemorial, which, in England, is a material ingredient in determining whether a river is a highway or not, could not be applied to any of the inland waters in Ontario, unless presumed in relation to the wandering tribes who may have roamed through this part of North America, before its ^discovery by European navigators, (dd) The 32 Geo. III., c. 1, s. 3, superseded the former law of Canada (or the civil law still prevailing in the Province of Quebec), and in introducing the common law of England must be taken proprio vigore to have rendered all navigable waters, existing at the time of its iniToduction,piiblici juris, and more especially if previously entitled to have been so regarded under the abrogated law. (e) This being a newly-discovered country, first occupied within the period of legal memory, and much of it even within living memory, in the application of the common law to it, positive usage immemorially, or from which prior usage immemorially might be inferred, cannot be necessary to render a naturally navigable water-course puhlici juris. When our inland streams are proved to be, in fact and in their natural state, navigable, they are prima facie public highways by water. In this light, user or non-user is only {dd) Beg. v. Meyers, 3 U. C. C. P. 313 et. seq., per Macatilay, C. J. (e) fbid. 346, per Maeaulay, C. J. :::: a I ,1 ! I 178 THE CltlMINAL LAW OF CANADA. material as auxiliary evidence, contributory to the inquiry whether a stream was or was not navigable from the be- ginning ; but it does not therefore follow that it is the only medium, or an indispensable circumstance in the proof. (/) In the application of the common law to Ontario, the fact of the natural capacity of the stream, and not the fact of usage, is most material to be considered. It must, of coursCr be determined by a court and jury, in each case as it arises, whether a water course ever was, or continued to be, a public highway, or a navigable stream, in the full and com- prehensive meaning of the term, and, therefore, a public easement. The question of law for the court being what constitutes a public or navigable river, and whether there was sufficient evidence thereof, or to repel it, the question of fact for the jury being, whether, according to the data laid down by the court, and the evidence, it was, in fact, so navigable, ig) As to the Province of Ontario, when our territory was devoted to settlement, the use of all streams practicable for navigation may be justly considered as dedicated to the public use, upon the principles of — ^first, the civil, and after- wards the common law ; so that, although not pre-occupied by public use, they are to be lo» >ked upon as open to the public, (h) In this country, streams which are not navigable con- tinuously, but interrupted by occasional rapids, rocks, shoals, or' other natural obstructions, causing what are called " portages," are, nevertheless, throughout those por- tions not thus impeded, undoubtedly highways, {i) Where a portion of water, forming part of Lake Ontario, at extraordinary periods when the water of the lake was pressed up at this particular part of it by strong winds, admitted of scowa passing over it, but the water was not (/) Reg. V. Meyers, 3 U. C. C. P. 347, per Macaulay, C. J. {g) Ibid. 348, per Macaulay, C. J. (h) Ibid. 351, per Macaulay, O. J. (i) Ibid. 352, per Macaulay, C. J. i'lj- ■' OFFENCES AFFECTING GOVERNMENT, ETC. 179 more than four or five feet deep, and at ordinary times it was quite shallow and fordable, it was held that this was not navigable water, and that the Crown had a right to survey and lay out a highway through this portion of water. (/) It is impossible to hold that to be a natural stream or water ' course, which could be obstructed by the act of ploughing and harrowing land, in the ordinary course of husbandry, and a ditch in a person's land which may be so obstructed, is not a natural stream or highway, {k) It was thought that a creek, whose capacity in its natural state, without improvement, during spring freshets would not permit logs, timber, etc., to float and pass down, would not be subject to public use as a navigable river, (/) but in a case now pending in appeal, (II) it was held that stream,^ rendered so navigable by improvement were subject to the public easement. Navigable rivers are public highways, (m) It would seem that the rule of the common law of England, as to the flux and reflux of the tide being necessary to constitute a body of water navigable, does not apply to our waters ; and it seems that our large lakes, and navigable rivers, and inland waters are to be viewed :.3 navigable rivers at the common law. {n} All rivfciTj above the flow of the tide, which may be used for the transportation of property, as for floating rafts and driving timber and logs, and not merely such as will bear boats for the accommodation of travellers, are highways by water, and subject to the public use. In determining whether a river is public or private, its mere capacity during the spring freshets, or after heavy rains, to float down single sticks of timber or logs is of itself a very uncertain criterion of the public or private nature of the river, for there is no (»■) Ross V. Corporation of Portsmouth, 17 U. C. C. P. 195. («) Murray v. bawton, 19 U. C. C. P. 317, per Qvoynne, J, (Z) Whdan v. McLachlan, 16 U. C. C. P. 102. {U) McLaren v. CaldweU, 1881. (m) Gage v. BcUea, 7 U. C. C. P. 121, per Richards, C. J.; Olivia v. BiasonnauU, S. L. C. A. 624. (n) Qa^e v. Baiea, 7 U. C. C. P. 121, e< »eg., per Ridv&rds, C. J. 180 THE CRIMINAL LAW OF CANADA. ■ ■I stream so small but which may at times suffice and be used for driving down a log or piece of timber, and, therefore, its breadth and its length and depth at ordinary times, and its capacity for floating rafts, etc., are proper to be considered, (o) In £88on V. McMaster {p) it was held that a river which extended about twenty-eight miles into the country, and had been long used for navigation of boats and canoes, and for floating down logs and timber, was a common highway above where the tide flowed. All rivers above the flowing of the tide, and whether the property of the river be in the Crown or in a subject, which afford a common passage, not only for large vessels but for boats or barges, are, by the principles of the common law, public highways, {q) The defendants under their Act of Incorporation, 19 Vic, «. 21, and as assignees of the Canada Company, claimed a right to erect any works for improving the navigation of the navigable river Maitland, and to be owners of the bed of the stream ; but it was held that the powers given for that pur- pose wfjre distinct from those granted for the purposes of their railway, and that, admitting the ownership, it was still subject to the public right, and that any obstruction to the highway or easement of the river for the purposes of navi- gation, was indictable as a nuisance, (r) An indictment will not lie for merely erecting piers in a navigable river ; it must be laid ad commune nocentum, and whether it was so or not must be decided by the jury. («) Where, on an indictment for a nuisance in obstructing the North Sydenham River and Queen's highway, by erecting a ^11 be imposed, and costs will not be awarded in favor of the prose- cutor, (i) Where a corporation is bound by ublic law to repair a highway, it is sufficient in an indictment for not repairing to allege that the defendants " ought of right " to repair, etc., without setting out the particular ground of liability. (/) An indictment which alleged that ** the defendants or some or one of them " had put up, etc., was held bad for uncer- tainty, (k) And an allegation that a nuisance was near a certain lot, when the evidence showed it to be (m it, was held a fatal variance. (/) This could now probably be amended nnder the 32 & 33 Vic, c. 29, s. 71. Although a proceeding by indictment for a nuisance is criminal in form, the same evidence that would support a civil action for an injury arising from the nuisance will sup- port the indictment, (m) In Beg. v. Bose {n) it was held that the minutes of the boundary line commissioners produced in the case could not be considered a judgment within the meaning of 3 Vic., c. 11, and that the defendant should therefore have been per- mitted to give evidence contradicting such minute?. The second section of this Act, which provides that every such judgment shall be tiled, is directory only, and the omission to file will not affect the validity of the judgment. In New Brunswick, under the 5 Wm. IV., c. 2, the return of the (A) Beg. v. OsUr, 32 U. C. Q. B. 324. («) Beg. V. Corporation of St. Saviour, 3 Q. L. R. 28a (i) Jieg. V. Mayor of St. John, Stev. Dig. 398. (I) Attorney General v. BouUon, 20 U. C. Chy. 402. (/) Beg. V. Meyera, 3 U. C. C. P. 306. (m) Beg. v. SUphena, 2 U. C. L. J. N. S. 223 ; 14 W. R. 859. <«) 1 U. C. L. J. 146. 184 THK CRIMINAL LAW OF CANADA. commissionere ol highways properly made and filed is evi- dence of the laying out of the street, (o) A conviction for nuisance to a highway is conclusive against the defendant as to the existence of s^r highway, and he cannot again raise the question on an . ^..^cment for obstructing another part of the same highway, (p) It was doubtful whether, after an indictment for nuisance to a highway had been removed by certiorari, and tried at the assizes upon a nisi prius record, and the defendants found guilty, on a motion afterwards made in term for judgment upon the conviction, the court could, under the 19 Vic, c. 48» 9. 316, give judgment out of term, (q) , After a verdict uf acquittal on an indictment for niisance in obstructing a highway, tried at a Court of Oyer and Terminer, the court will refuse a certiorari to remove the indictment, with a view of applying for a new trial, or to stay the entry of judgment so that a new indictment may be prepared and tried without prejudice, and this though the motion is made on the part of the Crown with the assent of the Attorney General, (r) But the court will arrest the judgment on an indictment for nuisance, so that a new in- dictment may be preferred, (s) After a verdict of acquittal on an indictment for nuisance tried at the assizes, a motion was made with the concurrence of the Attorney General, for a certiorari to remove the in- dictment, with a vi<^w to obtain a new trial, but no ground was shown by affidavit, and the new trial was moved for on the same day, being the fourth day of term ; it was held that there was nothing to warrant the ordering of a certiorari, and that the motion for a new trial could not be entertained until the court were in possession of the record, (t) When the (o) Heg. V. McOoioan, 1 Pujgrsley A; B. 191. (p) Beg. V. Jackson, 40 U. C. Q. B. 290. iq) Beg. V. G. T. B. Go., 17 U. C. Q. B. 165, per Bobinson, C. J. ; see also 29 ft 30 Vic, c. 40, 8. 4, et aeq. , (r) Beg. v. WhUtier, 12 U. C. Q. B. 214. («) Beg. V. Bote, lU. C. L. J. 146 ; Beg. v. Spence, llU. C. Q. a 31, (t) Beg. V. Gzoweki, 14 U. C. Q. B. 591. 0FFKNGE8 AFFECTING f;OVBRNIlENT, iSTC. 185 case is tried at the assizes, the motion for a new trial need not be made within the first four days of the ensuing term, for the rule of practice requiring a party to move for a new trial within the first four days of a term only applies when the trial has been on record emanating from this court, {u) Obstructing the execution of public justice. — A person who- resists, assaults, or otherwise obstructs a constable or other peace officer in the execution of his duty, is liable to an in> dictment. {v) And the fact that the defendant did not know that the person assaulted was a peace officer, or that he was acting in the execution of his duty, furnishes no defence, {w) It is sufficient that the constable was actually in the execu- tion of his duty at the time of the assault, {x) Refusing to aid and assist a constable in the execution of his duty, in order to preserve the peace, is an indictable misde- meanor at common law. In order to support such indictment it must be proved that the constable saw a breach of the peace committed ; that there was a reasonable necessity for calling on the defendant for his assistance ; and that, wnen duly called on to do so, the defendant, without any physical impossibility or lawful excuse, refused to do so. It is no defence that the single aid of the defendant could have been of no avail, (y) But an indictment for refusing such aid, and to prevent an assault made upon him by persons in his custody, with intent to resist their lawful apprehension, need not show that the apprehension wa.<; lawful, nor aver that the refusal was on the same day and year as the assault, or that the assault which the defendant refused to prevent was the same as that which the prisoner made upon the constable ; neither is it any objection that the assault is alleged to have been made '3 , EE I (tt) Ibid. 592, per RcbvMon, C. J. malice, in its legal sense, means a wrongful act done inten- tionally, without just cause or excuse, {d) In general any formed design of doing mischief may be called malice, and, therefore, not such killing only as proceeds from promeditat-ed hatred or revenge against the person killed, but also in many other cases, such killing as is accompanied with circum- stances that show the heart to be perversely wicked is adjudged of malice prepense and consequently murder, (e) Malice is either express or implied. Express malice is when one person kills another with a sedate, deliberate mind and formed design, and malice is implied by lavnr from any deliberate cruel act committed by one person against another however sudden. (/) (a) Arch. Cr. Pldg. 623. (h) See Re Anderaon, 11 tT. C. C. P. 62, per Richards, C. J. (c) Rubs. Cr. 667. (d) Mclntyre v. McBean, 13 U.C.Q.B. 642, per Robinson, C. J. , Margan, 10 L. C. J. 97, per Badyley, J. (e) RuBB. Cr. 667. (/) Ibid- t^oitevin MURDER. 193 18 On every charge of murder, where the act of killing is proved (^ainat^the prisoner, the law presumes the fact to have been founded in malice, until the contrary appears, (g) The onvs of rebutting this presumption, by extracting facta on cross-examination or by direct testimony, lies on the prisoner, (h) Persons present at a homicide may be involved in dif- ferent degrees of guilt ; for where knowledge of some fact is necessary to make a killing murder, those of a party who have the knowledge w?ll be guilty of murder, and those who have it not of manslaughter only. A felonious participation in the act without a felonious participation in the design will not make murder. Thus if A. assault B. of malice, and they fight, and A.'s servant come in aid of his master, and B. be killed, A is guilty of murder, but the servant, if he knew not of A.'s malice, is guilty of manslaughter only, (t) The person committing the crime must be a free agent, and not subject to actual force at the time the act is done. Thus if A. by force take the arm of B., in which is a weapon, and therewith kill C, A. is guilty of murder but not B. But a moral force, as a threat of duress or imprisonment, or even an assault to the peril of life, is no legal excuse. (J) But if A. commit the act through an irresponsible agent^ as an idiot or lunatic, A is guilty of murder as a principal, (k) Murder may be committed upon any person within the Queen's peace; and consequently to kill an alien enemy within the kingdom, unless in the heat and actual exercise of war, is as much murder as to kill a regular-born British subject. (/) While an infant is in its mother's womb, anrl until it is actually born, it is not considered such a person as can be (g) Beg. v. McDowell, 25 U. G. Q. B. 112, per Draper, C. /. ; Reg. v. AtkinsoH, 17 U. C. C. P. 304, per J. WUstm, J. " (A) Ibid.; Ru88. Cr. 669. (i)RuB8. Cr. 669. U)Ibid. - .- (hibid. (I) Ibid. 670. 1 = 1 194 THE CRIMINAL LAW OF CANADA. killed vrithin the description of murder, (m) If a woman is quick with child and any person strike her, whereby the child is killed, it is not murder or manslaughter. By the 32 6 33 Vic, c. 20, s. 59, the unlawfully administering poison, or unlawfully using any instrument, with intent to procure miscarriage, is made an offence of the degree of felony, and, by s. 60, whoever unlawfully supplies or procures any drugs or other noxious thing for such purpose is guilty of a mis- demeanor. A child must be actually born in a living state before it can be the subject of mui'der, (n) and the fact of its having breathed is not conclusive proof thereof (o) There must be an independent circulation in the child before it can be accounted alive, (p) But the fact of the child being still connected with the mother by the umbilical cord will not prevent the killing from being murder, (q) The killing may be effected by shooting, poisoning, starv- ing, drowning or any other form of death by which human nature may be overcome, (r) But there must be some ex- ternal violence or corporal damage to the party, and if a person, by working upon the fancy of another, or by harsh and unkind usage, puts him into such passion of giief or fear that he dies suddenly, or contracts some disease which causes his death, the killing is not such as the law can notice, (s) But it has been held in the Province of Quebec that death caused from fear arising from menaces of personal violence and assault, though without battery, is sufficient in law to support an indictment for manslaughter, (t) No act whatsoever shall be adjudged murder unless the person die within a year and a day from the time the stroke (m) Rubs. Cr. 670 et seq. in) Reg. v. Poutton, 5 C. & P. 329. (0) Reg. V. Sellia, 7 C. & P. 850 ; 1 Mood. C. C. -850 ; Reg. v. Crutchhy, 7 C. & P. 814. (p) Reg. V. Enoch, 5 C. & P. 539 ; Reg. v. WriyU, 9 C. & P. 754. (o) Reg. V. Crutchley, supra ; Reg. v. Reeves, 9 C. & P. 25 ; Reg. v . Tnlloe, 2 Mood. C. C. 26» ; Arch. Cr. Pldg. 625-6. (r) Rubs. Cr. 674. («) Ibid. \t) Reg. V. McDougall, 4 Q. L. R. 360. ! man is jy the the 32 poison, jrocure ly, and, jT drugs ' a mis- ig state jt of its There efore it id being >rd will r, starv- L human (me ex- ,nd if a ►y harsh giief or which llaw can Quebec lersonal icient in iless the le stroke Irvichhy, Reg. V. MURDER. 195 was received or cause of dee.^h administered, in the compu- tation of which the whole day on which the stroke was administered is reckoned the first, {u) If a man has a disease which, in all likelihood, would terminate his life in a short time, and another gives him a wound or hurt which hastens his death, this will constitute murder, for to accelerate the death of a person is sufficient, (r) So if a man is wounded, and the wound turns to a gangrene or fever from want of proper applications or from neglect, and the man dies of the gangrene or fever, or if it becomes fatal from the refusal of the party to submit to a surgical operation ; {w) this is also such a killing as constitutes murder, but otherwise if the death of the party wer3 caused by improper applications to the wound, and not by the wound itself {x) If a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act intended or attempted were a felony, the killing is murder ; if unlawful but not amounting to felony, the killing is manslaughter. If a man stab at A. and by accident strike and kill B., it is murder ; {y) and if A., intending to murder B., shoot at and wound C, supposing him to be B., he is guilty of wounding C. with intent to murder him, for he intends to kill the person at whom he shoots, {z) When a man has received such a provocation as shows that his act was not the result of a cool, deliberate judgment and previous malignity of heart, but was solely imputable to human infirmity, his offence will not be murder, {a) But mere words or provoking actions or gestures expressing contempt or reproach, unaccompanied with an assault upon the person* will not reduce the killing from murder to manslaughter. ..( (m) Russ. Cr. 700. (w) Arch. Cr. Pldg. 626 ; Reg v. Martin, 5 C. & P. 130. (u>) Reg. V. Holland, 2 M. & liob. 351 : see also Reg. v. Flynn, 16 W. R. 319. (x) Arch. Cr. Pldg. 625. (y) Reg. v. Hunt, 1 Mood. C. C- 93 ; Arch. Cr. Pldg. 636. (2) Reg. V. Smith, 2 U. C. L. J. 19 ; Dears. 559 ; 25 L. J. (M. C.) 29. 5i 5J 13 I 196 THE CRIMINAL LAW OF CANADA. though if immediately upon such provocation the party pro- voked had given the other a box in the ear, or had struck him with a stick or other weapon not likely to kill, and had unfortunately and contrary to his expectation killed him, it would only be manslaughter. (6) The giving of repeated blows with a heavy stick would furnish some evidence of malice. By the light of modern authorities, all questions as to motive, intent, heat of blood, etc., must be left to the jury and should not be dealt with as propositions of law. (c) P. (the prisoner) and D. (deceased) being brothers, were in the house of the latter, both a little intoxicated. D. struck his wife, and on P. interfering, a scuffle began. While it was going on D. asked for the axe, and when they let go, P. went out for it and gave it to him, asking what he wanted with it. D. raised it as if to strike P., and they again closed, when the wife hid the axe. When she came back P. was on the deceased choking him. The wife then pulled P. off. P. then got up, pulled off his coat, and went outside and squared himself and asked deceased to come out and fight, and said he was cowardly. Deceased went on to the doorstep and caught hold of the prisoner. They grappled and deceased fell undermost, prisoner on him. While the scuffle was going on D. struck P. twice. On getting up P. kicked him on the side and arm, and then ran across the garden, got over a brush fence into the road and dared D. three times to come on, saying the last time that he would not go back the same way as he came. D. seized a stick from near the stove, which had been used to poke the fire with, and ran towards P. In trying to cross the fence he fell to his knees, and P. came forward and took the stick out of his hand. He got up, and as he went over the fence towards P., the latter struck him on the head with it. The wife entreated him to spare her husband, but he struck him a second time when he fell, (a) See Russ. Cr. 711 et sea. (b) Reg. v. McDowdl, 25 U. C. Q. B. 112, per Draper, C. J. <'•) Ibid. 115, per Draper. C. J.; Reg. v. Eagle, 2 F. & F. 827. v, MURDER. 197 and again while on the ground, from which he never rose. P., in answer to the wife, said D. was not killed, and refused to take him in, saying, " Let him lie there till he comes to himself." P. and deceased had lived on friendly terms as brothers should, except^ when under the influence of liquor. It was held that the evidence was sufficient to go to the jury to establish a charge of murder ; that if the death had been caused by the kicks received before leaving the house, the circumstances would have repelled the conclusion of malice,, and the jury should have been so directed ; but that whether what took place at the fence was under a continuance of the heat and passion created by the previous quarrel, was under the circumstances a question for the jury, and was to be determined by their finding or negativing malice, (d) Killing in a sudden quarrel, where the circumstances afford no ground for inferring malice, generally amounts to man- slaughter only, but there are many authorities which establish that, in the case of a sudden quarrel, when the parties immediately fight, there may be circumstances indicating malice in the party killing, when the killing will be murder, (e) A married woman having become pregnant by the prison- er, and having herself unsuccessfully endeavored to procure a poison, in order to produce abortion, the prisoner, under the influence of threats by the woman of self-destruction if the means of producing abortion were not supplied to her,, procured for her a poison, from the effects of which, having taken it for the purpose aforesaid, she died. The prisoner neither administered the poison, nor caused it to be admin- istered, nor was he present when it was taken, but he pro- cured and delivered it to the deceased, with a knowledge of the purpose to which the woman intended to apply it, and he was accessory before the fact to her taking it for that purpose. It was held that the prisoner was not guilty of murder. (/) (d) Reg. v. McDmoaU, 25 U. C. Q. B. 108. (e) Ihvd. 114, ^^T Draper, C. J. (/) Reg. V. Frtttvell, 9 U. C. L. J. 138 ; L. & C. 161 ; 31 L. J. (M. C.^ 145 ; see 32 & 33 Vic, o. 20, a. 60. -.1 198 THR CRIMINAL LAW OF CANADA. Where, on an indictment for murder, the evidence of the medical man who examined the body went to show that he had not at all examined the brain, and that he exam- ined the organs of the abdomen without cutting into any of them ; that the fact of his having found the common carotid artery and jugular vein severed, left him in no doubt but that such severance had caused the death. Being asked, on cross-examination, if he had examined the cavity of the head — might not such examination have revealed some othei cause of death ? he replied : " Th:re might'have been, but the probabilities are against it." It was contended that the Crown was bound to give the best evidence the case admitted of as to the cause of death, and that, in the present advanced state of medical science, the Crown should have placed itself, by medical exami- nation of the brain, in a position to negative, beyond all reasonable doubt, the hypothesis of death from any other cause than that alleged; but the court held that ' le evi- dence was sufficient to justify a conviction, (g) It was formerly necessary, in an indictment for murder, to set forth .-he manner in which, or the means by which, the death of the deceased was caused ; and where an in- dictment charged the prisoner, being the mother of an infant of tender age, and unable to take care of itself, with feloniously placing it upon the shore of a river, in an exposed situation, where it was liable to fall into the water, and abandoning it there, with intent that it should perish, by means of which exposure the child fell into the river, and was suffocated and drowned, of which suffocation, etc., the child died ; it was held that, to support the indictment, it was necessary to prove that the death was caused by drowning or suffocation, (h) The 32 & 33 Vic, c. 20, s. 6, now provides that it shall not be necessary, in any indictment for murder or manslaughter, (g) Reg. v. Downey, 13 L. C. J. 193. ih) Reg. v. Fennety, 3 Allen, 132. MAMBLA.UOHTER. 199 to set forth the manner in which or the means by which the death of the deceased was caused ; but it shall be sufficient, in any indictment for murder, to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill, and murder the deceased ; and it shall be sufficient in any indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased. It is necessary, in an indictment for murder, to state that the act by which the death was occasioned was done feloni- ously, and especially that it was done of malice aforethought, and it must also be stated that the prisoner murdered the deceased, (i) The word *' murder** in the indictment is emphatically a term of art, (j ) and it would be insufficient, in an indictment for murder, to state that the party did wilfully, maliciously, and feloniously, stab and kill, because it is equally indispensa- ble to use the artificial term " murder" as it is to state that the offence was committed of ' malice aforethought." The omission of either one of these expressions would render the prisoner liable to a conviction for manslaughter only, (k) In an indictment for wounding, with intent to murder, the offence must be charged to have been committed by the prisoner wilfully, maliciously, and of his malice aforethought, and judgment would formerly have been arrested where the indictment was defective in this respect. (/) "Whether such omission would not now be aided by verdict is questionable. The punishment of murder is death, {m) The 32 & 33 Yic, c. 29, s. 106, and following sections, prescribe the manner in which sentence of death is to be executed. Manslaughter. — The general definition of manslaughter is the unlawful and felonious killing of another, without any malice either express or implied, (n) It is of two kinds : — (i) Re Anderson, 11 U. C. C. P. 62, per Richards, G. J. ; see also 32 ft 33 Vic, 0. 29, B. 27, and sched. A. ( »•) md. 69. Oc) Ibid. 53. (l\ Kerr v. Reg., 2 Rev. Critique, 238. (m) 32 & 33 Vio., c. 20, 8. 1. in) Re Andermm, 11 U. C. C. P. 63, per Richards, J. 200 THE CRIMINAL LAW OP CANADA. i( (1) Involuntary manslaughter, where a man doing an un- lawful act, not amounting to felony, by accident kills another, or where a man, by culpable neglect of a duty imposed 'Upon him, is the cause of the death of another. (2) Voluntary manslaughter is where, upon a sudden quarrel, two personn fight, and one of them kills the other, or where a man greatly provokes another, by some personal violence, etc., and the other immediately kills him. (o) Manslaughter is distinguished from murder in wanting the ingredient of malice ; and it may be generally stated th at where the circumstances negative the existence of malice, in the legal sense, and the killing is unlawful and felonious, it will amount to manslaughter. > In a case where the deceased, who complained of being robbed, suddenly, and without authority or license, enterer if the actually ito cus- Jovering lin the ;re is a purpose J or of •pose of in done, oiity to pose of subject gs that 5d to a has to turbing er, and of the ife and er, not being a peace officer, breaking into the house of the former in order to prevent the breach of the peace, (w) The prisoner assaulted a police constable in the execution of his duty. Tho constable went for assistance and, after an interval of an hour, returned with three other constables, when he found that the prisoner had retired into his house, the door of which was closed and fastened ; after another interval of fifteen minutes, the constable forced open the door, entered and arrested the prisoner, who wounded one of them in resisting his apprehension. It was held that as there was no danger of any renewal of the original assault, and as the facts of tL..' case did not co'istitute a fresh pursuit, the arrest was illegal, {x) A person unlawfully in another's house, and creating r disturbance and refusing to leave the house, may be forcibly removed, but, if he had not committed an assault, the cir- cumstances do not afford a justification for giving him into the custody of a policeman, (y) In all cases above mentioned, if the officer has not a legal authority or executes it in an improper manner, the offence will be manslaughter only. But if there is evidence of ex- press malice it will amount to murder. (2) So ignorance of the character in which the officer is acting will reduce the offence to manslaughter. But if a constable command the peace or show his staff of office, this, it seems, is a sufficient intimation of his authority (a) Where the fact of killing is proved, the defendant may rebut the presumption of malice arising therefrom, by prov- ing that the homicide was justifiable or excusable. Justifiable homicide is of three kinds: — 1. Where the proper officer executes a criminal in strict conformity with his sentence. 2. Where an officer of justice, or othe* person (w) Jiochoell V. Murray, 6 U. C. Q. B. 412 ; Handcock v. Baker, 2 B. & P^ 262. (x) Beg. V. Marsden, L. R. 1 C. C. R. 131 ; 37 L. J. (M. C.) 80. (y) Jordan v. Qibhon, 3 F. & F. 607. (z) Arch. Cr. Pldg. 645-6. (a) Ibid. 645 ; and see Bex v. Higgins, 4 U. C. Q. B. O. S. 83. - V ^08 THE CRIMINAL LA.W OF CANADA. acting in his aid in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. 3, Where the homicide is committed in prevention of a forcible and atrocious crime, as, for instance, if a man Mtempts to rob or murder another and be killed in the attempt, the slayer shall be acquitted and discharged, (b) Excusable homicide is of two kinds : — 1. Where a man doing a lawful act, without any intention of hurt, by accident kills another, as, for instance, where a man is working with a hatchet, and the head by accident flies off And kills a person standing by. This is called homicide per infortunam or by misadventure. 2. Where a man kills another, upon a sudden encounter, merely in his own de- fence, or in defence of his wife, child, parent, or servant, •and not from any vindictive feeling, which is termed homi- cide 86 defendendo, or in self-defence, (c) The 32 &; 33 Vic, c. 20, s. 7, provides that no punishment or forfeiture shall be incurred by any person who kills another by misfortune, or in his own defence, or in any other manner, without felony. Concealing Birth. — The 32 & 33 Vic, c 20, sec. 62, repeals ■the 21 Jac I.; and sec. 61 of the same statute enacts that if any woman is delivered of a child, every person who, by any secret disposition of the dead body of the said child, whether such child died before, at, or after its birth, en- deavors to conceal the birth thereof, is guilty of a misde- meanor. A secret disposition, under this Act, must depend upon the circumstances of e^ich particular case ; and the most complete expasure of the body might be a concealment, as, for instance, if the body were placed in the middle of a moor in the winter, or on the top of a mountain, or in any other secluded place, where it would not likely be found. The jury that Th (h\ Arch. Cr. Pldg. 623. ,c//6W. 623. CONCEALING BIRTH — ABORTION. 209 ^ jury must, in each case, say whether or no the facts show that there has been such a secret disposition, (d) The conduct of the prisoner, such as the denial on her part that she has had a child, is important as showing the intent with which a concealment, otherwise questionable was made. («) If a woman endeavor to conceal the birth of her child by placing the dead body under the bolster of a bed, and laying her head partly over the body, int; Ing to remove it to some other place when an opportunity offers, it is an offence , within 9 Geo. IV., c. 31, s. 14. (/) Abortion. — This offence is now regulated by the 32 & 33 Vic, c. 20, ss. 69 and 60. Upon an indictment for causing abortion, it was proved that the woman requested the prisoner to get her something to procure miscarriage, and that the drug was both given by the prisoner, and taken by the woman, with that intent, but the taking was not in the presence of the prisoner. It produced a miscarriage. The court held that a conviction upon the facts above was right, and that there was an " administering and causing to he taken," within the statute, though the prisoner was not present at the time, (g) What is a " noxious thing " within the statute, depends on the circumstances of each particular case. In one case, evidence that quantities of oil of juniper, considerably less than half an ounce, are commonly taken medicinally without any bad results, but that a half ounce produces ill effects, and is to a pregnant woman dangerous, was held sufficient from which a jury might infer that the latter quantity was a " noxious thing " within the statute, (h) {d) Beg. v. Broum, L. R. 1 C. C. R. 246-7 ; 39 L. J. (M.C.) 94, per JJoritt, C. J. ; Beg. v. PicfU, 30 U. C. C. P. 409. (e) Beg. v. PicM, 30 U. C. C. P. 409. (/) Beg. V. Perry, 1 U. 0. L. J. 136 ; Dears. 471 ; 24 L. J. (M. C.) 137. {g) Beg. v. Wihon, 3 U. C. L. J. 19 ; Dears. & B. 127 ; 26 L. J. (M. C.) 18 ; see also Baj. v. Farrow, Dears. & B. 164. (A) Beg. v. Cramp, L.U.5Q. B. D. 307. N :^ a ffl -I.. I 210 THE CRIMINAL LAW OF CANADA. m And where it was in eividence that oil of savin in any dose would be most dangerous to give t<> a pregnant woman ; that the prisoner, with intent to procure abortion, had supplied a woman in that condition with a bottle of Sir. James Clarke's female pills, containing about four grains of that drug, and that such a quantity would be very irritating : the court held that there was a supplying of a " noxious thing." (i) Rape. — This offence has been defined to be the having unlawful and carnal knowledge of a woman by force, and against her will, (j ) Upon an indictment for rape, there must be some evi- dence that the act was without the consent of the woman, even where she is an idiot. Where there is no appearance of force having been used to the woman, and the only evidence of the connection is the piisoner's own admission, coupled with the statement that it was done with her consent, there is no evidence for the jury, (k) It was formerly held that where the woman consents to the connection, through the fraud of the ravisher, the act does not amount to rape ; {I) but the soundness of this doctrine has lately been questioned in England, and seems inconsistent with the modern doctrines to con- sent in criminal law in general. The following propo- sition, it is submitted, correctly sets out the law on the subject: Where a person does or acquiesces in an act through a misapprehension of the nature of that act, or of the circumstances attending it, and that misapprehension is either induced by the prisoner, or the prisoner, knowing the mistake under which the other is laboring, takes advan- tage of that mistake, there iz no consent in law, br^i that quality of crime is to be imputed to the prisoner of which he would have been guilty had he done the act against the expressed will of the other. (i) Seg. V. StiU, 30 U. G. C. P. 30. ij) Rubs. Cr. 904. {k) Reg. v. Fletcha% L. R. 1 C. C. R. 39 ; 35 L. J. (M. C.) 172. • (/) Reg. V. Barrow, L. B. 1 C. C. R. 156 ; 38 L. J. (M. C.) 20. RAPE. 211 .ny dose m ; that pplied a Clarke's ug, and urt held having roe, and me evi- woman, brance of svidence coupled nt, there sents to her, the Iness of and, and to con- propo- on the an act t, or of jhension knowing J advan- )r*i that f which inst the Thus, on au indictment for indecently assaulting two boys, the judge left it to the jury to say whether the boys merely submitted to the acts ignorant of what was going to be done to them, or of the nature of what was being done, or if they exercised a positive will about it and consented to the prisoner's acts; and on a case reserved, the court held the action right, (m) And where the prisoner, a depositor in the Post Office Savings Bank, in which lis. stood to his credit, gave notice in the ordinary form to withdraw that sum, and the clerk, at the office of payment, referring by mistake to another letter of advice for £8 16s. lOd., placed the latter amount upon the counter and entered the same as paid in the prisoner's deposit book, which sum thep risoner took up, animo furandi; it was held by a majority of the judges for conviction, that such a delivery by the clerk under mistake, though with an intention of passing tl^a property, had not that effect, and that there was a sufficient taking to warrant a conviction for larceny, (w) And in a case of rape, in which the authority of Reg. v. Barrmo {nn) was doubted, the prisoner professed to give medical and surgical advice for money. The prosecutrix, a girl of nineteen, consulted him wi'.h respect to aa illness from which she was suffering. He advised her that a surgical operation should be performed, and under pretence of per- forming it, he haa oarual knowledge of her. She submitted to what was done, not with any intention that he shouhi have sexual connection with her, but under the belief that he was merely treating her medically and performing a surgical operation, that belief being wilfully and fraudulently induced by the prisoner. He was held guilty of rape, (p) T\i^ case, it is true, differs from lleg. v. Barrow in that there the prosecutrix knew the nature of the act and con- sented to it under the mistaken belief that the person having 4' (m) Beg. v. Lock, L. R. 2 C. C. R. 10. (n) Reg. v. MidcUeton, L. R. 2 C. C. R. 38. (im) L. R. 1 C. C. R. 156 ; 38 L. J. (M. C.) 20. (o) Reg. V. Flattery, L. R. 2 Q. B. D. 410. 212 THE CRIMINAL LAW OF CANADA. Lil ■ Mil connection with her was her husband, while here the mistake ^/as as to the natuie of the act itself. But the distinction ia verlal rather than substantial ; and, besides, the principle of Bey. V. Barrow conflicts with that of Beg. v. Middlelon, which embodies the approved doctrine on the subject in cases of larceny. Apart from all questions of consent fraudulently obtained, the meaning of the phraseology in an indictment for rape that the prisoner " violently, and against her will, feloniously did ravish'' the prosecutrix, is, that the woman has been quite overcome by force or terror, accompanied with as much resistance on her part as is possible under the circumstances, and so i^ to make the ravislier see and know that she is really resisting to the uttermost, (oo) Thus, where, on an indictment for rape, the evidence of the prosecutrix showed that the prisoner, having followed her into the house, and, without her knowledge, bolted the door, succeeded, after she had several times escaped from him, in dragging and throwing her upon the bed, where he had con- nection with her, she making several attempts to get up, but being too exhausted to do so, the prisoner avowing that he had come on purpose, and, as she was in his power, he would do as he pleased ; that she resisted as long as she could, and then, before he had effected his purpose, screamed out, and called to her child, who was outside ; being corroborated as to the screams by the child, and by another witness, who heard cries, manifestly those of the prosecutrix ; it 'also ap- pearing that the husband of the prosecutrix had received a letter from her, on the 20th of the same month in which the rape was said to have been committed, which, it was alleged, was on the 17th of that month, stating that the prisoner had been at his house and abused her. it was held that this evidence showed the woman was quite overcome by force or terror, accompanied with as much resistance on her part as was possible under the circumstances, and so as to have made [00) Reg. v. Fick, 16 U. U. C. P. 379. RAPE. 213 the ravisher see and know that she really was resisting to the utmost, and sustained the language of the indictmertt, that the prisoner " violently, and against her will, feloniously did ravish " the prosecutrix. A conviction for rape was therefore upheld, (p) Where the prisoner forcibly had carnal knowledge of a girl thirteen years of a^^'e, wlio, from defect of understanding, was incapable of giving consent or exercising any judgment in the matter, it was held that he was guilty of rape, and that it was sufficient, in such a case, to prove that the act was done without the girl's consent, though not against lier will, (q) But in the care of rape of an idiot, or lunatic woman, the mere prc^f of the act of connection will not warrant the case being left to the jury. There must be some evidence that it was without her consent, e. g., that she was incapable of expressing assent or dissent, or from exercising any judg- ment upon the matter, from imbecility of mind or defect of understanding, and if she gave her consent from animal instinct or passion, (r) or if from her state and condition he had reason to think she was consenting, it would not be a rape, (s) A child, under ten years of age, cannot give consent to any criminal intercourse, so as to deprive that intercourse of criminality, under the 32 & 33 Vic, c. 20, s. 51. {t) And a person may be convicted of attempting to have carnal know- ledge of such child, even though she consents to the acts done, (u) But her consent will render the attempt no assault, {v) In the case of girls from ten to twelve, on a charge of (p) Reg. V. Fkk, 16 U. C. P. 379. (q) Reg. v. Fletcher, 6 U. C. L. J. 143 ; Bell, 63 ; 28 L. J. (M.C.) 85. (r) /fcgr. V. Connolly, supra, 317. («) Reg. V. Barratt, L. R. 2 C. C. R. 81 ; Reg. v. Fletcher, L. R. 1 C.C.R. 39, explained. (t) Reg. V. GonnoUy, supra, 320, per Hagarty, J. (tt) Reg. V. Beah, L. R. 1 C. C. R. 10 ; 35 L. J. (M. C.) 60. (v) Reg. V. Oochbum, 3 Cox, 543 ; Reg. v. Connolly, supra, 320, per Hagarty, J; 214 THK CRIMINAL LAW OP CANADA. it ^ /• assault, with intent to carnally know, or indecent assault, or comiuou assc.ult, consent is a defence ; but the prisoner may be indicted for attempting to commit the statutable misde- meanor, not charging an assault, in which case it seems con- sent is no defence. The proper course is to indict for attempt t(' commit the statutable misdemeanor, for every attempt to commit a misdemeanor is a misdemeanor, and where the (essence of the offence charged is an assault, the attempt, tliough a misdemeanor, is no assault {w) By the 32 & 33 Vic, c. 20, s. 65, it is unnecessary, with respect to these offences, to prove the actual emission of seed, in order to constitute a carnal knowledge ; but the carnal knowledge shall be deemed complete on proof of any degree of penetration only. In a case of rape, a statement made by, the prosecutrix to her husband and another person, that the defendant ravished her, is not admissible, so far as it criminates the prisoner, {x) The 32 & 33 .Vic, c. 20, s. 56, provides that whosoever unlawfully takes, or causes to.be taken, any unmarried girl being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, is guilty of a misdemeanor. The prisoner met a girl in the street going to school and induced her to go with him to a town some miles distant, where he seduced her. They returned together, and he left her where he had met her. The girl then went to her home, wl.ere she lived with her father and mother, having been absent some hours longer than would have been the case if she had not met the prisoner. The latter made no inquiry, and did not know who the girl was, or v\rhether she had a father or mother living or not, or that he was taking her out of her father's possession ; but he had no reason to, and (to) Beg. V. Connolly, 26 U. C. Q. B. 323, per Hagarty, J. ; see also Reg. V. Guthrie, L. R. 1 C. C. R. 241 ; 39 L. J. (M. C.) 95 ; Reg. v. Oliver, BeU, 287 ; 30 L. J. (M. C.) 12. (») Re^. y. Mck, 16 U. C. C. P. 379. ASSAULT AND BATTERY. ^ 215 (lid not, believe that Hhe was a girl of the town. It was hel above the age of ten years, and under the age of (e) Reg. v. ffarmer, 17 U. C. Q. B. 555 ; Stephens v. Meyers, 4 C. & P. 360. (/) Reg. V. Fanetif, 6 L. C. J. 167. <^) Jteg. V. Gronan, 24 U. C. C. P. 106. (A) Corporation of MowlreaX v. DooloM, 13 L. C. J. 71 ; 18 L. C. J. 124. (t) Beg. V. O'Lexiry, 3 Pugsley, 264. ij) Coward v. Badddey, 5 U. C. L. J. 262 ; 4 H. & N. 478 ; 28 L. J. (Ex.) 260. (*) Reg. V. Outhrie, L. R. 1 C. C. R. 243 ; 39 L. J. (M. C.) 95, per BoviU, C. J. ; and see Reg. v. BeaU, Ubid. 12, per PoUock, C. B. ; Beg. v. Connolly, 26 U. C. Q. B. 320, per Hagarty, J. ASSAULT AND BATTERY. 217 & P. twelve years, unlawfully did make assault, and her, the said D., did then unlawfully and carnally know and abuse against the form of the statute, etc. The offence of carnally knowing the girl was disproved, but there was evidence of an assault of an indecent and very violent charactery which was left to the jury, who found the prisoner guilty of a common assault, and the question was whether they could properly do so upon this indictment ; it was held that the prisoner was properly convicted of a common assault, on the ground that the indictment charged two distinct misdemeanors, namely, an assault at common law, and the statutory offence of unlawfully and carnally knowing and abusing tiie girl ; that there being a distinct charge of an assault in the indictment, the prisoner might be convicted of it though the indictment also contained a charge of a more serious offence, consequently the prisoner might be found guilty of either offence. (I) A charge of assaulting and beating is not a charge of aggravated assault, and a complaint of the former will not sustain a conviction of the latter, under 32 & 33 Vic, c. 32, though when the party is before the magistrate, the charge of aggravated assault may be made in writing, and followed by a conviction therefor, (m) The prisoner was found guilty at the Quarter Sessions, on an indictmei^ charging ^at she, on, etc., in and upon one B., in the peace of God and of our Lady the Queen then, being, unlawfully did make an assault and him, the said B., did beat and ill-treat with intent him, the said B., feloniously, wilfully, and of !ier malice aforethought, to kill and murder, and other wrongs to the said B. then did, to the great damage of the said B., against the form of the statute in such csM^e made and provided, and against the peace, etc. A count was added for common assault. The evidence showed an attempt to murder, but it was moved, in arrest of judgment, that the , si OQ I {I) Beg. V. Guthrie, L. R. 1 C. C. R. 241. (m) Be McKinnw, 2 U. C. L. J. N. 8. 324. 218 THE CRIMINAL LAW OF CANADA. sessions had no jurisdiction, for that it was a capital crime within the Con. Stats. Can., c. 91, s. 5. The court held that the indictment did not charge a capital offence under that section, nor an offence against any statute, but charged in each count an offence at common law, rejecting from the first count the words "contrary to the statute" as surplusage, and any other words which were insufficient to sustain a prose- cution for felony under any statute, and that the conviction might be sustained as for an assault at common law. (n.) The 32 & 33 Vic. c. 29, s 51, provides that on the trial of any person for any felony whatever, where the crime charged includes an assault against the person, the jury may acquit of the felony and find a verdict of guilty of assault against the person indicted, if the Evidence warrants such finding. It is quite clear that this section only authorizes a verdict of guilty of assault, when it is included in, and forms parcel of> the felony charged in the indictment. The words " crime charged " mean the crime charged as felony in the indictment, for the enactment only takes effect upon an acquittal, and the assault, to fall within the Act, must be an integral part of the felony charged, (o) Therefore, where on an indictment for murder the jury found the prisoner gailty of an assault only, and that such assault did not conduce to the death of the deceased, it was held that the prisoner under such find- ing could not be convicted of the assault (p) And where the prisoners were indicted for murder, and the medical testimony showed burning to be the direct and only cause of the death, but there was no evidence to connect any of the prisoners with the burning, it was held that the prisoners could not be convicted of an assault, for, although an assault wa§ proved, there was no evidence to show that it conduced to the death, (q) (n) Heg. v. McEvoy, 20 U. C. Q. B. 344. (o) Heg. V. Dingman, 22 U. C. Q. B. 283 ; Meg. v. Bird, 2 Den. C. C. 94. (jp) Reg. V. Oregon, 1 Hannay, 36 ; and see Reg. v. Ryan, Und. 119, per Ritchie, C. J. (q) Reg. v. Oanes^22 U. C. C. P. 186 ; following Reg. v. Bird, 2 Den. C. C. 94 ; Reg. v. Dingman, 22 U. C. Q. B. 283. Nr ASSAULT AND BATTERY. 219 d crime eld that ler that iTged in the first age, and I prose- aviction (n) ' trial of charged r acquit against finding, jrdiet of arcel of» " crime ictmeut, tal, and part of ictment assault leath of 3h find- md the id only ect any isoners assault nduced D. C. 94. 119, per 2 Den. It was Meld, under the Con. Stats. Can., e. 99, s. 66, that there could be no conviction for an assault, unless the indict* ' meat charged an assault iu terms, or a felony necessarily implying an dssault ; (r) and it has been doubted how far the .section under consideration, by providing that there may be a conviction for assault, " although an assault be not charged in terms," alters the law in this i*e3pect. It would seem that in the cases of rape, robbery, stabbing and the like, being all crimes which necessarily include an assault, a prisoner, if acquitted of the felony; can clearly be convicted of an assault, under this section, if the assault was included in and conduced to the felony ; and as the charge of either of these offences necessarily includes a charge of assault, he could be so convicted even before the recent Act, without any charge of assault in terms. And one would naturally be led to think that on indictments for murder and manslaughter, though the bare charge of these offences does not show an assault, the prisoner might be convicted of an assault under the Act though not charged in terms, if the « evidence showed an assault committed, iu attempting to com- mit the felony charged, or as parcel thereof But it has been held in several caseS that on an indictment for murder iu the statutory form, not charging an assault, the prisoner cannot be convicted of an assault ; (s) so that it the principle of these decisions be adopted, the section has practically no operation. A case cannot be brought within this Act, by averring an assault in the indictment which is not included in, and parcel of, the felony charged. There can be no conviction of an assault, unconnected with the felony charged. The Act only dispenses with an express allegation of an assault, where the ' felony is of such a nature, that the mere charge of it is also a charge of ah assault, (t) (r) Beg. v. pingman, mpra. B. 612, " (a) Reg. v. Smith, 34 Q. B. 552 ; Reg. v. MuUtoUand, 4 Pugsley k K. i o (t) See Beg. v. Dingman, 22 U. C. Q. B. 283 ; Reg. v. Bird, 2 Den. C. C. 94 ;Reg. v. Lackey, I Pugaley & B. 194. II 220 THE CRIMINAL LAW OF CANADA. Shooting with intent to murder involves an assault, (w) An indictment charging the prisoner with having maliciously assaulted J. M. and cut him with a knife, with intent to do him grievous bodily harm, concluding contra formam staiuti, was held bad, for the means used were not set out with such particularity, as necessarily to manifest the desijgfn, which constituted the felony, and there was no allegation following the words of the Act ; and it was also held that the convic- tion could not stand for an assault, as the Act does not operate to supply defects in indictments, (v) Upon an indictment containing counts for assaulting and maliciously inflicting grievous bodily harm, and a count for a common assault, after evidence of grievous injuries inflicted by the prisoner, the judge told the jury that there was Evi- dence to go to them uf grievous bodily harm, and that the question oi whether the prisoner intended to 'inflict grievous bodily harm consequently did not arise. The jury found the prisoner guilty of an aggravated assault, without premedita- tion, under the inflij^nce of passion ; and it was held that the assault was intentional in the understanding of the law ; that upon the facts, the jury were justified in finding the defend- ant guilty of an assaults with grievous bodily harm, and that the prisoner was properly convicted of that offence, {w) An indictment charging a prisoner with shooting at A. B., with intent to do him grievous bodUy harm, is well sup- ported by evidence, showing that he fired a loaded pistol indiscriminately into a group, intending to do grievous bodily harm, and that he hit A. B. (x) In construing the latter part of the 32 & 33 Vic, c. 20, s. 19, we should read t;he section as though the term "mali- cious "had been introduced. It is an essential element in a conviction, under this section, that the act which caused (u) Beg. V. Beno and Andereon, 4 U. C. P. R. 296, per Draper^ C. J. \v) Beg. V. Magee, 2 Allen, 14. (w) Beg. V. Sparrow, 8 U. 0. L. J. 66 ; Bell, 298 ; 30 L. J. (M.C.) 43. {x) Beg. V. FretweU, 33 L. J. (M. C.) 128 j L. & C. 443. (y) Beg. v. Ward, L. R. 1 C. C. R. 356. ASSAULT AND BATTERY. 221 the unlawful wounding should have been done maliciously as well as unlawfully. (^) Thus the prosecutor And the prison3r were out at night, in separate punts on a creek, in pursuit of wild fowl. The prisoner, who was jealous of any one going there to shoot, and had threatened to fire at birds, notwithstanding other persons might be between him and them, discharged his gun from a distance of twenty-five yards towards the punt, in which the prosecutor lay paddling. At that moment the prosecutor's punt slewed round, and the prosecutor was struck by some of the shot and seriously wounded, where- upon the prisoner rendered him help, «,ssv.ring him that the injury was an accidental result 05* the slewing round of the punt. The night was light, and the boat visible fifty yards off. No birds were in view. The two men had always been on good terms, and the gun was fired, apparently, with the intention of frightening the prosecutor away rather than that of hurting him. The prisoner was indicted for the felony of wounding, with intent to do grievous bodily harm, but was found guilty of the misdemeanor of unlawfully wounding, within the above section ; and it was held that there was proof of malice which justified the conviction of * the prisoner, (z) The Con. Stats. Can., c. 91, s. 37, applied only to common assaults, (a) . No words of provocation whatever can amount to an assault, {b) To constitute such an assault as will justify moderate and reasonable violence in self-defence, there must be an attempt or offer witR force and violence to do a ^ corporal hurt to another, as by striking him with or without a, weapon, or presenting a gun at hira, at such a distance to which the gun will carry, or pointing a pitchfork at him, standing within reach of it, or by holding up one's fist at (z) Reg. V. Ward L. R. 1 C. C. R. 366. (o) Me McKinnon, 2 U. C. L. J. N. S. 328, per A. (b) The Toronto S. V. A. R. 170. WVMon, J. 222 THE CRIMINAL LAW OF CANADA. Ill him, or by drawing a sword, and waving it in a menacing manner, (c) Where therefore some thirty persons, armed and riotously assembled in front of the plaintiff's house, and apparently in the act of breaking into it, threatened to break into it, and assault, tar, feather and ride the plaintiff on a rail, it was held that though the pli*intiff believed they were going to b^eak into his house for this^ purpose, yet he could not justify shooting at them with a pistol, without warning them to desist and depart, but such request to depart would not have been necessary, perhaps, if the aggrcdsors had been actually advancing, upon the plaintiff in the attitude of assaulting him, and still less if any of them had actually struck him. (d) , * * . The law is properly careful to exact that people shall not on the mere apprehension of violence, which is not im- mediately threatened, resort to desperate means of defence and shed blood without necessity, though there may be considerable provocation and some show of violence, and, generally speaking, it must bo left to the juiy to ascertain as a question of fact whether the means of resistance adopted were justified by the nature of the attack, (e) If ^ more force and violence be used than necessary to expel a party from a house, after he has been requested, and re- fused to leave, it cannot be justified. (/) Although a party may lawfully take hold of one who declines to leave his house and put him out, yet he has no right to beat him cruelly, not in order to make h;m go out, but to punish him for not having done so. (g) But there is a manifest distinction between endeavoring to turn a person out of a house into which he has entered quietly, and resisting a forcible attempt to enter ; in the (c) The Twrnito S. V. A. B. 178-9. (d) Spires v. Bmirick, 14 U. C. Q. B. 424, per Robinson, C. J. {«) Ibid. 424, per Jtobinson, C. J. (/) See Glass v. O'Orady, 17 U. C. C. P. 233. \g) Ibid. 236, per /. Wilson, J.; Davis v. Lennm, 8 U. C. Q. B. 69&. fori not. I coui coui is 8^ hen^ ceec w ASSAULT AND BATTERY. 223 lenacmg iotously parently : into it, I rail, it re going 3iild not warning- t would brs had attitude actually )le shall not im- defence may be ce, and, scertain aistancc (e) lU expel a and re- a party ive his at him punish ivoring entered in the former case a request to depart is necessary- in the latter not. (A) Upon an indictment for assaulting a bailiff of a county court, in the execution of his duty, the production of a 'county court warrant for the apprehension of the prisoner is sufficient justification of the act of the bailiff, in appre- hending the prisoner, without proof of the previous pro- ceedings authorizing the warrant, (i) Moderate correction of a servant or scholar, by his master, is not an assault. But a master has not by law a right to use force in the correction of any servant, but an apfwen- tice. The moderate correction of a servant, who is an infant, may be justified, but the beating of a servant of full age cannot, and will form a sufficient cause or excuse for departure, or for discharge from service by a master, on complaint. Wounding, kicking and tearing a person's clothes do not fall within the scope of moderate correc- tion, {j) School-masters have a right of moderate chas- tisement against disobedient and refractory scholars ; but it is a right which can only be exercised when necessary for the maintenance of school discipline and the interests of education, and to a degree proportioned to the nature of the offence committed. Any chastisement exceeding this limit, and springing from motives of caprice, anger or bad temper, constitutes an offence punishable like ordinary delicts, (k) On an indictment charging an aggravated 'assault, or an offence of a higher nature than an assault, but nevertheless including it, the prisoner may be found guilty of a common assault, for it is not necessary that matter of aggravation stated in the indictment should be proved, and, if not proved^ the prisoner may be found guilty of the offence without the circumstances of aggravation. (/) Thus a person, in- 599. (h) Reg. v. O'Neill, .3 Pugaley & B. 49. (») Reg. V. Da-m, 8 U. C. L. J. 140 ; L. & C. 64 ; 30 L. J. (M. C.) 169. (j ) MUcheU V. D(ifries, 2 U 0. Q. B. 4,30, per McLean, J. (k) Brisson v. Lafontaine, 8 L. C. J. 173. - (0 Reg. V. Taylor, L. R. 1 C. C. R. 194 ; 38 L. J. (M. C.) 106. 224 THE CRIMINAL LAW OF CANADA. :::i :■'¥• dieted for inflicting grievous bodily harm and actual bodily harm, may be convicted of a common assault ; (m) and a charge of assSiUlt and beating would be sustained by proof of an aggravated assault, as the aggravation is merely matter of evidence, (n) This offence is a misdemeanor (o) and is so punishable. The punishment usually inflicted is fine, imprisonment and sureties to keep the peace, (p) The ^'lurt of Quarter Sessions has a general power to fine and imprison in case of assault, (q) A charge of assaulting a bailiff in the execution of his duty, being a misdemeanor, is triable at the sessions, (r) An assault may, in certain cases, amount to a capital felony, when, it is apprehended, it could not be tried at the sessions. An assault may be accompanied by violence from which death ensues, ahd tl^eu the offeuce would be either murder or manslaughter. Or an assault may be accompanied with a violation of the peroon of a woman against her will, in which case it would be a rape, or though the purpose was not ef- fected, the circumstances might be such as to leave no doub*^ of an assault with intent to commit a rape, therefore an assault may amount to a capital felony, or a felony, or a misdemeanor, according to the circumstances with which it is accom- panied, (s) Kidnapping. — This offence is regulated by the 32 & 33 Vic, e. 20, s. 69. The intent referred to in that section refers to the seizure and confinement in Canada, as well as to kid- napping, and en indictment therefore chai;ging such seizure and confinement, without averring any intent, is defective, (t) (m) Reg. v. Oliver, 8 U. C. L. J. 65 ; Bell, 287 ; 30 L. J. (M. 0.) 12 ; Reg. V. Yeadm, L. & C. 81 ; 31 L. J. (M..C.) 70. (n) Re McKinmn, 2 U. C. L. J. N. S. 329, per A. Wilaon, J. (o) See Reg. v. Taylor, L. R. 1 C. C. R. 194. (p ) Ovens V. Taylor, 19 U. C. C. P. 52, per Hagarty, 5.% Reg, ▼. O'Leary, .3 Pugaley, 264. ? (q) Ovenn V. Taylor, »upra, 49. (r) Reg. y. Oaisae, 8 L. C. J. 281. («) McGurdu v. Swift, 17 U. C. C. P. 139, per A. Wilson, J. it) Comwa y. Reg, U. C. Q. B. 106. OFFENCES AGAINST FROfERTY. 225 i bodily and a y proof merely ishable. ent and Sessions ault. {q) L of his ir) . 1 felony, sessions. I which urder or I with a n which 3 not ef- 10 doubt assault »meanor, accuni- 2 & 33 ►n refers to kid- seizure jtive. (t) \ 0.) 12 ; O'Leary, CHAPTER V. OFFENCES AGAINST PROPERTY. Bwrglary. — Burglary has been defined to be a breaking and entering the mansion house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. (a) Both a breaking and entering are necessary to complete the offence, and every entrance into the house, in the nature of a mere trespass, is not sufficient. Thus if a man enter a house by a door or window which he finds open, or through a hole which was made there before, and steal goods, or draw goods out of the house through such door, window, or hole, he will not be guilty of burglary.(6) There must either be an actual breaking of some part of the house, in effecting which more or less actual force is employed, or a breaking by construction of law, where an entrance is obtained by threats, fraud, or conspiracy, (c) An actual breaking of the house may be by making a hole in the wall ; by forcing open the door; by putting back, picking 01" opening the lock with a false key ; by breaking the window ; by taking a pane of glass out of the window, either by taking out the nails or other fastening, or by draw- ing or bending them back, or by putting back the leaf of a window with an instrument, and even the drawing or lifting of a latch, (d) Where the door is not otherwise fastened, the turning of the key where the door is locked on the inside, or the unloosing (a) Rubs. Cr. 1. (6) Ibid. 2. (c) Ibid. (d) 2 Rubs. Cr. 2-3 ; Rex v. Owen, 1 Lewin, 35, per Bayley, J. ; Rex r. Lawrence, 4 C. & P. 231 ; Rex ▼. Jordan, 7 C. & P. 432. 226 THE CRIMINAL LAW OF CANADA. zw any other fastening which the owner has provided, will amount to a breaking, (e) If a man enters by a door or window which he finds open, or through a hole which was made there before, it is not burglary. (/) Where an entry was effected by taking out the glass from a door it was holden to be burglary ; (g) and where the defend- ant pulled down the sash of a window which had no fasten- ing, and was only kept in its place by the pulley-weight, it. was holden to be burglary, although there was an outer shutter which was not put to. (h) So, where he raised a sash window which was shut down close but not fastened, though it had a hasp which might have been fastened, (i) And where a window opening upon hinges and fastened with wedges, but so that, by pushing against it, it could be opened, was opened, it ^vas holden to be burglary, (j) So, where a party thrust his arm through the broken pane of a window, and in doing so broke some more of the pane, and thus got at and removed the fastening of the window and opened it, it was holden to be a sufl&cient breaking, (k) Lifting up the flap of a cellar usually kept down by its own weight is a suffi- cient breaking for the purpose of burglary, (l) If a window be partly open, but not sufficiently to admit a person, the raising cf it f,o as to admit a person is not a breaking of the house, (m) It is burglary if a man obtain entrance to a house by means of the chimney, for, though open, it is as much closed as the nature of the structure will admit, (n) But an entry through a hole in the roof is not burglary, for a chimney is a necessary (c) 2 Ru88. Cr. 3. (/) Ibid. 2 ; and see Hex v. Lema, 2 C. & P. 628 ; Beg. v. Sprigys, I M. & Rob. 357. {g) Beg. v. Smith, R. & R. 417. {h) Beg. v. Haines, R. & R. 451. (t) Beg. V. Hyanus, 7 C. A P. 441. (j) Beg. V. Hall, R. & R. 355. \k) Beg. v. Bobinson, 1 Mood. C. C. 377. (/) Beg. V. Busaell, 1 Mood. C. C. 377. (to) Beg. V. SmUh, 1 Mood C. 0. 178 ; Arch. Cr. Pldg. 497. (n) 2 Ru83. Cr. 4 ; Bex v. Brice, R. & R. 450. BUBOLAKY. 227 ied, will ids open, it is not is from a ) defend- 3 fasten- 'eiglit, it an outer ed a sash J, though (i) And ned with B opened, where a window, lus got at led it, it y up the is a suffi- i window rson, the ng of the 5y means ed as the through lecessary Sprigijs, I opening and requires protection, whereas if a man choose to have a hole in the wall or roof of his house, instead of a fastened window, he must take the consequences, (o) As to breaking by fraud, where an act is done in fravdem legis the law gives no benefit to the party, so that if thieves obtain entrance under pretence of business, as to arrest a suspected person or the like, if the other ingredients are also in the offence, it will amount to burglary, (p) It is also burglary if the entrance is obtained by conspiracy, as if A., the servant of B., conspire with C. to let him in to rob B., and accordingly A. in the night-time opens the door and lets him in, it is burglary in both, (q) But if a servant, pretending to agree with a robber, open the door and let him in for the purpose of detecting and ap- prehending him, this is no burglary, for the door ia lawfully open, (r) There may also be a breaking in law where, in consequence of violence commenced or threatened, the owner, either from apprehension of the violence, or with a view to repel it, opens the door through which the thief enters, (s) With respect to the entry, any, even the least entry, either with the whole ot any part of the body, hand or foot, oi with any instrument or weapon introduced for the purpose ot committing a felony, will be sufficient, (t) The 32 & 33 Vic, e. 21, s. 53, renders it a felony to enter any dwelling-house in the night, with intent to commit any felony therein, and thus dispenses with proof of a breaking under this clause. Sec. 50 provides that whosoever enters the dwelling-house of another, with intent to commit any felony therein, or being in such dwelling-house commits any felony therein, and in either case breaks out of the said dwelling- house in the night, is guilty of burglary. (o) Rex V. Spriggs, 1 M. & Rob. 357. (p) 2 Rubs. Cr. 9. {q) Ibid. 10. (r) Reg. v. Johnson. C. k Mar. 218. («) 2 Rubs. Cr. 8. {t) Ibid. 11 ; see Reg. v. Davis, R. ft R. 499 ; Reg. v. Bailey, R. & R. Ml. 228 THE CRIMINAL LAW OF CANADA. I'l i r. •St I Every house for the dwelling and habitation of man in taken to be a dwelling-house in which burg'lary may be com- mitted ; (u) and this dwelling-house formerly included the outhouses, such as warehouses, barns, stables, cow-houses, or dairy-houses, though not under the same roof or joining; contiguous to the dwelling-house, provided they were parcel thereof. But now the 32 & 33 Vic, c. 21, s. 52, enacts that such houses shall not be considered part of the dwelling- house for the purpose of burgla''y, unless there be a com- munication between such building and dwelling-house, either immediate or by means of a covered and enclosed passage leading from one to the other, (v) Unless the owner has taken possession of the house by inhabiting it personally or by some one of his family, it will not have become his dwelling-house as applied to the offence of burglary, {w) But the occasional or temporary absence of the owner will not prevent it from being his dwelling- house, (x) However, in these cases there must be an inten- tion, on the part of the owner, to return to his house, animus revertendi (y) As to the time of committing the offence, it is settled that in the daytime there can be no burglary, (z) If a house is entered in the daytime it is house-breaking and not burglary. By the 32 & 33 Vic, c. 21, ». 1, it is enacted that so far -as regards the offence of burglary the night shall be con- sidered to commence at nine o'clock in the evening of each .day, and end at six o'clock in the morning of the next suc- •ceeding day. The breaking and entering need not be both in the same night, provided the breaking be with the intent to enter, (u) 2 Rubs. Or. 16. (v) See Reg. v. Burrowes, I ]\Jood. C. C. 274 ; Reg. v. Higg8, 2 C. & K. 322 ; Reg. v. Jenkins, R. & R. 224. (w) 2 Rubs. Or. 21. (x) rdid. 23. (y) Ibid. 4 Bla. Com. 226. (z) 4 BIa. Com. 224. («) Cr. P (6) (c) : (d) (c) (/) (9) BURGLARY. 229 and the entry with the intent to commit a felony, (a) But the breaking and entry must both be committed in tlie night- time. If the breaking be in the day and the entry in the night, or the breaking in the night and the entering in the day, it is no burglary, (b) As to the intent, the offence must be with intent to com- mit some felony within the house, whether such felonious intent be executed or not ; (c) and when the breaking is a breaking out of the dwellini^-house in the night there must have been a previous entry with intent to commit a felony, or an actual committing of a felony in such dw«lling-house. (d) If the entry were only for the purpose of committing a trespass, the offence will not be burglary. But if a lelony be committed, the act will be prima facie pregnant evi.!ence of an intent to commit it. (e) And it is a general rule that a man who commits one sort of felony, in attempting to commit another, cannot excuse himself on the ground that lie did not intend the commission of that particular offence. (/) But it makes no difference whether the offence intended were felony at common law, or only created so by statute, on the ground that, when a statute makes an offence felony, it incidently gives it all the properties of felony at common law. (g) The offence of house-breaking is very nearly allied to that of burglary, the principal distinctions between them being that the latter is committed by night, the former by day ; and by the express language of the statute, the breaking and entering, in case of the former, must be accompanied with some larceny, and an intent to commit a felony is not suffi- cient. (a) Reg. v. Smith, R. ft R. 417 ; see Reg. v. Jordan, 7 C. & P. 432 ; Arch. Cr. Pldg. 490. (6) Reg. v. Smith, supra, (c) Ante p. 225. (rf) Ante p. 227. (e) See Beg. v. Locogt, Kel. 30. (/) 2 Rut.8. Cr. 41. (g) Ibid. 43. o 3 I r p . :I!H . Ill 230 THE CRIMINAL LAW OF CANADA. A man cannot be indicted for a burglary in his own house. Therefore, if the owner of a house break and enter the room of his lodger, and steal his goods, he can only be convicted of larceny, (h) The 32 & 33 Vic, c. 21, s. 54, makes it felony to break and enter any building, and commit anv f«Vny therein, such building being within the curtilage of a dwelling-house, and occupied therewith, though such building is not part thereof, according to the law of burglary. It is also felony for any one, being in any such building, to commit any felony therein, and break out of the same. Sec. 56 makes it felony to break and enter any dwelling-house, church, chapel, meeting-house, or other place of divine worship, or any building within the curtilage, school-house, shop, warehouse or counting-house, with intent to commit any felony therein ; and sec. 57 pro- vides that whosoever is indicted for any burglary, where the breaking and entering are proved at the trial to have been made in the daytime, and no breaking out appears to have been made in the night-time, or where it is left 'doubtful whether such breaking and entering, or breaking out, took place in the day or night-time, shall be acquitted of the burglary, but may be convicted of the offence specified in the next preceding section. By sec. 58, it shall not be avail- able, by way of defence, for a person charged with the offence specified in the next preceding section but one, to show that the breaking and entering were such as to amount in law to burglary, provided that the offender shall not be afterwards prosecuted for burglary upon the same facts ; but it shall be open to the court, before whom the trial for such offence takes place, upon the application of the person conducting the prosecution, to allow an acquittal, on the ground that the offence, as proved, amounts to burglary ; and if an acquittal takes place on such ground, and is so returned by the jury in delivering their verdict, the same shall be recorded, to- (A) Arch. Cr. Pldg. 496. BOBBERY. 231 getlier with the verdict, and such acquittal shall not then avail as a bar or defence upon an indictment for such burglary. Robbery. — This oiSence consists in the felonious taking of money or goods, of any value, from the person of another, or in his presence, against his will, by violence, or putting him in fear of purpose to steal the same, (i) Robbery is, in effect, larceny, aggravated by circum- stances of force, violence, or putting in fear ; and a party indicted for robbery may be convicted of larceny, as the latter crime is included in the former, {j) Fctrce is a neces- sary ingredient in robbery, but not in larceny, {k) Merely snatching property from a person unawares, and . running away with it, will not be robbery, [t) because fear cannot, in fact, be presumed in such a esse. The rule ap- pears to be well established that no such sudden taking or snatching is sufficient to constitute robbery, unless some injury be done to the person, or there be a previous struggle for the possession of the property, or some force used to obtain it. («i) The fear must precede the taking, for if a man privately steal money from the person of another, and afterwards keep it, by putting him in fear, this is no robbery, for the fear is subsequent to the taking, {n) The goods must be of some value to the party robbed ; and therefore, where the defendant compelled the prose- cutor, by threats, to sign a promissory note for a sum of money, it was holden by the judges Eiot to be robbery, because the note was of no value to the prosecutor, who had not even a property in or possession of the paper on which it was written, (o) Under such circumstances, how- ever, the defendant might now be indicted for the felony described in the 32 & 33 Vic, c. ?-l, s. 47. (i) Re BurUy, 1 U. C. L. J. N. S. 60, per /. Wilton, J. (j) Reg. V. McGrath, L. R. i C. C. R. 210-11, per Blackburn, J. (hibid. {I) Reg. V. Baker, I Leach, 290 ; Reg. v. Walls, 2 C. & K. 214. (m) i^xch. Cr. Pldg. 413-14. (n) Ibid. 416. (0) Ibid.; Reg. v. Smith, 2 Den. 449 ; 21 L. J. (M. C.) 111. 