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Full text of "The Criminal code of the Dominion of Canada, as amended in 1893 [microform]"

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THE CRIMINAL CODE. 



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CR 



D( 



COMMEI 



HEN 



BEING A Tl 



THE CA 



/ 



THE 



CRIMINAL CODE 



OF THE 



DOMINION OF CANADA, 



AS AMENDED IN 1893, 



WITH 



COMMENTARIES, ANNOTATIONS, PRECEDENTS 

OF INDICTMENTS, &c., &c. 






BY 



HENRI ELZEAR TASCHEREAU, LL.D. 

One of the Judges of the Supreme Court of Canada. 



BEING A THIRD EDITION OF THE AUTHOR'S WORK ON THE CEIMINAIi 
STATUTE LAW OP THE DOMINION OF CANADA. 



TORONTO : 
THE CARSWELL Co. (Ltd.), LAWPUBLISHERS, Etc. 

1893. 




K.'^ 3 6" 



219526 



Bntered according to Act of the Parliament of Canada, in the year one thousand 
eight hundred and ninety -three, by The Cabswbll Co. (Ltd.), in the office 
of the Minister of Agriculture. 



THE CO 
Code 
heretofore 
of Canada. 
In the 
of the Cod 
spectively j 

1.— The 
draft Code 
Commons i 
present Cc 
taken : 

2.— The 
of the Dorn 

3.- A r. 
now in fore 

4.— A r 
applying fc 
statutes on 

5. — Cop 
Bishop and 

6.— Fori 
law for the 
courts ; in i 
there is a 



PREFACE. 



July 1st, 1893. 

THE coming into force on this day of the Criminal 
Code has necessitated a new edition of this work, 
heretofore published sah. noni. " The Criminal Statute Law 
of Canada." (Two editions, first in 1874, second in 1888.) 

In the present volume will ' e found, besides the text 
of the Code, under each section thereof to which they re- 
spectively apply : ;.-- 

1. — The report of the Imperial Commissioner on the 
draft Code of 1879, submitted to the Imperial House of 
Commons in the form of a Bill in 1880, from which the 
present Code has been in a large measure textually 
taken : 

2. — The cases from England and each of the Provinces 
of the Dominion brought down to the latest date : 

3. — A reference to the Imperial corresponding statute 
now in force in England : 

4. — A reference to the Imperial statutory enactments 
applying to Canada and to the unrepealed Canadian 
statutes on the same or cognate subjects: 

5. — Copious extracts from Russell, Greaves, Archbold, 
Bishop and other well known books on Criminal Law : 

6. — Forms of indictments adapted to the changes in the 
law for the offences the more frequently met with in our 
courtB ; in many instances, these might be shorter, but, till 
there is a settled jurisprudence on the new law, it was 



m 



iv 



PREFACE. 



deemed pradent not to expose those who have to draft in- 
dictments to useless risks : 

7. — The changes, extensions, or additions to the law, 
either italicized in the text of the statute, or pointed out 
in the annotation. This has been done even in the parts 
specially relating to justices of the peace, magistrates, 
coroners, etc., though, as in the previous editions, the size 
of the book did not allow the annotation of these enact- 
ments. 

The index of matters and tables of cases have been pre- 
pared by C. H. Masters, Esq., of the New Brunswick Bar, 
assistant reporter to the Supreme Court. 

The following synopsis of the principal parts of the new 
statute to which the attention of the practitioner should 
be more especially called may prove useful, though it must 
not be taken as giving more than about one-half of the 
amendments introduced : 

Enactments on magistrates, coroners, justices of the 
peace, constables, etc. 

553. As to jurisdiction, p. 627, post. 

568-642. A coroner cannot commit for trial : the find- 
ing of murder or manslaughter by a coroner's jury is to be 
reviewable by a magistrate. {New). 

590. Depositions before a justice on a preliminary 
inquiry must be read over and signed by the witness and 
the justice, the accused, the witness and justice being all 
lyresent together at the time of such reading and signing : 
depositions to be written on one side only of each sheet ; 
may be taken by stenographer; same for depositions on 
trial of summary convictions, sec. 843, except that the 
witnesses need not sign their depositions, sec. 856. (Neiv). 

550. Trials of offenders under sixteen to be private. 
(New). 

552. Arrest without warrant, in what cases legal by 
peaccroflficers and others. (Amemled). 



562, 7! 
of abode 
thereof, a] 

562-56 
blank, {u 

575. I 
instrumen 
585, 5f 
593. ( 
595. ( 
784. ^ 

limited to 
846. ( 
864. 1 

complainan 
959. P] 

(New). 

Page 9^ 
ments of ju 

OEXERAL E 

13. Ab 
in presence 

The ruh 
accessory a 
husband act 
presumed tt 

16-60. 
This part o 
law as to tl 
which woul 
the law rela 
in arresting 
for the most 



PREFACE. 



562, 796, 818. Affidavit of service of summons at place 
of abode must state that it was made on some inmate 
thereof, apparently not under sixteen. (New). 

562-563. No summons or warrant to be signed in 
blank. {New). 

575. Search-warrant authorized for lottery-tickets or 
instruments. (New). 

585, 586, 591. (Amended). 

593. (New). 

595. (New). 

784. The summary trials of indictable offences not 
limited to the police limits of cities. (New). 

846. Certain objections not fatal. (New). 

864. No summary conviction for assault if either 
complainant or accused objects thereto. (New). 

959. Provisions as to sureties and articles of the peace. 
(New). 

Page 948.' Enactment as to absence of seal from docu- 
ments of justices repealed, and not re-enacted. 

GENERAL ENACTMENTS— OFFENCES NEW, OR ALTERED, OR 

EXTENDED. 

13. Abolition of rule that a wife committing an offence 
in presence of her husband acts under coercion. 

The rule, however, will still subsist for a wife who is 
accessory after the fact to her husband. And (new) a 
husband accessory after the fact to his guilty wife will he 
presumed to act under coercion, sec. 63. 

16-60. (Di-awn by Lord Blackburn for Imperial draft.) 
This part of the Act in the main represents the existing 
law as to the circumstances which excuse or justify acts 
which would otherwise be crimes, and" more particularly 
the law relating to the degree of force which may be used 
in arresting offenders. Such alterations as it makes are 
for the most part made necessary by the abolition of the 



», 



vl 



PREFACE. 



distinction between felonies and misdemeanours. There 
are, besides, a few special alterations in particular cases, 
notice of which is given under each section in this volume, 
A definite rule is laid down as to the suppression of 
dangerous riots (ss. 38-43) not materially varying from 
Lord Chief Justice Tindal's charge to the Grand Jury after 
the Bristol riots {see 1st Stephens Hist. Cr. L. 204), but 
more explicit and complete. (From Imp. Comm. memo, to 
Parliament.) 

61. Puts the rules as to accessories and abettors in a 
new form. 

64. Any one may be found guilty of attempt to com- 
mit an offence although the commission of the offence was 
impossible under the circumstances. 

65. Treason. (Amended). 

67. Accessory after the fact to treason. {New). 

72. Inciting to mutiny. {New). 

120, 121, 122, 123, 124. As to seditious offences. {New). 

125. Libel on foreign sovereigns {New). 

126. Spreading false news. {New). 
127, 128, 129, 130. As to piracy. {New). 

131. Bribery and corruption of judges, members of 
parliament, or of a legislature. {Neiv). 

132. Corruption of peace officers. {New). 
135. Breach of trust by public officer. (iVew). 
137. Selling office. {New). 

139. Disobedience to orders of court. {New). 

140. Neglect of peace officer. {New). 

141. Neglect to aid peace officer. {New). 

142. Neglect to aid peace officer. (New). 
145. New provisions as to perjury. 

150. False statements. (New). 

151. Fabricating evidence. (New). 



152. 

159,] 

170. 

177. 

179. 

188. 

192, l! 

194. 

195, U 

206. ; 

210, 21 
parents, m 
See p. 144, 

227, 22 

slaughter : 
with malic* 
thought do 
of any one 
murder. ^ 

237. 

238. 

239. 

(New). 

266. 
271. 
283. 
291 

303-305 
a distinct of 
the gist of 
pages 307 tc 

313. Tl 
property an 
amended 



A 
A 

I 

L 
K 
A 
Li 



PREFACE. 



Vtt 



162. Conspiracy to bring false accusations. (New). 
Ls to escapes and rescues. (New). 
Blasphemous libel. (New). 
Indecent acts. (Amended). 
Obscene books, etc. (New). 
Conspiracy to defile. (New). 



159, 160. 
170. 
177. 
179. 

188. 



192, 193. As to nuisances. (New). 

194. Selling things unfit for food.. (New). 

195, 196, 197, 198. Gaming or disorderly houses. (New). 

206. Misconduct in respect to dead bodies. (New). 

210, 211. Amendments of statute concerning duty of 
parents, masters or husbands to provide necessaries, etc. 
See p. 144, post 

227, 228, 229. Alter the law of murder and man- 
slaughter: murder is not now to be defined as "killing 
with malice aforethought." But killing with malice afore- 
thought does not cease to be murder. Accidental killing 
of any one in the commission of a felony is not now to be 
murder. See pages 153 to 212, post, as to details. 

Aiding and abetting suicide. (New). 

Attempt to commit suicide. (New). 

to obtain assistance in child-birth. 



237. 
238. 

239. 

(New). 

266. 
271. 
283. 
291. 



Neglect 



Law as to rape altered. 

Killing child in mother's womb. (New). 

Abduction of girl under sixteen. (Amended). 

Law of libel as to public meetings. (New). 
303-305. Law of larceny amended. Embezzlement as 
a distinct offence abolished. A fraudulent conversion now 
the gist of the offence, not an unlawful taking. See 
pages 307 to 340, post. 

313. The law as to stealing by husband of his wife's 
property and vice versa, and as to receiving by avowterer 
amended. 



viii 



PREFACE. 



314. 

315. 
346. 
351. 
353. 
left out. 

356. 

{Amended}. 



As to receiving stolen goods. (Amended). 

As to receiving post letters. (Amended). 

Stealing by pick-locks, etc. (New). 

Stealing on railwaj'^s. (New). 

Provision as to stealing of promissory notes, etc.. 



Previous conviction on charge of 



stealinsf. 



365. 
paniee 
366. 
367. 

369. 
years. 
394. 

396. 
406. 



False statements by promoters, directors of com- 
( Amended). 

False accounting by clerks. (Neiv). 
False statement by public officers. (New). 
Punishment increased from six months to ten 



Conspiracy to defraud. (New). 

Practising witchcraft. (New). 

Extortion by threats. (New). 
408-418. Burglary. (Amended). 
417. Being masked by night. (New). 
423. Forgery. (Amended). 

428. Sending telegram in false name. {New). 

429. Sending false telegrams or letters. (New). 

456-457. Personation. (New). * 

478. Previous conviction on offences against coin. 
(Amended). 

481. Mischief. (.Amended). 

482. Arson. (Amended). 

499. Damaging any property by night to amount of 
^20. {New). 

502. Punishment decreased from ten years to two 
years. 

503. To destroy an election ballot or paper, seven 
years. By s. 100, c. 8, R. S. C. {unrepealed) to destroy 
any ballot paper, not more than six months. 



507a. 

527. 

528. 

629. 

530. 

531-5 

534. 

535. 

abolished 

539-5' 
diction h 
coin, bias] 

542. 
mitted w 
hoard a E 
eral. (Ne 

551. 

595. 

610,6 
ments. ( 

631, 6J 

640. 
courts, no 

641. 
cutions. 

648. 

656. 

660. 
trial. (Nt 

661. 

G6G. 

667. 



PREFACE. IX 

507a, Injuries to harbours. {New). 

527. Conspiracies. (New). 

528. Attempts. (Neiv). 

529. " (Neiv). 

630. " (Neiv\ 

531-532. Accessories after the fact. (Neiv). 

PROCEDURE. 

534. Effect of criminal offence on civil remedy. 

535. Distinction between felony and misdemeanour 
abolished. (New). 

539-540. Court of Sessions of the Peace, to have juris- 
diction in manslaughter, perjury, forgery, counterfeiting 
coin, bla.sphemous libel, bribery at elections. (New). 

542. No alien to be prosecuted for an offence com- 
mitted within the jurisdiction of the Admiralty, even on 
hoard a British ship, without leave of the Governor-Gen- 
eral. (New). 

551. Limitation of time. (Amended). 

595. (Neiv). P. 658 jyost. 

610, 611, 612, 613, 616, 617, 019. 626, 627, 629. Indict- 
ments. (AiHfnded). 

631, 632, 633. Pleas in bar. (Amended). 

640. A,bolishes the law of venue. Jurisdiction of 
courts, not confined to territorial liiaits. (Xfu). 

641. Vexatious indictments Act extended to all prose- 
cutions. (New). 

648. Bench warrant. (Amended). 

656. Pleas in abatement abolished. (Neic). 

660. Court may allow accused not to be present at 
trial. (New). 

661. Counsel's addresses to jury. (Amended). 

666. Challenging the array. (New). 

667. Calling the panel. (Ne^r). 





PREFACE. 



668. Number of challenges, how regulated. {New). 

673. Rules as to jury separating during trial. {New). 

684. Evidence of any witness in forgery to require 
corroboration. ( Kew). 

690. Admissions by prisoner on trial. (New). 

713. Verdict for a minor offence included in offence 
charged. (Amended). 

But if on a charge of larceny, obtaining by false pre- 
tenses is proved, or vice versa, the prisoner must now be 
acquitted. {New). 

723. Variances and amendments. {Amended). 

729. Any proceedings of the court on a Sunday are 
legal. {New). 

731. Jury de ventre inspiciendo abolished. 

743. Writ of erroi abolished. 

744. Appeal when a reserved case refused. {New). 

746. Powers of court of appeal. {Amended). 

747. New trial. {Neiv). 

748. New trial by order of Minister of Justice. (New). 

749. Intermediate effects of appeal. {New). 
832-835. Costs. (Netv). 

<S36. Compensation for loss of property. (New). 

838. Restitution of stolen property. {Amended). 

951-952. Punishments in cases not provided for and 
after previous conviction. {Amended). 

959. Sureties for the peace, articles of the peace. {New). 

90 1. Disabilities by a conviction. {New). 

9G2-965. Outlawry and attainder abolished. {Neiv). 



FOB co^ 



Soi 



William I . . 
William II., 
Henry I.... 
Stephen.. .. 
Henry II. . . 
Richard I . . 

John 

Henry III. . 
Edward I . . 
Edward II . 
Edward III 
Bichard II. 
Henry IV . . 
Henry V. . , 
Henry VI.. 
Edward IV . 
Edward V.. 
Richard III 
Henry VII., 
Henry VIII 
Edward VI . 

Mary 

Philip and ]V 
Elizabeth . . 
James I.. ,, 
Charles I.. . 
The Commoi 
Charles II*. 
James II. . . 
William and 

Anne 

Georf^e I .... 
George II..., 
George III . . 
George IV.. , 
William IV, 
Victoria 



•Although] 
his regnal yei 
13, 1G49, so tl 
reign. 



A TABLE OF REorNAL YEARS. 

FOB CONT£MIENCE OF IlEFEBEMCE TO THE ENOLIRH STATUTES AND LAW 

BEPORTB. 



SOVEBEIONS. 



William I 

William II 

Henry I 

Stephen 

Henry II 

Bichard I 

John 

Henry III 

Edward I 

Edward II 

Edward III 

Bichard II 

Henry IV 

Henry V . . . . 

Henry VI 

Edward IV 

Edward V 

Bichard III 

Henry VII 

Henry VIII 

Edward VI 

Mary 

Philip and Mary 

Elizabeth 

James I 

Charles I 

The Commonwealth. 

Charles II' 

James II 

William and Mnry.. 

Anne 

George I 

George II 

George III 

George IV 

William IV 

Victoria 



Commencement of Beion. 



December 25, 1066.. 
September ^6, 1087 

Augusts, 1100 

December 26, 1135. 
December 19, 1154. 
Septembers, 1189.. 

May 27, 1199 

October 28, 1216. . . 
November 20, 1272. , 

Julys, 1307 

January 25, 1327 ... 

June 22, 1377 

September 30, 1399. 
March 21, 1413 .... 
September 1, 1422.. 

March 4, 1461 

April 9, 1483 

June 26. 1483 

August 22, 1485 

April 22, 1509 

January 28, 1547... 

July 6, 1553 

July 25, 1654 

November 17, 1558., 
March 24, 1603 . . . . 

March '27, 1625 

January 30, 1049. . . 

May 29, 1060 

February 6, 1685... 
February 13, 1689.. 

March 8, 1702 

August 1, 1714 

June 11, 1727 

October 25, 1760 . . . 
January 29, 1820. . . 

June 26, 1830 

June 20, 1837 



Length 

of 
Beign. 



21 
13 
36 
19 
35 
10 
18 
57 
35 
20 
51 
23 
14 
10 
39 
23 

3 
24 

38 

7 

2 

4 

45 

23 

24 

11 

37 

4 

14 
13 
18 
84 
(iO 
11 
7 




■fe; 



'Although Charles II. did not ascend the throne until 29tliMay, 1060, 
his regnal years were computed from the death of Charles I., January 
13, 1649, so that the year of his restoration is styled the twelfth of his 
reign. 



Xll 



A TABLE OF REGNAL YEARS. 



A Table op Regnal Years— Continued. 



1831—1 & 2 Wm. IV, 1 


1832—2 & 3 




1833—3 & 4 




1834—4 & 5 




1835—5 & 6 




1836—6 & 7 




1837—7 Wm. ' 


[V. and 1 Vic. 


1838— 1 & 2 Vic. 


1839— 2 & 3 


it 


1840— 3 & 4 


(t 


1841— 4 & 5 


ii 


1841- 5 


t( 


1842- 5 & 6 


•< 


1848- 6 & 7 


K 


1844— 7 & 8 


« 


1845— 8 & 9 


Ii 


1846— 9 & 10 


<( 


1847—10 & 11 


<< 


1848—11 & 12 


U 


1849—12 & 13 


(1 


1850—13 & 14 


« 


1851—14 & 15 


(( 


1852—15 & 16 


(( 


1853—16 & 17 


n 


1854—17 & 18 


«i 


1856—18 & 19 


it 


1856—19 & 20 


it 


1857-20 


tl 


1857—20 & 21 


it 


1858—21 & 22 


ii 


1859—22 


it 


1859—22 & 23 


tt 


18G0— 23 & 24 


it 


1861—24 & 25 


t 



1862- 


-25 & 26 Vic 


1863- 


-26 & 27 


(( 


1864- 


-27 & 28 


t( 


1865- 


-28 & 29 


(( 


1866- 


-29 & 30 


i( 


1867- 


-30 & 31 


(( 


1868- 


-31 & 32 


(( 


1869- 


-32 & 33 


<( 


1870- 


-33 & 34 


II 


1871- 


-34 & 35 


Ii 


1872- 


-35 & 36 


Ii 


1873- 


-36 & 37 


II 


1874- 


-37 & 38 


II 


1875- 


-38 & 39 


41 


1876- 


-39 & 40 


• ( 


1877- 


-40 & 41 


If 


1878- 


-41 & 42 


II 


1879- 


-42 & 43 


II 


1880- 


-43 & 44 


II 


1881- 


-44&45 


11 


1882- 


-45 & 46 


(1 


1883- 


-46 & 47 


ii 


1884- 


-47 & 48 


II 


1885- 


-48 & 49 


«l 


1886- 


-49 & 50 


II 


1887- 


-50 & 51 


l( 


1888- 


-51 & 62 


II 


1889- 


-62 


II 


1889- 


-52 & 63 


II 


18!)0- 


-63 & 54 


II 


1891- 


-54 & 65 


II 


1892- 


-65 & 66 


II 


1833- 


-66 & 67 


II 



Title L Inl 

II. Ofl 

IIL Off 

IV. Off 

V. Off 

VI. Off 

V;L Pre 

VIII. Pre 

IX. Act 

X. Rei 

SCBEDDLE 1. 
2. 

Appendix. 



THE CRIMINAL CODE, 1892. 



[55.56 VIC. c. 29]. 



AMENDMENT OF 1893. 
[56 \IC. c. 32]. 



AERANGEMENT OF TITLES. 

Page. 

Title I. Introductory pro- iiiona 1 

II. Offences against public order, internal and external 46 

III. Offences affecting the administration of law and justice.... 77 

IV. Offences against religion, morals and publio convenience.. Hi 
V. Offences against the person and reputation 143 

VI. Offences against rights of property and rights arising out of 

contracts and offences connected with trade 836 

Vn. Procedure 602 

VIII. Proceedings after conviction 959 

IX. Actions against persons administering the criminal law.... 979 

X. Repeal, etc 980 

ScBEDCLE 1. Forms 983 

2. Table of Acts repealed 983 

Appendix. Acts and parts of Acts which are not affected by this 

Act 986 






Sec. 

1. Short titl 

2. CommeiK 

3. Explanat 

4. Meaning ( 

5. Offence a 

Uni 

6. Conseguei 



7. General n 

8. General n 

9. Children i 

10. Children I 

11. Insanity.. 

12. Compulsio 

13. Compulsio 

14. Ignorance 

15. Execution 

16. Execution 

17. Execution 

18. Execution 

19. Sentence o: 

20. Arresting i 

21. Irregular w 

22. Arrest by j 

23. Persons asf 

24. Arrest of pi 

25. Arrest aftei 



TABLE OF CONTENTS. 



V 



TITLE I. 
INTRODUCTORY PROVISIONS. 

PART I. 

Pbeliminaby. 
Sec. Page. 

1. Short title 1 

2. Commencement of Act 1 

3. Explanation of terms I 

4. Meaning of expressions in other Acts retained 6 

5. Offence against statutes of England, Great Britain or the 

United Kingdom *> 

6. Consequences of committing offence 6 

PART II. 

Matters of Justification or Excuse. 

7. General rule under common law 7 

8. General rule under this Act 7 

9. Children under seven 7 

10. Children between seven and fourteen 7 

11. Insanity B 

12. Compulsion by threats 9 

13. Compulsion of wife 11 

14. Ignorance of the law 11 

15. Execution of sentence 12 

16. Execution of process 1'.^ 

17. Execution of warrants 14 

18. Execution of erroneous sentence or process I'l 

19. Sentence or process without jurisdiction 15 

20. Arresting the wrong person 15 

21. Irregular warrant or process 16 

22. Arrest by peace officer in case of certain offences 16 

23. Persons assisting peace officer 17 

24. Arrest of persons found committing certain offences 17 

25. Arrest after commission of certain offences 17 




U 



Xvi TABLE OF CONTENTS. 

Sec. Pftjre. 

26. Arrest of person believed to be committing certain o£fencea by 

night 17 

27. Arrest by peace officer of person found committing offence. ... 17 

28. Arrest of person found committing any offence at night 18 

29. Arrest during flight 18 

30. Statutory power of arrest 18 

31. Force used in executing sentence or process or in arrest 19 

82. Duty of persons arresting 19 

33. Peace officer preventing escape from ari-est for certain offences 19 
31. Private person preventing escape from arrest for cer tain 

offences 20 

35. Preventing escape from arrest in other cases 20 

36. Preventing escape or rescue after arrest for certain offences.. 20 

37. Preventing escape or rescue after arrest in other cases 20 

38. Preventing breach of the peace 20 

39. Prevention by peace officers of breach of the peace 21 

40. Suppression of riot by magistrates 21 

41. Suppression of riot by perssons acting under lawful orders 21 

42. Suppression of riot by persons without orders 22 

43. Protection of persons subject to military law 22 

44. Prevention of certain offences 22 

45. Self-defence against unprovoked assault 22 

46. Self-defence against provoked assault 23 

47. Prevention of insult 24 

48. Defence of movable property against trespasser 24 

49. Defence of movable property with claim of right 24 

50. Defence of movable property without claim of right 24 

51. Defence of dwelling-house 24 

52. Defence of dwelling-house at night 25 

53. Defence of real property 25 

54. Assertion of right to house or land 26 

55. Discipline of minors 27 

56. Discipline on ships * 27 

67. Surgical operations 27 

68. Excess 27 

59. Consent to death 27 

60. Obedience to de facto law 28 

PART III. 

Parties to the Commission of Offences. 

61. Parties to offences 28 

62. Offence committed other than the offence intended 39 

63. Accessory after the fact 40 

64. Attempts 42 



OFFENC 



Treason a: 

Sec. 

65. Treason 
6G. Conapira 
67. Accessor] 
08. Levying 
Bub 

69. Treasona 

70. Conspira( 

71. Assaults i 

72. Inciting t 

73. Enticing! 

74. Resisting 

75. Enticing 

poli( 
70. Interprets 

77. Unlawfulll 

78. Communii 



Unlaw 

79. Definition 

80. Definition 

81. Punishmei 

82. Punishmei 

83. Heading tl 

84. Duty of ju 
So. Riotous de 

86. Riotous da 

87. Unlawful 

88. Being unla 

89. Forcible en 

90. Affray . . 

91. Challenge t 

92. Prize-fighti 

93. Challenging 

94. Engaging a 

95. Attending 

Crim. Law 



P 

h 

;(.*; 



I' ! 



TABLE OF CONTENTS. 



TITLE II. 



XVU 



OFFENCES AGAINST PUBLIC ORDER, INTERNAL AND 

EXTERNAL. 

PART IV. 

Treason and other Offences against the Queen's Acthority and 

Person. 
Sec. Page. 

65. Treason 46 

CG. Conspiracy 47 

67. Accessories after the fact 47 

68. Levying war by subjects of a state at peace with Her Majesty — 

subjects assisting 47 

69. Treasonable offences 48 

70. Conspiracy to intimidate a legislature 48 

71. Assaults on the Queen 49 

72. Inciting to mutiny 49 

73. Enticing soldiers or sailors to desert 49 

74. Resisting execution of warrant for arrest of deserters £0 

75. Enticing militiamen or members of the North-west mounted 

police force to desert 60 

7G. Interpretation 50 

77. Unlawfully obtaining and communicating official information.. 51 

78. Communicating information acquired by holding office 52 



k 




I ,'-■ 



PART V. 

Unlawful Assemblies, Riots, Breaches of the Peace. 

79. Definition of unlawful assembly 52 

80. Definition of riot 65 

81. Punishment of unlawful assembly 56- 

82. Punishment of riot 66' 

83. Reading the Riot Act 56- 

84. Duty of justice if rioters do not disperse 57 

85. Riotous destruction of buildings 5T 

86. Riotous damage to buildings 58 

87. Unlawful drilling 59 

88. Being unlawfully drilled 59 

89. Forcible entry and detainer 60 

90. Affray 60 

91. Challenge to fight a duel 61 

92. Prize-fighting defined 61 

93. Challenging to fight a prize-fight, etc 62 

94. Engaging as principal in a prize-fight 62 

95. Attending or promoting a prize-fight 62 

Crim. Law— b 



\^m 




xvm 



TABLE OF CONTENTS. 



Sec. Page. 

96. Leaving Canada to engage in a prize -fight 62 

97. Where the fight is not a prize-fight— diecbarge or fine 63 

98. Inciting Indians to riotous acts 63 



PART VI. 

Unlawful Use and Possession or Explosive Scbstances and 
Offensive Weapons. — Sale or LiQCons. 

99. Causing dangerous explosions 63 

100. Doiiig anything, or possessing explosive substance, with intent 

to cause dangerous explosions 64 

101. Unlawfully making or possessing explosive substances 64 

102. Having possession of arras for purposes dangerous to the public 

peace 64 

103. Two or more persons openly carrying dangerous weapons so as 

to cause alarm 65 

104. Smugglers carrying offensive weapons 65 

105. Carrying a pistol or air-gnn without justification 65 

106. Selling pistol or air-gun to minor 66 

107. Havi^ weapons on person when arrested 66 

108. Having weapons on the person with intent to injure any person. 67 

109. Pointing any firearm at any person 67 

110. Carrying offensive weapons about the person 67 

111. Carrying sheath-knives 67 

112. Exceptiou as to soldiers, etc 67 

113. Refusing to deliver offensive weapon to a justice 68 

114. Coming armed within two miles of public meeting 68 

115. Lying in wait for persons returning from public meeting 68 

116. Sale of arms in the North-west Territories 69 

117. Possessing weapons near public works 69 

118. Sale, etc., of liquors near public works 69 

119. Intoxicating liquors on board Her Majesty's ships 70 



Sec. 

127. Piracy I 

128. Piratica: 

129. Piracy t 

130. Not flghi 



OFPENCJ 



131. Judicial c 

132. Corruptio) 

133. Frauds up 

134. Other couf 

135. Breach of 

136. Corrupt pr 

137. Selling ofli 

138. Disobedien 

139. Disobedien 

140. Neglect of 

141. Neglect to i 

142. Neglect to i 

143. Misconduct 

144. Obstructini 



PART VII. 

Seditious Offences. 

120. Oaths to commit certain offences 70 

121. Other unlawful oaths 71 

122. Compulsion in administering and taking oaths 72 

123. Seditious offences defined 72 

124. Punishment of seditious offences 73 

125. Libels on foreign sovereigns 73 

120. Spreading false news ' 73 



M5. Perjury def 

146. Punishment 

147. False oaths, 

148. False staten 

149. Making fal8< 
160. False staten 
151. Fabricating 

162. Conspiring t 

163. Administerii 
1S4. Corruptiug j 
165. Compoundin 



TABLE OF CONTENTS. 



XIX 



PART VIII. 
Piracy. 

Sec. Pafie. 

127. Piracy by the law of nations 74 

128. Piratical acta 75 

129. Piracy with violence 75 

130. Not fighting pirates 76 




V 



TITLE III. 

OFFENCES AGAINST THE ADMINISTRATION OF LAW 

AND JUSTICE. 

PART IX. 

Corruption and Dibobedibnck. 

131. Judicial corruption 77 

132. Corruption of officers employed in prosecuting offenders 77 

133. Frauds upon the government 78 

134. Otlier consequences of conviction for any such offence 80 

135. Breach of trust by public officer 80 

136. Corrupt practices in municipal affairs 81 

137. Selling office, appointment, etc 82 

138. Diiiobedience to a statute 83 

139. Disobedience to orders of court 83 

140. Neglect of peace officer to suppress riot 83 

141. Neglect to aid peace officer to suppress riot 83 

142. Neglect to aid peace officer in suppressing riot 83 

143. Misconduct of officers intrusted with execution of writs 84 

144. Obstructing public or peace officer in the execution of his duty 84 

PART X. 

MisLEADiNo Justice. 

145. Perjury defined 85 

146. Punishment of perjury 97 

147. False oaths 98 

148. False statement, wilful omission in affidavit, etc 98 

149. Making false affidavit out of province in which it is used 99 

160. False statements 99 

151. Fabricating evidence 99 

152. Conspiring to bring false accusations 100 

153. Administering oaths without authority 101 

154. Corrupting juries and witnesses 104 

165. Compounding penal actions 104 



■/ 



XX 



TABLE OF CONTENTS. 



Sec. P'lge. 

156. Corruptly taking; a reward for helping to recover stolen property 

without usin^ diligence to bring offender to trial 105 

167. Unlawfully advertising a reward for return of stolen property. . lOG 

158. Signing false declaration respecting execution of judgment of 

death 10& 

PART XI, 

Escapes and Bescces. 

159. Being at large while under sentence of imprisonment 107 

160. Assisting escape of prisoners of war Ill 

161. Breakini! prison HI 

162. Attempting to break prison HI 

163. Escape from custody after conviction or from prison Ill 

164. Escape from lawful custody 112 

165. Assisting escape in certain cases 112 

166. Assisting escape in other cases 112 

167. Aiding escape from prison 112 

168. Unlawfully procuring discharge of prisoner 113 

169. How escaped prisoners shall be punished 11& 

TITLE IV. 

OFFENCES AGAINST RELIGION, MORALS AND PUBLIC 

CONVENIENCE. 

PART XII. 

Offences Against Religion. 

170. Blasphemous libels 114 

171. Obstructing officiating clergyman 115 

172. Violence to officiating clergyman 115 

173. Disturbing public worship 116 

PART XIII. 

Offences Against Morality. 

174. Unnatural offence 116 

175. Attempt to commit sodomy 118 

176. Incest 110 

177. Indecent acts 120 

178. Acts of gross indecency 121 

179. Publishing obscene matter 121 

180. Posting immoral books, etc 122 

181. Seduction of girls under sixteen 123 

182. Seduction under promise of marriage 123 



Sec. 

183. Seduction 

184. Seduction i 

185. Unlawfully 

186. Parent or ( 

187. Houseliold* 

188. Conspiracy 

189. Carnally ki 

190. Prostitutio 



191. Common ni 

192. Common av 

193. Common nu 

194. Selling thin. 

195. Common ba 

196. Common ga 
107. Common be 

198. Disorderly 1 

199. Playing or 1( 

200. Obstructing 

201. Gaming in s 

202. Habitually f 

on , 

203. Gambling in 

204. Betting and 

205. Lotteries . . 
200. Misconduct 



207. Vagrant defi 

208. Penalty for 



OFFENCES A 



DCTI 

209. Dutytoprov 

210. Duty of head 

211. Duty of mast 



TABLE OF CONTENTS, XXI 

Sec. Page. 

ISi). Seduction of a ward, servant, etc 124 

184. Seduction of females who are passengers on vessels 124 

185. Unlawfully defiling women I'ili 

186. Parent or guardian procuring defilement of girl 127 

187. Householders permitting defilement of girls on th< ir premiseB.. 128 

188. Conspiracy to defile 129 

18',). Carnally knowing idiots, etc 180 

190. Prostitution of Indian women 130 

PART XIV. 

Nuisances. 

191. Common nuisance defined 131 

192. Common nuisances which are criminal 133 

193. Common nuisances which are not criminal 133 

194. Selling things unfit for food 133 

19r>. Common bawdy-house defined 133 

19C. Common gaminghouse defined 133 

197. Common betting-house defined 134 

198. Disorderly houses 134 

199. Playing or looking on in gaming-house 135 

200. Obstructing peace ofMcer entering a gaming-house 135 

201. Gaming in stocks and merchandise 18C 

202. Habitually frequenting places where gaming in stocks is carried 

on 136 

203. Gambling in public conveyances 136 

204. Betting and pool-selling 137 

205. Lotteries 138 

200. Misconduct in respect to human remains 139 

PART XV. 

Vagrancy. 

207. Vagrant defined 140 

208. Penalty for vagrancy 140 



m 



il' 







TITLE V. 
OFFENCES AGAINST THE PERSON AND REPUTATION. 

PART XVI. 

Duties tending to the Pheservation of Life. 

209. Duty to provide the necessaries of life 143 

210. Duty of head of family to provide necessaries 143 

211. Duty of maatera to provide necessaries 143 



xxn 



TABLE OF CONTENTS. 



Sec. Pa-He. 

212. Duty of persons doing dangerous acts 144 

213. Duty of persons in charge of dangerous things 144 

214. Duty to avoid omissions dangerous to life 144 

215. Neglecting duty to provide necessaries 144 

216. Abandoning children under two years of age . 149' 

217. Causing bodily harm to apprentices or servants 151 

PART XVII. 

Homicide. 

218. Homicide defined 205 

219. When a child becomes a liuman being 205 

220. Culpable homicide 20(> 

221. Procuring death by false evidence 208 

222. Death must be within a year and a day 208 

223. Killing by influence on the mind ^08 

224. Acceleration of death 209 

225. Causing death which might have been prevented "09 

226. Causing injury the treatment of which causes death 209 

PART XVIII. 

MUKDEK, MaNSLADGHTER, EtC. 

227. Definition of murder 210' 

228. Further definition of murder 210- 

229. Provocation 211 

230. Manslaughter 211 

231. Punishment of murder 212 

232. Attempts to commit murder 212 

233. Threats to murder 222 

234. Conspiracy to murder 224 

235. Accessory after the fact to murdt-r 225- 

23G. Punishment of manslaughter 225 

2b7. Aiding and abetting suicide 22(> 

238. Attempt to commit suicide 228 

239. Neglect to obtain assistance in childbirtli 228 

240. Concealing dead body of child 229 

PART XIX. 

Bodily Ixjuiues, and Acts and Omissions causino Danger to 

THE Pehson. 

241. Wounding with intent 23a 

242. UnlawBul wounding 237 

243. Shooting at Her Majisty's vessels — wounding customs or inland 

revenue officers 239 



TABLE OF CONTENTS. 



XXUl 



Sec. Page. 

244. Disabling or administering drugs with intent to commit an 

indictable offence 289 

246. Administering poison so as to endanger life 240 

246. Administering poison with intent to injure 240 

247. Causing bodily injuries by explosives. 241 

248. Attempting to cause bodily injuries by explosives 241 

249. Betting spring-guns and man-traps 243 

250. Intentionally endangering the safety of persons on railways. . . . 245 

251. Negligently endangering the safety of persons on railways .... 245 

252. Negligently causing bodily injury to any persons 249 

258. Injuring persons by furious driving 249 

254. Preventing the saving of the life of any person shipwrecked. . . . 250 

255. Leaving holes in the ice and excavations unguarded 250 

256. Sending unseaworthy ships to sea 251 

257. Taking unseaworthy ships to sea 251 

PART XX. 

AsBkVhUB. 

258. Assault defined 252 

359. Indecent assaults on females 252 

260. Indecent assaults on males 253 

261. Consent of child under fourteen no defence 253 

262. Assaults causing actual bodily harm 263 

263. Aggravated assault 254 

264. Kidnapping 258 

265. Common assaults 259 

PART XXI. 
Rape and Procurinq Abortion. 

266. Rape defined 268 

267. Punishment for rape 268 

2C8. Attempt to commit rape 268 

269. Defiling children under fourteen 274 

270. Attempt to commit such offence 274 

271. Killing unborn child 275 

272. Procuring abortion 275 

273. Woman procuring her own miscarriage 27G 

274. Supplying means of procuring abortion 276 

PART XXII. 

Offences aqiinst Coxjuual and Parental Rights— Bigamy 
— Abuuction. 

275. Bigamy defined 279 

270. Puuialnni;nt of bigamy 280 



<'A 



V 




XXIV 



TABLE OF CONTENTS. 



Sec. , Page. 

277. Feigned marriages 287 

278. Punishment of polygamy 287 

279. Solemnization of marriage without lawful authority 238 

280. Solemnization of marriage contrary to law 288 

281. Abduction of a woman 289 

2S2. Abduction of an heiress 289 

283. Abduction of girl under sixteen 292 

284. Stealing children under fourteen 295 

PART XXIII. 

Defamatory Libel. 

28.3. Defamatory libel defined 296 

280. Publishing defined 297 

287. Publishing upon invitation 297 

28^*. Publishing in courts of justice 297 

289. Publishing parliamentai-y papers 297 

290. Fair reports of proceedings of parliaments and courts 297 

291. Fair report of proceedings of public meetings 297 

292. Fair discussion 298 

293. Fair comment 298 

291. Seeking remedy for grievance 298 

■295. Answer to inquiries . . , . • 298 

296. Giving information 298 

297. Selling periodicals containing defamatory libel 298 

'2dS. Selling books containing defamatory matter 299 

299. When truth is a defence : 299 

300. Extortion by defamatory libel 299 

801. Punishment of defamatory libel known to be false iJOO 

302. Punishment of defamatoi'y libel 300 

TITLE VI. 

OFIEXCES AGAINST RIGHTS OF PROPERTY AND RIGHTS 

ARISING OUT OF CONTRACTS AND OFFENCES 

CONNECT HD WITH TRADE. 

PART XXIV. 

TlIKFT DEI-IXED. 

303. Tilings capable of being stolen 336 

304. Animals capable of being stolen 337 

o0.3. Theft defined 338 

306. Theft of things under .seizure 340 

307. Theft of auimal.s 341 

308. Theft by agent 341 



Sec, 

309. Theft by 

310. Theft by 

311. Theft by 

312. Conceal ii 

313. Husband 



314. Receiving 

315. Receiving 

316. Receiving 

con\ 

317. When reci 

318. Receiving 



PUNISHME 
MITTED 

319. Clerks and 

320. Agents an 

321. Public se 

book! 

322. Tenants ar 

323. Testament 

324. Document 

325. Judicial or 

326. Stealing pc 

327. Stealing pc 

328. Stealing mi 

329. Election di 

330. Railway ti( 

331. Cattle ,... 

332. Dogs, birds 

333. Pigeons . . 

334. Oysters .. 

335. Things fixe 

336. Trees in j 

elsewi 

337. Trees of th. 

338. Timber fou 

339. Fences, atil 

340. Failing to s 

341. Roots, plan 



TABLE OF CONTENTS. 



XXV 



Sec. Page. 

309. Theft by person holding a power of attorney 342 

310. Theft by misappropriating proceeds held under direction 342 

311. Theft by co-owner 345 

312. Concealing gold or silver with intent to defraud partner in claim 345 

313. Husband and wife 346 

PART XXV. 

Receiving Stolen Goods. 

314. Receiving ^iroperty dishonestly obtained 317 

315. Receiving stolen post letter or post letter bag 353 

316. Receiving property obtained by offence punishable on summai-y 

conviction 354 

317. When receiving is complete 355 

318. Receiving after restoration to owner 355 

PART XXVI. 

Punishment of Theft and Offences KESEMnLiNc. Tiif.ft com- 
mitted BY PaUJ ICCLAU PeI'.SONS IN RESl-ECT OF PaKTICILAK 

Things in Pauticulau Places. 

319. Clerks and servants 355 

320. Agents and attorneys, punishment 309 

321. Public servants refusing to deliver up chattels, moneys or 

books, etc., lawfully demanded of them 309 

322. Tenants and lodgers 370 

323. Testamentary instruments 370 

324. Document of title to lands 370 

325. Judicial or official documents 371 

326. Stealing post letter bags, etc 372 

327. Stealing post letters, packets and keys 3'2 

328. Stealing mailable matter other than post letters 372 

329. Election documents 373 

330. Railway tickets 373 

331. Cattle 373 

332. Dogs, birds, beasts and other animals 374 

333. Pigeons 375 

334. Oysters 375 

336. Things fixed to buildings or to land 37(> 

336. Trees in pleasure grounds, etc., of tivo dollars' value — trees 

elsewhere of twenty-tive dollars' value 377 

337. Trees of the value of twenty-five cents 378 

33H. Timber found adrift 380 

3H9. Fences, stiles and gates 380 

340. Failing to satisfy justice that possession of troe, etc., is lawful, 380 

341. Roots, plants, etc., growing in gardens, etc 381 



lil 



' i 



lit-,'. 



XXVI TABLE OF CONTENTS. 

Seo. PaRe. 

342. Roots, plants, etc., growing elsewhere than in gardens, etc 382 

343. Ores of metals 382 

844. Stealing from the person 383 

345. Stealing in dwelling-houses 384 

346. Stealing by picklocks, etc 389 

347. Stealing in manufactories, etc 389 

348. Fraudulently disposing of goods intrusted for manufacture. . . . 390 

349. Stealing from ships, wharfs, etc 390 

350. Stealing wreck 392 

351. Stealing on railways 392 

352. Stealing things deposited in Indian graves 393 

353. Destroying, etc., documents 393 

354. Concealing 396 

355. Bringing stolen property into Canada 396 

356. Stealing things not otherwise provided for 397 

357. Additional punishment when value of property exseeds two 

hundred dollars 397 

PART XXVII. 

Obtaining Pbopertt by False Pretenses and other Criminal 
Frauds and Dealings with Propfrty. 

858. Definition of false pretense 397 

359. Punishment of false pretense 398 

360. Obtaining e.\ocution of valuable security by false pretense 414 

361. Falsely pretending to enclose money, etc., in a letter 417 

362. Obtaining passage by false tickets 417 

363. Criminal breach of trust 417 

PART XXVIII. 

Fracd. 

364. Falsa accounting by official 418 

365. False statement by official 41!) 

366. False accounting by clerk 41'> 

367. False statement by public officer 421 

368. AssLj^ning property with intent to defraud creditors 421 

3(59, Destroying or falsifying books with intent to defraud creditors. 421 

370. Concealing deeds or encumbrances or falsifying pedigrees 421 

371. Frauds in respect to the registration of titles to land 422 

372. Fraudulent sales of property 422 

373. Fraudulent hypothecation of real property 422 

374. Fraudulent seizures of land 422 

375. Unlawful dealings with gold and silver 423 

376. Warehousemen, <&c., giving false receipts— knowingly using the 

same 423 



Seo. 

377. Owne 

378. Makii 



379. Innoc( 

380. Sellmj 

381. Other 

382. Offenc, 

383. Definit 

384. Marks 

385. Unlawl 

386. Taking 

387. Unlawf 

388. Not sat 

389. Searchi 

390. Receivij 

391. Receivi] 

392. Receivii 

393. Not sat: 

la^ 

394. Conspin 

395. Cheating 

396. Pretend: 



397. Robbery 

398. Punishn] 

399. Punishm 

400. Assault \ 

401. Stopping 

402. Compelii 

403. Sending 

404. Demandi 

405. Extortio! 

406. E.xtortioii 



407. Definitioi: 

408. Breaking 

409. Breaking 

410. Burglary 



TABLE OF CONTENTS. 



xxvu 



Sec. Page. 

377. Owners of merchandise disposing thereof contrary to agree- 

ments with consignees who have made advances thereon. . 424 

378. Making false statements in receipts for property that can be 

used under " The Bank Act " — fraudulently dealing with 
property to which such receipts refer 424 

379. Innocent partners 424 

380. Selling vessel or wreck not having title thereto 425 

381. Other offences respecting wrecks 42S 

382. Offences respecting old marine stores 425 

383. Definitions 425 

384. Marks to be used on public stores 426 

385. Unlawfully applying marks to public stores 426 

386. Taking marks from public stores 427 

387. Unlawful possession, sale, <fec., of public stores 427 

388. Not satisfying justices that possession of public stores is lawful 427 

389. Searching for stores near Her Majesty's vessels 428 

390. Eeceiving regimental necessaries, &c., from soldiers or deserters 428 

301. Receiving. &c., necessaries from miiriners or deserters 428 

3y2. Receiving, &G., a seaman's property 429 

393. Not satisfying justice that possession of seaman's property is 

lawful 429 

394. Conspiracy to defraud 429 

305. Cheating at play 430 

306. Pretending to practice witchcraft , 433 

PART XXIX. 

ROBBEKY AND ExTORTIOK. 

307. Robbery defined 444 

398. Punishment of aggravated robbery 444 

309. Punishment of robbery ^ 446 

400. Assault with intent to rob 447 

401. Stopping the mail 447 

402. Compelling execution of documents by Torce 448 

403. Sending letter deinaiuling property with menaces 449 

404. Demanding with intent to steal 450 

405. Extortion by certain threats 451 

406. Extortion by other threats 454 

PART XXX. 

Bci;OL.\UY AND HOUHEBUEAKINO. 

407. Definition of dwelling-house, etc 469 

408. Breaking place of worship and committing offence 470 

409. Breaking place of worship with intent to commit offence 471 

410. Burglarv defined 471 



I 



XXVlll 



TABLE OF CONTEXTS. 



Sec. Page. 

411. Housebreaking and committing an indictable offence 475 

412. Housebreaking with intent to commit an indictable offence. . . . 478 

413. Breaking abop and committing an indictable offence 480 

414. Breaking shop with intent to commit an indictable offence .... 483 

415. Being found in dwelling-house by night 483 

416. Being found armed with intent to break a dwelling-house .... 484 

417. Being disguised or in possession of housebreaking instruments. 485 

418. Punishment after previous conviction 488 

PAPT XXXI. 

FOUGERY. 

419. Document defined 509 

420. " Bank note," and " exchequer bill " defined 609 

421. False document defined 510 

422. Forgery defined 510 

423. Punishment of forgery 511 

421. Uttering forged documents 521 

425. Counterfeiting seals 521 

42(5. Counterfeiting seals of courts, registry offices, etc 522 

427. Unlawfully printing proclamation, etc 522 

428. Sending telegrams in false name 522 

429. Sending false telegrams 522 

430. Possessing forged bank notes 523 

431. Drawing document without authority 523 

432. Using probate obtained by forgery or perjury 524 

PART XXXII. 

PliEPAKATIOX FOR FoROERY AND OfFENCES RESEMBLING FOROERY. 

433. Interpretation of terms 625 

434. Instruments of forgery 525 

435. Counterfeiting stamps 526 

436. Falsifying registers 630 

437. Falsifying extracts from registers 530 

438. Uttering false certificates 531 

439. Forging certificates 531 

440. Making false entries in books relating to public funds 531 

441. Clerks issuing false dividend warrants 532 

442. Printing circulars, etc., in likeness of notes 533 

PART XXXIII. 

Forgery of Trade Marks— Fraudulent Marking of Merchandise. 

443. Definitions 533 

444. Words or marks on watch cases 535 



Sec. 

445. Defii 

446. Appl 

447. Forg( 

448. Sellii 

449. Sellii 

450. Punii 

451. False 

452. Uula\ 

453. Defen 

( 

454. Defeni 

455. Excep 



456. Person 

457. Person 

458. Person 

459. Ackno\ 



460. Interpi 

461. When 

462. Counte 

463. Dealing 

464. Manufa 

cc 

465. Exporti 

466. Making 

467. Bringin 

468. Clipijinj 

469. Defacin 

470. Possessi 

471. Possessi 

472. Offences 

473. Offencet 

474. Utterin< 

475. Uttering 

476. Utterini 



TABLE OF CONTENTS. 



XXIX 



Sec. Page. 

445. Definition of forgery of a traJe mark 535 

446. Applying trade marks to goods 535 

447. Forgery of trade marks, etc 535 

448. Selling goods falsely marked — defence 536 

449. Selling bottles marked with trade mark without consent of 

owner 536 

450. Punishment of offences defined in this part 536 

451. Falsely representing that goods are manufactured for Her 

Majesty, etc 537 

452. Unlawful importation of goods liable to forfeiture under this 

part 537 

453. Defence where person charged innocently in the ordinary course 

of business makes instruments for forging trade marks . . 537 

454. Defence where offender is a servant 537 

455. Exception respecting trade description lawfully applied to goods 

on 22nd May, 1888, etc 538 

PART XXXIV. 

Person Alios. 

456. Personation 538 

457. Personation at examinations 538 

458. Personation of certain persons 539 

459. Acknowledging instrument in false name 540 

PART XXXV. 

Offences kelatisq to the Coin. 

460. Interpretation of terms 541 

461. When offence completed 541 

462. Counterfeiting coins, etc 542 

463. Dealing in and importing counterfeit coin 544 

464. Manufacture of copper coin and importation of uucurrent 

copper coin 545 

465. Exportation of counterfeit coin 545 

466. Making instruments for coining 545 

467. Bringing instruments for coining from mints into Canada .... 549 

468. Clipping current gold or silver coin : 549 

469. Defacing current coins 550 

470. Possessing clippings of current coin 550 

471. Possessing counterfeit coins 551 

472. Offences respecting copper coin 551 

473. Offences respecting foreign coins 652 

474. Uttering counterfeit gold or silver coins 552 

475. Uttering light coins, medals, counterfeit copper coins, etc 654 

476. Uttering defaced coin 555 






XXX TABLE OF CONTENTS. 

Sec. Page. 

477. Uttering uncurrent copper coins 555 

478. Puniahment after previous conviction 655 

PART XXXVI. 

Advertisino Counterfeit Money. 

479. Definition 656 

480. Advertising counterfeit money, and other offemes connected 

therewith 656 

PART XXXVII. 

Mischief. 

481. Preliminary 557 

482. Arson : 558 

483. Attempt to commit arson 6G3 

484. Setting fire to crops 564 

485. Attempt to set fire to crops 564 

486. Recklessly setting fire to forest, etc 565 

487. Threats to burn, etc 565 

488. Attempt to damage by gunpowrler 565 

489. Mischief on railways 567 

490. Obstructing railways 567 

491. Injuries to packages in the custody of railways 667 

492. Injuries to electric telegraphs, etc 569 

493. Wrecking 570 

494. Attempting to wreck 570 

495. Interfering with marine signals 570 

496. Preventing the saving of wrecked vessels or wreck 571 

497. Injuries to rafts of timber and works used for the transmission 

thereof 571 

498. Mischief to mines 572 

499. Mischief 57S 

500. Attempting to injure or poison cattle 579 

501. Injuries to other animals 579 

602. Threats to injure cattle 680 

503. Injuries to poll-books, etc 580 

604. Injuries to buildings by tenants 581 

605. Injuries to land marks indicating municipal divisions 582 

506. Injuries to other land marks 582 

507. Injuries to fences, etc 582 

507a. " " harbours 583 

608. Injuries to trees, etc., wheresoever growing, 583 

609. Injuries to vegetable productions growing in gardens, etc 584 

610. Injuries to cultivated roots and plants growing elsewhere 684 

611. Injuries not otherwise provided for 585 



Sec. 

612. Cruelty 

513. Keeping 

614. The con 

615. Search 

ofl 



Offenck 

516. Conspin 

517. What ac 

518. Prosocut 

519. Interprei 

520. Combina 

521. Criminal 

522. Posting i 

con 

623. Intimida: 

624. Intimidai 

trac 
525. Intimidat 

— U] 

626. Iijtimidnt 
land 



527. Conspirinj 

528. Attemptin 

529. Attemptin 

530. Attemptin, 

531. Accessoriei 

532. Accessoriei 



583. Power to m 
534. Civil remed 



TABLE OF CONTENTS. 



XXXI 



PART XXXVIII. 

Cruelty to Animalb. 

Sec. Page. 
612. Cruelty to animals 587 

513. Keeping cock-pit 687 

514. The conveyance of cattle 587 

615. Search of premises — penalty for refusing admission to peace 

officer 588 

PART XXXIX. 

GrFENCKS COSNECTED WITH TuiDE AND BREACHES OF CONTRACT. 

616. Conspiracies in restraint of trade 589 

517. What acts done in restraint of trade are not unlawful 589 

518. Prosecution for conspiracy 589 

619. Interpretation 689 

620. Combinations in restraint of trade 589 

521. Criminal broaches of contract 690 

522. Posting up copies of provisions respecting criminal breaches of 

contract — defacing same 691 

628. Intimidation 591 

524. Intimidation of any person to prevent him from working at any 

trade 593 

626. Intimidation of any person to prevent him dealing in wheat, etc. 

— unlawfully preventing seamen from working 595 

626. Intimidation of any person to prevent him bidding for public 

lands 595 

PART XL. 

Attempts— CoN8PiR.AciF.s — Accessories. 

627. Conspiring to mmit an indictable offence 516 

528. Attempting to commit certain indictable offences 598 

529. Attempting to commit other indictable offences o98 

530. Attempting to commit statutory offences .'598 

631. Accessories after the fact to certain indictable offences 000 

682. Accessories after the fact to other indictable offences 600 



\ 



TITLE VII. 

PROCEDURE. 

PART XLI. 

General Provisions. 



638. Power to make rules o02 

684. Civil remedy not suspended though act is a criminal offence... 602 



XXXil TABLE OF CONTENTS. 

Sec. Page. 
535, Abolition of distinction between felony and misdemeanour. . . . 603 
53(5. Construction of .\ct8 603 

537. Construction of reference to certain Acts 603 

PART XLII. 

JCBISDICTION. 

538. Superior Court GOi 

539. Otlier courts 604 

540. Jurisdiction in certain cases 604 

541. Exercising powers of two justices , 605 

TART XLIII. 

Procedure i\ Particular Cases. 

542. Offences within the jurisdiction of the Admiralty of England.. 606 

543. Disclqsing official secrets 612 

544. Judicial corruption 612 

545. Making explosive substances G12 

546. Sending unseaworthy ships to sea 612 

547. Trustee fraudulently disposing of money 612 

548. Fraudulent acts of vendor or mortgagor 612 

540. Uttering defaced coin 612 

550. Trial of offenders under sixteen 613 

551. Time within which proceedings shall be commenced in certain 

cases «13 

552. Arrest without warrant t IC 

PART XLIV. 

Compelling Appearance of Accused before Justice. 

553. Magisterial jurisdiction 627 

554. When justice may compel appearance 629 

555. Offences committed in certain parts of Ontario 629 

550. Offences committed in the district of Gaspe 630 

557. Offences committed out of jurisdiction 630 

558. Information 632 

559. Hearing on information 632 

560. Warrant in case of offence committed on the seas, &g 632 

5iil. Arrest of suspected deserter 633 

562. Contents of summons — service of summons 634 

5('.3. Warrant for apprehension in first instance 635 

564. E.\ecution of warrant 636 

565. Proceeding when offender is not within the jurisdiction of the 

justice issuing the warrant 637 

50C. Disposal of person arrested on endorsed warrant 638 



f( 
fc 



Sec. 
667. Disposal 
568. Coroner' 
669. Search m 
570. Search f( 

671. Search w 

672. Search fc 

673. Search fc 

674. Search fo 

675. Search in 
576. Search fo 



577. Inquiry bj 

578. Irregularil 

579. Adjournm 

580. Procuring 

581. Service of 

682. Warrant 

683. Warrant 

584. Procuring i 

585. Witness rel 

586. Discretiona 

587. Bail on ren 

688. Hearing mt 

689. Breach of r 
590. Evidence fo 
691. Evidence to 
59'^. Confession < 

693. Evidence foj 

694. Discharge ol 
595. Person pref 

proseci 

696. Committal o 

697. Copy of depo 
598. Recognizanc* 
699. Witness refu 

600. Transmissioi 

601. Rule as to ba 

602. Bail after cor 

603. Bail by super 

604. Application f( 

605. Warrant of d( 

606. Warrant for i 

607. Delivery of ac 

Crim. Law— c 



• A 



TABLE OF CONTENTS. 



XXXIU 



Sec. 
567. 
608. 
669. 
670. 
571. 
572. 
573. 
574. 
575. 
576. 



577. 
578. 
679. 
580. 
581. 
582. 
683. 
584. 
585. 
586. 
687. 
588. 
589. 
590. 
591. 
59-^. 
693. 
594. 
595. 

696. 
597. 
598, 
699. 
600, 
601, 
602, 
603, 
604 
605 
606, 
607, 



Page. 

Disposal of person apprehended on warrant 638 

Coroner's inquisition 688 

Search warrant 638 

Search for public stores 641 

Search warrant for gold, silver, &c 642 

Search for timber, &c., unlawfully detained 642 

Search for liquors near Her Majesty's vessels 642 

Search for women in house of ill-farae 642 

Search i n gaming-house 643 

Search for vagrant 644 

PART XLV. 

Procedure on Appearance of Accused. 

Inquiry by justice 644 

Irregularity in procuring appearance 644 

Adjournment in case of variance 644 

Procuring attendance of witnesses 645 

Service of summons for witnesses 646 

Warrant for witness after summons 646 

Warrant tor witness in first instance 647 

Procuring attendance of witnesses beyond jurisdiction of justice 648 

Witness refusing to be examined 660 

Discretionary powers of the justice 651 

Bail on remand 653 

Hearing may proceed during time of remand 654 

Breach of recognizance on remand 654 

Evidence for the prosecution 655 

Evidence to be read to the accused 656 

Confession or admission of accused 657 

Evidence for the defence 657 

Discharge of the accused : 658 

Person preferring charge may have himself bound over to 

prosecute 658 

Committal of accused for trial 659 

Copy of depositions 660 

Recognizances to prosecute or give evidence 660 

Witness refusing to be bound over 662 

Transmission of documents 664 

Rule as to bail 665 

Bail after committal 666 

Bail by superior court 667 

Application for bail after committal 667 

Warrant of deliverance 668 

Warrant for the arrest of a person about to abscond 668 

Delivery of accused to prison 668 

C'RiM. Law— c 




XXXIV 



TABLE OF CONTENTS. 



PART XLVT. 

Indici'ments. 
See. Page. 

COS. Indictments need not be on parchment 670 

009. Statement of venue ()71 

610. Heading of indictment 673 

611. Form and contents of counts 673 

612. Offences may be charged in the alternative 678 

613. Certain objections not to vitiate counts 678 

614. Indictment for high treason or treasonable offence 679 

615. Indictments for libel 679 

616. Indictments for perjury and certain other offences 680 

617. Particulars 680 

618. Indictment for pretending to send money, etc., in letter 681 

619. Indictments in certain cases 681 

620. Property of body corporate 684 

621. Indictment for stealing ores or minerals OSo 

622. Indictment for offences in respect to postal cards, etc G85 

623. Indictments against public servants ()85 

624. Indictment for offences respecting letter bags, etc 686 

625. Indictment for stealing by tenant or lodger 686 

626. Joinder of counts and proceedings thereon 686 

627. Accessories after the fact, and receivers 697 

628. Indictment charging previous conviction 697 

629. Objections to an indictment 701 

630. Time to plead to indictment 710 

631. Special pleas 714 

632. Depositions and judge's notes on former trial 715 

633. Second accusation , 715 

634. P'ea of justification in case of libel 726 

PART XL VII. 

Corporations. 

635. Corporations may appear by attorney 727 

636. Certiorari, etc., not required 727 

637. Notice to be served on corporation 727 

638. Proceedings on default 727 

639. Trial may proceed in absence of defendant 727 

PART XLVin. 

Prefkrring Indictment. 

640. Jurisdiction of courts 728 

641. Sending bill before grand jury 7_>1) 

642. Coroner's inquisition 73-j 



Sec. 

fi43. Oath in 

644. Oath ma 

645. Names o 

646. Names o: 

647. Fees for i 

648. Bench wi 



649. Removal ( 

650. Indictmen 

651. Change of 



652. Bringing p 

653. Right of ac 

654. Copy of ind 

655. Copy of dej 

656. Pleas in abj 

657. Plea-refuB 

658. Special pro> 



659. Right to ful 

660. Presence of 

661. Prosecutor's 

662. Qualificatioi 

663. Snvydemedi 

664. Mixed juries 

665. Mixed juries 

666. Challenging 

667. Calling the r 

668. Challenges a 
169. Right to cam 

670. Peremptory c 

671. Accused pers 
«72. Ordering a ta 
773. Jurors shall : 

674. Jurors may h 

675. Saving powe 

676. Proceedings 



TABLE OF CONTENTS. 



XXXV 



Sec. Page. 

f)43. Oath in open court not required 733 

(j44. Oath may bo administered by foreman 733 

()45. Names of witnesses to be endorsed on bill of indictment 733 

646. Names of witnesses to be submitted to grand jury 738 

647. Fees for swearing witnesses 733 

648. Bench warrant and certificate 736 

PART XLIX. 

Removal or Prisoners — Ghamoe of Venue. 

649. Removal of prisoners 740 

650. Indictment after removal 740 

651. Change of venue 740 

PART L. 

Arraignment. 

652. Bringing prisoner up for arraignment 751 

653. Right of accused to inspect deposition and hear indictment. . . . 751 

654. Copy of indictment 751 

655. Copy of deposition 751 

656. Pleas in abatement abolished 752 

657. Plea— refusal to plead 752 

658. Special provisions in the case of treason 755 

PART LI. 

Trial. 

659. Right to full defence 756 

660. Presence of the accused at trial 756 

661. Prosecutor's right to sum up 757 

662. Qualification of juror 771 

G63. 3nry de medietate lingiuc aholiahed 771 

664. Mixed juries in the province of Quebec 772 

665. Mixed juries in Manitoba 774 

066. Challenging the array 774 

067. Calling the panel 776 

008. Challenges and directions to stand by 777 

009. Right to cause jurors to stand aside in case of libel 786 

070. Peremptory challenges in case of mixed jury Too 

071. Accused persons joining and severing in their challenges 786 

072. Ordering a tales 786 

773. Jurors shall not be allowed to separate 787 

074. Jurors may have fire and refreshments >. 787 

075. Saving power of court 787 

676. Proceedings when previous offence charged 791 



f 



i 



XXXVl TABLE OF CONTENTS. 

Sec. Page. 

677. Attendance of witnesses 791 

678. Compelling attendance of witnesses 792 

679. Witnesses in Canada but beyond jurisdiction of court 792 

680. Procuring attendance of prisoner as witness 792 

681. Evidence of person dangerously ill maybe taken under com 

mission 794 

682. Presence of prisoner when such evidence is taken 794 

683. Evidence may be taken out of Canada under commission .... 794 

684. When evidence of one witness must be corroborated 795 

685. Evidence not under oath of child in certain cases 795 

686. Deposition of sick witness may be read in evidence 796 

687. Depositions on preliminary inquiry may be read in evidence . . 796 

688. Depositions may be used on trial for other offences 800 

689. Evidence of statement by accused 800 

690. Admission may be taken on trial 800 

691. Certificate of trial at which perjury was committed 800 

692. Evidence of coin being false or counterfeit 801 

693. Evidence on proceedings for advertising counterfeit money. . . . 801 

694. Proof of previous conviction 801 

695. Proof of previous conviction of witness 802 

696. Proof of attested instrument 805 

697. Evidence at trial for child murder 805 

698. Comparison of disputed writing with genuine 805 

699. Party discrediting his own witness 806 

700. Evidence of former written statements by witness 807 

701. Proof of contradictory statements by witness 808 

702. Evidence of place being a common gaming-house 809 

703. Other evidence that place is a common gaming-house 809 

704. Evidence in case of gaming in stocks, &c 809 

705. Evidence in certain cases of libel 810 

706. Evidence in case of polygamy, &o 810 

707. Evidence of stealing ores or minerals 810 

708. Evidence of stealing timber 810 

709. Evidence in cases relating to public stores 810 

710. Evidence in case of fraudulent marks on merchandise 811 

711. Full offence charged--attempt proved 811 

712. Attempt charged— full offence proved 817 

713. Offence charged — part only proved 818 

714. On indictment for murder conviction may be of concealment of 

birth 826 

715. Trial of joint receivers 827 

716. Proceedings against receiverw 627 

717. The same after previous conviction 828 

718. Trial for coinage offences 828 

719. Verdict in case of libel 828 

720. Impounding documents 828 



Sec. 

721. Destro' 

722. View.." 

723. Variant 

724. Amend 

725. Form o 

726. Form o 

727. Jury re 

728. Jury ue 

729. Proceed 

730. Woman 

731. Jury de 

732. Stay of 

733. Motion i 

734. Judgmei 

735. Verdict) 

736. Insanity 

737. Insanity 

738. Custody 

739. Insanity 

740. Custody ( 

741. Insanity 



742. Appeal in 

743. Reserving 

744. Appeal wl 

745. Evidence 

746. Powers of 

747. Applicatic 

748. New trial 

749. Intermedi; 

750. Appeal to 
851. Appeal to 



752. Further d£ 

753. Question rt 
764. Practice in 
766. Comraissio 

766. Court of ge 

767. Time for pi 
758. Rule to pie 
769. Delay in pr 



TABLE OF CONTENTS. 



XXXVll 



Sec. Page. 

721. Destroying counterfeit coin — ., 829 

722. View 829 

723. Variance and amendment 829 

724. Amendment to be endorsed on the record 8.S0 

725. Form of formal record in such case 830 

726. Form of record of conviction or acquittal 845 

727. Jury retiring to consider verdict 849 

728. Jury unable to agree 849 

729. Proceedings on Sunday 850 

730. Woman sentenced to death while pref»nant .... 850 

781. Jury de ventre inspiciendo abolished 850 

732. Stay of proceedings 851 

733. Motion in arrest of judgment on verdict of guilty 852 

734. Judgment not to be arrested for formal defects 854 

735. Verdict not to be impeached for certain omissions as to jurors. . 860 

736. Insanity of accused at time of offence 860 

7S7. Insanity of accused on arraignment or trial 861 

738. Custody of persons formerly acquitted for insanity 861 

739. Insanity of person to be discharged for want of prosecution .... 861 

740. Custody of insane person 861 

741. Insanity of person imprisoned 861 

PART LII. 

Appeal. 

742. Appeal in criminal cases 864 

743. Reserving questions of law 864 

744. Appeal when no question is reserved S65 

745. Evidence for court of appeal 865 

746. Powers of court of appeal 865 

747. Application for a new trial 872 

748. New trial by order of Minister of Justice 873 

749. Intermediate effects of appeal 878 

750. Appeal to Supreme Court of Canada 873 

851. Appeal to Privy Council aboliahed 874 

PART LIII. 

SrEciAii Protuioms. 

752. Further detention of person accused >................ 874 

753. Question raised at trial may be reserved for decision 874 

754. Practice in high court of justice for Ontario 875 

755. Commission of court of assize, etc. 875 

756. Court of general sessions 876 

757. Time for pleading to indictment in Ontario 87f 

758. Rule to plead 876 

769. Delay in prosecution 876 



i 



XXXviii TABLE OF CONTENTS. 

Sec. P*ge- 

760. Calendar of criminal cases in Nova Scotia 876 

761. Criminal sentence in Nova Scotia 876 

PART LIV. 

Speedy Trials of Indictable Offences. 

762. Application 877 

763. Definitions 877 

764. Judge to be a court of record 877 

765. Offences triable under this part 877 

766. Duty of sheriff after committal of accused 878 

767. Arraignment of accused before judge 878 

768. Persons jointly accused 880 

769. Election after refusal to be tried by judge 880 

770. Continuance of proceedings before another judge 880 

771. Election after committal under parts Iv. or Ivi 880 

772. Trial of accused 880 

773. Trial of offences other than those for which accused is com- 

mitted 880 

774. Powers of judge 881 

775. Admission to bail 881 

776. Bail in case of election of trial by jury 881 

777. Adjournment 881 

778. Powers of amendment 881 

779. Recognizances to prosecute or give evidence to apply to pro- 

ceedings under this part 881 

780. Witnesses to attend throughout trial 881 

781. Compelling attendance of witness 881 

PART LV. 
Sdmmary Trial of Indictable Offknces. 

782. Definitions 884 

783. Offences to be dealt with under this part 884 

784. When magistrate shall have absolute jurisdiction 885 

785. Summary trial in certain other cases 886 

786. Proceedings on arraignment of accused 886 

787. Punishment for certain offences under this part 886 

788. Punishment for certain other offences 887 

789. Proceedings for offences in respect to property worth over ten 

dollars 887 

790. Punishment on plea of guilty in such case 887 

791. Magistrate may decide not to proceed summarily 887 

792. Election of trial by jury to be stated on warrant of committal. 887 

793. Full defence allowed 888 

794. Proceedings to be in open court 888 



Costs and P 



TABLE OF CONTENTS. 



XXXI X 



Sec. Page. 

795. Procuring attendance of witnesses 838 

796 Service of summons 888 

797. Dismissal of charge 888 

798. Effect of conviction 888 

799. Certificate of dismissal a bar to further proceedings 888 

800. Proceedings not to be void for defect in form 88S 

801. Result of hearing to be filed in court of sessions 889 

802. Evidence of conviction or dismissal 889 

803. Kestitution of property 889 

804. Remand for further investigation 839 

805. Non-appearance of accused under recognizance 889 

805. Application of fines , 889 

807. Forms to be used 890 

808. Certain provisions not applicable to this part 892 

PART LVI. 

Trial of Juvenile Offenders for Indictable Offences. 

809. Definitions 892 

810. Punishment for stealing 892 

811. Procuring appearance of accused 898 

812. Remand of accused 89.S 

813. Accused to elect how he shall be tried 893 

814. When accused shall not be tried summarily 893 

815. .Summons to witness 894 

810. Binding over witness 894 

817. Warrant against witness 894 

818. Service of summons 894 

81U. Discharge of accused 894 

820. Form of conviction 895 

821. Further proceedings barred 89(5 

822. Conviction and recognizance to be filed 890 

82S. Quarterly returns 890 

824. Restitution of property 896 

82'>. Proceedings when penalty imposed on accused is not paid 89(> 

82il. Costs 897 

827. Application of lines 897 

82s. Costs to be certified by justices 897 

829. Application of this part 898 

830. No imprisonment in reformatory under this part 898 

831. Other proceedings against juvenile offenders not affected 898 

PART LVII. 

C'osrs AND PeCCNI.ARV COMPENSVI'ION — RESTITUTION OF PROPERTY. 

832. Coats 898 

833. Costs in case of libel 899 



V 



xl TABLE OF CONTENTS. 

Sec. I'aee. 

834. Costs on conviction for assault 899 

835. Taxation of costs 900 

836. Compensation for loss of property 900 

837. Compensation to bond fide purchaser of stolen property 901 

838. Restitution of stolen property 901 

PART LVIII. 

ScMMABY Convictions. 

839. Interpretation 906 

840. Application 906 

841. Time within which proceedings shall be commenced 906 

842. Jurisdiction 907 

843. Hearing before justices 907 

844. Backing warrants 90S 

845. Informations and complaints 908 

846. Certain objections not to vitiate proceedings 908 

847. Variance 908 

848. Execution of warrant 909 

849. Hearing to be in open court 909 

850. Counsel for parties ; 909 

851. Witnesses to be on oath 909 

852. Evidence 909 

853. Non-appearance of accused 909 

854. Non-appearance of prosecutor 91Q 

855. Proceedings when both parties appear 910 

853. Arraignment of accused 910 

857. Adjournment 910 

858. Adjudication by justice 911 

859. Form of conviction 911 

860. Disposal of penalties on co»-viction.of joint offenders 917 

861. First conviction in certain cases <(17 

862. Certificate of dismissal <H 8 

863. Disobedience to order of justice 919 

864. Assaults 919 

865. Dismissal of complaint for assault 919 

866. Release from further proceedings 920 

867. Costs on conviction or order 920 

868. Costs on dismissal 920 

869. Recovery of costs when penalty is adjudged 920 

870. Recovery of costs in other cases 920 

871. Fees 920 

872. Provisions respecting convictions 921 

873. Order as to collection of costs 929 

874. Endorsement of warrant of distress 931 

875. Distress not to issue in certain cases 932 



Sec. 

876. Remand c 

877. Cumulatii 

878. Recogniza 

879. Appeal... 

880. Condition 

881. Proceedin 

882. Appeal on 

883. Judgment 

884. Costs whe 

885. Proceedinj 

886. Conviction 

887. Certiorari 1 

888. Conviction 

889. Conviction 

890. Irregularit 

891. Protection 

892. Condition 

893. Imperial A 

894. Judicial nc 

895. Refusal to 

896. Conviction 

897. Order as t 

898. Recovery 

899. Abandonmi 

900. Statement 

901. Tender an< 

902. Returns ret 

903. Publication 

904. Prosecution 

905. Remedies s 

906. Defective t 

907. Certain def 

908. Preserving 

909. Resistance 



910. Render of a 

911. Bail after r< 

912. Discharge o 

913. Render in C( 
Sureties not 
Right of sur 
Entry of tm 
Officer to pr 

default 



TABLE OF CONTENTS. 



xli 



Sec. Pap,e. 

876. Remand of defendant when distress ia ordered 932 

877. Cumulative punishments 932 

878. Becognizanoes 932 

879. Appeal 933 

880. Conditions of appeal 934 

881. Proceedings on appeal 937 

882. Appeal on matters of form 937 

883. Judgment to be upon the merits 937 

884. Costs when appeal not prosecuted 938 

885. Proceedings when appeal fails 938 

886. Conviction not to be quashed for defects of form 938 

887. Certiorari not to lie when appeal is taken 938 

888. Conviction to be transmitted to appeal court 938 

889. Conviction not to be held invalid for irregularity 938 

890. Irregularities within the preceding section 939 

891. Protection of justice whose conviction ia quashed 939 

892. Condition of hearing motion to quash 939 

893. Imperial Act superseded 940 

894. Judicial notice of proclamation 940 

895. Refusal to quash 940 

896. Conviction not to be set aside in certain cases 940 

897. Order as to costs 940 

898. Recovery of costs 940 

899. Abandonment of appeal 944 

900. Statement of case by justices for review 944 

901. Tender and payment 946 

902. Returns respecting convictions and moneys received 946 

903. Publication, &c. , of returns 947 

904. Prosecutions for penalties under the preceding section 948 

905. Remedies saved 948 

906. Defective returns 948 

907. Certain defects not to vitiate proceedinga 948 

908. Preaerving order in court 949 

909. Resistance to execution of process 949 

PART LIX. 

Recoonizanceb. 

910. Render of accused by surety 950 

911. Bail after render 950 

912. Discharge of recognizance 950 

913. Render in court 9r0 

914. Sureties not discharged by arraignment or conviction 950 

915. Right of surety to render not affected 951 

916. Entry of tines, etc., on record and recovery thereof 951 

917. Officer to prepare lists of persons under recognizance making 

default 953 



Mr 



xlii TABLE OF COXTENTS. 

Sec. Page. 

918. Proceeding on forfeited recognizance not to be taken except on 

order of judge, etc 953 

919. Recognizance need not be estreated in certain cases 953 

920. Rale of lands by sheriff under estreated recognizance 954 

921. Discharge from custody on giving security 954 

922. Discharge of forfeited recognizance 954 

923. Return of writ by sheriff 954 

924. Roll and return to be transmitted to Minister of Finance 955 

925. Appropriation of moneys collected by sheriff 955 

926. Quebec i'55 

PART LX. 
Fines and Forfeitures. 

927. Appropriation of fines, etc 958 

928. Application of fines, etc., by Order in Council 958 

929. Recovery of penalty or forfeiture 958 

930. Limitation of action 958 



Sec. 

946. Certificate 

prise 

947. Omissions 

948. Other proc 

949. Rules and 



950. Offences nc 

951. Imprisonm 

952. Punishmen 

953. Imprisonme 

954. Cumulative 

955. Imprisonmi 

956. Imprisonme 



TITLE VIII. 

PROCEEDINGS AFTER CONVICTION. 
PART LXL 

Punishments Generally. 

931. Punishment after conviction only 959 

932. Degrees in punishment 959 

933. Liability under different provisions 959 

934. Fine imposed shall be in discretion of court 9(10 



957. Sentence of] 



Sdri 

958. Persons cony 

959. Recognizance 

960. Proceedings f 



PART LXIL 

Capital Pcnishme.vt. 

935. Punishment to be the same on conviction by verdict or by con- 
fession 9o0 

9S6. Form of sentence of death IltiO 

937. Sentence of death to be reported to Secretary of State '(til 

938. Prisoner under sentence of death to be confined apart 961 

939. Place of execution , 961 

940. Persons who shail be present at execution 9"il 

941. Persons who may be present at e.xecution 961 

942. Certificate of death 961 

943. When deputies may act 9(12 

944. Inquest to be held ;i63 

945. Place of burial idlS 



961. Consequences 



i»6•-^ Outlawry... 

963. Solitary confir 

964. Deodand . . . 

965. Attainder... 



966. Pardon by the 

967. Commutation c 



TABLE OF CONTENTS. xliii 

Sec. Page. 

946. Certificate to be sent to Secretary of State and exhibited at 

prison 963 

947. Omissions not to invalidate execution 963 

948. Other proceedings in executions not affected 963 

949. Rules and regulations as to execution 963 

PART LXIII. 

Imprisonment. 

950. Offences not capital how puuished 964 

951. Imprisonment in cases not specially provided for 964 

952. Punishment for offence committed after previous conviction 965 

953. Imprisonment may be for shorter time than that prescribed .. . . 966 

954. Cumulative punishments 966 

955. Imprisonment in penitentiary, &c •. 966 

956. Imprisonment in reformatories 967 

PART LXIV. 

Whipping. 

957. Sentence of punishment by whipping 968 

PART LXV. 
Sureties for Keeping the Pkacg, and Fines. 

958. Persons convicted may be fined and bound over to keep the peace 968 

959. Recognizance to keep the peace 969 

960. Proceedings for not finding sureties to keep the peace 972 

PART LXVI. 

Disabilities. 

901. Consequences of conviction of public official 973 

PART LXVII. 

PCNISHMENTS AliOLISHEU. 

96i. Outlawry 974 

963. Solitary confinement — pillory 974 

904. Deodand 974 

065. Attainder 975 

PART LXVIII. 

Pardons. 

yiiO. Pardon by the Crown 97() 

"J07. Commutation of sentence 976 



^1 



I-' 



xliv TABLE OF CONTENTS. 

Sec. I'age. 

968. Undergoing eentence equivalent to a pardon 976 

969. Satisfying jp^gment 977 

970. Royal prerogative ♦ 977 

971. Conditional release of first offenders in certain cases 977 

972. Conditions of release 977 

973. Proceeding on default of recognizance 978 

974. Interpretation 97* 

TITLE rX. 

ACTIONS AGAINST PERSONS ADMINISTERING THE 
CRIMINAL LAW. 

975. Time and place of action 979 

976. Notice of action 979 

977. Defence 979 

978. Tender or payment into court 979 

979. Costs 979 

980. Other remedies saved 979 

TITLE X. 
REPEAL, ETC. 

981. Statutes repealed , 960 

982. Forms in Schedule one, to be valid 980 

983. Application of Act to N. W. T. and Keewatin 981 

Schedule 1.— Forms 988 

Schedule 2.— Statutes repealed 983 

Appendix. — Acts and parts of Acts which are not affected by this 

Act 986 



TA 



Abbott, R. v., 
Abrahams, — . 
Abrahams v. R. 
Ackroj-d, R. v., 
Adams,' — 



Adiinison, — 

Adey, • _ 

Ady, • - 

Airey, _ 

Alison, — 

Allday, — 

Allen, — 



V. Wright 

Allison, In re 

II ^" '•' 
Amerv. R. . 
Amier, — 
Anderson v. R. 

Andrews, R. v., 

V. The Pe( 

Anon 



ApoUon, The 
Appleby V, Franklin 
Archer,. R. v., 



Ardley, — 
Aris, — 

Amiellmi, e.c part,\ 
Armstrong, R. v., 
Arnold, _ 



'■•1 f; 



TABLE OF CASES CITEP. 



•| 



A. 



• 




PAGE. 


Abbott, R. v., 


2 Cox, 430 . . . . 


. 406 


Abrahams, — . 


24 L. C. J. 325 . 


. C94 


Abrahams v. R. 


6S. C. R. 10 


613, 732 


Ackrojtl, R. v., . 


IC. &K. 158 


. 699 


Adaiiis," — , . . 


16 Cox, 544 ; 22 Q. B. D. Cfi 


122, 304 


• 


R. &R. 225 


. 312 


. 


IF. &F. 86 


. 352 


. 


1 Den. 38 . . 398,55 


>4, 719. 820 





Car. & M. 299 .. . 


. 960 


Adamson, — . . . 


2 Moo. 2S6 ... 


408, 409 


Adey, • — . . • 


1 Den. 571 


. 361 


Ady, • - . . 


7C.&P.140 


. 408 


Airey, • — . • 


2 East, 30 ... 


. 400 


Alison, — 


8 C. & P. 418 .. . 


33, 226 


Aliday, — 


8 C. & P. 136 


. 527 


Allen, — 


1 Den. 364 ... 


8 





7 C. & P. 153 .. . 


12, 194 





12 Cox, 193 ... 


. 283 


. .. 


1 B. & S. 850 


. 851 


V. Wright 


9 C. & P. 522 


. 626 


Allison, hi re 


10 Ex. 561 


. 981 


R. v., . 


R. & R. 109 ... 


. 282 




10 Cox, 559 


. 613 


Amer v. R. . 


2 S. C. R. 592 . 


. 874 


Amier, — 


6 C. & P. 344 


. 476 


Anderson v. R. 


2 M. & R. 469 . 


. 519 


^„__ 


11 Cox, 198 


. 609 


Andrews, R. v., . 


Car. &M. 121 .. 


. 477 




12 O. R. 184 .. . 


. 870 


V. The Peoiile 


117 111. 195 


. 733 


Anon — 


1 B. & Ad. 382 . 


. 266 


^^ 


1 Cox, 250 ... 


. 530, 553 


— 


1 Russ. 85 ... 


. 817 


— 


2 Chit. R.^p. 422 


. 529 


ApoUon, The 


9 Wheat. 360 


. 612 


Appleby v. Franklin 


17 Q. B. D. 93 . 


. 602 


Archer,. R. v., 


2 Moo. 283 213, 


447, 820, 823 




Dears. 449 


. 408 


Ardley, — 


12 Cox, 23 ... 


. 411 


Aris, — 


6C.&P.348 


. 561 


Armellini, ex parte. 


14 R. L. 311 . . 


. %7 


Armstrc^ng, R. v., 


13 Cox, 184 


. 609 


Arnold, — 


1 Russ. 9 . . . . 


130 



1 i 



xlvi 



TABLE OF CASES CITED. 



Arnoldi, R. v., 
Arscott, — 

V. Lillej-, 

Ashley v. Dundas 
Ashwell, R. v., 
Aapinall, — 
Asplin, 
Asterley, — 
Astley, — 
Aston, 

Athea, — 
Atkin, — 
Atty.-Gen. v. Ueiiiibieii 
At wood,, R. V. 
Audley (Lord), R. v., 
Austin, — 



and King's Cases 

Avery, R. v., 



Ayes, — 

Aylett, — 
Ayley, — 
Azzopardi, — 



Baby, R. v.. 

Back V. Holmes, 

Badcock, R. v., 

Bail, 

Bailey, — 



Bain, 



Baker, 

Baldwin, 
Ball, 



Balls, 



23 O. R. 201 
•J O. R. oil 

11 O. R. 153 

5 O. S. (Ont.) 749 

16 Cox, 1 ; 1(5 Q. B. D. VM 

13 Cox, 231, o()3 

12 Cox, :m 
7 C. & P. 1!)1 
2 East P. C. 72!) 

2 Russ. 841 

I Moo. 32!) 
18 L. C. J. 213 
!) L. C. J. 117 
20 O. R. 674 

3 St. Tr. 402 

II Q. L. R. -r, 
1 C. & K. G21 
7 C. & P. 7i)() 
Dears. 612 
2 East P. C. 602 
Bell, 1.50 . 

5 C. & P. 596 
R. & R. 166 

6 A. & E. 247 
15 Cox, 328 
2 Moo. 288 



B. 

12 U. C. Q. B. 3 Ui 

16 Cox, 263 

R. & R. 249 

7 O. R. 228 

12 Cox, 56 

12 Cox, 129 

4 Cox, 392 

1 Moo. 23 

Dears. 244 

6 Cox, 29 

R. & R. 341 

Ramsay App. Cas. 191 

L & C. 129 

23 L. C. J. 327 . 

1 C. & K. 254 

1 Leach, 29it 

R. & R. 24] 

Car. & M. 1! t'.) . 

8 C. & P. 74.-. 

R. & R. 132 

12 Cox, 96 



PAGE. 

. 81 
. 141 
141 
. 619 
334 
. 597 
.501, 515, 527, 530 
, 408 
437, 441 
. 505 
. 461 
. 903 
. 956 
. 556 
269, 692 
. 582 
. 615 
. 692 
. 798 
. 394 
. 316 
. 515 
. 185 
. 849 
. 281 
. 611 



. 678 
. 53 
32 
. 518 
. 363 
. 396 
. 430 
. 461 
, 488 
. 844 
4G4, 467 
97, 981 
479, 817 
. 870 
. 219 
. 436 
. 351 
. 401 

. sot) 

. 871 
361, 367 



345, 360, 



Bamfield, R. v., 
Bank Prosecutic 
Banks, R. v., 
Bannen, — 
Barber, R, v., 
Barkatead's Cast- 
Barnard, R. v., 
Barnes, — 



Barnes v. White, 
Barnett, R. v., 
Barratt, — 
Barret, — 
Barrett, — 

Barry, — 

Bartlett, — 
Barwell v. Winter 
Basset, R. v., 
Bassett, — 
Bate, — 

Bates, — 

Bathgate, — 
Batstone, — 
Batty, — 

Bauld, — 
Baumer v. The Sta 
Baxter, R. v., 
Baynes v. Brew.^tci 
Beacall, R. v., , 
Beaney, — 
Beard, 

Beard more, — 
Beatty v. Gillbanks, 
Beckett v. Dutton, 
Beckwith v. Philby, 
Bedere, R. v., 
Bedingfield, R. \ ., 
Beechani, — 
Beere, — 

Beetoii, — 

Bell, - 

Bellencoutre, cxpurh 
Belstead, R. v., 
Belyea, — 
Benfield, — 
Benge, 



H 



TABLE OF CASKS CITED. 



xlvii 







PAGH. 