1 232 THE CRIMINAL LAW OF CANADA. ::f 1- %■ The ^oods must be taken either from the person of the prosecutor, or in his presence, (p) and against his will. If the party robbed consent to the robbery, the offence will not be made out ; but it is sufficient to prove that the goods were either taken from him by force and violence, or delivered up by him to the defendant, under the impression of that degree of fear and apprehension which is necessary to constitute robbery, (q) The goods must appear to have been taken animo furandi, as in other cases of larceny ; and if a person, under a bova fiM impression that the property is his own, obtain it by menace, that is a trespass, but not robbery, (r) An actual taking, either by force, or upon delivery, is necessary — that is, it must appear that the robber actually got possession of the goods. The goods must also be car- ried away, as in other cases of larceny ; but if the property be once taken, the offence will not be purged by the robbers delivering it back to the owner, (s) Upon an indictment for robbery, or for an assault with intent to rob, in different counts, it has been held that the prosecutor ought to elect upon which count he would pro- ceed, (t) But now, on the trial of an indictment for rob- bery, the jury may convict of an assault with intent to rob, iyb) so that the necessity of several counts in such case is obviated. («;) The proviso in s. 17 of the 32 & 33 Vic, c. 21, was in- tended to meet a difficulty which arose in Re/g. v. Skem,. {w) Larceny. — Theft is wrongfully obtaining possession of any movable thing which is the property of some other person, and of some value, with the fraudulent intent entirely to deprive him of such thing, and have or deal (p) See Reg. v. Francis, 2 Str. 1015 ; Reg. v. Hamilton, 8 0. & P. 49. (g) Arch. Cr. Pldg. 416-17. (r) lUd. ; Reg. v. HaU, 3 C. & P. 409. («) Arch. Cr. Pld. 417. (0 Reg. V. Oough, 1 M. ft Rob. 71. (M)32&33Vic., c. 21, s. 40. (i>) Arch. Cr. Pldg. 70. (to) Bell, 97 ; 28 L. J. (M. C. ) 91. LARCENY. 233 with it as the property of some person other than the owner, {x) Larceny has been also defined as the wrongful or fraudulent taking, and carrying away, by any person, of the mere personal goods of another, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner, {y) The goods taken must, in the absence of any express statutory enactment, be personal goods, for none other can be the subject of larceny at common law. (2) Bonds, bills, etc., being mere choses in action, are not the subject of lar- ceny at common law, for they are of no intrinsic value, (a) But the 32 & 33 Vic, c. 21, s. 15, and following sections, now render the stealing, destroying, cancelling, obliterat- ing, or concealing of any valuable security, or of any deed relating to land, or any record of any court of justice, or other legal documents, felony. The police court of Toronto is a court of justice within the meaning of these sections. (6) The indictment under these sections must particularize the kind of valuable security stolen, (c) When a note, which had been by mistake made out in favor of the defendant, and on discovery of the error returned by him unstamped and unendorsed, and after- wards stolen by him, and by him stamped and endorsed, it was held not a valuable security, {d) A party cannot commit larceny of a bond made by another person to hijnself, and, especially, he could not be guilty of larceny in stealing a bond from the obligor because a bond in the hands of the obligor could be of no value to him, as a bond, under any possible circumstances ; (x) Cr. Law Comrs. 3rd Rep. (y) Reg. v. McGrath, L. R. 1 C. C. R. 209, per KeUy, C. B.; 39 L. J. (M. C.)7. (z) Arch. Or. Pldg. 316. (a) Ibid. 317. (b) Reg. v. Mason, 22 U. C. C. P. 246. (c) Reg. V. Lovme, L. R. 1 C. C. R. 61 ; 36 L. J. (M. C.) 24. (d) Scott V. Reg., 2 S. R. C. 349. I 234 THE CRIMINAL LAW OF CANADA. ! Tii? and when the 2 Geo. II., c. 25, was in force, no other than a bond for the payment of money could be the subject of larceny, (e) Certificates treated and dealt with on the London Stock Exchange, as scrip of a foreign railway, are "valuable security " within the 7 & 8 Geo. IV., c 29, s. 5, and the subject of larceny. (/) On an indictment for stealing a piece of paper, the de- fendant could not be convicted of stealing an agreement, though unstamped, for building certain cottages, the work under whicl^agreement was actually in progress, (g) Larceny cannot be committed of things which are not the subject of property, (h) But partridges hatched and reared by a common hen, while they remain with her, and from their inability to escape, are practically under the dominion and in the pov/er of the owner of the hen, may be the subject of larceny, though the hen is not copfind in a coop, or other- wise, but allowed to wander with her brood about the premises of her owner, (i) Dogs not being the subject of larceny at common law, are not chattels within 7 & 8 Geo. IV., c. 29, s. 53, (j) There is no absolute property in animals ferce naturae, but only a special or qualified right of property— a right rcUioni soli to take and kill them ; and when killed upon the soil, they become the absolute property of the owner of the soil When the thing is not, in its original state, the subject of larceny, it is necessaiy that the act of taking should not be one continuous act with the act of severan(;e, or other act, by which the thing becomes the subject of larceny. (^) (e) Gavtrley v. Caverley, 3 U. C. Q. B. 0. S. 341, per Robinson, C. J. (/) Beg. V. Smith, 2 U. C. L. J. 59 ; Dears. 0. C. 561. {g) Beg. v. WcUta, Dears. 326 ; 23 L. J. (M, C.) 56 ; see now 32 tc 33 Vic. c. 21 B. 15. ' (A)' Arch.* Cr. Pldg. 318. (») Beg. V. S'-ickle, L. R. 1 C.C.R. 158 ; 38 L.J. (M.C.) 21 ; Beg. v. Oory, 10 Cox, 23, followed. (j) Beg. V. Bobinaon, 5 U. C. L. J. 143 ; Bell, 34 ; 28 L. J. (M.C.) 58. {%) Beg. V. Toumle^, L. B. 1 C. C. R. 317, per BoviU, C. J. LARCENY. 236 er than bjecfc of n Stock 'aluable and the t' 'V: i. f' the de- eement, work not the reared id from >minion subject p other- remises law, are T(B, but Tajbioni lie soil, he soil subject lid not ler act, J. 3, 33 Vic. IT. Oory, 158. Thus where poacliers, of whom the prisoner was one, wrongfully killed a number of rabbits upon land belonging to the Crown, and placed the rabbits in a ditch upon the same land, some of the rabbits in bags and some strapped together ; having no intention of abandoning the wrongful possession of the rabbits which they had acquired by taking tliem, but placing .Lem in the ditch as a place of deposit till they could conveniently remove them, which they did about three hours afterwards ; it was held that the taking of the rabbits and the removal of them was one continuous act, and that the removal was therefore not larceny. (/) But if the goods vest in the owner, in the interval between the severance and the removal, it is larceny (m) Potatoes severed from the soil, or dug and in pits, are clearly the subject of larceny, (to) The distinction between grand and petty larceny has been abolished, ftnd now all larcenies, whatever be the value of the property stolen, shall be deemed to be of the same nature* and shall be subject to the same incidents in all respects as grand larceny was before the distinction between grand and petty larceny was abolished, (o) There must be an actual or constructive taking of the ^oods, on the ground that larceny includes a trespass, (p) There must also be a carrying away ; but, as the felony lies in the very first act of removing the property, the leaer Black burn, J. (r) Reg. r. McOrath, L. R. 1 C. C. R. 210-11, per Black^m, J.; see Reg. T. Prince, L. R. 1 C. C. R. 160 ; 38 L. J. (M. C.) 8. S9 03 i 236 THE CRIMINAL LAW OF CANADA. I of the owner then the property would pass, and according to ft distinction to be afterwards pointed out, it would not lie larceny. If not taken feloniously, the taking would amount only to a bare trespass. Thus, where the prisoner's goods were seized under wai- rants of execution of a county court, and were in possession of a bailiff, aird the prisoner, with intent to deprive tlie bailiff, as he supposed, of his authority, and so defeat the execution, forcibly took the warrants from him, without any intent otherwise to make use of them, it was held that the prisoner was not guilty of larceny, (s) But in such case the prisoner might be guilty of taking the war- rants for a fraudulent purpose, within the meaning of the 32 & 33 Vic, c. 21, s. 18, by which the stealing of any records is made felony, (t) Returning the goods may be evidence to negative the animus furandi at the time of taking them, but it is no evidence that the prisoner intended to return them when taken. («) As to larceny of lost property, the general rule seems to be that if a man find goods that have been actually lost, or are reaso ■'ably supposed by him to have been lost, and ap- propriates them, with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny ; but if he takes them with the like intent, though lost, or reasonably sup- posed to be lost, but reasonably believing that the owner can be found, it is larceny, {v) It is necessary that the prisoner, at the time of finding, should believe that the owner can be ascertained, and without this, an intention to appropriate, at the time of the finding, will not make the (») M'-n. V. BaUey, L. R. 1 C. C. R. 347. (<) Ibid. (u) Reg. V. Cumminga, 4 U. C. L. J. 189, per Spragge, V. C; Beg. v. TrebUcock, 4 U. C. L. J. 168 ; Dears. & B. 453 ; 27 L. J. (M. C.) 103. (v) Reg. V. Thurbom, 1 D«n. 388 ; 2 C. t K. 831 ; 18 L. J. (M. C.) 140 ; affirmed in Reg. v. Olyde, L. R. 1 C. C. R. 139 ; 37 L. J. (M. C.) 107. LARCENY. 237 !ording to d not l»e i amount ider wai - ossession 3rive tl)e efeat the without was held But in the w&r- g of the ^ of any .tive the it is no m when seems to r lost, or and ap- ominion that the tie takes bly sup- e owner ;hat the hat the Qtion to ake the ; Itei/. V. 103. C.) 140? 107. prisoner guilty of larceny, though he ascertained the name of the owner before converting to his own use w) In these cases the first consideration is the prisoner's ground for believing that the goods were abandoned, (x) There is a distinction between property which is lost or abandoned, and that which ia only mislaid. If property is abandoned, any one may acquire a right against the owner, (y) and, as above explained, a person may, in certain cases, acquire a lawful title to lost property, and cannot, therefore, be found guilty of larceny. But if property is only mislaid or left in some place of deposit or security, a person fraudulently appropriating it is guilty of larceny. Thus where a purchaser at the prisoner's stall left his purse in it, and a stranger pointed out the purse to the prisoner, supposing it to be hers, and reproved her for carelessness, when she put it in her pocket, and afterwards concealed it, and on the return of the owner denied all knowledge (tf it. Upon an indictment for larceny, the jury found / V that he could not be convicted of larceny, although the jury being asked whether, at or after the time of finding, he believed that there was not a reasonable probability that the owner could be found, had answered that he did believe the owner could be traced, (a) Lastly, there must be evidence of a felonious intention to appropriate the property at the time of finding ; and evidence of a subsequent intention is insufficient, (h) Thus, where 'he pT-'- mev, a depositor in a Post Office savings bank, in hf n lis. stood to his credit, gave notice to withdraw 10s., kihI r,; clerk at the office of payment, by mistake referring to n iettt ^ advice for £8 16s. lOd., laid the latter sum upon the counter, which the prisoner, animo furandi, took up and appropriated to his own use, it was held that he was guilty of larceny, (c) But where a post letter, directed to J. D., containing a Post Office order, was misdelivered to J. D., one of the prisoners, who took it to W. D., the other prisoner, who read it to him. Upon hearing it j contents, J. D. said that the letter and order were not for him, when W. D. advised him, notwithstanding, to keep the letter, and get the money. Both prisoners accordingly applied at the Post Office, and obtained the money. It was held that a conviction of the prisoners for stealing the order must be set aside, {d) as there was no anirrms furandi iX the time of taking. It has been already stated that every larceny involves a trespass, and that the taking must be animo furandi and imnto domini. If the possession of the goods is lawfully obtained, there can be no larceny, nor can there be any larceny if the property in the goods is divested. The property in goods can only pass by a contract, which re- qui: '»s the assent of two minds ; but it is of the essence of the oflfence of larceny that the property be obtained against (a) Reg. v. Dixon, 2 U. C. L. J. 19 ; Dears. 580 ; 25 L. J. (M. C.) 39. (b) Reg. v. Christopher. 5 U. C. L. J. 143 ; Bell, 27 ; 28 L. J. M. C.) 35. (c) Reg. V. Middleton, L. R. 2 C, C. R. 38 ; see also Reg. v. Eumg, 21 U. (;. C. P. 623. (rf) Rec. V. Davief, 2 (J. C. L. J. 137 ; Dears. 640; 25 L. J. (M. C.) 91. LARCENY. 239 the jury iding, he '• that the 5lieve the ention to evidence 38t Office ve notice ''ment, by lOd., laid er, animo was held taining a le of the who read that the ised hill], i money, ffice, and )n of the le, (d) as ivolves a indi and lawfully 3 be any d. The vhich re- 3sence of { against . C.)39. M. C.) 35. Emng, 21 M. C.)91. the will of the owner. If, therefore, the owner intends to part with the property, by virtue of which intention the property would pass, there can be no larceny, however fraudulent the means by which the property is obtained. Or the law may be stated thus : When the prosecutor does not intend to part with the right of property in the goods or money taken by the defendant, or, in some cases, does not intend to part with the possession of them until they are paid for, and the defendant fraudulently gets pos- session of them, contrary to the intention of the owner, intending all the time not to pay for theAi, then the jury may find the party guilty of larceny. But where the owner voluntarily parts with ' the possession and property of ili» goods, and intends to vest them in the defendant, because he relies upon the defendant's promise to pay the moD«.y, or bring other property or money in place of those vescec' in him, then the prisoner cannot be convicted of larceny (e) Where a servant is intrusted with his master's propv - j , with a general or absolute authority to act for his master in his business, and is induced, by fraud, to part with his master's property, the person who is guilty of the fraud, and so obtains the property, is guilty of obtaining it by false pretences, and not of larceny, because, to constitute larceny, there must be a taking against the will of the owner, or of the owner's servant, duly authorized to act generally for the owner. But where a servant has no such general or absolute authority from his master, but is merely entrusted with the possession of his goods for a special or limited purpiose, and is tricked out of that possession by fraud, the person who is guilty of the fraud, and so obtains the property, is guilty of larceny, because the servant has no authority to part with the property in the goods, except to fulfil the special purpose for which they were entrusted to him. (/) (e) Beg. v. Bertles, 13 U. C. C. P. 610, per Richards, C. J. (/) Reg. V. Prince, L. R. 1 C. C. R. 150 ; 38 L. J. (M. C.) 8. CQ 240 THE CRIMINAL LAW OF CANADA. The cashier of a bank is a servant having such general authority ; and if he is deceived by a forged order, and parts with Jthe money of the bank, he parts intending to do so witli the property in the money ; and the person knowingly pre- senting such forged order is guilty of obtaining the money by false pretences, and not of larceny, (g) The 32 & 33 Vic, c. 21, s. 93, has amended the law on this point. The subtle distinction between these offences, which this Act intended to remedy, was, that if a person, by fraud, induced another to part with the possession only of his goods, it was larceny ; while, if with the property as well an the possession, it was not. (h) The following case will serve to make clearer the distinc- tion : — The prisoner, with another man, went into the shop of the prosecutrix, and asked for a pennyworth of sweetmeats, for which he put down a florin. The prosecutrix put it into the money drawer, and put down Is. 6d. in silver and five- pence in copper, in change, which the prisoner took up. The other man said, " You need not have changed," and threw down a penny, which the prisoner took up, and the latter then put down a sixpence in silver and sixpence in copper on the counter, saying *' Here, mistress, give me a shilling for this." The prosecutrix took a shilling out of the mon^y drawer, and put it on the counter, when the prisoner said to her, " You may as well give me the two-shilling piece, and take it all." The prosecutrix took from the money drawer the florin she had received from the prisoner, and put that on the counter, expecting she was to receive two shillings of the prisoner's money in exchange for it. The prisoner took up the florin, and the prosecutrix the silver sixpence and the sixpence in copper, put down by the prisoner, and also the shilling put down by herself, and was putting them into the money drawer, when she said she had (g) Reg. v. Prince, supra. ' (h) Jieg. V. Kilham, L. R. 1 C. C. R 263, per Bovill, C. J. LARCENY. 241 general 1(1 parts > eo with ily pre- oney by law on [>ffences, rson, by y of his well cm distinc- p of the at8, for it into ad five- p. The i threw 16 latter copper shilling I mon'-y ler said ? piece, money md put ve two t. The 3 silver by the nd wa.s jhe had only got one shilling's worth of the prisoner's money ; but at that moment the prisoner's companion drew away her atten- tion, and, before she could speak, the prisoner pushed his com- panion by the shoulder, and both went out of the shop. It yroB held that the transaction was not complete, and that the property in the florin had not passed to or revested in the prisoner, and, on that ground, he wp.p rightly convicted of larceny, {i) A. acted as auctioneer at a mock auction. He knocked down some cloth for 26s. to B., who had not bid for it, as A- knew. B. refused to take the cloth, or to pay for it, and A. refused to allow her to leave the room unless she paid. Ulti- mately, she paid the 26s. to A. and took the cloth. She paid the 26s. because she was afraid. A. was indicted for, and convicted of feloniously stealing the 26s. It was held that the conviction was right, because, if the force used to B. made the taking a robbery, all the elements of larceny were included in that crime ; and if not sufficient to constitute a robbery, the taking of the money, nevertheless, amounted to larceny, as B. paid the money to A. against her will, and because she was afraid, (j) A. & B., by false representations, induced C. to become the purchaser of a dress for 25s. They then took one guinea out of her hand, she being taken by surprise, and neither con- senting nor resisting, and left with her a dress of considerably inferior value, but refused to give her one which they had promised to give, if she would buy that. Upon a case re- served, as to whether the facts warranted a verdict of guilty of larceny, it was held that they did ; the court being bound to assume that it was part of the fraud to obtain the property by a false sale ; and, if so, there was no contract, but a fraud, whereby the felony was committed, (k) A quantity of wheat, not the property of the prosecutors, {«) Heg. V. McKale, L. R. 1 C. C. R. 125 ; 37 L. J. (M. C.) 97. ... U)Reg. V. McOrath, L. R. 1 C. C. R, 205 ; 39 L. J. (M. C.) 7. (*) Reg. V. Morgan, lU. C. L. J. 37 ; Dears. 396. P 3 QQ 242 THE CRIMINAL LAW OF CANADA. having been consigned to their care, was deposited in one of their storehouses, under the care of a servant, £., who had authority to deliver only to the orders of the prosecutors, or C, their managing clerk. The prisoner, a servant of the pro- secutors, at another storehouse, by representation to £. that he had been sent by C. for some of the wheat and was to take it to the Brighton Railway, which representation was entirely false, obtained the key from K, and was allowed to remove five quarters, which he subsequently disposed of for his own use, the prisoner assisting to put the five quarters into the cart, in which it was conveyed away, and going with it. The prisoner was held guilty of larceny ; for the wheat was de- livered to him for a special purpose, namely, to be taken to the Brighton Railway, and the property remained in the pro- secutors throughout, as bailees. (/) But where the servants of a glovemaker broke open a store- room on their master's premises, and removed to another room, in the same premises, a quantity of finished gloves* with the intent of fraudulently obtaining payment for them, as for so many glovt " ' bed by themselves, it was held that they were not guilty oi larceuj, l-^cause there was no inten- tion to divest the property in the goods, (m) Where a man having animus furandi obtains, in pur> suance thereof, possession of the goods by some trick or artifice, the owner not intending to part with his entire right of property, but with the temporary possession only, this is considered such a taking as to constitute larceny, (n) Thus it was the course of business at a colliery, where coal was sold by retail, to take the carts, when loaded, to a weigh- ing machine in the colliery yard, where they were weighed, and tHe price of the coal was paid. The prisoner having gone to the colliery with a fraudulent intent, a servant of the pro- secutor, upon the prisoner saying he wanted a load of the {I) Beg. V. Jiobina, 1 U. C L. J. 17 ; Dears. C. C. 418. (m) Beg. v. PooU, 4 U. C. L. J. 73 ; 27 L. J. (M. C.) 63 ; Dears, k B. 346. (li) Arch. Cr. Pldg. 333. LARCENY. 24:{ best soft coal, loaded prisoner's cart with soft coal, and went away, leaving him to take it to be weighed and pay for it. The prisoner then fraudulently covered over the soft coal with slack, an inferior coal, and by this trick, and by saying that the coal in the cart wa9 slack, induced the weighing clerk, who did not know that the cart contained soft coal, t» wei^h it as slack, and charge the prisoner accordingly. It was held that the prisoner had obtained possession of the soft coal by a trick, and that he was properly convicted of larceny, (o) A policeman, late at night, met the prosecutor, who had just parted from a prostitute, and told him that he must go with him (the policeman) to gaol, for he was under a penalty of £1 for talking to a prostitute in the street ; but if he would give him 5s., he might go about hi» business. The prosecutor gave him 4s. 6d., but, while he was searching for the other 6d., the inspector came. It wa» held to be no answer to the charge, that all the money had not been obtained. The offence was a larceny, and w»i also a menace within the meaning of the Act. (p) Where a porter was employed by the vendor of goods to deliver them to the vendee, but had no authority to receive the money for them, and the vendee, nevertheless, volun- tarily, and without solicitation, paid the porter : it was held by a majority of the judges that a conviction for larceny was not sustainable, (q) as the possession of the money wa» lawfully ootained. In the case of bailment or contract of hiring, it must have been made to appear that the animus furandi existed at the time of recei ing the chattel, and was not induced by anything that happened afterwards, {r) But by the 32 & 33 Vic, c 21, s. 3, the law in this re- (0) Reg. V. Bramley, 7 U. C. L. J. 331 ; L. & C. 21. (p) Beg. V. Robertson, 11 L. T. Rep. N. S. 387 ; L. & C. 483 ; 34 L. J. (M. C.) 35 ; see also Reg. v. Ihoing, 21 U. C. Q. B. 523^ as to what con- stitutes larceny. iq) Reg. v. Wheeler, 14 W. R. 848. (r) Pease v, McAUxm, 1 Kerr, 116, per Parker ^ 3. 2 244 THE CRIMINAL LAW OF CANADA. X El spect has been altered, and in cases of bailment a felonious intc_ib, at the time of obtaining, is no longer necessary to constitute larceny. Even before this statute, although the goods had, in the first instance, been obtained without a felonious intent, yet tf the possession of them was obtained by a trespass, the subsequent fraudulent appropriation of them, during the continuance of the same transaction, was a larceny, (s) A man cannot, however, be convicted of larceny as a l)ailee, unless the bailment was to redeliver the very same chattel or money, (t) The prisoner, a carrier, was employed by the prosecu- tor to deliver in his (the prisoner's) cart a boat's cargo of coals to persons np.med in the list, to whom only he was authorized to deliver them. Having fraudulently sold some of the coals, and appropriated the proceeds, he was held to have been properly convicted of larceny as a ibailee. (u) And a prisoner who hired a pair of horses from a livery stable, to go to a particular place, and afterwards absconded with them, not intending at first to steal, but, having accom- plished the object of hiring, made up his mind to convert them to his own use, was held properly convicted on an indictment for larceny, in the ordinary form, (v) But the lessee of a pawn who sells it, is not guilty of lar- ceny, under the above clause, (w) A., tha proprietor of a quantity of broora-corH, delivered it to B., under the agreement that when B. should have manu- factured it into brooms, he should not sell them, but that A.'s clerk should sell them on A.'s account ; that A. should deduct his advances from the proceeds of the sale of the (s) See Reg. v. liiley, Dears. 149 ; 22 L. J. (M. C.) 48 ; Arch. Cr. Pldg. 340. {/) Reg. V. rioare, I F. & F. 647 ; Reg. v. Garrett, 2 F. & F. 14 ; Reg ▼. h'oHseU, L. & 0. 58 ; 30 L. J. (M. C.) )7fl. (m) Reg. V. Daviea, 14 W. R. 679 ; 10 Cox, 239. (v) Reg. V. Tweedy, 23 U. C. Q. B. 120. iw) Gould V. Cowan, 17 L. C. R. 46. LABCENY. 245 'elonious 53sary to d, in the lent, yet aas, the fing the (s) ny as a ry same P •rosecu- 3argo of he was ly sold he was y as a a livery sconded accom- convert 1 on an of lar- rered it manu- it that should of the r. Pldg. ; Heg ▼, brooms, and B. should have the balance. B. supplied the smaller material requisite in working up the broom-corn intO' brooms. B. did not keep his agreement with A., but manu- factured the brooms and converted them to his own use. It was held that A.'s delivery of the broom-corn to B. was a bail- ment to him. and that B.'s fraudulently converting it to his own use was larceny, in the terms of Con. Stats. Can., c. 92, s. 55. (oj) Money is property of which a person can be bailee, so as to make him guilty of felony if he appropriates it to his own use. (y) And when a clerk, in performance of his duty, places money received by him in a safe, the property of his em- ployers, his exclusive possession of that money ceases, even though the office containing the safe be his, and a subsequent appropriation of any of that money will amount to larceny, {z) It seems that a married woman may be a bailee within 82 & 33 Vic, c. 21, s. 3. (a) If the goods of the husband be taken with the consent or privity of the wife, it is not larceny ; (6) and this even though she has been guilty of adultery, (c) Still, the fact of her being an adulteress might go to show a revocation of her authority to dispose of her husband's goods ; and if others acted in concert with her in taking, that might amount to larceny on the part of those others, (d) And where the prisoner was indicted for stealing certain chattels from his master, while in his employment, it was proved that he went off with his master's wife, animo aduUerii^ and knowingly took his master's property with him. On objection for the prisoner that he was acting under the control (x) Reg. V. Leboeuf, 9 L. C. J. 245. (y) Beg. v. Maasey, 13 U. C. C. P. 484. (z) Reg. V. Wright, 4 U. C. L. J. 167 ; Dears. & B. 431 ; 27 L. J. (M. C. ) (S5 ; and see Reg. v. Hennessy, 35 U. C. Q. B. 603. (o) Reg. V. Robson, L. 4rC. 93 ; 31 L. J. (M. C.) 22 ; Arch. Cr. Pldg. 341. (6) Reg. v. Harrison, 1 Leach, 47 ; Reg. v. Avery, 5 U. C. L. J. lil "» •.. Bell, 150 ; 28 L. J. (M. C.) 186. (c) Reg V. Kenny, L. R. 2 Q. B. D. 307. (d) Ibid., per Kelly, C. B. OK ^ S !5 -246 THK CRIMINAL LAW OF CANADA. II of its mistress, who could not be charged with stealing from her husband, and that, therefore, the charge could not be sustained, the court sustained the conviction, (e) A servant and a bailee, at coipmon law, are in a different position, for a bailee has the possession of the goods entrusted to him, a servant only the custody. (/) A servant, there- fore, not having the lawful possession of his master's goods, might be guilty of larceny independently of the statute. And where a servant, whose duty it was to pay his master's workmen, and, for this purpose, to obtain the necessary money from his master'vS cashier, fraudulently represented to the cashier that the wages due to one of the workmen were larger than they really were, and so obtained from him a larger sum than was, in fact, necessary to pay the workmen; I'ntending at the time to appropriate the balance to his own use, which he afterwards did ; it was held that, whether the obtaining the money in the first instance was larceny, or obtaining the money by false pre- tences, the money, while it remained in the prisoner's cus- tody, was the property and in the possession of the master, the prisoner being the servant of the latter, and therefore the appropriation of it by the prisoner was larceny, (g) The 32 & 33 Vic, c. 21, s. 38, enacts that " Whosoever, being a member of any copartnership, owning any money •or other property, or being one of two or more beneficial owners of any money or other property, steals, embezzles, <5r unlawfully converts the same or any part thereof to his ■own use, or that of any person other than the owner, shall be liable to be dealt with, tried, convicted and punished as if he had not been or were not a member of such copart- nership, or one of such beneficial owners." This section has been held practically inoperative in the Province of Quebec, as a partner, having a right, both of (e) Be Mutters, 13 W. R. 326 ; L. & C. 5) 1 ; 34 L. J. (M. C.) 54. (/) Rey. V. Oooke, L. R. 1 C. C. R. 300, per Bovill, C. J. (g) Ibid. 295 ; but see Beg. v. Thompson, 32 L. J. (M. C.) 67 ; L. AC, 233. LARCENY. 247 ng from not be different dtrusted there- s goods, ite. )ay his ain the lulently B of the btained to pay ate the it was le first Ise pre- r's cus- master, erefore (9) •soever, money aeficiaJ )ezzles, to his r, shall hed as jopart- in the 3th of & C, poBsession and property, in the joint goods, the elements of larceny and its kindred offences are wanting, {h) This technical difficulty is precisely the evil which the section was intended to remedy, and according to Lord Coke's rule, is the consideration which should determine its construction. Previously to the passing of this section, it was held in the same province, that a shareholder in an incorporated company could not commit larceny from the company, nor be guilty of obtaining its money by false pretences, on the ground that he was a joint owner of its funds and pro- perty, {i) It would seem that a party cannot be convicted under the :32 & 33 Vic, c. 21, s. 26, for stealing fruit, " growing in a garden," unless the bough of the tree upon which the fruit was hanging was within the garden. It is not sufficient that the root of the tree is within the garden, {j) The 32 & 33 Vic, c. 21, s. 25, applies only to trees attached to the freehold, not to trees made into cordwood. (k) In estimating the amount of the injury, under section 21 of same statute, the injury done to two or more trees may be added together, provided the trees are damaged at one and the same time, or so nearly at the same time as to form one continuous transaction. {I) Before the passing of the 32 & 33 Vic, c. 21, ss. 5 and 6, it was necessary that there should be a separate indictment for each act of larceny, or the prosecutor must have proved that the articles were all taken at the same time, or at several times so near to each other as to form parts of one continuing transaction, otherwise the court would have put the prose- cutor to elect for which act of larceny he would proceed, (m) But by this statute, three different acts may now be proved on one indictment for larceny. The question, whether the several QK 5 (A) Reg. v. Lowenhruck, 18 L. C. J. 212. («) Reg. V. St. Louis, 10 L. C. K. 34. <»■ ) McDonald v. Cameron, 4 U. C. Q. B. 1 ; see 4 & 5 Vic, c. 26, s. :}4. (k) Reg. v. Gaswett, 33 U. C. Q. B. 303. (I) Reg. V. Shepherd, L. R. 1 C. C. R. 118 ; 37 L. J. (M. C.) 45. ' " Reg. V. SviUh, Ry. & M. 295 ; Arch. Cr. Pldg. 315. 248 THE CRIMINAL LAW OF CANADA. /' acts av: several ^akings or only one, is the same ap before i.hnl statute, (n) Before the section is applicable, it must be established that there were takings at different times, within the six months, which are to be calculated from the first to the last of such takings, (o) Where gas was stolen by means of a pipe, which wao joined to the main and always remained full, .he gp-^ being turned off only at the burners, it was held to be a continuous taking, (p) The 32 & 33 Vic, c. 21, s. 112, provides for the punish- ment of persons bringing into or having in their possession in Canada, knowingly, any property stolen, embezzled, cou- verted or obtained by fraud or false pretences, in any other country, in such manner that the stealing, etc., in like man- ner in Canada would, by the laws of Canada, be a felony 02 misdemeanor. The Court of Queen's Bench had, at common law, no juris- diction to issue a writ of restitution, except as part of the judgment on an appeal of larceny. The 21 Hy. VIII., c. 11^ and 32 & 33 Vic, c 21, s. 113, only confer this jurisdiction on the court before whom the felon has been convicted, (q) Where the defence to a charge of l''>^»ieny was that the goods were the prisoner's own, and > i't iry brought in a verdict of not guilty, it was held to oe a virtual finding that the goods were not the property of the prosecutor, and, therefore, that the presiding judge could not order resti- tution, (r) If, upon an indictment for stealing, as the servant of the prosecutor, money alleged to be his property, it appears fronj the evidence that the prisoner stole the money from him, biit tbat he was not his servant, the allegation in the indictment (n) Jk<%- V. link, L. R. 1 fj. C. R. 175, per Bovill, C, J. {0) Ibid.; Rtg. V. Bleaadai-i, 2 CJ. & K. 765. (i') Reg. V AhK L. R. 1 C. G. ti. 172 ; 38 L. J. (M. C. ) 54. iq) lief? V. Lyrd M^for 0/ London, L. R. 4 Q. B. 37K (.♦•) R^t, -? iSvdeth, 5 All. 201. that he \ the priso An in iiotes ' sufficient " moneys and the B." (0 their leg question, The pi mon em received with the written the agent his empl( was wror A boy o] his fathei the day i stall, wh< prisoner: ship of t not a bai OneC son, in mv indictme nor deliv ox was ii a case si that, to 1 («) Reg- it) Reg. («) Reg. iv) Reg. (w) Reg. (M. C.) 17 LAKCENY. 24^ that he was his servant may be rejected as surplusage, and the prisoner may be convicted ot' simple larceny, (s) An indictment charging the prisoner with stealing bank notes " of the moneys, goods, and chattels of one J. B." sufficiently lays the property in the notes as the words, " moneys, goods, and chattels " may be rejected as surplusage and the indictment would then read " bnnk notes of one J. B." (t) As itealing bank notes is expressly made larceny, their legal character, as chattels, or otherwise, is not in question, because stealing them eo nomine is made felony, (u) The prisoner was sent by his fellow-workmen to their com- mon employer to get the wages due to all of them. He received the money in a lump sum, wrapped up in pap; v with the names of the workmen and the sura due to each written inside ; it was held that he received the money as tlie agent of his fellow-workmen, and not as the servant of his employer, and as the money belonged to the workmen, it was wrongly de&cribed as the property of*the employer, (v) A boy of fourteen years of age, living with, and assisting his father in his business without wages, at one o'clock in the day succeeded his father in the charge of his father's stall, whence some goods of the latter were stolen by the prisoner: it was held that, in a count for larceny, the owner- ship of the goods could not be laid in the boy ; for he was not a bailee, but a servant, (w) One C. was owner of an ox, and verbally gave it to his son, in whose name it was laid as being the owner in the indictment. There was no removal at the time of the gift, nor delivery, nor change of possession, nor writing ; but the ox was in the sou's possession at the time of the theft. On a case submitted for the opinion of the court, it was held that, to make a valid gift of personal property inter vivos, it («) Reg. V. Jennings, 4 U. C. L. J. 166 ; Dears. & B. 447. it) Reg. V. Saunders, 10 U. C. Q. B. 544 ; Reg. v. Radtey, 2 C. & K. 974. (tt) Reg. V. Saunders, supra, 544, per hobiruson, C. J. («) Reg. V. Barnes, L. R. 1 C. C. R. 45 ; 35 L. J. (M. C.) 204. {w)Reg. V. Green, 3 U. C. L. J. 19; Dears. & B. 113 ; 26 L. J (M. C.) 17. ::3 OQ 3C 250 THE CRIMINAL LAW OF CANADA. s^ is not necessary that there should be an actual delivery and change of possession. It is sufficient to complete such a gift, that the conduct of the parties should show that the ownership of the chattel has been changed, or that there has ( been an acceptance by the donee, and that therefore the pro- perty was well laid in the indictment, (x) The prisoner was indicted for stealing the cattle of R. M. At the trial R M. gave evidence that he was nineteen years of age ; that his father was dead ; that the goods were bought with the proceeds of his father's estate ; that his mother was administratrix, and that the witne^^s managed the property, and bought the cattle in question. On ob- jection that the property in the cattle was wrongly laid, the indictment was amended by stating the goods to be the property of the mother. The case proceeded, and no further evidence of tiie administrative character of the mother was given ; the county court judge holding the evidence of R. M. sufficient, and not leaving any question, as to the property, to the jury. On a case r* served, it was held that there was ample evidence of possession in R. M., to support the indictment, without amendment, (y) The conviction on the amended indictment was not sustainable, as the judge had apparently treated the case, as established by the fact of the cattl? being the mother's property in her repre- sentative character, of which there was no evidence, nor was any question of ownership by her, apart from her representative character, left to the jury, (z) Former! V, where goods stolen were the property of part- ners or ;«.);" nt ovviitiis, all the partners or joint owners must have been (jorfectl/ named in the indictment, otherwise the defendants wouid have been acquitted, (a) But now the 32 nothing in the pocket, even putting the hand inta it has been held not to be an attempt to steal, (g) The prosecutor carried his watch in his waistcoat pocket, the chain attached passing through a buttonhole of the waistcoat, and being there kept from slipping through by a watch key. The prisoner took the watch out of the pocket, and drew the chain out of the buttonhole, but, hit- hand being seized, it appeared that, although the chain and key were drawn out of the buttonhole, the point of the key had caught up another button, and was thereby sus- (e) Seg. v. Sogers, L. R. 1 C. C. R. 136 ; 37 L. J. (M. C.) 83. {ee) Reg. v. Johnson, 4 U. C. L. J. 49 ; 1 Dears. & B. C. C. 340. (/) 32 & 33 Vic , c. 21, s. 75 ; see Reg. v. Healey, 1 Mood. C. C. 1. {f^2 Russ. Cr. 369. ig) Reg. v. Taylor, 8 C. L. J. N. S. 55, per Sergeant Cox. STEALING FROM THE PERSON — EMBEZZLEMENT. 253 it), under prisoner •ssessioii, dom), liH F a great be sup- entioned ice as to may be etting ti> ng from removeil be done io aecer- temptto nothing ioes not there is [> it has I pocket, i of the )Ugh by b of the but, his lain and ; of the by SU8- C. 1. pended. It was held that the evidence was sufficient to warrant a conviction for stealing from the person, (gg) In order to bring a case within the 32 & 33 Vic, c. 21, m. 44, as to obtaining property by threats, the demand, if suc- cessful, must amount to stealing, and to consti^ufe a menace, within that section, it must be of such a nature as to unsettle the mind of the person upon whom it operates, and to take away from his acts that element of voluntary action which alone constitutes consent ; it must, therefore, be left to the jury to say whether the conduct of the prisoner is such as to have had that effect upon the prosecutor, (h) Where a policeman professing to act under legal authority threatens to imprison a person, on a charge not amounting to an offence in law, unless money be given hiift, and the person, believing him, gives *he money, the policeman may be indicted under that section, although he might also have been indicted for stealing the money, (i) Demanding, with menaces, money actually due is not a demanding with intent to steal (J) Embezzlement. — This offence is defined to be the act of appropriating to himself that which is received by one person in trust for another, {k) But in this large sense it was not criminal at common law, nor has it been rendered so by statute. The legislature, however, ha^ from time to time specified different classes of cases, all coming within the meaning of the term embezzlement in the above sense, which it has declared to be criminal. (/) Embezzlement, in its usual and more limited acceptation, Imports the reception of money belonging to the master or employer of him who receives it in the course of his duty, (gg) Reg. v. Simpson, 1 U. C. L. J. 16 ; Dears. 621 ; 24 L. J. (M. C.) 7 ; ■see also Reg. v. Thompson, 1 Mood. C. 0. 78. [h) Reg. v. Walton, L. & C. 288 ; 32 L. J. (M. C.) 79. (t) Reg. V. Robertson, L. & C. 483; 34 L. J. (M. C.) 35. (./) Reg. V. Johnson, 14 U. C. Q. B. 569. (k) Reg. \. Cumminga, 4 U. C. L. J. 183, per Blake, Ch. (/) Ibid. QK 2 254 THE CRIMINAL LAW OF CANADA. and the fraudulent appropriation of that money before it gets into the possession of the master, (m) To constitute the crime of embezzlement, there must be an employment as clerk or servant. Thus the prisoner, not having been in the employ of the prosecutor, was sent by him to one M. with a horse, as to which M. and the prosecutor, who owned the horse, had had some negotiations, with an order to M. to give the bearer a cheque if the horse suited. Owing to a difference as to the price, the horse was not taken and the prisoner brought hiui back. Afterwards, on the same evening, the prisoner, without any authority from the prosecutor, took the horse to M. and sold it as his own property, or professing to have the right to dispose of it, and received the money, giving a receipt there- for. It was held that the employment had ceased, and that when the prisoner received the money he received it for his own use and not as clerk or servant of the prosecutor, and ihat therefore a conviction for embezzlement could not be sustained, (n) But where a " charter master," who received a certain sum for every ton of coal he raised, was also allowed to sell coal for his employer, the owner of the colliery, it being the prisoner's duty to pay over the gross money received on such sales, he being subsequently allowed a poundage thereon : he was held guilty of embezzlement for having converted money received for coal to his own use, and neglected to account for it. (o) A person who receiVes no remuneration for his services, is not a clerk or servant within the Act ; {p) but that character may be established if the party is entitled to recover for his services on a qvMntum meruit, (q) A mortgagor, though strictly a tenant at sufferance, cannot {m) Ferris v. Irvrin, 10 U. C. G. P. 117, per Draper, C. J. (n) Reg. v. Topple, 3 Russell & C. 666. (o) Heg. V. Thomas, 1 U. C. L. J. 37 ; 6 Cox, C. C. 403. (p) Reg. V. Tyree, L. B. 1 C. C. R. 177 ; 38 L. J. (M. C.) 58. {q) Reg. V. Foulkes, L. R. 2 C. C. R. 160. STEALING FROM THE PERSON — EMBEZZLEMENT. 265 efore it 3t be ail ^ of the e, as to iiad had learer a ) to the ^ht hiui without M. and right to pt there- \nd that b for his itor, and i not be mn sum sell coal sing the on such reon : he d money ount for rvices, is haracter r for his ?, cannot be convicted of embezzlement in relation to tbo mcrtgaged i-iopeity. (r) It seems from the cases that a commercial traveller, whether paid by commission or salary, who is under orders to go here and there, is a clerk or servant within the mean- ing of the statute ; (s) and this, though at liberty to take orders for others, (t) It is a question for the jury whether a pel son is a clerk or servant, (it) The employment to receive money may be sufficient, though receiving money is not the prisoner's usual employment, and though it may have been the only instance of his having been so employed, {u) • The chattels, moneys or valuable securities must be re- ceived from third persona; if from the employer himself, if any offence, it will amount to larceny, (v) This distinction is, however, of little practical importance, as section 74 of the statute under consideration provides that persons indicted for embezzlement may be convicted of larceny, and vice ver^. The money or securities must be received in the name, or for, or on account of the employer. Thus, where the prisoner was apprenticed to a baker, and had authority from his master to deliver bills for bread t«) customers and receive the money, and in payment ot one account took a bank cheque payable to his master's order, upon '«?7hich he forged his master's name and received the money from the bank : it was held that the money received never having been the property of his employer, but the property. of the bank — the forgery not operating to discharge the bank — was not received for or on account of the master, and that therefore the person was not guilty of embezzle- ment {w) (r) McGregor v. Scarlett, 7 U. C. P. R. 20. (a) Arch. Crim. Pldg. 448 ; Heg. v. Mayle, 11 Cox. 150 ; Beg. v. Marshall, 11 Cox, 490 ; but see Reg. v. Bowers, L. B.. 1 C. C. R. 41 ; 35 L. J. (M. C, 206 ; Heg. v. Negua, L. R. 2 C. C. R. 34. . (0 Reg. V. Tite, 7 U. C. L. J. 331 ; 30 L. J. (M. C.) 142. {«) See Reg. v. Negus, L. R. 2 C. C. R. 34. (tt) Reg. V. Tongue, 8 U. C. L. J. 65 ; Bell, 289 ; 30 L. J. (M. C.)49. (V) Reg. V. Cummings, 4 U. C. L. J. 182 ; 16 U. C. Q. « 15. {w) Reg. V. Hathaway, 6 Allen, 382. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 lii US tig 1^ m m 25 2.2 2.0 HiotDgraphic Sciences COTporafion 23 WIST MAIN STREiT WIUTIR.N.Y. 14SM (716)S72-4S03 266 THE CRIMINAL LAW OF CANADA. t So where the prisoner, the captain of a barge in the ex- clusive service of its owner, to whom the prisoner was bound to account for all its earnings, and having no authority t^) take any other cargoes than those appointed for him, took on board a certain cargo, though ordered not to carry it but to bring the vessel back empty, and received the freight there- for, and appropriated it to his own use, not professing to receive it for his master, and on being charged with disobe- dience to orders, declared that the vessel had come back empty; it was held that the money was not received for or on account of his master within the meaning of the Act. {x) But where*a clerk, whose duty it was to endorse cheques Aud hand them over to the cashier of the company in whose employ he was, endorsed several cheques and obtained money for them from friends of his own, and paid the proceeds over to the cashier, saying he wished them to go against his salary, which was overdrav^n : on conviction, it was held that such proceeds were received on account of the company, and that the prisoner was therefore rightly convi'cted. (y) The former statute. Con. Stat. Can., c. 92, rendered it necessary that the prisoner should have received the money " by virtue of such employment," and that the money was so received must have appeared in evidenc3 ; (2) but those words are omitted in the present enactment on the subject, so it is apprehended that if a clerk or servant receive money for his master and embezzle it, he may now be convicted of embezzlement, although it was neither his duty to receive it, nor had he authority to do so. (a) The statute applies whether the employer be an indi- vidual or a corporation ; and it has been held that friendly societies, though some of their rules may be in restraint of (x) Jteg. V. Cullum, L. R. 2 C. C. R. 28. (y) Seg. v. Oale, L. R. 2 Q. B. D. 114. (z) See Beg. v. Thorley, 1 Mood. C. C. 343; Beg. v. Havotin, 7 C. & 1>. 281 ; Reg. v. MeUiah, R. A R. 80 ; Reg. v. Snowleu, 4 C. & P. 390 ; Ferris V. Irwin, 10 U. C. C. P. 116. (a) See Aroh. Gr. Pldg. 453. til:. EMBEZZLEMENT. 257 the ex- is bound [lority to took on it but to ht there- 388ing to li disobe- me back red for or Bt. (x) ) cheques in whose Bd money leeds over his salary, that such , and that ndered it 18 money loney was )ut those le subject, Lve money nvicted of to receive an indi- t friendly 3straint of in, 7 C. & y 390 ; Ferris trade, are entitled to the protection of the criminal law over their funds, (b) Where the property was laid on a trustee of a savings bank, it was held not enough to show merely that the trustee acted as such on one occasion, without producing evidence of his appointment, (c) Where a fund belonging to the late Trinity House was vested by statute in the master, deputy-master and wardens of the Trinity House of Montreal, the property was held properly laid in Her Majesty, (d) It is no defence to an indictment for embezzlement that the prisoner intended to return the money fraudulently appropriated ; (e) nor that he had entered the sum appro- priated in his master's ledger. (/) And omitting to credit a sum received, but charging it as paid away, for the frau- dulent purpose of concealing an appropriation, i^ ample to support a conviction, (g) But the prisoner must be shown to have received some particular sum, (h) and a general deficiency of account will not alone ground a conviction, (t) There have been several decisions, both in England and in this country, under the 32 & 33 Vic, c. 21, s. 76, and fol- lowing sections, relating to frauds by persons intrusted, the results of which are given below. As to tTUrusting. — The defendant, an attorney, was em- ployed to raise a loan of money on mortgage, of which he was to apply a part in paying off an earlier mortgage, and hand over the rest to the mortgagor. He prepared the {b) R«g. V. Stainer, L. R. J. 1 C. C. R. 230 ; 39 L. R. (M. C.) 64. (e) Seg. v. Eaaex, 4 U. 0. L. J. 73 ; Dean, ft B. 371 ; 27 L. J. (M.C.) 20. {d) Beg. v. David, 17 L. C. J. 310. («?) Jieg. V. Gumminga, 4 U. C. L. J. 189, per Spragge, V. C. (/) Reg V. Lister, 3 U. C. L. J. 18 ; Dears, ft B. 119 ; L. J. (M.C.) 26. ig) R«9' ▼• Cummingfi, tupra. (h) Keg. V. Chapman, 1 C. ft K. 119, per WUlianu, J. ; Reg. v. Jones, 7 V. ft P. 833, per ^o/^and. B. ; Reg. v. Wolstenhotme, 11 Ck>x, 313, per Brett, J. ; bat see Reg. v. Lambert, 2 Coz, 309, per Erie, J. ; Reg. v. Moah, Dears. 626 ; 25 L. J. (M.C. ) 66. (i) Reg. v. Jones, 8 C. ft P. 288, per Alderson, B. ; Reg. y. GumnUngs, 4 U. C. L. J. 185, per Draper, C. J. 09 ! 258 THE CRIMINAL LAW OF CANADA. ^ O mortgage deed, received the mortgage money, and handed over the deed to the mortgagee in exchange. He then mis- appropriated a part of the money to his own use. It was } eld that he was not " intrusted" for any of the purposefl mentioned in sections 76 or 77. (/) And an agent who properl}r receives money by check pay- able to his own order, and deposits the same in his own bank, and fails to pay over, is not indictable under section 76 for having securities for special purpose without authority to negotiate, (k) The words " or other agent " do not extend the meaning of the previous clause, "banker, merchant, broker, attorney," but only signify persons, the nature of whose occupation was such that chattels, valuable secuiities, etc., belonging to third persons would, in the usual course of their business, be intrusted to them. (/) Where the prisoner, a stock and share broker, wrote to the prosecutrix, stating that he had purchased certain bonds for her, and enclosed a contract note with the letter, and the prosecutrix, in reply, sent the following : " I have just received your note and contract note for three I shares (those mentioned in the prisoner's letter), and enclose a cheque for £336 in payment ;" and the prisoner never paid for the bonds, but in violation of good faith appropriated to his own use the proceeds of the cheque. It was held that the letter of the prosecutrix was a direction in writing within section 76, and that the prisoner was properly convicted, (m) The power of attorney mentioned in section 78 must be a written one, and a merely verbal authority will not bring the defendant's act within the scope of that section, (n) On an indictment under the corresponding English section of the 32 & 33 Via, c. 21, a. 73, it appeared that the prisoner was a member or a copartnership. It was his duty to receive ( »■ ) Reg. V. Cooper, L. R, 2 C. C. R. 123. I (k) Beg. v. TaOock, L. R. 2 Q. B. D. 107. il) Reg. V. Hynes, 1.3 U. C. Q. B. 194. (m) Reg. v. Christian. L. R. 2 G. C. R. 94. in) Reg. v. Chouinard, 4 Q. L. R. 220. EMBEZZLEMENT. 269 Landed m mis- It Wft8 irposefl ;k pay- nbank, I 76 for Drity to leaning tomey," upatioD iging to )U8ine8H, ¥rote to in bonds Lter, and ave just I shares nclose a ver paid opriated eld that g within Bted. (tn> must be ot bring . (n) section prisoner receive money for the copartnership, and once a week to render an account, and pay over the gross amount received during the previous week, which was usually received in a number of small sums from day to day. He was indicted for em- bezzling three different sums, amounting, in the aggregate, to £3 13s., received into his possession on the 5th, 12th, and 17th days of December, 1870, respectively, being within six months from the first to the last of the said receipts. It appeared, in evidence, that the said aggregate sum was received by ten small payments for the first and second weeks respectively, and eleven small payments in the third week ; and it was held that the prisoner might be properly charged with embezzling the weekly aggregates — that three acts of embezzlement of such weekly aggregates, within six months, might be charged and proved under one indictment, and that evidence of the small sums received during each week was admissible, to show how the weekly aggregates were made up. (o) But if a man receives a number of small sums, and has to account for each of them separately, only three instances of failure to account can be proved under one indictment. In the above case, the prisoner might have been indicted for embezzling any of the separate small sums received by him. (p) The 32 & 33 Vic, c. 29, s. 25, does not justify an allegation in an indictment of the embezzlement of money when a cheque only has been embezzled, and there is no proof that the prisoner has even cashed it. (q) But if the cheque is turned into money, the prisoner may be indicted for em- bezzling the money ; and, upon such indictment, the em- bezzlement of the cheque, and conversion of it into money may be shown, or the prisoner may be indicted for the em- bezzlement of the cheque, (r) (0) Reg. V. Balla, L. R. 1 G. C. R. 328. (j7) /Md. 332-3, per Cockbum, C. J. iq) Reg. v. Keena, L. R. 1 C. C. B. 113 ; 37 L. J. (M. C.) 43w (r) Ibid. 114, per Cockbum, C. J. OQ 260 THE CRIMINAL LAW OF CANADA. In Reg. v. Bi. Hock, {a) it was held, under the facts shown in the case, that the money was not improperly charged to be the money of the county of Essex, though it was received for the township of Maidstone, within the county, and was to be accounted for to it by the county ; for, from the moment of payment, the county was responsible for the money, and had a special property in it. A person who is nominated and elected assistant overseer, under the 59 Qeo. III., c. 12, s. 7, by the inhabitants of a parish in vestry, and who is afterwards appointed assistant overseer by the warrant of two justices, and performs the duties of un overseer, is well described in an indictment for embezzlement as the servant of the inhabitants of the parish, {t) It has been held that the form of indictment, given by the Con. Stats. Can., c. 99, s. 51, was only applicable to em- bezzlement under c. 92, s. 42. {u) In an indictment for embezzlement, where the offence relates to any money, or any valuable security, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security ; and such allegation, so far as regards the description of the property, shall be sustained by proof of the embezzlement of any amount, although the particular species of coin, or valuable security, of which such amount was composed, is not proved, etc. (v) False pretences. — The law as to false pretences has been construed, of late years, in a much more liberal spirit than formerly ; {w) still cases of considerable technical difficulty sometimes arise, so that a discussion of the various elements of the offence is necessary. First, there must be a false pretence of an existing fact, and a mere promise to do an act will not suffice. {«) 19 U. C. Q. B. 51 a (t) Reg. V. Carpenter, L. R. 1 C. C. R. 29 ; 36 L. J. (M. C.) 169. iu) Reg. V. Cumntings, 4 U. C. L. J. 182 (in E. A A.) {v) 32 & 33 Vic, 0. 21, a. 73 ; see Reg. v. Hall, 3 Stark, 67 ; B. & R. 403. Up) Reg. v. Les, 23 U. C. Q. B. 340, per Hagarty, J. y, and erseer, s of a sistant ms the ctment of the ven by to em- offence hall be vithout id such operty, of any aluablo proved, Eis been •it than ifficulty lements act, and P9. &B. 463. Thns, procuring a promissory note, by a promise to give the prosecutor $600 on what he would have out of the pro- ceeds of the note, when discounted, is not sufficient to sustain a conviction, (x) And where D. was to pay for all goods supplied to the prisoner to the amount of a certain promissory note held by the prisoner against D., the amounts supplied to be en- dorsed on tho note ; and the prisoner obtained goods without producing the note, saying he would bring it down and have the amount endorsed in a day or two, but intending not to do so nor to pay for the goods. The prisoner having been found guilty, was held to have been improperly con- victed, (y) But inducing a person to buy certain packages by repre- sentiTAi^ that they contained good tea, when three-fourths of their contents were, to the prisoner's knowledge, not tea at all, but a mixture of substances unfit to drink, is a false representation of an existing fact, (z) So the selling of a railway pass, good only to carry a particular person, and which the purchaser could not use except by committing a fraud upon the railway company, a'^d at the risk of being at any moment expelled from the train, is a false pretence within the statute, (a) So a false representation by a married man that he is single, thereby inducing a single woman to part with her money to him, for the purpose of furnishing a house, is a false pretence ; and one false fact by which money is ob- tained is sufficient to support an indictment, although it may be united with false proniises which would not of themselves do so. (b) The giving a cheque does not amount to a representation that there is money of the drawer's at the bank indicated^ (as) Beg. v. Pickup, 10 L. C. J. 310. (y) Reg v. Bertie, 13 U. C. C. P. 607. (») Beg. V. Foater, L. R. 2 Q. B. D. 301. (a) Beg. ▼. Abrahams, 24 L. C. J. 325. (6) Beg. ▼. JenntMon, 9 U. C. L. J. 83 ; 6 L. T. Reps. N. S. 266 ; 31 L. J. (M. 0.) 146 ; Beg. v. Lee, 23 U. C. Q. B. 340, per Hagarty, J. a OQ 3 3 262 THE CRIMINAL LA.W OF CANADA. bat it is a representation of authority to draw, or that it is a valid order for payment of the amount, (c) The false representation by a person that he is in a large way of business, whereby he induces another to give him goods, is a false pretence, (d) So also is the obtaining a loan upon the security of a piece of land, by falsely and fraudu- lently representing that a house is built upon it. («) And threatening to sue on a note which the prosecutor had made in favor of the prisoner, and which the prisoner had nego- tiated but pretended he was still the holder of, and thereby induced the prosecutor to pay, is a false pretence. (/) And under the more recent decisions, the execution of a contract, between the same parties, does not secure from punishment the obtaining of money under false pretences in conformity with that contract, (g) Fraudulently misrepresenting the amount of a bank note, and thereby obtaining a larger su* m its value in change, is obtaining money by false prett _. although the person deceived has the means of detection at hand, and the note is a genuine bank note, (h) And where a prisoner obtained money and goods, by pre- tending that a piece of paper was the bank note of an exist- ing solvent firm, knowing that the bank had stopped payment forty years before, he was held guilty of false pretences, (t) But the fact that a bank note was the note of a private bank, which had paid a dividend of 2s. 4d. on the pound, and no longer existed, and that a neighboring bank would not (c) Beg. V. Hazleton, L. R. 2 C. C. R. 134. (d) Beg. v. Cooper, L. R. 2 Q. B. D. 510 ; Beg. v. Crab, 5 U. C. L. J.N. S. 21, per KeUy, C. B.; 11 Cox, 86. (e) Beg. v. Burgon, 2 U. C. L. J. 138 ; Dears. & B. 11 ; 26 L. J. (M. C.) 105; Beg. v. Huppel, 21 U. C. Q. B. 281. (/) Beg. V. Lee, 23 U. C. Q. B. 340. ig) See Beg. v. AbboU, 1 Den. 173 ; 2 C. & K. 630 ; Beg. v. Boss, Beli, 208 ; 29 L. J. (M. C.) 86 ; Beg. v. Jfeakin, 11 Cox, 270 ; Arch. Cr. Pldg. 473. {h) Beg. v. Jessop, 4 U.C.L.J. 167 ; Deara. ft B. 442 ; 27 L. J. (M.C.) 70. (i) Beg. v. Dowey, 16 W. R. 344 ; 37 L. J. (M.C.) 52 ; and see Beg. v. Brady, 26 U. C. Q. B. 14. FALSE PBKTXNCBS. 263 change it, was held not sufficient from which to infer that the note was of no value whatever. (;) Upon an indictment alleging that the prisoner obtained a coat, by falsely pretending that a bill of parcels of a coat of the value of 14s. 6d., of which 48. 6d. had been paid on account, was a bill of parcels of another coat of the value of 22s., which the prisoner had had made to measure, and that 10s. only were due, it was proved that the prisoner's wife had selected the 14s. 6d. coat for him, at the prosecutor's shop, subject to its fitting on his calling to try it on, and had paid 4s. 6d. on account, for which she received a bill of parcels giving credit for that amount. On the prisoner's calling to try on the coat, it was found to be too small, and he was then measured for one, which he ordered to be made, to cost 22b.; and on the day named for trying on that coat he called, and the coat was fitted on by the prosecutor, who had not been present on the former occasion ; and the case stated that the prisoner, on the coat being given to him, handed 10s. and the bill of paicels for the 148. 6d. coat, saying, " There is 10s. to pay," which bill the prosecutor handed to his daughter, to examine, and upon that Ihe prisoner put the coat under his arm, and, after the bill of parcels referred to had been handed to him with a receipt, went away. The prosecutor stated that, believing the bill of parcels to be a genuine bill, and that it referred to the 22s. coat, he parted with that coat on payment of the 10s., which otherwise he should not have done. It was held that there was evidence to go to the jury, and that the conviction was right, {k) Where a prisoner, who had been discharged from A.'8 service, went to the store of 0. and S., and representing him- self as still in the employ of A., who was a customer of O. and S., asked for goods in A.'s name, which were sent to A.'s house, where the prisoner preceded the goods, and, as soon as the clerk delivered the parcel, snatched it from him, saying, "This is for me; I am going in to see A.;" but instead of doing {3)Jteg, V. Evans, 6 U. C. L. J. 262 ; BeU, 187 ; 29 L. J. (M.C.) 20. (*) Bejf. v. Steda, 16 W. R. 341. 264 THE CRIMINAL LAW OF CANADA. •o, walked out of the house with the parcel. It was hel«i that the prisoner was rightly convicted of having obtained the goods from O. and S. under false pretences, (l) The false pretence may be of a past or an existing fact, (m) It would seem that indefinite ur exaggerated praise, upuii a matter of indefinite opinion, cannot be made the ground of an indictment for false pretences, (n) But where the prisoner induced the prosecutor to purchase a chain from him, by fraudulently representing to him that it was ] 5 carat gold, when, in fact, it was only of a quality a trifle better than 6 carat, knowing at the time that he was falsely representing the quality of the chain, it was held that the statement was not mere exaggerated praise, nor relatin<<[ to a mere matter of opinion, but a statement as to a specific fact within the knowledge of the prisoner, and a false pre- tence, (o) It would seem, from this case, tliat a specific repre- sontation of quality, if known to be false, is within the statute, (p) Not only is a false pretence of an existing fact necessary, but the prosecutor must have been induced to part with his property in consequence thereof ; (q) and if the money is parted v/ith from a desii'e to secure the conviction of the prisoner, there is no obtaining by false pretences, (r) And where the defendant made false representations to the prosecutor, and thereby induced him to sell his horses to him, but the prosecutor afterwards, on learning the falsity of the representations, entered into a new agreement in writing (/) Reg. V. Bobiruon, 9 L. C. R. 278. (m) J^. V. OemmeU, 26 U. C. Q. B. 314, per Hagarty, J.-, Beg. ▼. OUe«, 11 L. T. Rep. N. S. 643 ; 10 Cox, 44. (n) Reg. v. Oo88, Bell, 208 ; 29 L. J. (M.C.) 90, per Erk, C. J.; Reg. v. JBryan, Dears. & B. 265 ; 26 L. J. (M. C.) 84 ; see also Reg. v. FFolso//, Dears. & B. 348 ; 27 L. J. (M. C.) 18, per £^k, J.; Reg. v. LeviHe, 10 Cox, 374. (o) Reg. V. Ardley, L. R. 1 C. C. R. 301. ip) But see Reg. v. EagUlon, 1 U. C. L. J. 179 ; Dears. 515 ; 24 L. J. (M. C.) 158. (q) Reg. v. Qemmell, 26 U. G. Q. B. 312. (r) Reg. v. MUla, 29 L. T. Reps. 114 ; Dears, ft B. 205 ; 26 L. J. (M. C.) 79 ; Reg. v. Oemmell^ 26 U. C. Q. B. 315, per Hagarty, J.; see also Reg. V. Dak, 7 C. ft P. 362 ; Reg. v. Roebuck, Dears. & B. 25 ; 25 L. J. (M. C.) 101. m-r f,. FAL ; PRvnENon. 2B5 with the prisoner ; it was held that the subsequent dealin^^ repelled the idea that the prosecutor had parted with his property in consequence of the false pretence, (s) The false preterfte must be the proximate cause of the loss. Thus an indictment for obtaining from A. $1,200 by false pretences, was not supported by proof of obtaining A.'s promissory note for that sum, which A. afterwards paid be- fore maturity, inasmuch as it was an engagement or promise to pay at a future date, and, though remotely, the payment arose from the false pretence ; yet immediately and directly it was made, "because the prosecutor desired tu retire his note> and did su before it became due, and though the false pre- tences on which the note was obtained might be said to be continuing, they were not, according to the evidence, made or renewed when the note was paid, (t) And where a person, by falsely representing himself to be another person, induced another to enter into a contract with him for board and lodging, and was supplied accordingly with various articles of food : it was held that the obtaining of the goods was too remotely connected with the false repre- sentation to support a conviction, (u) But a conviction for obtaining a chattel by false pretences is good, although the chattel is not in existence at the time the pretence is made, provided the subsequent delivery of the chattel is directly connected with the false pretence, (v) The test is the continuance of the pretence down to the time of delivery, and the direct connection between the pretence and delivery, (w) Tt is essential that there should be an intention to deprive the owner wholly of the property iu the chattel, and an obtaining by false pretences the use of a chattel for a limited time only, without an intention to deprive the owner wholly («) Reg. V. Connor, 14 U. C. C. P. 629. (t) Reg. V. Brady, 26 U. C. Q. B. 13. («) Reg. V. Gardner, 2 U. C. L. J. 139; Dears, ft B. 40 ; 25 L. J. (M.C.) 100 ; Bee, however, oonunenta on this case in Reg. v. Mar^ L.R. 1 C.G.R> 56, i^fira. (V) Reg. y. Martin, L. B. 1 C. C. R. 56 ; 36 L. J. (M. C.) 20. (to) Ibid. 60, per BoviU, C. J. 266 THK GRIMIlfAL LAW OF CANADA. i of the chattel, is not an obtaining by false pretences within the statute, (x) But it is none the less a false pretence that the prisoner intended to, and did in fact pay over the ftioney to the person properly entitled, if, by the false pretence, he attained a personal end ; as where an attorney, who had been struck off the rolls, obtains money out of court under such circuta- stances as amount to a false pretence practised on the court, so that he may retain his costs thereout, (y) And it seems the offence would have been the same whatever the prisoner's object (z) Although inducing a person to execute a mortgage on his property, (a) or to sign an acceptance to a bill of exchange, (b) it not appearing that the paper on which it was drawn belonged to the prosecutor, is not obtaining from him a valuable security within the meaning of section 93 of the Act, yet the offence is indictable under sec. 95. It is not necessary that the pretence should be in words ; the conduct and acts of the party will be sufficient without any verbal representation. Thus, an indictment alleging that the prisoner was in the employ of V. as a heaver of coals, and was entitled to 5d. for every tub filled by him, and that, by unlawfully placing a token upon a tub of coals, he falsely pretended that he had filled it, whereby he obtained 5d., was held to disclose a false pretence, (e) And a person who tenders another a promissory note of a third party in exchange for goods, though he says nothing, yet he should be taken to affirm that the note has not to his knowledge been paid, either wholly, or to such an extent as almost to destroy its value, (d) (x) Jteg. V. KUham, L. B. 1 C. C. K. 261 ; 30 L. J. (M.C.) 109. (y) Beg. v. Parkinson, 41 U. C. Q. B. 545. (z) Jbid. (a) Beg. v. Brady, 26 U. C. Q. B. 13. (() Beg. V. Danger, Dears. & B. 307 ; 26 L. J. (M. C.) 185. (c) Beg. V. Hunter, 16 W.£. 343 ; 10 Ck)x, 642 ; Beg. v. Carter, ibid. 648. (d) Beg. v. Davit, 18 U. C. Q. B. 180 ; Beg. t. Brady, 26 U. G. Q. B. 14. PALBK PKKTKNOEa. 267 I Within prisoner le person ttained a )a struck circum- he court. it seems prisoner's ge on his lange, {b) us drawn n him a 3 of the I words; without as in the 5d. for tlacing a t he had e a false lote of a nothing, 1 not to 1 extent Md. 648. Q.a 14. The crime of obtaining goods by false pretences is complete, although, at the time when the prisoner made the pretence und obtained the goods, he intended to pay (or them when it would be in his power to do so. («) Formerly, if on an indictment for obtaining, etc., by false pretences, it was proved that the property was obtained in such a manner as to amount to larceny, the defendant was entitled to an acquittal, the misdemeanor being merged in the felony (/) The true meaning of this clause is, that, if the obtaining by false pretences is proved, as i-- is laid in the indictment* the defendant is not entitled to be acquitted of the mis- demeanor, simply because the case amounts to larceny, (g) The effect of the statute seems to be merely to prevent the operation of that rule by which a misdemeanor merged in a felony, when the facts disclosed the latter crime. It is apprehended that a party could not be convicted under this clause, unless there was sufficient proof of an obtaining by false pretences. Upon an indictment containing several counts for ob- taining money under false pretences, the evidence went to nhow that the defendant had, by fraudulent misrepresen- tations of the business he was doing in a trade, induced the prosecutor to enter into a partnership agreement, and ad- vance £500 to the concern ; but it did not appear that the trade was altogether a fiction, or that the prosecutor had repudiated the partnership. The question for the court being whether, upon such evidence, the jury were bound to convict the defendant, it was held that he was entitled to an acquittal, as it was consistent with the evidence that the prosecutor, as partner, was interested in the money obtained, (h) (e) Reg. v. Naylar, L. R. 1 C. C. R. 4 ; 36 L. J. (M. 0.) 61. (/) 32 ft 33 Vic, c. 21, 8. 93. (g)Iieg. v. Bulmer, L. ft C. 476 ; 33 L. J. (M. C.) 171 ; 9 C!ox, 492; Arch. Cr. Pldg. 483. (A) Beg. v. WafMtti, 4 U. C. L. J. 73 ; Dears, ft B. 348 ; 27 L. J. (M.C.)18. 3 2 268 THE CRIMINAL LA.W •OF CANADA. Where a defendant, on an indictment for obtaining money by false pretences, has been found " guilty of larceny," the court had no power, under the CJon. Stats. U. C, c. 112, s. 3, to direct the verdict to he entered as one of " guilty," without the additional words, " of larceny." (i) A letter, containing a false pretence, was received by tlu' prosecutor through the post, in the borough of C. ; but it was written and posted out of the borough. In consequence of that letter, he transmitted through the post, to the writer of the first, a Post Office order for £20, which was received out of the borough ; and it was held that, in an indictment against the writer of the first letter, for false pretences, the venue was well If M in the borough of C. {j) Where the venae, in an indictment for obtaining sheej) by false pretences, was laid in county E., where the person was convicted, and it appeared that the sheep had been obtained by the prisoner in county M., and that he con- veyed them into county E., where he was apprehended ; it was held that he had been indicted in a wrong county, {k) Our form of indictment for obtaining money by false pre- tences does not require the pretences to be set out, but simply that the prisoner, " by false pretences, did obtain," etc. It i^ apprehended that it will be sufficient to follow the statutory form, and that the false pretence of ar existing fact need not be set out. (/) To su£jtain an indictment for obtaining, or attempting tn obtain, money by false pretences, the indictment, if not in the statute form, must state with certainty the pretence of a supposed existing fact. Thus, a statement that prisoner pretended to H. P. (the manager of T.'s business) that H. P. was to give him 10s., and that T. was going to allow him lOs. a week, was held in- sufficient, {m) (i) Reg. v. Evoing, 21 U. C. Q. B. 623. ( »• ) Reg. V. Le^ck, 2 U. O. L. J. 138 ; Dears. 642 ; 26 L. J. (M. 0.) 77. (A) Rey. V. SUmbury,^\J. C. L. J. 279 ; L. & C. 128 ; 31 L. J. (M. C.) 88. (0 See Reg. v. OaUa, 1 U. C. L. J. 135 : Dears. 469 ; 24 L. J. (M. C.) 123 ; Reg. v. Deaaemer, 21 U. C. Q. B. 231. (m) Reg. r. Hetuhaw, L. & C. 444 ; 33 L. J. (M. C.) 132. FALSE PKETENCE8. 269 nng money rceny," the , c. 112, s "guilty, ved by tlu- C. ; but it onsequenct' the writer as receivfKl indictment stences, the ning sheep the person had been at he con- lended; it county, (k) T false pre- but simply ' etc. It i-i 3 statutory it need not mpting to , if not in tence of a H. P. (the him 10s., s held in- (M. c.) 77. (M. C.)88. J. (M. C.) A municipality having provided some wheat for the pcor, the defendant obtained an order for fifteen bushels, described as "three of golden drop, three of fife, nine of milling wheat." Some days afterwards he went back, and represented that the order had been accidentally destroyed, when another was given to him. He then struck out of the first order "three of golden drop, three of fife," and, presenting both orders, obtained, in all, twenty -four bushels. The indictment charged that the defendant unlawfully, fraudulently, and knowingly, by false pretences, did obtain an order from A., one of the municipality of B., requiring the delivery of certain wheat, by and from one C, and, by presentiLg the said order to C, did fraudulently, knowingly, and by false pretences, procure a certain quantity of wheat, to wit, nine bushels of wheat from the said C, of the gocds and chattels of the said muni- cipality, with intent to defraud. It was held that the indict- ment was sufficient in substance, and not uncertain or double, but in effect charging that defendant obtained the order, and, by presenting it, obtained the wheat by false pretences, {n) An indictment, charging that defendant, by false pretences, did obtain board of the goods and chattels of the prosecutor, was held bad, the term " board " being too general, (o) An indictment for obtaining by false pretences goods and chattels, or a chattel of the prosecu or, not defining them or it, would be insufficient. There must be the same particu- larity as in la-rceny, that the party may know certainly what he is charged with stealing, or obtaining by false pretences, (p) The prosecutor is not bound to deliver to the defendant the particulars of the crime charged against him. {q) An indictment, for obtaining money or goods by false pre- tences, must have stated whose the money was, or gof)ds were, (r) But the allegation of ownership is rendered unne- ^=3 0) 2 (n) Reg. v. GampbeU, 18 U. C. Q. B. 413. (o) Reg. V. McQuarrie, 22 U. C. Q. B, 600. ip) Ibid. 601, per Draper, C. J. (g) Reg. v. Senecal, 8 L. C. J. 286. (r) Reg. v. McDonald, 17 U. C. C. P. 638, per A. Martin, 8 A. & E. 481. WU$on, J. ; Reg. v. 270 THE CRIMINAL LAW OF CANADA. cessary by the 32 & 33 Vic, c. 21 , s. 93. By the same section, a general allegation that the party accused did the act, with intent to defraud, is sufficient, without alleging an intent to defraud any person. An allegation in a count for obtaining a cheque, describing it " for the sum of £8 14s. 6d. of the moneys of William Willis," sufficiently describes the ownerahip of the cheque, for the words " of the moneys " may be rejected. («) Having treated specifically of the offences of larceny, em- bezzlement, and the obtaining of money by false pretences, we proceed to point out the distinctions between them. It is of the essence of the offence of larceny that the property be taken against the will of the owner, (t) If taken by the consent of the owner, for instance, if he intends to part with the property, no larceny will be committed. In false pretences the property is obtained with the consent of the owner, tlie latter intending to part with hi» property, (u) The crime is constituted by the pretence that something has taken place, which, in fact, has not. (v) It, therefore, necessarily differs from larceny, in the fact the property in the chattel passes to the person obtaining it, and that the owner is induced to voluntarily pait with his pro- perty, in consequence of some false pretence of an existing fact, made by the person obtaining the chattel But the crime of obtaining money by false pretences is similar to larceny in this, that, in both offences, there must be an inten- tion to deprive the owner wholly of his property in the chattel, (w) Embezzlement consists in obtaining the lawful possession of goods, etc., without fraud or any false pretence, as upon a contract, or with the consent of the owner, in the ordinary course of dut^ or employment, or independently of such em- («) Beg. V. Ooc^frey, 4 U. C. L. J. 167 ; Dears. 