Bainfield, R. v., . 


1 Moo. 416 . . . . 


. 519 


Bank Prosecutions, 


R. & R. 37S 


. 508 


Banks, R. v., 


12 Cox, 393 


. 225 


Bannen, — 


2 Moo. 309 . . . . 


31, 547 


Barber, R. v., 


1 C. & K. 4i'2 . 


. 38 


Barkatead's Ca.-i'-, . 


Kel. 1(5 ... . 


. 780 


Barnard, R. v., 


7C. &P. 7.S4 


. 402 


Bames, — 


12 Jur. N. S. 549 


. 313 


— 


2 Den. 59 


. 402 


— 


L. R. 1 C. C. R. 45 . 


. 841 


Barnes v. White, . 


1 C. B. 192 . . . . 


. 981 


Barnett, R. v.. 


17 O. R. G49 . . . . 


342, 613 


Barratt, — 


12 Cox, 498 . . . . 


270, 817 


Barret, — 


ISalk. 383 


. 615 


Barrett, — 


L. & C. 263 


129, 135 


— 


15 Cox, 658 ... 


. 295 


Barry, — 


4 F. & F. 3«9 


. 693 


Bartlett, — 


2 M. & Rob. 362 


. 516 


Barsvell v. Winterstokc, 


14 Q. B. 704 ., . 


. 573 


Basset, R, v., 


Greaves' Cons, Acts, 7- 


. 267 


Bassett, — 


10 Ont. P. R. 38(5 


. 142 


Bate, — 


11 Cox, 686 ... 


. 232 


Bates, — 


3 Cox. 201 ... 


. 408 


Bathgate, — 


13 L. C. J. 299 . 


. 708 


Batstone, — 


10 Cox, 20 ... 


. 563 


Batty, — 


2 Moo. 257 ... 


. 366 


Bauld, — 


13 Cox, 282 


. 598 


Tlainuer v. The Stati-, . 


49 Ind. 544 


. 120 


Baxter, R. v.. 


5 T. R. 83 


348, 677 


Baynes v. Brewster, 


2 U. C. Q. B. 375 


21, 6-22 


B°acall, R. v., . 


1 Moo. 15 ... 3 


GO, 361, 684 


Beaney, — 


R. & R. 416 .. . 


. 373 


Beard, 


8 C. & P. 142 . 


. 762 


Beardmore, — 


7 C. & P. 497 


. 714 


Beatty v. Gillbanks, 


15 Cox, 138 . . 


53, 55 


Beckett v. Dutton, 


7M. &W. 157 


. 836 


Beckwith v. Philby, 


6 B. & C. 635 


. 619 


Bedere, R. v., 


21 0. R. 189 


. 274 


Bedingtield, R. v., 


14 Cox, 341 


. 201 


Beechani, 


5 Cox, 181 ... 


. 409 


Beere, — 


2 M. & Rob. 472 


. 7.^9 


lieeton, — 


1 Den. 414 . . 


. 347 


Bell, - 


8 Ir. R. C. L. 542 


. 231 


-- 


12 Cox, 37 . . 


. 732 


Bellencoutre, cxpurtv, . 


17 Cox, 253; (1891) 2 < >. 1'.. l-'2 


. 344 


Belstead, R. v., . , 


R. & R. 411 . . 


. 370 


Belyea, — . . . 


James (N.S.) •-•JO 


. 708, 752 


Bentield, — . , . 


2Burr. 980, 9S1 . . . 2 


65, 687, 694 


Benge, 


4F. &F. 504 


. 195 



\ 



I I 



xlviii 



TABLE OF CASES CITED. 







PAOB. 


Bennett, R. v., 


Bell, 1 ... 


12 




J F. & F. 11(»5 . 


. 253 




R. & R. 28!» 


467, 482 


Bent, — 


10 O. R. r)57 


. .505 




1 Den. 1.57 


. 705, 981 


Berens, — 


4 F. & F. 842 . 


. 7'JO, 761 


Bergen v. The People, 


17 111. 42(5 


. 120 


Beriau, R. v., 


Ramsay's App. Cas. 185 


. 798 


Bernard, — 


Warb. Lead. Cas. 45 . 


73 




1 F. & F. 240 . 


. 225, 701 


Berrinian, — 


6 Co.x, 388 


. 230 


Berry, — 


1 g. B. D. 447 . 


. 130 




Bell. 1(5 


. 317 




13 Co.x, 189 


. 755, 863 


Berthe, — 


16 C. L. J. 2.-il . 


. 562, 564 


Bertrand, — 


10 Co.x, 018 


. 789 


Beat, — 


2 Moo. 124 


. 104 


Betts V. Amiatead, 


16 Cox, 418; 20 Q. B. D. 771 


. 295 


Bice V. Jarvis, 


49 J. P. 264 .. . 


. 904 


Biggs, R. v., 


2 Man. L. R. 18 . 


. 304 


Bignold, — 


4 D. & R. 70 


. 765 


Bingley, — 


K. & R. 446 • . 


32 


— 


5 C. & P. 602 • . 


. 413 


Binns, — 


26 St. Tr. 595 • . 


72 


Bircli, — 


1 Leach, 79 . . . 


. 498 


— 


1 Den. 185 


. 821 


Birchall, — 


4 F. & F. 1087 . . . . 


. 193 


Bird, — 


17 Co.x, 387 ... 


97 


— 


12 Cox, 257 


. 325 


— • 


L' Den. 94 ... 7 


18, 812, 820 


— 


2 Den, 88 . . . . 


. 822 


— 


5 Cox, 11 . . . . 


718, 864 


V. Holbrook, 


4 Bing. 628 . . . . 


. 244 


Birkett, R. v., 


R. & R. 86 


. 193 


Birmingham, R. v.. 


M'arb. Lead. Cas. 33 . . 


. 727 


Bishop, — 


5 Q. B. D. 259 .... 


. 295 


Bissell, — 


1 0. R. 514 .... 


. 149 


Bissonette, — 


Ramsay's App. Cas. 190 


. 152 


— 


2:JL.C. J. 249 . 


. 709 


Bitton, — 


6C. &P. 92 ■. . . . 


75i. 


Bjornsen, — 


10 Cox, 74 .... 


. 610 


Blackburn, — 


11 Cox, 157 


. 345 


— 


6 Cox, 33o •. . . . 


. 697 


Blackhani, — 


2EastP. C. 711• 


. 439 


Blackson, — 


8C. &P. 43 -. . . . 


. 601 


Blackstone, — 


4 Man. L. R. 296 .. . 


508, 532 


Blakemore, — 


2 Den. 410 . . 


. 869 


Bleau, — 


7 R. L. 571 .... 


. 564 


Bloomfield, — 


Car. & M. 537 . 


. 408 



oaler, v. R., . 
Boardman, R. ^ 
BotJen, _ 

Bolland's case, . 
Bond, R. v„ 

V. Conmee,. 

■ V. Evans, . 

Booth, R. v., 
Bootyman, R. v,, 
Borthwick, — 
Borrett, — 

BorroweH, . 

Boucher, 



Boulton, 



Bourdeau, R, v. 
Bourdon, _ 

Bowden, — 



Eowen, 



B(jwennan, — 

Bowers, _ 

Bowman, _ 

Bowray, 

liowyer, _ 

Tlox, _ 

Boyce, __ 

Brackenridge, — 

Bradford, _, 

Bradlaugh, -,- 



Bradshaw, 

lirain, 

Bramley, 

lirannon, 

Brashier v. Jackson 
Brawn, R. v., 
l^ray, __ 



Criu. Law— I 



TABLE OF CASES CITED. 



xlix 



oaler, v. R., . 
Boardman, R. v., 
Boclen, 

Bolland's case, 
Bond, R. v., 

V. Conmee,- 

V, Evans, • 

Booth, R. v., 
Bootyman, R. v,, 
Borthwick, — 
Borrett, — 
Borrowes, — 
Boucher, — 



Boulton, 



Bourdeau, R. v. 

Bourdon, — 

Bowden, — 

Bowen, — 



B(jwennan, 

Bowers, 

Bowman, 

Bowray, 

Bowyer, 

Tlox, 

Boyce, 

Brackenridge, 

Bradford, 



Brad laugh, 



Bradshaw, — 
Brain, — 

Bramley, — 

Urannon, — 

Krashier v. Jackuon 
Urawn, R. v.. 
Bray, — 

Criu. Law — d 





TAOE. 


10 Cox, 488 ; 21 Q. B. D. 284, . 


301, 613, 781 


2 M. & R.ib. 147 


. 500 


1 C. & K. 31)5 . 


. 820 


1 Leach, 83 ... 


. 4fl9 


1 Don. 517 


. 723 


10 A. R. Ont. 398 . 


. 948 


KiCox, 4fil;21Q. B. D. 249 


12 


12 Cox, 231 ... 


. 294 


5 C. & P. 300 . 


361, 680 


1 East P. C. 350 . 


38 


6 C. & P. 124 . 


. 366. 


Shirley Lead. Gas. 140 


. 764 


4 C. & P. 562 


. 224 


10 R. L. 183 .. . 


. 415 


8 C. & P. 141 


. 764 


1 Den. iJ08 


. 400 


12 Cox, 87 ... 


. 597 


n C. & P. 537 


. 68* 


M. L. R. 7 ii. B. 176 . 


. 86» 


2 R. L. 713 ... 


. 708. 


2 Moo. 285 . . 


. 385: 392 


3 Cox, 4S3 


. 408; 


M. L. R. 7 Q, B. 408 


. f)l» 


1 Den. 22 .... 


. 530, 67» 


!« C. & P. 509 


. 714 


13 ii. B. 7JK) . . . 


. 857 


17 Cox, 151; (1«91)1Q R 112 


. 344, 394 


10 Cox, 2.')0 .... 


. 361, 363 


(! C. & P. 101, 337 . 


. 724 


10 .Tur. 211 


. 248 


4C. &P..559 ... 


. 562. 


R. & R. 300 . . . 


, 516 


1 Moo. 29 


. 2.34 


11 Cox, 90 . . 


. 526. 


Bell. 208 ... 


. 247, 569 


•2 C. & D. 41 . . . 


. 541 


15 Cox, 217 . . 7C 


(, .304, 694, 696: 


3 (l B. D. 607 . . 


. 122 


15 Cox, 156 


. 731, 732 


14C*.x, 68 


. 854 


38 U. C. Q. B. 564 


. .582, 771 


C. & P. 349 . . 


. 174, 205 


L. & C. 21 


. 309 


R. & R. 478 


. 320 


14 Cox, 394 ... 


42. 601 


OM. &\V. 549 ... 


. 837, 838 


1 C & K. 144 . . 


. 282, 283 


15 Cox, 197 ■ . . 


. 23& 


3 B. & S. 255 ; Co.x, 215 . 


. 731 



? 



tabu; of cases cited. 









PAGR. 


firen, B. v., . 


L. & C. 846 365 


Brettel, — 


Car. 4 M. 609 . 




. 723 


Brewer, — 


6 C. & P. 363 . 




. 56S 


Brewster, — 


8 U. 0. 0. P. 208 




. 131 


Brice, — 


16 Q. L. R. 147 




. 131, 786. 868 




7 Man. L. R. 627 




. 253, 274 


^ 


. R. * R. 450 




. 464, 468, 469 


•w.— — • 


2 B. & Aid. 606 




. 738 


Bridgman, — 


Car. & M. 271 




. 714 


Brierley, — 


. 14 0.R. 525 




. 280, 281, 611 


Briggs, — 


1 Moo. 318 




. 216, 234 




Dears. & B. 98 




. 283 




. 2 M. & Rob. 199 




. 766 


Bnmilow, — 


2 Moo. 122 




8, 269, 823 


Brisebois, — 


. L-N S. C. R. 421 




. 785, 836 


BrisBon v. Lsfontaine, . 


8 L. C. J. 173 . 




27 


Brookes, R. v.. 


Car. & M. 543 . 




. 836 


Brooks, — 


1 F. 4; F. 502 . 




. 40i, 409 




1 Den. 217 




. 615 


Brown, — 


. 14 Cox, 144 




. 36 


— *-— '~~ • 


16 Cox. 715 ; 24 Q. B. D. 357 . 42. 707, 




814, 867, 8G8 




Car. &M. 314 83 


— , 


16 Cox, 199 


1 


. 219 




11 Cox, 517 




. . .231 




2 East P. C. 731 




. 437 




2 East P. C. 501 




. 438 


— — — • ( 


2 East P. C. 487 




. 465 


— , , 


2 F. & F. 559 . 




. 506 


— , , 


3 F. & F. 821 . 




.. 566 




1 Deu. 291 




. 7.')5 


— , , 


Warb. Lead. Cas. 236 




. 766 


— , , 


10 Q. B. D. 381 




. 822 


V. Foot, . 


17 Cox, 509 , 




. 12 


— V. Gugy, 


14 L. C. R. 213 




. 131 


Brovnilow, R. v., 


14 Cox, 216 




. 344 


Bruoe, — . , 


10 L. C. R. 117 




. 131 


Brummit, — 


L.&C. 9 . 




. 869 


Bnunby, — 


3 C. & K. 315 




. 382 


Bryan, — 


2 Russ. 664 




. 398 


— 


Dears. & B. 265 




. 407, 411 


— 


Warb. I^ead. Cas. 170 




. 407 


Brydges, em parte, 


18L.C. J. 141 . 




. 199, 745 


Buchanan, R. v.. 


8 Q. B. 883 




. 9<k) 


Buckley, — 


13 Cox, 293 




. 799,800 


Bucka»8ter, — , 


aOQ. B.D. 182 




. 812, 390 


Budd ▼. Lucas, . 


17 Cox, 248 . . 




. 684 


Ball, R. v., . . , 


a F. ft F. 201 




. 1»7 


'' • » • 


« C. ft P. 22 




. 203 



Bull, 



R. 



BuUard, — 
Bullock, — 



Bulmer, — 

Buncombe, — 

Bunkall, — 

Bunn, 

Bunting, -_ 

Burch, __ 

Burgess, _ 



Bui^pron, 

Burke, 

Bums, 

Burridge, 
Burroues, 
Burrows, 

Burt, 
Burton, 



Butcher, — 

Butler V. Turley, 
fi»tt, R. v., 
Butteris, — 
Butterwick, R, 
Butterworth, ~ 



V. 



Button, R, V. 
Byrne, _ 



Cadman, R. v., 
Callaghan v. The S 
Callan, R, v., 
Canienon, — 
Caminad* v. Hultoi 



TABLir OF CASES CITED. 



Bull, R. v., . 






. 13 Cox, 608 


— 






12 Cox, 31 


BuUard, — 






12 Cox, 353 


Bullock, — 






11 Cox, 125 


— 






1 Moo. 324 (n) 


— 






Dears. 653 


Buhner, — 






L. & C. 476 


— 






6 L. N. 92 


Buncombe, — 






1 Cox, 183 


Bunkall, — 






9 Cox, 419 : L. & 


Bunn, — 






12 Cox, 316 


Bunting, — 






7 0. R. 524 


Burch, — 






4 F. 4 F. 407 


BurgeBS, — 






16 Q. B. D. 141 








. L. A; C. 258 








L. & C. 293 


Burgon, — 






Dears. & B. 11 


Burke, — 






10 Cox, 619 


Bums, — 






16 Cox, 355 


— 






16 Cox, 195 


Burridge, — 






2 M. ft Rob. 296 


Burrowes, — 






1 Moa 274 


Burrows, — 






11 Cox, 258 


— 






2 M. & Rob. 124 


Burt, — 






8 Cox, 284 . 


Burton, — 






13 Cox, 71 


— 






6 Cox, 293 


— 






1 Moo. 237 


— 






16 Cox, 62 


Butcher, — 






Boll, 6 


— 






2 M. & Rob. 228 


Butler V. Turley, 






. 2C. &P. 585 


Butt, R. v., 






15 Cox, 664 


Butteris, — 






6 C. & P. 147 


Butterwick, R. v.. 




2 M. & Rob. 19G 


Butterworth, — 




12 Cox, 132 


— 




R. & R. 520 


Button, R. v., 




11 Q. B. 929 


— 




8 C. &. P. 660 


Byrne, — 






6 Cox, 475 



C. 371 



li 

PAGE. 

. 413 

. 797 
. 797 
. 676 
672, 819 
. 857 
. 409 
718,871 

U 
. 316 
. 697 

77 
. 693 
. 106 
213,227 
. 345 
. 407 
. 756 

73 
. 766 
. 223 
. 462 
. 404 
. 764 
. 764 

29 
. 3.*^ 
. 3«5 
. 399 

30 
. 762 
. 5 6 
. 420 
. 351 
. 617 
. 345 
. 473 
. 818 
. 823 
. 643 



'%■■ I 







c. 



Cadman, R. v 


1 Moo. 114 


. 214, 216 


Callaghan v. The Society, . 


16 Cox, 101 


. 587 


Callan, R. v., , 


R. & R. 157 


. 466 


Cameron, — . . . 


23 N. S. Rep. 160 


. 414 


Caminada v. Hulton, . 


17 Cox, 307 


. 134 



lii 



TABLE OF CASES CITED. 











PAGE. 


Camfield, R. v., . 


1 Moo. 42 684 


Campbell, — 


11 Cox, 323 






. 169, 189 


— 


1 Moo. 179 






. 309 


— 


2 Leach, 564 






. 386 


— 


11 Q. B. 799 






. 692 


Uamplin, — 


1 Den. 89 






. 270,964 


Canwell, — 


11 Cox, .363 






. 238 


Carbray, — 


14 Q. L. R. 223 . 






. 616 


— 


13 Q. L. R 100 






. 736, 798 


Carden, — 


14Cox, 359;5Q. B. ] 


0.1 




. 303 


Cardo, — 


17 0. R. 11 






. 270 


Carey, — 


14 Cox, 214 






19, 177 


Carlile. — 


3B.&Ad. 161 . 






. 960 


Carney, — 


1 Moo. 351 






. 620 


Carpenter, — 


11 Cox, 600 






. 406 


Carr, — 


R. & R. 377 






. 219 


— 


R. & R. 198 






. 361,366 


— 


26 L. C. J. 61 


f 


r06, 8 


53, 858, 867 


— 


15 Cox, 129 






. 609 


Carrell, — 


1 Leach 237 






. 461, 462 


Carroll, — 


7 C. & P. 145 . 






12 


— 


1 Moo. 89 . 






. 386 


Carter, — 


1 C. & K. 173 






. 477 


— 


15 Cox. 448 






. 828 


Cartwright v. Green, 


2 Leach, 952 






. 331 


Casbolt, R. V. . 


11 Cox, 385 






. 616 


Case, — 


1 Den. 580 






253, 262 


Casey, — 


8 Ir. Rep. C. L. 408 






58 


— 


13 Cox, 614 






303, 742 


Caspar, — 


2 Moo. 101 






. 348 


Caswell, — 


33U. C. Q. B. 303 






. 381 


Catherall, — 


13 Cox, 109 






275, 811 


Cavtley v. Loundes, 


34 W. R. 139 






. 904 


Caudwell, R. v., . 


2 Den. 372 (n) . 






. 872 


Cavendish, — 


2 Cox, 176 






. 742 


Chadwick, — 


6C. &P. 181 






. 409 


— 


2 M. & Rob. 545 






. 491 


Chalking, — 


R. & R. 334 






. 481 


Chalkley, — 


R. &R. 258 






. 675 


Chambers, — 


12 Cox, 109 






. 621 


Chammaillard, R. v., . 


18 L. C. .J. 149 . 






. 772 


Champneys, — 


2 M. & Rob. 26 . 






. 724 


Chandler, R. v. . 


Dears, 453 






. 149 


Channell, — 


2 East P. C. 818 






. 431 


Chapman, — 


12 Cox, i . . . 






186, 622 





1 C. & K. 119 






. 367 


— — — 


8 C. & P. 558 . 






. 714 


— 


1 Den. 432 






. 817 


Chappie, — 


9C. &P. 355 . 






41 



Chappie, R. y 

Charest — 

Charles, _ 

Charlesworth, 

Charlewood, 

Charnock's Cas 

Charter v. Grei 

Chasson, R, y, 

Chatburn, 

Cheeseman, R. 

Cherry, 

Chetwjrnd, 

Child, _ 

Chiser'a Case 
Chisholm, R. v., 

Chisholm v. Doul 
Chouinard, R. v., 

Christopher, — 
Chute, _ 

Clarence, 



Clark, 



Clarke, 

Clarkson, 
Clay, 

Claybum, 

Clayton, 

Clement, 

Clements, 

Clifford, 

CIoss, 

Cluderay, 
Cookcroft, 
CtKld V. Cabe, 

Coggins, R. v., 

Cohen, _ 

Coll., _ 

Coles, _ 

Coley, __ 

CoIIicott, — 

Collins, — 



TABLE OF CASES CITED. 



liii 







PAOE. 


Chappie, R. v., . 


17 Cox, 455 


. 701 


Charest — 


9 L. N. 114 . . 


. 357 


Charles, — 


17 Cox, 499 


32, 64 


Charlesworth, R. v., . 


1 B. & S. 460 ; 2 F. & F. 3S 


K . 721, 7S8 


Charlewood, — 


1 Leach, 409 


. 374 


Charnock's Case, 


SSalk. 80 . 


. 781 


Charter v. Greame, 


13 Q. B. 216 


. 585, 981 


Chasson, R. v. . . . 


3Pugs(N. B.)546 . . 


. 201 


Chatburn, — 


1 Moo. 403 . . 


. 181 


Cheeseman, R. v., 


L & C. 140 


43, 357, 814 


— . — — 


7 C. & P. 454 


. 191 


Cherry, — 


2 East P. C. 556 


. 322 


Chetwjoid, — 


23 N. S. Rep. 332 


. 795 


Child, — 


4 C. & P. 442 


56 


— . • . 


L. R. IC. C. R. 307; 11 C 


!ox, 64 557, 563 


Chiser's Case 


T. Raym. 276 


. 332 


Chisholm, R. v., Jacob's C 


Jase, 7 Man. L. R., 613 


. 275 


— 


R. &R. 297 


. 515 


Chisholm v. Doulton, . 


16 Cox, 675 ; 22 Q. B. D. "i 


'86 . .12 


Chouinard, R. v., 


11 Q. L. R. 220 . 


. 343 


Christopher, — 


]i.V 


. 329 


Chute, — 


4 r.C. Q. B. 555 . 


. 253 


Clarence, — 


.ovJox, 511;22QB. D. 2J 


\ . 207, 233, 239, 
252, 253 


— , 


16 Cox, 526 


. 823 


Clark, — 


R. & R. 181 


. 394 


— 


Dears. 198 


. 699 


— 


10 Cox, 338 


. 867 


Clarke, — 


1 Moo. 376 (n) . . 


. 317 


— 


1 C. & K. 421 . 


. 474, 436 


Clarkson, — 


17 Cox, 483 


53, 55 


Clay, - 


R. &R. 387 


. 341 


Claybum, — 


R. & R 360 


. 431 


Clayton, — 


IC. &K. 128 


38, 564 


Clement, — 


26 U. C. Q. B. 297 . 


. 677 


Clements, — 


2 Den. 251 


. 797 


Clifford, — 


2 C. &. K. 202 . 


. 30 


CIORS, — 


Dears. & B. 460 . 


431, 502 


Cluderay, — 


1 Den. 514 


. 814 


Cookcroft, — 


11 Cox, 410 


. 271 


Cotld V. Cabe, 


1 Ex. D. 352 


19 




13 Cox, 202 


. 257, 622 


CoKKJns, R. v., . 


12 Cox, 517 


. 352 


Cohen, — 


8 Cox, 41 


. 816 


Cole, — 


2 Leach. 1095 


.746 


Coles, — 


16 Cox, 165 


95, 801 


Coley, — 


16Cox, 22ti 


. 364 


CoUicott, — 


R. &R. 212 


. 627 


Collins, — 


L. &C. 471 


. 42,44,384,814 



;;'l' 



! .-. 




liv 



TABLE OF CASES CTTBD. 







FAOE. 




Collins, R.. v., . . 


2 M. ft Rob. 461 


. 491 


Cozlett's case, . 


Colmer, — . . 


9Co«,606 


. 280 


Crab, R. v., 


Combes's case, 


NoylOl 


. 491 


Cracknel], R. v., 


Comet, R. v., 


1 Leach, 36 


. 473 


Craddock, — 


Commonwealth v. Groo 


dhue, 2 Met. 198 ... 


. 119 


Cramp, — 


Mat 


tee, . 12 Cox, 649 


. 767 


.. 


Mm 


■phy, 2 AUen (Mass.) 163 . 


. 820 


Craw, — 


Compton, R. v.,. . . 


7C. ft P. 139 . 


. 476 


Crawford, — 


Coney, — . . . 


16Cox, 46; 8Q B. D. 634 


. 85^61,02 


Cfawshaw, R, v., 


Conneil, — . . 


1 C. & K. 190 . . 


. 643 


Creamer, — 


— — — ... 


. 6 Cox. 178 


. 717, 718 


Creighton, — 


Connor, . — . . 


2Man. L. R.286 


201 


Cregan — 


Connolly, — . 


26U. C.<J. B.817 . 


. 278 


Cresswell — 




2C. &K. 518 . 


. 822 


Crick, — 


V. Kent, . 


17 Cox, 354 


. 591, 597 


Crighton, — 


Considine, R. v., . 


8L. N. 307 


. 791 


Crisham, — 


Coogan, — . . 


1 Leach, 449 . 


. fil5 


Crisp, — 


Cook, - . 


11 Cox, 5*2 


. 231 


Crofts, _ 


■^ V. Beal, 


ILd. Raym. 176 


25 


Cronan, — 


Cooke, R. v., 


8 C. ft P. 566 


505,506 


Cronin, — 


•'^-'^ — . ... 


8C.&P.582 


607,784 


Cronmire, — 


— - — . . . . 


1 Leach, 105 


. 836 


Cronyn v. Widder, 


— — — 


7 C. ft P. 659 . 


. 838 


Crook, R. v., 


V. Stratford, 


13 M. ft W. 379 . 


. 837 


Cro<jke, — 


Cooper, R. v., 


5 C. ft P. 535 


36,37 


Cropper, — 


— 


1 Den. 459 ; 2 C. ft K. 876 . 


. 1.50 


V. Horton 


— . . 


12 Cox, 600 . . . . 


. 344 


Crosby, R. v., 


— — . — . • 


13 Cox, 617 . . . . 


. 402 


Crossley, — 


Coote, — . . . . 


L. R. 4 P. C. 599; 12 Cox, 557 . 


797, 79» 


Croteau, — 






800, 802 


Crowe's Case, 


Copeland, — 


. . Car. ft M. 516 . . . . 


. 407 


Crowther, R. v.. 


Corcoran, — 


26 U. C. C. P. 134 . 


55, 867 


Crump. — 


Cordy, — 


2 Russ. 586 


. 851 


Crumpton, — 


Corey, — 


. 22 N. B. Rep. 543 . . 


. 411 


Cninden, — 


Cormack, — 


210. R. 213 . . . . 


. 618 


Cru.ie, — 


Cornwall, v. R. . 


38 U. C. Q. B. 106 . 


259, 841 




Corporation of London, 


R. v., E. B. & E. 509 . 


. WKJ 


~ 


Corwin, ex parte. 


24L. C. J. 104; 2L. N. 364 


. 75a 


■ Crutcliley, — 


Cory, R. v.. 


10 Cox, 23 . . . . 


. 324 


■ Cuddy. — 


Cosser, — . . 


13 Cox, 187 . . '. 


. 313 


■ Cullen, — 


Cotterill v. Lempriere . 


17 Cox, 97 . . . . 


. 678 


■ Culhim, — 


Cotton, R. v.. 
Court, — 
Cowell, — 
Cox, — 


12 Cox, 400 . . . . 
6 Cox, 202 , . . . 
2 EaHt P. C. 617, 781 . 
R. ft R. 262 


. 175 

. 247 

. 350 

234, 23.J 


H Caniinings, — 

■ Cunipton, — 

■ Cuniiy V. LeCocq, 
H Cunningham. R. v.. 


~~— — ... 


IF. ft F. 90 


. 851 


^^^^H ^J —•■•J .^VV ■ 1 * 


— 


16 0. R. 228 


. 417 


1 


Coxhead v. Richards . 


1 Leach, 71 . . . . 
2C.B. 509 . . 


. 981 
. 298 


■ Cmgenwen, — 

■ Curran, — 



TABI^ OF CASES CITE£>. 



Iv 



PAGE. 



Cozlett'B case, • . 


2 East P. C. 656 


' * * 


i 833. 


Crab, R. v., . * 


11 Cox, 85 4 i 


* i 


. 402 


Cracknel], B. v., 


10 Cox, 408 . i 


* • 


. 463 


Craddock, — i 


2 Den. 31 


, 


348,350 


Cramp, — i 


14 Cox, 390, 401 . 


, , 


. 278 


• • 


R.&;R.827 


^ ^ 


. 688 


Craw, — . 


8 Cox, 885 


• 


. 34 


Crawford, — . 


1 Den. 100 


• 


. 242 


CtawBhaw, R. v., 


BeU, 803 


11, 186, 189, 


771,960 


Creamer, — 


10 L. C. R. 404 . 


• 


. 282 


Creighton, — 


19 O. R 889 


• • 


303,701 


Cregan — . 


1 Han. (X. B. 36) 


<i • 


. 828 


Cre8swell — 


13 Cox, 126 4 


4 4 


. 281 


Crick, — 


1 F. & F. »19 . 


* 


. 196 


Crighton, — 


R. * R. 62 


4 


. 361 


Crisham, — 


Car. & M. 187 . 


• i 


. 36 


Crisp, — 


IB. & Aid. 282 . 




. lOi 


Crofts, — 


9 C. & P. 219 . 




. 700 


Cronan, — 


24 U. C. C. P. 106 




. 823 


Cronin, — 


36 U. C. Q. B. 342 


. ' 501, 


661,846 


Cronmire, — 


16 Cox, 42 




. 343 


Cronyn v. Widder, i 


16 U. C. Q. B. 356 




. 139 


Crook, R. v., 


1 F. & F. 621 , ^ 




. 196 


Cro<jke, — 


2 Str. 901 . 




. 500 


Cropper, — 


2 Moo. 18 . 




. 850 


V. Horton 


8 D. & R. 166 . 




. 623 


Crosby, R. v., 


1 Cox, 10 . . . 




. 410 


Crossley, — 


2 M. A; Rob. 17 . 




. 408 


Croteau, — 


9 L. C. R 67 . 




. 956 


Crowe's Case, 


1 Lewin, 88 . , 




. 358 


Crowther, R. v., 


5 C. & P. 316 




. 500 


Crunjp, — 


1 C. & P. 658 . 




. 374 


Crumpton, — 


Car. & M. 597 . 




. 822 


Cninden, — 


Warb. Lead. Cas. 99 . 




. 121 


Cniie, — 


Warb. Lead. Cas. 24 . 




. 12 


— 


8C. &P. Ml . 




35 


— 


2 Moo. 53 




213, 823 


Crutchley, — 


7 C. & P. 814 . 




. 206 


Cuddy, — 


1 C. & K. 210 . 




35,180 


Cullen, — 


1 Moo. 300 




. 520 


Culluiii, — 


12 Cox, 469 




. 864 


Ciiniinings, — 


16 U. C. Q. B. 15 


356, 677, 


9(50, 981 


Cuiupton, — 


Warb. Lead. Cas. 216 




19 


Cuiidy V, LeCocq, 


13 il B. D. 207 




. 295 


Ciiniiingham, R. v., 


16 Cox, 420 




53,55 


— 


Bell, 72 




. 236 


— ■ . 


CasselsV Dig. 107 


. 521 


806, 874 


Cuigenwen, — 


10 Cox, 152 




. 285 


Cunan, — 


3 C. & P. 897 ♦ 




4 021 



i-r:; 



! 



'1 •; 
I- .■ 



I , 



i : 



f 



Ivi 



TABLE OF CASES CITED. 



Curry, R. v., 
Curvau, — . 



Dade, R. v., 
Dale, — 



Dadson, — • 

Daly, -^ 

Danger, — » 

Dannelly &• Vaughan, R. v, 

Dant, R. v,f 

Daonst, — • 

Dart, • — 

Davie v. Briggs 

Da vies, R. v., . . 



Davis, 



v. Lennon, 

v. Russell, 

v. Stephenson, 

DHvison, R. v.. 



Davitt, — 
Day, - 

Deacon, — 
Dear v. Knight 
Deasy, R. v.,. 
Deaves, — 

Debaun, — . 
DeBerenger, — . 
Debruiel, — . 
Deegaii, . — . 



2 Moo. 218 
1 Moo. 132 

D. 

1 Moo. 307 

6 Cox, 14 
16 Cox, 703 

7 C. & P. 3-2 

2 Den. 33 

24 L. C. J. 157 . . 
Dears. & B. 307. 
R. & R. 310 
10 Cox, 102 ; L. & C 

9 L. C. J. 85 . 
14 Cox, 143 

27 U. S. 628 

8 Cox, 48<) 

10 Cox, 239 

2 East P. C. 709 
2 Leach, 876 . 
2 East P. C. 956 
5 Cox, 328 

14 Cox, 5G3 
R. & R. 113 

15 Cnx, 174 
L. & C. 64 

6C. &P. 177 .. . 

11 Cox. 181 

18 U. C..Q. B. 180 
R. & R. 322 

6 Cox, 3t)I) 
R. & R. 499 

7 C. & P. 785 . 

8 U. C. Q. B. .599 

5 Bing. 354 
17 Cox, 73 

2F. &F. 250; 8 Cox, 
7 Cox, 1.58 
11 Cox. 676 

9 C. & P. 722 . 
R. & M. 27 

I F. & F. 433 
15 Cox, 3:34 
llCox, 2i'7 

II L. N. 323 

3 M. & S. 73 . . 
11 Cox, 207 

6 Man. L. R. 81 



570 



360 



PAOB. 

. 31!) 
185, 622 



■ IT, I 

32, .509 
. 216 
. 279 
. 401 
. 626 
. 142 
409, 414, 416 
.39 
. 192 
. 8«7 
. 221 
. 6:^13 
14 
. 316 
. 436 
. 459 
. 503 
. 692 
. 8 
. 32 
. 199 
. 257 
3.51, 827 
. 40 
410, !)S1 
4(57, 482 
467, 472 
. 467 
• 760 
. 25 
. 626 
. 184 
. 7.S!) 
. 844 
47 
. 262 
. 706 

. m\ 

47 

, 830 
. 521 
. 497 
. o'.H't 

. :)09 



Deeley, R. 

Deer, 

Deering, 

Deery 

Defoy, 

I>eKromme, — 
Delaval, _ 

Denby, 

Densley, _ 

D'Eon, _ 

Derbyshire, — 
DiBreconrt v. Cof 
Derrick, R. v., 
Despatie, expa.'t 
Devett, R. v., 
DeVidil - 
Dewitt, _ 
Dickeu, — 
Dickenson, — 
Dickinson, — 
Dillot, in re, 
Dihuore, R. v. 
Dillon, _ 

- — V. O'Brien, 
Dilworth, R. v., . 

Diprose, 

Dixon, 



Dobbs, _ 

Dodds, _ 

Dodson, 

Doe v. Oliver, 

d. Marriott v. ] 

Dnggett V. Catterns, 
Doh«rty, R. v., 
Donally, _ 

Doody, 

Doonan, -_ 
Dougall, __ 
Douglas, _ 
Dove, 

I>ovey V. Hobson, 
Dowey, R.V., 
Downes, R. v., 



1^11 



TABLE OF CASES CITED. 



Ivii 







PAOE. 


Deeley, R. v., 


1 Moo. ms 


. 836 


Deer, — . . . 


L. & C. 240 


818, 352 


Deerin?, — . 


11 Cox, 298 


. 327 


Deery — . . 


20L. C. J. 129 


. 867 


Defoy, — , . . . 


Ramsay's App..Ca3.J93 . . 


. 598 


DeKromme, — ... 


17 Cox, 492 


. 597 


Delaval, — . . . 


3 Burr. 1435 


. . 129 


Denby, — . 


lLea«3h, 514 


. 7a5 


Denaley, — , . . . 


6C. &P. 3!)5) 


. 351 


D'Eon, — . . 


1 W. Bl. .517 


73 


— • . ■ 


3 Burr. 1514 


. 712 


Derbyshire, — . . . 


2 Q. B. 745 


. 575 


Dereccmrt v. Co^biBhl.ey, . 


6 E. & B. 188 


. 622 


Derrick, R. v., . . . . . 


23 L. C. J. 239 


. 787 


Despatie, 4Xpa:'te, 


»L. N. 387 


. 141 


Devett, R. v.. 


8 C. & P. 639 


. 694 


DeVidil - . . 


9 Cox, 4 


. 797 


Dewitt, — . . . 


21 N. B. Rep. 117 ... 


. 394 


Dickbu, — 


14 Cox, 8 


. 275 


Dickenson, — 


1 Saund. 135 


. 960 


Dickinson, — 


R. & R. 401 ... 


734.735 


Dillot, in re, 


16CUX.241 


. 767 


Dihuore, R. v, . . 


C Cox, 52 


. 797 


Dillon, — 


10 P. R. Ont. 352 . . . . 


. 135 


- — V. O'Brien, . . 


lf> Cox, 245 


19 


Dilworth, R, v., . . 


2M. &Rub. 531 


215, 823 


Diprose, — 


11 Cox, 185 


345, 365 


Dixon, — . 


10 Mod. 335 


135,960 


— 


11 Cox, 341 


. 172 


— ... 


Doars. 580 


. 329 


— . . . . 


11 Cox, 178 


. 363 


— . . 


R. & R. 53 


. 389 


— .... 


M. & S. 11 


. 432 


Dobbs, — . 


2 East P. C. 513 


. 468 


Dodds, — 


4 0. R. 390 


. 139 


Dodson, — 


9 A. & E. 704 . 


. 585 


Doe V. Oliver, 


2 Sin. Lead. Cas. 78Q 


. 785 


d. Marriott v. Edwards, 


5 B. & Ad. 1005 . . . 


. 838 


DogKett V. Catterns, 


10 C. B. N. S. 705 . . 


. 134 


Dolmrty, R. v., . 


10 Cox, 3(M5 


12, 764 


Donally, — 


2 East 1'. C. 713 


. 437 


Dootly, — 


(> Cox, 403 ... 


. 227 


Doonan, — . . 


M. L. R. q. B. 186 


. 3i)4 


Doujfall, ~ . . 


18 L. C. J. 85, <)0 . 303, ' 


ri3, 768, 773 


Douglas, — 


Car. & M. 193 ... 


. 757 


Dove, — 


3 Stephen's Hi^t. 426 


8 


Dovey v. Hobson, 


2 Marsh, 154 


. mi 


Dowey, R.v., 


11 Cox, 115 .... 


. 403 


Downes, R. v.. 


1 Q. B. 1). 25 


, 145 












i 

i i 




:.' ij 


■?' 


''"'! 



Iviii 



TABLE OF CASES CITED. 







PAGE. 


Downey, R. v., ^ 


18 L. C. J. 193 . 


. 708 


Downie, — 


13 R. L. «9 


. 608 


Downie v, R. 


M. L. R. 8 Q. B. 360; 15 S. C. I 


L358 m 


Downing, R. v., i 


1 Den. 52 .... 


36, 692, 603 


i 


11 Cox, 580 . 


. 376 


— — V. Capel . i 


3(} L. J. M. C. 87 


. <m 


Drain, R. v., t 


8Man. L.R. 535 


. 358,264 


Drage, — * 


14 Cox, 85 .... 


. 828 


Drake v. Footitt . 


7Q. B. D.201 . 


. »8 


Draper, R. v., 


IC. &K. 176 


216,823 


Dredge, — ; 


Warb. Lead. Cas. 135 . 


. SS8 


Dring, — 


Dears, ft B. 329 . 


. 866 


Drury, — 


3 C. ft K. 198 . 


718, 720 


Dubois, — 


17 Q. L. R. 203 . 


8 


Duckworth, R. v.. 


17 Cox, 495 ; [1892] 2 Q. B. 83 > 


13, 220, 822 


Dudley, — , . 


l5Cox, 624; 14Q. B.D.273 ] 


LO, 171, 608 


Duffin, — . 


R. & R. 365 


214,234 


Duffy, — . . 


9 Jr. L. R, 329 . 


. 7» 


Dogal, — . 


4 Q. L. R. 350 . . . 18 


9, 199, 80» 


Duncan, — . 


7Q.'B. D. 398 . . . . 


. 87» 


Dungey, — . 


4 F. ft F. 99 . . 43, 27 


3, 817, 834 


Dunlop, — . 


11 L. C. J, 186 . 


. 131 


Dunn, — . 


1 Moo. 146 .... 


351,827 


— . 


1 Leach, 57 .... 


. 502 


• • 


11 Jur. 287 .... 


. 742 


Dunning, — . 


11 Cox, 651 . . . . 


. 680 


Durooher, — . 


12 R. L. 697 


409, 413 


Duval V. R. . . 


14 L. C. R. 52 . 


. 76J» 


Dwyer, R. v.. 


27 L. C. J. 201 . 


. 286 


Dyer,. — 


2 East P. C. 767 . . 


31,350 


Dyke.v. Grower . 


17 Cox, 421 .... 


11" 


Dyson, R. v., 


R. &R. 523 . . . 3i 


t, 226, 228 


■ ■ 


7C. ftp. 305 . . . . 
E. 


. 868 


Eagle, R. V 


2 F. & F. 827 


. 184 


Eagleton, R. t., . 


Dears. 376, 515 . . 43 


, 398, 481 


Eardly, _ . _ 


49 J. P. wJl .... 


. 267 


Earl ')f Somerset, R. v., 


19 St. Tr. 804 .... 


.% 


£arii»haw, _ 


15 East, 450 .. . 


. 077 


Eastern Archipelago Co. v 


The 




Queen 


2 E. & B. 879 .... 


. 900 


Edwards, R. v., . 


8 C. ft P. 611 


. 198 


■ • ■ 


Warb. Lead. Cas. 132 


. 824 


• • • 


6 C. & P. 521 


394, 448 


• • • 


6 C. & P. 515 


. 451 


^MM** _^ ^ 


R. & R. 224 


. 78» 


*"" ■ • • • 


8C. ftp. 26 


. m 



Egginton, R. v., 



Egre, ~ 

Eldershaw^ — 
Elliott, — 

V. Osbon 

Ellis, R. v.. 



Elrington, R. v., 
Else, _ 

English, — 
Eno, er parte, 
Enoch, R. v., . 
Epps, — 

Etherington, R. v. 
Evans, 



Ewer V. Ambrosw, 



Faderman, R. v., 
Falkingham, — 
Falkner, — 
Fallon, _ 

Fallows, _ 

Fanning, — 
Farrell's Case, . 
Farrell, R. v., 

Fnrre's Case, 
Farrington, R. ▼., 

Farrow, 

Faulkner, — 
Featherstone, — 
Feist, _ 

Fellowes, 

Fennell, -u 

Fenti)n, -i. 

Feore, 

Fflrens v. O'Brien, 
Ferguson, R. v., . 






TABLE OF CASES CITED. 



lix 











PAGE. 


Egginton, R. v., . 


2 Leach, 913 48> 


— , • 


2 B. & P. 508 . 
6 E. ft B. 100 . 






. 692 
. 981 


Egre, — 


1 P. * B. (N. B.) 189 






. 129 


Elderehawi— . ■ . 


8 C. & P. 896 . 






8 


Elliott, — . . 


16 Cox, 710 . 






. 199 


— . ■ . 


I Leach, 175 






. 501 


V. Osbom, 


17 Cox, 846 . 






12,587 


Ellis, R. v., . . . 


22 N. B. Rep. 440 






. 129 


— . . 


1 F. & F. 309 . 






. 284 


— , . 


16 Cox, 469 . 






. 288 


— . ■ . 


8 C. & P. 654 




4 


47, 821, 82S 


EIrington, R. v., . - . 


1 B, & S. 688 






. 266 


Else, — . • . 


R. & R. 142 






. SS 


Engliah, — . - . 


12 Cox, 171 . 






. 411 


Eno, er parte. 


lOQ. L. R. 194 . 




•• 


. 608 


Enoch, R. -v., • . . • 


5C. &P.639 






. 178 


Eppa, — . . 


4 F. A F. 81 






. 616 


Etherington, R. v., • . 


2 Leach, 671 






. 387 


Evans, — • . 


17 Cox, 37 . 






. 97 


— — — ■ . 


L. & C. 252 






. 401 


— • . 


Car, & M. 298 . 






. 470 


— ■ . 


5 C. & P. 553 






. 620 


Ewer V. AmbrosA, 


3 B. & C. 746 . 






. 806 



I 



f 



I 
I 



'■■::i 



Faderman, R. v.. 


1 Den. 666 . 








, 


867 


Falkingham, — 


11 Cox, 475 . 




, 


. 151 


Falkner, — 


7 R. L. 544 








. 694 


Fallon, — 


L. & C. 217 


, 


, 


, 


42, 601 


Fallows, — 


2 Rmss, 107 








. 442 


Fanning, — 


10 Cox, 411 . 








. 282 


Farrell's Case, 


2 East P. C. 557 








. 322 


Farrell, R. v., . . 


1 Leach, 322 








. 434 


— . . . 


12 Cox, 605 . 








. 799 


Fnrre's Case, 


Kel. 65 








. 326 


Farrington, R. ▼., 


1 R. & R. 207 








, 560 


Farrow, — 


Dears. & B. 164 








. 277 


Faulkner, — 


13 Cox, 550 








563,578 


Featherstone, — 


Dears. 3CI) . 








317, 868 


Feist, — 


Dears. & B. 590 








. 139 


Fellowes, — 


1« U. C. Q. B. 46 










597 


Fennell, -^ 


Warb. Lead. Ca» 


250 








800 


Fentt^m, -^ ■ . 


1 Lewin, 179 










188 


Feore, — 


3 Q. L. R. 219 










785 


Fflrens v. O'Brien, 


15 Cox, 332 . 










324 


Ferguson, R. v., . 


1 Lt!«in, 181 










196 


• a _ 


3Pug8. (N.B.)61 


2 








335 



£« 



Ix 



TABLE OF CASES CITED. 







PAGE. 




Ferguson, R. v., . 


4 P. & B. (N.B.) 259 . 


. 353 


Freeman, R. v. 




Dears. 427 . 689, 6 


i91, 856, 866 


Freeth, .— 


Fidler, — . 


4 C. & P. 449 ... 


. 577 


French, — 


Field, — 


1 Leach, 383 .. . 


. 627 


Fretwell, — 


Field house, R. v., 


1 Russ. 1030 


. 752 


FrieJ, — 


Finney, — . 


12 Cox, ()25 .... 


. 199 


Friend, — 


Firth, — 


11 Cox. 234 . 


. 322, 695 


Frost, — 


Fisher, — 


8 C. & P. 182 


. 162, 184 


— 




Warb. Lead. Cas. 112 


. 211 


— 


— 


10 Cox, 14'> . . . 


. 572, 577 


— 


Fitch, — . 


Dears. & B. 187 


. 318 


— 




L. & C. 159 


. 520 


Fry, _ . 


Fitzgerald, — . 


1 Leach, 20 . . . 


. 616 


Fuidge, — . 


Flanagan, — 


10 Cox, 561 . 


. 366 


Fullagar, — 


Flannagan, — . 


R. & R. 187 . . . . 


. 460 


Fullarton, ,— 


. 


15 Cox, 403 . . . 


. 714 


Fuller, _ 


Flatnian, — . . 


14 Cox. 396 . 


. 316 


— 


Flattery, — 


13 Cox. 388 ... . 


. 270 


— 


Fletcher, — _ . . 


10 Cox, 248 . 


. 270 


Fulton V. James, 




8 Cox, 131 ; Bell, 63 . 


. 270 


Furneaux, R. v.. 




Bell, 65 ... . 


. 964 


Fumival — . , 


Flint, — 


R. & R. 460 


. 402 




Flower, — . 


8 D. & R. 512 . 


. 390 




Flowers, — . . 


16 Cox, 33 ; 16 Q. B. D. 643 


. 334 




Flynn, — 


2 P. & B. (N. B.) 321 . 2 


37, 708, 710 


Gaby. _ . 


Foley. - 


17 Cox, 142 . . . . 


. 324 


Gadbury, — . 


Folkes, — 


lM.x>. 3.54 . . • . 


. m 


Gallagher, — , 


Fontaine, — 


loL. C. J. 141 . . . . 


. 285 


Gale, _ . 


Forbes, — ' . . 


10 Cox, 362 . . . . 


, . 256 


Ganes, _ , 


— . . 


7 C. & P. 224 . 


. 506 


Garbett, — . 


Ford, — 


R. & R. 329 . . . . 


. 177 ' 


Gardner, — . 


— ' . . 


M. L. R. 7 Q. B. 413, 


394, 413 




— 


14Q. L. R. 231 . 


. 732 


V. Mansbn 


V. Wiley, . ' . 


16 Cox, 683; 2:3 Q. B. D. 203 


295, 587 


Garland, R. v., . 


Foreman, R. v. . . 


1 L. C, L. J, 70 . 


. 855 


Garner, — . , 


Foster, — . , . 


13 Cox, 393 . . . , 


. 407 


Garrett, — . 


— . ' . . 


7C.&P.49.5 . . 


. 547 


— — _ 


— . , . 


6 Cox, 25 . . . . 


. .577 


Gascoigne, — ', 


Foulkes, — . . 


13 Cox, 63 . . . . 


. 364 


Gate Fulford, R. v., 


Fox, — . . . 


10 Cox, 502 . . . . 


699, 849 


Gauthreaux's Bail, 


V. Gaunt, . . 


3 E. & Ad. 798 . . 


. 622 


Gay lor, R. v., 


Francis, R. v., 


12 Cox, 612 . . . , 


. 412 


Gair^rd, — 


— . . . 


R. & R. 209 . . 


. 502 


Geach, — 


Frankland, — . . . 


L. &C. 276 . , 


. 6S4 


Geering, — 


Franklin, — . . . 


15 Cox. 163 . . . . 


. 188 


George, — 


Franks, — . . . 


2 Leach, 644 


. 553 


Gerrans, — 


Eraser, — . . . 


1 Moo. 407 . . 


. a53 


Gibbons, — 


— . . . 


14 L. C. J. 245 . . 


. 872 


Gibson, — 


Fray, _ . . . 


1 Ea.st P. C. 236 . . . 


. 188 





TABLE OF CASES CITED. 



Ixi 











PAGE. 


Freeman, E. v., . . . 2 Rush. 301 . . • . • . 


. 684 


Freeth, .— . . 






R. & R, 127 


. 402 


French, — . . 






11 Cox. 472 ■- 


. 620 


Fretwell, — . . 






L. & C. 443 


. 286 


Frie), - . . 






17 Cox, 326 


226, 267, 721 


Friend, — . . 






R, & R. 20 


. 143 


FroBt, — . . 






22 St. Tr. 471 . . . 


. 72 


— . . 






2 Moo. 140 . . . . . 


. 756 


— . , 






9C. &P.159 . . . 


. 766 


— . . 






9 C. & P. 136 . . . 


. 779 


— . , 






Dears. 474 


. 840 


Fry. - . . 






Dears. & B. 449 . . . 


. 400 


Fuidge, — 






L. &C. 390; 9 Cox, 430 . 


. 731 


Fullagar, — 






14 Cox, 370 . . . 


. 314 


FuUarton, .— . . 






C Cox, 194 


. 840 


Fuller, — 






R. & R. 308 . . • , 


43 


— 






1 B. & P. 180 


49, 694 


— . , 






1 Leach, 186 . . . . 


. 468, 459 


Fulton V. James, 




5 U. C. C. P. 182 . . 


. 137 


Furneaux, R. v., 




R. & R. 335 


. 360 


Fumival — . , 




R. & R. 445 . . 


. 469 


G. 




Gaby, — . . R. & R. 178 . . . 


. 683 


Gadbury, — . 




8 C. & P. 676 . . . 


. 700 


Gallagher, — . 




15 Cox, 291 


. 47 


Gale, — , . 




13 Cox, 340 


. 364 


Ganes, — . 




22 U. C. C. P. 185 . 


. 820, 822 


Garbett, — . 




1 Den. 236 


. 797 


Gardner, — , 




Dears. &IB. 40 . . 


.401 


— ■ . 




1 C. & P. 479 . 


450, 452, 453 


V. Mansbridge 




16 Cox, 281 19 Q. B. D. 21 


7 . .586 


Garland, R. v., . 




11 Cox, 224 


699. 870 


Garner, — . 




4 F. & F. 346 . 


. 176 


Garrett, — . 




2 F. & F. 14 


. 316 


— — M^ ^ 




Dears. 232 . . 


. 410, 412, 524 


Gascoigne, — 




2 East P. C. 709 


. 438 


Gate Fulford, R. v., 




Dears. & B. 74 . 


. 870 


Gauthreaux's Bail, 




9 P. R. (Ont.) 31 


. 957 


Gay lor, R. v., 




Dears. & B. 288 . . 


38, 182, 188 


Gaz*rd, — 


1 




8 C. & P. 595 


93 


Geach, — 






9 C. & P. 499 


493, 507, 782, 785 


Geering, — 






18 L. J. M. C. 215 . 


. 175 


George, — 






11 Cox, 41 


. 230 


Gerrans, — 






13 Cox, 158 


. 799 


Gibbous, — 






R. & R. 442 . . 


. 469 


Gibson, — 






7 R. L. 573 


88 


— 






160. R. 704 


. 589, 868 



V 



'4 



I,: 
'I'l 



■ i ' 
hi 



N 






I- 



Ixii 



TABLE OF CASES CITED. 



\ 




PAOK. 




Gibson, R. v., 


16 Cox, 181 ... 


. 771, 871 


Govor. R. V. 


Oiddipa, — 


Car. * M. 634 . 


. S94 


Grand Jut. i,ion 


Gilbert, — 


1 M(w. 186 ... 


. 811 


Granger, R. v., 


— . , 


1 C. & K. 84 


. 482 


Grant, — 


Gilchriat, — 


2 Leaoli, 657 . ... 


. 86M 


Gray, _ 


Giles, — . . . 


1 Moo. 16« . ... 


30, 604, 518 




, , . 


L. & C. 502 ... 


. 400 


.___ 


Gill, - ... 


2 B. A Aid. 204 . ... 


. 598 


— 


6illi8» — .. . . 


27 N. B. Rep. 30 . . 


. 363 


I Grf-nt Western R 


— ... 


6 C. L. T. 203 . . . 


. 7a'S 


I Green, R. v.. 


Gillow, — ... 


1 Moo. 8.5 ... 


. 234 


1 


Oilmore, — . . 


15 Cox, »^ . ... a 


46, 718, 720 


1 


GilHon, — 


. R. & R. 138 . . . 


. 562 


1 Greenhalgb, R. ^ 


Giorgetti, — . . 


4 F. & F. 546 . ... 


. 779 


1 Greenwood. — 


Girdwood, — . . 


1 Leach, 142 . . . 


. 229, 224 


_ 


GlMOD, — .... 


2 C. & K. 781 . ... 


. 272 


Gregory, _ 


Glas», — ... 


M. L. R. 7 Q. B. 405 . 


335, 368 




— . . 


. 1 L. N. 41 . ... 


. 3«J7 




— 


21 L. C. J. 245 . 


. 870 


Grey (Lord), - 


V. O'Grady, 


. 17 U. C. C. P. 233 . 


25 


Griffin, _ 


Gloster, B. v., . 


16 Cox, 471 .... 


. 201 


• 


Glover, — . . 


L. & C. 460 


. SGH 


V. Cplem^r 
Griffith V. Taylor, 


Glyde, - . . 


11 Cox, 103 ... 


. asn 


Gnosil, — 


1 C. & P. 304 


. 436, 440 


Grimes, R, v., 


Goate, — . . 


1 Ld. Raym. 737 


. 500 


Grimwade, — 


Goddard, — 


15 Cox, 7 . . . . 


. 201 


Gtoombridge.— 


Goflf - . 


9U. C. ^.P. 438 . . 


. 398 


Stove, — 


Gogerley, — . . . 


R.&R.»I3 . . ". 


. 31 


Gruncell, — 


Goldsmith, — . 


12 Cox, 479 . . . . 


400,858 


Giielder, — 


— . . . 


12 Cox, 594 . . ' . . 


. 908 


Ouenwey, — 


Goldthorpe, — 


2 Moo. 240 ,244 . . . 


230,826 


Gugy, Ex parte, . 


Goodej — . . . 


7 A. & E. 630 . . ' . 


. 863 


Gumble, R, v.. 


Goodenough, R. v., 


Dears. 210 , , . 


. .367 


Gurford v. Bailey, 
Gurney, R. v., 


Gooden, — 


11 Cox, 672 . . . . 


. 520 


Goodfellow, — 


14 Cox, 326 . . . . 


. 799 


G«ttridge, — 


Goodhall, — 


1 Den. 187 . . . . 


278, 814 


....» 


— 


R. & R. 461 . . . 


. 400 




Gooding, — . . 


Car. & M. 297 . . " . 


. 836 


' 


Goodman, — 


22 U. C. C. P. 338 . . 


. 664 




Gorbutt, — 


Dears. & B. 166 


308.820 


Hadfifild, R. V 


Gordon, — 


1 Leaoh, 515 . . . . 


36, 256 


H««ran, — 


— . 


IRuss. 351 . . . . 


. 73 


Haigh, — 


— . . 


1 East P. C. 315, 352 


. 176 


H«igh V. Sheffield^ 


^ • • 


16 Cox, 622 .... 


. 409 


H»ine8, R. v., 


• — 


23 Q. B. D. 354 ; 16 Cox, 622 . 


. 415 


HmH, _ 


G088, — 


Bell, 208 


. 407 




Gould, - 


1 Leach, 338 ... . 


. 385 




— ' — — 


20 U. C. C. P. 154 


. 608 






8 Burn, 98 .... 


. 789 





1 1 



TABLE OF CASES CITED. 



1X111 







PAOR. 


Gover. R. v., . . . 


9 Cox. 282 . . . 


. 647 


&rand Jui, iion Ry. Co. R. v 


., 11 A. &E. 138 . . , . 


. 828 


Granger, H. v., . . 


7 L.N. 247 . . . 


97 


Grant, — . . . . • 


2 L. C. L. .T. 276 . . . 


. 708 


Gray, — . . 


7C. 4P. 104 . . . 


. S« 




Dears. & B. 303 . . . . 


. 150 


_ —. , • . 


17 Cox, 299 . . . . 


. 408 




L. &C. 866 


. 706,858 


Gr*»ftt Western Hailw^yCo. R 


v., 8 Q. B. 333 . j . 


. 628 


Green, R. v., . • 


7 C. & P. 1.56 . . . 


. 194 




3 F. & F. 274 . . . 


. 294 


— — • — * • • 


Dean. & B. 113 


. 720, 721 


Greenhalgt), R. v., 


Deard. 267 . . . . 


. 409 


Greenwood, — 


2 Den. 453 . . . 


38,553 


— 


2C. &K. 339 . 


. 821 


Gregory, — 


10 Cox, 459 


, 30, 699, 817 




L. R. 1 0. C. R. 77 . 


. 228 




5 B. & Ad. 566 . 


. 960 


Grey (Lord), — 


3 St. Tr. 519 


. 129 


Griflfin, — 


11 Cox, 402 


27. 191 


— 


14 Cox, 308 


. 281 


V. Coleman, 


4 H. & N. 265 . 


. 622 


Griffith V. Taylor, 


2 C. P. D. 194 . . 


. 626 


Grimes, R. v., . 


Fost. 79 . . . 


. 391 


Grimwade, — 


1 Den. 30 . . . 


. 223, 450 


Gcoombridge,— . 


7C. &P. 582 . 


8 


Grove, — . 


1 Moo. 447 


. 367 


Gruncell, — . 


9C.&P. 865 


. 321, 833. 351 


Giielder, — . 


Bell, 284 


. 367 


Guernsey, — . 


1 F. 4 F. 894 . 


. 307 


Giigy, Ex partt, . 


8L.C. R. 353 . 


. 303 


Gumble, R, v., 


12 Cox, 248 


. 374, 846 


Gurford v. Bailey, 


3M. &G. 781 , 


. 837 


Gurney, R. v.. 


11 Cox, 414 


. 758 


Guttridge, — 


9C. &P. 228 


. 714 


— — — . 


9C. &P. 471 


. 820, 825 



H. 



Had&Bld, R. v., . 


U Cox, 574 


. mi 


Ha<fan, — 


8 C. & P. 167 . 


. 7.;8, 447 


Hftigh, — . . . 


7 Cox, 403 


. 343 


Haigh V. Sheffield, . . . 


L. R. 10 Q. B. 102 


. 134 


lUines, R. v., . 


R. & R. 451 


. 465 


H»H, - 


» C. & P. 409 . 


. 11, 32<> 


._ — — 


17 Cox, 278 


83, 960 


— . . 


13 Cox, 49 


. 862, 364 




lMoa374 


. 866 




R.&R.35d 


. 466 






11,11 







Ixiv 



TABLE OF CASES CITED. 







PAOX. 




Hall, R. v., . 


1 T. R. 320 


. 677 


Haswell, R. v., 


Hallidpy, — 


6 Times L. R. 109 


. 172, 238 


Hathaway, — 


Hallard, — . . 


2EastP. C. 498 


. 45» 


Haughton, — 


Hamilton, — . 


8 C. & P. 49 


.384.386 


Hawkes, — 


"^ • • 


1 Leaoh, 348 .. . 


. 385 


Hawkeswood, R. 


• 


1 C. & K. 212 


. 450 


Hawkins, — 




3 Ruse. 173 ... 


. 680 


_ 


Hamilton v. Massie, . 


18 O. R. 585 


27, 83, 959 


Hawtin, — 


Hamilton v. Walsh^ 


23 N. B. Rep. 540 


. S35 


Haynes, — 


Hamilton v. R.,. . 


2 Cox, 11 ... 


. 408 


Hayw&rd, — 


— 


9 Q. B. 271 


. 857 


Haywood, — 


Hampton's Case, 


2 Russ. 303 . 


. 682 


Hazell, — 


Hancock, R. v,. . . . 


R. &R. 70 


. 482 


Hazelton, — 


Handcock v. Baker, 


2 B. & P. 260 


22,25 


Heane, — 


Handley, R. v, . 


13 Cox, 79 . . 173, 1( 


», 205, 211, 


Hearn, — 




229, 


232, 275 


Heath, — 


— 


Car. & M. 547 . 


. 33S 


Heaton, ~ 


Hanway v. Boultbee, 


4 C. & P. 350 . 


. 621 


Hegarty v. Shine, 


Hapgood, R. v., . 


11 Cox, 471 


. 272, 817 


Hemmings, R. v.. 


Hardingp, — . 


R. & R. 126 


. 323 


Hench, — 


Hardy, — . 


11 Cox, 656 ... 


. 669 


Henderson, — , 


Hare, — . . 


13 Cox, 174 


. 680 


Henderson v. Pres 


Hiirgreaves, R. v., 


2 F. & F. 790 . 


. 732 


Henkers, R. v., . 


Harley, R. v., 


4 C. & P. 369 . 


30, 214 


Hennah, — 


— . . . 


8 L. C. J. 280 . 


. 699 


Henessey, — 


Harman, — 


1 Hale. 634 ... 


. 440 


Kenry, — 


Harmwood, R. v. 


1 East P. C. 440 


. 818 


Henshaw, — 


Harper, R. v., 


14 Cox, 674 . . . . 


502,517 


Hensler, — 


.— 


7Q. B. D. 78 . 


. 617 


Henson, — 


Harrie, . — 


6 C. & P. 105 


. 463 


Henwood, — 


Harris, . — 


5 C. & P. 159 . 


3,219 


Hermann, — 


— . 


5 B. & Aid. 926 . . . 


89 


Heseltine, — 


— . , . 


11 Cox, 659 . . . . 


121,672 


Hevey, — 


— . . . 


2 Leach, 701 ... , 


. 469 


Hewgill, — 


— . . . 


1 Leach, 185 . , . . 


. 643 


Hewins, — 


• — . . 


15 Cox, 75 . . . . 


. 663 


Hewlitt, — 


— . . . 


3 Burr, 1330 . . . . 


. 743 


Heymann v. R., . 


Harrison, — . . , 


1 Leacii, 47 . . . . 


. 316 


Hey wood, R. v., 


— . . . 


12 Cox, 19 . . . . 


. 319 


Hibbert, — 


Hart, .— 


6C. &P. 106 . 


. 394 





— . . . 


1 Moo. 486 . . . . 


. 602 


Hicklin, — 


Hartel, — 


7 C. & P. 773 


. 760 


Hifikson, — 


Hartley, .— . . 


R. & R. 139 


. 361 


Higgins, — 


Harvey, — 


2 B. & C. 268 . 


. 167 


Higgs, — 


— ... 


1 Leach, 467 ... . 


314, 374 


Hill, — 


— . 


11 Cox, 662 . . . . 


. 548 


— — 


— 


L. R. 1 C. C. R. 284 . 


. 677 


— - — 


Haslaro, — 


1 Leach, 418 ... . 


. 351 





Hassell — ... 


L. & C. 58 


. 316 


Hilhnan, — 

Crim. Law— 



TABLE OF OASES CITED. 



Ixv 











PAGE. 


Haswell, R. v 


R. &R. 458 . . 109,110,676 


Hathaway,— 


8 L. C. J. 285 


. 521 


Haughton, — . . • 


5 C. & P. 555 . 


- . 




. 576 


Hawkes, — . . • 


2 Moo. 60 . . . 






. 516 


Hawkeswood, R. v., 


1 Lench, 257 






502,503 


Hawkins, — 


3 C. & P. 392 






. 34 




1 Den. 584 






. 367 


Hawtin, — 


7 C. & P. 281 






. 358 


Haynes, — 


1 F. & F. 666 






. 172 


Hayw&rd, — 


6 C. & P. 157 






161,184 


Haywood, — 


R. &R.16 . 






. 576 


Hazell, — 


11 Cox, 597 






. 310 


Hazelton, — 


13 Cox, 1 . 






. 412 


Heane, — 


9 Cox, 433 ; 4 B. & S. 947 . 




708, 732 


Hearn, — • ■ 


Warb. Lead Cas. 204 




11 


Heath, — 


R. &R. 184 




43. 546 


Heaton, 


3 F. & F. 819 . 






. 286 


Hegarty v. Shine. 


14 Cox, 124 






. 239 


Hemmings, R. v.. 


4 F. & F. 50 






327,435 


Hench, — . 


R. & R. 163 






. 311 


Henderson, — . 


2 Moo. 192 






408, 718 


Henderson v. Preston, 


16 Cox, 445 






. 965 


Henkers, R. v., . 


16 Cox, 257 






. 293 


Hennah, — 


13 Cox, 547 






. 241 


Henessey, — 


35 U. Q. B. 603 






. 396 


Henry, — 


21 0. R. 113 






. 421 


Henshaw, — 


L. & 0. 444 






. 400 


Hensler, — 


11 Cox, 570 






43, 398, 405 


Henson, — 


Dears. 24 






. 131 


Kenwood, — 


11 Cox, 526 






. 695 


Hermann, — 


14 Cox, 279 ; 4 Q. B. 


D. 28- 




. 551, 553 


Heseltine, — 


12 Cox, 404 






. 564 


Hevey, — 


2 East P. C. 858 (n) 






. 498 


Hewgill, — 


Dears. 315 






. 408 


Hewins, — 


9 0. &. P. 786 






. 838 


Kewlitt, — 


1 F. & F. 91 






. 25 


Heymann v. R., ■ 


12 Cox, 383 






. 854 


Hey wood, R. v., 


L. & C. 451 




( 


388, 696, 8.56 


Hibbert, — 


11 Cox, 246 






. 294 


_ 


13 Cox, 82 






. 598 


Hicklin, — 


L. R. 3 Q. B. 3(i0 






. 11, 114 


Hickson, — 


3 L. N. 139 






. 303. 845 


Higgins, ^- 


2 East, 5 . 






. 499 


Higgs, — 


2 0. &K. 322 . 






. 462 


Hill, — 


R. & R, 190 






. 408 




2 Rubs. 95 






. 477 


^_ 


2 Moo. 30 . 






. 493 


~—' ■ — 


5 Cox, 233 






. .WS 


Hilhnan, — 


L. & C. 343 






. 278 


Grim. Law— e 












^ 



*m m f t rt i aijM r^iuw 



Ixvi 



TABLE OF CASES CITED. 











PAGE. 


Hilly ard v. G. T, R., 


8 0. R. 583 131 


Hilton, B. Vm 


Bell, 20 . . . 






350, 869 


Hinchcliffe's Case, 


. . 1 Lewin, 161 






. 204 


Hoare, R, v„ 


1 F. & F. 647 . 






. 316 


Hobson, — 


Dears. 400 






. 350 


Hoclges, — 


M, & M. 341 






. 378, 381 


— 


S C. & P. 195 . 






735, S63 


Hodgson, — 


1 Leach, 6 






33 


.... 


R. & R. 211 






. 271 




3 C. & P. 422 . 






. 361, 680 




Dears. & V,. 3 






. 494, 499 


Hogan, — 


2 Den. 277 






. 149, 150 


Hogg, — 


. . . 5 U. C. Q. B. 142 






. 82 


Hoggins, — 


R. &R. 145 






. 361 


Hoke, — 


15 R. L. 92 






. 502 


Holbrook, — 


. .. 3Q.B.D.60;4Q.B.D 


.42; 


13 Cox, 




650; 14 Cox, 185 




300, 303 


Holchester, R. v., 


10 Cox, 226 




. 758, 761 


Holden, — 


R. & R. 154 






500, 518 


_ 


. . . 5 B. & Ad. 347 . 






743 


Holland, — 


2 M. &. Rob. 351 






. 158 


Hollingberry, — 


4 B & C. 32!) 






12, 819, 872 


Hollis, R. v., . 


12 Cox, 463 






. 278 


— 


8 L. N. 229 






. 293 


— 


15 Cox, 345 






. 334 


HoUoway, — 


1 Den. 370 






)7, 382, 868 


HoUoway v. R., . 


2 Den. 2S9 






. 849 


Holman, R. v., 


L. & C. 177 






. 690 


Holmes, — 


Dears. 207 

5R. &G. (N. S.)498 






. 120 
. 243 


— 


12 Cox, 137 






. 271 


— 


15 Cox, 343 






. 412 


Holroyd, — 


2 M. & Rob. 339 






. 246 


Holt, R. v., 


8 Cox, 411 ; Bell, 280 . 






. '409 


Hood, - 


1 Moo. 281 . 






25, 186 


Hoodless, R. v., . 


45 U. C. Q. B. 556 . 






. 95r, 


Hook, — 


Dears. & B. 606 . 






. 93 


Hope, — 


17 0. R. 4G3 






. 416 


Hopley, — 


Warb. Lea<l. Cas. 110 . 






. 27 


— 


2 F. & V 21I-' 






. 190 


Horan, — 


6 Ir. R. C. L. 293 






. 904 


Horner, — 


2 East }\ C. 703 






. 436 


Hornsby V. Raggett, . 


17 Cox, 428 






. 134 


Horsey, R, v., 


3 F. & F. 287 






. 171 


Horton, — 


11 Cox, 670 . 






. 285 


Howard v. R., 


10 Cox, 54 . 






680, 857 


Howartii, R. v., . 


> 1 Moo. 207 . 




18, 619, 621, 624 


— 


11 Cox, 588 




. 405 


Howell, 


9 C. & P. 437 




•5 


2, 58, 566 



Howes, R. v., 

Howie, — 

Howley, — 
Hubbard, — 

Huddell, — 

Hudson, — 

Hughes, — 



Hugiii, _ ; 

Huguet, ex parte, 
Humphreys, R, v., 
Hungerford, — 
Hunt, 



Hunter, 

Huntley, _ 

Hurse, 

Hutchinson, 



Huxley, 



Illidge, R. v„ 
Ilott V. Wilkes, 
Instan, R. v.. 
Ion, — 

Isaacs, — 
Israel, — 



•Tat'k.soii, R.V., 



•Tnc'obs, 



Howes, R. v., 

Howie, — 

Howley, — 

Hubbard, — : 

Huddell, — 

Hudson, — 

Hughes, — 



Hugill, — 
Huguet, ex parte, 
Humphreys, R. v., 
Hungerford, — 
Hunt, — 



Hunter, 
Huntley, 
Hurse, 
Hutchinson, 



Huxley, 



Illidge, R. v„ 
Ilott V. Wilkes, 
Instan, R. v., 
Ion, — 

Isaacs, — 
Israel, — 



60 



190 



TABLE OF CASES CITED. 



5 Man. L. R. 339 

11 Cox, 320 . 
L. & C. 159 
14 Cox, 565 . 
20L. C. J.301 
Bell, 263 
Bell, 242 

14 Cox, 284 . 
Warb. Lead. Cas 

7 Cox, 301 . 
1 Moo. 370 . 

1 F. & F. 355 
Warb. Lead. Cas 

2 East P. C. 491 
2 Russ, 517 

12 Cox, 551 . 
Car. & M. 601 

2 East P. C. B18 

1 Moo. 93 . 

8 C. & P. 642 

8 Cox, 495 . 

3 B. & Aid. 444 

2 Leach, 631 
Bell, 238 . 

2 M. & Rob. 360 

9 Cox, 555 . 
R. & R. 412 

1 Leach, 136 (n) 
Car. & M. 596 



Ixvii 

PAGE. 

. 701 
. 519 
. 520 
. 201 
. 755 
. 430 
29, 35, 34-!, 350 
88 
88 
191 
3(1}, 365 
. 401 
4 .'16, 473 
. 468 
. 389 
. 797 
. 736 
. 473 
213, 235, 61!), 622 
. 366 
. 408 
. 742 
. 222 
. 348 
. 553 
. 193 
. 470 
. 612 
. 447 



I. 



1 Den. 404 . 


. 519 


3 B. & Aid. 304 . 


. 244 


(1893) 1 q. B. 450 


. 249 


2 Den. 475 . 


. 504, 5-.'S. -,.-3 


L. & C. 220 


. l.'78 


2 Cox, 263 . 


. 7.-4 



Jackson, R.v., 






17 Cox, 104. 


3, 219, L-.Mt 


— 






7 Cox. 357 


. 170 


— 






1 Leach, 267 . . 


. ;w:, 451 


— 






3 Camp. 370 . . 


. 402 


. — 






2 Russ. 49, 7a . 


. S36 


— 






19 U. C. C. P. 280 . 


S41 


Jacobs, — 






R. &R. 331 


. L17 


r 






1 M(M.. 140 ... 


. 281 



!■! 



t 



Ixviii 



TABLE OF CASES CITED. 













PAGE. 


Jacobs, R. V , . . 12 Cox, 151 . 


. 313, 325 


_ . 16 S. C. R. 433 . 


. 845 


James, — 


17 Cox, 24 ; 24 Q. B. D. 439 


. 29 









5 C. & P. 153 . 


57 









12 Cox, 127 . 


410, 705, 844 


— 






7 C. & P. 55;! 


. 500, 728 


— 






1 D. & R. 55!) 


. 623 


Jamieson, R. v., 






7 0. R. 149 


. 139 


Jarrald, — 






L.&C. 301 


. 486, 672 


Jarvis, — 






2 M. & Rob. 40 . 


41 








1 Moo. 7 . . . 


. 4U0 


Jeans, — 






1 C. & K. .539 . 


. 576 


Jefferys v, Boosey 






4 H. L. Cas. 815 . 


. 612 


Jelly man, R. v.. 






Warb. Lead. Cas. 57 . 


. 117, 121 


Jenkins, — 






11 Cox, 250 


. 201 








R. & R. 244 


462, 463 


Jenks V. Turpin, 






13 Q. B. D. 505 . 


. 134, 135 


Jennings, R. v.. 






Dears. & B. 447 . 


. 356 








20 L. C. J. 291 . 


. 767, 792 


Jennison, — 






L. & C. 157 


. 400, 409 


Jenson, — 






1 Moo. 434 . 


. 361 


Jepson, ~ 






2 East P. C. 1115 


. 565 


Jervis, — 






6 C. & P. 156 


. 347 


Jessop, — 






16 Cox, 204 . . . 


33, 172, 226 


— 






Dear.«. & B. 442 . 


. 401 


Jewell, — 






6 Man. L. R. 4G0 


. 397 


John V. R., 






15 S. C. R. 384 . 


43, 273 


R. v., . 






13 Cox. 100 


394, 449 


Johnson, — 






Car. & M. 218 . 


. 32, 466 


— 






L. &C. G32 


. 258 


— 






15 Cox, 481 . 


. 294, 295 


. 






L. & C. 489 


474, 479, 815 


. — , 






3 M. & S. 539 .. . 


. . . 692 


. 






Post. 40 . . . . 


. 780 


— 






8 Q. B. 102 . 


. 981 


Johnston, — 






2C. &K. 354 


. 174 


— 






2 Moo. 254 . 


. 400 


Jolitfe, cxpurtr, . 






42 L. J. (;>. B. 121 


. 624 


Jonea, R. v.. 






11 Cox, 544 . . . . 


. 193 


— — — . . 






12 Cox, 628 . . . , 


. .199 


— 


1 • 






2 C. k K. 398 ; 1 Den. 218 . 


. 223 


_ 








11 Cox, 358 . . . . 


. 285 


— 1 






15 Cox, 284 .... 


. 285 


_ 






1 Den. 188 . 


. 333, 372 


— 






8C. &P. 2S8 


. 307 


_ 






. Dears. & B. 55.") . 


.377 


_ 






1 Den. 5.51 . . . 


. 402, 027 


— 






, 15 Cox, 475 .... 


. 409 


— . 








1 Leach, 537 


. 401 



Jones, R, v., 



V. R., . 

Jordan, R. v.. 



Jordin v. Crump 
Joyce, R. v., 
Judah, — . 

Justices, The, R, v., 



Kain, R. v., 

Kay, — . 

Kaylor, — 
Kealey, — . 
Keary, — , 
Kearley v. Tyler, 
Keena, R. v., 
Keighly v. Bell, 
Keir v. Leeman, 
Keith, R. v., 
Kellelier, — 
Kelly, — 



Kemp V. Neville 
Kennett, R. v., 
Kenny. — 
Kenrick, — 
Kerr, — 

Ktrrisran, — 

Ke.ssal, — 

Kew, — 

Key, _ 

Kfvn, — 

Kilham, — 

KuiiIht, — 



Jones, R. v., 



.*. _ 



V. R., 

Jordan, R. v., 



Jordin v. Cnimp 
Joyce, R. v., 
Judah, — . 



Justices, The, R, v., 



TABLE OF CASES CITED. 



2 Moo. 2«)3 . 
4 B. & Ad. 345 
2 Camp. 131 

2 Moo. 04 . 
1 Leach, 452 
14 Cox, 3 . 
2Rus8. 3(54 . 
14 Cox, 528 . 

3 L. N. 309 . 
9 C. & P. 118 
Warb. Lead. Cas 

7 C. & P. 432 

8 M. & W. 782 
L. & C. 576 

7 L. N. 38.-) 

8 L. N. 124 

18 Cox, 143, 196 



Ixix 

PAOE. 

562, 572 

. 597 

087, 692 

691 

755 

827 

836, 

903 

790 

8 

28 

457 

244 

519 

413 

413 

904 



Kain, R. v., 


8 C. & P. 187 


. 454 


• • 


15 Cox, .388 . 


. 758 


Kay, — . . 


16 Cox, 292. 


. 282 


— . 


11 Cox, 52t> ; L. R. 1 C. C. 1 


El. 257 . 524 


Kaylor, — 


1 Dor. Q. B. R. 364 . 


. 290 


Kealey, — . 


2 Den. 68 . 


. 682 


Keary, — . . . . 


14 Cox, 143 . 


. 862 


Kearley v. Tylor, . 


17 Cox, 328 . 


12 


Keena, R. v., 


11 Cox, 123 . 


. 360 


Keighly v. Bell, . 


4 F. & F. 763 


22 


Keir v. Leeman, . 


9 Q. B. 371 . 


. 104 


Keith, R. v.. , 


Dears. 486 . 


. 526 


Kelleher, — 


14 Cox, 48 . . 


. 413 


Kelly, - . : 


R. & R. 421 


31 


— . 


2 C. & K. 379 . 


32 


— 


6 U. C. C. P. 372 


.55 


Keuip V. Neville 


10 C. B. N, S. 523 


. 623 


Kennett, R. v., . 


5C. &P. 282 


56 


Kenny. — 


13 Cox, 397 


. 318 


Kenrick, — 


D. & M. 208 


, 406 


Kerr, — 


26 V. C. C. P. 214 


615, 860, 871 


— 


3 L. N. 299 


. 785 


Kt'rrigan, — 


L. & C. 383 


. 412 


Kessal, — 


1 C. & P. 437 


. 185 


Kew, — 


12 Cox, 355 


. 193 


Key, — 


2 Den. 347 


. 717, 779 


Ktvn, — 


13 Cox, 403 


606, 609, 779 


Kilhaiji, — . . 


11 Cox, 561 


406, 408 


KiiulHT, — 


3 Cox, 223 


. 981 



Ixx 



TABLE OF CASES CITED. 







PAGE. 


King, R. v., 


18 0.R. 5f)6 


. 12, 236 


, 


R. & R. 332 ... 


. 31 


, 


1 Cox, 3fi . 


. 106 


_ , 


12 Co.x, 73 ... 


. 368 


, 


7Q. B. 782 


. 498, m 


■ — 


2 Chit, Rep. 217 


. 742 


— V. Poe, 


30J.P. 178 


. 622 


Kingston, R. v. 


8 East 41 


. 692, 693 


Kinloch's Case, . 


Post. 16 . . . . 


755, 790 


Kinnear, R. v., 


2M. &Rob. 117 


. 516 


— ; 


2 B, & Aid. 462 . . 


. 787 


Kinsman, — 


James (N. S.) 62 


. 606 


Kipps, — 


4 Cox, 167 


. 294 


Kirkham, — 


8 C. & P. 115 


. 184 


— 


2 Starkie Ev, 279 . . 


. 459 


Kirkwood, — 


1 Moo. 304 .... 


. .32 


Kitson, — 


Dears. 187 ... 


. mo 


Kneeshaw v. Collier, . 


30 U. C. C. P. 265 . 


. 104 


Knewland, R, v., 


2 L(;ach, 721 .. . 


438, 860 


Knight, — 


12 Cox, 102 ... 


. 331 


— 


L. & C. 378 


. 717 


— . 


14 Cox, 31 .... 


. 8.54 


Knock, — 


14 Cox, 1 


. 23 


Kno widen v. R., 


9 Cox, 483 ; 5 B. & S. 532 . 613, 731, 732 


Kolligs, In re, . 


6 R. L. 213 


. 619 



Labonchere, R. v.. 


W Cox, 419 ... 


, 303 


Labrie, — 


M. L. R. 7 Q. B. 211 


. 288 


Lackey, — 


IP. &B. (X. B.)194 


. 237 


Lalanne, — 


3 L. N. 10 


. S70 


Laliberte, — 


. . 1 S. C. R. 117 . . . . 


•. 271 


Lambert, — 


2 Cox, 309 . ... 


, 367 


Lamere, — 


8 L. C. J. 281 . ... 


, 767, 792 


Lamirande, ex parte, . 


10 L. C. .J. 280 


. 508 


Lancaster, R. v.. 


16 Cox, 7.S7 


82 


Lane v. Bennett, 


1 M. & W. 70 . . . 


605, 633 


Langford, R. v., 


Car. k M. 602 


. 58 


Langhurst, — 


10 Cox, 3.-)3 . . . . 


. 713 


Langmead, — 


L. & C. 427 ... 


352, 820 


Langton, — 


13 Cox, 345 ... 


. 413 


Lantz, — 


. 19 N. S. Rep. 1 


. 256 


Lapier's Case, 


1 Leach, 320 .. . 


. 436 


Laprise, R. v 


3 L. .-;. 139 


. 119 


Lara, — ... 


2 East P. C. 81<) 


, 431 


Larkin, — . ,. . 


Dears, 365 ... 8 


10, 857, fe70 


Lat"^ 1, — 


9 Cox, 516 


. 694 


Latin? r, — . . , 


16 Cox, 70 ; 17 (I B. D. 369 233, 


234,238,-578 



Laurier, R. v,, 
Lavallee, — 
Lawes, — 
Lawrence, — 
Laws V, Eltringl 
Lea, R. v,, 

■ V. Charrini 

Le Dante, R. v 
Ledbitter, — 

Ledger, 
Ledwith v. Catch 
Leech, R, v,, 
Leete v. Hart, . 
Lefrcy, R. v,, 
Lee, . — 



Lees, — 

Leigh, — 

Leniott's Case, 
Lennard, R. v., 
Leonard, — 



Levasseur, — 

Levecque, — 
Levinger, 

Lewis, — 



Leynian v, Latimer 
Lincv, R, V,, 
Light, — 
Liii!?. — 
Liiicisay v, Cundy 
Lister, R. V,, 

Lithgo, — 

Little, _ 

Littlechild, — 
Living.stone v, Massi 
I-loyd, R, v., 



Laurier, R. v., 
Lavallee, — 
Lawes, — 
Lawrence, — 
Laws V. Eltringham 
Lea, R. v., 

V. Charriugton 

Le Dante, R. v., 
Ledbitter, — 

Ledger, — 

Ledwith v, Catchpoles, 
Leech, R. v., 
Leete v. Hart, . . 
Lefrcy, R. v., 
Lee, . — . 



Lees, — 

Leigh, — 
Leniott's Case, 

Lennard, R. v. 

Leonard, — 

Levasseur, — 

Levecque, — 
Levinger, 

Lewis, — 



Leynian v. Latimer, 
Lnicv, R. v.. 
Light, — 
Ling, — 
Lindsay v. Cundy 
Lister, R. v., 

Lithgo, — 

Little, — 

Littlechild, — 
Livingstone v. Massey, 
Lloyd, R. v., 



TABLE OF CASES CITED. 