4 B. C. C. 426. («) Reg. V. Prince, L. R. 1 C. C. R. 154, per BoviU, C. J. («) See White v. Garden, 10 C. B. 927, per Ta^fourd, J. (V) Reg. V. McGrath, L. R. 1 C. C. R. 200, per KeUy, 0. B. (w) See Reg. v. KHham L. R. 1 G. C. R. 261. FALSE PRETENCES. 2n ployment, and subsequently converting the goods, with a felonious intent to deprive the owner of his property therein. It differs from larceny in this, that the possession of the goods, etc., is lawfully obtained, in the first instance, without the ingredient of trespass, and the converson takes place while the privity of contract exists between the parties. The acquisition of lawful possession, in the first instance, is the constituent feature of this offence, and, according to the doctrines of the common law, no larceny could be committed by a bailee or other person, whose original title was lawful, until the privity of contract was determined. A carrier could not be convicted of larceny unless he " broke bulk," and the reason was that the act of " breaking bulk " was an act of trespass in the carrier, by which the privity of contract was determined. Now, however, the carrier is guilty of larceny, although he do not break bulk or otherwise determine the bailment, (x) The distinction between larceny and embezzlement may be illustrated by the case of a clerk or servant, whose duty it Is to receive money for, or on account of, his master. An appropriation before the money, etc., comes into the actual possession of the master, as if a clerk in a shop, on receiving money, puts it into his pocket before putting it into the till, would be embezzlement, (y) But if the money is put in the till, or otherwise becomes actually in the master's possession before appropriation, and is, in the act of appropriation, taken out of the possession of the master, this is larceny at common law. But these distinctions are not of such practical importance as formerly, for now, in either of the above cases, whether the indictment be framed for larceny or embezzlement, the defendant may be convicted of the offence proved in evi- dence, (z) and a person indicted for obtaining money by {X) See 32 & 33 Vio. , c. 21, s. .S. (y) Reg. v. BtUl, 2 Leach, 841 ; Sea. v Bayley, 2 Leach, 836 ; Reg. y. . SuUerttt, 1 Mood. G. 0. 129 ; Reg. v. H^o^ R. & R. 218 ; Reg. v. Matten, 1 Den. 332 ; 2 G. ft K. 930 ; 18 L. J. (M. G.) 2. {i) See 32 & 33 Vic, c. 21, b. 74. 3 2 272 THE CRIMINAL LAW OF CANADA. Il false pretences may be convicted of that offence, although the facts proved also show a larceny, (a) Receiving stolen goods. — This offence was punishable at common law only as a misdemeanor, even when the princi- pal had been found guilty of felony in stealing the goods; (6) and the mere receipt of stolen goods did not, at common law, constitute the receiver an accessory, but was a misde- meanor, punishable by fine and imprisonment, (c) unless he likewise received and harbored the thief, {d) There must be a stealing of goods, and the stealing must be a crime, either at common law or by statute, before a party is liable to be convicted of receiving, (e) A conviction of the principal for embezzlement is sufficient to warrant a conviction of the receiver, by virtue of the express words of sec. 100 ot the 32 & 33 Vic, c. 21. (/) The goods must be ^len goods at the time of their receipt . Thus where four thieves stole goods from the custody of a railway company, and afterwards sent them in a parcel, by the same company's line, addressed to the prisoner. During the transit the theft was discovered, and on the arrival of the parcel at the station for :'ts delivery, a policeman in the employ of the company opened it, and then returned it to the porter, whose duty it was to deliver it, with instructions to keep it until further notic i. On the following day the policeman directed the porter to take the parcel to its address, where it was received by the prisoner, who was afterwards convicted of receiving the goods, knowing them to be stolen. Upon au indictment, which laid the property in the goods in the railway company, it was held, {g) that the goods had got back into the possession of the owner, so as to be nu (a) 32 & 33 Vic, c. 21, s. 93. (6) 2 Raas. Cr. 542. (c) im. 654. (rf) Reg. V. SmUh, L. R. 1 C. C. R. 270, per BoviU, C. J. (e) Ibid. 266 ; 3b L. J. (M. C.) 112. (/) Reg. V. Frampton, Dears, it B. 585 ; 27 L. J. (M. 0.) 229 ; Arch. Cr. Pldg. 436. (g) By Martin^ B., ftnd Keating and Liuh, J J. ; diaaeMtUfUUbfiUf Brie, 0. J., And Mellor, J. loiiaei REGEIYIMO STOLEN GOODS. 273 longer stolen goods, and that the conviction, on that ground, was wrong, (h) Again, stolen goods were found in the pocket of the thief by the owner, who sent for a policeman. The policeman took the goods, and the three went together towards the shop of A., where the thief had previously sold stolen goods. When near it, the policeman gave back the goods to the thief, who was sent, by the owner, to sell them where he had sold the others. The thief then went alone into A.'s shop and, sold the goods to him, and returned with the proceeds to t]^e owner. It was held that, under these circumstances, A. could not be convicted of receiving stolen goods, for when the goods came to the prisoner's hands, they were not stolen goods, (i) On an indictment for stealing and receiving a mixture, it appeared that the thief had stolen two sorts of grain, and then mixed them, and sold them to the prisoner : it was held that the latter (the receiver) could not be convicted on such an indictment, for th j indictment charged a receiving of a mixture, which had been stolen, knowing it, i.e. the mixture, to have been stolen, but the only evidence showed that pure oats and pure peas were stolen, and afterwards mixed and sold to the prisoner — ^so that the one prisoner did not steal a mixture, and the other did not receive, as the indictmc!it alleged, a mixture which had been stolen, for the mixture had not been stolen, {j) Previously to the 32 & 33 Vic, c. 21, s. 103, if two defend- ants were indicted jointly for receiving, a joint act of receiv- ing must have been proved in order to convict both ; (k) but that statute now extends to cases, where, upon an indictment for a joint receipt, it is proved that each of the prisoners separately received the whole of the stolen^ property at different times, the one receipt subsequent to the other ; and it makes no difference whether the receipt was direct from ih) Reg. V. Schmidt, L. R. 1 C. C. B. 15 ; ST L. J. (M. G.) 94. («) iieg V. Dolan, 1 U. G. L. J. 65 ; Dears. 463 ; 24 L. J. (M. G.) 59. [i] Reg. v. Robinmm, 1 U. G. L. J. N. S. 53 ; 4 F. & F. 43. (k) Reg. y. Mttnagham, 1 Mood. G. G. 257. B 2 274 THE CRIMINAL LAW OF CANADA. the thief, or from an intermediate person. There is no dis- tinction between separate receipts of the whole, and of part of the property ; (/) and, under s. 102, there is no distinction between separate receipts at the same time and separate receipts at different times, (m) The goods stolen must be received by the defendant, and though there be proof of a criminal intent to receive, and a knowledge that the goods were stolen, if the exclusive posses- sion still remains in the thief, a conviction for receiving can- not be sustained, (n) It is also necessary that the defendant sliould, at the time of receiving the goods, know that they were stolen, (o) Where a husband and wife are indicted for receiving, it is proper that the jury should be asked whether the wife re- ceived the goods either from or in the presence of her hus- band, and where the question was not put, and both husband and wife were convicted, the court quashed the conviction of the wife, (p) Where, on a joint indictment against husband and wife for receiving goods with a guilty knowledge, the indictment found specially that the wife did so receive, and that the husband " adopted the wife's receipt," it was held that the latter woixis were not equivalent to a verdict of guilty against the husband, (q) Upon an indictment for feloniously receiving a hat and a watch, it was proved that, in consequence of information re- ceived from L. (the thief), a constable went to a room in a lodging house, where the prisoner slept, and, in a box in that room, found the stolen hat. The prisoner produced it at once, and admitted that L. had brought it there, but denied any knowledge of the watch. On the following day he was taken into custody, and aftes he had left the house, he told (/) Eeg. V. Beardon, I^ R. 1 C. C. R. 31 ; 35 L. J. (M. C.) 171. (wi) Beg. V. Beardon, L. R. 1 C. C. R. 32, per PoOock, C B. (n) Beg. v. WUey, 2 Den. 37 ; 20 L. J. (M. C.) 4; Arch. Cr. Pldg. 436. (o) 76td. 437. (p) Beg. V. Wardroper, 6 U.C.L.J. 262 ; 1 Bell, G.C. 240 ; seeabo Beg. v. Archer, 1 Mood C. C. 143. {q) Beg. v. Dring, 4 U. C. L. J. 26 ; Dears. & B. 329. FORGERY. 276 the constable that he knew where the watch was, but did not like to say anything about it before the people in the house. The watch was not found at the first place xp which he took the constable, but he afterwards sent a boy for it, and the boy having brought it to him, he gave it to the constable. This was heid sufficient evidence to go to the jury of a feloni- ous receiving, (r) On an indictment for feloniously receiving goods, knowing them to have been stolen; it is unsafe to convict a party as receiver on the evidence of the thief, unless it is confirmed, for otherwise it would be in the power of a thief, from malice or revenge, to lay a crime on any one against whom he had a grudge. («) Forgery — This offence is defined as the fraudulent making or alteration of a writing to the prejudice of another man's right, (t) or as a false making, or making malo animo, oi any written instrument, for the purpose of fraud and deceit, {u) Forgery takes a very wide range, and incluies within it fraudulent acts and fabrications, of va .nous descriptions and classes, effected in the numberless ways to which the evil ingenuity of crime can resort, (v) But it is said that the offence consists in the false making of an instrument pur- porting to be that wh}ch it is not, and not the making of an instrument purporting to be that which it really is, but which contains false statements ; and that telling a lie does not become a forgery, because it is reduced to writing, {w) The instrument must carry, on the face of it, the sem- blance of that for which if is counterfeited, and not be illegal in its very frame, though it is immaterial whether, if genuine, it would be of validity or not. {x) (r) Reg. v. Hobaon, 1 U. C. L. J. 36 ; Deare. 0. C. 400. («) Beg. V. Robinaon, 1 U. C. L. J. N. S. 63 ; 4 F. & P. 43. (0 Re SmUh, 4 U. C. P. R. 216, per A. Wilson, J. ; and see Rtff. r. Smith, 1 Deare. k B. 566. (u) Hall V. Garty, 1 James, 385, per Bliss, J. {v) Ibid. (to) Ek parte Lamirande, 10 L. C. J. 290, per Drummond, J. (x) Reg. V. Brotm, 3 Allen, 15 per Carter, C. J. ^ 0) 2 276 THE CRIMINAL LAW OF CANADA. On the above principles, the forging or uttering, in thin country, a writing purporting to be a bank note, issued by a foreign banking company, amounts to the crime of forgery, though it is not proved that the company had power, by charter, to issue notes of that description ; (y) it being shown that the note carried on its face the semblance of a bank note, issued by such company, and there being nothing in its frame to show it illegal. Even if the ille- gality were a defence, the antis of proving it would lie on the prisoner, (z) It is no objection that the note is payable in such foreign country, (a) A pei'son, having an order for delivery of wheat for the support of the poor persons in a municipality, is guilty of forgery, if he materially alters the order, so as to increase the quantity of wheat which is obtainable thereunder, with intent to defraud, (b) So it is forgery to execute a deed in the name of, and as representing, another person, with intent to defraud, even though the prisoner has a power of attorney from such person, but fraudulently conceals the fact of his being only such attorney, and assumes to be principal, (c) But a man who gives a cheque as his own, merely signing a fictitious name, and not intending to pass it oif as the cheque of a person other than himself, is not guilty of forgery, (d) It is forgery , both at common law and within the mean- ing of the 32 & 33 Vic, c. 19, s. 23, to make a deed fraudu- lently, with a false date, when the date is a material part of the deed, although the deed is, in fact, made and executed by and between the persons by and between whom it pur- ports to be made and executed, (e) iy) Rtg. V. Brown, 3 Allen, 13. \z) Ibvi. 16, per CaHer, C. J.; Reg. v. Partia, 40 U. C. Q. B. 214. (a) Ihid. {b) Beg. v. Oampbell, 18 U. C, Q. B. 416, per Bobinson, C. J. (c) Beg. V. Oould, 20 U. C. C. P. 159, per Gwynne, J. {d) Beg. v. Martin, L. R. 5 Q. B. D. 34. m of the society, such receipts were, in fact, treated as warrants, authorities and requests, for the payment of money, (y) The 16th section of this statute, which is somewhat analo- gous to the 32 & 33 Vic, c. 19, ss. 19 and 20, extends to the engraving, in England, without authority, of notes purporting to be notes of a banking company, carrying on business in Scotland only, notwithstanding s. 65 enacts that nothing i i the Act contained shall extend to Scotland. («) Upon an indictment under 1 Wm. IV., c. 66, s. 18, for engraving upon a plate part of a promissory note, purporting to be pait of the note of a banking company, it was proved that the prisoner, having cut out the centre of a note of the British Linen Banking Company, on which the whole promis- sory note was written, had procured to be engraved upon a plate merely the Koyal Arms of Scotland and the Britannia which formed part of the ornamental border, but placed upon the plate in the same manner as they are found in a complete note of the company. It was held that the plate so engraved satisfied the words of the section. That the ornamental border of such a note is part of the note within the section, as " note " is there used in the popular sense. That, in order (y) Reg. v. Kay, L. R. 1 C. C. R. 257 ; 39 L. J. (M. C.) 118. (x) Reg. T. Braekenridge, U R. 1 C. C. R. 133 ; 37 L. J. (Ai. C.) 86. I'/s 282 THE CRIMINAL LAW OF CANADA. g to ascertain whether that which was engraved purported, within the section, to be part of a note, extrinsic evidence was admissible to the jury, and they might compare it with a genuine note of the company, (a) An endorsement, " per procuration J. S.," signed in the defendant's own name, was held on the repealed statute, 11 Geo. IV., and 1 Wm. IV., c. 66, s. 3, not to be forgery, though the defendant falsely idleged that he had authority from J. S. to endorse, (b) It would however, be felony within the 31 & 32 Vic, c. 19, s. 27. So, by s. 47 of this statute, the forgery of an instrument in this country, payable abroad, or the uttering of an instru- ment in this country, forged, and payable abroad, is made an offence within the meaning of the Act. (c) When a prisoner, being pressed for payment of a debt, obtained further time to pay, by giving, as security, an 1 U, in the following form : — " November 21st, 1870. " I U thirty-five pounds (£35). "Arthur Chambers. "George Wickham." and purporting to be signed by the prisoner, and another whose signature was forged by the prisoner ; it was held that this was an " undertaking for the payment of money" within 24 & 25 Vic, c. 98, s. 23, the corresponding English section of the 32 & 33 Vic, c 19, s. 26. (d) And there being a con- sideration for the I U, the fact that it did not appear was of no consequence ; for the consideration of a guarantee need not be shown on its face, (e) The following instrument was held to be a promissory note for the payment of money within s. 3, of the 10 & 11 Vic. c. 9 :— " The President, Directors and Co. of the Montreal Bank (a) Beg. v. KeUh, 1 U. C. L. J. 136 ; Dears. 486 ; 24 L. J. (M. C.) 110. {b) Reg. v. WhUe, I Deu. 208 ; 2 C. & K. 404 ; Arch. Cr. Pldg. 679. (c) See Beg. v. Kirkwood, 1 Mood. C. C. 311. (d) Beg v. Chambera, L. R. 1 C. C. R. 341. («)/Md.; 866 26 Vic, c. 45. for a sory 80 if being A cash prom Geo. be fo FOROKBT. 283 promise to pay five dollars, on demand, to W. Martin, or bearer. "A. SlKPSON, Cashier, " Wm. Gann, Pres. " Montreal, June 1, 1853.*' for a forged paper, purporting to be a bank note, is a promis- sory note within the meaning of the statute, and it is equally so if there is no such bank as that named, the bank intended being erroneously described in the instrument. (/) A country bank note for the payment of one guinea, " in cash or Bank of England notes," was holden not to be " a promisfeory note for the payment of money" within the 2 Geo. II., c 25, for it was necessary that such a note should be for the payment of money only, (g) Such a case is now provided for by the 32 & 33 Vic, c. 19, s. 15. Under s. 26, the forgery of a request for the payment of money is made felony, though it was formerly no offence, (h) A forged magistrate's order for a reward for apprehending a vagrant, which appeared upon the face of it to be defective, as not being under seal or directed to the constable, etc., was holden not to be within the former statute ; for, without these requisites, it was nothing more than the order of a mere individual, which the treasurer was not bound to obey, (i) Such orders would be authorities or requests within the above section. An instrument in the following form : — " $3.60. Carrick, April 10, 1863 " John McLean, tailor, please give Mr. A. Steel to the amount of three dollars and fifty cents, and by doing you will oblige me. " (Signed) Angus McPhail." is an order for the payment of money, and not a mere re- quest, (y ) But an instrument as follows : — ( f) Reg. V. McDonald, 12 U. C. Q. B. 543. (o) Reg. V. Wilcock, 2 Rubs. 498 ; Arch. Cr. Pldg 679. (A) See Reg. v. Thorn, 2 Mood. C. C. 210 ; C. k Mar. 206. (j) Reg. V. Rwhioorth, R. & R. 317 ; Arch. Cr. Pld^. 5S^. U) Reg. V. Ste^l, 13 U. C. C. P. 619. I 2 284 THE CRIMINAL LAW OF CANADA. m s " Renfrew, June 13, 1860. " Mr. McKay, — Sir, would you be good enough as for to let me have the loan of $10 for one week or so, and send it, by the bearer immediately, and much oblige your most humble servant, " (Signed), J. Almiras, p.p." was held not an order for the payment of money, within the Con. Stats. Can., c. 94, but a mere request, (k) "Mr. Warren, — Please let the bearer, William Tuke, have the amount of ten pounds, and you will oblige me, " B. B. Mitchell," is an order for the payment of money, within this statute, and not a mere request ; (/) but it would not be a warrant for the payment of money, within the meaning of the statute, (m) The true criterion as to the instrument being an order or not, is, whether the person to whom it is di- rected could recover the amount on payment, (n) A writing not addressed to a particular person by name, or to anyone, may be an order for the payment of money, within the statute, if it be shown by evidence that it was intended for such person, or for whom it was intended, (o) Thus where the order was for SI 5, in favor of " bearer or R R." and purported to be signed by one " B," and the prisoner in person presented it to M., representing himself to be the payee and a creditor of " B ;" it was held that it might fairly be inferred to be intended for M., and a con- viction for forgery was sustained, (p) An indictment will not lie for forging or altering the (*) Beg. V. Beopdle, 20 U. C. Q. B. 260. {D Reg. V. Tuke, 17 U. C. Q. B. 296. (m) Ibid. 298, per Rolnnaon, C. J. (n) Ibid. 299, per RfMnaon, C. J.; Reg. v. Carter, 1 Cox, C. C. 172 ;iWd. 241 ; Reg. v. Dawson, 3 Cox, C. C. 220. (o) Reg. V. Parker, 16 U. C. C. P. 15 ; Reg. v. Snelling, 6 Cox, 230 ; I Dean. 219. (p) Reg. V. Parker, 16 U. C. C. P. 15 ; Reg. v. Snslling, 6 Cox, 280 ; I Dears. 219. FORGERY. 285 Assessment Roll for a township, deposited with the clerk, (q) This would probably now be an offence within the 32 & 33 Vic, c. 19. An indictment for forgery of a note was held defective, in not stating expressly that the note was forged, or that the defendant uttered it as true, (r) Until the provincial statute, 9 Vic, c. 3, the old rule of the criminal law of England prevailed, that the party by whom a forged instrument purported to be signed, was not compe- tent to prove the signature to be forged, and any one who might, by possibility, receive the remotest advantage from the verdict was equally excluded. But the objection was founded on the ground of interest, and, if the witness were divested of such interest, he became competent, (s) The 10 & 11 Vic, c. 9, re-enacted the provisions of the 9 Vic, c 3, and the 16 Vic, c. 19, Con. Stats. U. C, c 32, removed the incapacity of crime or interest. This latter statute did not supersede the former, and both are founded on the same principle, namely, to prevent the exclusion of witnesses, on the ground of interest in the subject-matter of inquiry, the first being applicable to inquiries relative to forgery, the latter, general, and also removing the disqualifi- cation attached to a conviction for crime, {t) The 32 & 33 Vic, c 19, s. 64, and c 29, s. 62, now embody all the provisions of the former enactments on these points. Where the prisoner was indicted for forcing an order far the delivery of goods, and on the trial the only witnesses examined were the person whose name was forged and the peraon to whom the order was addressed, and who delivered the goods thereon, and, there being no corroborative evidence, it v/as held, that, under the proviso in the 10 & 11 Vic, c 'h "* «- • GC "IK. •1:3 3 2 iq) Beg. v. Preston, 21 U. 0. Q. B. 86. (r) Reg. v. Dunlop, 16 U. C. Q. B. 118. («) Reg. V. Giles, 6 U. C. C. P. 86, per Draper, C. J. («) Ibid. 86, per Draper, C. J. 286 THE CRIMINAL LAW OF CANADA. t 9, 8. 21, there was not duffioient evidence to support a con- viction, (u) Where, on an indictment for forgery of the prosecutor's name as endorser of a promissory note, the prosecutor swore that he was a marksman, and had on several occasions en- dorsed notes for the piisoner, sometimes allowing the prisoner to write his name, and sometimes making his mark, and the only evidence offered in corroboration was that of the prose- cutor's son, to the effect that his father was a marksman ; it was held (v) that such corroboration was sufficient to warrant a conviction, (w) But the court were not unanimous in their decision, and tho authority of the case may well be doubted. Furthermore, it has been held in Quebec, that the corrobo- ration of the evidence of an interested witness cannot be based on something stated by that witness, (x) The offence of forgery is not triable at the Quarter Ses- sions, (j/) Great caro was formerly requisite in describing the instru- ment in an indictment for forgery, but now it is sufficient to describe the same by any name or designation, by which the same may be usually known, or by the purport thereof, with- out setting out any copy ovfac simile thereof, or otherwise describing the same or the value thereof (z) It is not necessary, in an indictment for forgeiy, to allege an intent to defraud any particular person, but it is sufficient to allege that the party accused did the act with intent to defraud, (a) Where goods were obtained by false pretences, through the medium of a forged ordr r, the uttering of which was felony, the indictment must formerly have bc'^ n for the felony, (u) Reg. V. Gfiles, 6 U. C. C. P. 34. As to what is sufficient corrobora* tion, see Seg. v. McDtmald, 31 U. C. Q. B. 337. (v) Cameron, J. dissenting. (to) Reg. V. Bannerman, 43 U. C. Q, B. 647. («) Reg. V. Perry, 1 L. C L. J. 60. (y) Reg. v. McDonald, 31 U. C. Q. B. 337 ; Reg. v. Dunlop, 16 U. C. Q. B. 118. (z) 32 & 33 Vic, c. 19, s. 49. (a) See B. 61. CHEATS AND FRAUDS. 287 otherwise an acquittal would have been directed on the groond that the misdemeanor was merged, (b) In an indictment for foi^ng a receipt', it must be alleged that such receipt was either for money or goods, eta, as men- tioned in the Con. Stats. Can., c. 94, s. 9. (e) Where the instrument is 11 L. C. J. 94, per Drummond, J.; and see 2 Rnaa. Or 613. (A) Reg. v. Roy, 11 L. C. J. 89. (t) 2 Buss. Cr. 613 ; WanVa caae, 2 Str. 747. ■^ 03 Sfei 2 '288 THE CRIMINAL LAW OF CANADA. Where an indictment alleged that the prisoner, being a picture dealer, knowingly kept in his shop a picture whereon the name of an artist was falsely and fraudulently painted, with intent to pass the picture off as the original work of the artist whose name was so painted, and that he sold the same to H. F., with intent to defraud, and did thereby defraud him, but without stating that the picture was passed off by means of the artist's name being so falsely painted, it was held that such painting of the artist's name was putting a false token on the picture, and that the selling by means thereof would be a cheat at common law, but that the want of such last averment was fatal (j) ^ Where a person contracts to deliver loaves of bread, of a certain weight, at a certain price, the delivery of a less quan- tity (i. e., less in weight) than that contracted for, is a mere private fraud, and not indictable, if no false weights or tokens have been used, {k) False personation. — Falsely personating a voter at a muni- cipal election is not an indictable offence. Our statute law contains no provision on the subject, nor is it an offence at common law. (I) It is different, however, with regard to parliamentary elections, for by 37 Vic, c. 9, s. 74, it is enacted that " a person shall, for ail purposes of the laws relating to parliamentary elections, be deemed to be guilty of the offence of personation, who, at an election of a member of the House of Commons, applies for a ballot paper in the name of some other person, whether s>;ch other name be that of a person living or dead, or of a fictitious person, or who having voted once at any such election, applies at the same election for a ballot paper in his own name." To complete the offence of inducing a person to personate a voter, it would seem not necessary that the personation should be successful, and a conviction for the offence was (j) Reg. V. O/ow, 4 U. C. L. J. 98 ; Dears. & B. 460 ; 27 L. J. (M. C.) 54. {k) Rtg. V. EagleUm, 1 U. C. L. J. 179 ; Dears. 515 ; 24 L. J. (M. C.) 158. (I) Beg. V. Hogg, 25 U. C. Q. B. 66 ; Beg. v. Dent, 1 Den. O. C. 159. MALICIOUS INJURIES. 289 held good, though it did not set out the mode or facts of the inducement, (m) It would seem that in an indictment for this offence there should be an averment negativing the identity of the defend- ant with the voter ouggested to be personated, (n) Malicious injuries. — Injuring or destroying private pro- perty is, in general, no crime, but a mere civil trespass, over which a magistrate has no jurisdiction, unless by statute, (o) The 32 & 33 Vic. c. 22, contains provisions respecting malicious injury to property ; but, to bring a case within this statute, the act must have been wilfully or maliciously done, (p) But the malice, to be proved, need not have been conceived against the owner of the property, in r'^spect of which it shall be committed, (q) And where a man does an act to an animal which he knows may prove fatal, not from ill-will towards the owner or animal, but simply to gratify his depraved testes, such act is malicious within the statute, (r) But where the prisoner threw a stone at a crowd intending to hit one or more of them, but not intending to injure the window, it was held that there was no mtdice, actual or constructive, (s) On principle, one would have thought that the malice would have been transferred to the window. It would seem to be necessary to allege that the property injured is the property of another person, (t) It is not necessary that the damage done should be of a permanent kind. Plugging up the feed pipe of a steam engine is an offence within s. 19 of this Act. (u) It was held under the former statute, 4 &; 5 Vic, c 26, s. 5, the words of which were not so comprehensive as the (m) Reg. v. Hague, 12 W. R. 310. (n) Reg. v. Hogg, 25 U. C. Q. B. 68, per Hagarty, J. (o) Powell V. WUliamaon, 1 17. C. Q. B. 155, per Robinson, C. J. (p) PoweU V. WUlianuon, supra ; Reg. v. Elstcm, 5 All. 2. iq) See. 66 ; Reg. v. Bradshaw, 38 U. C. Q. B. 564 ; Reg. v. Elston, 6 All. 2. {r) Reg. v. Welch, L. R. 1 Q. B. D. 23. is) Reg. V. Pembleton, L. R. 2 C. C. R. 119. (0 Reg. V. miston, 5 All. 2. , (tt) Reg. V. fUher, L. R. 1 C. C. R. 7 ; 36 L. J. (M. C.) 57. S - 1 2 290 THE CRIMINAL LAW OF CANADA. M. present statute, that an apparatus for manufacturing potash, consisting of ovens, kettles, tubs, et<}., was not a machine or engine, the cutting, breaking, or damaging of which was felonious, (v) If the defendant sets up and shows a bona jidi claim of title to laud, the jurisdiction of the magistrate is ousted, iyS) even though he believe the claim to be ill-founded, {x) Under s. 45 of the 32 & 33 Vic, c. 22, upon an indictment for maliciously wounding a horse, it is not necessary to prove that any instrument was used to inflict the wound, and the word " wound " must be taken in the ordinary sense, (y) Sees. 20 and 28 of the 4 & 5 Vic, c. 26, gave a summary remedy, not for trespassing on the close, but for malicious injuries to the tree. (2) A summons for malicious injury to property, under the former statute, must have been upon complaint under oath, and a conviction stating that the ofifence complained of was committed " depms environ hmt jowra" was held bad for uncertainty, {a) The offence of wilfully injuring a fence, etc., under the (N.B.) 1 Hev. Stats., c. 153, s. 11, was a misdemeanor, not punishable by summary conviction. (6) An indictment charging that the defendant in a secret and clandestine manner cut off the hair from the manes of two horses, the property of one W. B., discloses an ofifence within the Eev. Stats, of Nova Scotia, c. 169, s. 22 ; and where an act is committed wrongfully and intentionally, and with full knowledge of the ownership of the property, malice will be presumed, (c) (w) Reg. V. DogheHy, 2 L. C. R. 255. (to) Reg. V. O'Brien, 5 Que. L. R. 161 ; ex parte Donovan, 2 Pugsley^ 889 ; Rtg. v, Taylor, 8 U. C. Q. B. 267. (x) Reg. V. Davidson, 45 U. C. Q. B. 91. (y) Reg. v. BuUock, L. R. 1 C. C. R. 115 ; 37 L. J. (M. C.) 47. (z) Madden v. Farley, 6 U. C. Q. B. 213, per /?oK.^ the defendant must not have known it to be so. But a man may be indicted for perjury, in swearing that he be- lieves r fact to be true, which he must know to be false, (k) (/) Beg. V. Doty, 13 U. C. Q. B. 398. (p) Eeg. V. Bow, 14 U. C. C. P. 307 ; Beg. v. Atkinaon, 17 U.C.C.P. 295. (A) Beg. V. Atkinaon, mtpra, 301, per J. Wilson, J. («) Beg. V. HughM, 1 C. ft K. 519 ; Arch. Or. Pldg. 815. (» Beg. V. Qriepe, 1 Ld. Raym. 256 ; Beg. v. Nichol, 1 B. ft Aid. 21 ; Beg. V. Tovmaend, 10 Cox, 356 ; 4 F. ft P. 1089 ; Arch. Cr. Pldg. 816; 2 Salk. 514 ; Beg. v. Lavey, 3 C. ft K. 26 ; Beg. v. Overton, 2 Mood. C. C. 263 ; C. ft Mar. 655 ; see also Beg. v. Gibbons, L. ft C. 109 ; 31 L. J. (M.C.) 98 ; Arch. Cr. Pldg. 817 ; Beg. v. Tyson, L. R. 1 C. C. R. 107 ; 37 L. J. (M.C.) 7 ; 16 W. R. 317 ; Beg. v. Murray, 1 F. ft F. 80 ; Beg. v. Alaop, 5 C. L. J. N. S. 169 ; 11 Cox, 264 ; Beg. v. Naylor, 11 Cox, 13 ; W. R. 374 ; Bea. V. Courtney, 7 Cox, 111 ; 5 Ir. L. R. N. 8. 434 ; Beg. v. Dunston, Ry. ft M. 109 ; Beg. v. Goodard, 2 F. ft F. 361. (k) Beg. v. PedUty, 1 Leach, 327 ; Beg. v. Schkringer, 10 Q. B. 670 ; 17 L. J. (M. C.) 29 ; Arch. Cr. Pldg. 818. PERJURY. 305 The false oath must be taken deliberately and intention- ally ; for, if done from inadvertence or mistake, it cannot amount to voluntary and corrupt perjury. (/) It would seem that perjury may be assigned, when the oath is administered upon the Common Prayer book of the Church of England, (m) Where, in an indictment for perjury, the defendant wa» alleged to have sworn that nc no of the disqualification of a candidate for township councillor had been given pre- vious to or at the time of holding the election, the perjury assigned being that such notice had been given previous tO' the election, and the notice appearing to have been given on the nomination of the candidate objected to; it wa» held that the assignment of perjury Was not proved, as an election, under the Municipal Act, is commenced when the returning officer receives the nomination of candidates, and it is not necessary, to constitute an election, that a poll should be demanded, (n) The false oath must be clear and unambiguous. But where a joint affidavit, made by defendant and one D., stated, " each for himself maketh oath, and saith that, etc.,. and that he, this deponent, is not aware of any adverse claim to or occupation of said lot ;" the defendant having been convicted of perjury upon this latter allegation, it was held that there was neither ambiguity nor doubt in what each defendant said; but that each, in substance, stated that he was not aware of any adverse claim to or occupation of said lot. (o) It would seem that a magistrate taking an affidavit without authority is guilty df a misdemeanor, and that a criminal information will lie against him for so doing, (p) Tp constitute perjury at common law, it is not necessary that an affidavit should be read or used ; for the crime is {I) Arch. Cr. PIJ2. 818-19. (m) McAdam v. Weaver, 2 Kerr, 176 ; Rokeby v. Langaton, 2 Keb. 314.. (n) Reg. v. Cowan, 24 U. C. Q. B. 606. (0) Reg. V. Atkinam, 17 U. C. C. P. 296. (p) Jackson v. Kassel, 26 U. C. Q. B. 346, per Draper, C. J. 304 THE CRIMINAL LAW OF CANADA. 'Complete on the affidavit being sworn to, though no use was afterwards made of it ; but, under the 5 Eliz., c. 9, as nothing can be an offence within it unless some one is actually aggrieved, the affidavit must be read or used, (q) To sustain a conviction for perjury, it is not necessary that the jurat of the affidavit, upon which the perjury is assigned, should contain the place at which the affidavit was sworn, for the perjury is committed by the taking of i)he oath, and the jurat, so far as that is concerned, is not material, and although tlirough the defective jurat the affi- davit could not be received in court, yet perjury may be •committed in an affidavit which the court would refuse to read. The jurat is no part of the affidavit, (r) There can be no accomplices in perjury, (a) It has been held that, on an indictment for perjury, the defendant must appear and submit to the jurisdiction of the court, before he can be allowed to plead, and that this rule applies to misdemeanors as well as felonies, (t) An indictment for perjury charged that it was committed on the trial of an indictment against A. B., at the Court of Quaiter Sessions for the county of B., on the 1 1th of June 1867, on a charge of larceny ; which was held sufficient, and that it was not necessary to specify the property stoleu, the ownership thereof, or the locality from which it was taken, nor to allege that the indictment was in the name of the 'Queen, as the court must take judicial notice of the fact that Her Majesty alone could prosecute on a charge of larceny, (m) This decision was, to some extent, founded on the provisions of the Con. Stats. Can., c. 39, ss. 39 and 51 ; and as those of the 32 & 33 Vic, c. 23, s. 9, are the same m suboi/ance, the decision will still hold. Although, ill an indictment for obtaining money or goods by false pretences, the property in the money or goods must iq) MUner v. OUbert, 1 Allen, 57. (r) Heg. v. Atkituum, 17 U. C. C. P. 295. («) Reg. V. Pelletier, 1 Bevue Leg. 665. (0 Reg. V. Maxwell, 10 L. 0. K. 46. (ti) Reg. V. Macdonald, 17 U. 0. C. P. 635. PEHJUJKY. 305 h no use 5., c. 9, as le one is jed. (q) aecessary )erjury is affidavit taking of id, is not b the affi- Y may be refuse to jury, the on of the this rule ommitted Court of of June ient, and oleu, tlie as taken, le of the fact that 'ceny. (m) rovisions I those of ince, the or goods »ds must be alleged, yet in reciting such a prosecution, upon which to found a charge of perjury, it seems the 8.ime particularity would not be necessary, otherwise the false pret«nce should be set out too, and it vns only after a long course to the contrary that it was at length determined the false pretences should be set out in the indictment, for the specific offence, {v) Where an indictment for perjury stated that a cause was pending in the county court, in which A. and B. were plain- tiffs and C. defendant ; that, on the hearing of such cause, it " became a material question wliether the said A. had, in the presence of the prisoner, signed at the foot of" a certain bill of account, purporting to be a bill of account between a cer- tain firm called A. & Go. and the aforesaid C, a receipt for payment of the amount of the said bill, " and that the said prisoner did " falsely, corruptly, and maliciously swear that the said A. did, on a certain day, in the presence of the prisoner, sign the said receipt (meaning a receipt at the foot of the said first mentioned bill of account for the payment of the said bill), whereas, etc. : it was held sufficiently certain, (w) And an indictment for perjury which stated the offence to have been committed on the trial of " a certain indictment for misdemeanor," at the Quarter Sessions for the county of Salop, but did not state what the misdemeanor was, so as to show that the court had jurisdiction to try it, nor expressly averred that t' ^ court had such jurisdiction, was held good, (x) The 32 & 33 Vic., c. 23, s. 9, renders it unnecessary to set foith the authority to administer the oath. This Act was passed to do away with technical forms of indictments, and where an indictment contains every averment required by this section, it is by the express t^rms of the section suffi- cient, although it does not contain any express or equivalent (v) Jieg. V. MacdoruUd, 17 U. 0. C. P. 638, per A. WUion, J.; Jiex. v. Mason, 2 T. R. 581. (to) Eeg. y. Webtter, 6 U. C. L. J. 262 ; 1 P. & F. 615. (x) Bey. V. Dunning, L. R. 1 C. C. B. 290. 5 2 306 THE CRIMINAL LAW OF CANADA. ,1 ' M averment that the court had competent authority to admin- ster the oath, (y) Where it appeared, on the face of an indietment for per- jury, that the statement complained of was made before a justice of the peace, in preferring a charge of larceny com- mitted within his jurisdiction, it was held unnecessary to allege expressly that he had authority to administer the oath, (z) An indictment for perjury, which charged the defendant with having sworn falsely in certain proceedings before justices, wherein he was examined as a witness, the allegation of materiality averred that " the said D. R. (the defendant) beir;5 so sworn as aforesaid, it then and there became material to inquire and ascertain, etc., was held bad, as not sufficiently showing that the alleged peijury was committed at the said proceedings, and that the words " upon the trial " should have been used, (a) In 32 & 33 Vic, c. 23, s. 9, "the substance of the offence chaxged " means that the charge must contain such a descrip- tron of the crime that the defendant may know what crime he is called upon to answer ; that the jury may appear to be warranted in their conclusion of guilty or not guilty upon the premises delivered to them, and that the court may see such a definite crime that they may apply the punishment which the law prescribes, (b) Where a prosecutor has been bound by recognizance to prosecute and give evidence against a person charged with perjury, in the evidence given by him on the trial of a certain suit, and the grand jury have found an indictment against the defendant, the court will not quash the indict- ment because there is a variance in the specific charge of (y) Reg. v. Dunning, L. B. I C. C. R. 294-5, per Ghanndt B. (z) Beg. V. CaUaghan 20 U. C. Q. B. 364. (a) Reg. v. Rosa, 1 Oldright, 683 ; and see 32 ft 33 Vic, c. 29^ sch. A. Perjury, 291. (6) Reg. v. Macdonald, 17 U. C. C. P. 638, per A, Wilton, J.; Reg. r. Home, Cowp. 682. PERJURY. W7 perjury contained in the information and that contained in the indictment, provided the indictment sets forth the substantial charge contained in the information, so that the defendant has reasonable notice of what he has to answer, (c) An indictment for perjury, based upon an oath allefired to have been made before the "judge of the General Ses- sions of the Peace in and for the said district" [of Montreal], instead of, as the fact was, bafore the "judge of the Sessions of the Peice in and for the city of Montreal," that being the proper vitle of the judge, may be amended after the plea of not ^x^ilty. {d) Where an attempt to incite a woman to take a false oath consist d of a letter written by defendant, dated at Brad- ford, in the county of Simcoe, purporting but not proved to bear the Bradford post mark, and addressed to the woman at Toronto, where it was received by her : it was held that the case could be tried in York. («) The 32 & 33 Vic, c. 23, s. 10, contains provisions as to the form of the indictment, whether the offence has or has uot been actually committed, and section 8 provides that any person accused of perjury may be tried and convicted in any district, county or place, where he is apprehended, or is in custody. The ordinary conclusion of an indictment for perjury, " did thereby commit wilful and corrupt perjury," may be rejected as surplusage. (/) It has been held under the 14 & 15 Vic, c 100, s. 1, (g) that the judge had power to amend an indictment for perjury > describing the justices before whom the perjury was com- mitted as justices for a county, where they are proved to be justices for a borough only. (A) (c) Reg. V. Broad, 14 U. C. C. P. 168. id) Reg. v. PeUetier, 15 L. C. J. 146. (e) Reg. v. Clement, 26 U. C. Q. B. 2»7. (/) Reg. V. Hodgkus, L. R. 1 C. C. R. 212 ; 39 L. J. (M. C.) 14 ; Ryall» T. Reg., 11 Q. B. 781. (9) See 32 & 33 Vic, c. 29, s. 71. (A) Reg. v. We$tem, L. R. 1 C. C. R. 122 ; 37 L. J. (M. C.) 81. 2 808 THK CRIMINAL LAW OF CANADA. By 26 Vic, c. 29, s. 7, it is enacted tliat witnesses before commissioners for inquiring into the existence of corrupt practices at elections shall not be excused from answering questions, on the ground that the answers thereto may crimin- ate them, and that " no statement made by any person, in answer to any question put by such commissioners, shalL except in cases of indictments for perjury, be admissible iu evidence in any proceeding, civil or criminal." It was held that, " except in cases of indictments for perjury," applies only to perjury committed before the commissioners ; and, therefore, on an indictment for perjury, committed on the trial of an election petition, evidence of answers to commis- sioners appointed to inquire into the existence of corrupt practices at the election in question is not admissible, (i) Some one or more of the assignments of perjury must be proved by two witnesses, or by one witness and the proof of other material and relevant facts, confirming his testimony. (J) And the assignment so proved must be upon a part of the matter swor ), which was material to the matter before the court, at the time the oath was taken, (k) Where three witnesses proved that the prisoner had made parol statements contradictory to the truth of the statement upon which perjury was assigned, and the evidence of several witnesses went to confirm the truth of such parol state- ments, but there was no direct evidence that they were true, a conviction for perjury was supported. (/) The 32 & 33 Vic. c. 23, s. 8, applies to ail cases of per- jury, and not merely to " perjuries in insurance cases," which is the heading under which the sections from 4 to 12 are placed. Therefore a magistrate acting in the county of Halton, has jurisdiction to take an information against, and (i) Reg. v. Buttle, L. R. 1 C. C. R. 248. ij) Reg. V. Boulter, 2 Den. 396 ; 21 L. J. (M. C.) 67 ; 3 C. & K., 236 ; Reg. V. Webtter, 1 F. ft F. 515 ; Reg. v. BraithwaUe, ibid. 638 ; Reg. t. Shaw, L. 4 C. 679 ; 34 (L. J. (M. C.) 169 ; Arch. Cr. Pldg 822. {k) Ibid. ; see also Reg. v. Muacot, 10 Mod. 194 ; Reg. v. Lee, 2 Ruas. fi>0 ; Reg. V. Gardner, 8 0. 4 P. 737 ; Reg. v. RobeHn, 2 C. 4 K. 607. J) Reg. r. Hook, 4 U. C. L. J. 241 ; Dears. 4 B. 606 ; 27 L. J. (M. C.) 4K> I CONSPIRACY. H09 868 before corrupt answering ay crimin- jerson, in ers, shall, lissible in was held ," applies lera ; and, id on the [> commis- •f corrupt >le. (i) r must be e proof of imony. (j) irt of the before the had made statement of several irol state- were true, 8 of per- «," which >o 12 are ounty of iinst, and &K., 236; S ; Beg. r. ee, 2 Rubs. .607. J. (M. C.) to apprehend and bind over, a person charged with perjury committed in the county of "Wellington, (m) Conspiracy. — A conspiracy is an agreement by two per- sons or more, to do, or cause to be done, an act prohibited by penal law, or to prevent the doing of an act ordained under legal sanction, by any means whatever, or to do, or cause to be done, an act, whether lawful or not, by meann prohibited by penal law. {n) It is otherwise defined as a crime which consists either in a combination and agreement by persons to do some illegal act, or a combination and agreement to effect a legal purpose by illegal means, (o) And a further extension of the definition is as follows: An agreement made with a fraudulent or wicked mind to do that which, if done, would give to the prisoner a right of suit, founded on fraud or on violence^ exercised on or toward him, is a criminal conspiracy, (p) Conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an un- lawful act, or to do a lawful act by unlawful means. So long as such design rests in intention only, it is not indict- able. But where two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means, {q) The conspiracy or un- lawful agreement is the gist of the offence, (r) As it is thus complete, by a mere combination of persons, to commit an illegal act, or any act whatever, by illegal means, the parties will be liable, though the conspiracy has (to) Reg. V. Gurrie, 31 U. C. Q. B. 682. (n) Beg. v. Boy, 11 L. C. J. 93, per Drummond, J. (o) Beg. V. Vincent, 9 C. & P. 91, per Alderaon, B.; Beg. v. Boy, nipra, 92, per Drummond, J. (p) B^. V. Aapinail, L. R. 2 Q. B. D. 48 ; Beg. v. Warburton, L. R. 1 C. C. R. 274. iq) Mvicahy v. Be^. L. R. 3 E. Jc L App. 306, 317, 328. (r) Hortenm v. Beg. 16 U. C. Q. B. 543 ; Beg. v. Seward, \ A. fr E. 706; 3 L. J. (M. C.) 103 ; Beg. v. Bkhardson, 1 M. & Rob. 402 ; Beg. v. Kenrick, 5 Q. B. 49 ; 12 L. J. (M. C.) 136 ; 3 Russ. Or. 116. 310 THE CRIMINAL LAW OF CANADA. I not been actually carried into execution, (s) The actual execution of the conspiracy need not be alleged in the in- dictment, (t) For the same reason, it is not necessary that the object should be unlawful ; and in many cases an agreement to do a certain thin; has been considered as the subject of an indictment for conspiracy, though the same act, if done separately by each individual, without any agreement amongst themselves, would not have been illegal, (u) The rule is, that when two fraudulently combine, the agreement may be criminal, although, if the agreement were carried out, no «?rime would be committed, but a civil wrong only inflicted cm the party, (v) It is sufficient to constitute a conspiracy if two or more persons combine, by fraud and false pretences, to injure another, (w) A fraudulent agreement, by a member of a partnership, with third persons, wrongfully to deprive his partner, by false entries and false documents, of all interest in some of the partnership property, in taking accounts for the division of the property, on the dissolution of the partnership, was held to be a conspiracy, although the offence was completed be- fore the passing of the corresponding English section of the 32 & 33 Vic, c. 21, s. 38 (by which a partner can be crimin- ally convicted for feloniously stealing the partnership pro- perty); for the object was to commit a civil wrong by fraud and false pretences (x) It appears that an indictment lies not only wherever a conspiracy is entered into for a corrupt or illegal purpose, but also where the conspiracy is to effect a legal purpose by {») Reg. V. Roy, 11 L. C. J. 92, per Drummond, J {t)Ibid. (u) Rex V. Mawbey, 6 T. R. 636, per Oroee, J. ; 3 Russ. Cr. 116 {v)Reg. V. WarbuHon, L. R. 1 C. C. R. 276, ~ "' L. J. (M. C.) 22 ; Reg. v. AspituUl, L. R. 2 Q. B. (to) Ibid. 276, per Cockbum, C. J. {») Reg. V. Warburton, L. R. 1 C. C. R. 274. ir Ooci^m, C. J.; 40 48. CONSPIRACY. 311 Hie actual I in the in- the object 'eement to >ject of an Bt, if done agreement .(u) nbine, the ment were ivil wrong TO or more to injure rship, with r, by false me of the division of , was held pleted be- bion of the )e crirain- rship pro- ? by fraud herever a I purpose, urpose bj 116. I, C. J.; 40 the use of ualawfui means, aud this although such purpose be not effected, (y) But in an indictment for conspiracy, an offence prohibited by penal law must be set forth either in the averment of the end or means. The indictment ought to show that the con- spiracy was for an unlawful purpose, or to effect a lawful purpose by unlawful means. Malwm. 'prohibitum, and not malv/m in, se non prohibitum, is the only foundation either as to the end or the means, upon which an indictment for con- spiracy should rest, {z) But an omission in an indictment to state that the agieement was made with intent to defraud, is cured by verdict (a) All the definitions of conspiracy show that the offences of this nature belong to one or other of two classes. The first, where the illegal character of the object constitutes the crime ; the second, where the illegal character of the means used to attain the end is the constituent feature of the offence. In the first class of cases, it is unnecessary to state in the in- dictment the means by which the unlawful end was attained, or sought to be reached ; while in the second class, the means or overt acts, must be specially set forth. (J) In this case, the object was alleged to be to " cheat and defraud private individuals ; " but as this was not necessarily a penal offence, and no penal offence was shown in the aver- ment of the means used, the indictment was quashed. It was also held that the count should state of what thing or things the defendant intended to defraud the parties, (o) ' An indictment, charging that defendants, H., C. and D., were township councillors of East Nissouri, and T, treasurer ; that defendants, intending to defraud the council of £300 of the moneys of said council, falsely, fraudulently, and unlaw- fully, did combine, conspire, confedemte aud agree among (y) Reg. v. TaiUyra' Com. 8 Mod. 1 1 ; Reg. v. Beat, 6 Mod. 185 ; 3 Rusa. Cr. 116. (z) Reg. V. Roy, 11 L. C. J. 89-93, per Drummond, J. (a) Reg. v. Aspinall, L. R. 2 Q. B. D. 48. ib) Reg. v. Roy, M L. €. J. 98, per Drummond, J. ie) Ibid. QC . . s afei 2 ^ i 312 THE CRIMINAL LAW OF CANADA. themselves, unlawfully and fraudulently to obtain and get into their hands, and did then, in pursuance of such con- spiracy, and for the unlawful purpose aforesaid, unlawfully meet together, and fraudulently and unlawfully get into their hands £300 of the moneys o{ said council, then being in the hands of said T. as such treasurer, as aforesaid, was held bad, on writ of error, on the following grounds : The money in the hands of the treasurer was, under 12 Vic, c. 81, 8. 74, th«» property of the municipal corporation, and the intent to defraud should have been laid as an attempt to defraud the latter of its moneys ; second, there Mas nothing to shoM what the parties conspired to accom- plish ; third, the unlawful conspiracy, which is the gist of the offence, was not first suflRciently alleged, and the overt act stated to have been done, in pursuance of it, was not wrong or unlawful ; fourth, it was not alleged that any un- lawful means were had in order to get the money into the possession of the treasurer, (d) Conspiracy is generally a matter of. inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose, in common between them, (e) Whenever a joint participation in an enterprise is shown, any act done in furtherance of the common design is evi- dence against all who were, at any time, concerned in it. (/) It is clearly unnecessary to prove that all the defendants,^ or any two of them, actually met together, and concerted the proceeding carried out. It is sufficient if the jury are satisfied, from their conduct, and from all the circumstances, that they were acting in concert, (g) But, in general, proof of concert and connection must be given before evidence is (d) Horaemdn v. Reg., 16 U. C. Q. B. 543. (e) Midcahy v. Beg., L. R. 3 E. & I. App. 317, per Willes, J. ; Beg. v. Briasac, 4 £a. 171, per Oroae, J. (/) Beg. V. Sldvin, 17 U. C. 0. P. 205 ; and see Beg. v. SheOard, 9 G. ftP. 277 ; Beg. ▼. Blake, 6 Q. B. 126 ; 13 L. J. (M. C.) 131. (g) Beg. v. JMotoea, 19 U.C.Q.B. 48 ; and see Beg. v. Paraoru, 1 W. fSL 822 ; Beg. r. Murphy, 8 C. & P. 297. CONSPIRACY. 31? admissible of the acts or declarations of any person not in the presence of the prisoner. (A) The prosecutor may go into general evidence of the nature of the conspiracy before he gives evidence to connect the defendant with it. (i) The prisoners were indicted for conspiring to commit larceny. The evidence was that the two prisoners, with another boy, were seen by a policeman to sit together on some door-step near a crowd, and when a well-dressed per- son came up to see what was going on, one of the prisoners made a sign to the others, and two of them got up and fol- lowed the person into the crowd. One of them was seen to lift the tail of the coat of a man, as if to ascertain if there was anything in his pocket, but making no visible attempt to pick the pocket ; and to place a hand against the dress of a woman, but no actual attempt to insert the hand into the pocket was observed. Then they returned to the door- step, and resumed their seats. They repeated this two or three times, but there was no proof of any preconcert other than this proceeding. It was held not to be sufficient evi- dence of a conspiracy ; for to sustain a charge of conspiracy, there must be evidence of concert to do the illegal act, and the doing of an act not illegal is no evidence of a conspiracy to do an illegal one, there being no other evidence of the con- spiracy than the act so done, (j) In an indictment for conspiracy to obtain money by false pretences,' it is not necessary to set out the pretences, as the gist of the offence is the conspiracy, (k) But where the con- spiracy is to obtain money from certain persons, it is neces- sary to state who they are, for the conspiracy is to cheat them. (0 Where the conspiracy is to obtain goods, it is not necessary to specify the goods or describe them, as in an 2 (A) 3 Rubs. Cr. 161 ; The Queen's case, 2 Brod. ft B. 302 ; Reg. ▼. Jacobs, 1 Cox, C. C. 173 ; Reg. v. Ihiffield, 6 Cox, C. C. 404. (i) Reg. v. Hammond, 2 Esp. 718. ( I) Reg. V. Taylor, 8 C. L. J. N. S. 64 ; 26 L. T. Reps. N. S. 76. (I) Reg. V. Macdonald, 17 U.C.C.P. 638, per A. Wilson, J. ; Rex ▼. GW, B. k Aid. 204. (I) Ibid. 314 THE CRIMINAL hkW OF CANADA. indictment for stealing them ; stating them as "divers goods" would be sufficient, (m) Conspiracy is an offence at common law, independently of the 33 Edw. I., c. 2. (n) A conspiracy to kidnap is a mis- demeanor, (o) A conspiracy to charge a man f alsly with treason, felony or misdemeanor, is indictable : but it is not an indictable offence for two or more persons to consult and agree to pro- secute a person who is guilty, or against whom there are reasonable grounds of suspicion, (p) A conspiracy to impose pretended wine upon a man, as and for true and good Portugal wine, in exchange for goods, is indictable, {q) So a conspiracy to defraud the public by means of a mock auction or an auction with sham bidders, who pietend to be real bidders for the purpose of selling goods at prices grossly above their worth, (r) So a con- spiracy by a female servant and a man, whom she got to personate her master, and marry her, in order to defraud her master's relatives of a part of his property, after his death, (s) So a conspiracy to injure H man in his trade or profession; (t) so a conspiracy, by false and fraudulent representtitions that a horse bought by one of the defend- ants from the prosecutor was unsound, to induce him to accept a less sum for the horse than the agreed price, (u) So a. conspiracy to raise the prices of the public funds by false rumors, as being a fraud upon the public; (v) so a conspiracy by persons, to cause themselves to be reputed men of property, in order to defraud tradesmen ; (w) so a conspiracy to defraud by means of false representations of (m) Beg. v. Boy, II L. C. J. 92, per Drummond, J. (») Ibid. (o) Ex parte Blossom, 10 L. C. J. 41, per Badgley, J. ) Where the indictment charged that A., B. and C. conspired together, and with divers other persons to the jurors un- known, etc., and the jury found that A. had conspired with either B. or C, but they could not say which, and there was no evidence against any other persons than the three defendants) A. was held entitled to an acquittal, (k) By the 31 Vic, c. 71, 8. 5, conspiracy to intimidate a provincial legislative body is made felony. (A) Arch. Cr. Pldg 942. (t) Reg. V. Kinnersley, 1 Str. 193. U) Reg. ▼. NichoUa, 2 Str. 1227. (k) Reg. v. Thympaon, 16 Q. B. 832 ; 20 L. J. (M.C. ) 183 ; Aroh. Gr. Pldg. 942. mSCSLLANSOUS 8TATUTBS. 317 jrson m CHAPTER VII. ANNOTATIONS OF MISCELLANEOUS STATUTES. It is a sound rule to construe a statute accordiug to the common law rather than against it, except when or so far as the statute is plainly intended to alter the common law. (a) Statutes aro usually construed strictly in criminal cases, and no construction will be adopted which the language of the statute does not plainly authorize, (b) But they ara taken strictly and literally only, in the point of defining and setting down the crime and the punishment, and not generally in words that are but circumstance and coDveyance in putting the case, (c) It has been laid down that the court will construe a penal statute according to its spirit and the principles of natural Justice ; and cases may possibly arise in which, although a person, according to the letter of the Act, may be liable to the penalty, yet the court will direct the jury to acquit him, he not having offended against its spirit and intention, (d) By 31 Vic, c. 1, s. 6, thirty-ninthly, every Act shall be deemed remedial, and shall be construed as such. In con- struing a remedial statute, the substance of its provisions must be looked to, («) and the court will construe it liberally. (/) In construing the Consolidated Statutes of Canada, the court may refer to the original enactments, in order to (a) Reg. v. Morris, L* R. ICC. K 95, per Byles, J. (ft) See Seg. v. O'Brien, 13 U. C. Q. B. 436 ; see also Reg. v. Broum, 4 U. C. Q. B. 149, per Robiimn, C. J. ; WiU v. Lai, 7 U. C. Q. B. 537, per .iobinaon, C. 3. Ic) Dwarris 634. (d) Attorney General v. Mackintosh, 2 U. C. Q. B 0. S. 497. {€) Reg. V. Proud, L. R. 1 C. 0. R. 74, per KeOy, 0. B. (/) McFarlane, v. lAndeay, Draper, 142 ; Dwarrb, 614. 4> 818 THE CRIMINAL LAW OF CANADA. arrive at a right conclusion, (g) No man can be deprived of any right or privilege, under any statutory enactment, by mere inference, or by any reasons founded solely upon con- venience or inconvenience. Statutes are to be construed in reference to the principles of common law, or of the law fn existence at the time of their enactment. It is not to be presumed that the legislature int'^nded to make any innova- tion upon the common or then existent law, farther than the case absolutely required ; and judges must not put upon the provisions of a statute a construction not supported by the words, {h) The court wiU not put an interpretation upon an Act td give it a retrospective effect, so as to deprive a man of his right. (0 In general, the court will not ascribe retrospective force to new laws affecting rights, unless, by express words or necessary implication, it appears that such was the inten- tion of the legislature. (J) But the court cannot refuse to give effect to an ex post facto statute, which is clearly so in its terms, (k) A prisoner is liable to be indicted, on the 29 & 30 Vic, cc. 2 & 3, for un- lawfully invading Quebec on a day antecedent to the passing of the statute. (I) In construing an Act of Parliament, as in construing a deed or a contract, we must read the words in their ordinary sense, and not depart from it, unless it is perfectly clear, from the context, that a different sense ought to be put on them, (m) A statute must be taken as it is, and when its object is to protect public interests, its clauses must be received in that light (n) A statutory enactment should be so construed as ig) Whelan v. Reg. 28 U. C. Q. B. 108. (A) Reg. v. Vonhoff, 10 L. C. J. 293, per Drummond, J. (() Attorney General v. HaUiday, 26 U. C. Q. B. 414, i>er Draper^ C. J.; Evans v. WUiiams, 11 Jar. N. S. 256. U) PhUUpa V. Eyre, L. R. 6 Q. B. 23, per WiUe», J. , (*) Reg. V. Madden, 10 L. C. J. 342. (I) Ibid. \in) Reg. v. Chandler, 1 Hannay, 651, per Ritchie, C. J. (n) Reg. v. Paitm, 13 L. C. R. 316, per Monddet, J. MI8CELLAME0US STATUTES. 319 eprived lenl, by 311 con- ^rued in 3 law fn >t to be innova- ;ban the pan the by the I Act td n of his spective )s words 6 inten- wst facto soner is , for un- passiQg truing a ordiuary $ar, from lem. (m) set is to i in that trued as pevt C. J. ; ,r to make the remedy co-extensive with the mischief it ia intended to prevent, (o) Where two statutes are in pari materia, and by the enact- ments of the latter statute expressly connected together^ they are to be taken as one Act. (jp) And even when a statute refers to another, which is repealed, the words of the latter Act must still be considered as if introduced into the fonner statute, {q) In general, an affirmative statute does not alter the com- mon law. (r) Where general words follow particular ones, the rule is to- construe them as applicable to persons ejuadem generis, (s) In accordance with this principle, the words " or other per- sons whatsoever," in the Con. Stats. U. C, c. 104, s. 1, cannot be taken to include all persons doing anything whatever on a Sunday, but must be taken to apply to persons following some particular calling of the same description as those men- tioned, (t) There can be no estoppel against an Act of Par- liament. If the transaction contravening the Act be in reality ill^al, no writing or form of contract, or color given, can prevent an inquiry into the actual facts, (u) It would seem that the principle of estoppel does not apply as against the public interest, (v) It h. a general rule that subsequent statutes, which add accumulative penalties and institute new methods of pro- ceeding, do not repeal former penalties and methods of pro- ceeding ordained by preceding statutes, without negative words. Nor has a later Act of Parliament ever been con- (o) 2ieg. V. Allen, L. R. 1 C. C. R. 375, per Ooekbum, C. J. (p) Beg. V. Bevaridge, 1 Kerr, 68, per Chipman, C. J. (9) Dwarris, 571. (r) Dwarris, 473-4 ; and see Levmger v. Beg. L. R. 3 P. G. App. 282. («) Sandiman v. Breach, 7 B. ft C. 100. \t) Hemelfir and Shaw, 16 U. G. Q. B. 104, per Bobinwn, C. J. ; see also Beg. V. Hynes, 13 U. G. Q. B. 194 ; Beg. v. Sylvester, 33 L. J. (M. G.) 79 ; Beg. V. Tinning, 11 U. G. Q. B. 636 ; Beg. v. Amutrong, 20 U. G. Q. B. 246. («) BaUerabey v. Odell, 23 U. G. Q. B. 482. (v) See Beg. v. Evtmg, 21 U. G. Q. B. 523. ~:3 3 5 320 THE CRIMINAL LAW OF CANADA. I N 8tiued to repeal a prior Act, unless there be a contrariety •or repugnance in them, (w) In Foster's case {x) it was held that the law does not favor a repeal by implication, unless the repugnance be very plain. A subsequent Act, which can be reconciled with a former Act, shall not be a repeal of it, though there be negative words. The 1 & 2 Ph. & M., c. 10, which enacts that all trials for treason shall be according to the course of the common law, and not otherwise, does not take away 35 Hy. VIII., c. 2, for trial of treason beyond sea. {y) The rule is, leges posteriores priores contrarias ahrogant. If both statutes be in the affirmative, they may both stand ; ^ut if the one be a negative and the other an affirmative, •OT if they differ in matter, although affirmative, the last shall repeal the first. So, if there be a " contrariety in respect of the form prescribed," a repeal will also be •effected. («) We will now consider some miscellaneous statutes relat- ing to criminal law. The 31 Vic, c. 14, seems now to be the governing enact- ment, protecting the inhabitants of Canada against lawless Aggressions from subjects of foreign countries at peace with Her Majesty. It extends the 3 Vic, c. 12, (a) and the 29 & 30 Vic, cc. 2, 3, & 4, respectively, to the whole of Oanada. {b) The Imperial statute 11 & 12 Vic., c 12, did not override the 3 Vic, c 12, (c) for the latter was re-enacted by the con- solidation of the statutes, which took place in 1859, and is, therefore, later in point of time than the Imperial jstatute. {d) (w) Dwarris, 532-3. (x) 11 R«p. 63. (y) Reg. v. Sherman, 17 U. C. C. P. 168, per /. WUson, J, (z) See O'fiagherty v. McDowell, 4 Jar. N. S. 33 ; Beg. r. Sherman, supra, 170, per A. nUson, J. (a) Cou. Stats. U. C, o. 98. (6) See also the 31 Vic, c. 16, and 33 Vio., c. 1. {c) Reg. r. School, 26 U. C. Q. B. 212. id) Reg. v. Slavin, 17 U. C. C. P. 205. Ltrariety lot faVor ry plain. I former negative all trials common :y. VUI., javU. If h. stand ; irmfttive, , the last uriety in also be tes relat- ng enact- }t lawless sace with and the whole of > override Y the con- 1859. and Imperial '. Sherman, MISCELLANEOUS STATUTES. 321 A British subject who has become a naturalized citizen of a foreign state is a "citizen or suWject of any foreign state or country," within the statute, {e) Although, whore a person is born within the Queen's dominions, the rule is, " once a British subject, always one," yet the Crown may waive the right of allegiance, and try him as an American citizen, if he claim to be such. (/) If the prisoner appeared clearly to be a British subject, and there was no evidence that he was an American citizen, he would still be indictable under our statute law for sub- stantially the same felony, with some variation of state- ment; (y) for his oifence in such case would partake of the nature of treason, and where the Crown has the right to deal with a party as a traitor, it may proceed against him as guilty only of felony, (h) And the prisoner's own ad- missions, and declarations of the country to which he belongs, are evidence against him. (i) At an early hour, on the first of June, 1866, about eight hundred men landed at Fort Erie, in arms, coming in canal boats towed by tugs, the inference being irresistible that they were from the United States. The prisoner was seen among them, armed with a revolver. The Canadian volunteers in uniform were attacked at Lime liidge by these men, who were called Fenians, and some weis killed and wounded. The prisoner was within half a mile of the battle-field, and attended the wants of the wounded on both sides, and heard the confession of five wounded Fenians. On the day before, the prisoner was talking with the Fenians in their camp, two or three being then officers, and seemed friendly with them- When the Fenians moved, on that day, from their camp, some of them left their valises behind, and the prisoner said, " Pick up the valises ; the boys may want tiiem ; we do not know (e) Reg. v. McMahon, 26 U, C. Q. R. 195. (/) Beg. V. Lyruh, 26 U. C. Q. B. 208. {g) See 31 Vic. c. 14, b. 3 ; Reg. v. Lynch, 26 U. C. Q. B. 211. (A) Reg. v. McMahon, 26 U. 0. Q. B. 201. {») Reg. V. Slavin, 17 U. C. C. P. 205. - s 2 322 THE CRIMINAL LAW OF CANADA. how long we may stay in Canada." The men picked up the valises, and the prisoner followed them. He spoke to the men, and told them to take care of themselves, and said to some bystanders : " Don't be afraid, we do nut want to hurt civilians." Some one said they wanted to see red coats, and the prisoner said, " Yes ; that was what they wanted." It was held that these facts were sufficient to go t(f the jury, to establish that the Fenians entcied the province with intent to levy war against the Queen, and that the prisoner wad connected with them, and consequently involved in their guilt ; and this even if he had carried no arms, {j ) An- other prisoner belonging to the same body asserted that he came over with the invaders as reporter only, but it was held that this could form no defence, for there was a common unlawful purpose, and the presence of any one in any character, aiding and abetting or encouraging the prose- c ition of the unlawful design, must involve a share in the common guilt. The facts above stated were held evidence of an intent to levy war. (A) The fact of the invaders coming from the United States would he prima fade evidence of their being citizens or sub- jects thereof. This intent, as laid down in Frosfs case, (l) may be col- lected from the acts of the accused, the helium percussum of the body, with which ho is identified, and does not require the passing of a resolution, or a verbal or written declaration, plainly expressive of a purpose to levy war. (m) When the prisoner was in arms at Fort Erie, in Ontario, at four o'clock in the morning of the attack made upon the volunteers, and that he had been there with the armed enemy the night be- fore : it was held evidence that he was in arms in Upper Canada with intent to levy war, notwithstanding his state- ment that he had found the weapons, with which he was {J) Req. V. McMahon, 26 U.C.Q.B. 195 ; Reg v. Slavin, 17 U.C.C.P. 205- {k) Re'/. V. Lynch, 26 U. C. Q. B. 208 ; and see Reg. v. School, ibid. 214 (I) 9 C. & P. 150. (m) Reg. v. Slavin, 17 U. C. C. P. 203. ed up the ke to the id said to nt to hurt coats, and ]ted." It 18 jury, to 'ith intent soner was 1 in their 0) An- irted that ily, but it ere was a my one in the prose- are in the i evidence ted States ns or sub- ay be col- rcusfum of lot require eclaration, When the >ur o'clock iteers, and night be- in Upper his state- jh he was C.C.P.205- wl, ibid. 214 iumiaLLkHEovB statutes. 323 armed, upon the road, and the fact that there was evidence of his having been unarmed the night before. Evidence was properly admitted, against a prisoner, of the engagement above alluded to, although the same took place several hours after his irrest. (n) Where there are two sets of counts, one charging the prisoner as a citizen of the United States, the other as a sub- ject of Her Majesty, the Crown is not bound to elect on which it will proceed, (o) Where the prisoner was indicted under 0. S. U. 0., c. 98, as amended by 29 & 30 Vic, c. 41. and charged as a citizen of the United States, but was acquitted on proving himself to be a British subject, and then indicted under the same section as a subject of Her Majesty, he cannot pk id autrefois acquit, (p) Under a. 11 of the 28 Yio., c. 1, for repressing outrages on the frontier, the court can only order restoration of property seized, when it appears that the seizure was not authcized by the Act. (q) On the facts of th; s case, they refused to interfere, holding that the collector, who seized, had probable cause for believing that the vessel was intended to be em- ployed in the manner pointed out by the ninth section, (r) The 32 & 33 Vic, c. 20, s. 26, provides that whosoever unlawfully abandons or exposes any child, being under the age of two years, whereby the life of such child is endangered, or the health of such child has been, or is likely to be, per- manently injured, is guilty of a misdemeanor. As this statute uses the word " unlawfully," it would seem that it only applies to persons on whom the law casts the ob' ligation of maintaining and protecting the child, and makes this a duty. A person who has the lawful custody and possession of the child, or the father who is legally bound to (n) Rec V. Slavin, 17 U. C. C. P. 205. (o) A?flf. V. School, 26 U. C. Q. B. 212. (p) lieg. V. McOrath. 26 U. 0. Q. B. 385. (q) lie. Georgian, 25 U. C. Q. B. 319. (r) im. 324 THE CRIMINAL LAW OF CANADA. provide for it, may offend against the provisions of the statute. But where two persons, strangers to the child, were indicted under this clause, the court held tliey were entitled to an acquittal, (s) It would seem, also, if the child dies the clause does not apply, but the prisoner wouM um i^inlty of murder or man- slaughter, according to the circumstances, (t) A woman who was living apart from her husband, and who had the actual custody of their child under two years of age, brought the child, ou the 19th of October, and left it at the father's door, telling him she had done so. He knowingly allowed it to remain lying outside his door, and subsequently in the roadway, from about 7 p.m. till 1 a.m., when it was removed by a constable, the child then being coUl and stiff but not dead. It was held that, though the father had not had the actual custody and pos8«;s8ion of the child, yet, v.6 lie ■was by law bound to provide for it, his allowing it to remain where he did was an abandonment and exposure of the child by him, whereby its life was endangered, within the meaning ■of the corresponding English section of 32 & 33 Vic, c. 20, 8. 26. (w) A. and B. were indicted, for that they did abandon and •expose a certain child, then being under the age of two years, whereby the life of the child was endangered. A., the mother of a child five weeks old, and B., put the child into a hamper, wrapped up in a shawl, and packed with shavings and cotton-wool, and A., with the connivance of B., took the hamper to M., about four or five miles off, to the booking-office of the railway station there. She there paid for the carriage of the hamper, and told the clerk to be very careful of it, and to send it to G. by the next train, which would leave M. in ten minutes from that time. She said nothing as to the contents of the hamper, which was («) Beg. V. WhUe, L. R. 1 C. C. R. 311. {t) See ibid. 314, per Blackburn, J. iu) Keg. V. n/iite, L. R. 1 0. U. R. 31L MISCELLANEOUS STATUTES. 