11 R. L. 184 
10 R. L. 29!) 

1 C. & K. 02 . 
4 C. & P. 231 

15 Cox, 22 ; 8 Q. B. D. 283 

2 Moo. a ... 

16 Co.x, 704 ; 23 Q. B. D. 45 

2 G. & O. (N. S.) 401 

1 Moo. 76 

3 C. & K. 108 

2 F. .<: F. 857 
Cald. 2'Jl . 
Dears. 042 
37 L. J. C. P. 157 
L. R. 8 Q. B. 134 
Warb. Lead. Cas. 

4 F. & F. 03 
L. & C. 309 

8 Cox, 233 
12 Lewin, 154 
L. & C. 418 
1 Leach, 52 
Kel. 64 

1 Leach, 90 

2 Russ. 78 

3 L. X. 138 

9 L. N. 3S6 
30 U. C. Q. B. 509 

22 O. R. C90 

6 C. & P. 101 
2 C. & P. 628 
2 Russ. 841 
2 Russ. 10C7 
Dears, t B. 182 

14 Cox, 51 

12 Cox, 451 
Dears. & B. 332 

5 (l L. R. 3.59 ; 2 L. N. 410 

13 Cox, 583; 2 Q.B.D, 96; 3 App, 
Dears, k B. 209 

Dears. &B. 118 
R. & U. ;V)7 

15 Cox, 319 

L. R. il. B. 293 

23 U. C. (i. B. 156 . 

10 Cox, 235 ; 19 Q. B. D. 213 
2 East P. C. 1122 ... 

7 C. & P. 318 .. . 

19 O. R. 352 .... 



Ixj 



XI 



P.\OE. 
. 303 
. 418 
474, 486 
465, 472, 475 
. 578 
724, 726 
. 648 
. 236 
. 105 

. m 

. 192 
. 619 
. 627 
. 026 
. 624 
40 
170, 797 
. 400 
. 407 
. 808 
. 407 
. 391 
. 326 
. 546 
. 388 
. 709 
. 121 
. 141 
. 508 
. 215 
. 464 
. 505 
558, 578, 981 
606 
977 
409 
622 
854 
Cas. 459 904 
131, 133 
367 
481 
72, 807 
096 
602 
88 
223 
272 
274, 867 



k 



Ixxii 



TABLE OF CASES CITED. 







PAOK. 


■ ■ • 


Lock, R. v., 


12 Cox, 244 .... 


118, 261 


Margetts, R. 


Lockett, — 


7 C. & P. 300 


33 


Marks, 


Loom, — • 


1 Moo. 160 .... 


. 836 


Markuss, 


Lopez, — 


Dears. & B. 525 


. 609 


Marriott, 


Lord Mayor, — 


16 Cox,' 81 ; 16 Q. B. D. 772 


. 304 


Marsden, 


1 — . 


. 16 Cox, 77 .... 


. 730 




Sanchar, — 


9 Cox, 189 .... 


39 


Marsh, — 


Lovel, — 


2 M. & Rob. 39 ... 


. 44 




Lovell, — < 


8Q. B. D. 185 


. 325 


Marshall, — 


tm— •m 


2 M. & Rob. 236 ... 


. 361 




Lovelass, — 


6C. &R596 


. 71 


Martin, — 


Lovett, — 


9 C. & P. 462 . 


. 757 





Lowe V. Routledge, 


1 Ch. App. 47 ; L. R. 3 H. L. IOC 


. 611 





Low's Case, 


4 Me. 437 .... 


. 734 





Lows V. Telford, 


13 Cox, 226 .... 


26,60 


■— 


Luck, E. v., 


3 F. & F. 483 . 


. 34 


■■ , , 


Luniley. — 


11 Cox, 274 .... 


. 283 




Lynch, — 


. 5C. &P. 324 . 


. 184 


~" — 


— 


20 L. C. J. 187 . 703, 728, 853, 855 | 


— — — ^^ 


Lynn, — 


L Leach, 497 


. 139 


_^ 


Lyon, — 


R. & R. 255 


. 502 




Lyons, — 


1 Leach, 185 .. . 


. 458 


— 


Macarthy, R. v., 


M. 
Car. &M. 625 .... 


. 713 


_ 


Macauley, — 


1 Leach, 287 .... 


. 436 





Macdaniel, — 


1 Leach, 44 ... 


. 173 


Masters, — 


Macdonald, — 


L. &C. 85 


. 361 


Mason, — 


MacintoFb, — 


2 Leach, 883 .. . 


. 502 


— . 


Mackenzie, 


2 Man. L. R. 168 


. 142 


_ 


Mackerel, — 


4 C. & P. 448 . 


. 577 


, 


Macklin, — 


5 Cox, 216 


.- 903 


, 


Mi\cleod, — 


12 Cox, 534 


196, 197 


, 


V. Atty.-Gen. 


N.S.\V. 17 Cox, 341 ; (1891) A. C. 455 


280, 611, 


.__ 






728, 730 


Matthews, — 


Madox, R, v.. 


R. &R. 92 


. 392 


V. Bidd 


Mttguire, — 


13 Q. L. R. 99 . . 303, 7 


71, 772, 786 


Maxwell, R. v., 


Maher, — 


7L. N. 82 


149 


May, — 


Mailloux, — 


3 Pugs. (N. B. 493) . 


11,55 




Maloney, — 


9 Cox, 6 


. 771 


Mayers, — 


Mankeltow, — 


Dears. 159 ... 


. 293 


Mayhew, v. Lock, 


Manners, — 


7C. &P. 801 . 


32 


Mayle, R. v., 


Manninjf, — 


Warb. Lead. Caa. 7 . 


. 28 


Maynard, R. v., 


— 


2C. &K. 903(n) 


41 


Mayor of St. John, 


— 


12 Q. B. D. 241 


. 598 


Mazagora, R. v., . 


Mansell v, R., 


Dears. & B. 375 


. 785, 849 


Mazeau, — 


Mansfield, R. v.. 


Car. & M. 140 . 


. 351 


Meade's case, 


Marcus, — 


2C. &K. 356 . 


. 4!»7 





#^^1 



TABLE OF CASES CITED. 



Ixxiii 













FAOE. 


Margetts, R. v., . 


2 Leach, 930 458 


Marks, — . . . 


10 Cox, 367 




. 683, 843 


MarkusB, — 


4 F. & F. 336 . 








. 197 


Marriott, — . . . 


8 C. & P. 425 . 








143, 198 


Marsden, — . . . 


11 Cox, 90 








. 236 


— . . . 


17 Cox, 297 








. 274 


Marsh, — . Ht . 


1 Den. 505 








43, 405 


— . . . 


6 A. & E. 236 








734, 849 


Marshall, — . . . 


11 Cox, 490 








362, 363 


— . . . 


R. &. R. 75 








. 502 


Martin, — 


9 C. & P. 213, 215 






. 43 


— 


21 L. C. J. 156 






88 


— 


2 Moo. 123 






118, 817 


— . . . 


5 C. & P. 128 








158, 209 


— 


3C.&P. 211 








. 188 


— 


11 Cox, 136 








. 189 


— 


14 Cox, 663 ; 8 Q 


. B. I 


X 54 




207, 237 


— 


6 C. & P. .'562 








. 271 


— . . 


11 Cox, 343 






. 3 


79, 555, 699 


— 


10 Cox, 383 








. 401 


— 


R. & R. 108 








. 458 


— 


14 Cox, 375 








. 502 


— 


R. & R. 324 








. 538 


— 


16 Q. L. R. 281 








. 750 


— • . 


12 Cox, 204 
8A. &E. 481 








. 829 
. 857 


— 


1 Den. 398 ; 3 Cox, 44 






. 867 


Masters, — . , 


50 J. P. 104 






. 764 


Mason, — 


17 U. C. C. P. 534 






. 104 


— 


1 East P. C. 239 






. 163 


— 


. 22 U. C. C. P. 246 




m,3 


96, 706, 709 


— 


2 T. R. 581 






. 400 


— 


R. & R. 419 






, 436 


— 


24 U. C. C. P. 58 






. 450 


— 


2 C. & K. 622 . 






. 530 


Matthews, — 


14 Cox, 5 






. 572 


V. Biddulph, 


4 Scott, N. R. 54 






. 622 


Maxwell, R. v., , 


10 L. C. R. 45 . 






. 714, 756 


May, — 


16 L. T. 362 






. 232 


— 


L. & C. 13 






. 362 


Mayers, — 


12 Cox, 311 






. 270, 817 


Mayhew, v. Lock, 


2Mar8h. 377;7Taun. 


63 




. 624 


Mayle, R. v., 


11 Cox, 150 






. 362 


Maynard, R. v., 


R. & R. 240 






. 746 


Mayor of St. John, R. v., 


Chip. Mss. 155 






. . 131 


Mazagora, R. v., . 


R. & R. 291 






. 500 


Mazeau, — 


9 C. & P. 676 . 






. 509 


Meade's case. 


1 Lewin. 184 


« 






. 204 



s 



'fill; 



Ixxiv 



TABLE OF CASES CITED. 









PAGE. 


Meakin, R. v., . . . . 


11 Cox, 270 


. 404 


Meany, — . . . • 


L. & C. 213 




. 770 


Mears, — . . . 


2 Den. 7'J 




. 129 


Medley, — 


i; C. & P. 292 . 




. 131 


Meere'H case, 


2 Russ. 519 




. 370 


Mehegan, R. v., . 


7 Cox, 1-15 




. 253 


Mellish, — 


R. & R. 80 


4 


. 358, 361 


Mellor, - . . 


Dears. & B. 468, 494 




779, 785, 868, 872 


Mercier, — , . . 


(,>. R. 1 Q. B. 541 




. 752 


■' -^— —' a a 


1 Leach, 183 




. 753 


Merriman v. Hundred of C 


lip- 






penham, 


2 East P. C. 709 




. 439 


Micliiit'l, R. v., . 


2 Moo. 120 




30, 174, 215 


Middleton, — . . . 


12 Cox, 200, 417 . 




. 307, 329 


Middlehnrst, R. v., 


I Burr. 400 




. 819 


Mij,'otti V. Colville, 


14 Cox, 203, 305 ; 4 C. 


P..D 


. 233 . 965 


Miles, R. v., . 


17Cox, 9;24Q.B.D. 


423 


239, 266, 718, 977 


Millhouse, R. v., 


ISCu.v, 022 




. 764 


Milford, — . . 


20 0. R. 306 




. 433 


Miller, — 


13 Cox, 179 




. 294 


— . . 


2 :^Ioo. 249 




. 365 


:\Iilloy, - . . 


L. N. 95 




. 798 


Mills, - . 


Dear.s. & B. 205 




. 401, 404 


Mitchell, — 


17 Cox, 503 




. 201 


— 


2 Den. 4(58 




. 446 


— . . 


2 Q. B. 030 


. 


. (>27 


— 


3 Cox, 93, 




. 752, 852 


V. Defries, 


2 U. C. Q. B. 430 . 




. 27 


Moah, R. v.. 


Dears. 020 




. 367 


Mocl>' rd, R. v„ . . 


11 Cox, 16 . . , 




. 333 


Moffat, — 


1 Leach, 431 




. 502 


Moffatt V. Barnard, . 


24 U. C. Q. B. 498 




. 9S1 


Mogg, R. V 


4 C. & P. 364 . 




. 576 


Mogul S. S. Co, V. McGrego 


r, 23 Q. B. D. 598 . 




. 241, 597 


Moir, R. v.. 


Ro.scoe, Cr. Ev. 714 




25, 240 


Moland, R, v., . . . 


2 Moo. 276 




38, 412 


Mole, — 


1 C. & K. 417 




. 332 


Monaghan, — 


11 Cox, eo8 




. 248 


Mondelet, — 


21 L. C. J. 154 . 




. 293 


Moukninn, — 


8 Man. L. R. 509 




16, 257 


Moody, — ... 


L. & C. 173 




. 345, .520 


Moore, — 


1 Leach, 314 




. S3 


— ... 


3 B. & C. 184 . 




. 1.31 


— ... 


13 Cox, 544 




. 2S6 


— . . 


L. & C. 1 




. 329 


— ■ , • . . 


1 Leach, 335 




. 430 


-^ . . . . 


2 Dor. Q. B. R. 52 




. 010 


Moi'sey, 


11 Cox, 143 




510, ,-.17 


Morby, . . . 


Warb. Lead. Cas. 115 




, 143 



Morby, R. v., 
Morfit, — 
Morgan, — 
Morin, v. R. 
Morris, R. v., 



V, Wis 

Morrison, R. \ 

Mortin v. Sho 
Morton, R. v. 
Moss, — 
Most, — 
Mountford, R. 
Mucklow, 
Miilcahy, v. 
Mullholland.R 
Muller, 
Munday, 
Murphy, 



V. Ei 
Murrow, R. v 
Murry, — 
Mussett, — 
Mutterx, — 

Mycock, — 

MacDaniel's C 

MacFarlane v 

MacGrath, R. 

MiicKenzie, 

McAthey, 

McConohy, 

McCorkill, 

McDonagh, 

McDonald, 

McEneany, 
McFee, 






TABLE OF CASES CITED. 



Ixxv 









PAGB. 


Morby, R. v., 


15 Cox, 35 . . . 


. 199 


Morfit, — . . 


R. & R. :i07 


. 333, 339 


Morgan, — . . . 


14 Co.\, 337 .. . 


. 201 


Morin, v. R. 


16 Q. L. R. 366 ; 18 S. C. R 


407 785, 872 


Morris, R. v., 


10 Co.x, 480 


226, 267, 721 


— . . . . 


R. & R. 270 .. . 


. 320 


— 


il C. & P. 349 . 


. 323 


V. Wise, . 


2 F. & F. 51 . . . 


382, 621, 622 


Morrison, R. v., . 


Dell, 158 


. 519- 


— 


. 2P. &B. (N. B.)682 


. 710 


Mortin v. Shoppee, 


3 C;. & P. 373 . 


. 260 


Morton, R. v.. 


2 East P. C. 955 


. 394, 503 


Moss, — .... 


Dears. & B. 104 . 


. 430 


Most, — 


14 Co.x, 583 ; 7 Q. B. D. 244 


73, 225 


Mountford, R. v., 


1 Moo. 441 


. 222 


Mucklow, — . . 


1 Moo. IGO 


. 327 


Mulcahy, v. R. . . 


L. R. 3 H. L. 306 




47 


Mullholland.R. v., 


4P.&B. (X. B.)512 . 




. 824 


Muller, 


10 Cox, 43 




. 808 


Munday, — . ... 


2 Leacli, 850 




. 377 


Murphy, — . 


GC.&P.103 




. 35 


— ... 


6 C. & P. 103 




61 


— 


9 L. N. 95 




. 97 


— 


17 0. R. 201 




. 135 


— ; 


1 Cox, 108 




. 213 


— — — 


8C.&P.297 




256, 693 


— 


6 Cox, 340 




. 388 


— 


2 East P. C. 949 




. 515 


— 


2Q. L.R.3S3 . 




. 780 


— 


17<,».L.R. 305 . 




. 869 


V. Eills, 


2 Han. (X. B.) 347 




. 620 


Murrow, R. v. 


1 Moo. 456 




. 243 


Murry, — 


2 East P. C. 496 




. 459 


MiLssett, — 


26 L. T. 429 




. 5S6 


Mutters, — 


L. &C.491 




. 133 


— 


L. &C.511 




. 317 


Mycock, — 


12 Cox, 28 




. 294 


MacDaniel's Case 


Fost. 121 . 




. 98 


MacFarlane v. R., 


16 S. C. R. 393 . 




. 256 


MacGrath, R. v., 


11 Cox, 347 




. 438 


MacKenzie, — 


() 0. R. 165 


■ * 


. 677 


Mc.\they, — 


L. & C. 250 




. 351 


McConohy, — 


5 R. L. 74(5 




. 696 


McCorkill, — 


8 L. C. J. 283 




. 521 


McDonagh, — 


28 L. R. Ir. 204 . 




. 587 


McDonalti, — 


8 Man. L. R. 491 




. 454 


— 


10 O. K. 553 




. 579 


McEneany, — 


14 Cox, 87 . 




. 750 


McFee, ~ 


13 0. R. 8 . 




. 517 



1 :» 



! ; 



I 



Ixxvi 



TABLE OF CASES CITED. 

















rAOB. 


McGrath, R. v., . Warb. Lead. Cas. 140 .. . a25 


— 




14Ccx, 598 




. 56(> 


McGreeay, — 




17 Q. L. R. 196 . 


, 




. 597 


McGregor, — 




li B. & P. 106 ; R. & ] 


[1.23 




. 360 


McHolme, — 




8 Ont. P. R. 452 






. ♦•.19 


Mcintosh, — 




2 Cox, 379 . 






. 158 


_ 




2 East P. C. 942 






. 519 


Mclntyre, — 




2 P. E. I. Rep. 154 






. 905 


_ 




2 Cox, 379 






. 158 


McKale, — 




11 Cox, 32 . 






. 312 


_ 




2 East P. 0. 942 






. 519 


McKay, - 




2S N. B. Rep. 564 






. 123 


McKeever, — 




Ir. R, C. L. 86 






. 561 


McKenzie, — 




17 Cox, 542; (1892) 2 C 


I B. 


519 


. 593 


V. Gibson, 




8 U. C. Q. B. 100 






. 6l6 


McLaughlin, R. v., 


3 Allen (N.B.) 159 






. 981 


McLeod, — 




-. P. R. (Ont.) 181 






. 750 


McMahon, 




18 0. R. 502 






. 201 


McNamara, — 




20 0. R. 489 






. 126, 135 


McNaughten, — 




14 Cox, 576 






. 54 


McNevin, — 




2 R. L. 711 






. 508 


McPheraon, — 




Dears. & B. 197 . 




44. 385, 478. 812 


V. Daniels, 




10 B. & C. 272 . 






. 167 


MuQuame, R. v.. 




22U. C. Q. B.600 






. 413 


McQuiggan, — 




2 L. C. R. 346 . 






. 281, 286 


N. 
Napper, R. v., . 1 Moo. 44 672 


Nash, — 






2 Den. 493 . 






497, 499 


V. R., 






!) Cox, 424 . 






. 854 


Nasmith, R. v., 






42 U. C. Q. B. 242 








. 149 


Nattrass, ~ 






15 Cox, 73 . 








563 


Naylor, — 






1 Dor. Q. B. R. 364 . 








290 


— 






10 Cox, 149 








408 


Neale, - 






!» C. & P. 431 








57 


— 






1 Den. 36 . 








818 


Negus, — 






12 Cox, 492 








364 


Nelson, — 






1 0. R. .500 








799 


Nettleton, — 






1 Moo. 259 . 








365 


Neville, -^ 






« Cox, 69 . 








842 


Newboult, — 






12 Cox, 148 








!>60 


Newill, - 






1 Moo. 458 . 








562 


Newman, — 






Dears. 85 ; 1 E. & B. 26 


8 . 






301 


— 






2 Den. 390 . 








801 


Newton, — 






11 Ont. P. R. 101 






135, 142 


— 






1 C. & K. 469 






. 256 


— 






2 M. & Rob. 503 . 






1:82, 736 


— 






3 Cox. 492 . 








693 



Newton, R. v. 
Nichol, — 
Nicholas, — 
Nicholls, — 



Nisbett, 
Noake, 
Noakes, 
Noon, - 

Norris, 

North, 
Norton, 
Nott, 

Nugent, — 
Nunn, — 
Nutbrown's Cas 



Gates, R. ▼., 
O'Brien, — 

Ex parte 

O'Connell v. R., 
O'Connor, R, v., 
Oddy, 

O'Donnell, — 
Ogden, — 
O'Kelly V. Harv( 
Oldham, R. v., 
Olifier, — 
Oliver, — 

O'Neill, - 

V. Longma 

Orchard, R. v.. 
Organ, — 
Orman, — 
Orton, — 

O'Rourke, — 

Osborn, — 

V. Gillett, 



I 



TABLE OF CASES CITED. 



Ixxvii 

















HAGK. 


Newton, R. v 13 Q. B. 716 850 


Nichol, — 






R. & R. 130 




• 


. 262 


Nicholas, — 






1 Cox, 218 . 








474, 486 


Nicholls, — 






10 Cox, 170 








. 123 


— 






13 Cox, 75 . 








144, 199 


— 






1 F. & F. 51 








. 351 









1) C. & P. 267 








. 447 


_ 






2 Cox, 182 . 








. 818 


Nisbett, 






C. Cox, 320 . 








. 517 


Noake, — 






2 C. & K. 620 








. 359 


Noakes, — 






4 F. & F. 920 








. 197 


Noon, — 






6 Cox, 137 . 








. 162, 167 


Norris, — 






R. & R. 60 . 








. 377 








9 C. & P. 241 








. 573 


North, — 






8 Cox, 433 . 








. 314 


Norton, — 






16 Cox, 59 . 








. 410, 708 


Nott, — 






Car. & M. 288 ; 9 Cox, 


301 




. 103 


Nugent, — 






11 Cox, 64 . 






. 107 


Nunn, — 






10 P. R. (Out.) 395 






. 940 


Nutbrown's Case 






2 East P. C. 496 








. 459 



o. 



Gates, R. ▼., 


Dears. 459 . . . . 


. 407 


O'Brien, — 


5 Q. L. R. 161 . 


. 584 


— 


15 Cox, 29 . . . . 


. 720 


Ex parte 


15 Cox, 180 . . . 


73, 304 


O'Connell v. R., . 


11 CI. & F. 155, 234 . 


72, 691, 697 


O'Connor, R. v., . 


15 Cox, 3 . , . . 


. 430 


Oddy, - 


2 Den. 264 . 


351, r)05, 827 


O'Donnell, — 


7 Cox, 337 . . . . 


. 106 


Ogden, — 


6 C. & P. 681 


. 527 


O'Kelly V. Harvey, 


15 Cox, 435 


53 


Oldham, R. v., . 


2 Den. 472 . 


. 487 


Olifier, — 


10 Cox, 402 


. 294 


Oliver, — 


Bell, 287 


238, 254, 819 


— 


13Co.v, 588 


. 840, 854 


O'Neill, — 


. . 3 P. & B. (N.B.) 49 . 


. 265 


— 


. ' 11 R. L. 3;}4 


. 447, 824 


V. Lonfnnan, 


4 B. & S. 376 


. 594 


Orchard, R. v., . 


S C. & P. .-.Oo 


. 844 


Organ, — 


11 Ont. P. R. 497 


. 142 


Orman, — 


14 Cox, 381 


. 597 


Orton, — 


14 Cox, 226, 436, 546 . 


54, 966 


— 


Warb. Lead. Cas. 54 . 


. 61 


O'Rourke, — 


1 0. R. 464 


. 771 


— 


32U. C.C. P. 388 


. 871 


Osborn, — 


7C. &P. 799 


. 714 


v. Gillett, . 


L. R. 8Ex. 88 . 


. 602 



:i ! 



Ixxviii 



TABLE OF CASES CITED. 







P.\GE. 


Osmaji, R. v., 


15 Cox, 1 . . . 


. 201 


Ouellette, — 


7 R. L. 222 . 


. 708 


Oulaghan, — 


Jebb. 270 . 


. 8.50 


Overton, — ... 


Car. & M. 655 . 


. 869 


Owen, — 


Warb. Lead. Cas. 19 . 


. . . 7,8 


— 


1 Moo. 96 . . . 


. . 31 


— 


:2 Leach, 372 


. 386 


— 


•J C. & P. 83 


. 714 


. — 


1 Moo. 118 . 


. 836 


Owens, — 


1 Moo. 205 . 


. 576 


Oxford, — 


Warb. Lead. Cas. 21 . 


8 


Oxfordshire, R. v., 


1 B. & Ad. 289 . 


. 575 


Oxley.R. v., 


3 C. & K. 317 . 


89 


Packer, R. v., 


P. 

16 Cox, 57 


. 128 


Paddle, - - . • . 


R. & R. 484 


223 


Page, — 


8 C. & P. 122 . 


. 527, 553 


Pain V. Boughtwood, . 


16 Cox, 747 


. 295 


Paine, R. v.. 


7 C. & P. 135 . 


. 467 


Palliser, — . . 


4 L. C. J. 276 . 


. 422 


Palmer, — 


2 Leach, 978 


30 


- 


R. & R. 72 


. 504, 518 


Paquet, — 


2 L. N. 140 


. 708 


Parish, — 


7 C. & P. 782 


. 714 


Parker, — 


2 East P. C. 592 


. 377 


— 


2 Moo. 1 


. 402 


Parkin, — 


1 Moo. 45 


. 770 


Parkinson, — 


2 Den. 459 


. 872 


Parke's Case, 


2 Leach, 614 


. 314 


Parkins, R. v., 


1 C. & P. 548 


. 761 


Parnell, — 


14 Cox, 508 


. 597 


Parry, — 


7 C. & P. 836 


. 724 


Partridge, — 


7 C. & P. 551 


. 333 


Pascoe, — . , 


1 Den. 456 


. 106 


Passey, — 


7 C. & P. 282 . 


33 


Patent Eureka & Sanitary 






Manure Co. 


13 L. T. 365 


. 742 


Patience, R. v.. 


7 C. & P. 795 


. 186 


Patrick and Pepper, . 


1 Leach, 253 


. 684 


Patteson, * R. v.. 


36 U. C. Q. B. 129 


303, 786, 871 


Patterson, — 


27 U. C. Q. B. 142 


. 678 


Paiton, — 


13 L. C. R. 311 . 


. 131 


Patil, ■ — 


17 Cox. Ill ; 25 Q. B. D. 2( 


)2 . 796 


Paxton, — 


3 L. C. L. .T. 117 


. 308 


•^ — — . 


lOL. C. .J.213 


. 780 


— 


2 L. C. L. J. 162 


. 867 


Payne, — 


L. R. 1 C. C. R. 27 


. 110 



Payne, .R. \ 
Pear , 
Pearce, 

Pearson, 

Peat, 

Peck, 

Pedley, 

Pelfryman,. — 

Pelham, — 

Pelletier, — 

Peltier, 
Pembliton, — 
Peopl^, The, v, i 

. . V. i 

v.] 

v.{ 

Perham, In re, 
Perkins, R. v. 

Perrott, 
Perry, 



V. Wat 

Petrie, R. v., 



Phelps, 



Philips, 
Philipps, 

Phillips, 



Phillpot, 

Philp, 

Philpotts, 

Phipoe, 

Piche, 

Pickford, 

Pickup, 

Pierce, 






TABLE OF CASES CITED. 



Payne, 


.R. v., 


12 Cox. 118 


Pear . 


— _ . . 


1 Leach 212 


Pearce, 


— , 


2 East P. C. 603 





— 


R. & R. 174 . 


Pearson, 


— 


11 Cox, 493 


Peat, 


— 


1 Leach, 228 


Peck, 


— 


2 Russ. 449 




— 


9 A. & E. 686 . 


Pedley, 


— 


1 Leach, 325 


Pelfryman, 


— 


2 Leach, 563 


Pelham, 


— . 


8 Q. B. 959 


Pelletier, 


— 


1 R. L. 565 




— 


15 L. C. J. 146 


Peltier, 


— 


28 St. Tr. 529 


Pembliton, 


— 


12 Cox, 607 


Peoplp, Thi 


B, V. Alper 


1 Parker, 333 




V. Mosher 


2 Parker, 195 




V. Murray 


14 Cal. 159 




V. Santvoi 


jrd . 9 Co wen, 655 


Perham, In 


t re, . 


5 H. & N. 30 


Perkins, 


R.Y., 


4 C. & P. 537 
2 Den. 459 


Perrott, 


— 


2 M, & S. 379 


Perry, 


— 


Dears. 471 




— 


15 Cox, 169 




— 


10 R. L. 65 


> 


r. Watts 


3 M. & G. 775 . 


Petrie, 


R.V., 


1 Leach, 294 





— 


20 0. R. 317 


Phelps, 


— 


Car. & M. 180 


~-.m 


_ 


2 Moo. 240 




— 


1 Russ. 781 


Philips, 


— 


8 C. & P. 736 . 


Philipps, 


— 


6 East, 463 




— 


2 East P. C. 662 


Phillips, 


— 


2 Moo. 252 





— 


1 Lewin, 105 




— 


R. &R. 369 





— 


. . . 11 Cox, 142 




— : 


3 Cox, 226 


Phillpot, 


— 


Dears. 179 


Philp, 


— 


1 Moo. 2.-3 


Philpotts, 


— 


1 C. & K. 112 . 


Phipoe, 


— 


2 Leach. 673 


Piche, 


— 


30 U. C. C. P., 409 


Pickford, 


— 


4C. &P. 237 . 


Pickup, 


— 


10 L. C. J. 310 . 


Pierce, 


— 


13 0. R. 226 


— 


— 


6 Cox, 117 



Ixxix 

PAGE. 

. 097 
308,374 
309, 372 
383, 476, 677 
. 267 
. 4.35 
. 367 

498, 590 
. 88 
. 859 
. 144 
. 97 
. 709 
73 
. 578 
. 124 
. 288 
. 119 
. 615 
. 594 
35,61 
. 350 
. 413 

230, 826 
. 298 
. 352 
. 837 
. 385 

789, 829 
17, 622 

820, 822 

. 825 

8 

". 61 

337, 374 
. 58 
. 505 
. 615 
. 789 
. 824 

149, 150 

559, 562 

402, 408 

394,448 
. 232 
. 450 
. 415 

286, 287 
. 628 



k\1s 



1:. 



''■fr: 




{ u. 



Ixxx 



TABLE OF CASES CITED. 



Pierce, R. v., 


16 Cox, 213 




Bell, 235 


Pigott, — 


11 Cox, 44 


Pike, - 


1 Leach, 317 


Pinkney, — 


2 East P. C. 818 


Pinney, — 


5 C. & P. 254 


. 


3 B. & Ad. 947 


Piot, Ex parte, . 


15 Cox, 208 


Pitman, R. v.. 


2 C. & P. 423 . 


Pitts, — 


Car. & M. 284 


Plante, — 


7 Man, L. R. 537 


Plummer, — 


Kel. 109 . 


Pooock, — 


17 Q. B. 34 


Pointon v. Hill, 


12 Q. B. D. 306 


Pool, R. v.. 


9 C. & P. 728 


Poole, — 


Dears. & B. 345 


Pope, — 


6 C. & P. 346 


Pipplewell, — 


20 0. R. 303 


Potter, — 


2 Den. 235 


Poulton, — 


5 C. & P. 329 . 


Power V, Canniflf 


1.3 U. C. Q. B. 403 


Powles, R. v., 


4 C. & P. 571 . 


Powner, — 


12 Cox, 235 


Poynton, — 


L. & C. 247 


Pratt, 


1 Moo. 250 


— 


8 Cox, 334 


Preedy, — 


17 Cox, 433 


Pressy, — 


10 Cox, 035 


Prestney, — 


3 Cox, 505 


Preston, — 


2 Den. 353 


Price, — 


7 C. & P. 178 


■ — 


12 Q, B. D. 247 


— . 


8 C. & P. 19 


— 


9 C. & P. 729 . 


V. Seeley 


10 CI, & F. 28 . 


Prince, R. v., 


13 Cox, 138 





11 Cox, 193 


Pritchard, ~ 


L. & C. 34 ; 8 Cox, 461 





7 C. & P. 303 . 


Privett, — 


1 Den, 193 


Proud, — 


L. & C, 97 ; 9 Cox, 22 


Provost, 


M-, L. R. 1 Q. B. 473 


Prowes, — 


1 Moo. 349 


Pruntney, 


16 Cox, 344 


Puddick, — 


4 F, & F, 497 


Puddifoot, — 


1 'loo, 247 


Pulbrook, — 


9 C. & P, 37 


Pulhatn, — 


9 C, & P. 280 . 


Purchase, — 


Car. & M, 017 



PAOB, 

, 675 
. 902 
. 73 
. 391 
. 431 
. 22 
56,83 
. 344 
. 373 
. 172 
, 872 
33,34 
. 192 
. 142 
. 820 
. 382 
. 332 
. 454 
. 477 
173, 205 
. 189 
. 214 
500,531 
. 372 
. 311 
. 407 
. 134 
. 130 
. 586 
, 332 
. 26 
, 139 
. 553 
. 561 
21, 622 
11, 128, 294 
. 313 

683, 841, 843 
. 754 
. 333 
. 365 

447, 771, 871 
. 396 
796, 797 
274, 760 
. 836 
. 520 
39, 601 
. 359 



Purwood, R. V. 
Pym, _ 



Queen, Tlie, v. I 
Queen's Case 
Quinn, R. v., 



Radboume, A. v 
Radcliffe, 

Radford. — 

Rae, 

Rafferty v. The P 
Ragg, R. v., 
Ramsay, — 
Ransford, — 
Ratcliffe, — 

Rawlins, — 

Ray, 

Rea, — 

Read, — 

Read V. Coker, 
Reane, R. v., 
Reardon, — 
Redford, — 
Redman, — 
Rcece, — 
Reed, — 



Reed V, Nutt, 
Rfid, R. v., 
Repnier, — 
Remon, — 
Rhodes. — 
Rioe, R. V, 



Richards, — 

Rieliardson, R. v. 

Crim. Law— f 



Purwood, R. V. 
Pym, — 



Queen, The, v. Bozan 
Queen's Case 
Quinn, R. v.. 



TABLE OF CASES CITED. 



3 A. & E. 816 

1 Cox, 339 

Q. 

2 Mauritius Decisions, 35 
2 Brod. & B. 288 

1 R. & G. (N. S.) 139 



Ixxxi 

FAOK. 

. 133 
158, 2]0< 



. 721 

807, 80» 

. 7ia 




Radboume, ii. v., 
Radcliffe, — 

Radford. — 

Rae, — 

Rafferty v. The People, 
Ragg, R. v., 
Ramsay, — 
Ransford, — 
Ratcliflfe, — 

Rawlins, — 

Ray, - 

Rea, — 

Read, — 

Read v. Coker, 
Reane, R. v., 
Reardon, — 
Radford, — 
Redman, — 
Reece, — 
Reed, — 



Reed v. Nutt, 
Reid, R. v., 
Regnier, — 
Remon, — 
Rliodes, — 
Kice, R. V, 



Richards, — 

Ricliardson, R. v. 

Cbim. Law — f 



R. 

1 Leaoh, 457 
12 Cox, 471 
Fost. 36, 40 

1 Den. 59 

11 Cox. 554 

12 Cox, 617 
Bell, 214 . 
15 Cox, 231 

13 Cox, 9 
15 Cox, 127 
Fost. 40 

2 East P. C. 617 
7 C. & P. 150 
20 O. R. 212 

12 Cox, 190 

1 Den. 377 

13 C. B. 850 

2 East P. C. 734 
L. R. 1 C. C. R. 31 

11 Cox,. 367 
10 Cox, 159 
2 Rnss. 254 
Car. & M. 308 . 

12 Cox, 1 . 
2 Moo. 62 
17 Cox, 86 ; 24 Q. B. D 

2 Den. 88 
Ramsay's App. Cas. 188 
16 O. R. 560 

22 O. R. 480 

3 East, 581 

10 Cox, 155 ; L. R. 1 C 
Bell, 87 

13 Cox, 611 

11 Cox, 43 
1 M. & Rob 
6 C. & P. 366 
8 O. R. 651 



177 



669 



C. R, 



21 



. 797 
. 411 

. 754 
. 504 
. 324 
. 177 
. 407 

73,304 

599, 817 
. 275 
. 780 
. 374 
. 460 
. 282 
. 282 
260, 269, 275 
. 260 
. 437 
. 349 
. 36ti 
. 454 
. 377 
11 

121, 141 
. 519^ 
. 266. 
. 821 
. 708 
. 141 

508, 795 
61 

135, 142 

. 377 

42, 601 

452, 454 
. 672 
. 361 
. 872 



J ii 



U:'' 



I *; 



l&x;xii 



TABLE OF OASES CmBD. 







PAGE. 


Richmond, R. v*, 


. 10. &K. 240 . 


. 548 


Ridet, — 


8 0. & P. 539 . 


. 764 


Ridgeley, — 


1 East P. 0. 171 


. 547 


Ridffway, — 


3 F. & F. 838 . 


. 407 


Riel, — 


2 Man. L. R. 321 


. 201 


Riel, V. R., 


16 Cox, 48 ; 10 App. Cfts. 675 


. 47 


Riley, R. v. . 


16 Cox, 191 ; 18 Q. B. D. 481 


. 271, 273 




6Cox, 88; Dears. 149 


. 315 


Rinaldi, — 


L. &C. 330 


. 626 


Ring, — 


17 Cox, 491 


42, 44, 814 


Ritchie, — 


1 U. 0. L. J. (N. S.) 272 . 


. 957 


Hitson, — 


11 Oox, 352 .. . 


. 492 


Roadley, — 


14 Cox, 463 


. 276 


Roberts, — 


Dears. 539 ... 


43, 547 


— 


14 Cox, 101 


88, 356 


. . 


3 Cox, 74 ... 


. 351 


— 


2 East P. C. 487 


. 464 


— 


2 East P. C. 956 


. 503 


■ 


12 Cox, 574 ... 


899, 901 


V. Orchard, 


2H.& 0.769 . 


. 621 


Robertson, R. v.. 


L. & 0. 483 


. 4.51 


Robins, — . . . 


1 0. & K. 456 . 


. 293 


■ 


1 Leach, 290 .. . 


. 436 


Robinson, — 


Bell, 34 .... 


. 338 


- 


R. & R. 321 


383, 476 


" 


9 L. 0. R. 278 . 


. 414 




2 Leach, 749 


. 44!) 




2 M. & Rob. 14 . . . 


. 453 


■ 


1 Moo. 327 . . . . 


. 465 


.... 


10 Cox, 107 . . . . 


. 543 




L. & 0. 604 . . - . 


. 554 


•■ 


2 Burr. 800 . . . . 


. 960 


Robshaw v. Smith, 


38 L. T. N. S.424 


. 298 


Robson, R. v., . 


L. & 0. 93 


. 320 




Warb. Lead. Cas. 139 


. 345 


Roche, — . . . 


1 Leach, 134 . . . . 


717, 718 


Roden, — . . . 


12 Cox, 630 . . . . 


. 175 


Roderick, — . . . 


7 0. & P. 795 . . . . 


. 817 


Roe, — . . . 


11 Cox, 554 . . . . 


. 324 


Roebuck, — . . . 


Dears. & B. 24 . 43, 3£ 


18, 401, 815 


Roffers, — . . . 


14 Cox, 22 


. m- 


:! — , . . 


1 Leach, 89 . . . . 


. 461 




9 0. & P. 41 


. 51!) 


— . , . 


2 Moo. m .... 


. 54H 


•r^ - — . . . 


2 B. 0. L. R. 119 


. 764 


Roigier, — . . . 


ID. &E. 284 . . . . 


. 135 


- — — . . . 


2 D. & R. 431 . 


. 430 


Rolfe, — . . . 


Fost. 2«56 


. 974 


Hose, — . . . 


15 Oox, 640 . . . . 


22 



Ryley V. Brown, 
Rymal, R. v., 
Rymes, — 



TABLE OF CASES CITED. 



Ixxxiii 







PAGE. 


E jse Milne, R v. 


4 P. & B. (N. B.), 394 


. 776 


Rosenberf^, — 


IC. &K. 233 


. 318 


Rosinski, — 


1 Moo. 19 


. 262 


R088, — 


M.L.R.1Q.B.2£7;28L.C. 


J. 261 97, 871 


Rosser, — 


7C. &P. 648 


387, 789, 791 


Rothwell, — 


12 Cox. 147 


. 165 


Rouleau, — 


. . 16 Q. L. R. :*W . 


. 776 


Rowed, — 


3Q. B. 180 


. 121 


Rowlands, ■ — 


2 Den. 364 


594, 596, 851 


Rowley, — 


Archbold, 632 


. 165 


— 


R. & R. 110 


. 523 


Rowton, — 


L. & C. 520 


. ^<66 


Roxburgh, — 


12 Cox, 8 . 


. 236 


Roy, - 


IIL. C. J. 89 


430, 597 


Ruck, — 


1 Russ. 757 (n) . 


. 609 


Ruckmaboye v. 


Lulloobhoy 




Mottichund 


8M00. P. C. 4 . 


. 633 


Rudge, R. v., 


13 Cox, 17 


345, 398, 820 


Riidland, — 


4 F. & F. 495 , 


. 273, 274 


RugST, — 


12 Cox, 16 


. 148 


Russell, — 


1 Moo. 356 33, ! 


J26, 228, 840, 851 


— 


1 Moo. 377 


. 465, 472 


— 


Car. & M. 247 


. 734 


— 


Ramsay's App. Cas. 199 


. 750 


Russett, — 


17 Cox, 534 


. 312, 398 


Ryalls V. R., 


11 Q. B. 781, 795 


. 692 


Ryan, R. v.. 


2 M. & Rob. 213 


214, 221 


_ 


2 Moo. 15 . 


. 233. 705, 981 


Ryland, — 


L. R. 1 C. C. R. 99 


. 143, 708 


— 


11 Cox, 101 


. 275, 817 


Ryley v. Brown, 


17 Cox, 79 


. 718 


Ryraal, R. v., 


17 0. R. 227 


. 416 


Rymes, — 


3 C. & K. 326 


. 840 



:i| 



:iS 



ns 



! 1 



■HI 



■hi 



''i 



'» 



S. 



S. V. S., . . . . 


16 Cox, 566 


. 602 


Sainsbury, R. v.. 


4T. R. 451 


. 530 


Sainsbury v. Matthews, 


4 M. & W. 343 . 


. 838 


Salmon, R. v., . 


14 Cox, 494 


. 149, 199 


Salvi, — 


10 Cox, 481 (n) . 


. 170, 721 


Samuels, — 


16 R. L. 576 


. 697 


Sanders, — 


9C. &P. 79 


. 477 


Sandoval, — 


Warb. Lead Gas. 43 . 


. 52 


Sansome, — 


1 Den. 545 


. 981 


Satchwell, — 


12 Cox, 449 


. 662 


Sattler, — . . . 


Dears & B. 525 . 


. 609 


Saunders, — 


Plowd.475 


. 37 


— 


13 Cox, 116 


. 122, 141 



J i ,.1- 
■) I ■ 



I I 



■ii 



Ixxxiv 



TABLE OF CASES CITED. 











PAGE. 


.. .,.j .. 


Saunders, R. v., . 


7C. &P.277 198 


Shillito V. Th(»ni 




14 Cox, 180 






. 243 


Shimmin, R. v., 


— 


8 C. & P. 265 . 






. 261 


Shott, — 


Savage, — 


13 Cox, 178 






. 281, 282 


Shukawl, — 


— 


IC. &K. 75 






. 713 


Shunner, — 


Sawyer, — 


R. &R. 294 • 






. 611 


Shuttleworth, R. 


Scalbert, - 


2 Leach, 620 






. 789 




Schleter, — 


10 Cox, 409 






. 764 


SiU'aCase, . 


Schmidt, — 


Warb. Lead Cas. 180 






. 349 


Simmonsto, R. v., 


Schohl V. Kay, . 


5 Allan (N. B.), 244 






. 602 


Simons, — 


School, R. v., . 


26 U. C. Q. B. 212 






. 692 




Scott, — 


28 L. C. J. 264 . 






. 149 


Simpson, — 


-- 


R. & R. 13 






. 683 


w „_ 




1 Leach, 401 






. 716 


, • 


Scott V, R 


2 S. C. R. 349 ; 21 L. ( 


IJ.i 


225 


. 39-^ 


Sinclair's Case, 


Scott, ex ih: ri' , 


9 B. & C. 446 






. Gl'l 


Sirois, R, v.. 


Scully, E, V, . 


1 C. & P. 319 






. 204 


Skeen, — 


S3ari», — 


1 Leach, 415 






. 332 


Skeet, — 


Seh'y, — 


16 0. R. 255 






. 508 


Slack, — 


Selitiiv, -- 


6 L. N. 197 






. 303 


Sloane, — 


S()iis, 


7 C. & P. 850 






173, 200 


Slowly, — 


Selten, S. ... . 


11 Cox, 674 






. IC-O 


Small, — 


Selway, — 


8 Cox, 235 . 






. 443 


Smiley, — 


Semple, — 


1 Leach, 420 






309,859 


Smith, — 


Senecal, — 


8 L. C. J. 287 






841, 843 


__ 


Senior, — . . . 


1 Moo. 346 . 




1 


74, 197, 206 




Seme, — . . . 


16 Cox, 311 






. 211 




Serva, — . . . 


1 Den. 104 . 






. 606 





Sessinghurst-house Case, R. 1 


r., 1 Hale, 461 . 






. 33 




Seward, R. v., . 


1 A. & E. 706 






. rm 




Shannon, — . . . 


23 X. B. Rep. 1 . 






. 266 




Sharp, — . . . 


5 P. R. Ont. 135 . 






. 610 


' 


Sharpe, — . . . 


Dears. & B. 160 . 






. 139 





— . . . 


Dears. 415 . 






. 028 




-- . . . 


2 Lewin, 233 . . 






. 628 




Shaw, 


6 C. & P. 372 






. 172 




— . . . 


L. & C. 579 






. 809 





— . . . 


23 U. C. Q. B. 616 






. 981 


_^^ __, 


Sheen, — . . . 


2 C. & P. 63 1 






71. S 831 


_^,__ 


Shepherd, — . . . 


L. & C. 147 






. 143 


_ 


— . ■ . . 


11 Cox, 119 






. 37S 





Sheppard, — . . . 


K. & R. 16-i 






. 500 


__. 


— . . . . '. 


1 Leach, 22t . . 






. 519 




— . . . 


11 Cox, 302 






. 567 





Sliepperd, — . . . 


9 C. & P. 121 






. 311 


_ 


Sherlock, — . . . 


Warb. Lend. Cas. 53 . 






84 


__ 


Sherwooil, — . . . 


Dears, k B. 251 . 






. 407 




Sherwood's Caije, 


1 C. & K. 556 . 






. 166 





Shickle; R. v 


11 Cox, 189 






. 324 


1 



'■;n/ 



TABLE OF CASES CITED. 



Ixxxv 















PAGE. 


Shillito V. Thompson, . . 1 Q. B. D. 12 133 


Shimmin, R. v., . 




15 Cox, 122 






. 764 


Shott, — 




^ 8 C. & K. 206 






. 843 


Shnkard, — 




R. &R. 200 






. 504 


Shurmer, — 




16Cox, »4 . 






. 796 


Shuttleworth, R. v., 




82 U. C. Q. B. 372 






. 108 


— 




8 Den. 341 . . 






. 779 


Sill's Case, . 




Dears.. 132 . 






706, 857 


Simmunsto, R. v., 




1 0. * K. 164 






. 252 


Simons, — 




2 East P. C. 731 






. 437 


__ 






2 East P. C. 712 






. 440 


Simpson, — 






1 Lewin, 172 






. 196 


-■ — 






Dears. 421 . 






.. 384 


■ — 






5 Jur. 462 . 






. 745 


Sinclair's Case, 






2 Lewm, 49 






. 221 


Sirois, R. v., 






, 27 N. B. Rep. 610 






624, 852 


Skeen, — 






Bell, 97 






. 370 


Skeet, — 






4F. &F. 931 






34 


Slack, — 






M. L. R. 7 Q. B. 408 






. 366 


Sloane, — 






92 Au. Leg. 144 . 






. 146 


Slowly, — 






12 Cox, 269 






. 311 


Small, — 






8 C. & P. 46 






. 310 


Smiley, — 






22 0. R. 686 






. 1.S7 


Smith, — 






L. & C. 607 






. 143 


— 






8 C. & P. 160 






173, 203 


— 






11 Cox, 210 






181, 191 


-_ 






2 L. N. 223 






. 149 


— 






8 C. & P. 153 






. 198 


_ 






16 Cox, 170 






. 201 


— 






Dears. 55C . 
. Dears. 494 . 






. 217 
. 350 


_ 






R. & R. 267 






361, 367 


— 






R. &R.016 






. 364 


— 






1 Den. 510 . 






. 450, 869 


— 






R. & R. 417 






457, 467 


_ 






2 East P. C. 497 




' 


. 458 


_ — — 






1 M. & Rob. 256 . 






. 461 


— 






1 Moo. 178 . 






. 463 


— 






2 M. & Rob. 115 . 






. 477 


— 




I 


4P. R. (Ont), 215 






. 508 


_ — 






2 Moo. 295 . 






. 516 


— — — ■ 






1 Den. 79 . 

L. & 0. 168 






. 619 

. 520 









4 C. & P. 569 






5(>_', 573 









L. i C. 131 . 






. 615 


- 






34 U. C. <i. B. 552 






719, 820 


— 






T9 O. R. 714 






. 724 


— 






1 F. & F. 36 






. 728 


— _ — 






1 Rums. 749 . 






. 771 



If' 






-,:J 



.!'! 



4 , 



'I 




i ^^ 




Ixxxvi 



TABLE OF OASES CITED. 














P.\OE. 


Smith, R. v., 


R. & R. 339 . . .797 


— 


38 U. 0. Q. B. 218 


868, 870, 872 


— 


Temple k Mews' Cr. App. 


Das. 214 . 869 




12 Cox, 597 


. 903 


V. R. 


M. L. R. 4 Q. B. 325 


. 142 




2 L. N. 223 


. 149 


V. Brandram, 


2 M. & G. 244 






. 838 


V. KnowHen, 


2 M. k G. 561 






. 8S8 


V. Thomasson, 


16 Cox, 740 






. 691 


Smyth, R. v.. 


5 C. & P. 201 






60 


Smythies, R. v., . 


1 Den. 498 






. 728 


Snelling, — 


Dears. 219 






. 619 


Snow V. Hill, 


15 Cox, 737 ; 14 ( 


J. B. 


D. 58 


8 . .134 


Snowley, R. v., . 


4 C. & P. 390 






. 358 


Scares, — 


K. & R. 25 






31, 518 


Societe St. Louis v, Vi! 


leneave, 21 L. C. J. 309 






. 139 


Solomons, R. v,, . 


17 Cox, 93 






. 312, 39S, 399 


Somerton, — 


7 B. & C. 463 






.361 


Souoie, — 


IP. &B. (N.B.), 


611 




. 800 


Sj>anner, — 


12 Cox, 155 






. 468, 469 


Sparrow, — 


Bell, 2(»8 






. 254 


Speed, — 


15 Cox, 24 






.406 


Spelman, v. R. 


13 L. C. J. 154 






. 855 


SfH-rcer, R. v., 


10 Cox, 525 






. 197 


— 


3 C. & P. 420 






. 402 


— 


2 East P. C. 712 




. 440 


— 


Dears. & B. 131 




. 5G1 


— 


1 C. & K. 159 . 




. 099 


— 


R. & R. 299 




. 364 


Spiller, — 


5 C. & P. 333 . 




. 196 


Spilling, — 


2 M. & Rob. 107 




. ■ . 196 


Spires v. Barrick 


14 U. C. Q. B. 424 




25 


Spriggs, R. v.. 


IM. &Rob. 367 




. 464 


Sproule, In re, 


12 S. C. R. 140 . 




750, 870 


Sprungli, R. v., . 


4 Q. L. R. 110 . 






. 610 


Squire, — 


R. & K. 3i9 






. 361 


Stainer, — 


11 Cox, 483 






. 366 


Stancliffe, — 


11 Cox, 318 






901, 902 


Standley, — 


R. & R. 305 






:«, 32a 


Stannard, — 


L. & C. 349 






123, i;J5 


St. Amour, — 


5 R. L. 469 






. 732 


^tansfeld, — 


8 L. N. 123 






. 417, 855 


Stanton, — 


5 Co.\, 324 
IC. &K.415 






. 266 
. 273 


Stapylton, — 


8 Cox. 69 






. 680 


Staroy v. Chilworth Mfg 


'. Co. 17 Cox, 55 






. 534 


Steel, R. v., . 


13 Cox. 159 






. 300 


— 


1 Leach, 451 






. 755 


— - V. Smith, 


1 E. & Aid. 94 . 






. 677 



Steels, R. v., 
Stephens, — 



V. Myei 

Stephenson, R. v., 

Sterling, 

Steniberg, 

Sterne, 

Stevens, 

Stevenson v. Wilsoi 
Steventon, R. v., 

Steward, 

Stewart, 



Stiles, __ 

St. George, 

Stitt, __ 

St. John Long, R. v., 

St. Laurent, v. R. 
Stock, R, v., 



St<KJdart, — 

Stokes, 

Stone, 

Stonnell, — 
Stopford, — 

Story, — 

Stowe, 

Strachan, — 

''trahan, — 

Strange, — 

Stroulger, — 

^tubbs, — 

Studd, _ 

Sturge, — 

Summers, — 

Suprani, R, y. 

Suter, 

Sutton, _ 

Svon Seborg, — 



Steels, R. v., 
Stephens, — 



atephenson, R. v., 

Sterling:, 

Steniberg, 

Sterne, 

Stevens, 

Stevenson v. Wilson, 
Steventon, R. v., 

Steward, 

Stewart, _ 



Stiles, 

St. George, 

Stitt, __ 

StJohn Long, R. v., 

St. Laurent, v. R 
Stock, R. v.," 

Stocldart, 

Stokes, 

Stone, 



Stonnell, 

Stopford, ~ 

Story, __ 

Stowe, 

•■^trachan, 

■^trahan, — 

Strange, 

Stroulger, — 

"^tubbs, -_ 

Studd, __ 

Sturge, -_ 

Summers, 

Suprani, R. 

Suter, 

'Sutton, 



v.. 



Sven Seberg, _ 



D. 331 



TABtJS. OP CASKS GJ[1J«i,. 

11 Co.N, 5 

Warb. Lpad. Ow.' 37 

1^' R- 1 Q. B. 702 

11 Cox, 609 

4 C. & P. 349 

13Cox,679;13Q. B. 

^- & 0. 166 

1 Leach, 99 

8 L. >r. 132 

1 Leach, 473 

5 East 244 

^L. C. J.254 

1 C. & K. 55 

2 East P. C. 702 ' 

R. &R.363 

R- & R. 288 

25 U. a C. P. 440 

5 Irvine. (Scotch) 310 
13 Cox, 296, 

8 1*-R. (Oot.)297 
2 Russ. 316 

9 C. & p. 483 

^U. C. C. P.30 
4 C. & p. 398 

4 C. & P. 423 

7 Q. L. R. 47 ; 

1 Moo, 87 
R- «fe R. 185 

1 y. & F. 311 

1 I>en, 181 

I Cox, 142 

II Cox, 643 

R. & R. 81 

2«. &0. (N.S.)121 

20U.C.C.P.ii2 

7 Cox, 85 



219, 220, 



S C. & p. 172 

Itj Cox, 88 

I>ears. 555 

1*> Cox, 258 

3 E. & B. 734 

11 Cox, 248 

1-i R. L. 577 

10 Cox, 577 
** C. & p. 291 

2 Str. 1074 

11 Cox, 520 



6L 



N. 269 



hxxvii 

PAoa. 

• 401 

• VI 

■ I3ii 

■ 766 

■ 26a 

139 

. 797 

• 615 

• 698 
36, 692, 8?0 

• 676 

■ m 

• 436 

30, 31, 618 

43 

521, 628 

■ 722 

■ 799 
. 957 

• 836 
756, 821, 825 

• 279 
. 196 

■ 196 

• 472 
309, 374 

■ 460 

• 758 

• 676 
. 402 

• 519 

698 

235 

402 
201 
677 
370 

3, 690 
865 

870 

869 

842 

700 

695 

407 
341 
646 
610 



k 



Ixxxviii 



TABLE OF CASES CITED. 







PAOE. 


Swalwell, R. v., . 


12 0. R. 301 ... 


. 940 


Sw Ukins, — 


4 C. & P. 548 


. 561, 760 


Swindall, — 


2 C. & K. 230 . 


33, 36 


— 


2 Cox, 141 


. 102 


Symonds v. Kurtz 


16 Cox, 726 


14 






tacey, 


R. v., 


R. & R. 452 ... 


. 677 


Tatfs, 


— 


4 Cox, 169 ... 


. 365 


Taft, 


— 


1 Leach, 172 .. . 


. 501 


Tancock, 


— 


13 Cox, 217 ... 


. 717 


Taplin, 


— 


2 East. P. C. 712 


. 437 


Tasse, 


— 


S L. X. 98 ... 


. 304 


Tfttlook, 


— 


13 Cox, 328 


. 344 


V 


. Harris, 


3 T. R. 176 ... 


. 496 


Taijrlor, 


R. v., 


1 Leac h, 360 


35 




— 


2 Lewiti, 215 


. 182 




— 


13 Cox, 68 


40, 61 




— 


9 C. & P. 672 . 


. 104 




— 


11 Cox, 261 


238, 819 





— 


12 C(.x, 627 


. 318 





— 


10 Cox, J44 ... 


. 367 





— 


R. & R. 418 


. 386 




— 


1 Leacli, 214 .. . 


. 502 





— 


1 F ^ F. 511 . 


. 564 




— 


15 Oo:;, 265 


597, 764 




— 


11 Cox, 340 


. 713 




— 


1 C. & i:. 213 . 


. 518 


V 


. Newman 


9 Cox, 314 ; 4 B. & S. 89 


. 375 


V 


. McCuUough 


8 0. K. 300 


. 602 


Teague, 


R. v., 


2 East P. C. 079 


. 503 


Tew, 


— 


Deurs. 42! 1 


752, S66 


Thayer, 


— 


oL. N. 162 . . . 


. .598 


Theal, 


V. R. 


7 S. C. R. 307 


20(t, 687 


The World, 


R. v.. . . 


13 Cox, 305 


. 304 


Thoman, 


— 


12 Cox, 54 ... 


. 578 


Thomas, 


— 


Warb. Lead. Csm. 79 


329, 430 




— 


Can-. Supp. 3i 'd. 295 


. 38t) 




— 


2 Moo. 16 ... 


. 520 




— 


13Co.\-, 52 


555, 600 


Thompson, 


— 


1 ]Moo. 80 ... 


. 185 





— 


1 Moo. 78 ... 


3.'1, ;W3 





— 


L. & C. 2.33 


313, 402 




— 


1 Den. 549 


. 317 




— 


1 Leach, 338 


. 385 


- — 


— 


2 Leach, 771 .. . 


. 459 


■ 


— 


2 East P. C. 515 


. 460 


.—- 


— 


2 Cox, .377 


. 474 



Thomp.son, R. 

Thorley, 
Thorn, 

Thurbom, - 
Tiemey, - 

Timmins, 
Timothy v. Simi 
Tisdale, R. 
Tite, 
Titley, 
Tivey, 

Tivnan, In re 
Todd, R. 

Toland, 
Tolfrie, 
ToUett, 
Tolson, 
Tongue, 
Topping, — 

Topple, — 

Tori^ey, — 

Tower, — 

Towers, — 

Towle, — 

Townley, R. v., 
Townly's Case, 
Townsend, R. v., 

Tracey, — 

Trainer, — 
Tranchant, — 
Trapshaw, — 
Trebilcock, — 
■ Tremblay, — 

V. Bemier, 

Tremearne,R. v., 
Trenfield, — 
Treveth, — 
Trevehner, — 
Tiioranzie, — 
Triiloe, — 
Tucker, — 
Tuck well, — 
Tulley V. Corrie, 
Turner, R. v., 



TABLE OF CASES CITED. 



Ixxxix 



1 




PAG El 


1 Thompson, R. v., 


11 Cox, 362 . . . . 


. 488 


1 


13 Cox, 181 . . . . 


. 799 


p Thorley, — 


1 Moo. 343 . . . . 


. 358 


Thorn, — 


2 Moo. 210 . . . , 


. 520 


Thurborn, — 


1 Den. 387 . . . . 


307, 329 


Tierney, — 


R. & R. 74 


. 49 


— 


2I> U. C. Q. B. 181 .. . 


552, 860 


Timmins, — 


Bell, 27G 


. 293 


Timothy v. Simpson, . 


1 C. M. & R. 757 


21, 622 


Tisdale, R. v., 


20 U. C. Q. P 272 


. ) J, 


Tite, — 


L. & C. 21) : f< Cox, 458 


. m 


Titley, — 


14Cox, .')02 . . . . 


*^"i ** 


Tivey, - 


1 C. & K. 704 


. P- 


Tivnan, In re 


5 B. & S. 07!) . . . . 




Todd, R. v., 


1 Cox, 57 . . . . 


•M), 506 


Toland, — 


22 O. R. 505 


. 608 


Tolfrie, — 


IM.x). 243 


. 317 


ToUett, — 


Car. & M. 112 


317, 318 


Tolsoii, — 


1« Cox, (i29 ; 23 Q. B. D. 168 


11, 280, 295 


Tongue, — 


Bell, 28!) .... 


. 365 


Topping, — 


7 Cox, 103 ... 


. 280 


Topple, — 


3 R. & C. (N. S.) 566 


. 369 


Torijey, — 


12 Cox. 45 


11 


Tower, — 


4P. &B. (X. B.)168 


. 670 


Towers, — 


12 Cox, 530, 


189, 209 


Towle, — 


R. & R. 314 .. . 


35, 228 


— 


2 Marsh. 466 


. 692 


Townley, R, v., . 


12. Cox 59 . 


. 324 


Townly's Case, 


Fost. 7 . . . . 


. 780 


Tov/nsend, R. v., 


Car. & M. 178 . 


. 356 


— 


1 Den. 107 .... 


. 361 


Tracey, — 


6 Mod. 30 . 


. 29 


Trainer, — 


4 F. & F. 105 .. . 


. 194 


Tranchant, — 


1) L. N. 3;J3 ... 


. 450 


Trapshaw, — 


1 Leach, 427 .. • 


. 461 


Trebilcock, — 


Dears. & B. 4.')3 . . . i 


(32, 771, 8«58 


■ Tremblay, — 


18 L. C. J. 1.58 . 


. 746 


V. Bemier, . 


21 S. C. R. 309 . 


. 602 


Tremearne,R. v,. 


R. & M. 147 .. . 


. 706 


Trenfield, — 


1 F. & F. 43 


. JiOO 


Treveth, — . 


15 Cox, 289 


. 766 


Trevehner, — 


2 M. & Rob. 476 


. 382 


Tiicransne, — 


15 0'R. 2!»4 


. 766 


Triiloe, — 


2 Moo. 260 


173, 206 


Tucker, — 


1 Moo. 134 ... 


. 452 


Tuck well, — 


Car. &M. 215 . 


. 32 


Tulley V. Corrie, . 


10 Cox, 640 


. 241 


Turner, R. v., 


9 Cox, 145 . 


. 285 


— 


1 Moo. 347 . 


351, 601 



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WEBSTER, N.Y. 14580 

(716) 873-4503 




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TABIili OF CASBS OtTBP. 



• 




PAOB. 


Turner, B, v., . 


11 Cox, 661 


. 8i» 


— . . 


1 Leaoh, 305 


. 461. 


— 


1 Moo. 289 ; 4 B. & Aid. 610 558, ^OB^ im^ 






8684,991; 


Turton, — 


6 Cox, 386 


. 86g. 


TwQse, — 


,Varb. Le«d.Cas.l 


. li 


IVlerk - . . 


8 C. & P. 616 


9 


— 


1 Moo. 428 


. . . . m> 


Tyewi — 


Re & R. 402 


. 3«0< 


Tylney, — 


1 Den. 319 . 


496, 49^,61$< 


Tymms, — 


11 Cox, 646 


.849 


Tyell, - . . 


L. R. 1 C. C. R. 177 


. 868' 


Tyrie, - 


11 Cox, 241 

U. 


. 8» 


United States v. Holmes, 


1 Wall. Jr. 1 


. 10 


Upton, B. v., 


5 Cox, 298 . 


. . .248 


Vamplew, R. v., . 


V. 
3 F. & F. 520 


8 


Van Butchell, R. v., . 


3 C. & P. 629 


. UNI 


Vanderoomb, — 


2 Leach, 708 


. 718, 8R» 


Vane's (Sir H.) Case, . 


Kel. 15 


. 28 


Varley, R. v., . 


1 East P. C. 164 


. 8« 


Vaughan, — 


8 C. & P. 276 


. 607 


Vaux's Case, 


4 Rep. 44 . 


. . .726 


Verelst, R. v.. 


3 Cainp. 432 


. . 268 


Villensky, — 


{18!»2) 2 Q. B. 597 


. 349> 365 


Vilmont v. Bentley, 


12 App. Cas. 471 


. 906 


Vincent, R. v., 


9 C. & P. 91 


. 53,57,73 


— 


2 Den. 464 


. 688;841 


Vodden, — 


Dears. 229 


.770 


Vonhoff, — . . . 


lOL. C. J. 292 . 


. 771 


Vreones, — . . . 


17 Cox, 267 ; (1891) 1 Q 
W. 


. B. 360 . .100 


Wade, R. v 


11 Cox, 549 


.328 


— . . . 


10 Cox, 573 


. ■■ : 721 


— . . . 


1 Moo. 86 


. 790,860 


Wainwright, R. v.. 


18 Cox, 171 


. 768i79^ 


Waite, - 


(1892) 2 Q. B. 600 


«,»23 


■-'■'— '■ — . . 


17 Cox, 554 


.2715 


Wakeling, — 


R. & R. 504 


. . ■;■■ 4017 


Walker, — 


13:Cox, 94 


.■ '■■■^ :''->ify 




7 0, R. 186 


. ■■/..<■-** 


•^•~ — 


IC. &P.320 


' ./ ■.■mM2, 


to—,;?-; _ 


2 M. & Rob. 446 


. 266 



Walker, R. v.. 



V. Mtt5 

W«lkley, R. v, 

Wallace, — 

Walne, ^ 
Walabv v. Ank 
Walsh, R. v., 
Walter, 
Walteti export 
Waltert, R. v., 
Walton, — 
Warburton,:— 
Ward, ^ 

Wardle, — 
Warren, — 
Warshaner,— 
WaBon, ex parti 
Waters, R. v., 

Watkins, — 
Watson, — 

V. Bodd 

Watts, R. v., 
WaveU, — 
Waverton, — 
Wealand, R. v., 
Weaver, — 
Webb, — 



Webster, — 

V. Wj 

Wedge, R. v., 

Weeks, — 

Weir, — 

Welch, - 

Wellard, — 
Wells, - 
•— — V. Abrah 
Wellings, R. v. 



TABLE OF CASES GIXBD.' 



XOL- 







PAGE. 


Wslker, R. v., 


1 Moo. IM ... 


. .823,371' 




Dears. & B. 600 


. 36» 


— 


Dears. 358 ... 


. 682 


V. Muyor of London 


, IIC0.X, 280 


. aos^ 


W»lkley, R. v„ . 


4 0. & P. 132 . 


. 800 


— — • * 


2EastP. 0.953 . . 


. em 


Wallace, — 


2 Moo. 200 


. 86r 


— . . . 


4 0. & P. 132 . 


. 360 


Walne, ^ 


110ox,647 


. 406 


Walsbv V. Anley, 


3 E. & E. 516 . 


. SM' 


Walsh, R.V., . 


1M(H). 14 


. 321 


Walter, — 


14 0ox, 579, 


. 760' 


Walteri ex parte. 


Ramsay App. Oas. 183 


. . 121 


Waltert, R. v., . 


1 Moo. 13 .... 


. 482 


Walton, — . . 


L.& 0.288 


. 461 


Warburton,— 


llOox, 584 


. m 


Waid, ^ 


10 Cox, 42 ... J 


124, 46:{, C80 


— 


10 Cox, 573 .. . 


. 721, 78» 


Wardle, — 


Oar. &M. 647 . 


. 790" 


Warren, — 


16 0.R. 590 


136, 141- 


Warshaner, — 


1 Moo. 466 


626,867 


Wason, ex parte. 


38 L. J. Q. B. 302 . 


. 730 


Waters, R. v.. 


12 Cox, 390 


. ii<y 


— 


1 Den. 366 . . . . 


703^868 


Watkins, — 


2 Moo. 217 . . . . 


. 82fr 


Watson, — 


Dears. & B. 348 


. 401. 


V. Boddell, 


14M. &W. 57 


. 68» 


Watts, R. v., . 


e Cox. 304 .. . 


. 394- 


WaveU, - 


I Moo. 224 


410, 524 


Waverton, — 


2 Den. 340 . . . . 


. 857 


Wealand, R. v 


16 Cox, 402 ; 20 Q. B. D. 827 


. 796 


Weaver, — 


L. R. 2 0. 0. R. 85 . 


. 123 


Webb, - 


1 M. & Rob. 405 


. 158 


— 


2 Lewin, 196 .. . 


. 195 


— 


1 Moo. 431 .. . 


. 382 


— 


1 Den. 338 


. 706, 807 


— 


4 F. & F. 862 


. 761 


Webster, — 


16 Q. B. D. 136 . 


. 129 


— 


L. &C. 77 


. 345, 841 


V. Watts, 


11 Q. B. 311 .. . 


. . 2JL 


Wedge, R. v., . 


5 C. & P. 298 


. ., 1% 


Weeks, — 


L. & C. 18 


•„;.•■>** 


Weir, - 


IB. & 0.288 


;:, . w 


Welch, — 


2Deu.,78, ..... 


. 604,6^ 


-— • — 


13 Cox, 121 ... 


. 674 


Wellard, - . . . 


14Q. B. p. 63 . 


. . ., !»• 


Wells, — 


1 F. & F. 109 


. . m 


^ — V. Abrahams, . 


L. R. 7 Q, B. 554 


..m 


WellinRs, R. V. . 


14Cox, 1Q6 


. '..m 





iv^'J 









:#■ ' 






xcu 



TABLE OF CASES CITED. 







PAGE. 


Welman, R. v. . 


Dears. 188 ; 6 Cox, 153 


. 409 


Welsh, — 


11 Cox, 336 


. 163 


— — — 


13 Cox, 121 ... 


. 678 


Welton, — 


9 Cox, 297 ... 


. 839, 841 


Wemysg v. Hopkins, . 


. L. R. 10 Q. B. 378 


. 266 


Wenmouth, B. v., 


8 Cox, 348 . . ... 


. 467, 476 


West, R. v., . 


2 C. & K. 784 . . 


. 208, 275 


— 


Dears. 402 ... 


. 332 


— 


Dears. & B. 575 


. 400 


— 


1 Den. 258 ... 


. 509 


— — — 


2 Russ. 10S7 .... 


. 677 


V. Smallwood, 


3M.&W. 418 . 


14 


V. The State, 


1 Wis. 209 ... 


. .. 123 


Westbeer, R. v., . 


1 Leach, 12 ; 2 Str. 1133 


371, 812 


Western, R. v., , 


11 Cox, 93 ... 


. 842 


Westley, — 


11 Cox, 139 


267, 716 


— 


Bell, 193 .... 


. 843 


Weston, — 


14 Cox, 34« .... 


. 199, 764 


Westwood, — 


R & R. 495 


. 460, 482 


Whalley, — 


2Cox(, 231 .... 


. 829 


Wheatly, — 


2 Burr, 1125 ... 4, 


JO, 703, 706 


Wheeldon, — 


8 C. & P. 747 . . . 4' 


n, 472, 475 


Wheeler, — . . . 


3C. &P. 585 . . 


. 470 


Whelan, — 


28 U. C. Q. B. 2, 108 . 


782, 849 


Whiley, - . . 


R. & R. 90 . 


. 502 


Whitchurch, R. v., 


16Cox,743;24Q.B.D.420 . 2- 


19, 596, 869 


White, R. V 


R. & R. 99 . 


. 34 


— 


12 Cox, 83 .... 


. 151 


— . . . 


Dears. 203 ... . 


. 322 


— . . . 


IF. &F. 605 


. a52 


— . . . 


2 M(X>. 91 


. 366 


— . . . 


1 Den. 208 . . . 


. 524 


— . . . 


21 U. C. C. P. 354 . 


. 677 


— . . . 


3 Canip. 98 ... . 


. 761 


• — . . . 


2 Cox. 192 ... , 


. 766 


— . . . 


1 Leach, 430 . . . . 


. 850 


V.R., . . . 


13 Cox, 318 


. 855 


V. Feast, . 


L. R. 7 Q. B. 353 . 


. 586 


Whitehead, R. v., . . . 


SC.frK.202 


. 196 


Whitehurst v. Fincher, 


17 C > 


. 134 


Whiteley, R. v 


1 Lc 173 


. 185 


Whiteman, — . . . 


Dear». 353 


378, 578 


Whittinjrham, R. v., . 


9 C. & P. 2.34 . . . . 


. 573 


Wickham, — . 


10 A. & E. 34 . . 40 


1, 402, 408 


Wigrg. - . . 


2 Salic. ««0 




Wild's Case, . . . 


2 Lewin, 214 . . . . . 


. 204 


WUey, R. v 


2 Deu. 37 


349, 816 


Wilkes, - ... 


4 Burr. 2577 


. mi 


Wilkins,- . . . 


L. & C. 89 . . . . . 


. 241 



Wilkinson, R. v 
Wilkinson's Cast 
Wilkinson v. Du 
Wilks' Case, 
Williams, R. v., 



V. E. i. Co, 

Williamson, R. v. 



Winterbotham — 
Winterbottam — 
Withers, — 

Wolloston, — 
Woldtenholme — 

WcK!d, _ 



TABLE OF CASES CITED. 



XCIU 











PAOK. 


Wilkinson, R. v R. & R. 470 .. . . 


. 319 


Wilkinson's Case, 




1 Leach, 321 . 


. 322 


Wilkinson v. Button, . 




3 B. & S. 821 . . . 


. 266 


Wilks' Case, 




2 East P. C. 957 . . 


. 497, 616 


Williams, R. v., . 






1 Den. 39 .. . 


30, 216 








lSalk.383 . . . 


. 186, 141 


_— , 






11 Cox, 684 . 


. 231 


._ ... , 






8 C. & P. 286 . . . 


. 281 








1 C. & K. 195 


. 316 








1 Moo. 107 . 


. . . 341 


, 






6 C. & P. 626 . 


. 868 


■ 






7 C. & P. 354 . . . 


. 410 


- 






9 Cox, 338 . 


. 678 


■ 






12 Cox, 101 . 


. 799 









2 Camp. 646 . 


. 819 








1 Leach, 536 . 


. 966 


V. E. i. Co. 






3 East, 192 .. . 


. 144 


Williamson, R. v.. 






3 C. & P 635 . . . 


. 196 


— 






11 Cox, 328 . 


. 404 


Willis, - 






1 Moo. 376 . 


. 308 








12 Cox, 192 . 


. 700 


Willot, . - 






12 Cox, 68 . . . 


. 411 


Willoughby, — 






2 East P. C. 944 . . 


. 618 


Willshire, — 






14 Cox, 541 .. . 


. 286 


Wilson, — 






Dears. & B. 127 . 


. . . 277 


- 






8 C. & P. Ill . . . . 


. . . 312 


— 






R. & R. 115 . 


. 460 


— 






1 Den. 284 ... 


. 493,;:02 








12 Cox, 622 . 


. 799 








2 Moo. 52 


. 349, 859 


Windhill Local Board v 


.Vii 


It 17 Cox, 41 ; 45 Ch. D. 361 


. 104,407 


Winkworth, R. v,, 




4C &P. 444 . . 


. 437 


Winslow, — 




8 Cox, 397 


. 176 


Winsor, — 




10 Cox, 276 ; 7 B. & S. 49< 


) 721,788,850,869 






C B. & S. 143 . . 


. . . 726 


Winterbotham — 




22 St. Tr. 823 


. . . 72 


Winterbottam — 




1 Den. 41 . . . 


. . . 517 


Withers, — 




1 East P. C. 295 


. 186 


Wollaston, — 




12 Cox, 180 


118, 119, 121, 281 


WolHtenholme — 




11 Cox, 313 


. 367 


Wot;d, - 




1 Moo. 278 


. 216 






14 Cox, 46 


. 272 


— 




3 B.-& Ad. 667 


. 851 


V. Burgress, 




16 Cox, 729 . . 


. 293,534 


Woodfield, R. v.. 




16 Cox, 314 


. 791 


Woodhead, — 




1 >L ft Rob. 649 


. 389 


Woodhall, - 




12 Cox, 240 


. 447, 811, 860 


W oodhurst, — 




12 Cox, 443 


. . . 262 


Woodward, — 






L. &C. 122 


. 360 





XCIV 



TABLE OF CASES CITED. 











PAOB. 


Woodward, H. v., . . 1 Moo. 323 


. 661, 672 


Wooldridge, — 


1 Leach, 307 


. 644 


Wodf, - 


1 Chit. Rep. 401 


. 787 


Woolford, — 


1 M. & Rob. 384 


. 348 


WooHey, — 


1 Den. 559 


. 401, 848 


Woolmer, — 


1 Moo. 334 


. . . 177 


Wootton V. Dawkins, 


. . 2C. B. N. S. 412 


. 244 


Worrall, R. v., 


. . 7C. &P. 516 . . 


• . . 377 


Wright, - . 


9C. &P.754 


. 174 






4F&F. C67 


. 273 


. 




7 Co.x, 413 .. . 


. 335 


■ — 




. . 7C. &P. 159 . . 


. 392 


. _ ... 




Styles, 156 .. . 


. 443 


___ — 




1 Lewin, 2C8 


. 682 


■ __ — 




2 F. & F. 320 


. 706, 843 


. — 




1 Burr. 543 


.960 


Wycherley, — 




8 a & P. 262 


. 850 


Wynne, — 




2EastP.C. 664 . 


. 332 


Y. 




Yates, R. v., ... 15 Cox, 272 . 


. 732 


V. R. 






15 Cox, 686 . . . . 


. 732 


Yeadon, R. v., 






L. & C. 81 . 


238, 254, 819 


Young, — 






. 8C. &P. 644 


. 35, 180 


. — 






1 Rubs. 291 . . . 


. . . Ill 


— 






10 Cox, 371 


. 185 


— 




» 


14 Cox, 114 


. 270, 869 


— 






6 0. R. 410 


. 353 


— 






3 T. R. 98 


. 401 


— 






1 Leach, 511 . . . 


. 687 


V. R. 






3 T. R. 98, 105, 106 


. 692 


Zollverein, The . . . I Sw. Adm. Rep. 96 . 


. 610 


Zulueta, R. v., 


f 


. 


1 C. & K. 215 ; 1 Cox, 20 . 


. 612,767 



L] 



A. &E. 

B. & Ad. 
B. & Aid. 
B. AC. 
B. drP. 
B.&S. 
Bing. 

Bred, dt B. 
Burr. 

C. B. 

C. B. N. S. 

01. & P. 

C.&D. 

C.&K. 

Car. & M. 

C. dfP. 

Cald. 
Camp. 
Carr. Supp. 
Chit. 

Chit. Rep. 
C. L. J. 
C. L. T. 
C. M. (ft R. 
Co. 
. C. P. D. 
C. 8. C. 
C. S. L. C. 
C. S. U. C. 



I 
i 
I 
E 
B 
B 
B 

C( 

C< 

01 

Or 

Ca 

Oa 

Ca 

Cai 

Cai 

Cai 

Chi 

Chi 

Can 

Can 

Croj 

Ook( 

Law 

Com 

CoDf 

Conj 



^- * I'. Dow] 

D. & M. Davii 

D. & R. Do^j 

IJeara. Dean 

Dears. A B. Deart 

^«°- Denia 

I>or.Q. B.R. Doric 

I>ouK. Doug] 

E. <& B. Eiiig , 

E.B.&E. Ellis.. 



LIST OP ABBREVIATIONS. 



■IP 









[, 



A. <&£. 

B. & Ad. 
B. <& Aid. 
B. &C. 
B. <feP. 

B. (&S. 
Bing. 
Brod. & B. 
Burr. 

C. B. 

C. B. N. S. 
CI. & F. 
C. &D. 
C.«SeK. 
Car. & M. 
C.«feP. 
Cald. 
Camp. 
Carr. Snpp. 
Chit. 
Chit. Bep. 

C. Li. J. 

C. L. T. 

C. M. & R. 

Co. 

C. P. D. 

C. 8. C. 

C. S. L. C. 

C. S. U. C. 

D. &L. 
D. &M. 

D. &R. 
Dears. 
Dears. & B. 
Den. 

Dor. Q. B. B. 
Doug. 

E. d;B. 
£. B. ± E. 



Adolphas and Ellis, Baports 

Barnewall and Adolphus' " 

Barnewall and Alderson's " 

Barnewall and CreBsweU's *' 

Bosanqnet and Puller's " 

Best and Smith's " 

Bingham's E. B " 

Broderip and Bingham's ' 

Burrows' " 

Common Bench ** 

Common Bench New Series " . , 

Clark & Finelly's " 

Crawford and Dixon's " 

Carrington and Kirwan's N. P. Reports 

Carrington and Marshman " " 

Carrington and Payne's ** " 

Caldecott's Reports 

Campbell's Reports 

Carrington's Oriminal Law 

Chitty's " 

Chitty's Reports 

Canada Law Journal, Ont 

Canadian Law Times, Ont. 

Crompton, Meeson <& Roacoe 's Reports 

Coke's Reports 

Law Reports, Common Pleas Division 

Consolidated Statutes of Canada 

Consolidated Statutes of Lower Canada 

Consolidated Statutes of Upper Canada 

Dowling and Lowndes' Reports 

Davison and Merivale's " 

Dowling and Ryland's " 

Dearsley's " " 

Dearsley and Bell's Crown Caam 

Denison's Crown Cases 

Dorion's Queen's Bench Reports, Montreal 

Douglas Reports 

Ellis and Blackburn's Ruperts 
Ellis, Blackburn and Ellis' " 



!r;rr,il 






:^''f-1 




i' 



XCVl 



LIST OF ABBREVIATIONS. 



L. 



E.<&E. 
Ex. D. 

F.&F. 
Fost. 

G.&D. 
G. &0. 

H. &C. 
H.&N. 
Han. 

111. 
Ind. 
Inst. 
Ir. R. C. 
Ir. L. R. 

J. P. 
Jur. 

Eel. 



L. &C. 
L. C. J. 
L. C. L. J. 
L. C. R. 
LA. Raym. 
L.J. 
L.N. 

L. R. C. C. R. 
L. R. C. P. 
L. R. H. L. 
L. R. P. C. 
L. R. Q. B. 
L. T. 



Ellis and Ellis' " 

Law Reports, Exchequer Division 

Foster and Finlason'a " 
Foster's Crown Cases 

Gale and Davison's Reports 

Geldert and Oxley's Nova Scotia Reports 

Hurlstone and Coltman's 
Hurlstone and Norman's ' 

Hannay's New Brunswick " 

, Illinois State 
Indiana Reports . 
Coke's Institutes 
Irish Common Law Reports 
Irish Law Reports 

Justice of the Peace 
Jurist . 

Eelyng's Crown Cases 

Leigh and Cave's Crown Cases 

Lower Canada Jurist 

Lower Canada Law Journal 

Lower Canada Reports 

Lord Raymond's " 

Law Journal (England) 

Legal News, P. Q. 

Law Reports, Crown Cases Reserved 

Law Reports, Common Piers 

Law Reports, English and Irish Appeals 

Law Reports, Privy Council 

Law Reports, Queen's Bench 

Law Times Reports 



M. & G. Manning and Granger's Reports 

M. & M. Moody and Malkin's '• 

M. & Rob. Moody and Robinson's " 

M. & S. Maule and Selwyn's " 

M. & W. Meeson and Welsby's " 

Man. L. R. Manitoba Law Reports 

Marsh. Marshall's Reports 

M. L. R. Q. B. Montreal Law Reports, Queen's Bench 

Me. Maine State Reports 

Mod. Modern Reports 

Moo. Moody's Crown Cases 



N. B. Rep. 
N. S. Rep, 

O. R. 
Ont. A. R. 

P. &B. 

Plow. 

P. R. (Ont.) 
Pugs. 
P. Wms. 

Q.B. 
Q. B. D. 
Q. L. R. 

R. &C. 
R. (ftM. 
R. (ftR. 
Rep, 
R. L. 

R. 8. B. C. 
R. S. N. B. 
R. S. N. S. 
Russ. 
R. <fe G. 

Salk. 

S. C. R. I 

St. Tr. 1 

Str. I 

Taun. 
T. R. 
T. Raym. 
Tyr. 

U. C. C. P. 
U. C. Q. B. 

Warb. Lead. Ca 
W. R. 

Wheat. 
Wil. 



Cbim. LA^ 



LIST OF ABBREVIATIONS. 



XCVll 



N. B. Rep. New Brunswick Reports 

N. S. Rep. Nova Scotia Reports 

O. R. Ontario Reports 

Ont. A. R. Ontario Appeal Reports 

P. <& B. Pugsley and Barbidge, New Brunswick Reports 

Plow. Plowden's K. B. Report 

P. R. (Ont.) Practice Reports, Ontario 

Pu^s. Pugsley's New Brunswick Reports 

P. Wms. Peere Williams, E. B. Reports 

Q. B. Queen's Bench • 

Q. B. D. Law Reports, Queen's Bench Division 

Q. L. R. Quebec Law Reports 

R. <& C. Russell & Chesley's Nova Scotia Reports 

R. & M. Ryan and Moody's Reports 

R. & R. Russell and Ryan's Reports 

Rep. Coke's Reports. 

R. L. Revue Legale, P. Q. 

R. 8. B. C. Revised Statutes of British Columbia 

R. S. N. B. Revised Statutes of New Brunswick 

R. S. N. S. Revised Statutes of Nova Scotia 

Russ. Russell on Crimes, 4th ed. 

R. & G. Russell and Geldert's Nova Scotia Reports 

Salk. Salkeld's Reports 

S. C. R. Supreme Court of Canada Reports 

St. Tr. State Trials 

Str. Strange's Reports 

Taun. Taunton's 

T. R. Term. 

T. Raym. T. Raymond's " 

Tyr. Tyrwhitt's " 

U. C. C. P. Upper Canada Common Pleas 

11. C. Q. B. Upper Canada Queen's Bench 






Warb.Lead. Cas. Warburton's Leading Cases on Criminal Law 
VV. R. Weekly Reporter 

Wheat. Wheaton's Reports 

Wil. Wilson's K. B. Reports. 



Crim. Law— o 



1 



An 



TTER Majest 
■*■■*- of Comm 



1. This Act 



3 This Ac 



3> In this i 
them in this sect 

(«) The exi 
passed or to be p 
legislature of th 
legislature of an 
province include 

8. 2 (rt). 

(6) The expr 
Solicitor-Oeneral 
under this Act, 
district of Keewa 

CaiM. La^ 



55-56 VICTORIA. 

CHAP. 29. 

An Act respecting the Criminal Law. 






ii'f 



If" I 



i-;i'-i! 



n 

■'in' . 



«M' 



ii 






H 



ER Majesty, by and with the advice and consent of the Senate and House 
of Commons of Canada, enacts as follows : — 



TITLE I. 



INTRODUCTORY PROVISIONS. 



PART I. 

PRELIMINARY. 

la This Act may be cited for all purposes as The Criminal Code, 1892. 
COMMKNCKMKNT OP AcT. 

3 This Act shall come into force on the first day of July, 1893. 

Interpretation Clause. 

3> In this Act the following expressions have the meanings assigned to 
them in this section unless the context requires otherwise : 

(«) The expression "any Act," or "any other Act," includes any Act 
passed or to be passed by the Parliament of Canada, or any Act passed by the 
legislature of the late province of Canada, or passed or to be passed by the 
legislature of any province of Canada, or passed by the legislature of any 
province included in Canada before it was include<l therein ; R. S. C. o. 174, 
8. 2 («). 

(6) The expression " Attorney-General " means the Attorney-General or 
Solieitor-Oeneral of any province in Canada in which any proceedings are taken 
under this Act, and, with respect to the North-west Territories and the 
district of Keewatin, the Attorney -General of Canada; R. S. C. c. 150, s. 2 (a). 

Grim. Law — 1 




PRELIMINARY. 



[Sec. » 



Sec. 3] 




(c) The expfewion "banker" includes any director of any incorporate 
bank or banking company ; R. S. C. c. 164, a. 2 (^r). 