325 sions of the e child, were I'ere entitled use does not •der or niun- ushand, and two yeais of ind left it at e knovviiiyly iubsequeiilly when it vva8 [>ld and stiff ther had not Id, yet, as iie it to reiucUH of the child the meaning ; Vic, c. 20, ibandon and age of two ngered. A., mt the child racked with •nnivance of miles off, to She there the clerk to 3 next train, : time. Siie , which was addressed, " Mr. Carr's, Northoutgate, Gisbro, — with care r to be delivered immediately," — at which address the father of the child was then living. The hamper was carried by the ordinary passenger train from M. to G., leaving M. at 7.45, and arriving at G. at 8.15, p.m. At 8.40 p.m. the hamper was delivered at its address. The child died three weeks afterwards from causes not attributable to the con- duct of the prisoners. On proof of these facts at the trial,, it was objected, for the prisoners, that there was no evi- dence to go to the jury that the life of the child was endangered, and that there was no abandonment and ex- posure of the child, within the meaning of the statute. The objections were overruled, and the prisoners found guilty ;. and it was held by a majority of the fifteen judges that the conviction should be affirmed, (v) In the indictment of a husband under sec. 25 of the same statute, for neglecting to provide his wife with necessary food and clothing, it is not necessary to allege that the defendant had the means and was able to provide such food and clothing ; nor that the neglect on the part of defendant to provide such food and clothing endangered the life or affectrd the health of his wife, (w) But the wife's need and husband's ability must appear in evidence, {x) An allegation that the wife is ready and willing to live with her husband is surplusage, (xx) The 32 & 33 Vic, c. 32, which contains provisions respect- ing the prompt and summary administration of criminal justice in certain cases, was extended to Manitoba by 37 Via, c. 39 ; to Prince Edward Island by 40 Vic, c 4 ; tc^ Keewatin by 39 Vic, c 21 ; and to British Columbia by 37 Vic, c 42. It repeals and substantially re-enacts the pro- visions of the former statute. Con. Stats. Can , c 105, so that (t>) Reg. V. FcUkingham, L. R. R 1 C. C. 222. (w) Reg. V. iSmUh, 23 L. C. J. 247. {X) Reg. V. Namnith, 42 U. C. Q. B. 242. (xic) Ibid. ::a CO ■::i rj 1 • ■ ' 3B \' 2 326 THB CRIMINAL LAW OF OANADA. the decisions under the old will equally apply to the new Act. Imprisonment is only authorized under this statute as a substantive punishment; and a conviction, therefore, im- posing a fine, and directing imprisonment for a term nAeaa the fine be sooner paid, is bad. (y) It is not necessary that the disorderly conduct should be visible from the outside of the house, {z) A person letting a house to several young women for the purpose of prostitution, cannot be indicted under this statute, (a) Under this Act it is no objection that the commitment stated the offence to have been committed on the 11th of August, and the conviction on the 10th. {b) And a convic- tion for keeping a house of ill-fame on the 11th October, and on other days and times, is sufficiently certain, (c) Nor is it material that the commitment or conviction -charge that the prisoner "was the keeper of," or " that she did keep," instead of designating the offence as " keeping any disorderly house," etc,, as in the statute, (d) The limits of the city of Toronto having been assigned by ■a public statute, the court takes judicial notice of them in -determining the jurisdiction of the magistrate, (e) A commitment is good though it does not show that the party was charged before the convicting magistrate. This might, however, and probably would, be a detect in the ■conviction. A variance between the conviction and the inlormation, the latter being that defendant was the keeper of a well- known disorderly house, and the former that the prisoner did keep a common disorderly bawdy liouse, is immaterial (/) iy) Re Slater, 9 U. C. L. J. 21. (z) Jieg. V. Hice. L. K. 1 C. C. K. 21. (a) Jieg. v. Stannard, 9 Cox C. C. 405 ; (b) Reg. v. Munro, 24 U. C. Q. B. 44. (c) Reg. V. WU'iams, 37 U. C. Q. B. 540 {d) Reg. v. Smith, supra. (e) Keg. v. Munro, supra. A/) Reg. v. Smith, 24 U. C. Q. B 44. Reg. •<' Bai'rett, ibid. 255. MISCELLANEOUS STATUTES. 327 ;o the new itatutu as a refore, im- erm Uidess ; should be nen for the under this )mmitment he 11th of i a convic- h October, in. (c) conviction " that she s " keeping tssigned by of them in >w that the rate. This tect in the nlormation, of a well- ►risoner did eriaL (/) d. 255. It is no objection that no notice had been put up, as required by s. 25 (g) of the same Act, to show that the court was that of a police magistrate, not of an ordinary justice of the peace; for the jurisdiction, in the absence of express enactment, could not be made to depend on the omission of the clerk to post up such notice. The charge of " keeping a common disorderly bawdy house *' is sufficiently certain, (h) And the place of commit- ting the offence is sufficiently laid, though not stated in express terms, if thu county be stated in the venue, and the parties described as of some locality in that county in which the magistrates have jurisdiction, (i) In a case of this kind, affidavits are receivable upon the question, whether the magistrate had jurisdiction or no, and an affidavit stating the non-compliance with the require- ments of s. 25 was received, though oflTered with a view to show that the magistrate had not jurisdiction; but it would seem affidavits are not receivable to sustain objections as to the conduct of the magistrate in dealing with the case before him. (j) On an application for a writ of habeas corpus at common law, it seems affidavits may be received, but not if the writ is applied for under thj statute of Charles, (k) for it confers no power to receive them. Affidavits might, perhaps, be received that no such sen- tence passed, but not to impeach it ; and also as to matter of fact, but not of law. (l) When the court cannot get at the want of jurisdiction but by affidavit, it must, of necessity, be received, as if the charge were insufficient, and the magistrate mis-stated it in drawing up the proceedings, so that they appeared regular, (w) It would seem that a judge of the superior (ff)32&33 Vic, c. 32, b. 26. (/t) Reg. V. Munro, 24 U. C. Q. B. 44. (i) Jieg. V. Williams, 37 U. C. Q. B. 640. ij) Reg. V. Munro, 24 U. C. Q. B. 53, per Draper, C. J. {k) 31 Car. II., c. 2 (0 Re McKinnon, 2 U. C. L. J. N. S. 327, per A. WUaon, J. (m) Ibid. 2 II 328 THE CRIMINAL LAW OF CANADA. court could not, on habeas corpus, inquire into the conclusion at which the magistrate, acting under this statute, has ar- rived, provided he had jurisdiction over the offence charged^ and had issued a proper warrant upon that charge ; but it seems the judge might inquire into what that charge was, or whether there was a charge at all. (n) Under s. 3 of this Act the magistrate may, before any formal examination of witnesses, ascertain the nature and extent of the charge, and, if the party consents to be tried summarily, may reduce it into writing. It would seem that the magistrate may then (that is, when a person is charged before him, prior to the formal examination of wit- nesses) reduce the charge into writing, and try the party upon the charge thus reduced ; and, if this is the meaning of the statute, it would not signify whether the original information and warrant to apprehend did or did not state a charge, in the precise language of the Act. (p) But the magistrate must, either by the original information, or by the charge which he makes when the party is before him, have the charge in writing, and must read it to the prisoner, and ask him whether he is guilty or not. (p) A charge of assaulting and beating is not a charge of aggravated assault, and a complaint of the former will not sustain a conviction of the latter, under 32 &; 33 Vic, c. 32, though, when the party is before the magistrate, the charge of aggravated assault may be made in writing, and followed by a conviction therefor. Under doubts as to the law and the power to receive affidavits on the disputed facts, the prisoner was admitted to bail, pending the application for his discharge, which was to be renewed in term, (q) The meaning of the words " a competent magistrate " in the Act is defined by 37 Vic, cc 39 & 40. (n) Be McKinnon, 2 U. C. L. J. N. S. 328, per A, \o) Ibid. 329, per A. Wilaon, J. (p) Ibid, {g) Ibid. WiUon, J. MISCELLANEOUS STATUTES. 329^ nclnsion , has ar- charged^ 3 ; but it rge was, fore any iure and be tried lid seem )erson is m of wit- he party meaning original lot state But the n, or by 'ore him, prisoner, harge of will not ic, c. 32, le charge followed law and acts, the ition for ) rate" in The Con. Stats. U. C, c. 76, sees. 9 and 10, and R S. O., a. 135, (r) contain provisions respecting apprentices and minors. Where the apprentice is a minor, it is necessary to a con- viction under this statute that the articles should be executed by Bime one on his behalf, (s) The satisli^^tion to be given (t) must be ascertained, and an absolute imprisonment for two months is not authorized by the statute. The Acts of the various provinces which render breaches of contract criminal, have been repealed by the 40 Vic, c 35 (D) ; and a number of new offences created by that statute, viz., wilful and malicious breaches of contract endangering life, person or property, or of contracts with gas, water or railway companies ; also wilful and malicious breaches of contracts by such companies. The word " malicious " is to be con- strued in the manner required in the Act respecting Malicious Injuries to Property. The object of the statute, as appears by its preamble, is to remove breaches of contract of service from the catalogue of crimes, and render such offences purely civil in their nature. The defendant was indicted under the Banking Act oi 1871, 34 Vic, c 5, s. 62, for making a wilfully false and deceptive return ; the falsity of the return consisting in the improper classification of assets and liabilities : First, large sums borrowed by the defendant's bank from other banks on deposit receipts, were classified as "other deposits payable after notice, or on a fixed Jay ;" second, demand notes classed as " bills and notes discounted and current ;" and third, ovsrdiafts as " notes and bills discounted and current." It was held, as to the first and second of the above charges* that it was for the jury to determine the questions raised thereby as matters of fact, and not for the judge presiding at the trial ; but as to the third, that as a matter of law au overdraft is not current, (u) (r) 14 & 15 Vic, c. 11. («) Beg. V. Sober /son, 11 U. C. Q. B. 621. (0 R. S. O., c. 135, 8. 19. "' " (tt) Jteg. V. Sir Francis Hincks, 24 L. C. J. 116. 21 3 i MO THE CRIMINAL LAW OF CANADA. m The wilful intent under ibis statute, as in other cases, may be inferred from all the circumstances of the case, (v) The It. S. 0., c. 163, s. 82 et seq., (w) provides for the estub- ilishment and regulation of tolls, on roads constructed by joint stock companies. The offence created and contemplated by the statute is the exacting and taking a sum over and above the amount of toll which the collector is authorized to take. Section 128 of this statute, which makes it an offence to " take a greater toll than is authorized by law," does not apply to the case of taking toll from a person who is altogether exempt. If it did, a conviction for such offence should state the ground of exemp- tion and the fact of exemption being claimed, so that the >court could see that an offence was committed. Where a person passed through the gate on the 10th of January, the collector giving him credit, as was usual between them, and on the 20th they had a settlement, and the loll for the 10th was then demanded, and paid ; it was held that a conviction for such a demand, if illegal, could not be sup- ported, (x) Section 94, subs. 7, exempts any person, with horse or car- riage, going to or (eturning from his usual place of religious worship, on the Lord's day. If a minister attends church, according to the usage pre- scribed and observed by the rules of the particular persuasion to which he belong. ^ such church may be considered, as to him, the usual place of religious worship when he is attend- ing it, on the day so prescribed, (y) But if a person claims exemption, he must state to the toll-keeper the grounds of his claim, (z) r A waggon of the seller carrying artificial manure to the farm of the purchaser, is within the exemption from toll, in (w) Beg. V. Sir Francis Hincks, 24 L. C. J. 116. (w) See R. S. 0., c. 152, d. 82. (x) Keg. V. CampioTi, 28 U. C. Q. B. 259. \y) Smith V. Bamett, L. U. 6 Q. B. 36, per Blackburn, J, (z) Beg. V. Davia, 22 U. C. Q. B. 333. MISCELLANEOUS STATUTES. 331 the 5 & 6 Wm. IV., c. 18, s. 1, as " a carriage employed in •conveying manure for land." (a) The following conviction before the magistrates, "for that the defendant did, at, etc., on or about the first day of December, and upon other days and times, before and since, take and receive toll from the informant, at the toll-gate No. S, situate on the macadamized road between Hamilton and Brantford, in the said district, unlawfully and improperly, the said gate not being in a situation or locality authorized by law," being removed into this court by certiorari, was held bad in not showing that the defendant was summoned, or was heard, and in not setting out the evidence, or stating that any complaint was made, or evidence given by any one on oath ; in not stating how much toll was taken, and in not showing in what respect the taking of toll was unlawful, (b) Where tolls, fixed by the commissioners, had been exacted by a toU-gatt! keeper, at a gate not six miles apart from the one previously passed, the toll-gate keeper, under the 3 Vic, c. 53, s. 34, was held not liable to a summary conviction, for the statute was intended to prevent the taking of more or less toll than the commissioners had appointed, (c) A conviction is bad which omits any statement of the information ; or of the summons and appearance or default of the accui^ed ; or of his plea, denying or confessing. So in not giving the evidence, or in not showing that any to!l*was claimed, or what toll, or how imposed, or that any could be claimed or imposed by reason of the completion of the road, or any part of it. Also, it is fatal if it do not appear therein that the defendant had proceeded on the road with any carriage or animal liable to pay toll, and, after turning out of the road, had returned to or re-entered it, with such carriage or animal beyond the toll-gate, without paying toll, whereby payment was evaded, (d) (a) Foster and Tucker, L. R. 5 Q. B. 224 ; see (Ont.) 32 Vic, c. 40 ; Con. Stats. Can., c. 86, 8. 3. (6) Rer,. V. Brown, 4 U. C. Q. B. 147. (c) Reg. V. Brown, 4 U. C. Q. B. 147. {d) Reg. v. Haystead, 7 U. C. Q. B. 9 2 332 THE CRIMINAL LAW OF CANADA. A conviction, under s. 95 of this Act, stating that defendant wilfully passed a gate without paying, and refusing to pay toll, was held good, as sufficiently showing a demand of toll. It seems doubtful whether it would be sufficient to allege that he wilfully passed without paying, and without in any way showing a demand, (e) It was also held, in this case, that the non-exemption of the defendant, if esbentiaf to be alleged, was suffi ?ientlv battd in these words : " he, the said James Caister, n( r^f ... exempted by law from paying toll on the said road ;* rosjd ?; ;Con. Stats. Can., c. 103, s. 44, throws the proof on »..ie def . -^ant. Where the general form prescribed by the Con. Stats. Can., c. 103, s. 50, sched. 1, is used, it is clearly not requisite to show that the defendant was summoned or heard, or any evidence given. It is not necessary to name any time for payment of the fine, and, in such case, it is payable forthwith. (/) Where, assuming the faots to be true, the magistrate has jurisdiction, the conviction only can be looked to. (g) Where the defendant, having been convicted, on the in- formation of a toll-gate keeper, of evading toll, appealed to the Quarter Sessions, where he was tried before a jury and acquitted, this court refused a writ of certiorari to remove the proceedings, the effect of which would be to put him a secoM time on his trial, for which no authority was cited, {h) The 32 & 33 Vic, c. 22, s. 40, enacts that whosoever, by any unlawful act, or by any wilful omission or neglect, obstructs, or causes to be obstructed, any engine or carriage, using any railway, or aids or assists therein, is guilty of a misdemeanor. ^he prisoner unlawfully altered some railway signals at a railway station, from " all clear " to " danger" and " cau- tion." The alteration caused a train, which would have ':l^!9lil^tlT (e) Btg, V. Caister, 30 U. C. Q. B. 247. (/) /bid. (/;) Ibid. {h) Stewart and Dlachhum, 25 U. C. Q. B. 16. MISC'ILLANEOUS STATUTES. 333 passed the station without slackening speed, to slacken «peed, and come nearly to a stand. Another train, going in the same direction and on the same rails, was due at the station in half an hour ; it was held that this was obstructing a train within the meaning of the above clause, (i) The Act is not limited to mere physical obstructions. The prisoner, who was not a servant of the railway company, stood on a railway, between two lines of rails, at a point between two stations ; as a train was approaching he held up his arms, in the mode used by inspectors of the line when desirous of stopping a train between two stations. The priyoner knew that his doing so would probs-blr ^dnce the driver to stop or slacken speed, and his intenUan iS to produce that effect. This caused the driver i si^ut off steam and diminish speed, and led to a del and the ot being the first msidered d for or le excep- sold on } not as •tgage of uying or Bui all sales or agreements for a sale of real or personal property made on Sunday are void, (i) A snare to catch game is an engine within the meaning of sections 4 and 5, and putting down a snare, on a day before Sunday, for the purpose of killing game, and keeping it bet on Sunday, is using an engine on Sunday and an offence within the Act, even though the party be not present using it. ij) A farmer working on his own land on a Sunday is not liable to conviction, under 29 Car. II., o. 7, s. 1. The words " or other person whatsoever " are to be construed ^usdem generis, and a farmer is not ejusdem generis, with a tradesman, who is the only employer named, nor with a laborer, who is a person employed, (k) The Imperial Act 21 Geo. III., c. 49, prohibiting amuse- ments and entertainments on the Lord's day, is in force in Ontario. (/) The Con. Stats. U. C, c. 19, s. 181, (m) is confined to the use of false instruments, and does not apply to the mere verbal assertion of authority. Therefore, where the prisoner had obtained payment of a sum, in discharge of a debt and costs, from a defendant (who had been previously duly served with a summons in the county court), by pretending that he was an officer of, and authorized by, the court to receive it, it was held, under analogous provisions in the Imperial statute 9 & 10 Vie., c. 95, s. 57, that the offence was not made out. (n) But in another case, under the same clause of the statute, the prisoner was indicted for acting, and professing to act, under a false color and pretence of county court process, and it was proved that the prisoner, being a creditor of R., S 3 (i) Lai V. Stall, 6 U. C. Q. B. 506. ( ; ) Allen and Thompson, L. R. 5 Q. B. 336. (it) Reg. V. Silvester, 33 L. J. (M. C.) 79. (I) Reg. V. Bamea, 45 U. 0. Q. B. 276. (m) See K. S. O., c. 47, 8. 216 et seq. in) Reg. v. MyoU, 1 U. C. L. J. 35 ; 6 Cox, C. C. 406. 338 THE CRIMINAL LAW OP CANADA. I Ss FiCnt him a nonsensical letter, headed with the royal arms, tf.nd purporting to be signed by the clerk of a county court, threatening county court proceedings. He subsequently told R.'s wife that he had ordered the county court to send the letter, upon which she paid the debt ; and, whilst making out the reotdpt, he made demand of her for the county court expenses ; it was held that these facts constituted felony within the meaning of the section, and that the conviction must be supported, (o) Where A, delivered to B. a document requiring him to produce accounts, etc., at a trial in a county court, intituled of the court, and giving the names of plaintiff and defend- a7it, with a statement in the margin of the amount of the sum claimed, no such cause really existing ; on an indict- ment against A., for feloniously causing to be delivered to B. a paper purporting to be a copy of a certain process of the county court of L., it was held that the document above mentioned was a notice to produce documents, etc., between party and party, and not a process of the court, nor did it purport to be so. {p) ^ • ' ' ' j ■■ B. being indebted to A, A. obtained a blank form for plaintiff's instructions to issue county coui*t summons. This he filed up with particulars of the names and addresses of himself and B., as plaintiff and defendant, and of the nature and amount of the claim, and, without any authority, signed it in the name of the registrar, endorsing also a notice, signed also by A. in the name of the registrar, and without his authority, that unless the amount claimed were paid by B- on a certain day, an execution warrant would issue against him. This paper he delivered to B.,'with intent thereby to obtain payment of his debt. This was held (q) " an acting, or professing to act, under false color and pretence of pro- cess of the county court," within the meaning of 9 & 10 Vic, c. 95, s. 57. (r) (0) Jiefj. V. EvavK, 3 U.C.L.J. 119 ; Dears, k B. 236 ; 26 L.J. (M.C.) 92. (p) Bey. V. Cantlp, 4 U.C.L.J. 73 ; Dears. & B. 363 ; 27 L. J. (M. C.) 70 (o) Attirming Herj. v. Evans, supra. (r) Beg. v. Richmond, 5 U. U. L. J. 237 ; Bell, 142. #«T— MISCELLANEOUS STATUTES. ' 339 To constitute an offence under the 3rd section of the 7 Geo. IV., c. 3, providing for the maintenance of good order in churches, the act complained of must have been committed " during divine service." (s) An information, setting out that the defendant had con- duct-ed himself in a disorderly manner at a church door, by keeping his hat on his head during the procession of the holy sacrament, discloses no lef^al offence. (^) Where a justice of the peace convicted the plaintiff, under the Con. Stats. Can., c. 92, s. 18, of making a disturbance in a place of worship, and committed him to gaol, without tirst issuing a warrant of distress to levy fine and costs under that section ; it was held that the Con. Stats. Can^ c. 103, ss. 57 and 59, applied to this conviction, and that the justice, being satisfied the party had no goods, had authority and jurisdic- diction, under the latter statute, to commit to gaol, without first issuing a warrant to levy fine and costs, (u) The 32 & 33 Vic, c. 28, as amended by 37 Vic, c 43, pro- vides that certain persons, therein described, shall be deemed vagrants, and shall, upon conviction before any stipendiary or police magistrate, mayor or warden, or any two justices of the peace, be deemed guilty of a misdemeanor. Its operation was extended to Manitoba by the 34 Vic, c 14, to British Columbia by the 37 Vic, c. 42, and to Prince Edward Island by the 40 Vic, c 4 A conviction for prostitution under sec 1 of this Act should allege that the woman was asked, before she was taken, or at the time of her being taken, to give an account of herself, and that she did not give a satisfactory account, and that, therefore, the arrest was made, (v) And an allegation " she giving no satisfactory account," does not show that any prior demand or request has been made upon her for that pur- pose, (w) (s) Ex parte Dumouchel, 3 L, C. R. 49.3. («) Ex parte Filiau, 4 L. C. R. 129. (tt) Mo fat V. Barnard, 24 U. C. Q. B. 498. (v) Beg. V. Levecjue, 30 U. C. Q. B. 509. {w) Ibid. QC 340 THE CRIMINAL LAW OF CANADA. 3 o An obligation to maintain must be made out against any person charged witli vagrancy being able to work and main- tain himself and family. A man, for instance, is not bound to support a wife who has left him and is living in adul- tery ; (x) nor can he be convicted if he offers to take back his wife, even though her refusal be well grounded on his ill- usage, (y) It is, however, no defence that he is industrious and constantly at work, (z) A woman who, deserted by her husband, and having no means of maintaining her children, leaves them so tliat they become chargeable to the parish, cannot be convicted for running away and leaving thetu chargeable under the Vagrant Act 5 Geo. IV., c. 83, s. 4. (a) It would seem a wife is not a competent witness against her husband in prosecutions under this Act. (b) The 32 & 33 Vic, c. 20, s. 25, makes it a misdemeanor in any one, who, being legally liable, either as husband, parent, guardian or committee, master or mistress, nurse or other- wise, to provide for any person as wife, child, ward, Imiatic or idiot, apprentice or servant, infant or otherwise, necessary food, clothing or lodging, to neglect or refuse wilfully and without lawful excuse to do so. (c) In the case of a wife prosecuting under this section, it is necessary to prove that the defendant is her husband, the wife's need, and the husband's ability. If she is better able to support herself than he is to maintain her, or if she is living with another man as his wife, or if without lawful excuse she absents herself from her husband's roof and refuses to return, in these and similar cases the husband must be acquitted, (d) The Con. Stats. Can., c. 67, s. 16, which declares it a mis- demeanor, in any operator or employee of a telegraph cotn- (x) Reg. V. Flinton, I B. & Ad. 227. (y) Flannagan v. Bishop WearmoiUh, 8 E. & B. 451. {z) Carpenter V. Stanley, 33 J. P. 38. t (a) Peters v. Cowie, L. R. 2 Q, B. D. 131. (6) Eeeve v. Wood, 5 B. & S. 364. (c) See page 201, ante, as to this statute. (d) Reg. v. Nwmith, 42 U. C. Q. B. 242. MISCELLANEOUS STATUTES. 341 pauy, to divulge the contents of a private despatch, only protects tlie rights of each individual sender or receiver of a message, against disclosures of facts which come to the knowledge of the operators in the course of their employ- ment. When the rights of others come in question, as when a suit is pending between the sender or receiver of a message and a third party, with whom he is alleged to have con- tracted, the operator or secretary of the company is bound to disclose the contents of the telegram, in odedience to a suh- pmiia duces tecum, (e) The 32 & 33 Vic, c. 21, s. 43, makes it a felony to send " any letter demanding of any person with menaces, without any reasonable or probable cause, any property, etc." The latter words, " without any, etc." apply to the money or pro- perty demanded, and not to the threatened accusation. (/ ) Therefore, if money be actually djie, it is no offence to demand it with raenaf '^-s. (g) The offence will be complete though the accusation was not intended to be made to a magistrate, (h) or though it was not to be made against the person threat- ened, but against some one in whom he has an interest, as his sou. (i) An offer to give information if money is sent, is no of- fence ; (j) but a letter stating that an injury is intended, and the writer will not interfere to prevent it unless money is sent, amounts to an offence, (k) So threatening bodily vio- lence, or to charge with adultery, is an offence under this section, (l) The menace must be such as to influence a reasonable mind ; {m) and a conviction may take place although the / QE (e) Leslie v. Hervey, 15 L. C. J, 9. (/) Beg. V. Mason, 24 U. C. C. P. 53. (g) Keg. v. Johnson, 14 U. C. Q. B. 569. (A) Reg. v. Robinson, 2 Mood. 14. (i) Reg. v. Redman, L. R. 1 C. C. R, 12. ( j) Reg. V. Pick/ord, 4 C. & P. 227. (A) Reg. v. Smith, 1 Den. C. C. 510. {I) Rag. V. Chalmers, 10 Cox, C. C. 450. (wt) Reg. V. Walton, L. & C. 288 ; 9 Cox, C. C. 268. i 342 THE CRIMINAL LA.W OF CANADA. money T*as Lsen paid, (n) or though the person thr3s,lcfied had no money at the time, (o) Evidence of the truth of the accusation is not admissible by way of defence, (p) A policeman extorting money by threatening to imprison a person on a charge not amounting to an offence in law, may be prosecuted under this statute, and may also, it seems, be indicted for larceny, (q) The cases will apply in principle to ss. 44, 45, 46, 47 and 48 of the same statute, as also to 32 & 33 Vic, c. 20, s. 15. By the 11 & 12 Wm. III., c. 12, and 42 Geo. III., c. 85, if any governor of a colony, or other person holding or having held public employment out of Great Britain, has been guilty of any crime or misdemeanor in the exercise of his oflBce, every such crime may be prosecuted or inquired of, and heard and determined in the Court of King's Bench in England, either upon information by the Attorney General, or upoi? indict- ment found, and such crime may be laid to have been com- mitted in Middlesex. An offence under the above statute is an offence committed on land beyond the seas, ibr which an indictment may legally be preferred in any place m Eng- land, within the 11 & 12 Wm. III., and this section and the other enactments of the statutp as to preliminary exam- inations, etc., before r raagisbal*^, i whose jurisdiction the accused might be, apply to charges under the above statutes, and the Court of Queen's Bench is included in the term, " next Court of Oyer and Terminer." (?') Upon an indictment under the Con. Stats. U. C, c. 26, s. 20, (s) for making an nssignment to defraud creditors, it was held that a money bond is personally seizable on an execution under the statutes 13 & 14 Vic, c 53, and 20 Vic, c. 57, and further, that a transfer, made by a party to a creditor, who (n) li"/. V. Robertson, L. & C. 483. ('-■) Reg. Y. Edwards, 6 C. &. B. 515. (io) Req. V. Gracknalt, 10 Cox, C. C. 408. (;y) Reg. v. RohtrfiotK 10 Cox. C. 0. 9. (r) Reg. V. Eyre, L. R. 3 Q. B. 487 ; see 32 & 33 Vic, (j. 30, a. 3. {6) See R. S. O., 0. lis. MISCELLANEOUS STATUTES. 343 accepted the same in fall sat'' r ''action and disch*L'ge oi hio debt, did not render the party making such assignment less liable undei this indictment, (t) To subject a person to the penalty of the 22 Geo. II., c. 45, for suing out process, the attorney allowing his name to be used must be first convicted, {u) An offence committed before, though tried after, the Kevised Statutes of New Brunswick came in force, is not indictable uader those statutes, though the words creating the offenoe are not altered thereby, the Act creating it being embodied in the Revised Statutes in its original words. The indictment must be considered as founded on the Act creating l.ho offence. (»?) •' " / The punishment provided by the ordinance 4 Yn:-., c. 30, 3. 1, is cumulative, and sentence of imprisonment and fine is CO be awarded upon the conviction had against the defend- ant in manner and form as enacted by the ordinance, (w) An overseer of the poor of a parish is liable, under the Acts of Assembly 26 Geo. III., cc. 28 & 43, and 33 Geo. III., c. 3, 8. 6, to an indictment for not accounting to the first General Sessions of the Peace in the year, for moneys received by him for the support of the poor, during the preceding year, (x) In an indictment of a cashier under section 62 of the Bank- ing Act of 1871, for having unlawfully and wilfully made a false and deceptive statement in a return respecting the affairs of the bank, it is not necessary to allege that the re- turn referred to was one required by law to be made / the accused, or that any use was made by him of such return, or to specify on what particulars the return was false, or that such false statement was made with intent to deceive or mis- lead. (?/) The enumeration in the indictment of several alleged {t) Beg. V. Potter, 10 U. C. C. P. 39. (u) Rex V. Bidwell, Taylor, 487. {v) Reg. V. Pope. S Allen, 161 ; Reg. v. McLaughlin, ibid. 159. , (to) Reg. V. PaL'iser, 4 L. C. ... 276. i'x) Reg. V. MaUlmo, 2 K^rr, 543. \y) Reg. v. Cotte, 22 L. C. J. 141. QK C3 •s i' 344 THE CRIMINAL LAW OF CANADA. !!*:■?: Ikv)'!!; K^-'-**"' Hit-: wi^' Hf$~ ii false statements constitutes but one count, and a general verdict is sufficient it" the statement be shown to be false in any one of the particulars alleged. (2) Revised Statute of Ontario, c. 142, imposes penalties on persons who practise medicine without having been regis- tered in that province. Where the defendant, in partnership with two registered practitioners, resided in an establishment over the door of which was a fan-light containing the name of the registered practitionei*s, with the addition " M. D., M, C. P. & S., Ont.," and the name of the defendant with only " M. D.," it was held that the use of the latter letters, in contradistinction to the full titles of the defendant's partners appearing on the same fauTlight, was not the use of a title " calculated to lead people to infer " registration under the above statute, (a) - / ' Militia offic^TS attached to B. battery, though holding com- missions in no regular or active militia corps, are competent to sit in courts martial of the said battery under the Militia Act. (6) > , - Membprs of the volunteer militia are ipso facto discharged by the expiration of the term of their engagement ; and a court martial is without jurisdiction to try a man for acts done subsequently to such expiration; and a conviction under such cucumstances will be quashed on certiorari, (c) By 32 Vic, c 17, of the Province of Quebec, a refractory child under fourteen may be sent to an industrial school ; and the rule that where a minor is brought up by habeas c&rpiis. the court will leave him to elect as to the custody in which he will l)e if he be of an age to exercise a ciioice, has no applicatiori :.o such a child. The 38 Vic, c 41, and 40 Vic, c 33, provide for the sup- pression of ga-a'ing houses ; and 40 Vic, c 32, imposes penalties for gambling in public places ; while 40 Vic, c 31, ^z) Seg. V. Cotte, 22 L. C. J. 141. {a) Be,). V. TvM, 45 U. C. Q. B. 144. (61 A\' parte Thompscm, 5 Q. L. R. 200 ; see 31 Vic, c 40. (c) md. he sup- mposes B., c 31, MISCELLANEOUS STATUTES. 345 general false in ilties on ri regis- tnersliip ishinent le name D. M. th only tters, in partaera ►f a title der tlie ng coui- napeteut ! Militia jcharged ; and a for acts uviction ri. (c) ifractory school ; Y habeas itody in )ice, hacj was passed for the repression of betting and pool-selling. The 44 Vic, c. 30, treats of prize-fighting; 41 Vic, c. 11, provides for the punishment of persons adulterating food. The 36 Vic, c 8, regulates the carriage of dangerous gooda in ships ; and 38 Vic, c 42, makes provision for enforcing the care of animals in transit. Under s. 96 of 37 Vic, c 45, the inspection of raw hides is compulsory, in every in- spection district where an inspector or deputy-inspector has been appointed ; and any person selling, or offering for sale, within or exporting from such district, any raw hides without the same being first inspected and stamped or marked by the inspector or deputy, as provided by the Act, is liable to the penalty thereby imposed, and the hides so sold, offered for sale or exported, become forfeited, (d) And the person selling or exporting cannot avoid such forfeiture or penalty by himself marking the hides, accord- ing to the provisions of section 87. (e) (d) Clarke q. t. v. CaUem, 4 Pugaley & B. 98. (e)/6W. '!' QC 03 2 346 TRB CRIMINAL LAW OP CANADA. CHAPTER VIII. EVIDENCE. tm The rules of evidence are, in general, the same in civil and criminal proceedings, (a) There are, however, some exceptions. Thus, the doctrine of estoppel has a much larger operation in the former. So an accused person may, at least if undefended by counsel, rest his defence on his own unsupported statement of facts, and the jury may weigh the credit due to that statement. Again, confessions, or other self -disserving statements of prisoners, will be rejected, if made under the influence of undue promises of favor or threats of punishment. So, although both these branches of the law have each their peculiar presumptions, still the technical rules, regulating the burden of proof, cannot be followed out in all their niceties when they press against accused persons, (b) The- 3 is also a strong and marked difference in the effect of evidence in civil and criminal proceedings : in the former a mere preponderance of probability, due regard being had to the burden of proof, is sufficient basis of decision ; but in the latter, esp*^cially when the otience charged amounts to treason or felony, a much higher degree of assurance is required, (c) The persuasion of guilt ought to amount to such a moral certainty, as convinces the minds of the tribunal, as reason- able men, beyond all reasonable doubt, (d) (a) Reg. v. Atlcinson, 17 U. C. C, P. 304, per J. Wilson, J. (6) Best on Evid., 4th ed., 122. (c) Ulark v. Stevenson, 24 U.C.Q,B. 209, per Draper, 0. J. ; Hollingham V. Head, 4 C.B.N.S. 388 ; Reg. v. Jones, 28 U.C.Q. B. 421, per Richards, C.J. (d) Reg. v. Jones, 28 U. The jury must make all necessary inferences from the facts proved, and it lies within their peculiar province to J decide on the credibility of witnesses, (w) In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded of explana- tion or contradiction. No person is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction : but, where such proof has been given, and the nature of the case is such as to admit of ■ explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explana- tion or contradiction, that conclusion becomes almost irre- sistible, {n) In regaid to deciding on the credibility of a witness, the jury should consider the nature of the story he tells, and his manner of telling it : the probability of its being true ; his demeanor and his readiness to answer some questions, as well as his unwilJingne s to answer others ; and his whole conduct indicating favor to one side or the other. On the other hand, the jury should consider, whether the witness, exhibits a trank straightforward manner of answering ques- tions, without regard to consequences to either party ; a desire to state all the facts, and no hesitation to answer the various questions put to him. (o) Where a witness, examined on the trial, directly confessed (I) Reg. V. Greenwood, 23 U. C. Q. B. 258, per Draper, C. J. ; Taylor on Evid. 84 ; and see Reg. v. Jor^es, 28 U. L Q. B. 416. (m) Reg. v. Jones, 28 U. 0. Q. B. 416 ; Reg. v. Greenwood, 23 U. C. Q. B. 265 ; Reg. v. Ghubbs, 14 U. C. (J. P. 32 ; Reg. v. Seddons, 16 U. C. C. i*. 389 ; Reg. V. Mcllroy, 15 U. C. C. P. 116. (n) Reg. v. Atkinson, 17 U. C. C. P. 305, per J. Wilson, J. \o) Reg. V. Jones, 28 U. C. Q. B. 419, per Richards, C. J. KVIDKNCE. 349 iply that but that inclusiun Vom the vince to proved, articular explana- explaiii arrant a absence •roof has admit of hich the explana- ost irre- ness, the , and his rue ; his stions, as is whole On the witnesA ng ques- party ; a 3wer the sonfeased Taylor on U. C. Q. B. C. t. 389 ; the crime, it was held th;it thn judge was not bound to tell the jury that they must believe this witness, in the absence of testimony to phow her unworthy of credit, biit that he was right in leaving the credibility of her story to them ; and if from her manner he derived the impression that she wavH under the influence of some one in court, it was not im- proper to call their attention to it in his charge (p) A prisoner, being indicted for the murder of one H., the principal witness for the Crown stated that the crime was committed on the Ist of December, 1859, on a bridge over the River Don, and that the prisoner and one S. threw H. over the parapet of the bridge into the river. S. had been previously tiied and acquitted. The counsel for the prisoner proposed to prove by one D. that S. was at iiis (D.'s) place fifty miles off on that evening, but the learned judge rejected the evidence, saying that S. might be called, and if the Crown attempted to contradict his evidence, he would allow the prisoner to call witnesses to corroborate it. But it was held in error that the presence of S. was a fact material and not collateral to the inquiry, and that D., therefore, should have been admitted, when tendered, on the broad principle that he was called to speak on a mat<«r directly connected with the very fact under investigation, and his evidence would affect the credibility of the evidence for the prosecution, (q) But on a trial for murder by stabbing with a sharp instru- ment, it was proved that the prisoner struck the deceased, but that neither a knife nor other instrument was seen in his hand. Evidence for the prisoner, that the day preceding the homicide he, the prisoner, had a knife which could not have inflicted the wound of which the deceased died, and that on that day the prisoner had parted with it to a person who held it till after the crime was committed, was held to have been properly rejected, (r) OK •at r , oc It CZ3 S3 It ~J (p) Reg. V. J(me8, 28 U. G. Q. B. 416. iq) Beg. v. Brown, 21 U. C. Q. B. 330. (r) Reg. v. Herod, 29 U. C. Q. B. 428. IMAGE EVALUATION TEST TARGET (MT-3) /, m// >.l- fn h € 1.0 I.I mm m^ £ 1^ 12.0 IL25 IWU I 1.6 PhotDgrafiric Sciences Corporation tness for the le prosecutor^ [ witness for ) jointly, and ;hus unjustly ly direct the termination the other •"cutor from joining him indictment grand jury^ facie case of from a civil )re guarded complice in e acquittal. the grand V. Hambly, %neU, 7 Cox . jury, affords less ground for the suspicion that the party is made a defendant for the purpose of excluding his testimony, (u) In a criminal case, though no evidence ap- {ears against one defendant, there is no necessary inference that he was made a defendant for this purpose, (v) Where there is no evidence whatever against one defendant, he should be acquitted at the cloie of the prosecutor's case ; (w) but it seems this is discretionary with the judge, (x) If there is some evidence, though very slight, against the prisoner, his case must be submitted to the jury, (y) If, after the close of the prisoner's case, there is no legal evidence of his guilt, it seems the judge would be bound to dii*ect an acquittal, (z) The correct and reasonable rule would appear to be that it is discretionary with the judge to direct an acquittal, if applied for before the close of the prisoner's case ; but that it is obligatory upon him to do so, when the case for the defence is closed, particularly if it ap- pears the prisoner was made a defendant for the purpose of excluding his testimony. Where, at the close of tlie case for the Crown, very slight evidence appear^ against one of two prisoners jointly indicted* the other cannot of right claim that the case of the former be submitted separately to the jury ; but this is discretionary with the judge. The question whether the judge has pro- peily exercised his discretion, or not, cannot be reserved as a point for the consideration of the court, (a) And it is always permissible to the judge to recall any witnesses, and make further inquiries, to meet objections, of course allowing coun- sel for the defence to cross-examiuo on such new evidence, (b) Whenever a co-defendant is ordered to be acquitted, in (tt) Reg. V. Kennedy, 2 Thomson, 211, per BlisB, J. (») Ibid. 219, per WUkins, J. (w) Reg. V. Hambly, 16 U. C. Q. B. 617. (x) Ibid. : Reg. v. Kennedy, 2 Thomson, 203. \y) ibid. ; Reg. v. Hambly, supra, 626. (z) Reg. y. Kennedy, supra. (a) Reg. v. Hambly, l6 U. C. Q. B. 617. (6) Reg. v Jennings, 20 L. 0. J. 291. 3 i 352 THE CRIMINAL LAW OF CANADA. anticipation of the general verdict, his credit is left to the jury, how strong soever the bias on his mind may be. (c) Should the judge refuse to direct an acquittal, for the purpose of evidence of the co-defendant, against whom there appeared neither legal proof nor moral implication, a verdict against the other prisoner would be set aside, (d) Where two prisoners are jointly indicted for felony, and plead not guilty, but one only is given in charge to the jury, the other is an admissible witness against the one on trial, although the plea of not guilty remains on the record undis- posed of ; the witness not having been acquitted or convicted, and no nolle prosequi having been entered, (e) But notwith- fitandlng 32 & 33 Vic, c. 29, ss. 62 and 63, if both have been given in charge to the jury, neither can be called as a wit- ness. (/) It is conceived that this decision will hold in Ontario at least, as the Evidence Act here. Con. Stats. U. C. c. 32, s. 18, only protects a party in criminal proceedings from giving evidence for or against himself. It is also unafifected by the R. S. 0., c. 62. Parties separately indicted for perjury alleged to have been committed at one and the same hearing, can be witnesses for or against each other, (g) Where four prisoners were indicted together for robbery, and one severed, in his challenges, from the other three, who were tried first ; it was held that the former, although not actually upon his trial, after pleading not guilty, and before trial or judgment, was a competent witness on their behalf, {h) lie would also be competent for the Crown, (i) It would seem that, in any case, one prisoner, whether he pleads guilty or not guilty, may, if he severs in his chal- (c) Reg. V. Kennedy, 2 Thomson, 219-20, per WiUtina, J. (d) Ibid. 220, per WiikinB, J. (e) Winsor v. Reg., L. R. 1 Q. B. 300 (Ex. Chr.) ; 35 L. J. (M. C.) 161. (/) Reg. V. Payne, L. R. 1 C. C. R. 349. (O) Reg. V. PelUiHer, 15 L, C. J. 146 ; 1 Revue Leg. 566. (A) Reg. v. Jerrett, 22 U. C. Q. B. 499. (•) Ibid. 500, per Hagarlty, J. le ce th pr EVIDENCE. ;^53 i eft to the >e. (c) iie purpose i appeared ct against slony, and ) the jury, e on trial, 9rd undis- convicted, ; notwith- have been as a wit- Ontario at 32, 8. 18, >m giving ;ed by the have been Govem- ist on hia ibject hira s part, he to prove eclined to i, because y, but on ht it was amination answered it is else- protection 1 he may questions tness was )e by him sr, on the ground that his answer would criminate himself, a pardon, under the Great Seal, was offered,- and accepted by him ; but he still refused to answer, on the same ground. It was held that, as the pardon protected the witness against every pro- ceeding, except an impeachment by the House of Commons, and as there was no probability whatever, under the circum- stances of the case, that the witness would ever be subjected to such a proceeding, for the matter which he was called upon to give in evidence, he was not privileged from answering ; and that the judge was bound to compel the witness to answer. («) A witness may now be cross-examined as to previous state- ments made by him, in writing, or reduced into writing, relative to the subject-matter of the case, without such writ- ing being shown to him. But sec. 64 of the 32 & 33 Vic, c. 29, has no application to papers vhicn it does not appear the witness had either written, signed or seen until shown to him in the witness box. (t) It is competent, however, it seems, for counsel, on cross-examination of the witness, to put into his hands a paper, such as 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 prisoner, and to ask the witness if he did not write the protest. But he could not read from such a paper and found a question on it. («) A question should not be put to a witness, in cross-exami- nation, for the mere purpose of contradicting him, unless such question is relevant to the matter in issue ; but if an irrelevant question be put, the answer is conclusive ; (v) for, otherwise, the court would be involved in the trial of in- numerable issues, totally unconnected with the matter under («) Reg. V. Boye», 8 U. C L. J. 139 ; 2 F. & P. 157 ; 1 B. A 8. 311 ; 30 L. J. (Q.B ) 301. (<) Reg. V. Tower, 4 Pugsley & B. 168. {u)Ihid. (o) QUbert v. Oooderham, 6 U. C. C. P. 39 : Reg. v. Broum, 21 U.C.Q.B. 334, per Robinson, C. J. S i 'MO THK CRIMINAL LAW OF CANADA. 1 I investigation, (u;) and which tho partioH would not be piu- pared to meet (a;) On an indictment t'ur rape, ur attempt at rape, or for un indecent assault, amounting in substance to an attempt at rape, if the prosecutrix is asked, in cross-examination, whether she has had «M)nnection with another person, not the prisoner, evidence cannot be called to contradict her. (y) Now, however, by the 32 & 33 Vic, c. 29, s. 65, if a wit- ness, on being questioned as to whether he has been convicted of any felony or misdemeanor, either denies the fact, or refuses to answer, the opposite party may prove such con- viction. By section 69, if a witness, upon cross-examination as to a former statement made by him, relative to the subject-matter of the cause, and inconsistent with his present testimony* does not distinctly .iduiit that he did make such statement' proof may be given that he did, in fact, make it. In order to impeach the character of a witness for veracity, persons may be called to prove thai; his general reputation is such that they would not believe him on his oath. («) In cross-examining the witness for this purpose, counsel is not obliged to explain the object of his questions, because that might often defeat his object, (a) By the 32 & 33 Vic, c 29, s. 68, in case a witness, in the opinion of the court, proves adverse, the party producing him may contradict him by other evidence, or, by leave of the court, may prove that the witness made, at other times, a statement inconsistent with his present testimony ; but, before such last-mentioned proof can be given, the circum- uuances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, (to) Reg. V. Brown, 21 U. C. Q. B. 334, per Bobinwn, C. J. (x) Reg. V. Holmes, L. R. 1 C. C. R. .334. {y) Ibid.; Rex. v. Hodgson, R. & R. 211 ; Reg. v. Cockrq/i, 11 Cox, 410. {z\ Reg. V. Brown, L. R. 1 C. C. R. 70 ; 36 L. J. (M. C.) 59. (a) Reg. v. Brown, 21 U. C. Q. B. 334, per Robinson, C J. •ind stat opil det< wh KVIDENCE. 3fil ►t be pif- or for an bteiiipt at ininatiou, n, not the if a wit- convicted B fact, or luch coii- m as to a ct- matter estinioiiy> tateiiieut' veracity, utatioD is I. («) 111 sel is not use that Bs, in the roducing leave of er times, ny; but, circum- esignate witness, Cox, 410. and he must be asked wliethoi or not he did make such statement, (b) A witness should be interrogated as to facts only, and not as to matter of law. (c) A skilled witness cannot, in strictness, be asked his opinion respecting the very point which the jury are to determine ; but he may be asked a hypothetical question, which, in effect, will decide the same thing, (d) Where, on a trial for murder, the Crown having made out a prima facie case by circumstantial evidence, the prisoner's daughter, a girl of fourteen, was called on his behalf, and swore that she herself killed the d -ceased, by two blows with a stick, about two feet long, and one and a half inches thick. In answer to this, a medical man, previously ex- amined on the part of the Crown, was recalled, and asked whether the blows so inflicted by the prisoner's daughter would produce the fractures that were found on the head of the deceased. This question having been allowed, the an- swer was: "A stick such as she describes, one inch or an inch and a half in thickness, and two feet long, could not, in my opinion, produce such extensive fractures by two blows ; there must have been a greater number of blows to produce such fractures. There were bruises on both arms, head and legs, and two blows could not have done all that. Deceased must have had a succession of blows from a larger instru- ment than the girl describes." It was objected that this was skilled evidence and matter of opinion, when skilled evidence and matter of opinion were not admissible ; but the court held that the rule excluding a skilled witness from giving evidence on the point which the jury are to deter- mine was not infringed, and that the medical testimony wa» material to enable the jury to determine the true cause of death ; (e) and also that this was not an informal or illegal (6) Beg. v. JerreU, 22 U. C. Q. B. 499. (r) Bg. V. Maasey, 13 U, C. C. P. 484. {d) Reg. V. Jonen, 28 U. C. Q. B. 422, per Richards, C. J. je) Ibid, gupra, 416. s 362 THE CRIMINAL LikW OF CANADA. way of impeaching the veracity of the prisoner's daughter, nor was the evidence collateral to the fact of killing, but was important, as testing the credibility of the witness. (/) By the 32 & 33 Vic, c. W, s. 67, it is provided that com- parison of a disputed writing with any writing proved to the satisfaction of the court to ue genuine, shall be per- mitted to be made by witnesses ; and it has been held undei this section that the signature of a person was properly proved by comparing it with an endorsement on a pro- missory not(j, purporting to be his but not proved to be so, otherwise than by the fact tliat the prisoner had endorsed the note below such signature, (g) But it may be doubted whether such a lax mode of proving handwriting was con- templated by the legislature. It is a general and well-established principle that the confession of a prisoner, in order to be admissible, must be free and voluntary. Any inducement to confess held out to the prisoner by a person in authority, or any undue com- pulsion upon him, will be sufficient to exclude the con- fession. The rule is carried so far that, if an oath in administered to the prisoner, while being examined under the 32 & 33 Vic, c 30, s. 31, the oath will be a sufficient constraint or compulsion to render his statement inad- missible, (h) The reasons for this are, the statements made on his examination are regarded as confessions which must be voluntary, and a statement under oath is not so re- garded ; secondly, a prisoner shall not be compelled to criminate himself, and to this it may be added, that it is harsh and inquisitorial, and for that reason should be re- jected, (i) Thi' rule, however, only applies to the time during which the prisoner is under examination, as a prisoner on a charge against himself. His deposition, on oath, as a witness (/) Heg. V. Jones, 28 U. C. Q. B. 416. (o) Beg. V. Tower, 4 Pugaley & B. 168, Weldon, J., disaeiUiente. 0) Beg. V. Meld, 16 U. C. t). P. 98. (t) Beg. y. Field, supra, 101, per Bkhards, C. J. r*s daughter, killing, but witness. (/) 3d that com- ig proved to ihall be per- a held undek '■as properly t on a pro- ved to be so, ad endorsed be doubted ng was con- )le that the ble, must be I held out to undue com- de the con- an oath in lined under a sufficient iment inad- ments made which must not so re- >mpelled to i, that it is lould be re- iring which on a charge I a witness liente. EVIDENCS. 363 against another person, when voluntarily made, with the privilege of refusing to answer criminatory questions, is admissible against himself, if subsequently charged with a crime, and this even though he have not been cautioned to that etfect. (j) The prisoner was convifited of arson. His admission or confession was received in evidence, on the testimony of the constable, who said that, after the prisoner had been in a second time before the coroner, he stated there was some- thing more he could tell, whereupon the constable cautioned him not to say what was untrue. He then confessed the charge. The constable did not recollect any inducement being held out to him. There was also e^adence that, on the third dry of his incarceration, he expressed a wish to the coroner to confess, on which the latter gave nim the ordinary caution, that anything he said might be used against him, and not to say anything unless he wished. He then made a second statement, and after an absence of a few minutes returned and made a full confession. It was held that, on these facts appearing, the statement made to the constable was prima fade receivable, and that the judge was well warranted in receiving as voluntary the confession made to the coroner, after due warning by him. To make this good evidence to go to the jury, it would seem, however, that the more reasonable rule is, that, not- withstanding the caution of the magistrate, it is necessary, in the case of a second confession, not merely to caution the prisoner not to say anything to injure himself, but to in- form him that the first statement cannot be used against him ; and if, in such case, the prisoner, after he has been cautioned, and his mind impressed with the idea that his prior statement cannot be used against him, still thinks fit to confess, the latter declaration is admissible. In the same case, it afterwards appeared that the prose- cutor had offered direct inducements to the prisoner to con- < }') Reg. V. Field, 16 U. C. C. P. 101, per Richards, C. J.; Rea. v. Coote, 18 L C. J. 103. 3 1 364 THE CRIMINAL LAW OF CANADA. If < fess — promising to get up a petition in his favor, etc. — and the court held that, if the judge was satisfied that the pro- mise of favor thus held out had induced the confession, and continued to act in the prisoner's mind, notwithstanding the warning of the coroner, he was right in directing the jury to reject them. If, in the course of the examination of the witnesses for the prosecution, the judge had suspected the confession had been obtained by undue influence, that sus- picion ought to have been removed before the evidence was received, (k) A confession made by the prisoner to the prosecutor in the presence of the police inspector, immediately after the prosecutor had said to the prisoner, " The inspector tells me you are making house-breaking implements; if that is so, you had better tell the truth, it may be better for you," was held inadmissible. (/) So where the prisoner, implicated with several others in a Fenian conspiracy, went before a magistrate, at the request of a constable to whom he had previously made admis- sions tending to criminate himself, and laid an information against his fellows, saying, " I came to save myself; " and no caution was given on this occasion, nor was any charge preferred against him until afterwards on his refusing to prosecute, when he was arrested, tried, and convicted, his own information being put in evidence against him ; the court held such admissions improperly received, (m) This case does not affect the position that the voluntary deposition of a witness, on oath, is admissible against him when subsequently charged with a crime, (w) Section 32 of 32 & 33 Vic, c. 30, is only directory, so that a voluntary statement, made by a prisoner in the presence of a magistrate, as provided for by that Act, is admissible in evidence, although the statement was not taken down in (*) Beg. V Finkle, 15 U. C C. P. 463. {I) Beg. ' . Fennell, L. R. 7 Q. B. D. 147. im) Bey. V. OiUis, 14 W. R. 846 ; and see Haira case, 2 Leach, C. C. 669 3 Ruas. Cr. 373. (ft) Beg. V. Ooucie, 1 Pugsley ft B. 611. n >r, etc. — and hat the pro- ifession, and standing the ng the iury Ettion of tht' ispected the ce, that sus- vidence was rosecutor in y after the !tor tells me f that is so, 3r you," was I others in a the request lade admis- information yself;" and any charge refusing to nvicted, his it him ; the (rn) '. volnntarv igainst him ory, so that presence of raissible in n down in h, C. C. 659 ; EVIDENCE. 365 writing, and no caution was given by the magistrate to the effect prescribed by a. 31, provided it appear that the prisoner was not induced to make the statement by any promise or threat, (o) Confessions to a constable, by an accused in his custody, were not admitted where the accused might be under the influence of hopes held out ; but admissions made the same day, to a physician, in the absence of the constable, were admitted, (p) Statements mad3 by a prisoner to parties who arrested him, he having been previously told on what charge they arrested him, are evidence, (q) Words importing only advice on moral grounds, as by a master to his pupil, do not render a statement inadmissible against the prisoner, (r) And where the prisoners, two children, one aged eight and the other a little older, were tried for attempting to obstruct a railway train, and it was proved that the mothers of the prisoners and a policeman being present, after they had been apprehended on suspicion, the mother of one of tlie prisoners Haid, " You had better, as good boys, tell the truth," where- upon both the prisoners confessed ; it was held that this confession was admissible in evidence against the prisoners.(s) A confession is admissible in evidence made to one in authority, although the prisoner was, immediately before such confession, in the custody of another person not produced, and although it is not shown that such person did not hold i>ut a threat or inducement ; for it is unnecessary, in general, to do more than negative any promise or inducement held (o) Reg. V. StHp, 2 U. C. L. J. 137 ; Deara. 648 ; 25 L. J. (M. C.) 109 ; Reg. V. Qousie, «upra ; Reg. v. Sansome, 1 Den. 545 ; 19 L. J. (M. C.) 138 ; Arch. Cr. Pldg. 228. (p) Reg. V. Beruhe, 3 L. C. R. 212. (q) Reg. v. Ttufford, 8 U. C. C. P. 81. (r) Reg. v. Jarvia, L. R. 1 C. C. R. 96 ; and see Reg. v. BcUdry, \t Den. C. C. 430. (s) Reg. V. Reeve, L. R. 1 C. C. R. 362 ; and see Reg. v. Parker, 8 U. C. L. J. 139 ; L. & C. 42 ; 30 L. J. (M. C.) 144. I i 366 THE CRIMINAL LAW OF CANADA. 1^: out by tho person to whom the confession was made. If^ however, there be any probable ground to suspect collusion in obtaining the confession, such suspicion, it is said, ou may be given in evidence without further proof, unless it be proved that the justice purporting to have signed the same did not in facb sign it. (h) The signature of the prisoner is not absolutely necessary. The effect of the statute, so far as regards the evidence of a confession, seems to be that a written examination, taken as the statute directs, is evidence per se, and the only admissible evidence of the deponents having made a declaration of the things therein contained, (i) The statute authorizes the reading of the depositions before the grand jury, for the purpose of finding a bill, as well as before the petty jury at the trial, (j ) In order, however, that the deposition may be admissible before the grand jury, the presiding judge must, by evidence taken in the presence of the accused, satisfy himself of the ex- (rf) Beg. V. Hamilton, 16 U. C. C. P. 365, per Richards, C. J. (c) Bey. V. Hamilton, supra, 340 ; Taylor on Evid. 473 ; Reg. v. WiUhaw, ^. & Mar. 145. ( f) Reg. V. Chasson, 3 Pugsley, 546. ig) Reg. v. Hamilton, supra, 353, per Richards, C. J. (A) Sec. 34. («) Arch. Cr. Pldg. 233. {j) Reg. V. Clements, 2 Den. 261 ; 20 L. J. (M. C.) 193. V. EVIDENCE. 369 r's counsel nee. (d) a coroner y proving ir by some e forms of ein inquest iiether the nents of a sitions by ices of the t cases it (g) And Vic, c. 30. , unless it igned the re of the ct of the ion, seems statute evidence he things epositions a bill, as In order, )efore the ice taken f the ex- V. WiUhaw, e ibtence'of tho facts required by the statute to make such deposition admissible in evidence, (k) Under the 32 & 33 Vic, c. 30, s. 29, it is not necessary that each deposition should be signed by the justice taking it. Therefore, whore a number of depositions, taken at the same hearing on several sheets of paper, were fastened together, and signed by the justices taking them once only at the end of all the depositions, in the form given in the schedule (M), it was held that one of the depositions was admissible in evidence, under s. 30 of this Act, after the death of the Witness making it, although no part of it was on the sheet signed by the justice. (/) A deposition, properly taken, under 32 & 33 Vic., c. 30 B. 30, before a magistrate, on a charge of feloniously wound- iiig, is admissible in evidence against the prisoner on his trial for murder, the deponent having subsequently died of the wound. Formerly depositions were receivable only where the indictment was substantially for the same offrnp« as that with which the defendant was charged bt^fore the justice : (m) but now by the 32 & 3^ Via, c. 29, s. 53, depositions taken in the preliminary or other investigation of any charge against any person, may be read as evidence in the prose- cution of such person for any other offence whatsoever. Pregnancy may create such an illness as will render de- positions receivable in evidence, (mm) But the illness must be such as to render the witness unable to travel. And where a woman 74 yeara of age, whose; depositions were sought to be read, lived near the court house, but her medical ad- viser swore that, although able to travel the distance, it (i) Reg. V. Beaver, 10 C5ox, 274, per Byles, J. ; Arch. Or. Pldg. 250. {I) Rt). V. Parker, L. R. 1 C. C. R. 225 ; 39 L. J. (M. C.) 60; Rtg. v. RicKarda, 4 F. & F. 860, overruled. (m) See Reg. v. Beeston, 1 U. 0. L. J. 17 ; Dears. 405 ; Reg. v. Ledbetter, 3 C. & K. 108. (mm) Reg. v. Stevenson, 9 U. G. L. J., 139 ; L. & C. 165 ; 3' L. J. (M. C.) 147 : Rex y. Wellings, L. R. 3 Q. B. D. 426 ; see, however, Reg. V. Weitout 9 Cox, 296. I 3 i 370 THE CRIMINAL LAW OF CANADA. WQVlId be dangeroua for her to see so many faoes, or to be examined at all, the court held that her depositions were not a4mi8sible. (n) It seems the statement of a deceased witness is admis- sible in evidence, though it is headed " the complaint of," Otc., instead of " the examination " of the deceased, and does not state, on its face, to have been taken in the pres- ence of the accused, it being proved that it was taken in his presence, (o) The ^ Via, c. 35, makes provision for the taking of depositions of any person dangerously ill, who is able to give material evidence in a criminal proceeding, for the purpose of having the same read at the trial, in the event of such person being then dead or unable to attend- Where several feloni&s are conuected together and form part Qf ope entire transaction, evidence of one is admissible to show the character of the others, (p) But where a prisoner indicted for murder, committed while resisting constables about to arrest him, bad with others been guilty of riotous acts several days before, it is douhtfut if evidence of such riotous conduct is admissible, even fur the purpose of showing the prisoner's knowledge that he was liable to be arrested, and therefore had a motive to resist the ofiBcers* iq) Aud where, on an indictment for riot and unlawful assem- bly on the 15th January, 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 the prosecutor, in whose office one act of riot was committed, had reason to be alarmed when the prisoners came to his ofQce ; and the prisoners 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 thereat ; it was held (n) Jieg. v. Farrell, L R. 2 C. C. R. 116. (o) Beg. V. Millar, Sup. Ct. N B. H.T. 1861 ; 5 /J'en, 87. ip) Clark V. Steoenson, 24 U. C. Q. B. 209 ; Beff. v. Egerton, Rusa. & Ry. C. C. 37n ; Bex v. Ellis, 6 B. & C. 145 ; Beg. v. Ghaaaon, 3 Pugsley, 546. (g) Beg. v. Chaason, supra. EVIDENC& 371 ; or to b9 were not ia admis- ladnt of," ksed, and the pres- ken in hia taking of ble to give e purpose it of such and form admissible itted while thers been ioahtful if en fur the xt he was i resist the ful assem- he part of n the day ;ged) that ommitted, me to his it to show meeting was held 1 Rasa. & By. 'ugsley, 646. that as the conduct of the prisoners on the 14th eould not qualify or explain their conduct on the following day, the evidence was properly rejected, (r) So, where upon an indictment for obtaining money by false pretences, it appeared that the defendant was employed to take (nrders for goods, but had no authority to receive the piice, and that, eleven days after he was so employed, he obtained the money from a customer, by representing that he was authorized by his employer to receive it for goods delivered, in pursuance of an order which the defendant had taken ; evidence of an obtaining b} i similar representation f from another person, within a few days of the time when the moneys on which the indictment was found were obtained was held inadmissible, (s) But witnesses may be called, on the part of the Crown, to speak to facts having no immediate connection with the case under trial, for the purpose of showing the motives of the prisoners, (t) as, for instance, to prove that when the stolen goods mentioned in the indictment were found in the possession of the prisoner, there were found also in hiS' possession various other articles that can be shown to have been recently stolen from other people. So^ in the case of persons who have passed counterteit money or bills, when it is necessary to establish a guilty knowledge on the part of the prisoner, the prosecutor is allowed to give evidence of the prisoner having, about the same time, passed other counterfeit money or bills, or had many such in his possession, even though of a different denomination ; (u) which oh'oumstances tend strongly to show that he was not acting innocently, and had not taken the mone}' casually, but that he was employed in fraudulently putting it off. (v) So a false and fraudulent statement to a pawnbroker, that {r) Beg. v. JUailloux, 3 Pugsley, 493. (a) Reg. v. HoU, 8 U. C. L, J. 55 ; Bell, 280 ; 30 L. J. (M. C.) 11. \t) Reg. V. Maillotix, 3 Pugsley, 493. [u) Reg. V. Ibater, 1 U. C. L. J. 156. (v) Reg. V. Brovon, 21 U. C. Q. B. 33d, per Robinaon, C. J. QK § 372 THK CRIMINAL LA.W OF CANADA. a chain offered as a pledge is of silver, is indictable under the 7 & 8 Geo. IV., c. 29, and, upon the trial of such an indict- ment, evidence is admissible of similar misrepreseiitationfl; made to others about the same time, and of the possession of a considerable number of chains of the same k' ^^o) And where the offence has been proved, s .. proof will let in documentary evidence for confirmatory purposes. Thus on an indictment for false pretences, by inserting with intent to defraud an advertisement in a newspaper containing false statements, and receiving money thereby, where it was proved that several letters had been found on the person of the prisoner, bearing the address mentioned in the advertisement, and containing postage stamps to the amount indicated therein, other letters similarly addressed, and ccntaining fitamps to the same amount, but which had been stopped by the postal authorities, were received as evidence without proof that they had been written by the parties by whom they purported to have been cent, {x) A declaration by a subscribing witness (who was dead) to a deed, that he left the country because he had forged a name thereto, is not admissible, on the ground that it is hearsay •evidence, (y). And evidence of an extra-judicial confession of the sister of a prisoner, tending to prove fraud between them, is objectionable on the same ground, (z) But the description given by a person of his sufferings, whilst laboring under disease and pain, has been held not to be hearsay evid'^nce. (a) When the prisoner was indicted for setting fire to his own house, it was held that his verbal admissions that the house was insured were sufficient to prove that fact, though the policy was not produced, nor its non-production accounted foi . (b) (w) R'if/. V. Roebuck, 2 U. C. L. J. 138 ; Dears. & B. 24 ; 25 L. J. (M.C.) lOi ; and see Rej. v. Francis, L. R. 2 C. C. R. 128. («) Reg. V. Cooper, L. R. 1 Q. B. D. 19. iy) Rom v. Cw/ler, 27 U. C. Q. B. 270. (z) Reg. V. Quay, 18 L. C. J. 306/ In) Reg. v. Berube, 3 L. G. R. 212 ; aed quasre, Ih) Reg. V. Bryans, 12 U. C. C. P. 161. under the an inilict- !sentation{( asession of proof will ses. Tims rith intent iiiin<{ false vas proved ion of the jrtisetnent, indicated ccntaining stopped by hout proof vhom they .3 dead) to nred a name is hearsay confession d between sufferings, leld not to to his own the house .hough the accounted ; L. J. (M.C.) EVIDENCE. 37:^ / Secondary evidence of a document in the prisoner's posses- sion is net admissible unless notice to produce has been served on him. (c) The form of an indictment for perjury does not couvey sufficient notice to the prisoner to produce the docu- ment to dispense with a notice to produce, (d) A dying declaration is only admissible in evidence where the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declaration, (e) Therefore, upon an indictment tor using instruments with intent to procure abortion, the dying declaration of the woman was held inadmissible. (/) The question whether a dying declaration is admissible ia for the consideration^f the judge who tries the case, but the weight of it is for the jury, (g) To render the proof of a declaration admissible as a dying declaration, there must be proof that the person who made it was at the time under the impression of almost immediate dissolution, and entertained no hope of recovery. Vague and general expressions, such as " I will die of .j !'* " I will not recover !" " It is all over with me !" are insuffi- cient to allow the proof of the declaration of a deceased person, (h) And where a person about to die, on hearing her statement read over to her, altered it, so that, instead of reading " no hope of recovery," it read " no hope at present,** eto., it was held that her declaration was inadmissible, (i) There must be an unqualified belief in the nearness of death ; a belief, without hope, that the declarant is about to die ; and the burden of proving the facts that render the declaration admissible is upon the prosecution, (j) But where the de- ceased by her statements shows emphatically that she has. (e) Jteg. v. Mworthy, L. R. 1 C. C. R. 103 ; 37 L. J. (M. C.) 3. \d) Ibid. ; see Kalar v. Gomvoall, 8 U. C. Q. B. 168. (e) Reg. v. Mead, 2 R & C. 605, per Alhott, C. J. (/) Reg. V. Hind, 7 U. C. L. J. 51 j BeU, 253 ; 29 L. J. (M. C.) 147- {g) Reg. v. Charlotte Smithy 13 W. R. 816. (A) Reg. v. PeUier, 4 L. C. R. 3. (») Reg. V. Jenkins, L. R. 1 C. C. R. 187 ; L. J. (M. C.) 82. ij) Reg. V. Jenkins, L. R. 1 C. C. R. 192, per Kelly, C. B. \ 'B :3 374 THE CRIMINAL LAW OP CANADA. W J I s abandoned all hope of livin;;, the mere uae of the words " It I die " will not alone render her statement inadmissible, (k) And if the statement is otherwise receivable, it makes no difference as to its admissibility that the answers were given to leading questions. (/) It is said that dying declarations ought to be admitted with scrupulous and almost superstitious care. They have not necessarily the sanction of an oath ; they are made in the absence of the prisoner ; the person making them is not subjected to cross-examination, and is in no peril of prosecu- tion for perjury. There is also great danger of omissions and material misrepresentations, both by the declarant and the witness, (m) The statements m&y be incomplete, andi though true as far as they go, may not constitute the whole truth. They may be fabricated, and their truth or falsehood cannot be ascertained ; and experience shows that implicit reliance cannot, in all cases, bo placed on the declarations of a dying man, for his body may have survived the powers of his mind or his recollection, if his senses are not impaired by pain, or otherwise may not be perfect, or for the sake of ease and to be rid of the importunity of those around him, he may say, or seem to say, whatever they suggest, (n) In a prosecution for selling liquor without license, the person who bought the liquor is a competent witness, (o but it is not necessary that he should be produced. It is sufficient to call a person who saw the sale, and saw what was paid. Nor is it necessary to call the person to whom the liquor was sold to prove that it was " fermented " liquor. A person who tasted the liquor may prove this, (p) A conviction, made by a justice of the peace, when duly returned, according to the statute, to the Court of Quarter Sessions, and filed by the clerk of the peace, becomes a re- (k) Beg. v. Sparham ; Rob. & Jos. Dig. 929. ^ {I) Reg. V. SmUh, 23 U. 0. C. P. 312. i (m) Jtf^g. V. JenHru, L. R. 1 C. C. R. 193, per Byln, J. (n) Re Andenton, 20 U. C. Q. B. 181, per McLean, J. {o) Ex parte Birmingham, 2 Pugsley & B. 564. Ip) Thompson and Uurnfard, 12 L. C. J. 285. ETIDENOS. m ) words " It lissible. (k) ; makes no were given le admitted They have re made in hem is not of prosecu- l omissions clarant and iplete, andf 3 the whole 3r falsehood lat implicit ilarations of 3 powers of impaired by ;he sake of iround him, t. {n) license, the witness, {o iced. It is 1 saw what 1 to whom ied " liquor. iP) when duly of Quarter comes a re- cord of that court, and may be proved as any othdf similAf record without producing the original, {q) A conviction by a justice for an assault and battery fal 4 record, and a record of our own country, and so not prova- ble when directly denied by an examined copy, as in the case of a foreign judgment, but by the production of the record itself. The course in such a case is to produce the oiiginal record of conviction, which may be made up by the justice at any time, and may be procured upon a writ of eerttorari from this court, either to the justice or to the Quar- ter Sessions, if the record has been returned thither. Or, perhaps, it may be produced (when it can be so obtained) without the formality of a writ of certiorari. In case of the death of the justice who made the convic- tion, the writ may go to his executor, (r) There is a well-settled distinction between proving the record of a different court, from that in which the evidence is offered, and a record of the same court. A court will look at its own minutes, while sitting under the same com- mission, when another court would require more formal proof. («) The minutes of a Court of General Quarter Sessions arte in themselves evidence, in the same court, of the facts therein stated, without any other proof that the matter there recorded took place. Therefore, a recognizance, in a case of bastardy taken under the Act 2 Vic, o. 42, before the court itself, in open court, is proved by the production of the minutes of thft sessions containing the entry, (t) When a record of acquittal or conviction is produced at nisi prills, the court cannot inquire into the circumstances under which it is brought forward. In a case of felony, as well as misdemeanor, a copy of the record of acquittal may be, and indeed must be, received :3 (9) Oraham v. McArthur, 25 U. C. Q. B. 484 n. (r) Thomson v. Leslie, 9 U. C. Q. B. 360. is) NeiU V. McMillan, 25 U. C. Q. B. 494, per Drapw, 1 J. (0 Ex parte Daley, I Allen, 424. / 376 THE CRIMINAL LAW OF CANADA. in evidence when ojQTered, without its being necessary to show that an order of a judge has been obtained, sanctioning the delivery of a copy, though it seems the officer having the custody of the records should not deliver it without an order, (u) Where a conviction has been returned to the sessions, and filed by the clerk of the peace, but quashed on appeal after- wards made to the sessions, the quashing may be proved by an order under the seal of that court, signed by its clerk, directing that the conviction should be quashed, the con- viction itself being in evidence, and the connection between it and the order being shown, (v) After the return of the conviction, it becomes a record, and may be proved as other records. It is not necessary to make up a formal record of the judgment on the appeal, for the 32 & 33 Vic, c. 31, enables the Court of Quarter Sessions to dispose of the conviction, " by such order as to the court shall seem meet." (w) It would seem that the minute book of the sessions, having an apparently proper caption, and signed by the clerk of the peace, would not be sufficient proof per se of the judgment of the court quashing the conviction without piooi of the order following it ; but, if the further proof were added that, in practice, no other record is kept or made up^ the minute book would be evidence. So the minute book would be evidence as to indictments, verdicts, and judgments in criminal matters, at the sessions, (x) A conviction, before a police magistrate, can only be proved by the production of the record of the conviction, or an examined copy of it. Where a police magistrate, after hear- ing a case of common assault, ordered the accused to enter into a recognizance and pay the recognizance fee, but did not order him to be imprisoned, or to pay any fine, it was held (u) Lmty V. Magrath, 6 U. C. Q. B. O. S. 340. (t») IfeUty. McMUtan, 25 U. C. Q. B. 486. (w) Ibid. (x) NeiU y, McMillan, 26 U. C. Q. B. 494, per Draper, C, J. EVIDENCE. 37T icessaiy to lanctioning cer having ivithout an ssioDs, and peal after- proved by Y its clerk, 1, the con- m between urn of the id as other 3rd of the \l, enables conviction, w) B sessions, y the clerk se of the ;hout piooi proof were • made up^ inute book judgments a only be 5tiou^ or an after hear- d to enter )ut did not b was held J. that this was not a conviction within the corresponding Eng« lish section of the 32 & 33 Vic, c. 20, s. 45 ; and that even if it were, a statement of the above facts by the magistrate's clerk, without producing a record of the proccsdings, was not sufficient proof of its existence, (y) An information, and other proceedings before a justice of the peace, returned to the Supreme Court with a certiorari^ and filed with the clerk of the Crown, become a record, and may be proved by an examined copy taken before the originals were filed, (z) To prove the finding of an indictment at the sessions,, it is not sufficient to produce an exemplification of the record of acquittal, without any general heading or caption to it, (a) and it would seem the proper way of proving it is to have the record regularly drawn up, and produce an examined copy. (&) The production of the original indictment is insufficient to prove an indictment for felon}^ and a record showing a proper caption must be made up. (c) A judgment of t.he Court of Quarter Sessions, affirming a conviction of the defendant, before a magistrate, on a charge of assaulting H. M., " by using insulting and abusive language to him, in his own office and on the public street, and by using his fist in a threatening and menacing manner to the face and head of the said H. M.," is sufficient proof of a breach of the peace, (d) . The court will judicially notice a public statute, (e) ]^ the Interpretation Act, 31 Vic, c. 1, s. 7, thirty-eighthly, every Act shall be deemed to be a public Act, and shall be judi' cially noticed by all judj;es, justices of the peace and others, (y) Hartley v. Hindmamh, L. R. 1 C. P. 553. (z) Sewell V. Olive, 4 Allen, 394. (a) Astm V. WrigfU, 13 U. C. C. P. 14. (6) Ibid 19, per Draper, C. J. (c) Henry v. LiUte, ll U. C. Q. B. 296 ; Rex v. Smith, 8 B. & 0. 341 ;; lee also on this 32 &, 33 Vic, c. 29, b. 77. id) Beg. v. Harmer, 17 U. C. Q B. 555. (e) See Reg. v. Shaw, 23 U. C. Q. fi. 616. ::3 378 THE CRIMINAL LAW OF CANADA. without being specially pleaded, and all copies of Acts^ public or private, printed by the Queen's printer, shall be evidence of such Acts and of their contents, and every copy purporting to be printed by the Queen's printer shall be deemed to be so printed, unless the contrary be shown. Where an Act of Parliament makes a gazette evidence if it purport to be printed " by the Queen's printer " or " by the Queen's authority," a gazette purporting to be printed by A. B., without giving his style as Queen's printer, and purport- ing to be printed " by authority," is not receivable. But evidence aliunde might be admissible to show that A. B. was the Queen's printer, and that the authority was the Queen's authority. (/) On a charge of murder, threats made by the prisoner to a third person more than six months before the commission of the crime, that the prisoner would take the law into his own hands, are clearly admissible, though there are friendly rela- tions between the parties afterwards, and if undue pro- minence is given to these threats in the charge of the jury, the prisoner's counsel should call the attention of the court to it, and request that the jury should be told that if there were subsequent acts of kindness and expressions of friendli- ness, they would raise a presumption of kindness to rebut that of malice, {g) The reception of evidence in reply is, as a general rule, in the discretion of the judge, subject to be reviewed by the court. Evidence in explanation of some matter brought out by the prisoner's witnesses, is properly received in reply ; (h) aud witnesses may be recalled for this purpose, (i) According to the strict practice, a party cannot, after closing his case, put in any evidence, unless by permission of the judge, (j) And iu an action for libel, it was held that the plaintiff could not, after closing his case, have a paper which [/)Regr. WaUate, 2 U. C. L. J. N. S. 138 ; 10 Oox, 600. (o) Reg. V. Jones, 28 U. C. Q. B. 416. {k) Ibid. {%) Beg. V. Sparham, Rob. & Jos. Dig. 929. ij) Cross V. Skhardson, 13 U. C. C. P. 433. EVIDENOE. m is of ActSt or, shall be every copy 3r shall be tiown. ddeace if it or " by the inted by A. id purport- rabl& Bat it A. B. was he Queen's risoner to a nmisaion of ito his owD iendly rela- undue pro- f the jury, f the court Lat if there of friendli- )3 to rebut reply is, as )jeot to be Q of some s properly >ed for this fter closing lion of the that the per which he had proved before, read and filed, except in the diseretion of the judge trying the case, (k) Before the 32 & 33 Vic, c. 29, s. 80, did away with the granting of new trials in criminal cases, it was held that the rule is the same in the latter as in civil cases ; at any rate, where the prisoner is defended by counsel, that any objection to the charge of the presiding judge, either for non-direction or for misdirection, must be taken at the trial, when it can be directly cured : and if not then taken, it cannot be afterwards raised on motion for new trial or otherwise, especially when the evidence fully sustains the verdict ; that non-direction is not an available objection when the verdict is not against evidence, and where the law is clear, it is no misdirection to leave the facts simply to the jury, for they are judges of the evidence ; that misdirection could only be on a point of law, and not on a matter of fact. (/) The improper reception of evidence upon a criminal trial is not necessarily a ground for quashing the conviction, if the other evidence adduced be amply sufficient to sustain it. (m) " * It would seem that, as the law now stands in Canada, when material evidence has been incorrectly admitted or rejected, or the verdict, though regularly obtained, is mani- festly contrary to the evidence, the proper remedy for the prisoner is an application to the Crown for a pardon, (n) A bill of exceptions will not lie in a criminal case, (u) It follows that, on a charge of that nature, a question ad to the reception of evidence, or the rulings of the judge there- on, or his directions to the jury, cannot be raised on the {k) Or08» V. Richardson, 13 U. C. C. P. 433. {I) Reg. V. Fick, 16 U. C. C. P. 379 ; see also Cotmm v. Merrill, 16 U. 0. C. P. 120. (m) Reg. v. Fouler, 1 U. C. L. J. 156. (n) Reg. v. Kennedy, 2 Thomson, 216, per Blia$, J. ; ibid. 226, per WU- kins, J. (0) Whelan v. Reg. 28 U. C. Q. B. 132, per Draper, 0. J.; (in B. ft A.) ; Reg. V. PaUee, 6 U. C. P. R. 292; 7 0. L. J. N. 8. 124, per DaUon, J.; Duval dit Barbinas v. Reg.t 14 L, G. B. 74, fw Meredith, J.; ibid. 79, per DutftUt C. J. (in error). ac ID i 380 THE CRIMINAL LAW OP CANADA. record, so as to constitute a ground of error ; (p) for the efiect of a bill of exceptions is to raise the point excepted to specifically on the record, so as to be subject to revision in error, (q) An indictment in a criminal prosecution of the defendant is not admissible as evidence in a civil suit against him. (r) And on the trial of an indictment for receiving goods which one M. had feloniously stolen, evidence is not admissible to show that M. had previously been tried for the larceny and acquitted, (s) ■ The fabrication of evidence by a prisoner, or inducing a witness to swear in his favor, is most damaging to the prisoner's case, (t) The reading to witnesses of the judge's notes of their evidence, taken on a former trial, should be discouraged. Where, on a second trial, at the same sitting, before another jury, some of the witnesses having been re-sworn, the evi- dence given by them at the first trial was read over to them from the judge's notes, liberty being given, both to the prosecution and to the prisoner, to examine and cross-ex- amine the witnesses, it was held that this proceeding was irregular, and could not be cured by the consent of the prisoner, (u) But witnesses may refer to memoranda for the purpose of refreshing their memories. And a witness was allowed to look at a time book, from w^hich he made up the amounts due to the employees of the establishment in which he was pay clerk, for the purpose of proving sums paid to them, though the entries were made by another person, (v) On a trial for common assault, or when a hifrhcir crime is charged but only common assault proved, the prisoner is a v ip) Wituor V. Reg. L. R. 1 Q. B. 312, per Cockfmm, C. J. {q) Duval dU Barbmas v Reg. 14 L. C. B. 52. (r) Winning v. Fraser, 12 L. C. J. 291. («) Reg. V. Fergimn, 4 Pagsley ft B. 259. (0 Reg. V. Jones, 28 U. C. Q, B. 416. («) Reg. V. Bertrand, L. R. 1 P. G. App. 620. (v) Reg. V. LangUm, L. R. 2 Q. B. D. 297. EViDENdR »81 ) for the excepted revision efendant k him. (r) ds which issible to ceny and inducing ^ to the of their ouraged. I another the evi- over to th to the eross-ex- ling was b of the competent witness on his own behalf, (w) But on an in- dictment for in assault occasioning actual bodily harm, the prisoner's evidence is inadmissible. Where the prisoner's evidence is admissible, so also is that of the husband or wife of the prisoner, (x) A prosecution to recover a fine for solemnizing; a marriage between minors without the consent of their parents was held a criminal proceeding, so as to render the defendant incompetent to give evidence under the (N. B.) 19 Vic<, c. 45. (y) But proceedings for the recovery of a penalty, being in the nature of a civil writ, the evidence of the defendant in such cases is admissible under that statute, (z) Instruments liable to stamp duty are, by 41 Vic, c. 10, s. 5, rendered admissible in evidence in any criminal proceed- ing, though not stamped as by law requi**ed. The 44 Vic, c. 28, provides for the mode of admitting documentary evidence of an official nature. {w) 43 Vic, c. 37. tx) Reg. V. McDonald, 30 U. C. C. P. 21. iy) Ejp parte Jarvia, Stsv. Dig. 1269 ; Reg. w. GMlart, 6 Alien, 115. Iz) Ex parte Frank, 1 Pugsley & B. 277. 13 purpose allowed amounts \ he was X) them, crime is aer is a / 38a THE CRIMINAL LAW OF CANADA. CHAPTER IX. . PLEADING. An indictnient grounded upon an offence made by Act of Parliament must, by express words, bring the offence within the substantial description made in the Act. Those circum- stances mentioned in the statute to make up the offence shall not be supplied by any general conclusion contra formam statuti. As to indictments in general, the charge must contain such a description of the injury or crime, that the defendant may know what injury or crime it is which he is called upon to answer ; that the jury may appear to be warranted in their conclusions of guilt or innocence upon the premises deli- vered to them ; and that the court may see such a definite injury or oiime that they may apply the remedy or punish- ment which the law prescribes. The certainty essential to the chaise consists of two parts — the matter to be charged, and the manner of charging it. As to the matter to be charged, whatever circumstances are necessary to constitute the crime imputed must be set out, and all beyond are surplusage, (a) Where an offence is created by statute, it is the safest rule to describe the offence in the very words used in the statute, and the courts are generally averse to support indict- ments where other words have been substituted, (b) "Where a statute uses the word " maliciously " in describ- ing an offence, it is not sufficient to allege that it was dune "feloniously," as the former expression is not included in the latter. Where a statute uses the words " wilfully and maliciouslv," and the act is laid as done " unlawfully, mali- (o) Beg. V. Tiernejft 29 U. C. Q. B. 184-5, per Morrison, J. (6) Jieg. v. Jope, 3 Allen, 162, per Carter, C. J. PLSADING. 383 by Act ot* ice within je circutn- le offence raformam ntain such idant may d upon to d in their nises deli- i a definite OP punisU- itial to the arged, and e charged, the crime sage, (a) the safest ied in the art indict- ) n describ- was done eluded in fully and dly, mali- ciously, and feloniously, the word " wilfully " being omitted, the indictment is insufficient ; for where both the wordg " wilfully " and " maliciously " are used, they must be under- stood as descriptive of the offence, and therefore necessary in describing the offence in an indictment, (c) But an allega- tion that the prisoner did " feloniously stab, cut and wound,*' instead of did " unlawfully and maliciously," etc., was held good, {d) It i& not sufficient for an indictment to follow the words of a statute where the allegations submit a question of law for the jury to determine. It is not a universal rule that an offence may be described in an indictment in the words of the statute which has created it ; for an indictment charging that the defendant falsely pretended certain facts, although in the very language of the statute, was held defective in error, for not averring specifically that the pretences were false, (e) Where a statute creates a new offence, under particular circumstances, without which the offence did not exist, all these circumstances ought to be stated in the indictment. The prisoner should be able to gather from the indictment whether he is charged with an offence at the common law, or under a statute, or, if there should be several statutes appli- cable to the subject, under which statute he is charged. (/) Where the offence charged is created by any statute, or subjected to a greater degree of punishment by any statute, the indictment shall, after verdict, be held sufficient, if it describes the offence in the words of the statute creating the ofTence or prescribing the punishment, although they be dis- junctively stated, or appear to include more than one ofifence> or otherwise, {g) It would appear, however, that this does not dispense with the necessity of stating the circumstances under which the (c) Reg. V. Jope, 3 Allen, 162-3, per Carter, C. J. (d) Reg. v. Flyun, 2 Pugsley & B. 321. {,e)Reg. V. SwUze)', 14 U. C. C. P. 477 ; Rex v. PerroU, 2 M. & S. 379. (/J Reg, V. OummingM, 4 U. C. L. J. 188, per EtOm, V.-C. i^)Rtg. V. Baby, 12 U. 0. Q. fi. 346 ; 32 & 33 Vic, o. 20. s. 79. en 384 THE CRIMINAL LA.W OF CANADA. off^^nce was committed, and without which it could hot have been committed, (h) There are numerous instances where the statute being dis- junctive, a conjunctive statement is commonly used in an indictment. Thus, the statute 7 & 8 Geo. IV., c. 30, enacts that if any person shall unlawfully and maliciously cut, break, or destroy any threshing-machine, the indictment may charge that the accused did feloniously, unlawfully, . and maliciously cut, break, and destroy. So, where the offence by statute was unlawfully or maliciously breaking down, or cutting down, any sea bank or sea wall, the indictment may charge a cutting and breaking down, (i) And the indict- ment will not be bad on the ground of its charging several offences. In indictments for offences against thie persons or property ■of individuals, the Christian and surname of the party injured must be stated, if the party injured be known. (J) So, in an indictment for publishing an obscene book, it is not sufficient to describe it by its title, but the words thereof alleged to be obscene must be set out ; and the omission will not be cured by verdict, (k) An indictment charging a person insolvent with making away with and concealing his goods to defraud creditors, must specify what goods and what value. (/) And the same ruling would seem to apply at any rate to the second part of section 110 of 32 & 33 Vic, c. 21. And where the defendant was indicted in the district of BeauhBrtiois for perjury committed in the district of Mont- real, but them was no averment in the indictment that the defendant had been apprehended or that he was in custody at the time of the finding of the indictment, the omission was held fatal, and could not be cured by verdict, im) (h) Reg. V. Cumminas, 4 U. C. L. J. 188, per Eitsn, V.-C. (t) Reg. V. Patterson, 27 U. C. Q. B. 145-6, per Draper, 0. J. ij) Reg. V. Qainn, 29 U. C. Q. B. 163, per Richards, C. J. {k) BradUiugh v. Reg. L. R. 3 Q. B. D. 607. (/) Reg. V. PatoUle, 4 Revue Leg. 131. ,{m) Reg. y. Lynch, 20 L. C.J, IST. PLfeADlNO. An indictment in the statutory form, charging the prisoner with having feloniously and maliciously set fire to, etc., is good without alleging any intent to injure or defraud ; (n) but such an intention must be shown at the trial, (o) and in an indictment for false pretences such an omission would seem to be aided by verdict, (p) So would the omission ot the false pretences, (q) if necessary to be alleged, (r) An indictment charging B. with obtaining by false pre- tences, from one J. T., two horses with intent to defraud, and that the defendant was present aiding and abetting the said B. the misdemeanor aforesaid to commit, was held good as against the defendant, ac charging him as principal in the second degree, (s) An allegation of the crime having been committed upon the sea instead of upon the high seas, is good in arrest of jndgment. (t) A conviction charging that the prisoner did " unlawfully and maliciously cut and wound one Mary Kelly with intent then and there to do hyr grievous bodily harm," though in- sutficient to charge the felony, yet the court, by rejecting the words " with intent" etc., upheld it as a conviction for the misdemeanor, (u) And the omission of the word "company'* is cured by verdict, (v) But the omission of the words "was plaintiff" after ther name of the plaintiff, in the description of the style of cause in an assignment of perjury, is fatal, before verdict at least, {w) If an indictment for stealing certain articles be maintain- CkS 13 Lissiou was (n) Reg. v. Sonde, 1 Pugsley & B. 611 ; Reg. v. Oronin, Rcb. & Jos. Dig. 904 (o) Reg. V. Cronin, mpra. \p) Crawford v. Beattie, 39 U. C. Q. B, 13. \q) Reg. V. OoUi'^mUh, L. R. 2 C. C. R. 74. (n 8ee Reg. v. Lavigne, 4 R. L. 411, as to necessity of alleging the false pretences. {s) Reg. V. Connor, 14 U. C. C. P. 529. (0 Reg. V. Sprungli, 4 Q. L R. 110. {u) Rtg. V. Boucher, 8 U C. P. R. 20. \v) Reg. V. Foreman, I L. C. L. J. 70. (to) Reg. V. Ling, 5 Q. L. U. 359. :i 386 THE CRIMINAL LAW OF CANADA. S cS able as to some, the conviction is good, although as to the other goods it cannot be supported, (x) Surplusage, or the allegation of unnecessary matter, will not vitiate an indictment at common law, or on a statute. The unnecessary allegations need not be proved, and mdy be rejected, provided they are not matters of description, (y) and do not alter the meaning of the words requisite to define the offence charged, (z) Only material allegations need be proved, (a) And where some counts in an indict- ment charged the destruction of a vesswi with intent to prejudice the underwriters, and some without such intent, and the prisoner was fou"'' guilty on all the counts, it was held that, if necessary to show the prisoner had knowledge of the insurance, the court could alter the verdict to a finding on the counts which omitted the alleged intent, (b) An indictment which charged A. with having made a false declaration, before a justice, that he had lost a pawn- broker's ticket, whereas he had not lost the tickt./, but "had sold, lent, or deposited it with one C," was held not bad for uncertainty, because the words "had sold, lent, or deposit- ed" were surplusage, (c) So the ordinary conclusion of an indictment for perjury, "did wilfully and corruptly com- mit wilful and corrupt perjury," may be rejected as sur- plusage, {d) And an allegation that "having made an assignment" in an indictment against an insolvent for having mutilated his books, is surplusage, (e) So on an indictment for not keeping a bridge in repair, it was held no objection that the proceedings on the record were in the Court of Queen's Bench for the Province of Ontario, there being no such {x) Beg. V. St. Denis, 8 U. C. P. R. 16. iy) Beg. v. Bryans, 12 U. C. C. P. 167, per Draper, C. J. (z) Heg. V. Bathgate, 13 L. C. J. 304, per Drummond, J. (o) Beg V. Bryans, supra, 169, per Bichards, C. J. lb) Beg. V. Tower, 4 Pugsley & B. 168. (c) Beg V. Parker, L. R. I C. C. R. 225 ; 39 L. J. (M. C.) 60. (rf) Beg. V. Hodgkiss, L. R. 1 C. C. R. 213, per iCcWy, U. B.; RpalU t- Beg., 11 Q. B. 781. (c) Beg. V. McLean, 1 Pugsley & B. 377. PLEADING. 387 as to the latter, will a statute. , and may ription,(y) (quisite to allegations an indict- intent to ich intent, nts, it was knowledge irdict to a intent, (b) ,g made a st a pawn- ,, but "had lot bad for )r depoait- ision of an iptly com- bed as sur- nment" in mutilated 3nt for not ction that of Queen's g no such ). ).; RyalU r. province when they were had; the name of the province being surplusage. (/) It is a universal principle, which runs through the whole criminal law, that it will be sufficient to prove so much of an indictment as charges the defendant with a substantive crime; (ff) and the 32 & 33 Vic, c. 29, s. 23, enacts that no indictment shall be held insufficient for want of the aver- ment of any matter nnnecessary to be proved, or for the insertion of the words " against the form of the statute," instead of the words "against the form of the statutes," or vice versa, or for the omission of the same. The general rule was, that, in indictments for offences created by statute, the conclusion *'contra formam statuti " was necessary. It was pretty clear, however, that, under the old statutes, the omission of these words was not fatal after verdict, though it might, perhaps, have been on de- murrer, (h) The general rule of law is, that no person shall be twice placed in legal peril of a conviction for the same offence. Consequently, on an indictment for any offence, a previous conviction, or acquittal of the same offence, may be a good plea in bar. The true test by which the validity of such a plea may be ascertained is, whether the evidence necesaaiy to sustain the second indictment would have waiTanted a legal conviction upon the first, (t) But the prisoner must be in legal peril on the first indict- ment, and unless the first indictment be such that the prisoner might have been convicted upon it, on proof of the facts contained in the second indictment, an acquittal on the first can be no bar to the second, {j) Moreover, with reference to these pleas, when it is said (/) Reg. V. Desjardin Canal Co., 27 U. C. Q. B. 374. ig) Jieg V. Bryam, 12 U. C. C. P. 167, per Draper, C. J. (h) Reg. V. Cummings, 16 U. C. Q. B. 15 ; confirmed on appeal, 4 U. C. L. J. 182 ; Reg. v. Twei-dy, 23 U. C. Q. B. 120 ; per Draper, 0. J.; and see 32 & 33 Vic, c. 29, ss. 23, 32 and 78. (t) See Reg. v. Magrath, 26 U. C. Q. B. 385. {j) Ex parte Eaiabrooka, 4 Allen, 280, per WUmot, J. CZ3 :i3 2 388 THE CRIMINAL LAW OF CANADA. I II S '4 k ft i If f 1 I that a man is twice tried, a trial whi'?h proceeds to its l*»giH- mato and lawful conclusion by verdict is meant. When a man is said to bo twice put in jeopardy, it signifies a putting; in jeopardy by the verdict of a jury, and that he is not tried nor put in jeopardy until the verdict comes to pass ; because if that were not so, it is clear that in every case of defective verdict a man could not be tried a second time, and yet it is admitted that, in the case of a verdict palpably defective, thou. C7., 4 U. C. Q. B. 303. (y) Mulcahy v. Reg., L. B. 3 E. & I. App. 329, per Lord Cranworth. iz) Iltid. 323, per m f^, J. - i: PLEADING. 391 zance is uo f the peace t, giving a ^ail himself rearing the rruled, the t the same production th and 5th jmurrer. (x) 3r plea, and e, anything insufficient, plead not perhaps is allowed to Stats. Can., ving made etc., made ertified by ame t-o the rtified list, entitled to 1 said list, Huron D. O. xnvforik. the names, etc., which names, or any or either of them, ought not to have been omitted. The second count was nearly the same as the first, the word " insert " being used where the word " omit " was used in the first. Upon demurrer to the indictment, the court held that the omission charged, having been from the certified list delivered to the clerk of the peace or " duplicate original," the words "said list," referring to the words "the certified list so delivered to the clerk of the peace," was a sufficient description to iudentify the list intended. As to the objection that it did not appear that the persons whose names were charged to have been omitted, etc., were persons entitled to vote, etc., it was held that the words in the indictment were not a direct and specific allegation that those persons were entitled to vote. As to an objection that it was not alleged that the list was made up from the last revised assessment roll, the court held that by the indictment it appeared that the assessment roll referred to was the assessment roll for 1863, and that it was sufficiently stated that the alphabetical list was made up for that year, and that the Crown would be bound to prove such a list; and further, that both counts of the indictment were bad, as they should have shown explicitly how and in what respect these names should or should not have been on the list, by setting out that they were upon, or were not upon, the assessment roll as the case might be, or at any rate were, or were not, upon the alphabetical list, (a) Matter of description, in an indictment, though unneces- sarily alleged, must be proved as laid. Therefore, where, in an indictment for assaulting a gamekeeper of the Duke of Cambridge, under 9 Geo. IV., c. 69, s. 2, the Duke was described as'* George William Frederick Charles, Duke of Cambridge,'' and it was proved that " George William " were two of his names, but that he had other names which were not proved, and it was found by the verdict that the jury were satisfied (a) Reg, v. Smttar, 14 U. C. C. P. 470. (as «IM«J 992 THE CRIMINAL LAW OP CANADA. of the identity of the Duke, and the prisoners were convicted, it was held that the conviction was wrung ; that under 14 ^15 Yic, c. 100, s. 24, an amendment might have been made at the trial, by which the conviction would have been supported by striking out all the Christian names; but it was now too late, and that the Court of Quarter Sessions were not boynd to amend ; and that an amendment, by striking out the two names only which were not proved, would have been iy?ong.(6) An indictment could not be amended at common law \fithout the consents of the grand jury, on whose oath it was found. ((!) The 32 & 33 Vic, c. 2^, s. 70 et seq.^ contains provisions as ^o the amendment of indictments in pertain cases. 4^ny objections for any defect apparent on the face of an :(ndictment must be taken before plea, (d) And the '* merits of the ca.se," with reference to ameudn^ents in sectioi) 71, means the justice of the case as regards the guilt or innocence pf the prisoner, and " liis defence on such merits" means a ^ul|}8tantial and not a formal and technical one. (e) It would seem that a defect in laying the property in m ^idictment might be amended under s. 71. (/) And under a section of an English Act somewhat analogous to sec. 71, it ^^s held that the judge had power to aniend an indictment for perjury, describing the justices before whom the perjury Ffis committed, as justices for a county, where they weye proved to be justices for a borough only. ( Q. B. 246 ; Reg. v. Ferguson, 1 Dears. 427. (c) Reg. V. Afason, supra, id) CornwaU v. Reg., 33 U. C. Q. B 106. ISO i 396 THE CRIMIi^AL LAW OF CANADA. ;> l\ If therd ba an exception or proviso in the enacting clause of a statute, it must be expressly negatived in the iudict- meiit. («) The rule is, that, when the enacting clause of a statute constitutes an act to be an offence under certain circum- stances and not under others, then, as the act is an offence only aiih modo, the particular exceptions must be expressly specified and negatived ; but when a statute constitutes an act to be an offence generally, and in a subsequent clause makes a proviso or exception in favor of particular cases, or in the s&me clause, but not in the enacting part of it, by words of reference or otherwise, then the proviso is matter of def'^nce or excuse, which need not be noticed in an in- dictment. (^/) The reason why the exceptions in the enacting clause should be negatived is because the party cannot plead to such an indictment, and can have no remedy against it, but from an exception to some defect appearing on the face of it. (g) The statement of the time when an offence is committed was never considered material, so long as there was proof of the offence occurring before the preferring of the indict- ment. (A) The 32 & 33 Vic, c. 29, s. 23, would seem to render an aT^erment of time unnecessary, in any case where time is not of the essence of the offence, (i) It was* formerly necessary that an indictment for homi- cide should describe th«? manner of the death, and the means by whicli it was effected, (j) But these need not now be stated. When, however, a statute makes the means of effect- ing an act material ingredients in the offence, it is necessary (c) Seg. Y. WhUe, 21 U. C. C. P. 354. (f) Ibid. 366, per GaU, J. {ij) Ibid. 356, per Oalt, J.; and see Arch. Or. Pldg. 62; Spieresy. Parker, i T. R. 141 ; Beg. v. Earnsht plead to linst it, but 1 the face committed was proof the indict- render an re time is for homi- the means Dt now be s of effect- necessary ■eav. Parker, I T. R. 32» ; », J. that the means should be set out in the indictment ; for an indictment must brini? the fact of making an offence witliin all the material words of the statute, and all necessary ingredients in the offence must be alleged, (k) Thus, where a statute provides that " whosoever shall mali- ciously, by any means manifesting a design to cause irrievous bodily harm," etc., attempt to cause grievous bodily harm to any person, the means should be S' ' 'ut with such particu- lariiy as necessarily to manifest the design which constitutes the felony, or there should be an allegation following the words of the Act. (/) So it would seem that in an indictment, on the 32 & 33 Vic, c. 20, s. 20, for attempting, "by any means calcu- lated to choke," etc., to render any person insensible, with intent, etc., should set forth the means, for they are material as to the offence. But it would no doubt be sufficient to follow the forms in the schedule to the 32 & 33 Vic, c. 29, in any case to which they are applicable. Tt is not necessary that the proof should, in all cases, tally with the mode of death laid in the indictment. Where an indictment charged the prisoner with feloniously striking the deceased on the head with a handspike, giving him thereby a mortal wound and fracture, of which he died : it was proved that the death was caused by the blow on the head with the handspike, but that there was no external wound or fracture, the immediate cause of death being concussion of the brain, produced by the blow ; and the court held that it is sufficient if the mode of death is substantially proved ai laid, and it is not necessary tiiat all the intermediate steps oetween the primary cause and the ultimate result should be also alleged and proved, (m) The venue of legal proceedings is intended to show wherie the principal facts and circumstances in the proceedings (k) See Beg. v. Map«e, 12 Allen, 16, per Carter ^ C. J. ; Aroh. Cr. Pldg. 60-3. {I) Reg. V. Magee, supra. (m) Reg v. Shea, 3 Allen, 129. amnl 398 THE CRIMINAL LA.W OP CANADA. occurred, or were alleged to have occurred, with a view to showing that the court and jury have jurisdiction in the mat- ter. It was formerly necessary to state in the indictment the venue expressly, or, by reference to the venue in the margin^ to every material allegation, (n) But now, by the 32 & 33 Vic, c. 29, s. 15, it is not neces- sary to state any venue in the body of any indictment. Sec- tion 11 of this statute relates to procedure only, and does not authorize any order for the change of the place of trial of a prisoner, in any case where such change would not have been granted under the former practice. The statute does away with the old practice of removing the case, by certior- ari, into the Queen's Bench, and then moving to change the venue, (o) Under sec. 9 of this statute, the offence may be alleged to have been committed in any district, county, or place through any part whereof the coach, waggon, cart, carriage, or vessel, boat or raft passed, in the course of the journey or voyage during which the oD'ence was committed, and the indictment need not state the place where the offence was actually committed, (p) Where an indictment stated an assault committed upon one Marsh, at Fredericton, in the county of York, but the assault was proved to have been committed on board a steamboat, on the river St. John, in the course of its pass- age from St. John to Fredericton, before the steamboat arrived within the county of York, and while it was passing through another county ; it was held that the indictment was sufficient, and that it was unnecessary to allege the facts as they actually occurred, (q) But where a prisoner was tried at Amherst upon an in- dictment containing two counts, one for robbery and the other for receiving stolen goods, and both offences were (n) Reg. v. Atkinton, 17 U. C. C. P. 299-300, per J. Wilson, J. (o) Beg. V. McLeod, 6 C. L. J. N. S. 64; 5 U. C. P. R. 181. Ip) See Beg. ▼. Wdtster, 1 Allen 689. {q) Ibid. PLEADING. 399 a view to n the mat- ictnieiit the ^he margin r not necea- aent. Sec- ad does not if trial of a 1 not have tatute does , by certior- change the e alleged to ace through [e, or vessel, ^ or voyage indictment ras actually aitted upon ark, but the on board a of its pass- steamboat was passing indictment allege the upon an in- 3ry and the 'ences were In, J. proved to have been committed at Truio, situated in a county different from Amherst ; the jury having found a general verdict of guilty on both counts, it was held that the prisoner should havt been proceeded against only on the count for receiving ; and that although he might be guilty of both offences, yet, as the robbery was committed in another county than that in which the trial took place, the prisoner was discharged, (r) So where a prisoner hired a horse in the county of York to go to Aurora in that county, and afterwards sold the horse in the county of Waterloo, it was considered that no offence was shown in the former county, (a) But where the prisoner, at Seaforth, in the county of Huron, falsely represented to the agent of a sewing machine company, that he owned a lot of land, and thus induced the agent to sell machines to him, which were sent to Toronto, in the county of York, and delivered to him at Seaforth ; it was held that the offence was complete at Huron, (t) The venue in criminal proceedings, as in civil, may be changed in a proper case. But it has been held ii.\ Quebec, that the Court of Queen's Bench there, sitting in appeal, will not entertain such an application on behalf of a person charged with an offence in the District of Three Rivers, where no reason appears why the application shoulH not have been made before the judge resident in that district, where the offence would otherwise be triable, {u) It would seem that no objection to the caption of an indictment, for an allegation that the gi'and jurors were " sworn and affirmed," can be sustained without showing that those who were sworn were persona who ought to have affirmed, or that those wljo affirmed were persons who ought to have sworn, (v) (r) Reg. v. Ruaaell, 3 Russ. «V Chesley, 264. (a) lie Robinson, 7 U. C. P. R. '239. it) Reg. V. Feithenheimer, 26 U. C. C. P. 139. («) Ex parte Corwin, 24 L. C. J. 104. (v) Mulcahy v. Reg., L. R. 3 E. & I. App. 306. '•aC :Z3 :a i 400 THE CRIMINAL LAW OF CANADA. It IB no objection to the indictment that the previous conviction is laid at the commencement ; though, when the prisoner is given in charge to the jury, the subaequbnt felony must be read alone to them, in the first instance, {w) It is no error to add allegations of previous convictions of misdemeanor to a count fur larceny ; and at any rate, the question can be raised only by demurrer on motion to quash before plea, (x) Where a prosecutor has been bound, by recognizance!, to prosecute, and give evidence against a person charged with perjury in the evidence given by him on the trial of a certain suit, and the grand jury have found an indictment Ag&inii the defendant, the court will not quash the indict- ment because there is a variance in the specific charge 6f perjury contained in the information and that contained in the indictment, provided the indictment sets forth the sub- stantial charge contained in the information, so that the de- fendant has reasonable notice of what he has to answer, (y) An application to quash an indictment should be made in limine by demurrer or motion, or the defendant should wAit the close of the evidence for the prosecution to demand an acquittal, (z) Applications to quash an indictment are considered ap- plications to the discretion of the court, (a) A defective indictment may be quashed on motion as wcill AS on deTiurrer. (b) It is unusual to quash an indictment on the application of a defendant, when it is for a serious offence, unless upon the clearest and plainest grounds ; but the court will drive the party to a demurrer, or motion in arrest of judgment, (tr) Seg. v. Hilton, 5 U. C L. J. 70 ; ^11, -sO ; 28 L. J. (M. C.) 28 ; and see Beg. v. Mason, 22 U. C. C. P. 246. (x) Beg. V. Mason, supra. iy) Beg. v. Broad, 14 U. C. C. P. 168. (s) Beg. V. Boy, 11 L. 0. J. 90. per Dtunvmond, J. ; see 32 & 33 Vic, c. 29, B. 32. (a) Beg. v. Belyea, 1 James, 277, per Dodd, J. ; Rex v. Hunt^ 4 B. & Ad. 430. (i) Beg. V. Bathgate, 13 L. G. J. 299. le previous I, when the 3ubsoqu6nt istance. {w) ivietions oi^ ly rate, the 3n to quash rnizance, to larged with trial of a indictment the indict- 3 charge Of ontained in th the sub- that the de- answer, (y) be made in should yrAxi demand an sidered dp- tion as welll application inless upon i will drive judgment, [. 0.) 28 ; and 33Vic.,c. 29, U,^B.& Ad. PLEADINU. 401 or writ of error. It is, therefore, a general rule that no indictments which charge the higher offences, as treason or felony, will be thus summarily set aside, (c) The omission of the residences and occupations of grand jurors, in the list and in the panel, was held sufficient ground for quashing an indictment for felony, (d) Where an indictment charges no offence against law, the objection may be properly taken in arrest of j'ldgment, or the indictment may be demurred to, or a writ of error will lie. (e) Buv, the omission of the woid "feloniously" is aided by verdict. - yincial Attorney General, (m) Before pleading to an indictment, the defendant must submit to the jurisdiction of the court, (n) The prisoner must plead in abatement before he pleads in bar. (o) No more than one plea can be pleaded to any indictment for misdemeanor or criminal information, (p) A prisoner will be allowed to withdraw his plea of " guilty " if it appear that he may have been under some misapprehension when he pleaded, and might thereby suffer injury, (j) (/) Beg. V. Grant, 2 L. C. L. J. 276. (fit) Jieg, V. Downev, lo L. G. J. 193. (n) Jieg, r. Maxwdl, 10 L. C. R. 46. (o) Whelan v. Beg., 28 U. C. Q. B. 47. (p) Beg. V. Charlesworth, 1 B. lb 8. 460 ; 81 L. J. (M. a) 26. iq) Btg. V. HMdddl, 20 L. C. J. 301. PRACTICE. 403 p the pro- jant mu»t e pleads in indictment is plea of nder some ireby suflfer CHAPTER X. PRACTICE. There are three principal modes provided by the law of England for the prosecution of criminals : by indictment preferred by a grand jury ; by criminal information to a superior court ; and by summary proceedings before justices of the peace, by virtue of special powers conferred on them to that end by various statutes. As proceedings by indictment usually, though not neces- sarily, follow the commitment of prisoners by justices of the peace, and as criminal information are compamtively rare in this country, we will consider firsi the nature of that body, both with regard to their duties in holding preliminary inves- tigations, and also with regard to their powers of summary conviction ; then proceedings on indictments and criminal informations will be treated of ; after which, various questiona of practice, relating to the trial and the steps subsequent thereto, will be discussed. Justices of the peace were first appointed in the reign of Edward I., (a) but with powers much less extended than have since been conferred on them. By 29 Vic, c. 12, the oath of qualification of a justice may be taken either before some other justice of the peace, or before any person assigned by the governor to ad- minister oaths and declarations, or before the clerk of the peace of the district or county for which the justice intends, to act ; and all such oaths theretofore taken before the last mentioned officer, or before a commissioner assigned by Dedimus potestatem to administer oaths, or before a person. ::3 :3 (o) Beg. V. Atkinson, 17 U. C. 0. P. 300, per J. WUaon, J. I 404 THE CRIMINAL LAW OF CANADA. acting as, but not being, a duly qualified justice of the peace for the same county, are confirmed. (6) The fact of a justice acting as such is prima facie evidence of his appointment to the office ; (c) and the mere produc- tion of a certificate, purporting to be under the hand and seal of the clerk oi the peace, that there is no declaration of the justice's qualification tiled in his office as required by the above statute, is not sufficient to rebut, the presump- tion, (d) Under the commission of the peace, justices have a gener- al power for conservation of the peace, and the apprehen- sion of all persojti charged with indictable offences, and, on examination, to discharge, admit to bail, or commit for trial ; («) and their duties with regard to the same are pre- scribed by the 32 & 33 Vic, c. 30. A justice's jurisdiction is confined to the county f' r which he has been appointed, (/) and of course he has no power to administer an oath or take any examination within the limits of a foreign country, (g) And where the justice has no jurisdiction, the consent of the prisoner cannot confer it. (h) There should properly be an information laid ; (i) but this is not essential to confer jurisdiction to hold a prelimin- ary investigation; for so long as the prisoner is before the magistrate, the manner of his getting there is of little mo- ment, (j) Though a justice of the peace have jurisdiction over an offence in other respects, still, special circumstances, as, for (6) See. 2 ; and see Herbert q. t. v, Dowawell, 24 U. G. Q. B. 427. (c) Berryman v. Wise, 4 T. R. 366. (d) Reg. v. WhUe, 21 U. C. C. P. 354. (c) Connors v. Darling, 23 U. C. Q. B. 643, per Ootoan, J. {f)Reg.y. Wheton, 3 AlUn, 269. ig) Nary v. Owen, Ber. 377. (A) Retf. V. Hebert, 5 Revue Leg. 424. (t) Gaitdle v. Fergwon, 1 Q. B. 889 ; Frid v. Ferguaon, 15 U. 0. JQ, f. 694, per A. Wilson, J. (j) Reg. V. Mason, 29 U.C.Q.B. 431 ; Reg. v. Hughes L. R. 4 Q. B. D. iistice of the fade evidence mere produc- he hand and LO declaration i as required the presump- have a gener- ihe apprehen- ences, and, on r commit for same are pre- inty f ' r which has no power ion within the he justice has cannot confer d;(*) but this d a prelimin- r is before the of little mP- Lction over an bances, as, for Q. B. 427. ;, J. n, 15 U. C. C, ?■ L. R. 4Q. B. D. \ \ \ PRACTICE. 405 instance, where he is interested in the prosecution, {k) will rendar him incompetent to act ; and any steps he may take in violation of this rule will be set aside. (/) But as a general rule, the justice should decide any ques- tion involving an exception to his jurisdiction, or an exemp- tion from any other cause, in order that the superior court may judge of the sufficiency of the same, (m) Under R. S. 0., c. 72, s. 4, a police magistrate for a city is ex o^io a justice of the peace for the county in which such city lies. Under this section an alderman is not ex officio legally authorized to act as a justice of the peace until he has taken tho oath of qualification as such, {n) The plain import of the statute is to establish certain local courts, having limited criminal jurisdiction, and to define the respetjtive jurisdictions of the police magistrate of a city situate within a county, and of the justices of the peace of that county, in respect of offences committed within the city and county respectively, (o) By the 38 Vic, c. 47, any person charged with any offence in Ontario for which he might be tried at the Creueral Ses- sions, may, with his consent, be tried by a police or stipen- diary magistrate, and if found guilty, sentenced in the same manner as he miglit have been before the sessions. Where a statute confers summary jurisdiction on two jus- tices, or any stipendiary or police magistrate, a conviction by the latter must show that he is such a magistrate, (p) And it may be doubted whether, under such circumstances, one justice could sit for such a magistrate, or whether two would not be necessary, (q) And clearly, if not sitting for a magis- trate, a conviction by one would be bad. (r) (k) Reg. v. Simmons, 1 Pugsley, 158 ; Jteg. v. Milledge, L. R. 4 Q. B. D. 332 ; Beg. v. Meyer, L. R. 1 Q. B. D. 173 ; Meg. v. Gibbon, L. R. 6 Q. B. D. 169 ; He Holman, 3 Russell & Chesley, 375. (I) Reg. V. Simmans, supra. (m) Re Dubord, 14 L. C. J. 203. (n) Reg. v. Boyle, 4 U. C. P. R. 259. (o) Reg. V. Morton, 19 U. C. C. P. 27, per Gtoynne, J. (/)) Reg. V. Olancey, 7 U. C. P. R.; and see 32 & 33 Vic, c. 28. 302; IL. C.J. 189. (r) Re Grow, supra. •*m3 1^' / 406 THE CRIMINAL LAW OF CANADA. I S Si; ! -' JB) Where a statute directs justices of a division, or near a certain place, to do a certain act, any justice of the county may do it. (s) It is no objection under R. S. 0., c. 3, that a conviction by justices for an offence tried in the county is signed by one of the justices, in a city having a police magistrate, (t) Where a statute gives justices power to make by-laws and impose penalties, they cannot, without express authority from the legislature, levy such penalties by distress, (u) Proceedings under the Rev. Stat, c. 146, s. 3 (N. B.), for knowingly solemnizing a marriage where either party is under twenty-one, without the consent of the father, are properly taken before two justices. The proceedings in such a case need not be in the name of the Queen, (v) It has been held in New Brunswick, that where a sum- mons has been issued by two justices, the cause must be tried before the same two justices, unless there be some special reason for not doing so, (w) which must appear on the face of the conviction, or at least it must show that the absent justices consented to it (x) But one justice may issue the summons on a complaint, (y) and grant an adjourn- ment, (z) though the penalty is recoverable before two iustices. Where two justices Lave heard a case, they must concur in their judgment ; (a) but in a case before three, judgment may be rendered by two. (b) And the fact that one justice issued the summons in a matter over which he, sitting alone, might have jurisdiction, does not render him sole judge of the case ; but if he allow other justices to sit with him, they («) Beg. V. Wheton, 3 Allen, 269. (0 LanffwUh v. Dawson, 30 U. C. 0. P. 375. !(m) Kirkpatrick v. Asken, Rob. & Jos. Dig. 1992. iv) Reg. v. Oallant, 5 Allen, 115. iw) Wfieks V. Boreham, 2 Russell & Chesley, 377. (x) Dubord v. Boivin, 14 L. C. J. 203. (y) Beg. v. Simmons, 1 Pugsley, 158. (z) Ex parte Holder, 6 Allen, 338. (a) St. Oemmes v. Cherrier, 9 L. C. J. 22. (6) Er parte Lumley, 9 L. C. J. 169 ; ex parte Trowley, 9 L. G. J. 169 ; •ex parte Brodeur, 2 L. C. J. 97. , or near a the county )nviction by Bd by one ol (0 by-laws and thority from ; (N. B.), for arty is under are properly such a case rhere a sum- ase must bt sre be some it appear on low that the justice may an adjourn- before two must concur Be, judgment ; one justice dtting alone, ole judge of th him, they PRACTICE. 407 9 L. C. J. 169 ; have an equal voice with him in determining the question before them, (c) On the examination of any person before a justice, on a charge of an indictable offence, with a view to his commitment for trial, no person has any right to be present without the permission of the presiding justice, (d) But it is different where the justices are sitting to try the offender under the Summary Conviction Act. (e) Where the magistrate or justices are not simply holding a preliminary investigation, but proceed to adjudicate finally under the 32 & 33 Vic, c. 31, it seems necessary, in order to confer jurisdiction on them, that an information should be properly laid, (/) for by the express words of the statute, (g) their power of final adjudication is limited to " cases where an information is laid before one or more of Her Majesty's justices of the peace," etc. The power of justices to convict summarily results only from legislative sanction, and in all cases such authority must be shown, (h) and the maxim, omnia presumuniur rite esse actu, has no application to the acts of inferior courts. Therefore, on a prosecution for a penalty under a by-law of a corporation, the by-law must be proved, that the jurisdiction of the justices may appear on the proceedings, {i) And a conviction by summary process for an aggravated assault, committed on a voting day at an election for the House of Commons of Canada, was in Quebec held to be void, as the statute which constitutes the offence renders it punishable by indictment ; and the offence is not included in those mentioned in the 32 & 33 Vic.,c. 32, ss. 2 and 3. {j) (c) Reg. V. MUne, 25 U. C. C. P. 94. (c;)32&H3yic., c. 30. 8. 35. (e) 32 k 33 Vic, c. 31, ss. 29 and 30. (/) CaudU V. Ferguson, 1 Q. B. 889. (g) Ffiel v. Ferguson, 15 U.C.C.P. 5S4 ; Appleton v. Lepper, 20 U. CO. P. 142, per Hagarty, J. ; Powell v. Williamson, 1 U. C. Q. B. 164 ; Ex parte Eagles, 2 Hannay, 53-4, per Ritchie, C. J.; Connors v. Darling, 23 U. 0. Q. B. 646. (A) Brosa v. Hvher, 18 U. C. Q. B. 286, per Robinson, C. J. ; Reg. ▼. O'Leary, 3 Pugsley, 264. (i) Reg. v. nortman, 4 Allen, 73 ; Rex v. All Saints, Southampton, 7 B. & C. 785. (i) Reg. ex rd. Larouche v. Lenneux, 5 Q. L. B. 261; ss. 2 and 3. CO ::S li 4tMI THE CRIMINAL LAW OF CANADA. S Si BHt the objection to the want of an information roust be taken before the investigation is proceeded upon ; for if the party appears and defends the suit without an information being laid or the issue of a summons, the objection cannot afterwards avail him. (k) And the rule is applicable in the oase of a defective information or summons. (/) Unless a statute require that the information should be in writing, or on oath, it need not be so. (m) An information stating that a woman did "unlawfully take and carry away from his (the informant's) protection her daughter, S. W.," does not give a justice authoiity to issue a warrant, (n) Neither does a complaint charging a "clandestine re- moval of property ;" the utmost tha.t it does justify is the igmiin^ of a summons under the Act relating to petty ioNispasses. (o) An information charging that the defendant did on, etc., " obtain by fake pretences from complainant the sum of five dollars, contrary to law," omitting the words *' with intent to ^fraud," might by intendment be held to charge the statu- toty offence, (p) If A statute gives summary proceedings for variottt of- fences, specified in several sections, an information is bad which lea\es it uncertain under which section it took plaoe. {q) In summary proceedings for assault it is not neoessary thftt the fact that the complainant requested the case to be tried summarily should appear on the proceedings, if the form given by the statute be followed, (r) And even when (k) Ex parte Wood, 1 Allen, 422; Beg. v. McMiUan, 2 Pugal^, 110; Reg. V. O'Leary, H Pugsley, 264. (1) Me parte Coll, 3 Allen, 48 ; Crawford v. Beattie, 39 U. 0. Q. B. 13 ; StMesa V. Ldte, 40 U. C. Q. B. 320. (w) Friel v. Ferguson, 15 U. C. C. P. 694 ; Be Gon&lin, 31 U. C. Q. B. lUS^ per A. Wilson, J. ; see a. 24, 32 & 33 Vic, c. 31. (it) Stiles T. Brewster, Stev. Dig. 811. (o) McNeUis V. Oartshore, 2 U. C. C. P. 471, per McLean, J. ip) Crawford v. Beattie, 39 U. C. Q. B. 13. (9) 7%ompson and Dun\fo.d, 12 L. C. J. 287, per Machay, J. (r) Reg. v. Sheao, 23 U. U Q. B. 616. PRACTICE. 409 hould be in not, after oonvidtion it will be intended th^-t such request was made, (s) In a complaint for breach of a by-law, it is not necessary to insert the by-law itself, or to make a distinct allegation that it is in force. A complaint may be made and a summons issued for two offlences, provided the defendant has not been arrested in the first instance, and a conviction for one of such offences speci- fying it is valid. Service of a copy of a summons, issued by a magistrate, followed by appearance of the defendant, is sufficient, (t) Where two or more persons may commit an offence under an Act, the information may be jointly laid against them, {ti) But where the penalty is imposed upon each person, it is wrong to convict them jointly, even when they are charged on a joint information, (v) If either the penalty be imposed by the Act on each person convicted (even where the offence would, in its own nature, be single), or if the quality of the offence be such that the guilt of one person may be distinct from that of the other, in either of these cases the penalties are several, (w) At Petty Sessions, an information was laid against two defendants, charging that they did unlawfully use a gun and kill two pheasants, contrary to the 1 & 2 Wm. IV., c. 32, s. 3. Each claimed to be tried separately, in order ta call the other as a witness. The justices refused, and heard the charge against both together, and convicted them, and a conviction was drawn up separately against each defend- ant imposing a penalty of £S ; and it was held that it was in the discretion of the justices whether they would hear the charge separately or not; that as the penalty was im- posed on every person acting in contravention of the statute each defendant was separately liable to the whole penalty ^ («) Reg. V. O'Leary, 3 Pugsley, 26-t. {t) Corignan v. Harbor Comra. Montreal, 6 L. C. R. 479. (u) Reg. V. LUtlechild, L. R. 6 Q. B. 295. per Lush, J. (w) Ibid. 295, per Mellor, J. (id) Ibid. 296, per Hannen, J. •^-i 410 THE CRIMINAL LA.W OF CANADA. '■■ ( ll and that separate convictions were right, although the prisoners were charged on a joint information, (x) Where a limited authority is given to justices of the reace, they cannot extend their jurisdiction to cases not li/ithin it, by finding as a fact that which is not a fact, (y) So neither does a discretion, whether they will do a par- ticular thing, enable them, having heard the case, to refuso a warrant, because they think the law under which they are called upon to act is unjust, (z) Wliere the charge laid, sm stated in the information, does not amount in law to the offence over which the justice has jurisdiction, his finding the party guilty by his conviction, in the very words of the statute will not give him jurisdic- diction. The conviction would be bad on its face, all the proceedings being before the court, (a) In a prosecution before justices, their jurisdiction is ousted by the accused setting up a claim of right ; (6) yet that claim must be bona fide, and the mere belief of the accused, unsupported by any ground for the claim, (c) or a •claim of right, which cannot by law exist, is insufficient {d) And in such case they cannot inquire into or determine summarily any excess of force alleged to have been used in the assertion of title, (e) or the validity of the claim set up. (/) Proceedings by indictment are then the proper course, {g) A complaint for assault under s. 4.3 of the 32 & 33 Vic., >c 20, cannot be withdrawn by the complainant, even with the consent of the justice ; Qi) for the charge has become a (x^ Reg. V. LUtlechild, supra. (y) The Hav1.ee, 10 L. C. R. 101 ; The Scotia S. V. A. R. 160. (z) Reg. V. Boteler, 4 B. & S. 969 ; 33 L. J. (M. C.) 101. (a) Re McKinnon, 2 U. C. L. J. N. S. 327, per A. Wilson, J. (6) Reg. v. O'BHen, 5 Q. L. R. 161. (c) Reg. V. Cridland, 7 E. & B. 853 ; 27 L. J. (M. C.)2S ; Reg. v. SHmjh «m, 4 B. & S. 307 ; 32 L. J. (M. 0.) 208. (rf) Hudson V. McHae, 4 B. & S. 585 ; 33 L. J. (M. C.) 65 ; Hargreave$ V. Deddanes, L. R. 10 Q. B. 582. (c) Reg. V. Pearson, L. R. 5 Q. B. 237. (/) Reg. V. Davidson, 45 U. C. Q. B. 91. ig) Jieg. V. Pearson, L. R. 5 Q. B. 239, per Lush, J. ih) Re Conklin, 31 U. C. Q. B. 160. 1^ PRACTICE. 411 though the ices of the > cases not b a fact, (y) I do a par- e, to refuse which they lation, does justice has conviction, im jurisdic- ^ace, all the isdiction is ;ht ; (b) yet plief of the lim, (c) or a ifficient (d) determine een used in claim set the proper & 33 Vic, even with s become a 60. J. Reg. V. Stimp- ; Hargreavet public matter, and the person charged has the right to have it tried ; and further, because the co' iplainant has made his election to have the case so disposed of, from which he can- not withdraw, (i) If justices hear the case but decline to conclude it, as they should have done, they will be ordered to hear it; (j) so if they refuse to hear the whole case, and dismiss the summons, (k) But if justices, in their own discretion, refuse to hear a complaint which is the subject of an in- dictment, the court will not compel them to go on. (/) The fact tht-t the defendant pleads guilty to the charge cannot deprive the justice of the discretion he has to adju- dicate on the case, under s. 46 of the last named statute. The adjudication under that statute means the justice's iinal judgment or sentence to be pronounced, (m) If the justice adjudicate, the defendant will be entitled to the cer- tificate, under s. 44, and if he do not adjudicate, there will be no certificate, and so there will be no bar to any subse- quent proceedings, (n) There is no right to a certificate unless there has been a hearing upon the merits, (o) A certificate under s. 44, given by a justice on a charge of assault and battery, is a defence to an indictment, found- ed on the same facts, charging an assault and battery, accompanied by malicious cutting and wounding, so as to cause grievous or actual Ijdily harm, (p) So, a former conviction by a justice is a bar to an indictment for felonious stabbing, {q) The certificate is also a bar to an indictment for assault, with intent to commit rape, (r) (i) He Conkhn, 31 U. C. Q. B. 168, per Wilson, J. ; see also Tunnicliffe v. Tedd, 5 C. B. 563 ; Vaughton and Bradshaw, 9 C. B. N. S. 103. ij) Sexy. Tod, Str. 531 ; but see Reg. v. Shortiaa, 1 Russell & Geldert, 70. (*) Rex V. Juatices of Cumberland, 4 A. & E. 695. \l) Reg. V. Higham, 14 Q. B. 396 ; Re Conklin, supra, 167, per Wilson, J. {m) Re Conklin, 31 U. C. Q. B. 166, per Wilson, J. (n, Ibid. 166, per Wilson, J.; Hartley v. Hindmarsh, L. R. 1 C. P. 563, (o) Re Conklin, 31 U. C. Q. B. 168, per WUson, J. (r) Ibid. 165, per Wilson, J.; Reff. f. Ebrington, 1 B. & S. 688. iq) Reg. v. Walker, 2 M. ^ Rob. 446 ; Re CorUdin, supra, 165, per Wilwn^S. ir) Ibid.: Re Thompson, 6 K. & N. 193 ; 6 Jur. N. S. 1247. ::;3 ••ac m li: I I s til I 412: THE CRIMINAL LAW OF CANADA. An information or complaint may be amended, but if on oath, it must be re-sworn. («) One C. appeared to an information charging him with an assault, and praying that the case might be disposed of summarily, under the statute. The complainant applied to amend the information by adding the words " falsely im- prison.** This being refused, the complainant offered no evidence, and a second information was at once laid, in- cluding the charge of false imprisonment. The magistratie refused to give a certificate of dismissal of the first charge or to proceed further thereon, but endorsed on the informa- tion " Case withdrawn by permission of court, with a view of having a new information laid." It was held that the information miglit be amended, but that, as the original* was under oath, it must be re-sworn. Under the cii*cum- stancos, the more correct course would seem to have been to go on with the original case, and, under sec. 46, to refrain from adjudicating, {t) A defective information may be aided by evidence, (u) aud under s. 5 of the 82 & 33 Vic, c. 31, a variance between the information, complaint, or summons, and the evidence adduced on the part ^f the intbrmant or complainant, is not fatal if the defendant has not been deceived or misled thereby, or has no defence on the merits, (v) The object of the legislature, in this provision, seems to have been to prevent the failure of justice in cases where, by the old law, very great technical precision was required, and that before a tribunal where great legal accuracy could hardly be expected, (w) It may be doubtful, under the terms of the section, whether the question of the party having been misled is not merely for the discretion of the justices, as to adjourning the hearing to a future day. {x) <<} Rt Conklin, aupra. (0 im. 160. («) Reg. V. YrUliarM, 37 U. C. Q. B. 540. {vi See ex parte Dunlop, 3 Allen, 281 ; ex pairtt Parka, 3 Alleo, 237 ; tee also sees. 21 and 22. (w) i!.'x parte Dunlop, 3 Allen, 283-4, per Carter, G. J. \x) Ibid. 284, per Carter, G. J. PRACTICE. 413 1, but if on m with an isposed of applied to falsely im- offered no e laid, in- niagistratie rst charge e informa- ith a view I that the e original) le circum- kve been to to refrain ce, (u) auii etween the ce adduced ot fatal if eby, or has I, seems to where, by quired, and uld hardly irms of the ving been tices, as to en, 237 ; Me But it would seem that this section must be held to apply only to informations made by persons who have authority to make them, and not to give vitality to an information made by a person without any authority^ and, in fact, to give the justice jurisdiction over the matter when otherwise he would not have it. (y) An information, by a person who has no authority to make it, is the same as no information, (z) An information, to be tried before two justices, is good though only signed by one. (a) As soon as the information has been properly laid, the justice issues his summons or warrant thereon, and proceeds to a hearing of the case. The practice as to this is fully set out in the 32 & 33 Vic, c. 30 and 31 ; the former applying to indictable offences, and providing for the issue of a war- rant in the first instance ; the latter to summary convictions, and requiring, before the issue of a warrant of arrest, the ser- vice of a summons requiring the attendance of the defendant The warrant of a justice is only prima facie evidence of its contents ; and the recital that an information was laid prior to its issue may be rebutted, (b) Although a warrant to a peace of&cer, by his name of office, usually gives him no authority out of the precincts of his jurisdiction, yet such authority may be expressly given on the face of the warrant. Therefore, where a warrant was directed to the constable of Thorold, in the Niagara District, authorizing him to search the plaintiff's hou&ie, in the town- ship of Louth, in the same district; it not appearing that there was more than one person appointed to the office of constable of Thorold, it was held that the direction by description was good, (e) iy) Ex parte Eaglet, 2 Hannay, 64, per Eitchie, C. J . (z) Ibid. id) Falconbridge q. t. v. TourangeoM, Rob. Dig. 260. 5) Friei v. Ferguson, 15 U. C. C. P. 584 ; Sbe also AppUton v. Lepper, 20 U. C. C. P. 138. (c) Jonea v. Boas, 3 U. C. Q. B. S28. JCiQ :::3 :3!e :::s \ I 414 THE CRIMINAL LAW OF CANADA. A warrant under 32 & 33 Vic, c. 31, is not bad though issued in form B. instead of form C. (d) A warrant, though irregular, may be a justification to the officer who executes it, because he is not to canvass the legality of the process he executes, or set up his private opinion against that of the justice (e) A warrant can be backed by a magistrate of a foreign county only " upon proof being made on oath or affirmation of the handwriting of the justice who issued the warrant," and an endorsement without such proof is illegal. (/) Where an information contained every material averment necessary to give a magistrate jurisdiction to make an order for sureties to the peace, but contained also matter which it was contended so qualified the other averments as to render them nugatory, it was held that this was a judicial question for the magistrate to decide, and, therefore, that in issuing his warrant for the appearance of the accused he was not acting without jurisdiction, even though a superior court might quash his order to find sureties, (g) The prisoner being before the justice, he must proceed in the manner pointed out by the stijtute above mentioned ; witnesses must be exam.ned whose evidence should be taken in writing ; (h) for if no witnesses are examined, the commit- ment will bt illegal The plaintiff was arrested upon a warrant issued by the defendant, a magistrate, and brought before him. Defendant examined the plaintiff, but took no evidence, said he could not bail, and committed the plaintiff to gaol on a warrant reciting that he was charged before him, on the oath of W. H., with stealing. The plaintiff did not ask to have any hearing or investigation, or produce, or offer to procure, any evidence on his behalf, or to give bail to the charge ; but it (rf) Jieg. V. Perkins, Stev. Dig. 810. («) Ovens V. Taylor, 19 U. C. C. P. 66, per Hagarty, C. J. Liverpool Gas Co., 3 A. & E. 433. (/) Reid V. Mayhee, 31 U. C. C. P. 384. (flf) Sprung v. Anderson, 23 U. 0. C. P. 152. (A) Keg. v. FUinnigan, 32 U. C. Q. B. 593. Painter r. PRACTICB. 415 waR held that the commitment, ^without appearance of the prosecutor or examination of any witnesses, or of the plain- tiff, according to the statute, or any le^ai confession, was an act wholly without, or in excess of, the jurisdiction of the magistrate, and illegal, (i) Where a justice commences the examination of a party on a criminal char^^e, and after hearing a portion of the evidence refuses to proceed further, the prosecutor may, nevertheless, prefer an indictment against the prisoner before a grand jury- U) The justice may remand the prisoner from time to time for such \ ^riod as may be reasonable, not exceeding eight clear days at any one time ; and the remand must be in writing if for more than three clear days, (k) The evidence taken, the justice, if not a case for summary conviction, should either discharge the prisoner or commit him for trial at the next court of competent criminal juris- diction. But a discharge of a prisoner by one justice does not operate as a bar to the same person being again brought up before another justice, and committed upon the same charge, upon the same or different evidence. (I) If the proceeding be by virtue of the summary powers of the justice, a conviction should be drawn up, and great care should be taken in its preparation The 32 & 33 Vic, c. 31, s. 50, enacts that " in all cases of conviction where no particular form of conviction is given by the Act or law creating the offence, or regulating the prosecution of the same, and in all cases of conviction upon Acts or laws hitherto passed, whether any particular form of conviction has been thereon given or not, the justice or justices who convict, may draw up his or their conviction^ on parchment or on paper, in such one of the forms of con- viction (I., 1, 2, 3,) as may be applicable to the case, or to :r;3 (i) Gonnora v. Darling, 23 U. C. Q. B. 641. ij) Beg. V. Duvaney, 1 Hannay, 571. (k) 32 ft 33 Vic, c. 30, ss. 41 and 42. {I) Meg. V. Morton, 19 U. C. C. P. 26, per Gioynne, J. ^i 416 THE CRIMINAL L\W OF CANADA. ^' I S^ the like effect." So that it would be advisable hereafter to draw up all convictions in conformity with this Act. If the forms there given be not followed, the conviction to be good must either conform to those given in the particular statute under which proceedings are had, (m) or else bo sufiicient according to the general rules of law applicable in their construction, (n) But the mere omission of immaterial words in a statutory form, such as " to be paid and applied according to law " in the clause imposing a fine, (o) or words added which do not •materially alter the meaning of the form, such as insertii»g the name of the informer when not required, (p) will not render the conviction bad. (q) Where the conviction does not follow any statutory form, it must be legal according to the principles of the common law ; and in the first place should state that the party pro- secuted had been summoned, and that he appeared, and that the evidence was taken in his presence, (q) The name of the informant or complainant must also, in some form or other, appear on the face of the conviction, (r) The place for which the justice acts must be shown, and it must be alleged that the offence was committed within the limits of his jurisdiction, or facts must be stated which give jurisdiction beyond those limits, (s) But to state the town- ship without alleging the county is sufficient, as the division of counties into townships is made' by statute, of which the courts take judicial notice, (t) The offence of which the defendant is convicted must be («) Reg. V. Shaw, 23 U. 0. Q. B. 618 ; Rdd v. McWhinnie, 27 U,C.Q.B. 289 ; Meg. v. Hyda, 16 Jar. 337 ; Re AUiaon, 10 Ex. 561 ; ex^rU Qo/d*a> 1 Pugsley & B. 47. (n) Moore r. Jarron. 9 U. C. Q. B. 233. (o) Rtig. V. Per/uns, Stev. Dig. 810. (p) Ex parte Eagles, 2 Hannay, 53 ; Reg. v. Johnaon, 8 Q. B. 102. (gr) Moore v. Jarron, 9 U. C. Q. B. 233. (r) ^f Hennenity, 8 U. C. L. J. 299. {«) Reu. V. Shaw, 23 U.C.Q.B. 618, per Draper, C J. ; Rex v. iHUuwreb. 1 Ea. 278. it) Reg. V. Shaw, 83 U. a Q. B. 616. :ii PRACnCI. 417 leretifter to Let. If the i to be good iilar statute Hi sufficient ble in their a statutory to law " ia ^hich do not as inserting p) will not itutory form, the common le party pro- ed, and tliat nust also, in >nviction. (r) lowii, and it 1 within the which give e the towu- the division be, of which 5ted must be ie, 27 U.C.Q.B. ; part* OoUAiHI' B. 102. iex V. Bdumrda, stated with certainty, so as to be pleadable in the event of a second prosecution, (u) And a conviction ** for wilfully damaging, spoiling;, and takin<;, and carrying away six bushels of apples of the said Rogers, whereby the defendant com- mitted an injury to the said goods and cha'^tels" was held not to contain a stateinent of an ofifence for which a convic- tion could take place, (r) And where an information in a conviction charged the defendant with measuring or surveying lumber intended for exportation, in violation of the Act of Assembly, 8 Vic, c. 81, and the evidence referred to three distinct acts, but it did not appear for which of them the defendant had been con- victed, it was held that the conviction was bad for uncer- tainty, {w) So where a conviction purporting to be made under Con. State. Can., c. 93, s. 28, charged that defendant, at a time and place named, wilfully and maliciously took and carried away the window sashes out of a building owned by one C, against the form of the statute, etc., without alleging damage, ipjury or spoil to any property, real or personal, or finding damage to any amount ; it was held that the conviction should clearly show whether the damage, injury or spoil complained of, is done to real or personal property, stating what property ; and in consequence of s. 29, where a private person is prosecutor, should also show the amount which the justice has ascertained to be reasonable compensation for such damage, injury oi spoil, (x) The offence created by the statute is damaging property, not taking and carrying it away, (y) A conviction in the alternative is bad, as, for instance, adjudging the defendant to be imprisoned for twenty-five I %) Reg. V. Haggard, 30 U. 0. Q. B. 152. v) Ea»ttmn v. Rdd, 6 U. G. Q. B. 611. 10) Reg. V. Stevetuf, 3 Kerr, 356. x) Reg. V. Cagwell, 20 U. C. C. P. 275. y) Ibid. '!C)Q '•"5 AA 418 THE CRIMINAL LAW OF CANADA. I , I ' (1^ -{:■.-•; h4r days, or payment of £5 and costs, (z) So a conviction by two justices, for taking lumber feloniously or unlawfully, ia bad. (a) For if the act be unlawful only, not felonious it should be shown how it is unlawful, and it should show also that the ofience comes under our statute, which gives the justices power to convict, (b) The name of the owner should also be stated, and not merely that the lumber is " the pro- perty of another." (c) The petitioner was convicted by a court martial, held at the city of Montreal on the 26th, 27th, 28th and 29th days of March, 1867, and on the 1st and 2nd days of April, 1867, on the following charge : " for disgraceful conduct, in having at Montreal, Canada East, some time between the 17th January and 1 6th March, 1867, fraudulently embezzled or misapplied about five hundred cords of wood, government property in- trusted to his chaise as an assistant commissariat store- keeper, and which, at the latter date, was found deficient," and thereupon, on the said conviction, the court forthwith sen- tenced the petitioner, among other penalties, to be imprisoned with hard labor for six hundred and seventy-two days. The court held that it did not appear there had been pre- ferred against the petitioner any specific charge, nor any conviction of him upon a specific or positive charge, but a conviction in the alternative, one of the two being no offence created by the 17th article of the Mutiny Act, without any certainty as to either of the two charges in the disjunctive, and that^this was a matter of substance, and therefore the warrant of commitment was null and void, and the petitioner, who had been committed to prison, was entitled to be set at liberty. {<£) In describing the offence in convictions, it is not sufficient to state, as the ofl'ence, that which is only the legal result of certain facts, but the facts themselves must be specified, so (z) Reg V. Wartman, 4 Allen, 73. (a) /?«./. V. Craig, 21 U. C. Q. B. 552. (b) Ibid. (c) Ex parte Holder, 6 Allen, 338. \d) Re Moore, 11 L. C. J. 94. 1 1 PRACTICE. 419 riction hy KwfuUy, IB ilonious it show also gives the ler should " the pro- ,1, held at )th days of 1, 1867, on having at ;h January misapplied operty in- idat store- icient/' and hwith sen- imprisoned ■two days. been pre- 3, nor any irge, but a no offence ithout any isjunctive, jrefore the petitioner, be set at sufficient 1 result of )ecified, so that the court may judge whether they amount in law to the offenca And the conviction must contain the judgment on which it is based, and a statement that the conviction results from proof that the defendant has sold spirituous h'quors without license is not sufficient, (e) Thus a conviction by a magistrate stated that defendant did, on, etc., at, etc., being a public highway, use blasphemous language contrary to a certain by-law passed almost in the words of the Con. Stats. U. C, c. 54, s. 282, subs. 4, but there was no statement of the particular language used ; it was held bad, as the statement in the conviction was only the legal result of certain facts, and the facts themselves were not set out. (/) The particular words used should have been stated. As a general rule, where an Act in describing the offence makes use of general terms, which embrace a variety of cir- cumstances, it is Dot enough to follow in a conviction the words of the statute ; but it is necessary to state what par- ticular fact prohibited has been committed. But in framing a conviction, it is in general sufficient to follow the words of the statute, where it gives a particular description of the offence. Where a particular Act creates the crime, it may be e lough to describe it in the word^ of the legislature, but where the legislature speaks in general terms, the conviction must state what act in particular was done by the party offending, to enable him to meet the charge, (g) A conviction which charged that the prisoner did, "unlaw- fully and maliciously, cut and wound one Mary Kelly, with intent to do her grievous bodily harm," though not sufficient to charge a felony under s. 17 of 32 & 33 Yic, c. 20, is good for a misdemeanor under s. 19, the statement of the intent being I'ejected as surplusage, (h) And the police magistrate has jurisdiction over both these offences, (i) (e) Duboird v. Boivin, 14 L. C. J. 203. (/) He Dwmelly, 20 U. C. C. P. 166. ig) Re Donnelly, 20 U. C. C. P. 167, per Hagarty, C. J. ; and see Rex v. Sparing, 1 Str.497 ; Reg. v. Scott, 4 B. &S. 368 ; Reg. v. NoU, 4 Q. B. 768 as to particular applications of these principles. (A) Re Boucher, 4 Ont. App. 191. (i) Jbid. is- ::::S 420 THE CRIMINAL LAW OF CANADA. m I { ■J! Il A conviction under R S. O., c. 142, s. 40, which orriitVed to state that the party practised " for hire, gain or hope ^of reward," was quashed, (u) A conviction under a by-law must show the by-law, (/) and also by what rounicipality it was passed, (k) that the iCouri may judge of its sufficiency ; and it is doubtful whether its date must not appear, (kk) If the statute on which the by-law is based does not oleaclj give authority to fine or imprison, a conviction imposing a penalty will be quashed. (I) And where a conviction purported to be for an offence against a by-law. but the by-law showed no such offence, it was quashed, and would not be supported as warranted ixf the general law. (m) Where it appears by the conviction that the defendant haa appeared and pleaded, and the merits have been tried, and the defendant has not app^^aled against the convictioq, tit cannot be vacated for any defect of form whatever. The construction must then be such a fair and liberal one as lis agreeable to the justice of the case, (n) It is no ground for quashing a conviction that evidence has been improperly received of a similar offence on another dojf than that charged, if there is ample evidence without it to sustain the conviction, and the prosecution made no use of liJk against the prisoners, (o) And the court will not quash a cpnvictiou on the weight or upon a conflict of evidence, but there must be reasonable evidence to support it, such as would be sufficient to go > to the jury upon a trial {p) iii) Reg. ▼. fTerad, 44 U. C. Q. B. 51. (j) Req. V. Ron, Rob. & Jos. Dig. 1979. (jb) Reif. V. Oaler, 32 U. C. Q. B. 324. {kk) Ibid. II) Ex parte Brown, 18 L. C. J. 194. (m) Re Bates, 40 U. C. Q B. 284 ; and see Reg. v, Wahington,*SV. H, •Q. B. 221. (n) 32 & 33 Vic, c. 31, s. 73 ; Reg. v. GameeU, 33 U. 0. Q. B. 3I(),^p#r WVton, J. (o) Reff. V. Mai04H$x, 3 Pugsley, 493. \p) Reg. V. Hmoartk, 33 U. C. Q. B. 537. PRACTICE. 