(d) The expreasion "cattle," includes any horse, mule, ass, swine, sheep, 
or goat, as well as any neat cattle or animal of th« bovine siiecies, and by what- 
ever technical or familiar name known, and shall apply to one animal as well 
as to many ; R. S. 0. c. 172. s. 1, (amended) ; 24-25 V. o. 96, s. 10, (Imp.). 

(e) The expression " Court of Appeal " includes the following courts : 
R. S. C. c. 174, 8 2 (h). 

(i) In the province of Ontario, any division of the High Court of 

Justice ; 

(ii) In the province of Quebec, the Court of Queen's Bench, appeal 

side; 

(iii) In the provinces of Nova Scotia, New Brunswick and British 

Columbia, and in the North-west Territories, the Supreme Court in bane; 
(iv) In the province of Prince Edward Island, the Supreme Court of 

Judicature ; 

(v) In the province of Manitoba, the Court of Queen's Bench ; 

{f) The expression " district, county or place " includes any division of 
any province of Canada for purposes relative to the administration of justice in 
criminal cases; R. S. C. o. 174, s. 2 (/). 

{(/) The expression "document of title to goods" includes any bill of lad- 
ing, India warrant, dock warrant, warehou8e-keei)er's certificate, warrant or 
order for the delivery or transfer of any goods or valuable thing, bought and 
sold note, or any other document used in the ordinary course of business as 
proof of the ixjssession or control of gtwds, authorizing or purporting to 
authorize, either by endorsement or by delivery, the possessor of such docu- 
ment to transferor receive any gootls thereby represented or therein mentioned 
or referred to: R. S. C. c. 164", s. 2 (a); 24-25 V. c. 90, s. 1, (Imp.). 

(h) The expression "document of title to lands " includes any deed, map, 
paper or parchment, written or printed, or partly written and partly printed, 
being or containing evidence of the title, or any part of the title, to any real 
projjerty, or to any interest in any real property, or any notarial or registrar's 
copy thereof, or any duplicate instrument, memorial, certificate or document 
authorized or required by any law in force in any part of Canada respecting 
registration of titles, and relating to such title ; R. S, C. c. 104, s. 2 (b) ; 
24-25 V. c. 90, s.l, (Imp.). 

(i) The expression " explosive substance " includes any materials for 
making an exi)losive substance ; also any apparatus, machine, implement, or 
materials used, or intended to bo used, or adapted for causing, or aiding in 
causing, any explosion in or with any explosive substance ; and also any part of 
any such apparatus, machine or implement; R. S. C. c. 150, s. 2 (b); 46 V. 
c. 3, s. 9, (Imp.). 

ij) Finding the indictment includes also exhibiting an information and 
making a presentment ; R. S. C. c. 174, s. 2 (d), (amended). 

(k) Having {in one's possession, includes not only having in one's own 
personal possession, but also knowingly — 

(i) having in the actual possession or custody of any other person ; 
and 



■elf or 
R. S. C. 
0. 45, 8. 

If there 
knowleclge t 

possession, ii 
each and all 

ii) The , 

information i 

tion or other 

(»») The 

holic, spirituc 

liquor a pari 

intoxicating • 

(n) The i 

two or more ji 

any person ha' 

R. S. C. a 174 

(o) The e; 
loaded with gu 
other destructi 
or other destr 
5C.&P. 159; 

(o-l) The : 
orders, rules ai 
Orders for the . 
to Her Majestj 
of whatever nai 
are subject ; 

ip) The exr 
town, village, c 
any province of 
right of holding 

(P-l) In th( 
"newspaper" 8 
news, intelligem 
printed for sale 
vals not exceed! 
papers, parts or 
in order to be di 
not exceeding M 
ments ; 51 V. c. 
(<?) The expr 
nine o'clock in tl 
flay, and the exj: 
six o'clock in the 
R.S.C.C. 1.64, s. 






Sec. 3] 



INTERPRETATION CLAUSE. 



8 



(ii) having in any place (whether belonging to or occupied by one's 

self or not) for the use or benefit of one's self or of any other person ; 

R. S. C. c. 104, 8. 2,(0 ; 0. 166, s. 2; c. 167, s. 2 ; o. 171, a. 3 ; 60-61 V. 

c. 46, 8. 2 (e). 

If there are two or more persons, any one or more of whom, with the 
knowledge and consent of the rest, have any thing in his or their custody or 
possession, it shall be deemed and taken to be in the custody and possession of 
each and all of them ; 

(i) The expressions "indictment" and "count" respectively include 
information and presentment as well as indictment, and also any plea, replica- 
tion or other pleading, and any record ; R. S. C. c. 174, s, 2 (c), (amended) ; 

(m) The expression " intoxicating liquor " means and includes any alco- 
holic, spirituous, vinous, fermented or other intoxicating liquor, or any mixed 
liquor a part of which is spirituous or vinous, fermented or otherwise 
intoxicating ; R. S. C. c. 161, s. 1 (d). 

(n) The expression " justice " means a justice of the peace, and includes 
two or more justices, if two or more justices act or have jurisdiction, and also 
any person having the power or authority of two or more justices of the pajvce ; 
R. S. C. o. 174, s. 2 (b). 

(o) The expression " loaded arms" includes any gun, pistol or other arm 
loaded with gun|M)wder, or other explosive substance, and ball, shot, slug ot 
other destructive material, or charged with compressed air and ball, shot, slug, 
or other destructive material , R.S. C. o. 102, s. 1 (amended); R. v. Harris^ 
5C. & P. 169; R. v. Jackson, 17 Cox, 104 ; 24-25 V. c. 100, s. 19, (Imp.). 

(o-l) The expression "military law" includes The Militia Act and any 
orders, rules and regulations made thereunder, the Queen's Regulations and 
Orders for the Army ; any Act of the United Kingdom or other law applying 
to Her Majesty's troops in Canada, and all other orders, rules and regulations 
of whatever nature or kind soever to which Her Majesty's troops in Canadik 
are subject ; 

(p) The expression " municipality " includes the corporation of any city^ 
town, village, county, township, parish or other territorial or local division of 
any province fif Canada, the inhabitants whereof are incorporated or have tho 
right of holding property for any purpose ; R. S. C. c. 164, s. 2 (.;'). 

(p-1) In the sections of this Act relating to defamatory libel the word 
"newspaper" shall mean any paper, magazine or periodical containing public 
news, intelligence or occurrences, or any remarks or observations thereon,, 
printed for sale and published periodically, or in parts or numbers, at inter- 
vals not exceeding thirty-one days between the publication of any two suchi 
papers, parts or numbers, and also any paper, magazine or periodical printed^ 
in order to be dispersed and made public, weekly or oftener, or at intervals^ 
not exceeding thirty-wie days, and containing only or principally advertise- 
ments ; 51 V. c. 44, s. 1 (amended). 

(q) The expression "night " or " night time " means the interval between 
nine o'clock in the afternoon and six o'clock in the forenoon of the following 
day, and the expression "day " or "day time " includes the interval between 
six o'clock in the forenoon and nine o'clock in the afternoon of the same day ;; 
R. S. C. c. 164, s. 2 ; 24-25 V. c. 96. s. 1, (Imp.). 



V 



'-■-■4- 



4 



PRELIMINARY. 



[Sec. 3 



(r) The expression " offensive wsapon " includes any gun or other firearm, or 
air-gun, or any part thereof, or any sword, sword-Made, bayonet, pike, pike- 
head, spear, spear-head, dirk, dagger, knife, or other instrument intended for 
cutting or stabbing, or any metal knuckles, or other deadly or dangerous 
weapon, and any instrument or thing intended to be used as a weapon, and 
all ammunition which may be used with or for any weapon ; R. S. C. o. 151, 

8. 1 (C). 

(s) The expression "peace officer" includes a mayor, warden, reeve, 
sheriff, deputy-sheriff, sheriff's officer, and justice of the peace, and also the 
warden, keeper or guard of a penitentiary and the gaoler or keeper of any 
prison, and any police officer, police constable, bailiff, constable or other i)er8on 
employed for the preservation and maintenance of the public peace, or for the 
service or execution of civil process ; (new), 

(t) The expressions "person," "owner," and other expressions of the 
same kind include Her Majesty and all public bodies, bodies corix>rate, socie- 
ties, companies, and inhabitants of counties, parishes, municipalities or other 
districts in relation to such acts and things .\3 they are capable of doing and 
owning respectively ; (new). See R. S. C. c. 1, s. 4. 

(u) The expression "prison" includes any penitentiary, common gaol, 
public or reformatory prison, lock-up, guard rnom or other place in which per- 
sons charged with the commission of offences are usually kept or detained in 
custody ; (new). 

[v] The expression "property " includes : 

(i) Every kind of real and personal property, and all deeds and instru- 
ments relating to or evidencing the title or right to any property, or giving 
A righb to recover or receive any money or goods ; 

(ii) Not only such property as was originally in the possession or 
under the control of any person, but also anj' property into or for which 
the same has been converted or exchanged and anything acquired by such 
conversion or exchange, whether immediately or otherwise ; 

(iii) Any postal card, postage stamp or other stamp issued or prepared 
for issue by the authority of the Parliament of Canada, or of the legislature 
of any province of Canada, for the payment to the Crown or any corpor- 
ate body of any fee, rate or duty, and whether still in the possession of 
the Crown or of any person or corporation ; and such postal card or stamp 
shall be held to be a chattel, and to be equal i'l value to the amount of the 
postage, rate or duty expressed on its face in words or figures or both ; 
E. S. C. c. 164. s. 2; 24-25 V. c. 06, s. 1, (Imp.), 
()«) The expression "public officer'" includes any inland revenue or 

customs officer, officer of the army, navy, marine, militia. North-west m.. anted 

police, or other officer engaged in enforcing the Irsws relating to the revenue, 

customs, trade or navigation of Canada; (Nev ,. 

(x) The expression "shipwrecked person' includes any person belonging 

to, on board of, or having quitted any vessel wrecked, stranded, or in distress at 

any place in Canada ; R. S. C . c. 81, s. 2 (h), (J vvcmled). 

(,y) The expression "Superior Court of Criminal Jurisdiction " means and 

includes the following courts : 

(i) In the province of Ontario, the three divisions of the High Court 
of Justice 



Sec. 3] 



INTERPRETATION CLAUSE. 



5 



(ii) In the province of Quebec, the Court of Queen's Bench ; 

(iii) In the provinces of Nova Scotia, New Brunswick and British 
Columbia, and in the North-west Territories, the Supreme Court; 

(iv) In the province of Prince Edward Island, the Supreme Court of 
Judicature ; 

(v) In the province of Manitoba, the Court of Queen's Bench (Crown 
side); (New). 

(z) The expression "territorial division" includes any county, union of 
counties, township, city, town, parish or other judicial division or place to 
which the context applies ; R. S. C. c. 174, s. 2 (g). 

{aa) The expression "testamentary instrument" includes any will, codicil, 
or other testamentary writinf!^ or appointment, as well during the life of the 
testator whose testamentary disposition it purports to be as after his death, 
whether the same relates to real or pprsonal property, or both ; R. S. C. o. 104, 
s. 2(t). 

(bh) The expression "trustee" means a trustee on some express trust 
created by some deed, will or instrument in writing, or by parol, or otherwise, 
and includes the heir or i)ersonal representative of any such trustee, and every 
other person upon or to whom the duty of such trust has devolved or come, 
whethf^r by appointment of a court or otherwise, and also an executor and 
administrator, and an official manager, assignee, liquidator or other like officer 
acting under any Act relating to joint stock companies, bankruptcy or 
insolvency, and any person who is, by the law of the province of Quebec, an 
" adTHtnislratcur" or "ftdeiconimissaire "; and the expression "trust " includes 
whatever is by that law an "ailminiatration " or " fidiiconiniission" ; R. S. C. 
c. 10*, s. 2 (c), {Amended) ; 24-25 V. c. 90, s. 1, (Imp,). 

(cc) The expression " v.-vluable security " includes any order, exchequer 
acquittance or other security entitling or evidencing? the title of any person to 
any share or interest in any public stock or fund, whether of Canada or of any 
province thereof, or of the United Kingdom, or of Great Britain or Ireland, or 
aTiy British colony or possession, or of any foreign state, or in any fund of any 
body corporate, company or society, whether within Canada or the United 
Kingdom, or any British colony or possession, or in any foreign state or country, 
or to any deposit in any savings bank or other bank, and also includes any 
debenture, deed, bond, bill, note, warrant, order or other security for money 
or for payment of money, wlietiier of Canada or of any province thereof, or of 
the United Kingdom or of any British colony or possession, or of any foreign 
state, and any document of title to lands or goods as hereinbefore defined 
wheresoever such lands or goods are situate, and any stamp or writing which 
secures or evidences title to, or interest in any chattel personal, or any release, 
receipt, discharge or other instrument, evidencing payment of money, or the 
delivery of any chattel personal ; and every such valuable security shall, where 
value is material, be deemed to be of value equal to that of such unsatisfied 
money, chattel personal, share, interest or deposit, for the securing or payment 
of which, or delivery or transfer or sale of which, or for the entitling or 
evidencing title to which, such valuable security is api>licable, or to that of 
such mcmey or chattel jiersonal, the payment or delivery of which is evidenced 
by such valuable security ; 53 V. c. 37, s. 20; 24-26 V. c. 90, s. 1, (Imp.). 





6 



PRELIMINARY. 



[Sees. 



4-6 



Seoe. 7-10] 



(dd) The expression " wreck " includes the cargo, stores and tackle of any 
vessel and all parts of a vessel separated therefrom, and also the pnjperty of 
shipwrecked persons ; R. S. C. c. 81, s. 2. 

(ee) The expression " writing " includes any mode in which, and any 
material on which, words or figures whether at length or abridged are written, 
printed or otherwise expressed, or any map or plan is inscribed ; R. S. C. 
c. 164, 8. 2 ; see R. S. C. o. 1, s. 4. 

Interpretation ov Other Words. 
4« Thb expressions "mail," "mailable matter," "post letter," "post 
letter bag," and "post office "when used in this Act have the meanings 
assigned to them in The Post Office Act, and in cverii case in which the offence 
dealt with in this Act relates to the subject treated of in any other Act, the words 
and expressions used herein in respect to such offence shall have the meaning 
assigned ti them in such other Act, 

The Post Office Act is c. 35 of the Revised Statutes. 

Carnal Knowledge Defined. 

Seo. 4a. — Carnal knowledge is complete upon penetration to any, even 
to the slightest degree, and even without the emission of seed ; (amendment of 
1893). 

Offences Against Imperial Statutes. 

S* No person shall be proceeded against for any offence against any Act 
of the Parliament of England, of Great Britain, or of the United Kingdom of 
Great Britain and Ireland, unless such Act is, by the express terms thereof, or 
of some other Act of such Parliament, made Gi)plinable to Canada or some por- 
tion thereof as part of Her Majesty's dominions or possessions. 

By 28-29 V. c. 63 (Imp.), any colonial law repugnant to 

any Act of the Imperial Parliament is, to the extent of that 

repugnancy, void. 

Punishments. 

©• Every one who commits an offence against this Act is liable as herein 
provided to one or more of the following punishments : — 

{a) Death, ss. 65, 68, 127, 129, 231, 267, 935 to 949 ; ss. 6, 7, c. 146 
R. S. C. 

(6) Imprisonment, ss. 950 to 956 ; 

(c) Whipping, s. 957 ; ' 

id) Fine, s. 958 ; 

(«) Finding sureties for future good behaviour, s. 958 ; 

(/) If holding office under the Crown, to Ikj removed therefrom, s. 961 ; 

itl) To forfeit any jjension or superannuation allowance, s. 961 ; 

(h) To be disqualified from holding office, from sitting in Parliament and 
from exercising any franchise, s. 961. 

(t) To pay costs, s. 832 ; 

iJ) To indemnify any [lerson suffering loss of property by commission of 
his offence, s. 836. 

Why is this enactment limited to offences against " this 
Act" ? 



MJ 



f- All rule 
stances a justifi 
remain in force 
except in so fan 

8- The mat 
to be justifioatio 

" We rega 

important poi 

it desirable tl 

arises of so u 

decided with r 

being so fram 

to which the 

become the du 

find him guil 

defence on the 

be pardoned I 

declaring the ] 

that the comm 

preserved in a 

have endeavou] 

('S""e. 7 ante), h 

•• No persor 
omission of such p« 

That is the 
capacity of an 
be admitted : s 

Oh 

10. No |)er8oi 

omission of such |)er 

years, unless he wai 

conduct, and to app 



SeoB. 7-10] 



COMMON LAW RULES. 



PART II. 
, MATTERS OF JUSTIFICATION OR EXCUSE. 

Common Law Rules. 

7. All rules and principles of the common law which render any circum- 
stances a justification or excuse for any act, or a defence to any charge, shall 
remain in force and be applicable to any defence to a charge under this Act 
except in so far as they are hereby altered or are inconsistent herewith. 

8. The matters provided for in this part are hereby declared and enacted 
to be justifications or excuses in the case of all charges to which they apply. 

•* We regard this as one of the most difficult as well as most 
important portions of the draft Code. . . . We do not think 
it desirable that, if a particular combination of circumstances 
arises of so unusual a character that the law has never been 
decided with reference to it, there should be any risks of a code 
being so framed as to deprive an accused person of a defence 
to which the common law entitles him, and that it might 
become the duty of the Judge to direct the jury that they must 
find him guilty, although the facts proved that he had a 
defence on the merits, and would have an undoubted claim to 
be pardoned by the Crown. While, therefore, digesting and 
declaring the law as applicable to the ordinary cases, we think 
that the common law, so far as it affords a defence, should be 
preserved in all cases not expressly provided for. This we 
have endeavoured to do by section 19 of the draft Code." — 
{Sue. ? ante), Imp. Comm. Rep. 

Children Under Seven. 

9* No person shall be convicted of an offence by reason of any act or 
omission of such person when under the age of seven years. 

That is the common law: 4 Blacks. 23. No proof of the 
capacity of an infant under seven to commit a crime can 
be admitted: see R. v. Owen, Warb. Lead. Cas. 19. 

Children Between Seven and Fourteen. 

10* No i)er8()n shall be convicted of an offence by reason of an act or 
omission of such (Ktrson when of the age of seven, but under the age of fourteen 
years, unless he was competent to know the nature and consequences of his 
conduct, and to appreciate that it was wrong. 



\ 



•*»■'.■ 



I; 



8 



JUSTIFICATION OR EXCUSE. 



[Sec. 11 



^Bsa 






Such an infant is presumed to be incapable to commit 
any crime until the contrary is proved, and such a proof 
must be clear and beyond all doubt : 4 Blacks. 23. 

A boy under fourteen cannot, in law, commit a rape ; 
section 266; nor the offence of carnally knowing a girl 
under fourteen, under section 269, R. v. Waite, [1892], 
2 Q. B. 600, nor, any of the offence? , where carnal con- 
nection with a woman is a necessar}'^ ingredient of the 
offence, or any attempt to commit rape or any of the above 
mentioned offences: compare R. v. Eldershaw, 3 C. & P. 396 ; 
R. V. Groombridge, 7 C. & P. 582 ; R. v. Philips, 8 C. & P. 
736; R. V. Jordan, 9 C. & P. 118 ; R. v. Brimilow, 2 Moo. 
122, 1 Russ. 8 ; R. v. Allen, 1 Den. 364. 

A person of the age of fourteen and upwards is pre- 
sumed to have capacity to commit any crime until the 
contrary is proved : see R. v. Owen, Warb. Lead. Cas. 19 ; 
R. V. Vamplew, 3 F. & F. 520. 

Insanity. 

11* No iierson shall be convicted of an offence by reason of an act done or 
omitted by him when labouring under natural imbecility, or disease of the 
mind, to such an extent as to render him incapable of appreciating the nature 
and quality of the act or omission, and of knowing that such act or omission 
was wrong. 

2. A person labouring under specific delusions, but in other respects sane^ 
shall not be acquitted on the ground of insanity, under the provisions herem- 
after contained, unless the delusions caused him to believe in the existence of 
some state of things which, if it existed, would justify or excuse his act or 
omission. 

3. Every one shall be presumed to be sane at the time of doing or omitting 
to do any act until the contrary is proved. 

See 3 Burn's Just. 180; 1 Russ. 11; R. v. Oxford, Warb. 
Lead. Cas. 21, and eases there cited; R. v. Davis, 14 Cox, 563; 
R. V. Dubois, 17 Q. L. R. 203; R. v. Dove, 3 Stephen's 
Hist. 426. 

" Section 22 {sec. 11, ante), which relates to insanity, ex- 
presses the existing law. The obscurity which hangs over the 
subject cannot altogether be dispelled until our existing ignorance 
as to nature of the will and the mind, the nature of the organs 
by which they operate, the manner and degree in which those 



Sec.l2] 

operations e 
diseases whi 

" The fri 
and anxiety 
be altogethe 
nature of th 
case, be left 
facts in each 



It must be b( 

which is appl 

put forward i; 

and we thinl 

ment which t 

" In the ci 

the ofiender \ 

not to such J 

words where t 

in a greater or 

can apportion 

making allowa 

"But in a c 

to the executi 

cannot be 8ucc< 

would be both 

occur which C8 

by such an app 



■•• Except I 

diate death or gr 

commission of the < 

subject to such thn 

who is not a party 

rendered liim subje* 

in paragraplis a, b, 

piracy, offences dee 

forcible abduction, 

Ji- V. Tyler, 8 C. d- 



Sec. 12] 



COMPULSION BY THREATS. 



^ 



operations are interfered with by disease, and the nature of the 
diseases which interfere with them, are greatly diminished. 

" The framing of the definition has caused us much labour 
and anxiety; and though we cannot deem the definition to 
be altogether satisfactory, we consider it as satisfactory as the 
nature of the subject admits of. Much latitude must, in any 
case, be left to the tribunal which has to apply the law to the 
facts in each particular case. 



It must be borne in mind, that although insanity is a defence 
which {r applicable to any criminal charge, it is most frequently 
put forwaid in trials for murder, and for this oflfence the law — 
and we think wisely — awards upon conviction a fixed punish- 
ment which the Judge has no power to mitigate. 

" In the case of any other o£fence if it should appear that 
the offender was afflicted with some unsoundness of mind, but 
not to such a degree as to render him irresponsible — in other 
words where the criminal element predominates though mixed 
in a greater or less degree with the insane element, the Judge 
can apportion the punishment to the degree of criminality, 
making allowances for the weakened or disordered intellect. 

" But in a case of murder this can only be done by an appeal 
to the executive ; and we are of opinion that this difficulty 
cannot be successfully avoided by any definition of insanity which 
would be both safe and practicable, and that many cases must 
occur which cannot be satisfactorily dealt with otherwise than 
by such an appeal." — Imp. Comm. Rep. 

Compulsion by Threats. 

12« Except OH hereinafter provided, compulsion by threats of imme- 
diate death or grievous bodily harm from a person actually present at the 
commission of the oflfence shall be an excuse for the commission, by a iwrson 
subject to such threats, and who believes such threats will be executed, and 
who is not a party to any association or conspiracy, the being a party to wliich 
rendered him subject to compulsion, of any oflfence other than treason as defined 
in paragraphs a, b, c, d and e of sub-section one of section sixty -five, murder, 
piracy, oflfences deemed to be piracy, attempting to murder, assisting in rai)e, 
forcible abduction, robbery, causing grievous bodily harm, and arson ; See 
R V. TyUr, 8 C. cD P. 616, Warb. Lead Cas. 31. 



m ' 



1^ 



t. 



''Htl 





i 




: 1 






|: 


1 

1 



k 






10 



JUSTIFICATION OR EXCUSE. 



[Sec. 12 





" There can be no doubt that a man is entitled to preserve 
his own life and limb ; and, on this ground, he may justify 
much which otherwise would be punishable. The cases of a 
person setting up as a defence that he was compelled to commit 
a crime is of everyday occurrence. There is no doubt on the 
authorities that compulsion is a defence where the crime is not 
of a heinous character. But killing an innocent person, accord- 
ing to Lord Hale, can never be justified. He lays down the 
stern rule : ' If a man be desperately assaulted and in peril of 
death, and cannot otherwise escape, unless to satisfy his 
assailant's fury, he will kill an innocent person there present, 
the fear and actual force will not acquit him of the crime and 
punishment of murder, if he commit the fact; for he ought 
rather to die himself than kill an innocent.' On the trials for 
high treason in 1746, the defence of the prisoners was in many 
cases that they were compelled to serve in the rebel army. The 
law was laid down somewhat more favourably for the prisoners 
than it had been before, as the defence of compulsion was stated 
to apply not merely to furnishing provisions to the rebel army, 
but even to joining and serving in that army. It was laid down 
{See Foster 14) that, ' The only force that doth excuse is force 
upon the person and present fear of death ; and this force 
and fear of death must continue all the time the party 
remains with the rebels. It is incumbent on every man who 
makes force his defence, to show an actual force, and that he 
quitted the service as soon as he could.' It is noticeable that 
though most of those who set up this defence must have fought 
in actual battle and must have killed, or at least assisted in 
killing the loyalists, and so brought themselves within the stern 
rule laid down by Hale, it was never suggested that this made a 
difference. We have framed section 23 {sec. 12, ante) of our 
Draft Code, to express what we think is the existing law, and 
what at all events we suggest ought to be the law." — Imp. 
Comm. Rep. 

As to homicide by necessity, see R. v. Dudley, 14 Q. B. D. 
273, Warb. Lead. Cas. 102; United States v. Holmes, 
1 Wall, jr., 1. 




Sees. 13,14] 

18» No pi 

oflfenoe dues so 
husband. 

This al< 
married wo 
treason and 
under coerc 
Cas. 26, and 
1 Russ. 33, Qi 



14. The fact 
any oflFenoe comm 

See R, V. 

Car. & M. 308 

in Warb. Lead 

Where the 
having been w: 
is immaterial: 
criminal purpoj 
it is wilfully dc 
thing: 4th Rep 

In R. V. Cra\ 

*nt guilty, biit i 

acting contrary 

ignorance of tl; 

ignorance of faci 

i^isi mens sit r 

Tolson, IQ Cox, ( 

and cases there 

^' V. Hicklin, J 

Cox, 421, and cas 

Though drunii 
where the intenti, 
the offence itself, \ 
at the time may b 



li 



^•^3.14J COMPULSION OP WIPE. 

1« le Compulsion of Wiric. (jv,,„^ 

Jnis alters the law aii „«. 
•narried woman i„ presencT f k T """"-itted by a 

under coercion: R. v. To^etj 2^ "'^"^ ''«»'• «»mmitt^ 

C^. 26, and caaes there cS Vv B^ '\ "'""• '^■ 
1 K"88. 33, and Greaves' note W. ^'""'"""'e, 1 fo^. jgg. 

C».rM^;S;T!rH;,f 3'r^i\«-^ «^ ^ V. Reed 
•n Warb. Lead. Ca,. 204 ^^ '*"' «■ ^- H^™, cited 

.'-Sre:tiS;dte"&^ ? «* ^^P^^^^ »pon i^ 
^.immaterial: 7th Ccrim L r """''" "* the offender 
C"n.i»al purposes, the'^intenTion toTo"!.'*"' ^''- !»• ^ - 
J » wilfully done. Inten«on and m J ''°' ^^'''^ '^''^-'e 
tlung: 4th Rep. XV. and 7th Rep 2" "' "<""•« «■"»« 

In R V. Crawshaw. BelJ 9ftQ +1, • 
«>' guilty, bit that h d d noTkl:-'"'^^"'' ">" ''^f^d- 
«ct.ng contrary to w. But slid th! ^""iT *'"" •>« ™« 
Jg-orance of the statute is '„ t """j ""' "'^^"dants 

ignorance of fact, and the rue Ihat.? °' '"'"• ^» »" 
«w vmts sit rear see R 7 p ""'"^ "-"»/««< '^«m 
Tolson, 16 Cox. 629, 2?q B d 3'J' ,«» ^38; R , 
«nd cases there cited- E v V ' ^'"■"'- ^d. Cas, 72 

R- V. Hicklin, L. R aV'B ;r "J^"''- ^- «"«• l^' 

'^;:"'r -- *^ -«er s!!LX:.""'" " 

the offence iteelf, theict thaTih'' '^'"'^ '^ "» ^'«'""^nt of 
--time maybe taC:i::::-rro„7y;tX;- 




ifiiii 



•4 ' i 









A I 
f' ' 






,1 






12 



JUSTIFICATION OR EXCUSE. 



[Sees. 15, 1» 




;^! '^1 



considering whether he had the intention necessary to con- 
stitute the offence charged: R. v. Cruse, Warb. Lead. Cas. 24, 
and cases there cited: R. v. Doherty, 16 Cox, 306; R. v. 
Carroll, 7 C. & P. 145; 1 Russ. 12, and Greaves' note. 

Ignorance of the law, an excuse in a specified case under 
section 21, post. 

As to liability, in criminal law, of masters for the acts 
of their servants: see R. v. Stephens, Warb. Lead. Cas. 37; 
Bond V. Evans, 16 Cox, 461, 21 Q. B. D. 249 ; R. v. Bennett^ 
Bell, 1 ; R. V. Allen, 7 C. & P. 153 ; Chisholm v. Doulton, 16 
Cox, 675, 22 Q. B. D. 736, and cases there cited; Kearley v. 
Tylor, 17 Cox, 328; Elliott v. Osbora, 17 Cox, 346; Brown 
V. Foot, 17 Cox, 509. 

ExKCUTioN OF Sentence. 

15» Every ministerial officer of any court authorized to execute a lawful- 
sentence, and every gaol.^r, and every person lawfully assisting such ministe- 
rial officer or gaoler, is justified in executing such sentence. 

That is common law. What the law requires, it justifies. 
Quando aliquul niandatur, mandatur et omne per quod 
pervenitur ad ilhul (5 Rep. 115 b.) See post, sections 18^ 
& 19, as to erroneous sentences, and note under section 16 a» 
to the word justified. 

Execution of PnooEss. 
in* Every ministerial officer of any court duly authorized to execute any 
lawful process of such court, whether of a civil or a criminal nature, and every 
person lawfully assisting him, is justified in executing the same ; and every 
gaoler who is required under such process to receive and detain any person {» 
justified in receiving and detaining him. 

See note under preceding section, and R. v. King, 18- 
O. R. 566. 

" There is a diflference in the language used in the sections 
in this part which probably requires explanation. Sometimes 
it is said that the person doing an act i? "justified " in so doing 
under particular circumstances. The effect of an enactment 
using that word would be not only to relieve him from punish- 
ment, but also to afford him a statutable defence against a civil 
action for what he had done. Sometimes it is said that a 



'j;i "i: 



4^ 



8eo. 16] 



EXECUTION OF PROCESS. 



13 



person doing an act in ' protected from criminal responsibility ' 
under particular circumstances. The effect of an enactment using 
this language is to relieve him from punishment, but to leave 
his liability to an action for damages to be determined on other 
grounds, the enactment neither giving a defence to such an 
action where it does not exist, nor taking it away where it does. 
This difference is rendered necessary by the proposed abolition 
of the distinction between felony and misdemeanour. 

"We think that in all cases where it is the duty of a peace 
officer to arrest, (as it is in cases of felony) it is proper that he 
should be protected as he now is, from civil as well as from crim- 
inal responsibility. And as it is proposed to abolish the distinction 
between felony and misdemeanour, on which most of the exist- 
ing law a3 to arresting without a warrant depends, we think it 
is necessary to give a new protection from all liability (both civil 
and criminal) for arrest, in those cases which by the schemes of 
the Draft Code are (so far as the power of arrest is concerned) 
substituted for felonies. In those cases therefore which are 
provided for in sections 82, 33, 34, 87, 88, {22, 23, 24, 27, 28, of 
this Code) the word ' justified ' is used. A private person is, by 
the existing law, protected from civil responsibility for arresting 
without warrant a person who is on reasonable grounds believed 
to'have committed a felony, provided a felony has actually been 
committed, but not otherwise. In section 85, {25 of this Code) 
providing an equivalent for this law, the word used is 'justified,' 

" On the other hand, where we suggest an enactment which 
extends the existing law for the purpose of protecting the person 
from criminal proceedings, we have not thought it right tl;ai it 
should deprive the person injured of his right to damages. 

" And in cases in which it is doubtful whether the enactment 
extends the existing law or not, we have thought it better not to 
prejudice the decision of the civil courts by the language used. 
In cases therefore such as those dealt with by sections 29, 80, 81, 
86, 89, 46, 47, {19, 20, 21, 26, 29, 36, 37, of this Code) we have 
used the words ' protected from criminal responsibility.' " — Imp. 
Coram. Eep. 

Parliament clearly assumed that they have the same 
right to deal with this subject that the Imperial Parliament 
has:— Qwcere ? 



P 



3? 




#, 




14 



JUSTIFICATION OR EXCUSE. 



[Seos. 17, 18 



Execution of Wabrants. 

17* Every one duly authorized to execute a lawful warrant issued by any 
court or justice of the peace or other person having jurisdiction to issue such 
warrant, and every person lawfully assisting him, is justified in executing such 
warrant ; and every gaoler who is required under such warrant to receive and 
detain any person is justified in receiving and retaining him. , 

See note under section 15: R. v. Davies, 8 Cox, 486, 
and note under section 16 as to the yfovd justified. 

A warrant can only be executed by the person to whom 
it is directed, and if executed by any other this other 
commits a trespass: Symonds v. Kurtz, 16 Cox-, 726. 

Execution of Erroneous Sentence or Process. 

18« If a sentence is passed or process issued by a court having jurisdiction 
under any circumstances to paaa such a sentence or issue such process, or if a 
warrant is issued by a court or person havinpr jurisdiction under any circum- 
stances to issue such a warrant, the sentence passed or process or warrant 
issued shall be sufficient to justify the officer or person authorized to execute 
the same, and every gaoler and person lawfully assisting in executing or 
carrying out such sentence, process or warrant, although the court passing the 
sentence or issuing the process had not in the particular case authority to pass 
the sentence or to issue the process, or althouyh the court, justice or other person 
in the particular case had no jurisdiction to issue, or exceeded its or his jurisdic- 
tion in issuing the warrant, or tvas, at the time when such sentence was passed or 
process or warrant issued, out of the district in or for which such court, Justice 
or person teas entitled to act. 

See West v. Smallwood, 3 M. & W. 418. 

" The latter part of this section (in italics) perhaps extends 
the law." — Imp. Comm. Rep. 

See note under section 16 as to the word justified. 

" The result of the authorities justifies us in saying that 
wherever a ministerial officer, who is bound to obey the orders 
of a court or magistrate (as, for instance, in executing a sentence 
or effecting an arrest under warrant), and is punishable by 
indictment for disobedience, merely obeys the order which he 
has received, he is justified, if that order was within the juris- 
diction of the person giving it. 

"And we think that the authorities show that a ministerial 
officer obeying an order of the court, or the warrant of a magis- 
trate, is justified, if the warrant or order was one which the 
court or magistrate could, under any circumstances, lawfully 



Sees. 19, 20] 

Issue, thou 
improperly ; 
particular ct 
warrant oivi: 
terial officer 
wl.ich the or 
acting on tl 
jurisdiction." 



10» Every 

warrant, and ev« 

shall be protecte< 

the belief that th 

or that the warra 

having authority 

the sentence or iss 

some appointmoni 

court, or that the 

other person havir 

mission did not ex 

passing the senten 

authorized by the i 

duly authorized so 

See note u 
responsibility.' 

" Though ca 

we think we art 

498) in saying 

jurisdiction, the 

the ministerial o 



SsO. Every one 

upon arrests a persor 

grounds that he is th 

cri/nunal respoMibUit, 

if the person arrested 

(2) Every one o 

believing that the per 

for whose arrest the 

receive and detain sue 

ject to the same provii 

in the warrant. 



Sec8. 19, 20] 



SENTENCE OR PROCESS. 



15 



issae, though the order or warrant was in fact obtained 
improperly ; or, though there was a defect of jurisdiction in the 
particular case, which might make the magistrate issuing the 
warrant civilly responsible : on the plain principle that a minis* 
terial officer is not bound to enquire, what were the grounds on 
wl.ich the order or warrant was issued, and is not to blame for 
acting on the suppositiou, that the court or magistrate had 
jurisdiction." — Imp. Comm. Rep. 

Sentence or Process without Jurisdiction. 

10* Every oiBcer, gaoler or person executing any sentence, process or 
warrant, and every person lawfully assisting such officer, gaoler or person, 
shnll be protected from criminal responsibility if he acts in good faith under 
the belief that the sentence or process was that of a court having jurisdiction 
or that the warrant was that of a court, justice of the peace or other person 
having authority to issue warrants, and if it be proved that the person passing 
the sentence or issuing the process acted as such a court under colour of having 
some appointment or commission lawfully authorizing him to act as such a 
court, or that the person issuing the warrant acted as a justice of the peace or 
other person having such authority, although in fact such apix>intment or com- 
mission did not exist or had expired, or although in fact the court or the person 
passing the sentence or issuing the process was not the court or the person 
authorized by the commit<sion to act, or the person issuing the warrant was not 
duly authorized so to act. 

See note under section 16 as to the words, " criminal 
responsibility." 

" Though cases of this sort have rarely arisen in practice, 
we think we are justified by the opinion of Lord Hale (1 Hale^ 
498) in saying that the order of a court, having a colour of 
jurisdiction, though acting erroneously, is enough to justify 
the ministerial officer." — Imp. Comm. Rep. 

Arresting the Wrong Person. {New). 

40. Every one duly authorized to execute a warrant to arrest who there- 
upon arrests a person, believing in good faith and on reasonable and probable 
grounds that he is the person named in the warrant, shall be protected from 
criminal respotuibility to the same extent and subject to the same provision as 
if the person arrested had been the person named in the warrant. 

(2) Every one called on to assist the person making such arrest, and 
believing that the person in whose arrest he is called on to assist is the person 
for whose arrest the warrant is issued, and every gaoler who is required to 
receive and detain such person, shall be protected to the same extent and sub- 
ject to the same provisions as if the arrested person had been the person named 
in the warrant. 



lii 

•3 


1 






I, 
'■ 



I' I! 



^!i^'' 






I 







f 



16 



JUSTIFICATION OR EXCUSE. 



[Seofl. 21, 22 



See note under section 16 as to the words " criminal 
responsibility." 

" This is new. As an of&oer arresting for felony without 
warrant is by the common law justified even if he by mistake 
arrests the wrong person, we think that the man who arrests 
any person with a warrant for any offence shall at least be 
protected from criminal responsibility. The right of action is 
not affected by it." — Imp. Comm. Rep. 

Irrboular Warrant or Process. 

Sll» Every one acting under a warrant or process which is bad in law on 
account of some defect in substance or in form apparent on the face of it, if he 
in (^ood faith and without culpable ignorance and negligence believes that the 
warrant or process is gfxxl in law, shall be protected from criminal responsibility 
to the same extent and subject to the same provisions as if the warrant or 
process were gnoA in law, and ijnnrance of the law shall in such case be an 
excuse: Provided, that it shall be a question of law whether the facts of which 
there is evidence may or may not constitute culpable ignorance or negligence in his 
30 believing the warrant or process tp be good in law. 

See note under section 16 as to the words "criminal 
responsibility." 

" It is at least doubtful on the existing authorities whether a 
person honestly acting under a bad warrant, defective on the 
face of it, has any defence, though only doing what would have 
been his duty if the warrant was good. The section, as framed, 
protects him. The proviso is new, but seems to be reasonable. 
It does not touch the question of civil responsibility." — Imp. 
Comm. Bep. 

See R. V. Monkman, under section 263 post. 

ARRK8T Bv Peace Officer. 

33> Every peace officer who, on reasonable and probable grounds, believes 
that an offence for which the offender may be arrested without warrant has 
been committed, whether it has been committed or not, and who, on reasonable 
and probable grounds, believes that any person has oommitted that offence, is 
justified in arresting such psrson without warrant, whether such person is 
guilty or not. 

"Peace Officer" defined, section 3. See note under 
section 16, as to the word justijied. Section 552 defines 
for what offence an arrest may be made without warrant. 
This section 22 is a re-enactment of the law as to felonies. 



Sect. 23-27] PERSONS ASSISTING PEACE OFFICER. 



17 



Pkrhons Ahhihcino Pkacr Okpiorr. 

88* Every one called upon to asBiHt a Tieaoe officer in the arrest of • 
person iiu8i>ecte<l of having cuinniitti'<1 >4uch offeno«< tt laitt aforeHaid, ia juit(fied 
in awiiating, if he knows that the persun culling on him for aasiiitance is a peace 
officer, and does not know lli t there in no reasonable grounds for the 
suspicion. 

This is the common law. »SV^ note under section 16 as 

to the word justified. 

Arrest Without Warrant. 

84. Every one is ju»tificd in arresting without warrant any person whom 
he finds committing any offence for which the offender may be arrested without 
warrant, or may be arrested when found committing. 

See note under section 16 as to the vforiX justified. 

See section 552, post, as to arrests. It is not clear that 
it was necessary to enact in these sections that a person who, 
being by law duly authorized to do so, arrests any one with- 
out warrant is justified in so doing. 

The words "finds committing" in this and similar 
enactments are to be construed strictly: R. v. Phelpj, 
Car. & M. 180. See remarks under section 552, i^ost. 

Arrest Aktrr Commission ok an Offence. 

89* If any offence for which the offender may be arrested without 
warrant has been committed, any one who, on reasonable and probable 
grounds, believes that any per3(m is guilty of that offence is juitified in 
arresting him without warrant, whether such person is guilty or not. 

See sub-section 4, section 552. See note under section 

16 as to the word justified. 

Arrest for Major Offences Committed bt Night. 

80. Every one is protected from criminal responsibilitti for arresting 
without warrant any jierson whom he, on reasonable ond probable grounds, 
believes he finds committing by night any offence for which the offender may 
be arrested without warrant. 

"Night" defined, section 3. By sub-section 3, section 
552, any person may arrest without warrant any one 
whom he finds by night committing any oftence against 
this Act. See note under section 16 as to the words 
"criminal responsibility." 

Arrest by Peace Officer. 

87* Every peace officer is justified in arresting without wanant any 
person whom he finds committing any offence. 
Crim. Law— 2 



m 



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A. 

I 









I 



f 



•■r. 



18 



JUSTIFICATION OR EXCUSE. 



[Sees. 28-30 






See note under section 16 as to the word justified. 
" Peace officer " defined, section 3. As to arrest without 
warrant see section 552, sub-section 3, which applies only 
to offences against this Act. An officer is bound to arrest 
in many cases, but the Code has no reference to it. 

Arhest of Person Cojimittinc. an Ofkknce by Night. 

3S* Every one is justified in arresting without warrant any person 
whom he finds by night committing? any offence. 

2. Every peace officer is justified in arresting without warrant any person 
whom he finds lying or loitering in any highway, yard or other place by night, 
and whom he has good cause to suspect of having cooimitted or being about to 
commit any offence /or which an offender viaii be arrested icithuut warrant. 

The words in italics are a clear error, as reference to 

sub-section 7, section 552 will show. See sub-sections 4 

and 7 of section 552. " Nij^ht " and " peace officer " 

defined, section 3. See note under section 16 as to tho 

word justified. 

Arrest During Flight 

20. EJvery one is protected from criminal responsihility for arresting 
without warrant any person whom he, on reasonable and probable grounds, 
believes to have committed an offence and to be escaping from and to be freshly 
■pursued by those whom he, on reasonable and probable grounds, believes to 
have lawful authority to arrest that person for such offence. 

See sub-section 4, section 552. See note under section 
16 as to the words "criminal responsibility." 

" This is believed to extend the common law, which applies 
only to the arrest of persons actually guilty. It does not affect 
the question of civil liability." — Imp. Comm. Rep. 

This and all these 9Jiin sections were necessary in the 
Imperial Code because it contained no section as section 
552 of this Code, under which the arrests it authorizes to 
be made relieves in law the parties making them from all 
liability whatever, without it beinp; necessary to enact it 
expressly. Wiiat the law authorizes it justifies, and these 
enactments are superfluous besides being diffuse and, per- 
haps, in part at least, idtra vires. 