4^ Id Quebec a conviction against a bailiff for exacting more than his legal fees was quashed, because no precise date of th« offence was given, (q) A conviction on a charge of having disturbed the public peace, by insulting a person and by committing an assault upon him, and by crying out and threatening to beat him^ wae quashed, as it did not appear to be wanauted by any law or Btatute in such case provided, (r) But t!:e authority of thid may be doubted. By the 32 &, 33 Vic, c 31, s. 25, every complaint shall be for one matter of complaint only, and not for two or more offences. Therefore, a conviction for that the defendant " did in or about the month of June, 1880, on various occasions'* commit the offence charged in the information, and a fine was inflicted " for his said offence," was Iield bad. (s) A conviction for a penalty, to be paid " forthwith within thirty days," is good, (t) Where, by a first statute, the penalty of two months* im- prisonment, " with or without hard labor, " was impcsed, and by a second statute the time was extended to six months, without mentioning hard labor, it was held that the altera- tion was equivalent to a new statute, and that a conviction ander the latter, imposing six mouths' imprisonment with bard labor, was bad. {u) The legal effect of reversing or annulling a conviction is to rendefr the sentence and .imprisonment illegal, and not as for a crime. The rule has been laid down that when judgment, pronounced upon a conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused ; restored in his credit, his capacity, his blood and his estates, with regard to which last, though they be granted away by the Crown, yet {q) Re parte NuU, 6 L. C. R. 488. (r) &e mr/e Rouleau, 17 L. C. J. 172. («) Reo- V. Clennan, 8 U. C. P. K. 418. jo B>y. V. McGowan, « Allen, 64. \u) Be parte WUHarm, 19 L. C. J. 120. i 422 THE CRIMINAL LA.W OF CANADA. the owner may enter upon the grantee with as little cere- mony as be might enter upon a disseizor, (v) Where a conviction, which had been affirmed on appeal to the sessions, was brought up by certiorari, contrary to the 32 & 33 Vic, c. 30, s. 71, as amended by the 33 Vic, c. 27, 8. 2, which enacts that in such case nu certiorari shall issue ; it was held that although the conviction was clearly bad, the court could not quash it, for the case war one in which the justice had jurisdiction, and the court were not asked to do anything to enforce the conviction, and no motion had been made to quash the certiorari, yw) It would seem that a conviction by a justice may be quashed, unless it is sealed, (x) ^ . A conviction will be quashed, if it appears that the defend- .ant was not put on his defence or allowed to cross-examine the witnesses, (y) or where the justice has no jurisdiction, (z) So, if the summons state no place where the ofiPence was committx<>,d, although the place appear on the face of the con- viction ! (a) and a conviction for two offences incurring penal- ties should specify for each offence the time, place, and penalty, (b) Although a conviction is a defence to another proceeding for the same offence, yet a conviction fra'jdulently obtained before a different magistrate, for the purpose of defeating the prosecution, cannot avail for that end. (c) , Justices have no power to award costs on conviction unless expressly given them by statute, {£) and wliere they are so empowered, they must specify the amount, (e) (v) DavU V Stewart, 29 U. C. Q. B. 4i6, per WiUon, J.; 4 Bia. Com. 393. (w) Begv. Johnson, 30 U. C. Q. B. 423. {x) ffaacke v. Adamson, 14 U. C. 0. P. 201 ; see also Mcusdonald v. Stuckey, 31 U. C. Q. B. 577 ; 32 & 33 Vic, c. 31, a. 42. (y) Ejc parte Lindsay, Rob. Dig. 73. (z) Reg. V. Taylor, 8 U. C. Q. B. 257. (o) Ek parte Leonard, 6 L. C. R. 480. (6) Ex parte Paige, 18 L. C. J. 119. (f) R<-g. V. Roberts, 5 Allen, 531. (d) Reg. v. Lennan, 44 U. C. Q. B. 456. (e) Ex parte HarU, 3 Allen, 122 ; Dickson v. Crabhe, 24 U. C. Q. B. 494 ; Moffuft V. Barnard, 24 U. C. Q. B. 498 ; and see 32 & 33 Vic, o. 31, a. 65. PRACTICE. 423 There is no such general power as to costs on a convicti jn under an Ontario Act ; and where not given by the statute itself, the conviction cannot be amended. (/) In New Bruns- wick, however, a conviction for breach of a by-law of the city of Frederioton, defective in this respect, was amended by deducting the ?^mount of costs so improperly imposed, and allowing the conviction to stand for the balance, (g) Where there is a conviction against several, and the magis- trate ha^ power to award costs, be should apportion them, and not charge the full amount against each, (h) A general power to grant costs on a conviction does not necessarily empower justices to impose th**, costs of commit- ment and conveying the prisoner to gaol ; and the forms of conviction given in the statutes are applicable only where such authority exists, (i) But a defect of this nature, it has been held in New Brunswick, may be amended, (j) The Summary Convictions Act, 32 & 33 Vic, c. 31, em- powers justices to award costs either on dismissal of the complaint or on conviction, which may be recovered in the same manner as are penalties under the Act, viz., by distress, and in default of distress by imprisonment, with or without hard labor, for any time not exceeding one month, unless the costs be sooner paid, (k) and may also award the costs of commitment and conveying the prisoner to gaol. Before a prisoner can be imprisoned under this statute, a distress must be issued and returned ; (/) and the costs of commitment, etc., must be specified in the warrant, (m) It is no objection to a warrant of distress that the costs of conveying the defendants to gaol, in the event of imprison- ment in default of distress, were specified in the conviction ; or that the costs of such conveying were mentioned in the '::;ae C;ES •Z'Zi (/) Beg. V. Lennan, aupta. <^) Bx parte Moxory, 3 Allen, 276. (A) Parsons a. t. v. Crabbe, 31 U. C. C. P. 151. (f ) Jteg. V. Harshman, Stev. Dig. 822. Q) Ibid. 821. {ft) Sees. 54 et seq. ; ex parte Boas, 2 Pngsley ft B. 337. (/) Beg. V. Blakeley, 6 U. C. P. R. 244. (m) Sec. 62. I «24 THE CRIMINAL LAW OF CANADA. warrant of distress, for it authorized a distress only for the penalty and costs of conviction, (n) A Qonviution is bad which orders imprisonment in default of immediate payment of a sum of money, when the by-law upon which it is based is in the alternative, imposing a fine or imprisonment. A conviction is also bad which gives costs, when the by-law upon which it is based gives no jurisdicti(m as to costs, (o) A judgment for too little is as bad as a judgment for too much ; and a conviction for one mouth instead of two months is therefore bad. (p) A conviction inflicting one penalty for two offencas is bad. (q) And where a statute prescribes a definite penalty for an offence, the imposition of a penalty other than the one prescribed is irregular and fatal, (r) Where no other mode is provided, a prosecution for a penalty may be in the name of the Queen, (s) Where the defendant is summarily convicted at one time of several offences, the justice has power, under 32 &; 33 Via, 0. 31, 8. 63, to award that the imprisonment, under one or more of the convictions, shall commence at the expiration of the sentence previously pronounced, (t) Under the 7 & 8 Geo. IV., c. 28, the practice of the judges was, where more than one case of felony was established against a man, and he was convicted of them at one and the same time, to make the sentence of imprisonment for the two or three offences, as the case might be, commence at the ex- piration of the sentence first awarded, (u) In respect to warrants committing prisoners on charges of offences committed^ it has been held not necessary to state (ft) Heia V. McWhinnie, 27 U. C. Q. B. 289. (o) F:. parte Marry, 14 L. C. J. 163. \p) Ex parte Slack, 7 L. C. J. 6. (q) Corignan v. Harbour Comrs. Montreal, 5 L. C. R, 479. (r ) Ex parte WUam^, 1 Pugsley & B. 274. (s) Reg. V. Armatrtmg, 6 Alien, 81. (<) Reg. V. Cuibush, L.R. 2 Q. B. 379. («) Ibid. 382, per Co^kbum, C. J. PRACTICE. 426 ly for the in default tie by-law ing a fine vives co8tB» arisdiction mt for too wo months ofienc38 18 te penalty : than the tion for a b one time I & 33 Via, ler one or piration of the judges istablished ne and the for the two %t the ex" charges of ry to state on the face of them that the justice had information on oath which could justify him in binding the defendant to ke'.p the peace, (v) A warrant of commitment must state the place where the offence was committed, otherwise it will be defective, (w) and a verbal warrant of commitment is bad. (x) It is a general rule, that, where a man is committed for any crime, either at common law, or created by Act of Parliament, for which he is punishable by indictment, then he is to be committed until discharged by due course of law. But where the committal is in pursuance of a special authority,, the terms of the commitment must be special, and must ex- actly pursue that authority, (y) It is not necessary that, in the warrant of commitment, the offence should be described with the nicety and techni- cal precision of an indictment ; but the prisoner should be charged with some legally defined and well-known offence, for which he would be subjected to criminal proceedings, either by indictment or otherwise, and that specific offence cannot be included under a general term, which compendi- ously covers a great variety of criminal offences, (z) As the term felony includes a number of crimes, ranging between treason and larceny, it is not sufficient simply to designate the offence by the name of the class of offences to which the justice may find or judge it to belong. A commitment, in the absence of any statutory provisions prescribing its forms and contents, should state the facts charged to constitute the offence with sufficient particularity to enable the court or judge, on habeas corpus^ to determine what particular crime is charged against the prisoner ; and if it fail to do this, the prisoner ought to be discharged, (a) A warrant was held bad which charged that the defendant (») Datoson v. FroHer, 7 U. C. Q. B. 391. (w) Be Bedte, 3 U. C. P. E. 270. (x) Campbell v. Fletoelling, 2 Pugaley, 403. (y) Re Anderson, U U. 0. C. P. 64. (z) Reg. V. Young, the St Allan's Raid, 3, per Badgley, J. (a) Ihid. 3, per Badgley, J. 426 THE CRIMINAL LAW OF CANADA. Is Hi: ^1 did embezzle in the county of Grey, while the magistrate was acting in and for the county of Oxford, and which did not show that tho defendant had the embezzled property with him in the county of Oxford according to 32 & 33 Vic., c. 21, s. 121, or that he was, or resided, or was suspected of being or residing within the jurisdiction of such magistrate, according to 32 & 33 Vic, c. 30, s. 1. (b) A committrent wi h lard labor, on a conviction, warrant- ing only impi M nt . iw without hard labor, is bad. (c) Defects in sv > offence in a warrant of commitment are not fatal, foi lere i "^t the same necessity for adherence to technical terms as in an indictment; and upon the return to a habeas corpus, it is the evidence, which is the foundation of the warrant, the court looks at, when the evidence is before them on a certiorari^ rather than the warrant itself; and when a legal cause for imprisonment appears on the evidence, the ends of justice are not allowed to be defeated by a want of proper form in the warrant, but the court will rather see that the error is correel«d and amend the warrant (£?) Justices should not omit any part of a prescribed form of commitment, lest the part omitted be material, and render the warrant void, (dd) When a justice follows the words used by the legislature, the court will hold that he intended them in the same sense; but if he uses other words, he ought to be more precise, (e) It is, however, the duty of the court to take care that, in all cases brought before them, justices shall have the full pro- tection to which the law entitles them. (/) A warrant of commitment under 31 Vic, c 16, signed by one qualified justice of the peace, and by an alderman who has not taken the necessary oath, is invalid to uphold the (6) McGregor v. Scarlett, 7 U. C. P. R. 20. (c) Beg. V. Yeomam. 6 U. C. P. R. 66. (d) Re Anderson, 20 U. C. Q. B. 162 ; Bex r. Marks, 3 East, 57 ; Reg. r. Murray, 2 L. C. L. J. 87. {dd) Be Beebe, 3 U. 0. P. R. 373. («) Be Anderson, M U. C. C. P. 63. (/) Croukhite v. iiommerviUe, 3 U. C. Q. B. 131, per Robinsmt, 0. J. e magislrate id which did led property )2 & 33 Vic, suspected of h magistrate, tion, warrant- id. (c) commitment for adherence on the return le foundation ence is before it itself; and t the evidence, ted by a want rill rather see mt (d) ;ribed form of md render the le legislature, e same sense; re precise, (e) re that, in all the full pro- 16, signed by Iderman who uphold the Saat, 57 ; Seg. ▼• binaon, C. J. \ PRACnCB. 427 detention of a prisoner confined under it, though it might be a justification to a person acting in virtue of it, if an action were brought against him. (g) The 32 & 33 Vic, c 31, s. 86, provides that, after a case has been heard and determined, one justice may issue all warrants of distress or commitment thereon. By & 87, it shall not be necessary that the justice who acts before or after the hearing be the justice, or one of the justices, by whom the case is or was heard and determined. It is therefore not necessary that a warrant of distress or commit- ment should be signed by two justices, though two are required to convict ; nor is it necessary that the justice wui commits should also have heard and determined. (7t) The issuing of a warrant of commitment, under 32 & >i> Vic, c 31, s. 75, is discretionary and not compulsory upoa i justice of the peace The court will, therefore, upon *his ground, as well as upon the ground that the person sougl > be committed has not been made a party to the application, refuse a mandamtis to compel the issue of the warrant, (i) The Con. Stats. U. C, c 126, s. 6, now embodied in R. S. O. c. 73, s. 6, was passed expressly for the protection of justices of the peace ; and when it is desired to compel a justice to issue a warrant of commitment against a person, proceedings should not be taken by mandamvs, but a rule should be issued, under this clause, and the person to be affected should be made a party to the rule, (j} Where the defendant, a justice of the peace, issued his warrant, under Con. Stats. Can., c. 103, s. 67, to commit the plaintiff for thirty days, for non-payment of the costs of an appeal to the Quarter Sessions, unless such sun: and all costs of the distress and commitment, and conveying the party to gaol, should b(i sooner paid, but omitted to state in the war- rant the amount of the costs of distress, commitment and ig) Reg. v. Boyle, 4U. C. P. R. 256. (h) Be Crow, 1 U. C. L. J. N. S. 302. (t) JRe Delaney v. Aiacnab, 21 (J. C. C. P. 563. ij) He Delaney v. Macnab, 21 U. C. C. P. 563. h :i 428 THE CRIMINAL LAW OF CANADA. f s conveyance to gaol*; it was held, that it was the duty of the justice to ascertain and state the amount of these costs ; yet the omission to do so, though it mi^ht have occasioned the plaintiffs discharge, did not show either a want or excess o** jurisdiction. The warrant, however, was irregular in omitting these particulars, and there was consequently an irregular ex- ercise of jurisdiction, (k) Where an Act, passed by the Provincial Legislature, was subsequently disallowed by Her Majesty, but, while it w^is in force, the plaintiff had been convicted under it by the defendants, as justices of the peace, and directed to pay a fine, to be levied according to the Act, and, the fine not having been paid, a warrant was properly issued by the defendants for his arrest and imprisonment, which, however, was not e^tecuted by the officer to whom it was directed until after the disallowance of the Act was published in the Gazette, and from its publication only the Act ceased : it was held, that the defendants were justified in making the conviction and issuing the warrant, and could not be held liable by reason of the warrant being executed after the operation of the Act had been determined. (1) The v/arrant of commitment should show before whom the conviction was had. Tt lies on the party alleging the suffi- ciency of the conviction to sustain the commitment, to produce the conviction, (m) Where a prisoner is in custody of a gaoler, under several warrants, the magistrate cannot withdraw them, or any of them, from the gaoler's hands, because they are for his pro- tection ; but the gaoler ought to know which is the operative warrant, otherwise he may not know whether he is to dis- charge the prisoner from custody at the end of the time specified in one or in the other, (n) {k) Dickaon v. Crabb, 24 U, C. Q. B. 494. (/) Clapp V. Lawrasmt, 6 U. C. Q. B. O. S. 319 ; see 31 Vic, o. 1, a. 1, thirty-tifthly, sixthly and seventhly. (to) He Craw, 1 U. C. L. J. N. 8. 302 ; 1 L. C. G. 189. (n) Be McKinnoH, 2 U. C. L. J. N. S. 329. le duty of the lese costs ; yet jccasioned the at or excesa o'' larin omitting' n irregular ex- sgislature, waa b, while it wfis [ider it by tl»e d to pay a fine, ne not having the defendants ever, was not «d until after in the Gazette, [ : it was held, the conviction held liable by le operation of ore whom the sing the suflfi- tmmitment, to under several em, or any of xe for his pro- 3 the operative ir he is to dia- of the time PRACTICE. 429 a Vic, c. 1, 8. 7, A warrant ought to set forth the day and year wherein it was made, aud it is safe, but perhaps not necessary, in the body of the warrant, to show the place where it is made, yet it seemB necessary to set forth the county in the margin, at least, if it be not set forth in the body. In strictnesti, it is not indispensable that the authority of the magistrate should be shown on tha face of the warrant, fur the omission may be shown by averment and parol evidence. A commitment must be in writing, under the hand and seal of the person by whom it is made, express^ing his office or authority, and the time and place at which it is made, and must be directed to the gaoler or keeper of the prison, (o) A final commitment, for want of sureties to keep the peace, must be in writing. Where, however, a person having been brought up before a justice on a charge of threatened assault, was ordered by the justice to find sureties to keep the peace, and he offered bail, who were rejected as not being householders, and, being thus prevented from immediately obtaining bail, remained in custody of a police constable for three hours, during which time the justice frequently visited him to ascertain if he had found bail, and at night he was taken to the gaol, remaining there until the following morning, when he was discharged on bail being procured ; it was held that this was not a final commitment for want of sureties, and that, consequently, it did not require a written warrant, for the detention was no longer than might be rea- sonably necessary for ascertaining whether the party could find some one who would become his surety, (p) The time allowed for this purpose must always depend on the circum- stances of each case, (q) A commitment in default of sureties to keep the peace should show the date on which the words were alleged to (o) Reg. V. Beno, 4 U. C. P. R. 292, per Drttper, C. J. ip) Lynden v. King, 6 U. C Q. B. O. S. 566. {q) Ibid. 430 THK CRIMINAL LAW OP CANADA. I s t i. * ^ ^ have been spoken, and contain a statement to the effect that complainant is apprehensive of bodily fear, (r) When articles of the peace have been exhibited in open court against a person, the court will direct that he do stand committed until security to keep the peace be given. («) Where a prisoner is committed to bj held until discharged by due course of law, the warrant continues in force until the prisoner is discharged or sent to the penitentiary. It is sufficient, therefore, if at the circuit the judge remands ver- bally a prisoner into the custody of the proper officer in court. (<) Where, in the course of a civil action, the judge is of opinion that forgery or perjury has been committed, he will, as a matter of duty, order that the defendant be prosecuted for these crimes, (u) The 41 Vic, c. 19, makes provision for the discharge in certain cases of persons who have been confined for the period of two weeks in default of sureties for the peace. Sometimes, in cases of indictable offences, an inquisition is taken by a coroner, and the prisoner is committed for trial on the verdict of the coroner's jury. The finding of a coroner's inquest is equivalent to the finding of a grand jury, and a defendant may be prosecuted for murder or man- slaughter upon an inquisition, which is the record of the finding of a juiy sworn to inquire into the death of the deceased, mt/pw visum, corporis. Such an inquisition amounts to an indictment, {v) And where, on an indictment for manslaughter, the grand jury had found " no bill," it was held that the Crown had the right to have the prisoner arraigned and tried on the finding of the coroner's jury, (w) A coroner's duty is judicial, and he can only take an (r) Re Rrisonment of le beginning prisoned, and same hour of rst opening of xpired. {i) f the warrant its each for a of imprison- ts shall com- in the warrant Ison, J. J, immediately preceding, is valid. An adjudication so stated in the margin properly forms a part of the warrant, and, even if the portions in the margin of the second and third warrants could not be read as parts of these warrants, the periods of imprisonment w^ould nevertheless be quite sufficient, the only difference being that all the warrants would be running at the same time, instead of counting consecutively. (J) It is not necessary, before a defendant convicted of assault is imprisoned, that he should be served with a copy of the minute of conviction. The 32 & 33 Vic, c. 31, which might require this to be done before a warrant of commitment could issue, applies only to orders of justices, not to convic- tions. A party convicted of an offence is bound to take notice of the terms of the conviction at his peril, (k) A witness who, on the usual application, has been ordered to withdraw from the court room, is guilty of contempt if, after his examination, he communicates facts disclosed in evidence at the trial to another witness not examined at the time of the disclosure. (/) In this case the rule for attach- ment was discharged, the defendant swearing, in answer, that he did not enter the court room during the trial till called as ]& witness; that he communicated the fact without any intention of influencing the evidence to be given by the witness, or of committing a contempt of court, and in utter ignorance of there being any impropriety in so doing. The affidavit further stated that the deponent was wholly uncon- scious of the possibility of hia conduct being considered a contempt. If a witness absent himself a bench warrant may be issued, which, if tested in open session and signed by the clerk of the peace, is not invalid for want of a seal ; (m) and the witness may be committed for contempt. But an attach- U) Re Grow, 1 U. C. L. J. N. S. 302 ; 1 L. C. G. 189 ; see 32 & 33 Vic, c. 31, B. 63. (*) Beg. V. O'Leary, 3 Pugaley, 264. il) Reg. V. IfcCorkUl, 8 L. C. J. 282. (to) Fraaer v. Dickson, 5 U. C. Q. B. 231. BB liiSS 434 THE CRIMINAL LAW OF CANADA. S S C c '■':: I ■ ,i ment will not be granted against a witness for not obeying a subpoena unless there is a clear case of contempt ; but if hia absence is wilful, the court will not, in general, look to the materiality of his testimony, (n) A subpoena to attend on the 10th September, and so from day to day, was served on the 11th September, and the wit- ness attended for several days, and knew that the case was not tried ; he was held guilty of contempt in subsequently absenting himself. Where a witness accepted the conduct money, and went with the person who served him with the subpoena, and remained at the court several days, an attach* ment was granted against him for subsequently absenting himself, though he and another person swore, in contradiction to tlie party who served the subpoena, tliat the original waa not shown to h!ni, and he also swore that he attended the court as u, juror, and left in consequence of ill health with the in- tention of returning, his absence appearing to be wilfuL (o} Where a party is served with a subpoena to attend as a witness, and accepts a sum of money which is tendered t» hiA) for his expenses without objecting to the amount, but refuses to attend on account of his own business, he is liable to an attachment for the non-attendance, even though the sum tendered be less than he is entitled to receive, (p) But if he had objected to the sum when tendered, it would have been an answer to the application, (q) It is not necessary to show that the witness was called on his subpoena, if it is shown by other satisfactory evidence that he did not attend, (r) An attempt by a third person to prevent a suitor from laying his case before the court, by threats of bringing him into case was bsequently le conduct oa with the au attach* absenting (Utradiction •riginal was Bd the court with the in- wilful. (o> attend as a tendered to ,mount, but he is liable though the e. (p) But would have ^3 called on ry evidence Isuitor from ringing him Irt, and sub- A frivolous opposition, made to retard a judicial sale, is a contempt of court, (t) An advocate who publishes in a public newspaper letters containing libellous, insulting and contemptuous statements,^ and language concerning one of the justices of the court, in reference to the conduct of said justice while acting in his judicial capacity, on an application made to him in cham- bers for a writ of habeas corpus, is guilty of contempt, {u) In this case it was held in the Privy Council, reversing the judgment of the Court of Queen's Bench for Quebec (Crown side), that a judge of the Court of Queen's Bench, in Quebec, whilst sitting alone, in the exercise of the criminal jurisdiction conferred upon him by Con. Stats. L. C, c. 77, s. 72, has no power to pronounce such advocate in contempt for conduct of the above description, or to impose a fine ; and that the proceedings for such contempt could only be legally and properly taken in the full Court of Queen's Bench, (v) An order was made for the delivery of infant children by the father to the mother. On an application to commit the father for a contempt in not obeying this order, it appeared that, in his absence from home, the children had been r^ moved from his house and taken to the United States by his son, aged fifteen. They denied collusion, the son saying that he acted without his father's knowledge or consent, but the father took no steps to bring the children back, and did not offer to do so if time were given him. To a demand made for the children, the father replied that they were not in his custody ; but it was held that he was not excused from obey- ing the order, and was in contempt, (w) AflBdavits disingenuously drawn up, with a view of pre- senting inferences, and giving color to the transactions to which they refer inconsistent with the whole truth, even (0 Thomas v. Pepin, 5 L. C. J. 76. («) Beg. V. Rammy, 11 L. C. J. 152 ; S. C. L. B. 3 P. C. Add. 427. (V) Ihid. (10) Reg. V. Allen, 6 U. C. P. R. 453. K.| 436 THE CBIMINAL LAW OF CANADA. S C \ 'i aibiO- s\i 'Tue afj far .is they go, aliould be read with suspicicn and car.y but Uttle weight, {x) A contempt of court being a criminal offence, no person ^mn be punished for such unless the specific offence charged against him be distinctly stated, and an opportunity given him of answenng. (y) To contemptb of court committed by an individual in his persoial character only, there has been a'^tache-l by lav/, and by long practice, a definite kind of punishment by fine and imprisonment, (z) An order suspending an attorney, and barrister of the Supreme Court of Nova Scotia, from practising in that court, for having addressed a letter to the Chief Justice reflecting on the judges and the administration of justice generally in the court, was discharged by the judicial committee of the Privy Council, as it substituted a penalty and mode of punishment which was not the appropriate and fitting punishment for the offence. The letter, though a contempt of court and punish- able by fine and imprisonment, having been written by a practitioner, in his individual and private capacity as a suitor, in respect of a supposed grievance as a suitor, of an injury done to him as such suitor, and having no connection what- ever with his professional character, or f'^v thing done by him professionally either as an r*torney - h: rister, it was not competent for the Supreme Court to go further than award to the offence the customary punishment for contempt of court, or to inflict a professional punishment of indefinite suspension for an act not done professionally, and which, per se, did not render the party committing it unfit to remain a practitioner of the court, (a) The power to punish for contempt is inherent in all courts, Ji'id is a necessary condition of their existence. In Canada, this )wer U not confined to contempt in the face of the lie) Ren. AUen, 5 U. C. P. P. 453. iviB'CH.ii'-d, L R. 2 P. CV App. 106. (J ^> W: 'uie, L 11. 1 P. C. App. 2»5, per Lord Weitbury. (a) mi : a3; I Olrlright, 654. PRACTICE. 437 iT)icicn person liarged ■ given in his w, and je and of the b court, ting ozi in the J Privy sbrnent . for the juuish- u by a , suitor, i:)jnry 1 what- by him vsi9 not I award mpt of detiuite ich, per main a courts, lanada, of the court, or to pending cases, or to resistance to process ; bui. it extends to the punishmenl- of all contemptuous publications, calumniating or misrepresenting its judicial opinions as a court, or the opinion or order of any judge of the court, pro- nounced or made either in term or in vacation, whether in chambers, or at his own residence, or in any other place,, where, within the jurisdiction of the court, he may be called upo" to perform any judicial duty, and to all publications tending to cast ridicule or odium upon the court or any of its judges, in reference to their judicial acts, or to impair the respect and confidence of the public in the purity and integ- rity of the tribunal or any of its members. (6) An attac^.ment against a sheriff for not obeying a rule to bring in the body, cannot be grai^ted in vacation by a single judge at chambers, (c) Wliere an attorney of this court, practising in an inferior court, has charged, and the judge has allowed, costs clearly not sanctioned by law, this court will punish by fine and attachment, {d) A rule for attachment for a contempt of court, committed during term, can be moved for on the last day of such term,, and it is no objection that it is made returnable next term. The rule will be discharged if headed " In re" etc., when there was no such matter depending in court, (e) Any court of record has power to fine and imprison for contempts committed in the face of the court (/) It dem& the commitment may be made sedente curia, by oral co..i.mand without any warrant mad., at the time. This proceeds on the ground that there is, in contemplation of law, a record of such commitment, which may be drawn up when neces- sary. (g) IV. . J?, ■e: —I (b) Beg. v. Ramsay, 11 L. G. J. 158. (c) /?ft« V. ^Aeri/fo/iViosraro, Draper, 343. \d) Rex V. Whitefieatl, Taylor, 470. («) Re Roaa, 2 Rusaell & Chesl^y, 596. (/) Armstrong v. MeCaffr -7, 1 Haiinay, 617. (^) Ovtns V. Taylor, 19 U. 0. C. P. 53, per Hagarty, J. 4:^8 THE CRIMINAL LAW OF CANADA. A Piovincial Legislature has not the power to order the arrest of any one for contempt. ( h ) The proceedings on a rule for contempt do not constitute a criminal case, so as to allow a writ of error with respect to such rule, (i) Justices of the peace, acting judicially in a proceeding in which they have power to fine and imprison, are judges of record, and have power to commit to prison orally, without warrant, for contempt, committed in the face of the court (/) Thus, if the justice be called a "rascal, and a dirty mean dog," a " damned lousy scoundrel," a " confounded dog," etc., the justice has a right to imprison as often aa the offence is committed. But the commitment must be for a specified period. (/^') And where a prisoner was convicted three several times on the same day for using opprobrious epithets to a justice, while in the execution of his office, and detained in prison under three several warrants, all dated the same day, the periods of imprisonment in the two last commencing from the expiration of the one preceding it, ^ ut the first to be ■computed "from tlia time of his arrival and delivery (by the bailiff) into your (the gaoler's) custody thenceforward," it was held that although the justice had a right to convict and sentence for continuing periods, and to make the period of imprisonment on the second and third adjudications begin at the termination of the first imprisonment, yet, as the first period of imprisonment was depending on the will of the officer who was to convey to gaol, it was therefore uncertain, and the other leriods of imprisonment depending on the same conting^Lij w«..t likewise uncertain, and the prisoner was entitled to hiis discharge. (I) A justice of the poace, while sitting in discharge of his (A) Ez parte Gote, 6 Rtove Leg. 682. (t) Ranway v. Heg., il '. 0. J. 168 \j) Anmtro f v. McCac ey. 1 Hanuiy, 517 ; Jone* v. QloMjord, Rob. A Jos. Dig. 1974. {k) Jonet> . Glasahrd, tupra : Dawson v. Fraser, 7 U. C. Q. B. 391. m Ibid. PRACTICE. 439 duty, has power, without any formal proceeding, to order at once into custody, and cause the removal of any party who, by his indecent behavior or insulting language, is obstruct- ing the administration of justice, or may commit him until he finds sureties to keep the peace. But he has no power, either at the time of the misconduct, much less on the next day, to make out a warrant to a constable, and to commit the offending party to gaol for any certain time, by way of punish- ment, without adjudging him formally, after a summons to appear for hearing to such punishment on account of his contempt, and a hearing of his defence, and making a minute of such sentence, (m) It has been doubted whether a justice of the peace, execut- ing his duty in his own house, and not presiding in any court, «an legally punish for a contempt committed there, (n) A commitment by a justice for a contempt, if there be no recorded conviction, should show that the party was convicted of the contempt And stating that he is charged with it is insutlicient ; at any rate, the evidence should in some way show the fact of conviction, and the manner of it. (o) A warrant to a constable to commit for o intempt, contain- ing a direction to detain the party till he shall pay the costs of his apprehension and conveyance to gaol, is defective. For the statute 3 James I., c. 10, only authorizes such ex- penses to be levied of the offender's goods ; and if he could be imprisoned till he paid them, it would be necessary that the amount of such expenses should be stated, or the gaoler would not know v, hen he might discharge him. Where a power resides in any court or judgo to commit for contempt, it is the peculiar privilege of such court or judge to determine upon the facts, and it does not properly belong to any higher tribunal to examine into the truth of the case, (p) Therefore the court, in adjudicating on a case of contempt, (m) Be Clarke, 7 U C. Q. B. 223. (ft) MeKemie v. Newbum, 6 U. C. Q. B. O. S. 486. (0) Ibid. ip) Be Clarke, 7 U. C. Q B. 223. . !i BR ■I mmt -I 440 THE CRIMINAL LAW OF CANADA. I will not enter into the truth of the alleged facts constituting the contempt The District Magistrate's Court in the Province of Quebec is not a court of record, (q) The 32 & 33 Vic, c. 31, s. 65 et seq., as amended by the 33 Vic, c 27, 40 Vic, c. 27, and 42 Vic. c 44. provides for appeals in cases of summary conviction. The Con. Stats. U. C, c 114, giving an appeal to the sessions, on conviction of a person in any matter cognizable by a justice of the peace, not being a crime, was repealed jy the 38 Vic, c. 4, s. 12, and by the statute R. S. O., c 74, appeals in matters within the jurisdiction of the Ontario Legis- lature are made to conform to the proceedings provided by the 32 & 33 Vic, c. 31, before mentioned. The right of appeal under these statutes is given only to the defendant on conviction, not to the complainant on ac- quittal, (r) An appeal is subject to the following conditions : If the conviction or order be made more than twelve days before the sittings of the court to which the appeal is given, such appeal shall be made to the then next sittings of such court ; but if the conviction or order be made within twelve days of the sitings of such court, then to the second sittings next after such conviction or order. The person aggrieved shall give to the prosecutor or complainant, or to the convicting justice, or one of the convicting justices for him, a notice in writing of such app?al, within four days after such conviction or order, and the porson appealing shall either remain in custody or give security, or in certain cases deposit money as security. A notice of appeal for the next ensuing sittings, when the sittings are within twelve days of the conviction, is inoper- ative, and proper notice may afterwards be given, but of course within the four days; and this though on the first notice the {q) Provoit V. Mcuaon, 5 JReoue Leg, 657. {r) Be Murphy, 8 U. C. P. R. 420. PKACTICE. 441 instituting of Quebec ied by the povides for sal to the cognizable s repealed 3. O., 0.74, :ario Legia- ided by the 'en only to tant on ac- )n8 : If the [ays before jiven, such luch court ; velve days ttings next teved shall convicting a notice in conviction remain in money as , when the is inoper- it of course notice the defendant have obtained an order for costs from the session, under sec. 69 of the principal Act. (s) The notice need not be signed by the appellant, (t) The words within four days after conviction, exclude the day of conviction, (u) An appeal lies to the sessions from asuinmary conviction, under the Inland Revenue Act, 31 Vic, c. 8, s. 130, for pos- sessing distilling apparatus without having made a return thereof, such an offence being a crime, (v) So an appeal lies from a conviction for penalties under the Dominion Fisheries Act, 1868, c. 60. (w) Under "the Indian Act, 1876," 39 Vic, c 13, s. 84 (D.), an appeal must be brought before the appellate judge within thirty days from the conviction. Giving notice of appeal to the next session, and entering a recognizance within that time, is not sufficient, (x) The person appealing from a summary conviction by a justice, must show a compliance with all the conditions imposed upon him by the statute under which he appeals. He must not only give notice within the proper time, but he must also either remain in custody or enter into the proper recognizance, (y) Where, in the recognizance, the appellant, instead of being bound to appear and try the appeal, etc., as required by the Act, was bound to appear at the sessions to answer any charge that might be made against him, the appeal was dismissed. An application to take the appellant's recognizance in court was refused, on the ground that, although the recognizance need not be entered into within four days, it must be entered into and filed before the sittings of the Court of Quarter Sessions, to which the appeal is made, (z) It was held, under the former statutes, that the form of {a) Reg. v. Caswell, 33 U. C. Q. B. 303. {t) Reg. V. Nkol, 40 U. C. Q. B. 76. («) Scott V. Dickson, 1 U. G. P. R. 366. (o) Re Lucas and McQlashan, 29 U. C. Q. B. 81. (to) Reg. V. Todd, 1 Russell & Chesley, 62. (x) Re Hunter, 7 U. C. P. R. 86. (y) Kent v. Olds, 7 U. C. L. J. 21 ; Re Meyer, 23 U. C. Q. B. 611. (z) KerU v. OldSt supra. 442 THE CRIMINAL LAW OF CANADA. recognizance to try an appeal, givea in the schedule to the Con. Stats. Can., c. 103, p. 1130, was sufficient, though the condition dififered in form from that provided for by c. 99, 8. 117. (a) Before an appeal can be entertained, it is clearly incum- bent on the appellant to show his right to appeal, by proving compliance with the 33 Vic, c. 27, s. 1, subs. 3, by having remained in custody, or entered into a recognizance. This is a substantial, not a mere technical, objection to the appeal, and is not waived by the respondent asking for a postponement, after the appellant has proved his notice of appeal on the first day of the court (b) But when exception has been taken to the jurisdiction of the court, and the party objecting has afterwards proceeded to trial on the merits, he should be held to have waived proof of the preliminary conditions to give jurisdiction, where it appears that they have in fact been complied with, (c) The production of the recognizance by the clerk of the <}ourt, and proof of service of the notice of appeal, are suffi- cient to found the jurisdiction of the court (d) The enrolment of the recognizance is unnecessary, and the filing the recognizance by the appellant, instead of its being transmitted to the clerk of the peace by the justice who took it, is not fatal. So the condition reading to appeal " to the General Quarter or General Sessions," and not " to the Court of General Sessions of the Peace," does not render it invalid. («) A notice of appeal following the form given in the Coa Stats. Can., c. 103, p. 1130, and stating " that the formal con- viction drawn up and returned to the sessions is not sufficient to support the conviction, etc.," was held sufficiently particular to allow all objections being raised, which were apparent on the face of the conviction or order, (f) (a) Re WiUon, 23 U. C. Q. B. 301. (6) He Meyers, 23 U. C. Q. B. 611. (c) Beg. V. Eaaery, Rob. & Jos. Dig. p. {d) Ibiil. (e) Ibid. if) Helpa and Eno, 9 U. C. L. J. 302. 3485. PKAUTICB. 443 lule to the :.hough the or by c. 99, irly incum- by proving , by having I. This is a appeal, and itponeuient, peal on the isdiction of roceeded to aived proof n, where it h.(c) lerk of the bl, are suffi- essary, and itead of its he justice g to appeal nd not " to not render n the Coa 'ormal con> )t sufficient f particular pparent on After notice of appeal has been given, and the time for V caring the appeal arrived, no amendment can be made to the conviction. (^) The appeal should not be drawn up until the four days have elapsed. Qi) it appears to be the established practice for the sessions to hear appeals on the first day, but there is no law compel- ling them to do so. (i) One D. M. having been on the 27th of August, 1862, con- victed before justices of the peace, " for allowing card-playing at his inn, and other disorderly conduct during this year," was fined $20 and costs. On judgment being pronounced, he remarked that he would pay the fine, etc., but he would " see further about it." On the 30th of August notice of appeal was given to the prosecutor and to one of the convicting justices, and on the 11th of September the appeal came on at the Quarter Sessions, when that court decided that the right to appeal was waived and lost by reason of the plaintiff having paid the fine and costs. The court abovo, however, under these facts held that there was no waiver of the right to ap- peal; that the statement of the defendant was capable of meaning that he meant to use any remedy that was by lavj^ open to him, whether by appeal or otherwise, and as the Act respecting appeals does not require notice of appeal to the convicting justice, nor provide for a stay of the levy, it might be reasonably inferred that he paid the fine and costs to pre- vent the distress and sale which might have taken place, although he had at the moment of conviction given the most formal notice of appeal, {j) • The court should rather lean to the hearing of appeals than to dismissing them on technical grounds, {h) An appeal from a conviction for selling liquor without 'iHc: as = j(c; (g) Reg. v. Smith, 35 U. C. Q. B. 518. , (A) Seg. V. HimM. 44 U. G Q. B. 61. (*) Re Meyers, 23 U. C. Q. B. 614, per Draper, C J. \j ) Re Justices of York, 13 U. 0. C. P. 159. (4) Ibid. 162, per Draper, C. J.; Rex v. Justices of Norfolk, 5 B. & A. 9J«i IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I ■^121 125 2.0 us UO L^ mu 1 1.6 I Photogrephic Sciences Coiporalion 23 WIST MAIN STREIT WltSTM,N.Y. MSM (716) •72-4S03 & /, I/.. ^ sj V \\ 'U. ^^ ^\. '^rvV ^ i^. ^ ^ -i 444 THE CRIMINAI LAW OF CANADA. I I V Is I license, contrary to the R. S. O., c. 181, must be tried by the judge of the county court in chambers, without a jury. (/) And the judge may quash the conviction without hearing it de novOi if bad on its face, (m) It would appear that, under the present statutes, which it has been decided are within the competence of the Dominion Parliament to enact, (n) it is discretionary with the court to grant or refuse a jury at the request of either appellant or respondent ; for the 36 Vic, c. 58, s. 2, has been held to bf explanatory of sec. 66 of the 32 & 33 Vic, c. 31, in all cases, (oi But, if a jury be not so demanded, it seems it is imperative on the court to try the appeal, and they shall be the absolute judges, as well of the fact as of the law, in respect to tlie conviction or decision appealed from. (^) The Court of Quarter Sessions, by the 33 Vic., c. 27, s. 1. subs. 3, and R S. O., c. 74, s. 4, has power, if necessary, from time to time, by order endorsed on the conviction or order, to adjourn the heaving of the appeal from one sittings to another or others of the said court. An adjournment of the sessions is a continuance of the same sessio:is or sittings, (q) An appeal, dismissed for want of prosecution, may, at the instance of the appellant, and on his satisfactorily accounting for his non-appearance, be reinstated, (r) The 32 & 33 Vic, c. 31, s. 66, provided that no witnesses should be examined who were not examined before the jus- tice on the hearing of the case, and this whether the appeal was tried by the court or a jury. But now the 43 Vic, c 44, 8. 10, and the R S. 0., c 74, s. 4, provide that either of the parties to the appeal may call witnesses and adduce evidence, in addition to the witnesses called and evidence adduced at the original hearing, (s) {I) See sec. 71 ; Re Brown, 8 C. L. J. N. S. 81. (m) H it) Re Justices (^f York, 13 U. C. C. V. 169. (ti) R'-g. V. AUen, 5 U. C. P. R. 463-8. (v) Re Meyers, 23 U. C. Q. B. 611. (lo) Cochran v. Lincoln, 3 Kubs. & Ches. 480; Rose v. Burke, 1 Ruas. h, Geld. 94 ; Coolan v. McLean, 3 Rubs. & Chea. 479 ; 32 A 33 Vic, c. 31, 1. 71. (at) Reg. ▼. t^muxn, 6 U. C. P. R. 67. I ^:i 446 THE CRIMINAL LAW OF CANADA. ! Isi There was nothing in the Con. Stats. U. C, c. 114, to authorize an order that a defendant, who had appealed and been acquitted by a jury upon his trial, should pay the costs of the appeal and trial, or any portion of them. Where the Court of Quarter Sessions ordered a party to pay certain costs of an appeal, and they not being paid, an indictment was preferred for non-payment thereof, and on this indictment the defendant was found guilty ; it was held that the indictment could not be supported, either at common law or under the statute, (y) The court will not give costs, on adjourning an appeal, an- lesB the objection is made at the time of the adjournment, (s) Urder the English Act, 20 & 21 Vic, c. 43, the court will not entertain an application for costs of an appeal against & decision of a justice, in the ter.ii after that in which the judg- ment is pronounced, (a) It seems doubtful whether, under the 32 & 33 Vic, c. 31, 8. 74, an order of sessions, simply ordering costs of an appeal to be paid, without directing them to be paid to the clerk of the peace, as lequired by the Act, is regular, (b) The sessions have, it seems, no power to order a person acquitted on appeal to pay any part of the costs of such appeal, (e) Where a rule for amendment is opposed, the costs m\ist be paid by the successful party, (d) Where one of the justices, before whom a person was con- victed for breach of the license laws, stated that all the papers necessary to perfecting the appeal were filed, except the bond telling the party it was all right, the court allowed the appeal, though no affidavit had been filed, (e) (y) Jteg. v. Orr, 12 U. C. Q. B. 57. (?) Be McCumber, 36 U. C. Q. B. 616. (a) Budmberg and Boberts, L. R. 2 C. P. 292. {b) Be Delaney v. Macnab, 21 U. C. C. P., 668. (c) Beg. V. Orr, 12 U. C. Q. B. 57. \d) McKay v. McKay, 2 Thonuon, 76. (<) md. W\?. PRACTICE. 44r e costs m\ist be In Nova Scotia, under the Rev. Stat., c. 95, an appeal under the River Fisheries Act must he made to the sessions. (/) The 32 & 33 Vic, c. 30, s. 41, empowers the justice before whom the prisoner is charged with an indictable offence ta remand, from time to time, for such period as may be reason- able, not exceeding eight clear days at any one time. Sec. 42' authorizes a verbal remand where the time does not exceed three clear days. Where the remand is in open court to the proper officer there present, no written order or commitment is necessary, (g) A remand for an unreasonable time would be void, (h) It seems doubtful whether a judge, sitting in chambers, has power, on an application of a prisoner for his discharge on a bad warrant, to remand him, (i) and in aid of the prosecution to order a certiorari to bring up the depositions ; or whether the court or judge has power, upon reading such depositions, to amend a bad warrant of a corotier or issue a new one, for the purpose of detaining a prisoner in custody, (j) On discharging a jury charged with a prisoner, because they are unable to agree, the court has power, and it is the duty of the judge, to remand the prisoner to gaol until delivered in due course of law, or to the next sessions of the coui-t, fixing or n( >t fixing the day, as the case may be. (k) When prisoners are remanded to prison, after the disagree- ment of the jury on the trial, they are detained, not upon the indictment which is only the accusation and charge found for their trial, but upon the original commitment for the offence originally charged. (/) Tt would seem that the Con. Stats. U. C, c. 112, as to the reservation of points of law in criminal cases, only confers on the .sessions authority to state a case for the opinion of the (/) Oough V. Morton, 2 Thomson, 10. Q) Beg. V. MtUhoUand, 4 Pugsley ft B. 478. (A) Connors v. Darling, 23 U. C. Q. B. 547-61, per HagaHy, J. (t) He Cartniehael, 10 U. C. L. J. 325. U) Ibid. (k) Ex parte Blossom, 10 L. C. J. 32, per Monk, J. (l) Ibid. 41, per Badgley, J. 5! t::j •mtl n 448 THE CRIMINAL LAW OF CANADA. I 19 i s m w IL'. Mf\h ,1) TT superior court, where the original hearing and conviction is at the sessio; 8, and that, when a summary conviction is ap- pealed to the sessions, there i& no power to reserve a case on such appeal, (m) The court has authority, in virtue of its inherent jurisdic- tion at common law, when a prisoner charged with felony is brought up on a haheaa corpus, to look not merely at the com- mitment, but also at the depositions ; and though the former be informal, yet if the latter show that a felony has been committed, and that there is a reasonable ground of charge against the prisoner, he will be remanded and not bailed, with a view to amending the warrant (n) It would seem that, where proceedings are taken by habecu corpus and certiorari^ under the 29 & 30 Vic, c. 45, the evi- dence may also be looked at on the return to the certiorari (p) This statute had in view and recognizes the right of every man, committed on a criminal charge, to have the opinion of a judge of the Superior Court on the cause of his commit- ment by an inferior jurisdiction. The judges of the Superior Court are bound, when a prisoner is brought before them, under the statute, to examine the proceedings and evidence anterior to ttboiW&rrant of commitment, and to discharge the H>j. prisoner if there does not appear sufficient cause for his de- tention, ip) Before sec. 3 of this statute, there was no way of inquiring into the truth of the facts as stated in the return. Section 3 provides that, in all cases coming within the Act, although the return to any writ of habeas corpus shall be good and sufficient in law, it shall be lawful for the court, or for any jud«j;e before whom such writ may be returnable, to proceed to examine into the truth of the facts set forth in such return, by affidavit or by affirmation, where an affirmation is allowed by law. (m) Pomeroy and Wtkon, 26 U. C. Q. B. 45 ; see alao Yearke y. Btngle- man, 28 U. O. Q. B. 651. (n) ReAndertton, IIU. C. C. P. 56. (o) Reg. V. LeoHeque, 30 U. C. Q. B. 609. (p) Beg. V. Moaier, 4 U. C. P. R. 64. PRACTICE. 449 eviction is tion is ap- B a case on it jurisdic- bh felony is at the com- the former y has been id of charge bailed, with 3n by habeas 45, the evi- ertiorari (p) ght of every le opinion of his commit- bhe Superior lefore them, nd evidence ischarge the for his de- of inquiring Section 3t, although te good and or for any , to proceed uch return, n is allowed arke v. Bmgk- As to the writ of certwrari^ which is always Tssued along with the hahtas corpus in oi*der to bring up the depositions and papers, it may now, by the 29 & 30 Vic, c. 45, s. 5, be returned " to any judge in chambers, or to the cuurt." Befoie this Act, writs of certiorari had in practice issued in vacation, by order of a judge in chambers, but as the power to do so was questioned, the Act was passed to remove the doubt, {q) The prisoner may contradict the return to the writ of Jiabnas corpus, by showing that one of the persons who sii,'neil the warrant was not a legally qualified justice of the peace, and it would seem that he could do so even independent of the above statute, (r) But at all events, this section disposes of the point by empowering the judge to examiue in^o the truth of the facts set forth in the return, (s) No appeal lies from a conviction rendered by a judge of the Sessions of the Peace for the Province of Quebec. (/) The 29 & 30 Vic, c. 45, was passed to extend the remedy by habeas corpus, and enforce obedience thereunto, and pre- vent delays in the execution thereof. In doubtful cases, the court always inclines in favor of liberty, (w) It therefore is the duty of a judge heai'ing au application for discharge under a writ of habeas corpus, when a prisoner is restrained of his libert}' under a statute, to discharge him, unless satisfied by unequivocal words that the imprisonment is warranted by the statute, (v) It i:i also the duty of tlie judge, when doubting the sufficiency of the warrant of commitment, to discharge the prisoner, (w) But the writ should not be used as a means of appealing from (q) Reg. V. Mosier, 4 U. C. P. R> 70, per /. Wihon, J. (r) BaUey'a case, 3 E. & B. 614 ; Reg. v. BoyU, 4 U. C. P. R. 256. («) Reg. V. Boyk, 4 U. C. P. R. 256. (0 Ex. parte Slenk, 7 L. C. J. 6. (tt) Reg. V. Boyle, 4 U. C. P. R. 264, per Morrison, J. (w) Re Slater, 9 U. C. L. J. 21. (w) Re Beebe, 3 U. C. P. R. 270. cc n 450 THE CRIMINAL LAW OF CANADA. I I ! i R-L other tribunals points more relating to practice than affecting the merits, (x) It would seem that a judge in chambers has, at common law, power to issue writs of habeas corpm in cases not within the 31 Car. II., c. 2. {y) But it seems doubtful whether a judge in chambers has power to rescind his own order for a writ of Juibeas corpus, or to quash the writ itself, on the ground that it issued improvidently ; or to call upon the prosecutor or justice to show cause why a writ of habeas corpus should not issue, instead of at once ordering the issue of the writ, (z) A judge, sitting in banc during term in the Practice Court, has no authority under Con. Stats. U. C, c. 10, s. 9, to grant a rule nisi for a writ of habeas corpus ad subjicien- dum; for until the rule is moved, there is no cause or busi- ness depending, in relation to the prisoner's conviction or commitment. Where such rule had been issued there, re- turnable in full court, it was dip"' '^rged on this preliminary objection, {a) The judges of the superior cou.ts had power to direct the issue of writs of habeas corpus ad subjiciendum, in vacation, returnable either in term or vacation, (b) The 29 & 30 Vic. c. 45, s. 1, confers full authority on any of the judges of either of the superior courts of law or equity in Ontario to award, in vacation time, a writ of habeas corpus ad subjiciendum, under the seal of the court wherein the application shall be made. Where writs of habeas corpus were made returnable forthwith, and the prisoners were brought into court on Tuesday, and the matter directed to be argued on the following Saturday, and the writs and returns, which had been filed the day the prisoners were brought in, were by order of a judge taken off the file again and returned (x) CornwcOl v. Beg., 33 U. 0. Q. B. 108. (y) Re McKinnoH, 2 U. C. L. J. N. S. 327, per A. Wilton, J. (z) lie Rom, 3 Q. 0. P. R. 301. (a) Rey. v. SmUh, 24 U. C. Q. B. 480. (6) Re Hawkins, 3 U. C. P. B. 239. PBACTICE. 451 to the sheriff; it was held by a majority of the court that the court could direct the sheriff to briug in the bodies of the prisoners on the day sot for argument, without directing new writs to issue, (c) Where the praper remedy is by writ of error, a ?uibeai e) Re Carmichdel, 1 U. C. L. J. N. S. 243. (io) Ex parte Dewemay, and ex parte CoUe, 10 L. C. J. 248. (x) Hex V. FUzgerald, 3 U. C. Q. B. 0. S. 300. {y) Be Boyle, 4 U. C. P. R. 261, per Morriaon, J. (z) Beg. V. Haines, 42 U. G. Q. B. 208 ; see al«o iCeg. v. Piehi, 39 U. C. C. P. 4U9 ; Beg. v. St. Denis, 8 U. C. P. R. 16. (a) Beg. v. St. Denis, supra. PRACnCK 455 whether they bftve tbnned the right conclusion from it or not; yet other courts may and ought to examine whether the premises stated by the justices are such as will warrant their conclusion in point of law. (b) When a matter is within the jurisdiction of justices, and their proceedings are regular and according to law, the cour'; will not interfere with their decision, though it should be wrong or unjust, but the court will inquire whether the case was within their jurisdiction or not Thus, where the nature of the charge is doubtful, and in the course of the inquiry it turns out that the case is nc t one over which thoy have jurisdiction, the superior court may, on habeas corpus, examine the evidence and entertain the question of jurisdiction, (c) Where justices have to decide a collateral matter, before they have jurisdiction, and they give themselves jurisdiction by finding facts which they are not warranted in finding, the court will review their decision, and if they have, improperly given themselves jurisdiction, will set aside the proceedings ; but, where the question is a material element in the consideration of the matter they have to determine and they, exercising their judgment as judges of ihe fact, have decided it on a conflict of evidence, it is contrary to principle and practice to interfere ; (d) even though they may think that, upon the evidence, the justices have come to a wrong conclusion. Thus where a charge was preferred to a court of Quarter Sessions, under 1 Wm. & M., c. 21, s. 6, against a clerk of the peace, for a misdemeanor in his office, and evidence was taken, and the court decided that the charges were proved, and dismissed the clerk of the peace from his office, and appointed another person in his place ; it was held on a quo uKLTTanto information against the person so appointed, that the sufficiency of the evidence was a question entirely for the 8: (6) The Scotia S. V. A. R. 160. (c) Re McKinnon, 2 U. C L. J. N. S. 327-8, per A. WiUon, 3. id) JUx parte VaughaUt L. R. 2 Q. B. 116, per CoclOnirn, C. J. 456 THE CRIMINAL LAW OF CANADA. < I f court of Quarter Sessions, and the decision of that court could not be reviewed by the Court of Queen's Bench. («) Except when applied for on behalf of the Crown, a cer- tiorari i;5 not a writ of course ; (/) and is only applicable to judicial as distinguished from ministerial acts, {g) The granting or refusing of the writ rests in the discretion of the court; and wliere the proceedings sougnt to be removed were completely spent, and no benefit would arise from re- opening them, the order was refused, (h) There is no right of revision of judgment on an ajjplication for this writ; (i) and a motion having been made for a certiorari and refused, the court declined to hear a second application, (j) The court must be satisfied on affidavits that there is suffi- cient ground for issuing it ; and it must in every case be a question for the court to decide whether, in fact, sufficient grounds do exist, (k) And it seems doubtful whether the applicant should not produce a copy of the proceedings before the justice, or account for not doing so, (/) and their sub- stance should in all cases be before the court, (m) Where a man is chosen into an office or place, by virtue ' whereof he has a lawful right, and is deprived thereof by an inferior jurisdiction, who proceed in a summary way, in such case he is entitled to a certiorari, ex debito jttstitice, because he has no other remedy, being bound by the judgment of the inferior jurisdiction, (w) In other cases, where the application is by the party grieved, s? as to answer the same purpose as a writ of error, it might be treated like a writ of error, as ex dehito justitice ; but where the applicant is not a party grieved, who substan- (e) Reg. V. Ru88ell, 5 U. C. L. J. N. S. 129 ; 17 W. R. 402. {.J > R'HJ- ^^' >fu$tice8 qfSurrtiV, L. R. 5 Q. B. 466. («/) R''g. \ . Simpson, 4 Pugsley A; B. 472. {h) Reg. v. Lord Newhorough, L. K. 4 Q. B. 585. (i) Ejc parte Spelman, 10 L. 0. J. 81 ; but see contra ex parte Beauparlant, 10 L. C. J. 102. ij) Ex parte Abel, 2 Pugsley & B. 2. (Jfc) Reg. V. OzowsH, 14 U. C. Q. B. 591. (/) E^ parte Abel, 2 Pugsley & B. 600. (m) Ex Parte Nevers, I Pugsley & B. 6. (n) See Reg. v. South HoUand, D. C.SA.kK 429. U" court could own, a cer- )plicable to I discretion be removed Lse from re- is no right his writ; (i) ind refused, ;) lere is suffi- y case be a t, sufficient whether the dings before 1 their sub- e, by virtue lereof by an 7i\y, in such tice, because ment of the the party rit of error, ito justitice ; o substan- I Beaupairlani, PRACTICE. 457 tially brings error to redress his private wrong, but comes forward as one of tlie general public, having no particular interest in the matter; and if the court thinks that no good would be done to the public, it is not bound to grant it at the instance of such a person, (o) Certiorari may be granted to remove proceedings which are void, {p) When a statute gives an appeal, this does not take away the right to a certiorari. The right can only be taken away by express words ; and, for this reason, the power given to a judge of sessions to hear appeals from summary convictions before justices of the peace does rot take away thn right of this court to grant a writ of ccrtioraH to remove such con- viction, {q) Nor does the fact tl^at the petitioner has a remedy by trespass affect his right, (r) Where a defendant has been committed for trial, but after- wards admitted to bail and discharged from custody, a supe- rior court of law has still power to remove the proceedings on certiorari, but in its discretion will not do so where there is no reason to apprehend that he will not be fairly tried, (s) A writ of certiorari may be granted, though expressly taken away by statute, {t) where there is ground for the belief that the conviction was had without proof; (m) and generally where there is a plain excess of Jurisdiction, {y) So it lies where the conviction, on its face, is defective in substance ; (tw) as, for instance, omitting to state the reasons on which it is (o) Reg. V. Justices of Surrey, L. R. 5 Q. B. 472-3. ( p) Reg. V. Simpaon, 4 Pugsley & B. 472. (q) Ex parte Montgomerif, 3 Allen, 149 ; see also Rex v. Oingraa, 8. L. G. A. 560 ; but see ex parte Richards, 2 Pug. 6 ; ex parte Notolin, Ster Dig. 286 ; ex parte Wilson, 1 Pugsley & B. 274. (r) Ex parte Thompson, 2 Q. L. K. 1 15. («) Reg. V. Adams, 8 U. (5. P. R. 462. (t) Reg. V. Hnggard, 30 U. C. Q. B. 156, per Richards, C. J.; Bamabyr. Oardiner, 1 James, 306. (i«) Ex parte Morrison, 13 L. 0. .J. 293 ; ex parte Church, 14 L. 0. R 318 ; see also ex parte Lalonde, 15 L. C. J. 231. (v) HespeUr and Shaw, 16 U. 0. Q. B. 104 ; ex parte Matthews, 1 Q L.B 353. (w) Re Watts, 6 U. C. P. R. 267. I'* •*\ •• « • ::i "'I ■(• «• • «"* !• a ■ m THE CBIinNAL LAW OF CANADA. l biuMd. iai) And & prima facie case, showiDg want or excess of jaiisdiction, or that the court was illegally convened or irreg- ularly constituted, will be sufficient to obtain the writ, (j/) But it seems in such cases, that on the return the court- cannot quash the conviction, but can only discharge the {Prisoner ; and this even though there be no motion to quash the certiorari, (z) Still, the conviction being before the oiourt, it might have power to quash it. (a) There can be no certiurari after judgment, and the only Course then is a writ of eiTor. (6) Nor can an indictment be removed by certiorari from the court of General Sessions to the Queen's Bench, after verdict and before judgment, even by the consent of parties, for their consent will not authoriz'* tin unprecedented course in a criminal case, (c) Where a conviction was made, under the Con. Stats. U. C, c. 75, and, un appeal to the sessions, the appeal was adjourned to another sessions, when the conviction was quashed, it was held that a certiorari might issue to remove the order quash- ing the conviction, {d) Where the conviction is already in the possession of the superior court, no certiorari is necessary, (e) / The court will not grant a ccfrtiorari to examine the finding of a jury or justice of the peace on the facts, but to deter- mine whether inferior tribunals exceeded their jurisdiction in convicting for an oflfeuce, which was not within the statute. (/) A certiorari will lie to bring the record and proceedings of a court martial before the superior court, (g) {x) Ex parte LcUonde, 3 Revue Leg. 450 ; and see ex parte Tremhlay, 15 L. C. J. 251. iy) Ex parte Thompson, 2 Q. L. R. 115. (2) Reg. V. Johnson, .30 U. C. Q. B. 423 ; Reg. v. Leveeque, 30 U. C. Q. B. 600 ; and see Reg. v. Mc Allen, 45 U. C. Q. B. 402. ia)md. {b) Reg. v. Grabbe, 11 U. C. Q. B. 447 ; Reg. v. SmUh, 10 U. C. Q. B. 09. c) l^g. V. Lafferty, 9 U. C. Q. B. 306. (d) ?e DoyU, 4 U. C. P. R. 32. {f) Reg. V. Brydgea, 18 L. C. J. 94. \ / ) neapeler ana Shaw, 16 U.O.Q.3. 104 ; ex parte Lanier, 6 Revue Le0. 860 Rex v. Gingraa, S. L. C. A. 660 ; Lord v. Turner^ 2 Hannay, 18. Mb parte Thomf^vn, $upra. »r exceM (A 3d or irreg- writ. (y) I the court charge the Dii to quash before the id the only dictmont be Sessions to :;ment, even ot authori/p Stats. U. C, as adjourned ashed, it was order quash- ission of the e the finding )ut to deter- jurisdiction within the record and •ior court, {g) PRACTICE. 45d te Tremhlay, 15 B,30U.C.Q.B. U. C. Q. B. 99. er, 6 Revue Leg. Huinay, 13. Bat a party imprisoned for contempt of the Court of Ses- sions cannot have his conviction removed by certiorari, (h) In a prosecution, under the Act 5 Wm. IV., c. 2, for non- performance of statute labor, it must be proved that the party has been notified by the overseer of the time and place of meeting to perform the work, and where the affidavits, in answer to an application for a certiorari to remove the pro- ceedings in such a prosecution, stated that the party had been duly notified, the court made the rule absolute, in order to ascertain what the notice really was, the appellant having in his affidavit denied notice, (i) Mere irregularities in the proceedings of the inferior court are not sufficient to justify the granting of a writ of certiorari; but there must be proof that actual injustice has been done. (/) Where a defendatkt applies for a certiorari to remove an indictment, he must show that it is probable the case will not be fairly or satisfactorily tried in the court below, and if difficulties in point of law form the ground of the application, they must be specifically stated, and no mere general statement will suffice, (k) Where the defendant, having been convicted on the in- formation of a toll-gate keeper of evading toll, appealed to the sessions, where he was tried before a jury and acquitted, this court refused a writ of certiorari to remove the pro- ceedings, the effect of which would be to put him a second time on trial. (/) It would seem that after an acquittal at the sessions, the writ cannot be granted ; at all events, at the instance of a private prosecutor, (m) A conviction under the Con. Stats. L. C, c. 6, by a judge of the sessions of the peace cannot be brought up before the superior court by certiorari, (n) (h) Ex parte Vallicres de St. Real, S. L. C. A. 593. (t) Ex parte Ferguson, 1 Allen, 663. (;') Ex parte Oauthier, 3 L. C. R. 498. (k) Re KeUeU, 2 U. C. P. B. 102 ; Reg. v. Jovole, 5 A & £. 639 ; Reg. v. Josephe, 8 Dowl. P. C. 128. il) Re Stewart, 2 L. C. G. 23. (m) Dnd.; see Reg. v. Lafferty, 9 U. G. Q. B. 306. (n) Ex parte VaiUancouH, 16 L. C. R. 227. : :j ■ • pk i 460 THE CRIMINAL LAW OF CANAD/> Two persons were convicted of selling intoxicating liquors without license, in a township where the sale of intoxicating liquors, and the issue of licenses authorizing the sale, were prohibited under the Temperance Act of 1864, 27 & 28 Vic, c. 18. A memorandum of the convic- tion, simply stating it to have been a conviction for selling liquor without a license, was given by the justices to the accused. An application for a writ of certiorari to^remove the conviction was refused, for it would seem, although the issue of a license was prohibited by a by-law, it was still an offence under (Ont.) 32 Vic, c. 32, to sell liquor without a license, and even if the conviction had been under the Tem- perance Act of 1864, and not under (Ont.) 32 Vic, c. 32, it was amendable under 29 & 30 Vic, c 50; (o) and under the Canada Temperance Act, 1878, 41 Vic, c 16, the right to a certiorari is taken away in all cases in which the magistrate has jurisdiction, (p) Where a judgment has been pronounced in open court, and afterwards changed in such a manner as to increase the amount which the defendant was ordered to pay, the judg- ment will be set aside on certiorari, (q) And where it is shown that there is reasonable doubt as to the legality of the conviction, a judge will order a certiorari, even though it has been confirmed by the sessions on appeal, (r) A conviction by a stipendiary magistrate of the city of Halifax, under sec 140 of the City Charter, is receivable on certiorari, (s) So, a certiorari lies to remove orders of sessions relating to the expenditure of the district rates and assessments at the instance of the Attorney General without notice, (t) Where the magistrate before whom the conviction is had (o) Be Watts, 5 U. C. P. R. 247. Ip) Ex parte Orr, 4 Pugsley & B. 67. Iq) Ex parte MacFartane, 16 L. C. J. 221. (r) Be SuUivan, b U. C. L. J. 276 ; but see ex parte Rkhardt, 2 Pug. ft (a) Beg. v. Levy, 3 Rnss. & Ches. 51. (<) Bex V. Justices o/ A'eweastle, Draper, 121. PRACTICE. 461 refuses to certify the proceedings for appeal, the court will grant a certiorari. (i*) In the case of a conviction for an offence not being a crime, such as a breach of a by-law, (r) affirmed on appeal to the sessions, the writ of certiorari is not taken away by the (Ont.) 38 Vic, c. 4. {w) In Quebec no certiorari can issue to quash a conviction under the License Act of that province, until the deposit required by law has been made, (x) Proceedings had under the 31 Vic, c 42, s. 18, are of such a character as to be susceptible of being removed by certio- rari, (a) The Superior Court of Montreal has no jurisdiction to grant a writ of certiorari, to bring up a conviction had before a justice of the peace, in the district of Three Rivers. (6) A conviction before the police magistrate of St. uolin for breach of the by-lavs of the corporation, cannot be removed by certiorari, (c) Nor can a conviction by a district magis- trate of Quebec, under the License Act of tliat province, even where the defendant has made the required deposit, {d) Orders or judgments which are not of a final character do not give rise to certiorari, (e) Before a justice can convict a defendant not appearing, the service of the summons should be proved in open court, and an affidavit sworn before a commissioner is not sufficient. (/) And the mode in which such service is proved, and how and when it was ett'ected, should be enttjred by the clerk in his book, and a mere entry of the fact of service is not enough ; (jf/) (u) Ex parte Eaatabrook, I Pugsley & K. 283. (t ) Seg. V. Wcuthington, 46 U. C. Q. B. 221. (u>) lie Bates, 40 U. C. Q. B. 284. (x) Ejc parte Doraif, 6 Renue L^g. 607. (a) Ex parte Morrison, 13 L. C. J. 295. \b) Kx parte Cunvrning, 3 L. C. R. 110. (c) Ex parte Harley, 5 Allen, 264. \d) Ex parte Duncan, 16 L. C. J. 188. (e) Ex parte The Fabrique of Montreal, 4 Bevue Leg. 271. (/) Beg. V. Ootding, 2 Pug. 386. {g) Ibid. i 462 THE CRIMINAL LAW OF CANADA. t g IS and where these requirements are neglected, the convicitioi) will be quashed on certiorari, (h) A certiorari only substitutes the superior court for the court below, and, whatever ought to have been done by the inferior tribunal had the case remained there, it must be the duty of the superior court to do when the case is removed. (») And the conviction is there for all purposes, and a party may move to quash it, however and at whosesoever instance brought up. (/) An application for a certiorari should be made at the first term after the conviction, but where the justice had no juris- diction in the matter, a certiorari was granted though a term had elapsed, (k) And special circumstances, as the fact that papers transmitted to counsel have miscarried, will induce the court to entertain an application after the first term. (/) Where an appeal from a summary conviction was made to a judge of the superior court under the (N. B.) 1 Eev. Stat., c. 161, s. 32, by which an appeal from a summary conviction was required to Le made in the same manner as from a judgment in a civil suit, (m) and dismissed by him, it was held that a subsequent application for a certiorari should, in general, be made at the first term afterwards. The court refused to interfere in such a case, after the lapse of one term, where the conviction appeared to be sufficient on the merits ; (n) or where, on proceedings for not altering a public road, the road had been opened in the meantime, (o) An application for a certiorari to remove proceedings under the Highway Act, 13 Vic, c. 4 (N. B.), though no time was limited by law, should be made without unreasonable delay. But a delay of one term was held not unreasonable, (p) {h) Reg. v. Oolding, 2 Pug. 385. (i) Reg. v. Wigktman, 29 U. C. Q. B. 214, nar Iforriaon, J. U) Reg. V. Wehten, 46 U. C. Q. B. 399. (k) Ex parte Muihem, 4 Allen, 259. (/) Reg. V. Oolding, 2 Pug. 385. (m) See o. 137, s. 44. (n) Ex parte O'Regan, 3 Allen, 261. (o) Rex V. Heavisule, Stev. Dig. 286. ip) Ex parte Herbert, 3 Allen, 108. PSAOnCB. 468 convictioii rt for the )ne by the lust be the iuioved. (i) party may r instance at the first ,d no juris- iigh a term le fact that eill induce 3t term. (/) i made to a Rev. Stat., conviction as from a lim, it was iri should, The court Dse of one ent on the altering a antime. (o) ings under ) time was able delay. >le. (p) By the 13 Qeo. II., c. 18, s. 5, the writ must be sued oat within six calendar months next after the making of the conviction, judgment or order sought to be removed. And the fact that the notice has been served within that time does not save a writ issued after the expiration of the six months, {q) This provision does not bind the Crown, (r) A writ of certiorari allowed before the expiration of six months from the day of the conviction, but not sued out until after the expiry of the six months, will be quashed. («) And delay in taking out the writ has always been held to amount to a forfeiture of it. {t) A certiorari not prosecuted during six months will be dismissed on motion, (u) The statute further enacts that no writ of certiorari shall thenceforth be granted, issued forth, or allowed, to remove Any conviction, order, etc., made by or before any justice or justices of the peace, or the General Quarter Sessions, unless it be duly proved upon oath that the party suing out the same hath given six days' notice thereof, in writing, to the justice or justices, or any two of them, if so many there be, by and bef < re whom such conviction, etc., shall be so made, to the end <)hat such justice, or the parties therein ooncerned, may show cause agaiost the issuing or granting of the said certiorari. A party was convicted of assault before three justices, and sentenced to pay a fine and costs. He appealed to the sessions, and the conviction was afilrmed. He then obtained a certiorari^ addressed to the chairman of the sessions, to remove the conviction affirmed by the sessions. The cap- tion of the order made by the sessions, affirming the con- viction of the defendant, stated it to have been by the chairman, and J. K. and W. G., justices. On the ex parte (q) ExparU Palmer, 16 L. C. J. 253. (r) Bex V. Jiuticea of Newccutle, Draper, 121. («) Rex V. ChiUas, Hob. Dig. 7^ ; 2 Sevue Leg. 52 ; and see ^ pftrte Furt, 3 Q. L. R. 102. (<) Ex parte Hough, 5 Q. L. R. 314. (tt) Ex parte Boyer, 2 L. C. J. 188-9 ; ex parte Prefcfntaine, ifrid. 202, :i 464 THE CRIMINAL LAW OF CANADA. { I i p application for the certiorari, the only notices, £Ied by the defendant, were notices served on the three convicting justices. No notice was served on the chairman of the sessions, or any two of his associates. It was held, on a rule to quash the certiorari, that the notice required by the statute should have been given to the chairman of the ses- sions and his associates, or any two of them, as required by the statute, and the certiorari, being obtained without such notice, was set aside, (v) But where a conviction was made by a magistrate within twelve days of the sitting of the court, for which notice of appeal was given, which was therefore inoperative, and the sessions neither acted on nor confirmed the conviction, and the same still remained in the custody of the convicting magis- trate, to whom the certiorari was directed, it was held that notice to the chairman of the sessions, of the defendant's intention to move for such writ, was not required, (to) The notice should be given to the justices actually present, when the order of sessions is made. It has been held that^ where a rule nisi for a certiorari has been first taken out and served on the justices, and a rule absolute obtained for issuing the writ, such a proceeding is not notice to the justices, and, in such a case, the court has quashed the cer- tiorari upon motion to do so. (x) Notice of application for a writ of certiorari must be given to the convicting justice, and the want of such notice is good cause to be shown to a rule nisi to quash the con- viction, (y) /.nd it has been doubted whether the writ was properly issued without such notice, though the object was to obtain the discharge of the prisoner, not to quash the conviction. (2) In the Mlis* rase, notice was given to the convicting (w) Reg. V. Ellis, 25 U. C. Q. B. 324 ; 2 U. C. L. J. N. S. 184. (w) Beg. V. Ccunoell, 33 U. C. Q. B. 303. (x) Seg. V. Ellis, sttpra, 326, per Morrison, J.; Sex v. Nichols, 5 T. B. 281 n. ; Jtex v. RaUislaw, 5 Dowl. P. C. 539. (y) Reg. v. Peterman, 23 U. C. Q. B. 616. (z) Reg. V. Munro, 24 U. C. Q. B. 44. PRACTICE. 465 justices but not to the chairman of the sessions or to his associates ; and in the Petejinan case, notice was given to the chairman of the sessions but not to the convicting justice. Ii would seem, tlierefore, that notice to both parties is neces- sary. In a notice, under the statute, of application for a certiorari to remove a conviction, the grounds of objection to such conviction need not be stated, (a) Where, on application for a certiora'ii, made on notice to ihe justices, the rule was refused, such notice cannot inure to the benefit of a subsequent «- parte application on the same material. (6) No notice is necessary where the conviction is already in the possession of the court, (c) or when the application is made by the private prosecutor and not by the defendant ; and the writ in such case issues of course, and without assigning any grounds, (d) The cases before lef erred to (e) apply only when the writ is obtained by the defendant with the view of quashing the conviction. (/) An application to a judge in chambers for a certiorari, should be by a summons or rule nisi, in the first instance, (g) Where a rule nisi for a certiorari is discharged because the affidavits are improperly entitled, the application may be renewed on amended affidavits, (h) The affidavit of service of notice of motion for the certio- rari must identify the magistrate served as the convicting magistrate. But an affidavit, defective in this respect, was allowed to be amended, the time for moving the certioi'ari not having expired. Acceptance of service, and an uuder- (a) Re Taylor v. Dat*y, 1 U. C. P. R. 346. (6) Reg. v. McAllan, 45 U. C. Q. B. 402. (c) Reg. V. Wehlen, 45 U. C. Q B. 399. (rf) Reg. V. Murray, 27 U. C. Q. B. 134. (e) Rej. V. Ellis, 25 U. C. Q. B. 324 ; Reg. v. Peterman, 23 U. C. Q. B. (/) Reg. V. Murray, wpra. ig) Ex parte Howell, 1 Allen, 584. (A) Ex parte Buatin, 2 Allen, 211. DD 466 THE CRIMINAL LAW OF CANADA. I is taking to show cause by an attorney for the magistrate, does not waive this objection, (i) But an application was refused where three former applica- tions had failed, two in consequence of a def^'-t. in the jurat of the affidavit, and one in consequence ''' 3 rule having been improperly granted by a judge atchaabers. (j) Where an order nisi for a certiorari had been served only four days before the first day of the term at which it was returnable, the court refused to make the rule absolute, and enlarged it till next term, {k) And wliere a rule was served only the day before the term, the court refused to enlarge it, {I) By the practice of the courts of New Brunswick, a certiorari is returnable, unless otherwise ordered, at the term next after that in which the rule for it is granted; and if not issued and served before such term, it is too late, (m) Where the Christian name of the appellant was misstated in the writ, it was quashed, and a new writ ordered to issue, (/c.) After the return of a certiorari, affidavits may be used to show want of jurisdiction in the justice, when the fact does not appear in the return, (o) But affidavits on which the writ is obtained cannot be used to contradict the return, {p) Where a certiorari is applied for, to remove a conviction with a view to quashing it, before the return to the writ is filed, affidavits and rules should not be entitled in the cause, for, until the return is filed, there is no cause in court. So as soon as the return to the certiorari has been filed, the cause is in Cuurt, and the motion paper and rule nid must be entitled in the cause. Where the rule was not so entitled it was discharged, but, being on a technical objection, with- out costs, and, under the circumstances of the case, an amend- ment was not allowed, {q) (i) Re Lake, A3. U. C. Q. B. 206. \i) Ex parte Irvine, 2 Allen, 519. (k) Ex parte Lyons, 6 Allen, 409. {I) Reg. V. Harahman, Stev. Dig. 823. (to) Ibid. 293. (n) Reg. v. WaUera, 6 Allen, 409. (o) Reg. V. Simmons, 1 Pugaley, 158. (p) Reg. V. Harahman, Stev. Dig. 293. (q) Reg. v. Moraton, 27 U. C. Q. B. 132. PRACTICE. 467 Where a rule nisi was obtained, to show cause why a certiO' rari should not issue to quash a conviction, it was held that the rule was properly entitled " In the matter of T. B.," and that it need not state into which court the conviction was to be removed, for this was sufficiently shown by entitling it in the court in which the motion was made. After the rule ni»i for the certiorari is made absolute, affidavits, etc., should be entitled " The Queen against A. B.," etc., but, before, they aru properly entitled " In the matter of A. B." (r) On applications to quash convictions, the convicting jus- tice must be a party to the rule. («) The writ of certiorari, issuing under the provisions of the 12 Vic, c. 41, must be addressed to the justice ot the peace making the conviction, and not to the bailiff' effecting the service of such writ, and such writ of certiorari addressed to the bailiff is a nullity, and will be superseded, (t) So a writ of certiorari, addressed to the superintendent of police, and which ought to have been addressed to the jud » If the B would be jf affidavit mot object ustice's re- own Office, ards a rule id, in fact, pired since process to on, as of a y)_ He Morrison f ; 5 U.C.P.R. Where a rule nm for a certiorari to remove a conviction is discharged, the successful party is not entitled to the costs of opposing the rule, (z) No separate application to supersede a certiorari need be made, but objection may be taken to it in showing cause to a rule to quash the conviction, (a) Where irregularity is moved against as a substantive matter, the court might give an opportunity to amend ; but if urged against the quashing of a bad conviction, no such opportunity is afforded, (h) In showing cause to a rule nisi to quash a conviction, it was objected that the recognizance roll was irregular, being dated in the 32nd year of the reign of Her Majesty, while the conviction was in the 33rd ; but held that this was only ground for a motion to quash the certiorari or the allowance of it, and that it could not be shown as a defect against quashing a bad conviction ; and it would seem the objection to the recognizance could not be taken at that stage of the proceedings, (c) The exercise of jurisdiction, in each of the circuit courts of New Brunswick, is not entirely confined to one particu- lar judge, so as to exclude any other judge from sitting and holding the court, should occasion require ; but the court, on every day on which it sits, is to be holden before some one of the judges of the Supreme Court, {d) Where a circuit court is adjourned to a future day, in consequence of unfinished civil business, the criminal juris- diction of the adjourned court is not confined to the trial of offences committed before the adjournment, or of indictments previously found. (?) In the Province of Quebec the following points have been (z) Ex parte Daley, 1 Allen, 435 ; see as to costs, Reg. v. Ipatones, L. R. 3 Q. B. 216. (a) Beg. v. Mc Allan, 46 U. C. Q. B. 402. (6) Beg. v. Hoggard, 30 U. C. Q. B. 156-7, per Bichards, C. J. (c) Ibid. 152. ((/) Beg. V. Dennit, 3 Allen, 426, per Carter, C. J. (e) Ibid. 423. ^' if; 472 THE CRIMINAL LAW OF CANADA. I m decided: No motion to quash is necessary in cases of certio- rari; (/) but in another case, simple inscription was held not sufficient without a rule to quash, (g) The motion to quash, if necessary at all, need not contain any reasons, (h) The six days' notice of the application for certiorari is not necessary in that province, the ordinary delay of one clear day being sufficient, (i) The merits of a certiorari may be heard on the merits of a rule to quash, without an inscrip- tion for hearing, {j ) But such hearing must be had in one of the two divisions of the court appointed for such hearing in ordinary cases, (k) The conviction of an inferior tribunal will be quashed even after it has been enforced and exe- cuted. (/) . The police magistrate has jurisdiction to impose a fine of $100 for assault, (m) County courts have no jurisdiction in penal actions, unless it is expressly given them by statute, (n) Tiiey have, how- ever, jurisdiction under R. S. 0., c. 76, s. 3, to try an action for a penalty against a justice of the peace, where the penalty claimed does not exceed $80. (o) The court of Quarter Sessions does not possess any greater powers than are conferred on it by statute. It has, however, jurisdiction over offences attended with a breach of the peace. But forgery and perjury, not being attended with a breach of the peace, are not triable at the sessions, (p) Bape (/) Ex parte Thompson, 5 Q. L. R. 200. {g) Ex parte Laniei; 6 Revue Leg. 350 ; ex parte Whitehead^ 14 L. C. J. 267. (A) Ibid. (i) Ibid. \j) Ex parte Murray, 14 L. 0. J. 101. (A) Ex parte Whitehead, 15 L. C. J, 43. (I) Ex parte Thompson, 5 Q. L. R. 200. (m) Ex parte Roy, 5 Revue Leg. 452. (n) O'Reilly q. t. v. Allan, 11 U. C. Q. B. 626. (o) Brash q. t. v. Taggart, 16 U. C. C. P. 415. ( p) Reg. V. McDonald, 31 U. C. Q. B. 337-9 ; Reg. v. Yarrington, 1 Salk. 406 ; Rex\. Haynes, R. & M. 298 ; Rex v. Higg%ns,2Eak. 5 ; Butt v. Conant, 1 B. & B. 548 ; ex parte Bartlett, 7 Jur. 649 ; Reg. v. Dunlop, 15 U. 0. Q. B. 118 ; Reg. v. Ourrie, 31 U. C. Q. B. 682. PRACTICE. 473 also, though necessarily involving a breach of the peace, is not, it seems, within such jurisdiction, q) Under 32 &■ 33 Vic, c. 20, s. 48, the sessions of the peace cannot try the offences specified in sections 27, 28, and 29 of that Act. A similar provision is made by c. 21, s. 92, as to certain offences under it. By c. 29 of tlie same year, 8. 12, no court of general or quarter sessions, or recorder's court, nor any court but a superior court, having criminal jurisdiction, shall have power to try any treason, or any felony punishable with death, or any libel. So neither can the sessions try coinage offences, (r) bribery or personation at Dominion elections, (s) nor offences against the Act for preventing lawless aggressions, {t) The enumerated excep- tions contained in the foregoing statutes, and the excepted cases of forgery and perjury define, as nearly as may be, what the general jurisdiction of the sessions of the peace is. The unexcepted offences they may try ; (w) for instance, kidnap- ping is within their jurisdiction, {v) As the court of Quarter Sessions has no jurisdiction in perjury, a recognizance to appear for trial on such a charge at the sessions is wrong ; but certiorari to remove it will be refused, if the time for the appearance of the party has gone by. {w) The quarter sessions is a court of Oyer and Terminer, and a venire de vovo may be awarded to it by the Queen's Bench, {x) If an order of justices, in sessions, be defective in one part, it may be quashed as to that, and confirmed as to the rest, if the different parts can be separated, {y) The court of Quarter Sessions has a general power to {q) 32 & 33 Vic, c. 20, s. 49 ; 36 Vic, c 50, a. 1. (r) See 25 Ed. III., c. 2, s. 7 ; 31 Vic, c 69, s. 4. («) 37 Vic, c 9, 8. 118. (t) 31 Vic, c. 14. (tt) Reg. V. McDonald, 31 U. C. Q. B. 339, per WHam, J. {») ComwaU v. Seg., 33 U. C. Q. B. 106. (xo) Reg. v. Currie, 31 U. C. Q. B. 582. (x) Reg V. McDonald, 31 U. 0. Q. B. 338, per WUaon, J. ; Campbell r Reg., 11 Q. B. 799-814. iy) Reg. V. Simpson, 1 Hannay, 32. 474 THE CRIMINAL LAW OF CANADA. ■- ; ■ • 'J II: fill 3i 'i Hi adjourn, uuless an Act of Parliament plainly intimates an intention that they should not have such power. («) The power of adjournment of any matter of which the court of sessions may be seized is inherent in the court, and such ad- journment need not be to the next, but may be to any future court. Nor need there be a formal adjournment, if some pro- ceeding is adopted by the court which virtually amounts to an adjciurnment. (a) Where a statute enables two justices to do an act, the justices sitting in Quarter Sessions may do the same act ; for they are not the less justices of the peace, because they are sitting in aourt in that capacity. (6) It would seem that the chairman of the Quarter Sessions cannot make any order of the court, except during the sessions, either regular or adjourned, (c) The sessions possess the same powers as the superior courts as to altering their judgments during the same sessions or term ; and for that purpose the sessions, as the term, is all looked upon as one day, (d) On the first day of the sessions, the appellant's counsel called on and proved his case. The respondent did not appear. It was not known that he had employed counsel, and the court ordered the conviction to be quashed. On the second day, counsel appeared and stated he had been employed, and was taken by surprise, and explained the reason of his non- appearance on the first day, to the satisfaction of the court and the appellant's counsel, and applied to have the order of the court, quashing the conviction, discharged. The chair- man intimated that the application must not be understood in the nature of a new trial, and that if a jury had decided the case, the authority of the sessions to disturb the verdict might be doubted ; but the court above held, on the authority (z) See Seg. v. Murray, 27 U. C. Q. B. 134. (a) Beg. v. Justices oj Westmoreland, L. R. 3 Q. B. 457. (6) Fraser v. Dickson, 5 U. C. Q. B. 233, per Jtobinson, C. J. (c) Be Coleman, 23 U. C. Q. B. 615. (rf) Beg. V. Fitzgerald, 20 U. C. Q. B. 646, per Bobinson, C. J. PRACTICE. 475 of Eolbom v. Dairies, (e) that the sessions had power to revoke the order quashing the conviction, (/) and may alter their Judgment at any time during the same session, (g) It seems that the fact of a bench warrant having no seal does not make it invalid, (y) and a warrant of commitmentr under the seal of the court or signature of the chairman, it not necessary, (i) An attorney-at-law has no right to act as an advocate in a court of Quarter Sessions, (j) and it is not in the power of county court judges to allow attorneys, who are not barristers, to practise before them as advocates in county courts, (k) A party prosecuting under s. 28 of the Criminal Procedure Act, 1869, has no right to be represented by any other advo- cate than the representative of the Ai torney General. (/) The Attorney General or Solicitor General may delegate to counsel prosecuting for the Crown the authority vested in him under sec. 28 of the 32 & 33 Vic, c. 29, to direct an indictment to be laid before the grand jury for certain of- fences, (m) It seems that the judges of every court have power to regulate its proceedings as to who shall be admitted to act as advocates, and that there is no positive rule of law to prevent any court of justice from allowing the attorney, even of a private individual, from acting as an advocate, (n) But it would seem that these remarks can only hold when there is no statute excluding the person permitted to act. (o) When a case has been reserved for the opinion of the supe- (c) 2 Salk. 494-606. (/) McLean and McLean, 9 U. C. L. J. 217. ig) Ibid.; Re SmUh, 10 U. C. L. J. 29. (A) Fraser v. Dickson, 5 U. C. Q. B. 234, per Robinson, C. J. (i) Ovens v. Taylor, 19 U. C. C. P. 49. (j) Reg. V. Erridge, 3 U. C, L. J. 32. (jfc) Re Brooke, 10 U. C. L. J. 49 ; see also Re Lapenotier',, 4 U. C. Q. B. 492. (I) Reg. V. St. Armour, 5 Revrn Leg. 469. (to) Reg. V. Abrahams, 24 L. C. J. 325. (n) Reg. v. Carter, 16 L. C. R. 295-6, per Meredith, J. (0) See Re Judge, C. O. Ytice to tke gainst him, engine ot »ned if the ited if the be inflicted . 29, 8. 28, I a view to on. But it E the condi- rred in the , to the re- ular. Thus, jurors, who knd it made he bill was anel that a mmoned, or eas by error the clerk ot t that some ho arrested ilified from le arrest-Cy) lirection, or he superior ion is made for such direction or consent, to decide what materials ought to be brought before him, and it is not necessary to summon the party accused, or to bring him before the judge, (k) Where three persons were committed for conspiracy, and afterwards the Solicitor General, acting under this statute, directed a bill to be preferred tigainst a fourth person who had not been committed, and all four were indicted together for the same conspiracy, such a course was held to be un- objectionable. (/) It seems that where, in a civil action, the jury find a party guilty of a crime, as where in an action on a policy of insurance against fire arson is set up in the plea, and the jury find the party guilty thereof, the plaintiff may be tried on this finding for the criminal offence without the finding of the grand jury, (m) The evidence offered to a grand jury is evidence of ac- cusation only. It is to be given and heard in secret accord- ing to the oath administered. The accused has no right to appear before or be heard by the grand jury, either for the purpose of examining his accuser or of offering exculpatory evidence. Evidence before a grand jury can only be received under the sanction of an oath, so that if any false statement be made, the person may be punished. The oath may be ad- ministered by the foreman ; but it can only be administered when the jury are assembled as such. The law requires that twelve members should be present for the purpose of any inquiry, and twelve of them must assent to any accusation. When a charge is presented to a grand jury, they should eonsider whether the accused is capable of committing the <)rime, and this involves the criminal liability of infante, persons Twm compotes mentis, married women, ete (k) Reg. v. Bray, 3 R & S. 255 ; 32 L. J. (M. C.) 11. {I) Knotolden v. Reg., aupra; Arch. Cr. Pldg. 5. (m) Riehardsm v. Can. W. F. Ins. Co., 17 U. C. C. P. 343, per/. IFUMl^ J. 488 THE CRIMINAL LAW OF CANADA. A reasonable conclusion only is required, and the rest is for the jury on the trial. They must have reasonable evi- dence of the Gorpas delicti, and that the accused is the guilty person. The intent laid or charged against the ac- cused should clearly appear, either expressly or by neces- sary implication, from the circumstances, (n) The record of a conviction for murder set out in the cap- tior that the indictm^'nt was found at a general session of Oyer and Terminer and General Gaol Delivery, before the chief justice of the Common Pleas, duly assigned, and under and by virtue of the statute in that behalf, duly authorized and empowered to inquire, etc., setting out the authority to hear and determine, as formerly given in commissions, but not to deliver the gaol It was then stated Dhet, at the said session of Oyer and Terminer and General Gaol Delivery, the prisoner appeared and pleaded, and the award of venire was, " therefore let a jury thereupon immediately come," etc. This record was returned to a writ of error, directed, ** To our Justices of Oyer and Terminer for our county of C, assigned to deliver the gaol of the said county of the prisoners therein being, and also to hear and determine all felonies, etc." On error brought, it was held that the authority of the justice sufficiently appeared without any statement whether a com- mission had issued or been dispensed with by order of the governor, for such courts are now held not under commis- sions, but by virtue of the statute, Con. Stats. U. C, c. 11, as amended by 29 & 30 Vic, c. 40, and as the record sufficiently showed the absence of any commission, it must be presumed that it seemed best to the governor not to issue one. The record showed the court to be held by a person competent to hold it, either with or without a commission, and was there- fore sufficient, (o) But it would seem that if the court had been held by a Queen's counsel, or county court judge, it might have been necessary to show whether a commission had issued or not, because he would only have authority if (n) See charge of Mr. Jua. Bums, 8 U. C. L. J. 6. (o) Whdany. Beg., 28 U. C. Q. B. 2. PRACTICE. 489* the rest is lonable evi- ased is the inst the ac- r by neces- ; in the cap- bl session of , before the 1, and under f authorized authority to uissions, but , at the said Delivery, the f vemrt was, e," etc This ed, " To our ' C, assigned >ners therein IS, etc." On the justice jther a corn- order of the dor commis- C, c. 11, as i sufficiently }e presumed e one. The competent to i was there- le court had irt judge, it commission authority if named in the commission, or appointed by one of the supe- rior court judges. '-* ' It would seem, also, that if the caption had been defective * it might have been rejected altogether under Con Stats. Can., c. 99, s. 62. In the same case, it was objected that the only authority shown being that of Oyer and Terminer, the award, " there- fore let a jury thereupon immediately come," was unauthv,.- ized, and a special award of vtnire fadas was requisite ; the court held, assuming, but ot admitting, that in England there is a difference in this respect between the power of justices of Oyer and Terminer and of Gaol Delivery, and tb-it the record showed no authority to deliver the gaol, that in this country, by the'Jury Act, Con. Stats. U. C, c. 31, both have the same powers, *.he general precept to summon a jury being issued by both before the assizes^ {p) A judge of assize, as such, may, by force of the statute 27 Edw. I., c. 3, deliver the gaul without any special commission for that purpose, {q) The court is bound to take judicial notice of the powers of a court of General Gaol Delivery, and, wherever it is recited on a record that anything was done at such a court, if it is found that such court has power to do the thing recited, it must be held to be rightly done, (r) As to serving on juries, infancy has been considered a ground of disqualification, on account of the probable defi- ciency of understanding. Being over the prescribed age has been considered only a ground for not returning the juryman, and there is no known head of challenge under which the objection can be made to a juryman over the p^scribed age, if otherwise competent. The statute 13 Edw. I., c. 38, being in the affirmative, leaves infants disqualified as at common law. («) implication from the terms of a statute, unless such implication is absolutely necessary for the inter- pretation of the statute, {y) In felonies, as well as misdemeanors, the Crown had the right of challenging any number of jurors peremptorily, with- out assigning any cause, until the panel was exhausted. («) (<) Mukahy v. Reg., L. R. 3 E. & L App. 326. (v) Reg. V. Burddl, 1 Oldright, 126. (w) Reg. V. Kennedy, 26 U. C. Q. fi. 326. (x) Leving«r ▼. Reg., L. R. 3 P. C. App. 287, per Sir /. Napier. \y) Ibid. 289, per Sir /. Ifapier. (z) Reg. V. FeUowea, 19 U. C. Q. B. 48. PRACTICE. 491 at old men upon janes, led as a dis- f tbey were 1.(0 between dis- , a juryman lat fact only lot a ground this statute d sixty was xty years of ug returned lerted in the rs of jurcNTS. 3 prescribes, natural bom qualified to demediatate Imitted as a ily be taken ent trial (x) law, was a ight cannot >f a statute, •r the inter- wn had the jorily, with- usted. (z) apier. The 32 A 33 Vic, c. 29, s. 38, enacts that, in all criminal trials, whether for treason, felony or misdemeanor, four jurors may be peremptorily challenged on the part of the Crown. The right of the Crown to cause any juror to stand aside until the panel has been gone through, or to challenge any number of jurors for cause, is not affected by this statute. Even before the statute, on a trial for misdemeanor, as well as for felony, the Crown might, ^hout showing cause, direct jurors, on their names being called by the clerk of the court, to "stand aside** until the panel was gone through, {a) and so a second time till the panel is exhausted ; that is. till it ap- pears that a jury cannot be obtained without such juror, (h) This was the well understood practice on indictments for felony as well as misdemeanor, and it is said that, before the statute 33 Edward I., st. 4, (c) the King might challenge peremptorily, without showing cause, but that Act was con- strued to restrain the privilege, and to require the Crown to show cause if the panel was otherwise exhausted, (d) The restriction in practice thus imposed on the Crown is, that it shall not exercise its prerogative so as to make it necessary to put ofT the trial for want of a ji^ry, such as the party arraigned is entitled to have on his trial, (e) The 37 Vic, c. 38, s. 11, which enacts that the right of the Crown to cause jurors to stand aside shall not be exercised " on the trial of any indictment or information by a private prosecutor for the publication of a defamatory libel," applies to libels on individuals as distinguished from seditious and blasphemous libels: and it makes no difference that the Crown is represented by the Attorney General ; (/) and if the judge at the trial on such a case allow the right and (a) Reg. v. Fhtaer, 14 L. C. J. 245 ; Seg. v. Benjamin, 4 U. C. C. P. 179 ; Reg. V. OhoMon, 3 Pugsley, 546 ; Reg. v. Hogan, 1 L. C. L. J. 70 ; Reg. ▼. DougaU, 18 L. C. J. 85. {b) Reg. y. Lacombe, 13 L. C. J. 269. (e) Se9 Con. e^^ts. U. C, c. 31, a. 101. id) Reg. v. Benjamin, 4 U. C. C. P. 185, per Macaulay, C. J. {«) Levinger v. Reg., L. R. 3 P. C. App. 288, per Sir J. Napier. if) Reg. V. PaUeaon, 36 U. C. Q. B. 127. tj 492 THE CllIMINAL LAW OF CANADA. afterwards doubt the propriety of his ruling, he may reserve the point for the decision of the court above, (g) Calling the list over once is not exhausting the panel, (h) The direction to stand aside is not, in fact, a challenge, {i) But it is, in effect, equivalent to a peremptory challenge if, without having to resort to such of the jurors as have been " set by" for the time, on the part of the Crowu, there can be procured from those returned on the panel enough of jurors, not objected to, to make a jury. (;') After the prisoner had been arraigned on his trial for murder, had pleaded not guilty, and received the usual notice of his right to challenge, two jurors were called who were not challenged by him, and were thereupon sworn. The name of John Hill was then called, and a person answering to that name came forward, and was sworn without challenge or objection. Some others were afterwards called, and on being challenged peremptorily by the prisoner, they withdrew ; and, after another was called and sworn without challenge, the prisoner's counsel objected to John Hill, as he was a wit- ness in the case for the prosecution. Upon inquiry it was found that there was a person named John Hill returned on the panel, but that he was a different person from the John Hill sworn on the jury, and that the latter was not only a witness but also a resident of another county, and therefore not qualified to act as a juryman. Upon consent of both the counsel for the Crown and the prisoner, he was allowed to retire, and other jurymen were called and sworn until the panel was full, the prisoner exercising the right of challenge until the jury -^as chosen. The juror was with- diawn before the prisoner was given in charge. The prisoner was tried and convicted, and, upon motion for a new trial, the court held, first, that the John Hill improperly sworn was (flf) Reg. V. PaUeson, 36 U. C. Q. B. 127. (A) Iteg. V. Lacombe, 13 L. C. J. 261, per Monk, J. : Reg., 8 E. & B. 54 ; Dears. & B. 375 ; see 32 k 33 Vic, lupplying defect of jurors, if the panel is exhausted. (») Reg. V. Lacombe, supra, 261, per Badgley, J. (j) Levingtr v. Reg., supra, 288, per Sir J. Napter. and see Manaett v. c. 29. 8. 41, as to may reserve ) he panel, {k) shallenge. (i) challenge if, as have been there can be igh of jurors, his trial for 8 usual notice who were not The name ot 'ering to that challenge or , and on being jy withdrew ; out challenge, he was a wit- enquiry it was Hill returned •son from the atter was not r county, and Jpon consent isoner, he was ed and sworn g the right of ror was with- The prisoner new trial, the y sworn was id see McauM v. 29. 8. 41, as to PRACTICE. 493 legally discharged from the jury ; second, that his discharge did not operate upon the jurors previously sworn, so as to render it necessary i? reswear them, and thus reopen the prisoner's right of challenge to them ; and third, that though thirteen persons were sworn to try the prisoner, the twelve by whom he was tried constituted the jury for his trial ; in other words, that he was properly tried by the twelve who constituted the jury. (]c) If a jury be elected, tried and sworn, and charger^ with a prisoner, and afterwards discharged without giving a verdict, either because they cannot agree, or with the assent of counsel, a new jury will be called and sworn in the ordinary way, and the prisoner will have the usual right of challenge. (/) A prisoner is entitled to challenge for cause before exhaust- ing his peremptory challenges ; and error will lie for the refusal of this right ; but if the prisoner, after an erroneous decision of the judge on this point, peremptorily challenge a juror whom he might have challenged for cause, he waives his right in respect of such erroneous decision, and error can- not be brought, (m) If, after the improper disallowance of a challenge for cause, the prisoner withdraw his plea of not guilty, and plead guilty, that would cure the objection, because the whole record must be looked c and not a merely isolated part of it; for one part of it may be controlled by another, and that which may be a cause of exception in one place, may be no exception when read in connection with the rest of the record, (n) A prisoner, arraigned for uttering forged paper, has a right to challenge peremptorily, on the trial of a pieliminar\ ques- tion, to the effect that the prisoner had beon extradited from the United States on a charge of forgery, (o) (i) Reg. v. Coafter, 13 U. C. C. P. 299. H) Ibid. (m) Whdan v. Reg., 28 U. C. Q. B. 2 ; affirmed on appeal, ibid. 108. (n) Ibid. 164, per ^. WHaon, J. (o) Reg. V. Paxton, 10 L. C. J. 212. q 494 THE CRIMINAL LAW OF CANADA. It is a good cause of challenge to a juror, if he has said he would hang the prisoner if on his jury, (p) A statute directed a jurors' book to be made up in each year, for use in the year following, and declared that such book should be in use from the first of January, for and during one year. In November, 1865, at a sitting of a special com- mission, a panel was returned from the then existing jury book. The jurors were not then called, but the sitting was duly adjourned to the 19th of January, 1866, at which time the trial took place, when the jurors named in the return of November, 1865, were called. One of the jurors, who had been duly returned in November, 1865, not being in the list for 1866, it was held that this was not a ground of challenge to him. Nor did these facts show any ground for challenge to the anviy. {q) The prisoner may challenge the array if affinity exists between the sherifif and himself ; (r) and if he apprehend that the array will be challenged on that account, he may have the process directed to the coroner, with the consent of the other party ; and if the other do not consent, but insists there is no cause for the change of process, he cannot after- wards take advantage of the objection which he has himself alleged to be futile, {s) It is a ground of such challenge that the prisoner has had an action pending against the sheriff for assault. (0 The inclusion of unauthorized names on a petit jury panel is not a ground of challenge to the array; {u) nor is the summoning of an excessive number, in which event the unnecessary ones may be struck off by the judge, (v) Where a wrong juror by mistake answered the call of the clerk, and served on the jury, it was held by a majority of ip) Whelan v. Reg., 28 U. C. Q. B. 29. (q) Mulcahy v. Iteg. L. B. 3 E. & I. App. 306. (r) Wetmore v. Levi, 5 Allen, 180. («) Whelan v. Beg., 28 U. C. Q. B. 54. (0 jReg. V. Milne, 4 Pugsley & B. 394. (tt) JReg. V. Ma^oux, 3 Pugsley, 493. {v)Ibid. PRACTICB. 495 the court in Quebec that there had been a mis-trial ; (w) but in England, in a similar case, the majority held it only a ground of challenge, (x) An order for an extra panel under R. S., c. 92, s. 37, of Nova Scotia, is valid if signed by three judges, though they do not constitute a majority, (y) Where the Crown demurred to a challenge to the array^ and t he judge on overruling the demurrer granted leave to travei'se, it was held a matter in the discretion of the judge, and n( t reviewable, (z) Where the facts stated in the challenge would not of necessity disqualify the sheriff from summoning a jury, and might 01 might not render him partial, the challenge is to tL"^ favor, and it should, in addition to the facts relied upon, contain an allegation that the sherijQT was not impartial, otherwise it will be bad. (a) It is in the discretion of the judge whether to requixe a challenge to the polls to be in writing, (b) Expressions used by a juryman are not a cause of chal- lenge, unless they are to be referred to something of per- sonal ill-will toward the party challenging ; and the juryman himself is not to be sworn when the cause of challenge tends to his dishonor, as whether he has been guilty of felony, or whether he has expressed a hostile opinion as to- the guilt of the prisoner, (c) He may, however, be ex- amined on the voir dire as to his qualification, or the leaning of his affections, (d) If one of the jury be taken ill at the trial the judge can- not, even with the consent of the prisoner, swear another juror in his place and continue the trial ; and the objection (to) Reg. V. Feare, 3 Q. L. R. 219, following Reg. v. Miller, 1 Dears. 468. i^) Reg. V. MeUor, 4 U. C. L. J. 192 ; Dears. & B. 468. iy) Reg. v. Quinn, I Russ. & Geld. 139. {z) Iteg. V. .Mailloux, 3 Pugsley, 493. (a) Brown v. Mcdtby, 4 Pugsley & B. 92. \h) /{eg. V. Chaswn, 3 Pugsley, 546. (f ) Jbid. (rf) Ifnd. ~i 496 THE CRIMINAL LAW OF CANADA. IB not waived by the prisoner's counsel afterwards address- ing the jury, (e) A statement by one of the jury, previously to their giving their verdict, that a newspaper had been handed to them, cannot be recorded in the register of the court. (/) And an affidavit by a party to a suit, simply stating that he is informed and believes that one of the jurymen was under age, will not be considered evidence of the fact, (g) At any time before a juror is sworn, he may be examined as to his qualification, whether before or after the peremp- tory challenges are exhausted, in order to ascertain whether ihe is a person qualified to be a juror, (h) If thirteen jui^rs are sworn to try the prisoner, the swear- ing of the thirteenth would be void, and the other twelve would constitute the jury, (t) Though a challenge has been improperly disallowed, yet, if no improper person get on the jury, their verdict, when none of them are disqualified, supports the judgment on the indictment, (j) If, after a prisoner's challenge to a juror is disallowed, the €rown then challenged him, and the prisoner objected to it^ unless the Cio^n showed cause, in the first instance, or the prisoner contended the cause shown by the Grown was in- sufficient, this would be a consenting to the juror as a proper juryman to be admitted to try the cause, or a waiver of all objection to him, and the prisoner could not, after that, revive bis own original exception, (k) So, after the improper disallowance of a challenge to one juror, the prisoner would be bound to renew his exceptions specifically to any jurors called afterwards, in order to estab- lish a ground of error, or cause of complaint as to them. (/) (e) Noble v. Billings, 3 Allen, 85. (/) Beg. V. Notman, 4 C. L. J. 41. (fir) Beg. v. Perley, 2 Pugaley, 449. . {h) Whelan v. Beg., 28 U. C. Q. B. 64. (t) Beg. V. Coulter, 13 U. C. C. P. 303, per Draper, C. J. U) Whelan v. Beg., 28 U. C. Q. B. 137, per Draper, C. J (k) Ibid. 53-4. (l) Ibid. 61, per A. WUaon, J. PRACTICE. 497 •da addresB- bheir giving ed to them, t.(/) And that he is was under {9) )e examined bhe peremp- lAin whether \ the swear- other twelve lallowed, yet, erdict, when ^ment on the tallowed, the )jected to it^ itauce, or the 'own was in- tr as a proper ivaiver of all :, after that, lenge to one s exceptions >der to estab- o them. {I) It is settled law that a juryman must be cliallenged before he is sworn, and cannot afterwards be withdrawn except by consent, (rw) A prisoner cannot challenge at all until a full jury ap- pears, and he must challenge to tlie array before ho chal- lenges to the polls. He must abide by his peremptory challenge when he makes it, and cannot withdraw it and challenge another juror instead. The prisoner raust also show all his causes of objection before the Crown is called upon to show cause. The party beginning to challenge must finish all his challenges before the other begins, and all chal- lenges of the same kind and degree must be suggested against the juror at the same time, (n) "When there are two prisoners for trial, it would not be ground of error if the judge directed one of them to chal- lenge first, and to make his p(»rempbory challenges before his challenges for cause, and thin allow the other his challenges in like order. In such latter case, on a juror biing called against whom there was a cause of challenge to the favor, he would not be challenged peremptorily, but would go into the jury box to abide the result of all the challenges ; and, when the peremptory challenges were through, those for cause would be proceeded with, and the juror would then be reached, (o) When a prisoner, on his trial, assumes to challenge a juror for cause, it is competent for the Crown either to demur or to counterplead ; that is, set up some new matter consistent with the matter of challenge, to vacate and annul it as a ground of challenge, or to deny the truth, in point of fact, of what is alleged for matter of challenge, (p) The latter mode is the only one calling for the intervention of triors, (q) (m) Reg. v. OouUer, 13 U.C.O.P. 301, ]^r Draper, C.J. ; Reg. r. MeUor^ 4 Jur. N. S. 214. (n) Whelan v. Reg., 28 U. C. Q. B. 49. (o) Ibid. 47-50. (p) Ibid. 168-9, per Ovrynne, J. (q) Ibid. FF ti 498 THE CRIMINAL LAW OF CANADA. The Con. Stats. U. C, c. 31, s. 139, provides that no omis- sion to observe the directions of the Act, or any of them, as respects the " selecting jury-lists from the jurors' rolls," or " the drafting panels from the jury-lists," shall be ground for impeaching the verdict. Possibly the y ray might be quashed, if the sheriffs return to the court contained the names of jurors resident out of the county for which they were summoned, (r) In Ontario, the usual practice as to summoning jurors is as follows : A precept, signed by the judges, who are always named in both commissions of Oyer and Terminer and Gaol Delivery, goes to the sheriff, to return a general panel of jurors, and thai precept is returned into court on the first day of the assizes with the panel, and from the names con- tained in that panel all the jurors, both in the civil and criminal side of the court, are taken; and as the criminal court always possesses the powers of courts ot Oyer and Terminer and General Gaol Delivery, the jury process awarded in that court is entered on the roll, " therefore let a jury thereupon immediately come," The judge sitting at Oyer and Terminer or Gaol Delivery, has power, after issue joined, to direct a jury to come for the trial of the prisoner, and the usual venire facias, ** therefore let a jury thereupon immediately come," is sufficient, because under the Jury Act, Con. Stat. U. C, c. 31, there has been a previous precept issued for the return of jurors to that court ; and justices of both these courts have the same powers by the Act. (s) Where a court is held under a special commission, begun in one year and finished in the next, and no new precept has issued to the sheriff for the return of jurors, it is not neces- sary that the jury should be empanelled from the jury-book for the latter year, (t) This might be requisite if the Act I! (r) Reg. v. Kennedy, 26 U. C. Q. B. 331, per Draper, C. .1. («) Whelan v. Beg., 28 U. C. Q. B. 84-6, per Richards, C. J. (t) Mukahy v. Reg., L. K. 3 £. & I. App. 306. PRACTICE. 499 at no orais- of them, as s' rolls," or 5 grouad for mfPa return ident out of ng jurors is 10 are always ler and Gaol sral panel of , on the first B names con- he civil and the criminal ot Oyer and jury process nerefore let a aol Delivery, come for the 18, " therefore 3ient, because lere has been to that court ; )owers by the ission, begun V precept has is not neces- he jury -book ,e if the Act .1. J. forbade a juror, duly summoned, to serve after the delivery of the new book to the sheriff, (u). Juries de mediatate lingttce are not now allowed in the case of aliens, (v) Where a jury of this kind is allowed, a writ of venire facias ad triandum must be issued summoning thirty-six jurors, (w) Where the defendant has asked for a jury composed one- half of the language of the defence, six jurors speaking that language may be put into the box before calling any juror of the other language, (x) When, to obtain six jurors speaking the language of the aefence, all speaking that language have been called, the Crown is still at liberty to challenge to stand aside, and is not bound to show cause till the whole panel is exhausted, {y) Where in a case of felony the prisoner had requested a jury de mediatate lingiioe, and one of the jurors was discovered after verdict not to be skilled in the language of the defence, it was held that the trial was null and void, (z) Where a prisoner has been arraigned on a charge of utter- ing forged paper, it is not competent for the Crown to order the trial by jury of a preliminary question raised by the prisoner's counsel, to the effect that the prisoner had been extradited from the United States on a charge of forgery, and could not therefore be legally tried here for any other offence. The question must be determined by the court, (a) The maxim that judges shall decide questions of law and juries questions of fact, is one of those principles which lie at the foundation of our law. (b) The principle applies in criminal as well as civil cases, though, in some cases, it rests with the jury to determine a mixed question of law and fact, (c) (i«) Mulcahy y. Reg., L. R. 3 E. & I. App. 316, per Willes, J. (t>)32&33 Vic.,c. 29, a, 39. (w) Beg. V. Vonhoff, 10 L. C. J. 292. ,, (x) Beg. V. Dougall, 18 L. G. J. 85 ; but see 32 & 33 Vic, c. 30. \y) Beg. v. Dougall, supra. (z) Beg. V. GhamaUlard, 18 L. 0. J. 149. (a) Beg. v. Paxton, 10 L. C. J. 212. (6) Winsor v. Beg., L. R. 1 Q. B. 303, per Cockburn, C. J. (c) Oray v. Beg., 1 E. ft A. Repa. 604, per Sir J. B. Bobinson, Bart. 500 THE CRIMINAL LAW OF CANADA. I- if The jury are bound to follow the direction of the court in point of law; and where a jury attempted to persist in re- turning a verdict contrary to the direction of Pollocki C.B., he told them they were bound to return a verdict according to his direction in point of law, and explained that the facts only were within their province and the law in his ; and although he did not infringe on their province, he could not permit them to invade his. (d) The jury have a right, after the summing up and conclu- sion of the case, and after retiring to their room to deliberate, to return to open court and re-examine any of the witnesses whose evidence was not well understood by them, (e) The strictness of the rules regarding juries and the con- duct of trials, has been much relaxed in modern times. (/) The misconduct, or irregular and improper conduct of juries, will only have the effect of vitiating their verdict, whea it is such that the result of the trial has been in- fluenced by it, or when there is any sufficient and reasonable ground to believe that such influence or effect has been pro- duced by it. (g) There is a substantial distinction in regard to misconduct of the jury, whether the irregularity took place before or after the jury are charged by the judge. The indulgence in the way of separating, or otherwise, is much restricted after the charge, (h) The fact that one of the jury, on a trial for felony, during a recess which took place in the progress of the trial, not being in charge of any officer or other person, entered a public house, and mentioned the subject of the trial to A., and had some slight conversation with other parties as to it, is, in the absence of evidence that the juror or the verdict was (d) Reg. v. Robinson, 1 U. 0. L. J. N. S. 63 ; 4 F. & F. 43. (e) Re(f. V. Lamere, 8 L C. J. 281. (/) Re(f. V. Kennedy, 2 Thomson, 207, per HaUburton, C. J. (g) Ibid. 212, per Bliss, J. (h) Ibid. 221, per WiUeins, J. PRACTICE. 501 influenced by this, not sufficient to vitiate the verdict, or amount to a mis-trial, (i) When a juror has separated from his brethren, and con- versed with others on the subject of the cause in a way cal- culated to influence him in forming an opinion upon it, it amounts to a mis-trial, let the consequences be what they may ; but if the juror is not influenced by anything wldch occurred in consequence of the separation, there is no mis- trial. ( /) In all criminal trials less than felony, the jury may, in the discretion of the court, and under its direction as to condi- tions, mode, and time, be allowed to separate during the progress of the trial, (k) But in felony such latitude is not allowed, and if in such case the jury be permitted to separate, there is a mis-trial ; and the court may direct that the party be tried as if no trial had been had. (l) The Crown, as well as the prisoner, has a right to set aside a verdict vitiated by the jury's misconduct, (m) There is no authority for ordering that a jury have refresh- ments during the period of their deliberation, (n) As to discharging juries, there ^ould seem lo be no differ- ence between misdemeanors and felonies. In both, the principles on which trial by jury is to be conducted are the same, (o) If a juryman has merely fainted, because the court-room is hot and close, it woula be proper to wait a short time, and then proceed ; but if he is taken so ill that there is no like- lihood of his continuing to discharge his duty without danger to his life, the jury must be discharged, {p) Where the record of a conviction for felony showed that, on the trial of an indictment, the jury being unable to agree, (i) Beg. v. Kennedy, 2 Thomson, 203. (j) Ibid. 206-7, per Haliburton, C. J. (*) 32 & 33 Vic, c. 29, s. 57. {I) Reg. V. Derrick, 23 L. C. J. 239. (m) Reg. v. Kennedy, 2 Thomson, 213, per Bliss, J. (n) Winsor v. Reg., L. K. 1 Q. B. 308, per Cockburn, C. J. (o) Ibid. 307, per Cockburn, 0. J. ip) Ibid. 315, per Blackburn, J. 502 THE CRIMINAL LAW OP CANADA. the judge discharged them ; that the prisoner was given in charge of another jury at the next assizes, and a verdict of guilty returned, and judgment and sentence passed ; on writ of error, it was held that the judge had a discretion to dis- charge the jury, which a court of error could not review ; that the discharge of the first jury without a verdict was not equivalent to an acquittal ; that a second jury process might issue, and that there was no error on the record. ( q) And it may be stated generally that when the discharge of a jury is warranted by the rules of law, it does not operate as an acquittal, or bar another trial ; but if the jury are wrongfully discharged, the prisoner cannot be put a second time on trial, (r) The illness of a juror, or the illness of a prisoner, has been hel(i sufficient ground for discharging the jury, (s) A jury sworn and charged, even in case of felony, may be discharged, without verdict, in case of death or illness of one of the jury, or their being unable to agree, or at the desire of the accused, with the consent of the prosecu- tion, (t) The jury cannot be discharged at the instance of the prosecutor in order to obtain evidence, of which, at the trial, there appears to be a failure. But it would seem that this is not a rule of positive law, and that there are ex- ceptions to it ; and where a witness is kept away by the prisoner, and by collusion between him and the prisoner, i» tampered with, the rule should be relaxed, and the judge permitted to discharge the jury. Where a jury are discharged in consequence of their not agreeing, it is not necessary to wait ; and, on the contrary, the judge should not wait until the jury are exposed to the dangers which arise from exhaustion or prostrated strength of body and mind, or until there is a chance of conscience (g) Wimorv. Reg., L. R' 1 Q. B. 390 (Ex. Chr.) (r) Ibid. («) Ibid. 305, per Cockbum, C. J. {t) Reg. V. CharleswoHh, 9 U. C. L. J. 63 ; 1 B. & S. 460. PRACTICE. 508 IS given in verdict of d ; on writ Lion to dis- lot review ; irerdict was ary process record, (q) e discharge t does not t if the jury jt be put a risoner, has jury, (s) felony, may th or illness •ee, or at the ;he prosecu- tance of the lich, at the d seem that lere are ex- way by the prisoner, i» id the judge of their not ihe contrary, :posed to the ,ted strength )f conscience and conviction being sacrificed for personal convenience, and to be relieved from suffering, (u) The defendant was put on trial for a misdemeanor. At the trial a witness, called on behalf of the Crown, claimed his privilege not to give evidence on the ground that he would thereby criminate himself. The judge who presided at the trial refused to allow him the privilege ; but the witness, still rtfusing to answer, was committed to prison for contempt of court, and a conviction of the defendant being under these circumstances impossible, the jury, at the request of the counsel for the prosecution, and against the protest of the counsel for the defendant, were dis- charged without giving any verdict. It was held that the defendant ought not to be allowed to put a plea upon the record stating the above facts, but that they ought to ap- pear as an entry on the record. An entry was made upon the record accordingly; when it was further held that whether or not the judge had power to discharge the jury, what took place did not amount to a verdict of acquittal, nor was the prisoner entitled to plead autrefois acquit in respect thereof, and that the defendant was not entitled to judgment q'lod eat sine die, or to the interference of the court to prevent the issuing of a fresh process, (v) The old doctrine, that if the jury could not agree, it was the duty of the judge to cf-rry them from town to town in a cart, has been exploded in modern times. It is certainly not now the practice, (w) In criminal cases, not capital, where the verdict is so in- consistent and repugnant, or so ambiguous and uncertain, that no judgment can be safely pronounced upon it, a venire de novo may be awarded, (x) Where, on an indictment for murder, the jury returned a verdict, in writing, in the following words •. " Guilty of (u) Reg. V. Charlesworth, 9U. C. L. J 48. (v) Ibid, supra. {w) Winsor v. Reg. , L. R. 1 Q. B. 305, per Cockburn, C. J. ; ibid. .T20-1, per Mellor, J. (x) Reg. V. Healey, 2 Thomson , 332-3, per 8li«a, J. V' 504 THE CRIMINAL LAW OF CANADA. murder, with a recomrnendation to luercy, as there was no evidence to show malice aforethought and premeditation," it was lield that the verdict was too ambiguous and uncertain to allow the court to pronounce any judgment upon it. (y) A recommendation to mercy is no part of the verdict. (2) If it were shown that, upon the jury delivering their ver- dict in open court, anything was openly said by them which could give the court to understand that theyywere not openly assenting to that, verdict, and, nevertheless, by some error or misapprehension, it wa.i received as their unanimous verdict, the court could and ought to interfere on such ground and grant a new trial, when such a course was authorized by our criminal practice, (a) A jury may correct their verdict, or any of them may with- hold assent and express dissent therefrom, at any time before it is finally entered and confirmed, (b) It is irregular for counsel to question the jury directly, and not through the court, as to the grounds of their verdict, (c) It would appear that the right of a jury to find a general verdict in a criminal case, and to decline to find the facts specially, cannot be questioned, especially when the verdict is one of acquittal, (d) It is doubtful whether a verdict can be received and re- corded on a Sunday, (e) The Con. Stats. U. C, c. 113 (20 Vic, c. 61), has been repealed except sections 5, 16 and 17. By the 32 & 33 Vic, c. 29, 8. 80, no appeal lies to the Court of Appeal in any criminal case where the conviction has been affirmed by either of the superior courts of common law, on any ques- tion of law reserved for the opinion of such court. But now by the Supreme Court Act, an appeal lies to the court thereby (.V) Rer;. v. Healey, 2 Thomson, 331. (z) See Seg. v. Trebilcock, 4 U. C. L. J. 168 : Dears. & B. 453. (a) Beg. v. Fellowes, 19 U.C.Q.B. 60, per Robinson, C. J. ; and see Reg. v. Ford, 3 U. C. C. P. 217-18, per Macaulay, C. J. (6) Reg v. Ford, supra, 217, per Macaulay, C. J. (c) im. {d) Reg. v. Spence, 12 U. C. Q. B. 619. (e) Winaor v. Reg., L. R. 1 Q. B. 308, 317, 322. here was no editation," it nd uncertain i upon it. (y) rdict. («) ing their ver- ' them which re not openly- some error or mous verdict, 1 ground and orized by our jm may with- y time before ' directly, and : verdict, (c) find a general nd the facts Q the verdict lived and re- 1), has been 32 & 33 Vic, ppeal in any affirmed by )n any ques- rt. But now court thereby 453. and see Beg. v. PBACTICE. 505 constituted, where the decision of the oourt of final resort in the province is not unanimous. ( ") It has been held in England that no case can be stated for the opinion of the court for Crown cases reserved, except upon some question of law arising upon the trial. Where therefore, the prisoner had pleaded guilty, and the question asked was whether the prisoner's act, as described in the depositions, supported the indictment, the court held that they had no jurisdiction to consider the case, (g) When a case is reserved, under the Con. Stats. U. C, c. 112, the court may arrest the judgment, with a view to a new in- dictment being preferred, or for other purposes. ( h ) In Beg, v. McEvoy^ (i) the court, under the facts shown, considered they might either enter an arrest of judgment under the statute, or direct judgment to be given as for a misdemeanor at common law ; but the latter course was adopted because it was doubted whether the judgment could properly be arrested, where the indictment, tliough framed imperfectly, as for an offence against a statute, does contain a sufficient charge of an offence at common law. It would seem that the objectiona, on a motion to arrest the judgment, are confined to the points reserved under the statute, {j) Where, on an appeal from a conviction affirmed at the sessions, it appeared th tt the point in question was purely one of law, and there could be no object in sending the case down for a new trial, the judgment was arrested. Qc) The court may, in certain cases, stay the entry of judg- ment until a new indictment is preferred, but in such oase, the indictment must be removed by certiorari. {I) (/) Reg. V. Amer, 2 S. C. R. 593. {g) Reg. v. Clark, L. R. 1 C. C. R. 54 ; 36 L. J. (M. C.) 16. (h) Reg. v. Rom, 1 U.tlJ.L.J. .145 ; ifcflf. v. Spence, II U.C.Q. B. 31 ; Reg. r. Orr, 12 U. C. Q. B. 57. (i) 20 U. C. Q. B. 344. (j) Reg. V. Fennety, 3 Allen, 132. (*) Reg. V. Rubidge, 25 U. C. Q. B. 299. (/) Reg. V. Spence, 12 U C. Q. B. 519. 506 THE CRIMINAL LAW OF CANADA. In criminal matters, foreign law should not be brought be- fore the court, (m) American authorities, though entitled to respect, will not be received as binding in our courts, (n) Nor are English decisions absolutely binding in this country, (o) If, after a verdict of guilty of felony, and when the judge is about to pass sentence, objections are made by the prisoner's counsel in arrest of judgment but overruled by the judge trying the cause, the court in banc has authority to inquire int.0 the validity of these objections, though the record does not state that the prisoner's counsel moved in arrest of judg- ment. The presence of the prisoner at the argument may be waived by consent of parties, (p) The superior court will adjudicate on a reserved case of misdemeanor in the absence of the defendant, who has fled beyond the jurisdiction of the court, (p) "Where a man charged with felony is being tried, whatever may have been his position in life, he must take his place in the dock ; but a misdemeanant, if on bail, is not obliged to do so. (r) In criminal cases, it is always entirely in the discretion of the court to allow a view or not. It is therefore no irregu- larity to allow the jury to have a view of premises where an alleged offence has been committed, after the judge haff summed up the case, (s) The court ought to take such precautions as may be neces- sary to prevent the jury from improperly receiving evidence out of court. Where, at proceedings on a view, evidence wa& received in the absence of the judge, the prisoners, and their counsel, the court for Crown cases reserved held that it is for the court before which the trial takes place, to ascertain whether such irregularity has taken place, and that they could (m) Notman r. Reg., 13 L. C. J. 259, per Duval, C. J. in) Sobert8 v. PattUo, 1 James, 367 ; Jieg. v. Creamer, 10 L. C. R. 404. (0) Meg. V. Boy, 11 L. C. J. 92. (p) Beg. V. Kennedy, 2 Thomson, 204. iq) Beg. v. Fraser, 14 L. C. J. 246. (r) Ex parte Blossom, 10 L. C. J. 69, per Meredith, J. (») Beg. V. Martin, L. R. 1 C. C. R. 378. m '$■'■ PRACTICE. 5or L. C. R. 404. not reverse the conviction on the ground of a mere state- ment of what the judge was informed; and it is doubtful whether, if such irregularity had occurred, this court would have jurisdiction to order a venire do novo, as for a mis-trial; or whether, if the facts were thus tried, and found to be as alleged, they ought to be entered on the record, so as to give an opportunity of taking advantage of the defect by writ of error, or whether the question could be properly raised by a case stated for this court, (t) The judge has a discretion to adjourn the trial when the counsel engaged in it becomes so ill as to be unable to pro- ceed. One of the prisoner's counsel at the trial, whilst he was addressing the jury at the close of the case, was suddenly seized with a fit, and incapacitated from proceeding further. No adjournment, however, was applied for ; but the other» who was the senior counsel, continued the address to the jury on the prisoner's behalf, without raising any objection that he was placed at a disadvantage by his colleague's disability. It did not, moreover, appear that the prisoner had been pre- judiced by the absence of the counsel alluded to, and it was held no ground for a new trial ; bat in such case, if a post- ponement had been asked in consequence of the illness, it would have been in the discretion of the judge to have graut- e:\ it or not, and to have adjourned it for an hour or two, or to another day, or for several days, or until the following court, as might have been thought reasonable, (u) Objections which it is intended to insist on afterwards, must be distinctly raised at the trial ; and as the judge pre- siding is authorized by the Con. Stats. U. C, c. 112, to reserve any question of law for the opinion of the court, it is the more necessary that his attention e'^^uld be drawn to every matter of law which is relied on for the prisoner, whether by way of suggestion on the defence, or of exception to the judge's ruling, or direction at the trial, (v) {t) Reg. V. Martin, L. R. 1 C. C. R. 378. (u) Reg. V. Fick, 16 U. C. C. P. 379. (v) Reg. V. Craig, 7 U. C. C. P. 241, per Draper, C. J. fi 508 THE CRIM.NAL LAW OF CANADA. :f'^'4: I i The objections should also be noted by the judge, for the court cannot notice grounds of objections taken in rules un- less they appear in the judge's notes ; and it is the duty of counsel on moving, to ascertain whether the objections they rely on were noted by the judge who presided at the trial If they do not appear to be noted, a reference should be made to the judge to have the notes amended before they are made the grounds of a motion, (vi) There is nothing to prevent the judge, on a criminal trial, having the notes of the evidence taken in writing by another person, (x) The 32 & 33 Vic, c. 29, s. 32, provides that every objec- tion to any indictment, for any defect apparent on the face thereof, must be taken by demurrer, or motion to quash the indictment, before the defendant has pleaded, and not after- wards. The object of this statute was to prevent waste of time and labor in criminal trials, and to compel a legal de- fence to be resorted to at the earliest possible stage. The court, therefore, will not arrest judgment after verdict, or reverse judgment in error, for any defect apparent on the face of the indictment, which could have been taken advantage of under this clause, (y) The defendant is not in all cases of acquittal entitled to a copy of the indictment laid against him ; and where the charge was for obtaining goods by false pretences, copies of the indictment and papers were refused, (z) A copy of an indictment for high treason may be obtained by consent of the Attorney General, (a) And the same rule seems to apply in felony ; and his decision is not subject to review, (b) At any rate, unless the indictment were re- moved by certiorari, the Court of Queen's Bench would not (w) Beg. V. Dea Jardina G. Co., 27 U.C.Q.B. 380, per Morrinon, J. ; see Also Cousins v. Merrill, 16 U. C. C. P. 120. (sc) Duval dit Barbinas, v. Beg. , 14 L. C. R. 75, per Meredith, J. (y) Beg. v. Mason, 32 U. C. Q. B. 246. (z) Beg. V. Senecal, 8 L. C. J. 286. • (a) Bex V. McDonel, Taylor, 299. (b) Beg. v. Joy, 24 U. 0. C. P. 78. PRACTICE. 509 have jurisdiction, (c) The judge has power on acquittal to order the delivery of a copy, (d) The 32 & 33 Vic, c. 29, s. 26, provides that on an indict- ment for any offence laying a previous conviction, the offender shall in the first place be arraigned upon so much only of the indictment as charges the subsequent offence, and if he pleads not guilty, the jury shall be charged, in the first instance, to inquire concerning such subsequent offence only. If, when found guilty of the subsequent offence, the prison- er denies that he was previously convicted, or stands mute of mrlice, or will not answer whether he is guilty or not guilty, the jury should then be charged to inquire concerning such previous conviction, (e) Where an indictment contains one count for larceny, and allegations in the nature of counts for previous convictions for misdemeanors, and the prisoner, being arraigned on the whole indictment, pleads not guilty, but is not tried till a subsequent assize, when he is given in charge on the count for larceny only, this does not amount to an error, for he was properly given in charge to*the jury, and, having been ar- raigned and his plea entered at v. previous assize, could not be prejudiced by any mistake in his arraignment. (/) Under the English Acts, 5 Qeo. IV., c. 84, s. 24, and 8 & 9 Vic, c 113, s. 1, which are in substance the same as our 32 &; 33 Vic, c. 29, s. 26, omitting the proof of the identity contained in the latter Act, it was held that the certificate of a previous conviction, required by these Acts, is sufficient, if it purports to be signed by an officer having the custody of the records, although that officer is therein described as the deputy clerk of the peace of a borough, (g) ' The 32 & 33 Vic, c 29, s. 45, provides that all persons tried for any indictable offence shall be admitted, after the (c) Beg. V. Joy, 24 C. C. C. P. 78. (d) Heaney v. Lynn, Ber. (N. B.) 27. (e) See Beg. v. Harley, 8 L. C. J. 280. ( f) Reg. V. Ma»on, 32 U. C Q. B. 246. (g) Beg. v. Parsons, L. H. I C. C. R. 24 ; 35 L. J. (M. C.) 167. ll 510 THE CRIMINAL LAW OF CANADA. I I i|. Si dose of the case for the prosecution, to make full answer and defence thereto, by counsel learned in the law. Two counsel only can be heard on behalf of prisoners indicted for criminal offences, and persons trio J for felonies may make their full defence by two counsel, and no more, before a jury wholly composed of persons skilled in the language of the defence, (h) After two counsel had addressed the jury on behalf of the prisoner, a third rose to do so, but was stopped by the court, (i) Two parties accused of the same offence have been held in Quebec not to be entitled to a separate defence. (/) But circumstances might exist which would render its allowance necessary for the attainment of justice. At the close of the case for the prosecution of three prison- ers, defended by separate counsel, one wa8 acquitted, and was called as a witness on behalf of one of the two remain- ing. This witness criminated the other prisoner ; and it was held that the counsel of the prisoner criminated had a right to cross-examine and address the jury on the evi- dence so given ; and that, as this right had been refused, the conviction of the prisoner must be quashed, although the court had offered to put the questions suggested by his counsel, (k) It has been held that, in cases of public prosecutions for felony instituted by the Crown, the law officers of the Crown, and those who represent them, were in strictness entitled to the reply, though no evidence was produced on the part of the prisoner. (/) But in Ontario, a counsel for the Crown, not being himself the Attorney or Solicitor General, had no right to reply in an ordinary prosecution for crime, where no witnesses were called for the defence, (m (h) Reg. v. D'Aouat, 9 L. C. J. 8 5. {%) Ibid. ij) Reg. T. McConohy, 6 Remie Leg. 746. (t) Reg. V. Luck, 1 U. C. L. J. 78 ; 3 F. & F. 483 ; see also lieg. v. Coyle, 2 U. C. L. J. 19. (/) Reg. V. Qualre PaUes, 1 L. C. R. 317. (m) Reg. v. McLeOan, 9 U. C. L. J. 76. PRACTICE. 611 Lao Aieg. v. Coyle, Now, however, the right of reply shall always be allowed to the Attorney or Solicitor General, or to any Queen's counsel, acting on behalf of the Crown, (n) A clerk of the Crown in Quebec, being a Queen's coun- sel, has a right to be heard in a criminal case, on behalf of the Crown, notwithstanding Cou. Stats. L. C, c. 77, s. 75 ; and the duties and powers of clerks of the Crown not being defined in their commissions, nor by statute, the court will look to the English law, and the powers and duties of the master of the Crown office there, as a guide in deciding on the duties and powers of clerks of the Crown in Quebec, (o) Crown prosecutions differ from ordinary civil suits ; for, if the Queen be prosecutor, there can be no non pros., or non- suit or demurrer to avideuce. The prosecutor may be a wit- ness but not the defendant, and if the latter obtalii judgment, he is not entitled to costs, (p) Error. — A writ of error lies for every substantial defect appearing on the face of the record, for which the indictment might have been quashed, or which would have been fatal on demurrer, or in arrest of judgment. A writ of error is, there- fore, the proper remedy for certain substantial defects appear- ing on the face of the record, {q) A court of error is confined to en-ors appearing on the face of the record, and cannot exercise an appellate jurisdiction, and inquire into the facts of the case, (r) and affidavits for this purpose are inadmissible. Nor can the judge's notes be looked to, as they form no part of the record, (s) Unless there be manifest error on the face of the record, it is the duty of the court to affirm the judgment, {t) The matter is to be decided as a strictly legal proposition, ■and no consideration of the effect which the decision may (n) 32 & 33 Vic, c. 29, a. 45, subs. 2. (o) Reg. V. Carter, 15 L. C. R. 291. (p) Reg. V. Pattee, 5 U. C. P. R. 295 ; 7 C L. J. N. S. 124. (q) Duval dU Barbinas v. Reg., 14 L. C. R. 71. (r) Duval dit Barbinas v. Reg., 14 L.C.R. 79, per Duval, C. J. ; ibid. 75, per Meredith, J. ; Dougall v. Reg., 22 L. C. J. 133. («) DougaU v. Reg., 22 L. C. J. 133. (0 Whelan v. Meg., 28 U. C. Q. B. 139, per Draper, C. J. vr 612 THE CRIMINAL LAW OF CANADA. [•(, , •: have upon the parties will be permitted to be taken into consideration, to mould the judgment of the court by the exercise of discretion, {u) No writ of error will be allowed in any criminal case, unless founded on some question of law which could not have been reserved, or which f^" j -ny- 0') : to the En the Privy Council was granted to the Attorney General of New South Wales, from an order of the Supreme Court in that colony, whereby a verdict of guilty of murder, obtained by the Crown, was set aside, and a venire de novo for a re-trial ordered to issue. The leave was granted on the same conditions as in Beg. v. Bertrand, and the proceedings in the colony were stayed, pending the appeal. (/) Leave to appeal has been given from an order of the Supreme Court of Civil Justice of British Guiana, com- mitting the publisher of a local journal to prison for six months, for an alleged contempt of court, in publishing in such journal comments on the administration of justice by that court, with liberty to the judges of the Supreme Court to object to the competency of such appeal at the hearing, (wi) Special leave to appeal will be granted where the question raised is one of public interest, such as \he constitutional rights of a colonial Legislative Assembly, (n) Permission was given to appeal, in forma pauperis, in a case in which the appellant was not heard in the court below, and was denied leave to appeal to Her Majesty in council, the decision being, in fact, ex parte, (o) Leave to appeal from an o'der of the Supreme Court of Nova Scotia, suspending an attorney and barrister from prac- tising in that court, has been granted, though, under the cir- ( ;■) Be Ramsay, L. R. 3 P. C. App. 427. (k) Reg. v. Amer, 2 S. K. C. 593. (I) Reg. V. Murphy, L. R. 2 P. C. App. 535. (m) Re McDermott, L. R. 1 P. C. App. 260. (n) The Speaker of the Legislative Assembly of Victoria v. Olass, L. R. 3 P. C. App. 660. (o) George v. Reg., L. R. 1 P. C. App. 389. 524 THE CRIMINAL LAW OF CANADA. m oumstanoes, it was incumbent on the* appellant to apply to Her Majesty, in the first instance, to admit the appeal. On a suggestion of the injury and delay which an application to Her Majesty would create, the appeal was allowed by the Privy Council (p) Special leave to appeal was granted under the circum- stances shown in Beg. v. Murphy, (q) Special leave to appeal from a conviction of a colonial court for a misdemeanor having been given, subject to the question of the jurisdiction of Her Majesty to admit such an appeal, and it appearing at the opening of the appeal that, since such qualified leave had been granted, the prisoner had obtained a free pardon and been discharged from prison, the judicial committee declined to enter upon the merits of the case, or to pronounce an opinion upon the legal objections to the conviction, the prisoner having obtained the substantial ■ benefit of a free pardon. They accordingly dismissed the appeal, (r) It seems the Privy Council would entertain an appeal from a provincial Court of Appeal, without express leave of such court, (s) No appeal to England is expressly given by our statutes* in criminal cases, but several appeals to the Privy Council have been made in the Dominion. The Crown may issue fi. fas. for the sale of goods and lands in order to satisfy a fine imposed, and may include both classes of property in the same writ ; and may make it re- turnable before the end of twelve months, the Crown not being bound by the 43 Edw. III., c. 1, (t) But the court may, at any time, interfere, as exercising the power of a Court of Exchequer, to restrain undue harshness or haste in the execution thereof, (u) (p) Be Wallace, L. B. 1 P. C. App. 292 3. (q) L. R. 2 P. C. App. 638. ^ (r) Levien v. Reg., L. R. 1 P. C. App. 536. («) Whdan v. Reg., 28 U.C.Q. B. 186, ^per Draper, C. J. ; Naiker v. YeUia, L. R. I P. C. App. 1 ; Ko Khine v. Snadden, L. R. 2 P. 0. App. 50. (t) Reg. V. Denardina Canal Co., 29 U. C. Q. B. 166. (u) Ibid. bo apply to ppeal. On plication to ved by the • he circum- a colonial ject to the tiit such an ppeal that, risoner had prison, the ?rits of the )jections to substantial missed the ppeal from ve of such iisriDE ir statutes* vy Council 1 and lands ilude both aake it re- Crown not the court of a Court ste in the kerv. Yettia, )p. 50. i I u !i IISriDEI PASB. ABANDONING CHILD— («e« Child) 323 ABDUCTION— Of girl under sixteen 214 ABORTION— Administering noxious thing to procure 209 Noxious thing, what is 209 ACCESSORIES— Before and after the fact 75 Only in felonies 75 I: . misdemeanors all are principals 75 May be to new statutory felonies 79 No accessory to felony unless felony committed 75 Manslaughter, no accessories before the fact in 75 But may be after the fact 75 Offence of accessory distinguishable from that of principal in second degree , 75 What authority or procurement renders man liable as accessory. . . 76 Distinction between civil and criminal cases 76 Procurement, how effected 76 Must be some active proceeding on part of 77 Consequences if authority not pursued 78 Or if accessory repent 78 After the fact, what constitutes 79 Wife not accessory for receiving her husband 78 Accessories, how far relieved from responsibility when principal does not pursue authority 78 Accessories to felonies created by statute 79 Statute as to trial of accessories 79 ACCOMPLICE— (see Evidence). ADJOURNMENT - Of trial, when granted 507 Of Sessions {see Sessions). ADMINISTERINfi— («ee Abortion). i )4 628 INDEX. PAOI. ADMINISTRATION— (««c Summary Administbation of Criminal Justice). ADMIRALTY COURTS— Jurisdiction of (see Piracy). ADVOCATE— («c€ Attobnby). AGENT— Liable for act done under authority of his principal 76 AGGRESSIONS— Lawless by subjects of foreign countries at peace with Her Majesty 320 et seq. 31 Vic, c. 14, as to 320 British subject by birth may become citizen of foreign state 321 May be so treated at option of Crown 321 Evidence of being subject of foreign state 321-2 Of entering Canada with intent to levy war 322-3 Person acting in any character is liable 322 Evidei-oe of engagement several hours before arrest of prisoner is admissible 323 Person acquitted as citizen U. S., cannot plead autre foia acquit when indicted as British subject .. 323 28 Vic, c 1, as to repressing outrages on frontier 323 AMENDMENTS— («ee DiflFerent Subjects). ANNOTATIONS— Of miscellaneous statutes r 317 "t seq. ANIMALS IN TRANSIT 345 APPEALS— In cases of summary convictions 440 In matter not a crime 440 Procedure on 440 et seq. Recognizance to try form of 442 Enrolment if not necessary ' 442 Notice of appeal 440 et seq. Usually heard first day 443 Waiver of right to appeal . . . , 443 Jury, trial by, right to 444 Judge in chambers in liquor case 443 Adjourning appeal 444 Reinstating 444 Evidence on 444 Enlargement, what it waives 445 Costs on 446 INDEX. J 529 APPEALS — Continued. paob. Allowing without aflftdavit 446 From sessions to superior courts of law 445 To superior court when question reserved at sessions or Court of Oyer and Terminer 445 Rules as to must be complied with 440-41 To Privy Council, when allowed 523 et seq. Under various statutes 440 to 447 APPRENTICES AND MINORS— Act Con. Stat. U. C, c. 76, as to ;......... ....". 329 When apprentice is minor, articles must be executed by some one on his behalf 329 Absolute imprisonment not authorized 329 ARRAY — (see Jurors). ARREST— By magistrate, constable, etc., et seq. {see Manslaughter). ARREST OF JUDGMENT— When case reserved 505 Objections on motion, how limited 505 Presence of prisoner may be waived 506 ARSON— Another, house of 291 Attempt to commit . . ., 296-7 Building, what is 292 et seq. Need not be a finished structure 293 Burglary, decisions as to apply to arson 292 Burning must be actual 292 And malicious and wilful 292 Construction of statutes 291 Definition 291 Evidence of intent to defraud when man sets fire to his own house 294 What is sufficient 294 et seq. Goods, setting fire to 296-7 In own use, with intent to defraud 297 Grain, setting fire to stack of 297 Indictment for setting fire to own house 295 Allegation of intent to defraud 296 Surplusage in 295 Arson not a term of art 296 Intent to defraud inferred from act itself, when house of third person set fire to 294 A it must be wilful 294 HH 630 INDEX. VkQt ABSOJ^ -Oontinued. '^.Jhen own house set fire to, must be actual evi/^enc*^of incent 2^- What is sufficient 294-,^ Jury, finding of, conclusive as to what CD4 Malicious burning must be 292 Married woman not liable for setting fire to house of husband . . . 295 Negligence in burning 292 Occupied, house must be 293 Must be intention of returning 293 Ow ufcr of house, whether liable . . 2*^1 Returning, must be intention of 293 Shop, what is 292 Statutes, construction of 291 Surplusage in indictment , 295 Wife (aee Married Woman). ASSAULT AND BATTERY— Aggravated 223 On indictment for, may be convicted of conounon 217 Apprehension of violence no justification 222 Bodily harm, with intent to do grievous, what amounts to ass&vlt, with 220 Firing loaded pistol into group shows intention to do grievous bodily harm 220 Capital felony, assault may in some cases amount to 224 Carnal knowledge, attempt to have, laay be assault 216 Charge of offence which includes assault 218 Common assault, when there may be conviction of 217 Con. Stat. Can., c. 91, did not apply to \ 221 Complaint of, under 32 at'd 33 Vi(, » c. 20, s. 43, cannot be with- drawn . 410 Conductor on train V hen not liable ''..• assault 216 Consent, can be no assault where there is (see Rape)... 217 Correction, moderate, is justifiable (ace Master) 223 Crime, including assault, on indictment for, may be conviction for assault 218 But the crime must include assault 218 And the assault, in case of death, must conduce to the death 218 • Indictment need not charge assault in terms 219 y! Definition of 215 Indictment, for carnally knowing girl, there may be conviction for assault upon 217 When indictment charges common assault 219 •-' Need not charge assault in terms 219 For inflicting grievous bodily harm 220 For shooting with intent to do 220 Cnarging agjp*avated assault 217-23 INDEX. ^ 531 ASSAULT AND BATTERY -Continued. ,a«. Intention necessary to :nak.e act assault 216 Intruder, assault upon 222 Justification of assault in self-defence, what amounts to 221 Of shooting with pistol 216 Malice, necessary in assault, under 32 & 33 Vic, c. 20, s. 19. . . , 220 Master, moderate correction by, is justifiable 223 Misdemeanor, assault is 224 Of officers in discharge of duty (See Obstrcctinu, Manslaughter. ) Punishment of 224 School teacher 223 Servant, moderate correction of, justifiable. 223 Sessions have power to try 224 Words cannot amount to 221 Turning intruder out when request to leave necessary 222 ASSEMBLY (see Unlawful Assembly^ ATTACHMENT— (see Contempt). ATTEMPTING— To commit crimes 59 et 8eq. ATTORNEY— Cannot act as advocate in Court of Sessions 475 No right to appear before justices on charge of indictable ofi'ences. 407 But may in case of summary convictions 407 AUTREFOIS ACQUIT— («cc Pleading.) BAIL— Principles on which granted 479-80 On charges of perjury, arson, larceny, murder, treason, felony, and misdemeanor 480-81 On application for, court may look at information and ren ly commitment 481 Lapse of year from imprisonment 481 If prisoner about to die 481 Accessories after the fact 481 Obligatory, in case of misdemeanor as well after as befor ■ indict- ment found . . . 482 After two trials and discharges of jury for disagreement 482 One justice may bail in misdemeanor, but not in felony 482 When case reserved, court which tried prisoner must bail 482 One assize liaving passed over without committal of prisoner. . . 482-3 Forfeiting, after pica of no' guilty 483 If offence bailable may je released at any time, on giving f r..per sureties 483 '5 'Ji 632 INDEX. BAIL — Continued. paoi. Practice as to entering up judgment on the recognizance 483 Belief from estreated recognizance 484 When judges of Queen's Bench should estreat 484-5 Rescinding order for bail 485 When better sureties may be ordered 485 Application made on affidavits entitled in the Queen's Bench 485 Certifying commitment, information, etc 485 BANKING ACT— Deceptive return under 329 Intent 330 Indictment 343-4 BARRISTER— («ee Counsel.) BATTERY— («ce Assault.) ' . ' ' BETTING 345 BIGAMY— '■ '^^ ^"/ '.*^':. •'■*:.'■■■ Absence of first wife, when defence 125 After absence for seven years, onus on whom 125-6 Banns, validity of marriage contracted by . . 127-8 In case of minors 127 Common law of England, as to marriages introduced 127 Cr nsent, age of 130 MaiTiage, before age of, must be ratified 130 England, common and statute law of, introduced 127 Evidence- Extract from register of marriage .... 124 Of reputation will not suffice 124 Must be direct proof 124 Admission of first marriage sufficient 124 But must be unequivocal 125 First wife, not admissible till proof of first marriage 124 What sufficient of marriage celebrated in State oi New York 124 Onm of proof 125 Skriffl _)''--^ias, when may issue 130 Foreign i-"untry, when n.arriage in will be held invalid here 130 Fort'gn juiisdiction, statute extends to bigamy committed in. . . . 130 Indictmmif^ for bigamy committed in States 130 Jewish marriage, written contract not essential to validity of 129 Mai iage, first must be legal 122 !Sec«.ml need not 123 Laws in relation to 127 " Going through form of marriage sufficient 1 23 PASI. kce 483 484 484-5 485 """ 485 i Bench 485 485 329 '" 330 343-4 345 125 '[ 125-6 127-8 127 i' 127 130 130 127 124 124 124 ['_ 124 125 riage 124 or New York 124 125 "... 130 lid here 130 mitted in. . . . 130 130 ■raiidityof 129 122 *' 123 ''.""' 127 123 INDEX. 533 BIGAMY— Cmtinmd. paob. By man with sister of deceased wife 128 Inlreland : 129 Jewish 129 Of squaw and Lower Canadian 130 In foreign country, by persons not British subjects 130 Successive marriage 127 Minors may marry by banns : 127 OntM of proof, when on prosecution 125 Presumption of death after seven years' absence 125 But not that he is living 126 Sister, marriage with, of deceased wife 128 Soldier, convicted of bigamy not discharged from military service 130 Statutes 32 & 33 Vic, c. 20, s. 58 122 4 Ed. VI., Stat. 3, c. 6 122 3 Jac. I., c. 33 122 26 Geo. II., c. 54 127 5&6 Wm. IV., c. 54 122-7 Wife, first, not admissible as witness 124 Absence of first 125 Deceased, marriage with sister of . . , 128 BILL OF EXCEPTIONS— - Does not lie in criminal cases 379 ■ ' ■ ' ..'. ■- . -■ BIRTH — (see Concealing Birth). ,; .■ BRITISH COLUMBIA— (aee English Laws in Force). BURGLARY— Breaking necessary 225-7 Must be actual 225 By fraud 226 Chimney, ei trance by, is burglary 226 Conspiracy, entrance by, is burglary 227 Daytime, no burglary in 228 Only housebreaking 228 ' Definition 225 Dwelling-house, what is 228 Formerly included out-houses, etc 228 Must be inhabited 228 Entering necessary 225 By open door or window 226 Other cases of 225 By chimney 226 By conspiracy 227 m si; 584 INDEX. iss I BVKQhARY— Continued. PA«fc In night 228 Own house... 230 Fraud, breaking by 226 Inhabiting house necessary 228 Occasional absence immaterial 228 Intent must be to commit felony 229 To commit trespass insufficient 229 Night, burglary can only be committed in 228 When night commences and ends 228 Breaking ami entering need not be both in same 228 Own house, man cannot commit burglary in 230 Roof, entry through hole in, not burglary 226-7 Statutes 227 etaeq. Time of committing 228 CERTIVRARI— Whether it can issue in vacation 449 When granted, of course 466 When court has discretion — 466 Must be obtained on aflfidavit 456 What words in statute take away right to 467 Void proceedings, removing by 467 When granted, though right to taken away 467 If conviction in court, no writ necessary 458 None after verdict or judgment, or acquittal 458 To remove order, quashing conviction on appeal to sessions 458 Wh-jn conviction aflBirmed 450 When imprisoned for contempt of court • 459 .'Ivlere irregularities not sufficient 469 Difficulties in point of law 469 What proceedings may or may not be removed by 458-59-60-61 Only substitutes superior for inferior court 462 Application for should be made in first term, or within six months after conyjction 462-3-7 This rule does not apply to the Crown 463 Notice to convicting justice 463-4 And to chairman of sessions 463 No notice necessary when writ obtained by private prosecutor, or where conviction already in court 465 Application for should be by summons 465 Renewing on amended materials 465-6 Affidavit of service of notice 465 Where Christian name mis-stated 466 Entitling affidavits, rules, etc 466-7 Addressing writ 467 INDBX. 635 CERTIORARI— Continued. pagi. Serving 468 Quashing conviction ou return to 468 Affidavits may be used to show want of jurisdiction 466 Judgment on 468 Return ot notice of motion for 469 Return to by justice 469 Amending return 469 Full faith and credit given to 469 If material evidence omitted 469-70 Returning conviction 470 Under seal 470 Attachment, for not returning 470 Costs 471 Amending, quashing 468-70 Decisions in Quebec 471-2 CHALLENGES TO JURORS— («ce Jueors). CHAMPERTY AND MAINTENANCE .. 117 Definition of 117 Are common law offences 118 Crown bound by law 118 Object and principles of law 117-18 Sharing in profits essential 120 Suit pending, whether must be 119 Titles, selling pretended 121 Act 32, Henry VIIL, c. 9, as to 121 Practical repeal of in Ontario 122 What is offence within 121 CHEATS AND FRAUDS— Actual prejudice must be 287 Common law offence 287 .Definition 287 False token or mark — 287 , Indictment must allege that article passed off by false token 287 And that selling was by means thereof 288 Prejudice must be actual 287 Private fraud, what is , .. 287 Token must be false 287 CHILD— Unlawfully abandoning and exposing 323 Act only applies to persons bound to maintain 323 . Does not apply if child dies 324 What is offence within statute 323-4 Refractory, in Province of Quebec ... 344 536 INDEX. W I i 1 CHOSES IN ACTION- Assignable at law (nee Larceny). PAfl. CHURCHES— MaintenaD.ee of good order in 339 Act must be done during divine service 339 Commitment without first issuing warrant of distress 339 CIVIL ACTION— (as.? Crimes). COERCION— By master or workman. 116-17 COINAGE OFFENCES 80 Imperial statutes in force 80 Indictment should negative lawful authority or excuse 80 And bring offence within statute 80 Previous conviction 80 Resemblance to real coin 81 COLONIES— (ace English Laws IN Force). ' COMMITMENT— («ec Warrant). Warrant for indefinite time 432 Need not show information on oath, but must state place of com- mitting offence ... 424-5 I, Certainty and precision in 425 Should follow forms 426 Signing by one or two justices 427 , Issuing of, when discretionary 427-8 Should ascertain amount of costs 422-3 Executed under Act after repeal . . 428 Should show before whom the conviction was had 428 Cannot be withdrawn from gaoler's hands 428 1 Should set forth day and year 429 And authority of magistrate 429 •.' Should be in writing 429 ^ Final for want of sureties to keep the peace (see Warrant) 429 COMPLAINT OF ASSAULT— Under 32 & 33 Vic, c. 20, s. 43, cannot be withdrawn 410 ,., Justices will be ordered to hear it 411 Discretion of justice 411 Adjudication and certificate 411 : What certificate bars , 411 < Amending information 412 et seq. COMPOUNDING FELONY 107 Compromising prosecution, only by leave of court 107 Informations on penal statutes 107 PA9r • •• •• •• tfdu 339 339 11617 80 80 80 80 80 81 .'.:':.!!....!.. 482 ce of com- 424-6 425 426 427 427-8 422-3 428 428 428 ....... 429 429 429 INT) 429 410 411 411 411 411 .. 412 et seq. 107 107 107 INDEX. i. 537 COMPOUNDING YEhOIiY— Continued. ,Mm. Misdemeanor, compounding of, illegal , 107 Prosecution, compounding 107 Qui Indictment for embezzling cheque 269 Laying property 259-60 Forms of, in statute ... 260 Only apply to one species of 260 Specifying coin in... 260 Intrusting 257 Joint owners {«ce Indictment)... 257 Master, receiving money from and for 256 Money, embezzlement of 260 Property in 260 When sufficient to allege embezzlement to be of 260 Mortgagor cannot be guilty of 264 Particular sum, receipt of ... 267 Partners (see Indictment). Possession in master or owner 266 Receipt from third persons 256 From master or owner 255-6 Return, intention to 257 Servant, who is 2^4 *t 8«q. ENGLISH LAWS IN FORCE— British Columbia 4 « British North America Act 4-6"' Constitution granted by 4-5 Colonies, modes of acquisition 1 Laws prevailing in each case 1-2 No precise rule as to 6 'f 544 INDEX. V ENGLISH LAWS IN FORCE-Continued. pmi. Common and statute law extending to colonies, distinction between 7 Criminal law, right to legislate on, by Dominion parliament. 4-S By local legislature, to what extent 5 Dominion parliament 6 Right to legislate on criminal law 6 English laws, only such as are of general and universal applica- tion introduced by 14 Geo. III., c. 83 6 Forcible entry, statutes as to in force 9 Imperial parliament hasfpower to bind colonies by legislation... 6 Imperial statutes affecting different provinces 2-5 When they extend to colonies 6 Introduction of English criminal laws on much same footing in Al provinces 17 Local legislatures, how far have right to legislate on criminal law. 6 Lotteries, Act as to, in force 7 Manitoba, how acquired , 2 How formed 3 Jurisdiction of general court in 3 Marriage, common and statute law of England as to, introduced.. New Brunswick, how acquired 2 Nova Scotia, how acquired '. 2 Ontario, how acquired 2 Prince Edward Island 4 Provinces, only such laws as are applicable and necessary intro- duced 8 English statutes of general and universal application apply to 6 Quebec, how acquired 2 Repeal in England of Act introduced into colony, effect of 7 Statutes introduced : 32Henry VIIL, c. 9 20 20Geo. IL.c. 19 8 5 & 6 Edward VL, c. 16 8 49Geo. III., c. 126 9 I W. &M., c. 18 9 8&9Wm. in.,c. 27 9 33 Hy. Vm.,c.20 9 26 Geo. IL, c. 33 9 21 Geo. III., c. 49 10 Mutiny Act 22 Statutes not introduced : 5 Eliz., c. 4 8 28 Geo. IIL, c. 49 8 INDEX. ; 545 itinction 7 lent 4-5 5 6 6 applica- 6 .' 9 islation... 6 2-8 6 ting in a11 17 ninal law. 6 7 2 """" 3 '.' 3 itroduced.. 9 2 y... 2 """. 2 "'. 4 ,ry intro- 6 m apply to 6 ..... 2 tof 7 20 8 8 9 9 9 9 9 10 22 8 8 ENQUSH L\WS IN FORCE— Continued. ,mu. Statute, whole of, must be substantially applicable before it oan be in force 8 Time, Inpse uf should render colonial courts cautious in adopting English statutes 6-7 Titles, statutes as to buying disputed, in force here 8 ENLARGEMENT— Waives all formal and technical objections ' 445 ERROR— When indictment lays previous convictions 609 Writ of, lies for substantial defects appearing on the face of record 511 Matter decided as strictly legal proposition 611 Where venire facias addressed to improper parties 611 Must be founded on some question of law which could not have been reserved 612 Discretion of judge not reviewable in 612 Improper disallowance of challenge 613 On adjudication for contempt 613 For improper award of venire de novo 613 To reverse judgment of sessions 513 Upon summary convictions 513 On judgments 513 Where, in fact, and not in law, court in which proceedings taken. 513 Form of writ 614 Fiat of Attorney General 514 Assigning new, on argument 514 What matters can be raised on record, so as to be examined in. ... 514 Not the rulings of the judge or his directions to the jury 514-6 What a prisoner can consent to, to purge error 615 C!oncilium for argument 616 ESCAPE— What is 187 High contempt and misdemeanor 187 Party must be actually arrested and legally imprisoned 187 Imprisonment must be continuing 187 Negligent and voluntary 187-8 What is negligent 188 Custody of law, how long it continues 188 EVIDENCE— Accomplice, evidence of , sufficient 364-5 Should be corroborated 366 But evidence need not affect identity of accused, or show him guilty party 361^ I I 546 INDEX. I 1 liii EVIDENCE— Con/inu«/. ,mm. Rule only of prootice 356 Acquittal of one prisoner in order to call him as witness for an- other jointly indicted 360 Discretionary at close of prosecutor's case 301 Obligatory at clone of prisoner's 361 Copy of record of 376 Affirmative, burden of proof on party asserting Ml Application to Crown for pardon in case of improper conviction... 379 Arson, verbal admission as to insurance admissible 372 Assault, defendant competent witness in cases of common 381 A uthority , inducement held out by person in 362 et sfq. When confession to person in, admissible 362 Bill of exceptions does not lie in criminal case 379 Burden of proof, rules as to 347 Lies on party asserting affirmative 347 Except where negative proof is peculiarly within knowledge of party 347 Caution should be given to prisoner before making confession .... 363 Challenges, prisoners severing in, when one may be witness for the other 352-3 Charge not the same as that on which deposition taken 369 Child, when competent witness 353 Close of case, no evidence admissible after ... 378 Competency of witnesses 353-4, 7,374, 380 Confessions, rule as to, different in criminal from that in civil cases 346 Must bo free and voluntary 362 If under oath, inadmissible 362 But this i-ule only applies when charge is against prisoner himself 362-3 Inducements to confess 362 et aeq. Caution, what necessary 363-4 Examinations before commissioner in bankruptcy 367 Made under the hope of being permitted to turn King's evi- dence 364 To constable, by accused in his custody 365 Advice on moral grounds.... 365 Subsequent warning or caution, after inducement held out.... 366 Names of others in 367 Duty of magistrate, in receiving 367 Confidential communications, witness not compelled to disclose... 367 Consistent with prisoner's guilt, all circumstances must be, and inconsistent with innocence 318 Contradicting witness, not by irrelevant question 359 Conviction of justice, when it is a record ... 375 iNnpx J 547 366 I for Ml- 350 351 351 376 .^7 riction... 379 372 n 381 . .. 362 f <«?'/. 362 379 347 347 uowledge 347 Bsion .... 363 ess for the 352-3 369 353 1 378 -4, 7, 374, 380 it in civil :W6 362 362 priBoner 362-3 ...M2et8eq. 363-4 367 ing's evi- 364 366 365 leldout.... 366 367 367 isoloBe... 367 t be, and 318 359 376 KVIDKNCE-Co»»/inii«<. rAei. How proved 375 Proof of quashing 376 Copy of record of acquittal 376 Coroner, depositions Ijefore, how proved 368 Court, record of same and different, prooi ^ 375 Credibility of evidence solely for jury 348 Credit of witness, impeaching 358 Criminatory questions, witness not bound to answer.. 357 Cross-examination as to previous statements in writing . 359 Irrelevant questions should not )>e put to witness on 368 Crown, application to, for pardon 379 Deceased witness, statement of, when admissible 370 Depositions, object of taking 367 Inspection of ,367 Evidence discovered after .. 307-8 Before coroner or magistrate, proof of 368 Reading before grand jury 368 Each need not be signed by justice 369 Admissible on dififerent charge from that on which taken 369 Absence to render admissible .. ,?69 Illness necessary 369 Looking at, on return to Aa6fa« corptM 448 Of persons dangerously ill 370 Discrediting own witness 465 Documentary evidence. Act as to 381 Doubt, reasonable, prevents conviction 346 Dying declarations, when admissible 373 ^, Must be no hope of recovery .... 373 Objections to this kind of evidence 374 Effect of evidence, difference between civil and oi.,innal proceed- ings 346 Error, raising points to be examined in 379 Estoppel, doctrine of, has much larger operation in civil than in criminal proceedings 346 Explanation of circumstances pressing against accused person, when required... 347 Fabrication of evidence 380 Felonies, when evidence of one adm.issible to show character of other 371-2 Proof of finding of indictment for 377 Finding of indictment, proof of 377 Formal record, when not necessary 376 Forms of depositions 367 Gazette, when evidence 378 Grand jury, depositions before 368 ■4 4 548 INDKX. j Hi KVIDENCE— Con/iniiw*. ,mm. Guilty knowledge, how p^-ovrd 371-2 Handwriting, proof of 3fi2 Hearsay evidence not admiwiiblo 372 Illegal evidence may l)e ruled out 366 lUneia sutiicient to render depocition admiMible ,369 Impeaching credit of witneaa 3fi8 «•< av/. Witnesaes may prove that they would not believe him on oath 360 Contradicting hii statement 360 Formal and legal way of 361-2 Inadmissible evidence, correct course when it is received 366 Incompetent witness, evidence of, may be withdrawn from jury... 366 Indian witness, when competent 3A3-4 Indictment, proof of finding .380 Inducement excludes confession ... 362 e/ «<•.4-7, 374, 381 367 357 357 357 357 358etseq. 359 359 370 361 380 96 96 96 97 208 208 130 10 10 26 39 11 11 .ty 23 EXTRADITION— Con/i»tt«f. pagi. Arrest, warrant of, who may issue 26-9 Foreign, must issue before commitment 29 Bail may be granted when 46 Burglary not within treaty 22 Commitment {aw Warrant of Cohmithknt). Construction of treaty 17-21 Depositions when court will look at 43 Discharge if committed on insufficient evidence 39 Evidence, our law governs as to 14-38 Must be taken before magistrate issuing warrant 30 Tira voce may be received 37 And original depositions or authenticated copies 37 Need not be on particular charge 37 But no obligation to produce depositions 37 How Act as to depositions should be construed 37 Affidavit, admissibility of 38 Professional gentleman, evidence of 38 Foreign indictment not receivable 38 Examination of witnesses, how conducted 32 Sufficiency of evidence, by whom and how determined 33 Evidence in defence 38-9 Admissible to show that crime not within treaty. 39 Or witness not to be believed 39 Or that charge brought, the result of a conspiracy 39 Accomplice, evidence of, sufficient 39 Slave, evidence of, sufficient 39 Expenses, how payment of, enforced 47 Extradition Act, 1870, construction of 16-17 Forgery, when within treaty 23 France, extradition to 47 Governor General, surrender only by 31 No power except ovtr specified offences ... 31 Controlled by courts 31 Need not issue warrant authorizing magistrate to act 20 ^oieew coTTnM, right of court to interfere by 39-43 Same as in other cases 40 B«tumto 41-2 Information, when too general 34 •Jay's treaty related only to murder and felony 11 "Jurisdiction" and "territories," how used in treaty. 13 Legislation, with regard to 12-17 Magistrate, who may act as 26-9 Duty and authority in committing prisoner. 33 Cannot try case 33 Discharge by one does not prevent another from acting 33 552 INDEX. I I w i4 EXTRADITION— Continued. paob. Issuing warrant must hear evidence, and determine upon its sufficiency, and send copy to governor. 30 Decision not binding on governor 30 Jurisdiction must be judicial aa well as territorial. 27 Offences to which treaty applies 19-25 Nature of 20 How treaty construed and carried out as to. 20-21 Whether misdemeanor or felony immaterial 25 Piracy, when within treaty 23-4 Procedure, alterations made in, by Imp. Extradition Act, 1870.... 16 Requisition by Oovcmment of United States not necessary 29 Review by court of mtigistrate's committal of prisoners for extra- dition — («ee HABEA.S Corpus) 40 Slave, evidence of , sufficient 39 Statutes in aid of treaty — Con. Stats. U. C, c. 96 13 How far now in force 13 6&7Vic.,c.76 12 Not now in force in any of Provinces 12 12Vic., c. 19 14 . 23 Vic, c. M 13 ,... ' 24 Vic, c. 6, why passed, provisions of 13 31 Vic, c 94, why passed, effect of, what it repeab 15 33 Vic, c 26 16 6&7 Vic, c 75 47 6&7 Vic, c 34 48 Imperial Extradition Act, 1870 and 1873 15-17 40 Vic, c 25D 16 Surrender, none till fifteen days after commitment 31 Only for offence charged and proved 31 Can only be made by supreme authority r4, 30 Suspicion doubtful whether ground for detaining prisoner 36 Trial here, for offence for which prisoner not extradited ... 46-7 Warrant of arrest — {see Arrest). Warrant of commitment, when good 43-6 When not within treaty 43 Should follow statute 42 Must show that magistrate deemed evidence sufficient to jus- tify apprehension 44 And that offence committed in States 44 Need not set out evidence 44 Nor show previouscharge or requisition orwarrant of Gk>vemor General 44 Must mention day and limit time for confinement of prisoner. 44 In.- INDEX. 553 EXTRADITION— Con«na«rf. tab: What words in, involve "assault with intent to commit mur- der" 46 Authority of magistrate need not be shown on face of 45 Seconded or amended warrant may be delivered to gaoler by magistrate 45 Warrant of Governor General no proof that prisoner extra- dited for forgery 46 FACT— Mistake in, is defence 70 Determined by jury [aee Jury). FALSE PERSONATION— Of voter at municipal elections 288 Indictment for 289 Voting in name of another 288 When person dead 288 Personation need not be successful 288 FALSE PRETENCES— Acquittal when facts show larceny 267 Acts may constitute pretence 266 Bank note, misrepresenting amount of 262 Pretending that piece of paper is 262 Cheque, what representation of 261-2 Construing; law as to 260 Continuing, when pretences must be .. 265 Must continue till time of obtaining.. 265 Contract between' parties with knowledge of false pretence 262 Court, pretending to be officer of 337 Acting under color of process 338 Delivering process 338 Credit in account 262 Diatinction between, and larceny 270 Evidence, of note being of no value 262-3 Of obtaining coat by ... 263 Exaggerated praise 264 Existing fact, must be false pretence of . 2XiO »t seq. False, pretence must be 260 Indictment, when facts show larceny 267 May be convicted of false pretences 267 Showing pretence of existing fact 268 When sufficient 267 et aeg. Laying property 260-70 Uncertain or doubtful ...' 269 554 INDEX. m mi I mi FALSE PRETENCES— Continued. pa«i. Obtaming board 269 Must define goods 209 Need not allege ownership 260-70 For obtaining cheque 270 Induced to part with property by false pretence. 264 Intention to pay immaterial 266 Jury, what questions are for 266-7 lArceny proved on indictment 267 Loan, obtaining of ... 262 Particulars of 269 Partner obtaining by 267 Pay {»ee Intention). Pretence muut be untrue 260 ProAecutor must be induced to part with property by 264 Of present or past fact 264 Need not be in words 266 Promise to do something in/uluro 260 Property in chattel must pass 265 Proximate cause of loss, must be 26^ Quality, specific representation of. 204 Signature, obtaining of 266 Venue 268 Verdict "guilty of larceny" 268 FEES— To public officers 109 FELONY (see Crimes). FIEBI FAGIA8- CroT*: may issue 621 FLOUR— Seller of, in barrels not marked or branded ...•• 336 FOOD— Adulteration of 346 FORCIBLE ENTRY OR DETAINER— Complaint may be laid before justice for 163-4 Estate, inquisition mubt show what 163 Evidence, whether private prosecutor can give 163 Indictment lies for 162-3 Inquisition, when bad 163 Must show estate of party expelled 163 Misdemeanor, is a 162 Proceedings which may be taken for forcible entry 160 INDEX. 555 ... 269 ... 269 269-70 .. 270 ... 264 ... 266 , 266-7 ... 267 ... 262 .... 269 ...267 .... 260 .... 264 ... 264 ... 266 260 266 26"^ 264 .. . 266 268 268 109 .... 621 ...... 336 346 .. 1B3-4 163 163 .... 162-3 153 163 162 160 FORCIBLE ENTRY OR DETAINER— Con/intted. paoi. Proaecutor cannot be examined as a witness 163 This not the case in Ontario now 163 Restitution, when writ of may be awarded, and by what courts 164-6 Riot, when amounts to 163 Statutes in force as to 162 Title, evidence of not admissible 164 Trespass will not support indictment for 166 Wife may be guilty of 166 Witness, private prosecutor cannot be 163 FOREIGN COUNTRY— Lawless aggressions by subjects of, at peace with Her Majesty {see AooRESsiONs). FOREIGN ENUSTMENT OFFENCES— Act now in force 81 Objectof 86 Alternative part of Act in 84 Construction of 82 Local Act void, so far as repugnant to 82 Intent material 86 Warrant of commitment, requisites of 82-3 Under 28 Vic, c. 2, when bad 84 Must not be for too little penalty 84 - Must specify amount of costs 84 When sufficiently shows jurisdiction . . 84-6 Direction to gaoler 86 Double offence 86 What is offence against Act 86-6 When ship employed in military or naval service 86-6 Releasing on bail 86 FORGERY— Actual defrauding not necessary 279 Agreement for sale of timber 280 Altering of note 277-8 Assessment roll 284-6 Coining not forgery 278 Date, executing deed with false 276 Deed, executing in name of another 276 Definition 276 Document, forgery must be of 279 Engraving of notes 281 Evidence of party, purporting to have signed document 286-6 False date, executing deed with 276 False pretences, goods obtained by, through forged order 286-7 556 INDEX. ,, y. VOBjQERY— Continued. * PAea Fictitious name 276 Illegal instrament 279 Indictment need not allege intent to defraud particular person 278-86 Must allege that note was foili^ed 285 And that defendant uttered it as true 28S Describing instrument in 286 For forging receipt 287 Surplusage in 287 Indorsement per procuration 282 Instrument iUegiJ 279 Unstamped 279 Void 279 Inte.it to defraud, must be evidence of 277-9 Need not allege intent to defraud particular person 278 Letter of recommendation 279 Misdemeanor only at common law 286 Note, forgery of 277-8 Indictment for 286 Order for delivery of wheat... 276 For payment of money 277-84 Pay, intention to 287 Receipt for payment of money 281 Recommendation, letter of 279 Request for payment of money 281-4 Semblance of genuiii instrument 276 Sessions cannot try 286 Telegraph message 278 Undertaking for payment of money 282 Unstamped paper 279 Uttering, what is felonious 276-8 Validity of instrument immaterial 279 No oflFence, if wholly void 279 Void instrument 279 Witness, who may be 285-6 Writing, forgery must be of 279 FRONTIER— Act for repressing outrages on 323 When court can order restoration of property seized 323-4-5 GAMBLING 344 OAME— Killing and taking, on Lord's Day... 337 OAMING HOUSES, suppression of 344 GAOL DfiLIVfiRY 489 p.: I-*'.'" ■■■■■ INDEX. 567 276 279 urpenon 278-86 286 285 286 287 287 282 279 279 279 277-9 ion 278 279 285 277-8 285 276 277-84 287 281 279 281-4 276 286 278 282 279 276-8 279 279 279 285-6 279 323 323-4-5 344 337 344 489 GOVERNOR— ,Am. Of colony, power to suppress rebellion 162 Indictment against, for oflfences within 11 ft 12 Wm. III., c. 12, where preferred 342 GRAND JURY— Depositions admissible before 368 ■ Act for preventing vexatious proceedings before 486 Ck)nditionB of, need not be proved 486 When provisions of complied with 486 Evidence before, how received and given 487 Accused has no right to give . 487 Twelve jurors must assent to finding . 487 Principles on which they decide 487-8 Quashing proceedings of 486 Panel objections to 486-7 HABEAS CORPUS— Duty of judge on 448 Power of judge in chambers 449 In practice court during term 450 In vacation 450 Does not lie, when proper rem^idy by writ of error 451 Or in case of custody under civil process 451 Prisoner convicted of larceny 461 Prisoner for debt in close custody in another county 463 To keeper of prison to bring up convict as witness 453 Must be request in writing, etc 453 Affidavit on which obtained, entitling, etc.. 453 Return to, contradicting, etc 449 Showing commitment bad on face, or charging no offence ^ ■ • ^^ When prisoner in custody less than a year, on charge of offence in Ireland 464 General principles on which jurisdiction of justices reviewed on. 454-5 FIDES— Inspection of raw 346 HI6HWAYS- Abolished, cannot be by placing gate across 171 Adjoining land may be travelled over, when out of repair 173 Allowances, original, continue to be public highways 163 By-law, district council could not lay out road except by 164 Changing by writ of od 5Mod fltemnttm 172 Commissioners should remove fence on road 170 Convictian must show that place public highway 170 County road to be repaired by county 171-2 568 INDEX. ; « ft HIQWW AYS— OotUinued fxn. Crown, gaarantees of must repair 173 Cannot grant to private individual ao as to bar public right. . 162 Culdesao 167 Dedication- User for thirty dayB, evidence of 164 What ia dedication 160 Must be intention to dedicate 160-66-7 Evidence of 160-67 Stronger evidence of, required in new than iu old district 165 Presumed from long user and statute labor 167 Limited or partial 165 Right of passage only, parted wuu on 165 Reservation inconsistent with void 166 Mixed question of law and fact 167 En ineer, government, need not condemn road by certificate 173 Evidence of state of road before trial 176 Same aa in civil action 183 Fire on side of road, not nuisance 169 Freeholders disinterested 182 Gas company, members of, liable to be convicted of nuisance in obstructing a highway 175 Gate on road does not abolish highway .. 171 Government survey against right of party in possession 163-4 Indictment for nuisance may be against three or four of several defendants 182 Evidence, variance, etc 183 Judgment on out of term... 184 Preferring new indictment 184 Joint stock companies, roads of, not highways 162 Judgment, whether can give on indictment out of term 184 Minutes of boundary line commissioners are not 183 Jury must determine dedication 167 And whether road highway 167 Lake Ontario, no highway along beach 163 Mandamus, when proper to compel repair of 168 Minutes of boundary line commissionera not judgment 183 Municipal corporation, power to open new roads 172 Must keep same in repair 174 Corporation of county has jurisdiction over road between townships 172-6 Bridge between two counties 176 New trial, after verdict of acquittal 184 Non-repair, of indictable 172 Nuisances, to, of two classes 168 Ontario, how highways have accrued in 160 PAOI. 173 iblio right. . 162 167 164 160 160-66-7 160-67 diBtrict 165 167 165 165 166 167 rtificate 173 175 183 169 182 ' nuisance in 175 1 171 ion 163-4 (ur of several 182 183 184 184 162 rm 184 183 167 167 163 . 158 t 183 172 174 road between 172-6 176 ... 184 172 168 160 INDEX. ^ 559 HIQKW AYS— Continued. pkioi Opening by municipal corporations 172 Petition, under 12 Vic, c. 35, to adjust surveys 176 Railway company, when bound to repair bridge 176 Return of laying out, not necessary 182 Road companies liable for non-repair of highways 1 73 Sea shore, whether highway on 163 Shutting up lane, street, public road by gate 171 Shutting up by by-law, 171 Under (N.B.) 1 Rev. Stat., c. 66 172 Statutes 5 & 6 Wm. IV., c. 50 : 27 & 28 Vic, c 100; 6 Wm. IV., c 2 182 Statute labor on roads makes highway 167 But must be usually done 161-8 Surveyor, road laid out by 162 Thoroughfare, public highway need not be 166-7 Rule, when claimed bydedication 167 Toll companies, when liable to keep roads in repair 174 User for thirty years evidence of dedication 164 User for seventy years, when land in lease I(i4 User and dedication establish highway 165 But stronger evidence in newly settled district 1 65 Dedication maybe presumed from 165 Variance on indictment 183 Velocipede may be obstruction 169 Via trita does not compose whole road 176 Waggon standing in highway is nuisance 169 What is highway 160 Width of road preserved 176 HOMICIDE — («ee Justifiable Homicide and Excusable Homicide). HOUSEBREAKING— (««e BuROLAEY) 229-30 IGNORANCE— Of law no defence 70 But may be ground for application to Government 70 Of fact, is defence , 70 IMPERIAL STATUTES— {»c« English Laws in Force). I'lPRISONMENT— Different purposes for which imposed 431 Reimprisonment 432 Period must be certain 432 Day of discharge 432 Where conviction for several offences 432 560 INDBX. I I I! h i. 1,1) INDIAN LANDS— i>am. AoU relating to lale of 838 Treapauing in 388 INDICTABLE OFFENCES— (w!e Cbimm im General) 49 Duties of juatioes on charges of .. 414-5 Discharge by one doeb not prevent another from acting 415 Justice must proceed as directed by the statute 414 Indictment may be preferred, though justice refuse to proceed.... 416 Warrant of arrest 413-4 Trial by magistrate by consent 405 INDICTMENT— («ee Pleadino, and the different titles through the book). Copy of, when granted 50b INFANTS— Criminal liability of (see Pbrhonb Capable oKgoMMiTTiNo Crimes, Abandoning) 64 INFORMATION— (««c Criminal Information). INFORMATION OR COMPLAINT— («ee Chapter on Practice). Amending under 412 et aeq. INSANE PERSONS— Criminal liability of (see Persons Capable of coMMirriNo Crime. ;. 66 INTENDING TO COMMIT FELONY— («ec Crimes IN General) 62 INTOXICATING UQUQRS, SALE OF-(«ec Liquorj*). JOINT PARTICIPATION— In unlawful act renders all liable 72, 73, 312 When act committed in prosecution of unlawful purpose 73 JUDGfi- Decides law 499 Misconduct by {see Office, Offences by Persons in). JUDGMENT— Staying the entry of, arresting, etc 605 jurors- How summoned 489 Qualitications and exemptions 489 Aliens 490 Panel, objections to idOetseq. Challenge, peremptory 4:90 et aeq. For cause 493 et geq. To array 494-5 INDEX. /I 661 PAMk 838 888 49 414-6 415 414 jroceed. ... 416 413-4 406 irough the 60b NO Crimes, 64 oticb), 412 «;< aeq. IN(J CWMl. ;, 66 neral) 62 72,73,312 se 73 499 506 489 489 490 ... 490 c< ««9' ... 4^90 etaeq. ... 493e2««9. .. 494-5 JURORS— Continued. rm. Stiuiil aside, directing jaroni to 490 etBeq. DemedkUate linguie 490 et $eq. JURY— On charge of uttering forged paper... 499 On appeals from summary convictions, can only decide on facts ... 499 Cannot try whether prisoner extradited from States for forgery. . . . 499 Must follow direction of court in point of law 500 After retiring may return and re-examine witnesses 500 Misconduct of, when vitiates verdict 500 Separation of 501 Refreshments to 501 Discharging, when proper 501-2 When it does not operate as an acquittal 502 Death or illness sufficient 502 To obtain evidence 502 Carrying from town to town in a cart 508 Right to find general verdict 504 May correct verdict 504 JUSTICES OF THE PEACE— Appointment of 403 Oath of qualification 403 Jurisdiction in city and county 404-6 Circumstances affecting 404 Under commission of peace 404 i/Laxim omnia prcesumuntur rite esse acta 404-7 Must have jurisdiction over individual 404 Information should be laid 404 Ousting by claim of right 410 By question as to title to land 4^.0 Power to convict summarily 405 etaeq. Rendering judgment 406 Acting fov division or county 404 • Where statute empowers two, conviction by one 406 Duties of, in relation to indictable offences 407 et $eq . Powers of , to commit for contempt 438 Doubtful whether justice acting in his own house can commit . . . 439 Commitment, requisites of 424 et aeq. Warrant to constable 413 Jutttice exclusive judge of contempt 439 Exceptions to jurisdiction, justice should decide. . . 405 Criminal informations against 477 et acq. JJ 562 INDEX. JUSTIFIABLE HOMICIDE— Of three kinds 207-8 KIDNAPPING 224 LARCENY— Act of stealing, must formerly have been separate indictment for each 247 Three may now be inserted in one indictment 247-8 Agreement unstamped 233 Attempting to commit 60 i4ntmtM/urafuft necessary 235 Bailee, porter is 243 Whether animtu /urandi, at the time of obtaining, is neces- sary 243 Hirer of horses from livery 244 Lessee of pawn 244 Married woman 245 Distinction between bailee and servant 246 Bailment, what is 243-4 Must be to redeliver same chattel or money 244 Delivery of goods for sale 244 Bond, when subject ot larceny 233 Carrying away necessary 236 But least removing sufficient 235 Certificates, subject of 234 Choses in action not subject of ... 233 Consent, goods taken by 235-6 Continuous taking when thing not subject of (see Taking). ... ... 234-5 Definition 232 Distinction between false pretences and 270-1 Felonious intent, goods must be taken with 235 Fraudulent obtaining of goods by which property does not pass... 238 Possession parted with through fraud 238-9 Property so parted with 239 Property obtained by sale...] 241 Fruit, stealing growing 247 Goods subject of larceny must be personal 233 And subject of property 234 Dogs, stealing of 234 Animals /cr* 249-50 When there is administratrix 260 Where goods are propei-ty of partners or joint owners 260 Or tenants in common, or parish*' ners of church 261 Or when larceny is committed b) iodger 262 Injury done to two or three trees may be added together 247 Joint owners laying property in ($ce iNUurrMENT) 260 Lodger, or theft by, property in goods laid in owner 262 Lost property, larceny of 236 General rule as to 236 Belief at time of finding that owner can be ascertained 236 Belief that goods abandoned.... 237 Property mislaid 237 Means of ascertaining owner 237 Felonious intent must be at time of finding 238 What is lost property 236-7 Married woman may be bailee 246 Cannot steal goods of husband 246 Menace, stealing by 232 Money, person may be bailee of 246 Proof on indictment for stealing 249 Notes 233 Obtaining possession lawfully 238 Obtaining fraudulently is 238-9 Partners, larceny by, laying property of, in indictment {$ee Indict- ment) 250 Pawn, selling of, not larceny 244 Petty larceny abolished 236 Police Court, stealing or destroying information in 233 Possession obtained by trick 239-242 When lawful, no larceny 238 Potatoes, when subject of 236 Proof on indictment foi stealing money 249 Property, larceny cannot be committed of things not the subject of 234 If property passes, there can be no larceny 238 If owner intends it to pass, it will pass, and no larceny be committed 238-9 Servant may pass 239 Or cashier of bank i 240 But now larceny by statute 240 564 INDEX. ■* p f 'i LABiClSiSY— Continued. paoil When property does pass 240-41-2 When obtained by fakw sale 240-41-2 When in bailee 243 Laying in indictment {see Indictment). Record, stealing or destroying 233 Restitution 248 Returning goods may negative animo furandi 236 But no evidence that prisoner intended to 236 Robbery, larceny included in 231-2 Sale, false, by fraud 241 Security, larceny of 233 Servant may pass property 239 May be guilty of larceny (see Bailee) 246 Several takings may now be laid in indictment (see Continuous, ETC., Takings, etc.) 247-S Shareholder in company, larceny by 247 Subjects of 233-4 Surplusage, what is 248 Taking must not be continuous act with severance, when thing not subject of larceny £34-5 Should be interval 235 What is continuous taking 235-248 Trespass, larceny includes 238 Trick, possession obtained by 239-242 Venue, when goods stolen on journey 251-2 Wife (see Husband). Will, must be taken against 235 LAW— Foreign, not binding 606 Mistake in, no defence 70 But may be ground for application to Government 70 LAWLESS— Aggressions by subjects of foreign country at peace with Her Majesty (see Aggbesmois). * LIBEIr- Action, when lies for against Corporation 131 Between corporations 131 Affidavit ill judicial proceeding is privileged 136 Bill of rights, principle of, applies to petition to Lieutenant Grovernor 137 Malice destroys privilege in petition 137 Intended to protect petitioners applying to Cr )wn 1 38 PAOIU 240-41-2 240-41-2 ..'. 243 233 -248 '[[[ 236 7.. 236 .'. 231-2 241 '. 233 239 ,''". 246 Continuous, 247-a 247 233-4 248 3, when thing £34-5 235 235-248 238 239-242 251-2 235 506 70 nt 70 tace with Her 131 131 136 Lieutenant 137 , 137 |wn •• 138 INDEX. 565 llBEh— Continued. "-^^ Applies to public rights only 138 Bonafdes necessary when matter otherwise libellous 141 Commons, House of, staying proceedings for publishing votes of. 139 Comparison of disputed writing 146-7 Libel may be proved by...^ 146-7 Courts, reports of proceedings may be published 133 Grounds of privilege. 134 ^ par^e proceedings of 134 Dignity of court cannot be regarded 134 Privilege protects publication of proceedings of open police court on charge of indictable offence 135 Corporation, action for libel lies against and between 131 May also be indicted 131 Criminal information, on application for court in position of grand jury Must have same evidence as grand jury 148 Libel itself must be filed 148 Legal, evidence of publication 148 Granted only where penton libelled occupies a public posi- tion 1'^ Time within v, hiii Application must be made 1 48 Debate in parliament, publication of privil^ed 139 But: must be fair report of 139 Defence, to show that publication without defendant's authority. 139 What sufficient defences to render conviction illegal 149 Ex parte proceedings of courts, publication of, privileged 134 House of Commons, staying proceedings for publishing votes of... 139 Indictable oiFence, proceedings on charge of, may be published... 13 Indictment, lies for libel whenever action lies l-^l May be maintained against all concerned in joint publication of libel 131 Inuendo in 149 Individual, libel upon, what is 131 Information {see Criminal Information). Ingratitude, to charge man with, is libellous 133 Inuendo, use of 149 For court to say whether capable of bearing meaning as- signed to it (ace Indictment) 149 Joint publication of libel, all liable for 131 Judicial proceedings, fair report of, protected 133 Judge to determine privilege 144 Should ask jury whether matter published bona fide 144 Judges, acts, words, or writing of, in judicial capacity, privileged. 136 Jury, what questions are for ..„ 144 666 INDEX. II ti LIBEL — Continued. rAai. Jurymen, acts, words, and writing of, in judicial capacity, privi- leged 136 Magistrates, reports of proceedings before, privileged, but must act within jurisdiction 136 Malice, proof of express 142 When libel privileged, proof of express malice must be given... 142-3 Meaning of, in legal sense 143 To prove express malice may show that libel untrue 14S Libellous expressions in a privileged communication may be evidence of actual malice 143 Judge to determine whether inference of malice repelled 144 When jury decide 144 Members of parliament not liable for statements in parliament («ee Parliament) 139 Memorial to Secretary of State privileged 136 Military officer, report by, in ordinary course of duty, privileged. 136 Minister of religion, utterances by, in pulpit 141 Obscene writings, publication of, indictable 133 Test of obscene publication 133 No defence that object laudable 133 Open police court, proceedings of, on charge of indictable offence, may be published 135 Magistrate's court, proceedings of, may be published 135 But not, if inquiry carried on in private 135 Parliament, members of, not liable for statements in 139 Publication of debates in, privileged 139 Publication of speech in, with intent to injure, is unlawful... 140 Report of proceedings in, may be published 140 Personal libel, what is 131-9 Petition to Lieutenant Governor, when privileged (see Bill of Bights) 137 Plea, to information for 149 Police court, when proceedings of, may be published , .. 135 Presumption that party intends what libel is calculated to effect.. 133 ■ Privileged communication, what is 141 et 8eq. Report in writing by military officer 136 Statement bona fide, where party interested 141 Memorial to Secretary of State 136 Communications to executive government 137 Petition to governor 137 Petition to Queen.. 138 Resolution of incorporated association 142 When privileged, must be proof of express malice 142 Presumption of privilege in some cases conclusive 145 li-v. PAOB. [MMsity, privi- 136 ed, but must 135 142 lice must be 142-a ua true 14* tation may be 143 J repelled 144 1*4 in parliament 139 ;; 136 ty, privileged. 136 141 13a 13a 13a ictable offence, 1 135 ilished 135 135 139 139 is unlawful. . . 140 140 131-9 i (ace Bill of 137 149 led . 136 ated to effect.. 133 141 et 8eq. 136 141 136 137 137 138 142 , 142 , 145 INDEX. ) 567 LIBEL — Continued. paqi As to proceedings in parliament and in courts of justice 139 Defence, when not absolutely privileged 146 Instance^' of privileged communications 146-6 Comments on acta of public men 136 Proceedings in courts of justice, publication of, privileged (ste Courts, Judicial Pboceedinos) 131 Publication (tee Joint Action, Indictment, Obscene). Public men, comments on acts of , privileged 136 Religion, utterances by ministers of, from pulpit 141 B«port8 of parliamentary proceedings, debates, etc., may be pub- lished (see Debates, Pakliament) 140 Secretary of State, memorial to, privileged 136 Senate, staying proceedings for publishing votes of 139 Sessions cannot try 473 Speech in parliament, when may be published 140 Trial, proper course at, in case of privileged communication 144 Truth of libel important in determining malice 143 Question is whether defendant honestly believed it true 144 When material for plaintiff to prove that statements are not true 143-4 Witnesses, acts, words and writings of, may be published 136 Writing, comparison of disputed, with that proved genuine 146-7 LIQUOR— 1 Selling without license 97 Canada Temperance Act : Proof that Act is in force, necessity cf 103 Of expiry of license 103 Certiorari under, taken away 103 Except in questions of jurisdiction 103 Costs under 103 Certioi'ari : Return under conclusiveness of 106 Taken away under Canada Temperance Act in certain cases. . . 103 Conviction for, sufficient, if it follow statutory forms 97 If not, what it must contain 97,99,100-4 Certaintyiu 98, 100 Statement of offence 99 How far it must conform to information 98 Several offences in 98-99 Against two jointly 99 Against partner.. 99 Contra forma atatuH 99 Costsunder 99 Of commitment 100 568 INDEX. LIBEL — Continued. paob. Of druggist 102 Amendment of 102 First or subsequent offence 102-6 Appeal against 106-7 Druggist, conviction of 102 Fines 98, 100-1-4-6 Gambling 104 Information for 103 Legislature, local, competency of, in these matters 101 -2-3 Ao to delegating power 102 License generally 100-1 What premises it covers 100 •Brewer, what required by.. 101 Expiry of Canada Temperance Act 103 Married woman, conviction of 102 Occupant 103 Offence, what amounts to. 104-5 First or subsequent 102-6 Penalties for («c« FiNBS) 100-1-2 Quebec License Act, constitutionality of 103 Decisions under 104 Servant, may be convicted 102 Witness, purchaser competent as 102 Informer competent 106 Defendant not 106 LOCAL— Crimes are considered 63 LOCAL LEGISLATURES— (see English Laws in Fobob). LORD'S DAY, PROFANATION OF— R. S. O., c. 189 336 Conviction phould negative exceptions 336 Travellers, who are .. 336 Note or mortgage on Sunday 336 Sales or agreements for 337 Killing or taking game , 337 Farmer, not within Act 337 Druggists not within 336 Amusements .A st, as to enforce 337 LOTTERIES— Are public nuisances 157-8 Act as to in force 7 PAOB. 102 102 102-6 106-7 102 98, 100-1-4-6 104 103 101-2-3 102 100-1 100 101 103 102 103 104-5 102-6 100-1-2 103 104 102 102 106 106 63 336 336 336 336 337 337 337 336 337 157-8 7 INDEX. 569 MAGISTBATES— («ce Justicbs of the Peace). r^K MAIj^^TAIN obligation to— («ee Vagrants). MAINTENANCE— {«ee Champerty). MALICIOUS INJURIES— Act must be wilfully and maliciously done 289 But malice against owner, not necessary 289 Damage need not be of permanent kind 289 Instrument need not be used 290 Machine or engine 289-90 Malice, what amounts to 289 Summary remedy 290 Wound, meaning of 290 Claim of right, summary jurisdiction ousted 290 MANITOBA {gee English Laws in Force). MANSLAI iiiTER— Accessories in 75, 201 Must be active proceeding to constitute 201 Appreheusion without warrant by constable 203 By private person 205 Arrest without warrant 203-4 Not on mere suspicion 203-5 Must show felony actually committed 205 By magistrate for misdemeanor committed in his view 204 Must be breach of peace 204 When illegal 204-5 By constable for breach of peace 204 By policeman 204 By constable, without warrant on reasonable charge 20o In civil proceeding 205 Offender must be taken before justice 205 By private person 205 By clerk in service of railway company 205-6 Must show felony actually committed 205 By person who is assaulted 206 Assaulting wife does not justify 206 When illegal 207 Assault, when it justifies arrest {see Arrest) 206-7 Authority, officer arresting must have .. 203-6 BrbAch of duty 201 Civil proceeding, arrest by constable in 205 I u Wi 670 INDEX. MANSLAUGHTER— Continued. pasil Constable may arrest for u. lach of peace 204 For suspicion of felony 206 Definition of 199 Director of railway for omission 201 Felony, arrest for suspicion of 205 When actually committed {gee Arrkst) 205 Involuntary manslaughter 200' Knowledge of character in which officer acts 203-7 Malice, none in 200 Medical aid 202 Neglect to provide food 201-2 Distinction in these cases between children and servants 202 Negligence, culpable, may amount to 200 Officer of justioa, killing of 203 Peace, arrest for breach of 204 Private person, arrest by («ee Arrest) 205 Removal of person unlawfully in house 207 Suspicion of felony, arrest for 205 Voluntary manslaughter 20O MARRIAGE— English law as to, introduced (see Bioamy) MASTER AND SERVANT— Act Con. Stat. U. C, c. 75, as to, repealed 320 Substituted enactment 320 MEDICAL PRACTITIONER— Registration of, what amounts to representation of 344 MENACES^ Demanding with , 341 " Reasonable cause " applies to thing demanded 341 What amount to 341-2 Truth of threatened accusation, no defence 342 MERGER— Of lesser offence in greater 55 Of false pretences in larceny '. 267 When object of conspiracy felonious 315 MILITIA— Officer of, competency of, to sit on court martial 344 Discharge of members of 344 MINORS— («ee Affrentioes). r;5 INDEX. 571 MISDEMEANOR— p^ei. What is {see Crimes in Obneral) 66 MISPRISION OF FELONY 66 MIS-TRIAL— Venire de novo for 516 Vitiates and annuls verdict 516 MOLESTATION OR OBSTRUCTION— By master or workman {aee Strikes, Trades' Union Act) 116-7 MONOPOLY— For exempting new manufactures. 116 Rulee in restraint of trade 115 Strikes rot necessarily illegal 115 Trades' union Act, 1872, provisions of 116 MOTIVES, WHEN IMPORTANT 62-3 MURDER— Administering poison .'. 197 Agent, must be a free. 193 Attempting another act 196 Corporal injury I94 Death from threats of violence 194 Definition 192 Degrees, persons may be liable in different 193 Disease by which death accelerated 195 Evidence as to cause cf death 198 Indictment need not set forth manner of death 198 Must state act done feloniously, and of malice aforethought... 199 For wounding, with intent to murder 199 Infant in womb, when subject of 193 Jury, what questions are for 196 Killing, diffeient means of 194 Malice, necessary ingredient in 192 Express and implied 192 Medical evidence of cause of death 198 Presumption that all homicide is malicious 193 Provocation reduces offence to manslaughter 195-6 Punishment of 199 Queen's peace, must be under ^. 193 Sudden quarrel, when killing in, amounts to 197 Wounding, with intent to murder 199 Year, must die within 194 672 INDEX. NEW BRUNSWICK— (tee English Laws is Foboe). PAWI. NEW TRIAL- Aboliahed in oriminal casea 621 NOTES OF EVIDENCE— Reading to witnesses those taken at former trial 380 Judge may have them taken by third person 509 NOVA 8C0TlAfi-(8ee English Laws in Foecb). NOXIOUS THING -(<«! Abortion). NUISANCES— Abatement of 159 Compelling through sheriff 159 Action lies for, to navigable waters 156 Fresh actions for continuiu,; nuisance 159 Where action lies indictmfmt lies 169 Civil right, course when indictinent for trial of 182 Convenieuce no defence 158 Court, questions for 178 Disorderly houses.. 157 Evidence on indictment for 183 Examples of 156 et seq. Exposing person 157 Highway, non-repair of, is (see Highways) 158 Ill-fame, conviction for keeping house of 157 Indecent exhibitions 157 Indictment lies for public 158 Lies when action lies for 159 Is proper remedy for 158 Course, when proceeding by, is substantially for trial of civil right 182 Lewdness, open and scandalous, indictable 157 Lotteries are public nuisances 157-8 Act as to, in force 7 Magistrate, jurisdiction of 159 Mandamus (see Highway). Navigable rivers, obstruction of 156 New trial after verdict of acquittal 184 Private and public 156 Remedy (see Indictment). Summary conviction by justice illegal 169 Time of erecting nuisance immaterial 158 No length of legitimates nuisance 160 User will not legitimate 160 *M INDEX. 573 PAOI. 521 380 509 150 159 156 159 159 182 158 178 157 183 156 et 8tq, 157 158 157 157 158 159 158 al of civil 182 157 157-8 7 159 156 184 156 159 158 160 160 OBSTRUCTING ENGINE OR CARRIAGE— fao». Act 32ft 33 Vic, c. 22, 8. 40, as to 332 What is oflFence within 332-3 Not limited to physical obstructiona 333 OBSTRUCTING THE EXECUTION OF PUBUC JUSTICE— Aid, indictment for refusing to 185 Is a misdemeanor 185 Constable, refusing to aid 185 Disobeying order of justices 187 Order of Queen in Council 187 Excise, indictment for obstructing officer of 186 Indictment for refusing to aid constable 185 For obstructing officer of excise 186 What is necessary to support 185 Knowledge of character in which officer acts not necessary 185 Officer must act under proper authority 186 Order, disobeying, .adictable 186-7 OFFENCES— (see Office, ETC.) , OFFICE, OFFENCES BY PERSONS IN— Attachment granted against commissioners for trying cause in * which interested 113 Bailiff, conviction of 110 When quashed 110 Clerk of Crown agreeing to resign office for reward, illegal 112 Clerk of peace cannot charge any fees not given by law 109 Not entitled to any fees for striking special jury 109 Table of fees contains all charges 109 Criminal information will lie against officer for misconduct 108 When granted against judge 113 Deputy returning officer indictable for refusing to administer oath. 108 Extortion, what is . 108 Indictment for JOS Is misdemeanor 108 Two or more may be guilty of 108 Fees in different cases 109-10 Indemnity, would be illegal for judge to take 109 Indictment, when lies, when good 108 Lies at common law for sale of office. 110 Jidge taking indemnity 109 Misconduct by 113 Cannot act in his own case 113 Exception 113 I 674 INDEX. OFFICE, OFFENCES BY PERSONS Iff— Continued. paob. Must be direct pecuniary interest 114 If really biassed, wrong to act llfi If remotely connected with one of parties, no objection US Justice, when can act, if himself assaulted 116 Neglect to execute duties indictable 108 Registrar and deputy nuy b« jointly guUty of misdemeanor 108 Removal of officers 112 Sessions competent to try charge against clerk of peace 112 SheriflF, sale of oflSce illegal 110 Statutes as to Ill OFFICERS OF JUSTICE— Killing of {«ee Manslaughter). ONTARIO — {see English Laws in Force). OVERSEER OF POOR OF PARISH— Liable to indictment for not accounting 848 OYER AND TERMINER— Whether commissions now necessary for holding court of 498-9 PARDON— Application to Crown for. 621 Effect of , on appeal to Privy Council 624 PARLIAMENT— Publication of debates in (see Libel). PARLIAMENTARY OFFENCES— Members of Parliament not liable for statements in House 189 Attachment against 189 Penalty for voting without property qualification 1 89 Privilege from ancst 190 Does not apply to criminal cases 190 Evidence of being member 190 Warrant of commitment 190 Prorogation, discharge of prisoner by 190-91 Courts, power of, to inquire into commitments by parliament . . . 191 Habeas corput 191 . Conspiracy to intimidate provincial legislature 191 PARTNER— Agreement to defraud copartner 310 Conviction for selling liquor without license will lie against 99 Laying property of. in indictment for larceny 250 INDEX. 575 of 498-9 PAWNBROKERS* ACT— pxei. An enabling Act 334 May take any rate of interest agreed apon 334 Only appliei to persona " exercising trade of pawnbroker" 334 PEACE— Final commitment for want of sureties to keep 429 Must be in writing 430 And show date on which words spoken 429 Articles of peace exhibited in open court .. 429-30 PENAL ACTIONS- County courts cannot try PERJURY— 472 Accomplices, none in 304 Affidavits, before whom sworn 301 Taking without authority 303 Need not be read or used ...,. .. 303-4 Which court would not receive 304 Evidence of place of swearing 304 Ambiguous, oath must not be 303 Amending indictment 307 Assignment of perjury, proof of 301-8 Must be two witnesses 308 Authority («ee Juri8dictiok). Belief of fact 302 Church of England {^ee Prayer Book). Common law o£fence, when affidavit not sworn in judicia pro- ceeding 269 Definition 298 Deliberate, false aweaiing must be 303 Evidence, on assignment of perjury 301-8 As to place of swearing affidavit 304 Must be two witnesses, or proof of material facts 308 Of existence of proceedings 298 False, matter sworn must be.. 298-302 et acq. Indictment, showing authority to administer oath 299 When sufficient 304 et seq. Certainty in 304-5 Substance of offence charged 306 Quashing, amending, etc 306 Insurance cases, perjury in 308 Insurance company, affidavit as to loss by fire 300-301 Judicial proceeding, swearing must be in 298 et seq. I I liil 576 INDEX. PERJURY— Continued. taoi. Jurat ttoting pl»oe of swearing 302-4 Need not state such place 3()2-4 No part of affidavit 302-4 Jurisdiction, oath must be taken before a person having juris- diction on 298 Must be competent in matter in which oath administered 209 When there is 298 e« seq. Of court, must be submitted to 304 Justice, where may tuke aiiidavit 301 Magistrate taking affidavit without authority 303 Jurisdiction of, over person committing perjury in another county 307 Materiality of matter sworn 302 All evidence now material 302 Misdemeanor, perjury is 298 Affidavit not taken in judicial proceeding is 299 Oath must be taken deliberately and intentionally 303 Must be clear and unambiguous 303 Place, jurat stating 302 Pleading, must first submit to jurisdiction 304 Prayer book of Church of England, oath taken on 303 Quashing indictment 306-7 Sessions cannot try 473 Surplusage in indictment 307 Variance in charge of 306-7 Venue 307 Voter, false swearing by 298 When two required 308 PERSONATION— («cc False Pbbsonation). , PERSON— Stealing from the 252-3 PERSONS CAPABLE OF COMMITTING CRIMES— Drunkenness, how it affects criminal liability 67-8 Feme covert not liable for certain crime committed in her husband's presence 68 But this only presumption and may be rebutted 69 Protection does not extend to crimes mala in ae, as treason, murder, etc 69 Nor semhle to misdemeanors 69 Ignorance, how it affects criminal liability 70 Infants, general rule as to criminal liability of 64 Statute creating new felony does not bind 66 Or giving corporal punishment 66 Under seven, not liable 65 WDBX. 677 PERSONS CAPABLE OF COMMlTTINO CKIUES—Continwd. ,«•■. Rule between teven and fourteen 6ft Under fourteen cannot oommit rape 6fi But may be principal in Moond degree 66 Cannot be proeeouted for defraudi*- jditon 66 Non compote* mcntin, rule as to orimina^ lity of persona. . . . 66-7-8 Deaf mute cannot be convicted 68 Must be treated aa non-sane 68 PERSONS SUBJECT TO THE POWER OF OATHS— Rule aa to criminal liability of 68-70 Wife, when accessory 69 PERSONS IN OFFICE, OFFENCES BY (««« Offkncbs, btc.).. 108-9-10 PETTY TRESPASSES— Where there is bona fide claim to the land. 410 PIRACY— Acts in force as to . .' 89 Admiralty jurisdiction 89-90 British court, no power to punish foreigner for offence against British subject on foreign ship 91 Commissions, not necessary 89 Inlar'' lakes of Canada within admiralty jurisdiction 92 Junsdiction, over ships in rivers of foreign territory 90 Over British ship, though no proof of register, or ownership of vessel 90 Over vessel in harbor 91 Where sea flows between two points of land 91 Magistrates may take cognizance of all offences committed on lakes of Canada 91 PLEADING— Acquittal on good indictment is bar to subsequent, for same of- fence 387 Act of Parliament, indictment on 382 Limitation or exception in distinct clause of, need not be stated 396 Against form of statute, indictment concluding 387 Amendment of indictment, not at common law 392 Defect in laying property 392 Case must be decided on indictment in amended form 393 Must be made before verdict 393 Arrest of judgment when indictment charges no offence against law 401 KK 4 r 578 INDEX. PAaa. PLEADING— CofUtnueet. Assault, conviction of, no bar to indictment for manslaughter 389 Autr^oia acquit, test of validity of plea 387 Must be in legal peril on first indictment 387 Trial must proceed to its legitimate conclusion by verdict. . 388 Meaning of legal jeopardy 388 Only pleas known to law 388 When good 389 Only apply when decision on same accusation in substance.... 389 First indictment insufficiently laying property 389 Proof of pleas 389 Caption of indictment, objection to 399 Certainty essential to charge 382 Charge of offence, what sufficient 382 Conjunctive statement, when proper 384 GontraformamatcUuti, eSect of omission of 387 Conviction, previous, may be good pica in bar {see Previous Con> viction) 387 Counts joining 394 Demurrer 390-401 Pleading not guilty, when overruled 390 Description of offence in words of statute 382-3 Matter of, must be proved as laid 391 Duplicity 395 Election, when prosecutor put to 395 Enacting clause of statute, exception or proviso in, must be ex- pressly negatived 396 Need not, if in subsequent clause 506 Exceptions negativing 396 Formal defects in indictment, when objected to 401 Forms of indictments intended as guides only 401 Use of discretionary 401 Homicide, indictment for, need not set forth manner of death.. .. 396 Indictment, when should follow words of statute 382-3 On statute creating new offence 382-3 Conjunctive statement in 384 Christian and surname must be stated 384 Obscene words must be set out 384 Surplusage in 386 Forms of...; 401 Caption, quashing 399 Laying previous conviction 400 Quashing is discretionary with court 400 When and for what objections the court will quash 400-401 Jeopardy, meaning of term 888 INDEX. 679 ughter 389 387 387 verdict... 388 388 388 389 ibstance.... 389 389 389 399 382 382 384 387 inous CoN- 387 394 390-401 390 382-3 391 395 395 lust be ex- 396 506 396 401 401 401 death.. .. 396 382-3 382-3 384 384 384 386 401 899 400 400 n 400-401 888 fLEADmO— Continued. pau. Jarisdiction must be submitted to before pleading 402 Liat of persons entitled to vote 390-91 Material allegations only require proof 386 Moans of committing offence, when to be set out 397 Misjoinder of counts ••• 394-6 Motion, quashing indictment on 400 Names must be stated in indictment 884 Objection to indictment, when taken 401 Offence created by statute 382 Indictment should bring it within statute 382-3 One plea only can be pleaded 402 Order of pleading 402 Plea, of autrefois acquit 387 If overruled may plead not guilty :•• 390 Describing statute passed in two years 390 Only one can be pleaded 402 Postponement of trial on amendment of indictment. ... 398 Previous conviction, indictment for 396 Proof need not in all cases tally with statements in indictment. ... 391 Quashing indictment for duplicity 396 For variance between information and indictment. . . 400 How and when quashed 400 Statute, indictment on 382-8 Creating new offence 382-3 Surplusage does not vitiate an indictment 386 Time of committing offence need not be averred 396 Trial, postponement of, on amending indictmen !i 398 Variance, quashing indictment for 400 Venue in indictment 897 Order to change 899 In case of offences committed on carriages, etc 898-9 Voters, feloniously omitting names from list of 890-91 POISON— Administering of 249-60 POLICE COURT— Stealing records of 238 POLICE MAGISTRATE— Juri, granted. 624 346 326 343 pose, littaeq. 611 191 INDEX. 581 PUBLIC EMPLOYMENT— t^m. Persons holding office in, how prosecuted 342 QUARTER SESSIONS— (Me Skssioi^s). QUEBEC. PROVINCE OF— (aee English Laws in Force). RAPE— Age of consent (see Infant). • Assault, having connection with woman who believes it is her hus- band is 210 Attempt to commit, may be convicted of on indictment for 60 Attempt to ravish child from ten to twelve, even if consent 213 Consent, must be absence of 210 Even in case of idiot 213 Obtaining by fraud 210 By wife under supposition that it is her husband 210 Child under ten cannot give 213 But may to render attempt no assault 213-4 Child from ten to twelve, consent is defence on charge of assaulting 213-4 Contradiction (see Prosecvtiiix). Definition ^10 Emission of seed need not be proved 214 Evidence, statement of prosecutrix 214 Force, necessary ingredient in 210 Constructive 210 Fraud, consent obtained by 210-11 Infant under fourteen cannot commit 64 Idiot, must be evidence that without consent of {see Consent) 213 Prosecutrix cannot be contradicted if asked as to connection with other persons 214 Wife (see Husband). Will, must be against 210 RECEIVING STOLEN GOODS— Accessory, mere receipt did not constitute 272 Embezzled goods 272 Evidence of thief, convicting on 276 Felony, principal crime, must be 272 Husband adopting wife's receipt 274 Joint receipt need not be proved 273-4 Knowledge that goods stolen 274 Misdemeanor at common law 272 Mixture of grains partly stolen, receiving — 278 Possession must be parted with by thief. 274 ■I, -IS ■ ■I -i U f lii! 6S2 IMD^L BECEIVING STOLEN GOOpS-C Arrest of judgment 606 RESTITUTION— Writ of, in case of forcible entry 164 Jurisdiction of Court of Queen's Beach as to 164-6 RETURN TO HABEAS CORPUS— Disputing truth of 448 REVERSING CONVICTION— EfTeotof 4ai 272-3 278-4 274 er's poBses- 442 36S«< aeq. .., 375 I '437 nstitute 476 416 54 378 510 len origiiukl 447-8 y defeer- 475 506 to effect... 606 8^ 606 164 164-6 448 421 IMDIX. 5d3 BIOT- PAtt Defined. 149 Difik-ence between and unlawful assembly 149 Must relate to private quarrel 160 Three persons or more must be engaged in 160 Must be force and violence 160 And violence must be premeditated 160 Presence among rioters, does not render a person liable 161 Riot Act need not be read 161 Suppressing riot, power of private persons, and governor of colony to 161 When forcible entry amounts to 163 RIVERS— («ee Nuisances, Highways, btc.) Benefit of obstruction immaterial 181 Capacity of, material 178 Court must decide what constitutes navigable 178 Freshet, capacity of stream in 179 Jury, under direction of court, must find whether navigable 178 Lake Ontario 178 Navigable, what are 178 Piers, indictment will not lie for erecting 180 Portages, whether stream, navigable 188 Tide, flux and reflux of, not necessary to constitute navigable water 179,180-81 Rivers above, flow of 179 Usage, immemorial, not necessary 177-8 Weirs, only prohibited in navigable rivers 181 What is navigable water 178»9 Not such as may be obstructed by ploughing and harrowing. 179 Capacity in spring freshets 179 Must be capable of transporting property 179 ROBBERY— Agflpravated larceny 231 Animtu furandi necessary 232 Carrying away, necessary in 232 Definition 231 Duress, obtaining signature by 232 Election on indictment 232 Felonious taking necessary 231-2 Fear necessary ingredient 231 Must precede taking ,.,.. 231 Force necessary ingredient 231 Gtoods must be of some value 231 m Uw 684 INDEX. BJOBBERY— Continued. pau Indictment, election on 232 Several counts in 232 Person, goods must be taken from 281 Presence, goods must be taken in 231 Sadden taking, when robbery 231 Taking, actual, necessary 232 Value, goods must be of some 231 Will, goods must be taken against 281 ROUT— How distinguished from riot {see Riot). SAILORS — (gee Seducing SoLDiraiS, etc.) SALE— ^ » Of office {9ee OmcE, Offences bt Persons in). SEDUCING SOLDIERS OR SAILORS TO DESERT— Act now in force, how construed 86 Imprisonment under 80 Trial by court of Oyer and Terminer .; 86-7 Summary conviction of offender 87 - Indictment, when not sufficiently certain or precise 87 Mutiny Act of '67, to whom it relates 87-8 Warrant of commitment 88 Soldier must first answer to constituted tribunals 88 Volunteer triable by court martial 88 Foreign vessels 88-9 SENTENCE— Of death, warrant to execute 018 Of prisoner convicted of felony 618 SESSIONS- Jurisdiction and powers of 472 to 474 Is court of Oyer and Terminer. i.... 473 Can alter judgments at same aesaiona or sittings 474-6 Adjourn, has general power to 473-4 Cannot make any order except during the sessions, regular or ad- journed 474 Bench warrant, setkl to 476 Attorney acting as advocate in 476 When case stated for opinion of superior court, jurisdiction gone 476-6 May fine and imprison for contempt 476 Awarding costs o^ discharging appeal 446 PAca. , 282 232 281 281 231 232 281 281 86 80 86-7 87 87 87-8 88 88 88 88-9 618 518 .. 472 to 474 I.... 473 474-6 473-4 alar or ad- 474 476 476 tion gone 476-6 476 446 INDEX. 585 SMllGCrLtNG — {$ee Cu-^toms Offences). paok. SOLDIERS — (see Seducing Soldiers, etc.) 8TATUTP:S- Annotations of misuellaneous SIT et seq. Conatruction of — (nee Co.vsTRuenoN of Statutes) 317 et aeq. Court will judicially notice public 377 What are public r..7-8 Various 343 STATUTE LA.BOR— («ee HiohWay). STEALING FROM THE PERSON 252-3 STRIKES— Act as to V 116 Conatruction of — (aee Monopoly) 116-7 SUBORNATION OP PERJURY— («ee Perjury) 298 SUMMARY ADMINISTRATION— Of criminal justice 325 e< aeq. Act 32 & 33 Vic, c. 32, as to 325 Extension of to various provinces 325-6 Commitment under 326 Conviction under 326 et »eq. Impeaching proceedings 327 Decisions as to collected 325 et teq. SUMMARY CONVICTIONS -(see Practice, Justices' Conviction.s, ETC. ) SUMMONS— Proof of service of 461 SUNDAY— (see Lord's Day). SURETIES TO KEEP PEACE— Final commitment for want of 429 What is 429-30 Should show- date 429-30 SUSPENSION OF CIVIL REMEDY— {«ee Crimes). •TELEGRAPHIC DESPATCH— Divulging contents of 340 Con Stats. Can., c. 67, s. 16, does not apply between third parties.. 341 ^HG INDEX. TKMPERANCE AoT-(«i^e Liquor). t>Aet. 'I^TLES— Selling pretended 12letaeq. TOLLS ON ROADS OF JOINT STOCK COMPANIES— R. S. O., c. 163 330 Place of worship, going to, or returning from 330 Waggon conveying manure 330-1 Conviction under, what it must set out 331-2 No offence to exact tolls fixed by commissioners 331 If once acquitted on appeal, no certiorari 332 TRADES' UNION ACT 116-7 TRIAL— Objections at 379, 507 Should be noted by judge 507-'8 Adjournment of, granted for illness of ccunfici 507 UNLAWFUL ASSEMBLY— Assemblage of persons to witness prize fight is 151 How distinguished from riot — (»«eRioT) 149 UNLAWFUL PURPOSE— All liable for acts committed in prosecution of 70*7 1-2-3 VAGRANCY— Act 32 4 33 Vic, c. 28, as to 339 Extended to various provinces , 340 Maintain obligati. to »±9 Ability 440 Wife when 340 Witness not competent 340 Child 340 Servant 840 Others 340 Conviction should »how that person asked to give aceoimt of him- self 339 Evidence should show where person found 339 And that person is common prostitute 339 VARIANCE— On indictmeut for nuisance toa highway ,.......,. 189 INDEX. 587 fAOI> 121 et aeq. 330 330 330-1 ... 331-2 331 332 116-7 . 379, 507 507-8 507 151 149 . 70-71-2-3 339 340 540 440 340 340 340 840 340 t of him- 339 33fll 339' 18» VmiRE DE iro VO— PAOE. Where verdict uncertain and ambiguous 517 In case of improper disallowance of challenge 516 In case of mis'trial 516 Distinction between, and new trial 516 In case of abortive trial for misdemeanor or felony 517 After verdict, on charge of felony upon a good indictment before competent tribunal, etc 517 VENIRE FACIAS— Award of 488-9 VENUE— Of legal proceedings..... , 397 VERDICT— Ambiguous or uncertain.... 503>4 Recommendation to mercy, no part of 504 Court should be careful that it is unanimous 504 May be corrected before recorded 504 Counsel questioning jury as to grounds of 504 Right to find general 504 Recording on Sunday ,. .. 504 view- Alvays discretionary to gf ant, in criminal cases.. 506-7 Evidence, now t? ken on»..... , , 506 WARRANT (we CoMMiTMENt)— Amendmentof 426 Setting forth day and year wh«n made, and authority of magis^ trate 429 Direction of » , , 413 Though irregular, it is justification 414 Is only j^rtma yitcte evidence of its contents 413 Of "ommitment for indefinite time 432 Should show place where offence committed « 425 Te(;hnical precision of indictment not required 425 Not sufficient to call the offence a felony or misdemeanor 425 Particularity in 424-5 One or two justices issuing and signing 427 How justice compelled to issue 427-8 To execute sentence of death 518 Backing warraHt.^ .>> ■.■ ^ ^.......^... >....... ,. 414 ^88 INDEX. WIFE- ,,„,, Accessory, when may be 69 Criminal liability of 68-9-70 Neglecting to provide for .. 324 WITHDRAWING— Complaint for assault 410 WITNESSES— («ce EviDKNcK). •* •*- THE END. VBINTED BY THE GLOBE PRINTING COMPANY, ToAofNTO, ONT,