Statutory Power of Arrest. 
3(L Nothing in this Act shall take away or diminish .inv authority given 
by any Act in force for the time being to arrest, detain or put any restraint on 
any person. 



Sees. 31-33] 

31. Every 
cuting any sent 
one lawfully asf 
bility, as the oaa 
any force used 
process or warra: 
in a less violent : 

See note 
section 16 i 
responsibility 

See Dilloi 

32- It is th€ 

it with him, and i 

2. It is tlie d 
warrant, to give 
which he acts, or 

3. A failure t 
deprive the person 
son arrestiu'j, o/p, 
the inqiiirif whethe 
arrest effected, by » 

" This [sub. 
—Imp. Comm. 

See Codd v 
B. V. Cumptor 

Peace Officer P 

33. Every p( 
warrant, any perse 
witliout warrant, a 
the person to be iir 
may be necessary 
be prevented by «• 

See note u 
" Peace officer 

" It is also J 
the exercise of ^ 
in a reasonable 
guilty of such ej 
quality of his ac 

See section 



Sec8. 31-33] 



MODE OF ARRESTING. 



19 



Mode of Ahrestino. 
31. 'Kvery uuv Justified or protected from criminal responsibility in exe- 
cuting any sentence, warrant or process, or in making any arrest, and every 
one lawfully assisting him, is justified, or protected from criminal responsi- 
bility, as the case may be, in using such force as may be necessary to overcome 
any force used in resisting such execution or arrest, unless the sentence, 
process or warrant can be executed or the arrest effected by reasonable means 
in a less violent manner. 

See note under sections 33 & 45, post, and note under 
section 16 as to the words "justified" and "criminal 
responsibility." 

See Dillon v. O'Brien, 16 Cox, 245. 

Duty of Persons Arresting. 

32- It is the duty of every one executmg any process or warrant to have 
it with him, and to produce it if required. 

2. It is the duty of every one arresting another, whether with or without 
warrant, to give notice, where practicable, of the process or warrant under 
which he acts, or of the cause of the arrest. 

3. A failure to fulfil cither of the two duties last mentioned shall not of itself 
deprive the person executinij the process or warrant, or his assistants, or the per- 
son arrestiwj, of protection from criminal responsihilitji, but shall be rdevaat to 
the inqiiiri/ whether the process or ivarrant mi'/ht not have been execute I, or the 
arrest effected, by reasonable means in a less violent manner. 

" This {sub-section 3) is believed to alter the common law." 
— Imp. Comm. Rep. 

See Codd v. Cabe, 1 Ex. D. 352; K. v. Carey, 14 Cox, 214 ; 
R. V. Cumpton, Warb. Lead. Cas. 215, and cases there cited. 

Peace Ofi'icek Puevknting Escape frojc Arrest for Major Offen'ces, 

33. Every i)eace officer proceeding lawfully to arrest, with or witliout 
warrant, any person for any offence for which the offender may be arre?<ted 
witliout warrant, and every one lawfully assisting in such arrest, ia just ifii'd, if 
the \)erson to be arrested takes to flight to avoid arrest, in using such force as 
may be necessary to prevent liis escape by such flight, unless such escape can 
be prevented by reasonable means in a less violent manner. 

See note under section 16 as to the word justified.. 
" Peace officer " defined, section 3. 

" It is also a principle of the common law that all powers', 
the exercise of which may do harm to others, must be exercised 
in a reasonable manner, and that if there is excess, the person 
guilty of such excess is liable for it according to the nature and 
quality of his act." — Imp. Comm. Rep. 

See section 57, post 



'» 










20 



JUSTIFICATION OR EXCUSE. 



[Sec8. 34-38 



Privatb Person Preventing such Escape. 

34. Every private person proceedinff lawfully to arrest without warrant 
any person for any offence for which the offender may be arrested without 
warrant is justified, if the person to be arrested takes to flight to avoid arrest, 
in using such force as may be necessary to prevent his escape by flight, unless 
such escape can be prevented by reasonable means in a less violent manner : 
Provided, that such force w neither intended nor likely to cause death or grievous 
h'niilij luirm. 

See note under section 16 as to the word justified. 
" There is some obscurity as to the existing law on this 
point." — {2'he irnnh in italics) — Imp. Coram. Rep. 

Other Preventing Escape from Arrest. 

35* Every one proceeding lawfully to arrest any person for any cause 
iDther than such offence as in the last section mentioned is justified, if the per- 
-son to be arrested takes to flight to avoid arrest, in using such force as may be 
"necessary to prevent his escape by flight, unless such escajje can be prevented 
•by reasonable means in a less violent manner: Provided such force is neither 
intended nor likely to cause dea'h or grievous bodily harm. 

See note under preceding section. 

Preventing Escape or Rescue in Major Offences, 

30« Every one who has lawfully arrested any person for any offence for 
which the offender may be arrested without warrant is protected from crimiiml 
responsibility in using such force in order to prevent the rescue or escape of the 
person arrested as he believes, on reasonable grounds, to be necessary for that 
purpose. 

'• This seems to extend the law so far as regarils private 
persons ; 2 Hale, 88." — Imp. Comm. Rep. 

See note under section 10 as to the words "criminal 
responsibility." 

Preventing Escape or Rescue in Minor Offences. 

37. Every one who has lawfully arrested any person for any cause other 
than an offence for which the offender may be arrested without warrant is 
protected from criminal responsibility in using such force in order to prevent 
his escape or rescue as he believes, on reasonable grounds, to be necessary for 
that purpose : Provided that such force is neither intended nor likely to cause 
death or grievous bodily harm. 

See note under preceding section. 

Preventing Breach of the Peace. 

38. Every one who witnesses a breach of the peace is justified in inter- 
fering to prevent its continuance or renewal and may detain any person 
committing or about to join in or renew such breach of the peace, in order t^ 
gi^'° bim into the custody of a peace officer: provided that the person inter- 



iS^ecs. 39-41] 

faring uses no n 
continuance or rei 
portioned to the d 
such breach of the 

See sectioE 

39. Every .p( 
person lawfully ass 
he finds committin 
probable grounds, 
peace 

2. Every peace 
into his charge as h 
or whom such peact 
have, witnessed sue 

" Peace offi( 

See Timothy 

Brewster, 2 Q. 

Webster v. Wal 

as to the word \ 

V 

St 
40. Every sheri 
head officer of any c 
justice of the peace, i 
peace officer is justifi, 
able and probable gi 
as is not disproportioi 
grounds, believes to b 

" Peace office] 
punislnnent, sec 
IG a.s to tlie w 
2 L. C. J. 251. 
endeavour to sup 

41. Every one, v 
faith in obedience to < 
other head oficer or ac 
or by any magistrate o 
justified in obeying th 
unlawful, and is protec 
he, on reasonable and p 
into effect such orders. 

2. It shall be a ques 
unlawful or not. 



l^ecB. 39-41] 



SUPPRESSION OF RIOT. 



21 



fering uses no more force than is reasonably necessary for preventing the 
continuance or renewal of such breach of the peace, or than is reasonably pro- 
portioned to the danger to be apprehended from the continuance or renewal of 
such breach of the peace. 

See section 142, post. 

S9. Every peace officer who witnesses a breach of the peace, and every 
person lawfully assisting him, is justified (bound ?) in arresting any one whom 
he finds committing such breach of the peace, or whom he, on reasonable and 
probable grounds, believes to be about to join in or renew such breach of the 
peace 

2. Every peace officer is justified in receiving into custodj' any person given 
into his charge as having been a party to a breach of the peace by one who has, 
or whom such peace officer, upon reasonable and probable grounds, believes to 
have, witnessed suoh breach of the peace. 

" Peace officer " defined, section 3. 
See Timothy v. Simpson, 1 C. M. & R. 757 ; Baynes v. 
Brewster, 2 Q. B. 375; Price v. Seeley, 10 CI. & F. 28; 
Webster v. Watts, 11 Q. B. 311. See note under section 16 
as to the word justified. 

Suppression op Riot by Magistrates. 

40. Every sheriff, deputy sheriff, mayor or other head officer or acting 
head officer of any county, city, town or district, and every magistrate and 
justice of the peace, is justified in using and ordering to be used, and every 
peace officer is justified in using such force as he, in good faith, and on reason- 
able and probable grounds, believes to be necessary to suppress a riot, and 
as is not disproportioned to the danger w hiuh he, on reasonable and probablo 
grounds, believes to be apprehended from the continuance of the riot. 

" Peace officer" defined, section 3. "Riot" defined, and 

punishment, section 80 et seq. See note under section 

16 as to the word jadified. See Stevenson v. Wilson, 

2 L. C. J. 251. A sheriff or other officer is bound to 

endeavour to suppress a riot : s. 140 post. 

Other Suppkkssion of Riot. 

4:1 • Every one, whether subject to military law or not, acting in good 
faith in obedience to orders given by any sheriff, deputy-sheriff, mayor or 
otlier head oficer or acting head officer of any county, city, town or district, 
or by any magistrate or justice of the i)eace, for the suppression of a riot, is 
justified in obeying the orders so given unless such orders are manifallif 
unlawful, and is protected from criminal rtsponsibility in using such force as 
he, on reasonable and probable grounds, believes to be necessary for carrying 
into effect such orders. 

2. It shall be a question of law whether any particular order is nuinifcsily 
unlawful or not. 






':*i;! 



i.| !■ 




•It. 



22 



JUSTIFICATION OR EXCUSE. 



[Sees. 42-45 



Sec. 46] 



See note under section 16 as to the word justified. 

"Military law" defined, section 3. "Riot" defined, 
section 80. 

" The protection given by this and the following sections to 
persons obeying the orders of magistrates and military officers 
is, perhaps, carried to an extent not yet expressly decided ; but 
see the language of Tindal, C.J., in R, v. Pinney, 6 C. & P. 254, 
and Willes, J., in Keighly v. Bell, 4 F. & F. 763."— Imp. 

Comm. Rep. 

Suppression of Riot, Other Casks. 

42. Every one, whether subject to military law or not, who in good 
faith and on reasonable and probable grounds believes that serious mischief 
will arise from a riot before there is time to i)r()cure the intervention of any 
of the authorities aforesaid, hjusti/ed in using such force as ho, in good faith 
and on reasonable and probable grounds, believes to be necessary for the 
suppression of such riot, and as is not disproportioned to the danger which he, 
on reasonable grounds, believes to be apprehended from the continuance of 
the riot. 

See note under preceding section. 

Protkction of Persons Subject to Military Law. 

43. Every one who is bound by military law to obey tlie lawful command 
of his superior officer is jvstijied in obeying any command given him by his 
superior officer for the suppression of a riot, unless such order is manifestly 
unlawful. 

2. It shall be a question of law whetiier any particular order is manifestly 
unlawful or not. 

See note under section 41. 

Prevention of Major Ofkenoks. 

44. Every one is justified in using such force as may be reasonably 
necessary in order to prevent the commission of any offence for which, if 
committed, the offender might be arrested witliout warrant, and the com- 
mission of which would be likely to cause immediate and serious injury to the 
person or property of any one ; or, in order to prevent any act being done 
which he, on reasonable grounds, believes would, if conmiittod, amount to 
any of such offences. 

See section 552 as to offences for which arrest without 

wari'ant is authorized, and remarks thereunder. See note 

under section IG, as to the word j unified. See Handcock 

V. Baker, 2 B. & P. 260, and R. v. Rose, 15 Cox, 540. 

Sklf-Defknoe— Unprovoked Assault. 

45. Everyone unlawfully assaulted, not hnrini/ jimmdrd siir/i assaidt, is 
justified in repelling force by force, if the force he uses is not meant to cause 



death or grievo 
purixise of self-( 
causes death or ( 
hension of deatl 
assault was origi 
and if he believt 
himself from dea 

See note i 
remarks und 
and cases in 
on Self-Defer 

"We take 

though it sane 

property agains 

prevent crimes 

offenders to jus 

the force used i 

be prevented co 

that the mischi 

pated from, the 

mischief which 

will explain anc 

seem to have h 

thought it ad vis 

only ought to be 

law at present." 



4C Every ont 
provoked an assault 
to such assault, if he 
or grievous bodily hi 
voked, and in the h 
own preservation frc 
not commence the as 
did not endeavour i 
arose, to kill or do 
necessity arose he de 
far as was practicabl 

2. Provocation, \ 
may be given by blov 

See note und 



^?lj ' 



Sec. 46] 



SELF DEFENCE. 



23 



death or grievous bodily harm, and ia no more than is necessary for the 
pur|>ose of self-defence ; and every one so assaulted is justified, though he 
causes death or grievous bodily harm, if he causes it under reasonable appre- 
hension of death or grievous bodilj' harm from the violence with which the 
assault was originally made or with which the assailant pursues his purpose, 
and if he believes, on reasonable grounds, that he cannot otherwise preserve 
himself from death or grievous bodily harm. 

See note under section 16 as to the word justified. See 
remarks under section 265, post : R. v. Knock, 14 Cox, 1, 
and cases in Archbold, 755 ; 3 Blacks. 4 ; Horrigan, Cases 
on Self-Defence, 720 ; see section 229, 2)ost. 

"We take one great principle of the common law to be, that 
though it sanctions the defence of a man's person, liberty and 
property against illegal violence and permits the use of force to 
prevent crimes, to preserve the public peace, and to bring 
offenders to justice, yet all this is subject to the restriction that 
the force used is necessary ; that is, that the mischief sought to 
be prevented could not be prevented by less violent means ; and 
that tlie mischief done by, or which might reasonably be antici- 
pated from, the force used is not disproportioned to the injury or 
mischief which it is intended to prevent. This last principle 
will explain and qualify many of our suggestions. It does not 
seem to have been universally admitted, and we have therefore 
thought it advisable to give our reasons for thinking that it not 
only ought to be recognized as the law in future, but that it is the 
law at present." — Imp. Comm. Rep. 

Self Defence— Puovokkd Assault. 

4©« Every one who has without justification assaulted another, or lias 
provoked an assault from that other, may nevertheless justify force subsequent 
to such assault, if he uses such force under reasonable apprehension of death 
or grievous bodily harm from the violence of the person first iissaulted or pro- 
voked, and in the belief, on reasonable grounds, that it is necessary for his 
own preservation from death or grievous bcnlily harm : Provided, tliat he did 
not commence the assault with intent to kill or do grievous bodily hirni, and 
did not endcfavour at any time before the necessity ft)r preserving himself 
arose, to kill or do grievous bodily harm : Provided also, that before such 
necessity arose he declined further conflict, and quitted or retreated from it as 
far as was practicable. 

2. Provocation, within tlie meaning of this and the last preceding section, 
may be given by blows, words or gestures. 

See note under preceding section, and section 229, post. 



H.i 



% 



24 



JUSTIFICATION OR EXCUSE. 



[Sees. 47-61 



Sees. 62, 53] 



Prevention ok Insult. 

4T. Every one ia justified in using force in defence of his own person, or 
that of any one under his protection, from an assault accompanied with insult : 
Provided, that he uses Tin more force than is necessary to prevent such assault, 
or the repetition of it : Provided also, that this section shall not justify the 
wilful infliction of any hurt or mischief disproportionate to the insult which 
the force used was intended to prevent. 

See note under section 16 as to the word justified. 

" This perhaps extends the law, but it appears reasonable." 

—Imp. Comm. Rep. 

Defence of Moveable Property. 

48. Every one who is in peaceable possession of any moveabje property or 
thing, and every one lawfully assisting liim, is justified in resisting the taking 
of such tiling by any tresiJasser, or in retaking it from such trespasser, if in 
either case he does not strike or do bodily h.irm to such trespasser ; and if, after 
any one being in peaceable possession as aforesaid has laid hands upon any such 
thing, such trespasser persists in attempting to keep it or to take it from the 
possessor, or from any one lawfully assisting him, the trespasser shall be deemed 
to commit an assault without justification or provocation. 

See note under section 16 as to the word justijied. 

" This puts the possessor in the position of a person acting 
in self defence contemplated by section 45." — Imp. Comm. Rep. 

See note under section 53, post. 

Defence of Moveable Property, Other Case. 

40. Every one who is in peaceable possession of any moveable property 
or thing under a claim of right, and every one acting under liis authority, is 
protected from criiniim'. re.sponsihiltij for defending such possession, even 
against a person entitled by law to the possession of such property or thing, if 
he uses no m jre force than is necessary. 

This and the preceding and the next eleven sections are 

given as the existing law. See note under section 16 as to 

the words " Criminal responsibility." 

Illegal Defence of Moveable Property. 

BO. Every one who is in peacsable possession of any moveable property 
or thing but neither claims right thereto nor acts under tlieautliority of a person 
claiming right thereto, \» neither justified nor protected from criminal responsi- 
bility for defending his possession against a person entitled by law to the 
[possession of such proi)erty or thing. 

See note under preceding section. 

Defence of Dwelling House. 

flil . Every one who is in peaceable possession of a dwelling-house, and every 
one lawfully assiiiting him or acting by his authority, ia justified in using sucu 



force aa is tu 
dwelling-hous 
any indictable 

See case 
under sect 
Horrigan, ( 

99. Ever; 
every one la wfi; 
such force as is 
dwelling-house 
probable groum 
to commit any 

See unde 

o3* Every 
other real prop 
authority, is just 
such property, o 
necessary ; and i 
to remove him, s 
justification or p 

See Imp 

iinte, and ca 

Burn, 313 ; I 

Cas. 51 : Co( 

V. Baker, 2 

V. Hood, 1 Mc 

Glass V. O'G 

U. C. Q. B. 5S 

"A fuUrepi 

imperfect repor 

in the annual : 

ordered some 

taking a short 

in going across, 

They refused to 

some slight evi;! 

with a pole. M 

mately proved fa 

to be in danger, 

in similar circuu 



S«08. 52, 53] 



DEFENCE OF REAL PROPERTY. 



25 



force as is nccoanary to prevent the forcible breaking: and entering of such 
dwelling-house, either by night or day, by any person with the intent to commit 
any indictable offence therein. 

See cases under section 265, post, and Imp. Coram. Rep. 
under section 16 and section 45, amte, and 53 post ; also 
Horrigan, Cases on Self Defence, 749 et seq. 

93- Every one who is in peaceable possession of a dwelling-house, and 
every one lawfully assisting him or actin}; by his autliority, is justified in using 
such force as is necessary to prevent the forcible breaking and entering of such 
dwelling-house by night by any parson, if he believes, on reasonable and 
probable grounds, that such breaking and entering is attempted with the intent 
to commit any indictable offence therein. 

See under preceding section. 

Dbfence op Real Property. 
93* Every one who is in peaceable possession of any house or land, or 
other real property, and every one lawfully assisting him or acting by his 
authority, is justified in using force to prevent any person from trespassing on 
such property, or to remove him therefrom, if he uses no more force than is 
necessary ; and if such trespasser resists such attempt to prevent his entry or 
to remove him, such trespasser shall be deemed to commit an assault without 
justification or provocation. 

See Imp. Comm. Rep. under sections 16 and 45 
ante, and cases under section 2G5, jjoi^t ; 1 lluss. 1028 ; 1 
Burn, 313 ; Lows v. Telford, 13 Cox, 226, Warb. Lead. 
Cas. 51 : Cook v. Beal, 1 Ld. Raym. 170 ; Handcock 
V. Baker, 2 B. & P. 260 ; R. v. Hewlett, 1 F. & F. 91 ; R. 
V. Hood, 1 Moo. 281 ; Spires v. Barrick, 14 U. C. Q. B. 424 ; 
Glass V. O'Grady, 17 U. C. C. P. 233 ; Davis v. Lennon, 8 
U. C. Q. B. 599. 

" A full report of the evidence ir llio case of R. v. Moir, aiul an 
imperfect report of Lord Tenterden's summing up are to be found 
in the annual registor for 1830, vol. 72, p. 844. Moir having 
ordered some fishermen not to trespass on his land by 
taking a short cut, found the deceased and others persisting 
in going across. He rode up to them and ordered tbem b:;ck. 
They refused to go and there was evidence of angry words, and 
some slight evidence that the deceased threatened to strike Moir 
with a pole. Moir shot him in the arm, and the wound ulti- 
mately proved fatal. Before the man died, or indeed was supposed 
to be in danger, Moir avowed and justified his act, and said that 
in similar circumstances he would do the same again. This land. 



m 






■I 

Mi 



26 



JUSTIFICATION OR EXCtTSE. 



[Sec. 64 



I 



he said, was his castle, and as he could not without the use of 
firearms prevent the fishermen from persisting in their trespass, 
ho did use them, and would use them again. Lord Tenterden 
took a different view of the law. He told the jury that the pre- 
vention of such a trespass could not justify such an act, and he 
seems to have left to them as the only justification which on 
these facts could arise, the question whether the prisoner was in 
reasonable apprehension of danger to his life from the threats of 
the deceased. Moir was found guilty of murder and executed. 
(Sfv this case as since stated in R. v. Price, 7 C. & P. 178, and 
Eoscoe, Cr. Evid. 714.) . . . The law discourages persons 
from taking the law into their own hands. Still the law does per- 
mit men to defend themselves. Vim vi repellere licet viodo fiat 
modermnim inculpntcc tiitchc, non ad sumcndam vindictum, sed ad 
pioindfiandinii injuriani: Co. Lit. 162a. And when violence is 
used for the purpose of repelling a wrong, the degree of violence 
must not be disproportioned to the wrong to be prevented, or it 
is not justified. There is no case that we are aware of in which 
it has been held that homicide to prevent mere trespass is 
justifiable. The question raised has always been whether it was 
murder, or reduced by the provocation to manslaughter. . . 
]3ut the defence of possession either of goods or land against 
a mere trespass, not a crime, does not, strictly speaking, justify 
even a breach of the peace. The party in lawful possession may 
justify gently laying his hands on the trespasser and requesting 
liim to depart. If the trespasser resists, and in doing so assaults 
the i)arty ni possession, that party may repel the assault and 
for tiiat purpose may use any force which he would be justified 
in using in defence of his person. {See scetion 45, ante.) As is 
accnrately said in 1 RoUe's Abt. Trespass, G. 8, "a justification 
of a battery in liefence of possession, though it arose in the 
defence of the possession, yet in the end it is the defence of the 
person." — Imp. Comm. liep. 

ASSKRTION OK RiGHT TO HOUSK OU LaNO. 

54 Every one is justified in peaceably entering in the day-time to take 
possessif)n of any house or land to the possession of wiiich he, or some jjerson 
under whose authority he acts, is lawfully entitled. 

2. If any person, not haviwj or actimj under the authority of one haviny 
peaceable ponscssion of any such house or land with a claim o/ n(/fe<, assaults any 



Sees, 55-fi 

one peacei 
such entrj 
cation. 

3. If a 
claim of ri| 
as aforesai( 
shall be dec 

See n 



«5. I, 

8cho(jlmaste 
pupil or app 
the circumst 

«6. It 

to use force i 
"f h^s ship, p 
necessary, an 

A part 

or a maste 

gaoler his 

who have i 

1 Burn. 31 

V. Lafontai 

As to 1 

I^ead. Cas. 

S7. Ever, 
with rcivsonabli 
benefit, proviVl, 
to the jtatient's 

•SW. Kvery 
for any excess, a 
the excess. 

'VrY^ note 
Hamilton v, 

5®- Xoone 
and if sudj consei 
^'^% of any perse 

>^('C' note 
responsibility^ 



Sees. 55-5ft] 



DISCIPLINE OF MINORS, ETC. 



27 



ona peaceably entering as aforesaid, for the purpose of making him deaist from 
such entry, tiuoh assault shall be deemed to be without justitication or provo- 
cation. 

3. If any {leraon having peaceable possession of such house or land with a 
claim of right, or any person acting by his authority, assaults any one entering 
as aforesaid, for the purpose of making him desist from such entry, such assault 
shall be deemed U) be provoked by the person entering. 

See note under preceding section. 

D?8ciPLiNE OK Minors and on Ship. 

as. It is lawful for every parent, or person in the place of a parent, 
schoolmaster or master, to use force by way of corrtiction towards any child, 
pupil or apprentice under his care, provided that such force is reasonable under 
the circumstances. 

50. It is lawful for the master or officer in command of a ship on a voyage 
to use force for the purjiose of maintaining good order and discipline on board 
of his ship, provided that ho believes on reasonable grounds, that such force is 
necessary, and i)rovided also that the force used is reasonable in degree. 

A parent may in a reasonable manner chastise his child, 
or a master liis servant, or a schoolmaster his scholar, or a 
gaoler his prisoner, and a captain of a ship any of the crew 
who have nmtinously or violently misconducted themselves: 
1 Burn. 314 ; Mitchell v. Defries, 2 U. C. Q. B. 480; Brisson 
V. Lafontaine, 8 L. C. J. 173. 

As to homicide by correction : see R. v. Hopley, Warb. 
Lead. Cas. 110; R. v. Griffin, 11 Cox, 402. 

Surgical Operations. 

57. Ijvery one is protected from criminal responsibility for performing 
with reasonable care and skill any surgical operation uiK)n any iwrson for his 
benefit, i)rovided that |)erfonning the operation was reasonable, having regard 
to the )>atient's state at the time, and to all the circumstances of the case. 

Excess. 
5S. Every one autiiorized by law to use force is criminaUn rcHponxihle 
for any excess, according to the nature and quality of the lUit which constitutes 
the excess. 

See note under section 16, and section 45, ante, and 
Hamilton v. Massie, 18 O. R. 585. 

CONSKNT TO Dk.\TH NoT LaWFUL. 

59. No one has a right to consent to the inflicticm of death upon himself ; 
and if such consent is given, it shall have no effect upon the criminal rc.^ponai- 
bility of any person by whom such death may be caused. 

See note under section 16, as to the words "criminal 
responsibility." 



¥ 



28 



PARTIES TO CO.MMISSION OF OFFENCES. [Sees. 60, «I 



Obedien'ck to De Facto Law. 

90< Every one is protected from erimiwtl rfsponsibility for any act done- 
in obedience to the laws for the time bein^ made and enforced by thotte in 
fKtesession (de facto) of the sovereifjn |>ower in atid over the place where the- 
»ct is done. 

" See 11 Hen. VII., c. 1, Sir H. Vane's case, Kelyng 15, and 
Foster's 4th discourse, p. 402." — Imp. Conira. Rep. 



PART III. 
PARTIES TO THE COMMISSION OF OFFENCES. 

61. Every one is a party to and guilty of an offence who — 
(a) Actually comtnits it ; or 

(h) Does or omits an act for the purpose of aiding any jierson to coramit 
the offence ; or 

(c) Abets any jKjrson in commission of the olfence ; or 

(d) Counsels or [>rocures any person to commit the offence. 

2. If several [htsous form a common intention to prosecute any unlawful 
purix)8e, and to assist each other therein, each of tiiem is a party to every offence 
committed by any one of them in the prosecution of s i^h couimon purfwse, the 
commission of which offence was, or ought to have beei- known to be a probable- 
consequence of the prosecution of such comm(/n purpose. 

See in R. v. Jordan, Warb. Lead. Cas. 2, and R. v. Man- 
ning, Id. 7, a collection of cases on the subject of principals 
and accessories. 

See section 237, as to aiding and abetting suicide. 

This section is so framed, sa\-s the Imperial Commission- 
ers' Report, as to put an end to tiie nice distinctions between 
accessories before the fact and pi-incipals in the second 
degree, already practically superseded by chapter 145 
Rivised 8t itatc:?. All are n;)\v priueipals in any offence, and 
punishable as the actual per[)etrator of the offence, as it 
always has been in treason and misdemeanour. The prose- 
cutor may, at his option, prefer an indictment against the 
accessoj'ies before the fact, and aiders and abettora as prin- 
cipal of!endei*s, whether the party who actually committed 



f - 

I'vi 






Sec. 01] 



ACCESSORIES, ETC. 



the offence i8 indicted with them or not ; R. v. Tracey, 6 
Mod. 30. For instance : A. abetted in the commission of a 
theft by B. The indictment may charge A. and B. jointly 
or A. or B. alone as guilty of the offence, in the oi'dinary 
form, as if they had actually stolen by one and the same 
act. Or the indictment, after charging the principal of the 
offence, may charge the accessory or aider as follows : " And 
the jurors aforesaid do farther present, that G. D., before the 
said offence was committed as aforesaid, to wit, on ... . 
did incite, move, procure, aid, counsel, hire and command 
the said A. B. the said offence in manner and form afore- 
said to do and commit;" or, "that C. D., on the day and 
year aforesaid, was present, aidinrf, ahettinfj and assisting 
the said A. B. to commit the said offence in manner and 
form aforesaid." And if the actual offender is not indicted, 
as follows : " The jurors, etc., etc., present, that A. B., or that 
some person or persons to the jurors aforesaid unknown, 
on . . . . did steal, etc., etc. And the jurors afore- 
said do further present that G. D.," . . . (continue as 
in preceding form). 

In every case where there may be a doubt whether a 
person be a principal or accessory before the fact, it may be 
advisable to prefer the indictment against him as a prin- 
cipal, as such an indictment will be sufficient whether it 
turn out on the evidence that such peraon was a principal 
or accessory before the fact, as well as where it is clear that 
he was either the one or the other but it is uncertain which 
he was. 

It is no objection to an accessory before the fact being 
convicted that his principal has been acquitted : R. v. Hughes, 
Bell. 242 ; R. v. Burton, 13 Cox, 71. And such accessories, 
aiders and abettors may be arraigned and tried before the 
actual perpetrator of the offence : 2 Hale, 223 ; R. v. James, 
17 Cox, 24, 24 Q. B. D. 439. In some cases, as in suicide, 
for instance, the aiders and abettors or accessories onlj' can 
be indicted. Where the actual perpetrator and the acces- 



I 



80 



PARTIES TO COMMISSION OF OFFENCES. [Sec. 61 



series are jointly indicted all may be found guilty of 
attempting to commit the offence charged: section 711. 
And, if an attempt only to commit an offence is charged, all 
may be found guilty, though the full offence is proved ; 
section 712, If the offence charged is not proved, but 
another offence included in it is proved, they may all be 
found guilty of the offence so proved : section 713. 

The soliciting and inciting a person to commit an offence, 
where no offence is in fact committed by the person so soli- 
cited, is an indictable offence : R. v. Gregory, 10 Cox, 459. 

A principal in the first degree is one who is the actor 
or actual perpetrator of the act. But it is not necessary 
that he sliould be actually present when the offence is 
consummated ; for if one lay poison purposely for another 
who takes it and is killed, he who laid the poison, though 
absent when it was taken, is a principal in the first degi-ee : 
Fost. 349 ; R. v. Harley, 4 C. & P. 3(59. So, it is not 
necessary that the act should be perpetrated with his own 
hands : for if an offence be conniiitted through the medium 
of an innocent agent the employer, though absent when 
the act is done, is answerable as a principal in the first 
degree: see R. v. Giles, 1 Moo. 166; R. v. Michael, 2 Moo. 
120 ; R. V. Clifford, 2 C. & K. 202. Thus, if a child, under 
the age of discretion, or any other instrument excused from 
the responsibility of his actions by defect of understanding, 
ignorance of the fact, or other cause, be incited to the com- 
mission of nmrder or any other crime, the inciter, though 
absent when the fact was counnitted, is, ex necesmtafe, liable 
for the act of liis agent, and a principal in the first degree : 
Fost. 349 ; R. v. Palmer, 2 Leach, <>78 ; R. v. Butcher, Bell, 6. 
But if the instrument be aware of the consequences of his 
act he is a ^rijjjcipal in the first degree, and the employer, 
if he be absent when the fact is committed, is an accessory 
before the fact, and may now be indicted either as such, or 
as the actual offender : R. v. Stewart, R. & R. 363 ; R. v. 
Williams, 1 Den. 39 ; unless the instrument concur in the 



See. 61] 



ACCESSORIES, ETC. 



81 



act merely for the purpose of detecting and punishing 
the employer, in which case he is considered as an innocent 
agent : R. v. E<innen, 2 Moo. 809. 

Principala in the second degree. — Such were called 
those who were present, aiding and abetting, at the commis- 
sion of the fact. 

Presence, in this sense, is either actual or constructive. 
It is not necessary that the party should be actually present, 
an ear or eye-witness of the transaction ; he is, in con- 
struction of law, present, aiding and abetting, if, with the 
intention of giving assistance, he be near enough to afford 
it, should the occasion arise, 'i'hus, if he be outside the 
house, watching to prevent surprise, or the like, whilst his 
cpmpanions are in the house connnitting a felony, such 
constructive presence is sufficient to make him a principal 
in the second degree : Fost. 34-7, 350 ; see 1 Russ. 61 ; 1 Hale, 
555 ; R. V. Gogerly, R. k R. 343 ; R. v. Owen, 1 Moo. 96. 
But he nuist be sufficiently near to give assistance. R. v. 
Stewart, R. & R. 363 ; and the mere circumstance of a prrty 
going towards a place where a felony is to be committed, in 
order to assist to carry off the property, and assisting incarry- 
ing it off, will not make him a principal in the second degi'ee, 
unless, at the time of the felonious taking, he were within 
such a distance as to be able to assist in it : R. v. Kelly, R. & 
R. 421 ; 1 Russ. 27. So, where two persons broke open a 
warehouse, and stole thereout a quantity of butter, which 
they carried along the street thirty yards, and then retched 
the prisoner who, being appri.sed of the robbery, assisted 
in carrying away the property, it was holden that he was 
not a principal, but only an accessory after the fact : R. v. 
King, R. & R. 332 ; R. v. Dyer, 2 East, P. C. 767. And 
although an act be committed in pursuance of a previous 
concerted plan between the parties, those who are not 
present, or so near as to bi' able to afford aid and assist- 
ance at the time when the offence is committed, are not 
principals, but accessories before the fact : R. v. Soares, 



f 



,:?*' »^ *• 



41 



32 



PARTIES TO COMMISSION OF OFFENCES. [Sec. 61 



K. & R. 25 ; R. v. Davis, Id. 113 ; R. v Else, Id. 142 ; R. v. 
Badcock, Id. 249 ; R. v. Manners, 7 C. & P. 801 ; R. v. 
Howell, 9 C. & P. 437 ; R. v. Tnckwell, Car. & M. 215. So, 
if one of them has been apprehended before the commis- 
sion of the offence by tlie other, he can be considered only 
as an accessory before the fact : R. v. Johnson, Car. & M. 
218. But presence during the whole of the transaction is 
not necessary ; for instance, if several combine to for<^e an 
instrument, and each executes by himself a distinct part of 
the forgery, and they are not together when the instrument 
is completed, they are, nevertheless, all guilty as principals : 
R. V. Bingley, R. & R. 446 : wv 2 East, P. C. 768. As, if 
A. counsel B. to make the paper, C. to engrave the plate, 
and D. to fill up the names of a forged note, and they do 
HO, each without knowing that the others are employed for 
that purpose, B., C. and D. may be indicted for the forgery, 
and A. as an accessory : R. v. Dade, 1 Moo. 307 ; for, if 
several make distinct parts of a forged instrument, each is 
a principal, though he do not know by whom the other 
parts are executed, and though it is finished by one alone 
in the absence of the others : R. v. Kirk wood, 1 Moo. 304 ; 
R. v. Charles, 17 Cox, 499 ; xee R. v. Kelly, 2 C. & K. 379. 
There nmst also be a participation in the act ; for 
although a man be present v» hikt a felony is eonnnitted, 
if he take no part in it a.id do not act in concert with 
those who committed it, he will not )je a principal in the 
seconcl, degree, merely because he did not endeavour to 
prevent the felony, or appi-eheud the felon : 1 Hale, 439 ; 
Fost. 350. It is not necessary, iiowever, to prove tliat the 
party actually aided in the commission of the ofi'eiice ; if 
he watched for his companions in order to prevent sur^jrise, 
or remained at a convenient distance in order to favour 
their escape, if necessary, or was in sucli a situation as to 
be able readily to come to their assistance, the knowledge 
of wliich was calculated to give additional confidence to 
his companions, in contemplation of law he was present 
aiding and abetting. 8o, a particij)ation, tlie result of a 



Sec. 61] 



ACCESSORIES, ETC. 



38 



concerted design to commit a specific ofience, is sufficient 
to constitute a principal in the second degree. Thus, if 
several act in concert to steal a man's goods, and he is 
induced by fraud to trust one of them, in the presence of 
the others, with the possession of the goods, and then 
another of the party entices the owner away that he who 
has the goods may carry them oft", all are guilty as prin- 
cipals : R. V. Standley, R. & R. 305 ; 1 Russ. 29 ; R. v. 
Passey, 7 C. & P. 282 ; R. v. Lockett, Id. 300. So, it has 
been holden, that to aid and assist a person to the jurors 
unknown to obtain money by ring-dropping, is felony, if 
the jury find that the prisoner was confederate with the 
person unknown to obtain the money by means of the 
practice : R. v. Moore, 1 Leach, 314. So, if two persons 
driving carriages incite each other to drive furiously, and 
one of them run over and kill a man, it is manslaughter in 
both : R. V. Swindall, 2 C. &. K. 230. If one encourage 
another to commit suicide, and be present abetting him 
while he does so, such person is guilty of murder as a 
principal ; and if two persons encourage each other to self- 
murder, and one kills himself, but the other fails in the 
attempt, the latter is a principal in the murder of the other : 
R. V. Dyson, R. & R. 523; R. v. Russell, 1 Moo. 35(5; 
R. V. Alison, 8 C. & P. 418 ; R. v. Jessop, IG Cox, 204 ; but- 
nee section 237, post. So, likewise, if several persons com- 
bine for an unlawful purpose to be carried into effect by 
unlawful means: Fost. 351, 352; particularly, if it be 
to be carried into effect notwithstanding any opposition 
that may be oflfered against it: Fo§t. 353, 354; and if one of 
them, in the prosecution of it, kill a man, it is murder in all 
who are present, whether they actually aid or abet or not r 
xee the Sessinghurst-house case, 1 Hale, 461 ; provided 
the death were caused by the act of some one of the party 
in the course of his endeavours to effect the common object. 
of the assembly : 1 Hawk. c. 31, s. 52 ; Fost. 352. ; R. v. 
Hodgson, 1 Leach, 6 ; R. v. Plummer, Kel. 109. But it is; 

not sufficient that the common purpose is merely unlawful ;; 
Grim. Law — 3 



■I 



■i 






34 



COMMISSION OF OFFENCES. 



[Sec. 61 



' 1' 



it must either be felonious, or, if it be to commit a misde- 
meanour, then there must be evidence to show that the 
parties engaged intended to carry it out at all hazards : R. v. 
Skeet, i F. & F. 931 ; see also R. v. Luck, 3 F. & F. 483 ; 
R. V. Craw, 8 Cox, 335. And the act must be the result of 
the confederacy ; for, if several are out for the jjurpose of 
committing a felony, and, upon alarm and pursuit, run 
different ways, and one of them kill a pursuer to avoid 
being taken, the others are not to be considered as principals 
in that offence : R. v. White, R. & R. 99. Thus, where a 
gang of poachers, consisting of the prisoners and Williams 
attacked a game keeper, beat him, and left him senseless 
upon the ground, but Williams returned, and whilst the 
gamekeeper was insensible upon the ground took from him 
his gun, pocket-book and money. Park, J., held that this was 
robbery in Williams only: R. v. Hawkins, 3 C. & P. 392. The 
purpose must also be unlawful ; for, if the original object 
be lawful, and be prosecuted by lawful means, should one 
of the party in the prosecution of it kill a man, although 
the party killing, and all those who actually aid and abet 
him in the act, may, according to circumstances, be guilty 
of murder or manslaughter, yet the other persons who are 
present, and who do not actually aid and abet, are not guilty 
as principals in the second degree: Fost. 354, 355; section 
62, post. 

A mere participation in the act, without a felonious 
participation in the design, will not be sufficient : 1 East, P. 
C. 258 ; R. v. Plummer, Kel. 109. Thus, if a master assault 
another with malice prepense, and the servant, ignorant of 
his master's felonious design, take part with him, and kill 
the other, it is manslaughter in the servant, and murder in 
the master : 1 Hale, 446. So, on an indictment under the 
statute, 1 V. c. 85, s. 2, charging A. with the capital offence 
of inflicting a bodily injury dangerous to life with intent 
to commit murder, and B. with aiding and abetting him, it 
was held to be essential, to make out the charge as against 



Sec. 61] 

B., that h 

commit mi 

In the 

the seconds 

Hale consi 

party kille( 

far strainec 

should be d 

422, 452. 1 

persons pre 

the purpose 

were princi 

kins, 4 C. d 

and R. v. C( 

the seconds 

act, would 

ensue ; and 

8 C. &. P. 64 

Aiders a: 
sories at the 
principal ha 
But this do( 
all those w 
felony is coi 
and may be 
first degree 
be convictedl 
first degree 
Towle, R. & I 

In treas(i 
felonies in 
degree and 
the indictm^ 
the fact as 
s. 64 ; provit 
345 ; R. V. 



Sec. 61] 



ACCESSORIES, ETC. 



35 



^:fr 



B., that he should have been aware of A's. intention to 
commit murder : R. v. Cruse, 8 C. & P. 541. 

In the case of murder by duelling, in strictness both of 
the seconds are principals in the second degree ; yet Lord 
Hale considers that, as far as relates to the second of the 
party killed, the rule of law in this respect has been too 
far strained ; and he seems to doubt whether such second 
should be deemed a principal in the second degree : 1 Hale, 
422, 452. However, it was holden by Patteson, J., that all 
persons present at a prize-fight, having gone thither with 
the purpose of seeing the prize-fighters strike each other, 
were principals in the breach of the peace : R. v. Per- 
kins, 4 C. & P. 537 ; see R. v. Murphy, 6 C. & P. 103, 
and R. v. Coney, 15 Cox, 46 ; and upon the same principle, 
the seconds in a duel, being participators in an unlawful 
act, would both be guilty of murder, if death were to 
ensue ; and so the law was laid down in R. v. Young, 
8 C. &. P. 644 ; and in R. v. Cuddy, 1 C. & K. 210. 

Aiders and abettora were formerly defined to be acces- 
sories at the fact, and could not have been tried until the 
principal had been convicted or outlawed: Fost. 347. 
But this doctrine is exploded ; and it is now settled, that 
all those who are present aiding and abetting when a 
felony is committed are principals in the second degree, 
and may be arraigned and tried before the principal in the 
first degree has been found guilty : 2 Hale, 223 ; and may 
be convicted, though the party charged as principal in the 
first degree is acquitted : R. v. Taylor, 1 Leach, 360 ; R. v. 
Towle, R. & R. 314 ; R. v. Hughes, Bell, 242. 

In treason, and in offences below felony, and in all 
felonies in which the punishment of principals in the first 
degree and of principals in the second degree is the same, 
the indictment may charge all who are present and abet 
the fact as principals in the first degree : 2 Hawk. c. 25, 
s. 64 ; provided the offence permit of participation : Fost. 
345 ; R. v. Hughes, Bell, 242 ; or specially as aiders and 






;■ i 



36 



COMMISSION OF OFFENCES. 



[Sec. 61 



abettors : R. v. Crishara, Car. & M, 187. But where by 
particular statutes the punishment was different, then 
principals in the second degree must have been indicted 
specially as aiders and abettors : 1 East, P. C. 348, 350 ; 
R. V. Sterne, 1 Leach, 473. If indicted as aiders and abet- 
tors, an indictment charging that A. gave the mortal blow, 
and that B., C. and D. were jDresent aiding and abetting, 
would be sustained by evidence that B. gave the blow, and 
that A., C. and D. were present aiding and abetting ; and 
even if it appeared that the act was committed by a person 
not named in the indictment, the aiders and abettors might 
nevertheless be convicted : R. v. Borthwick. 1 East, P. C. 
350 ; see R. v. Swindall, 2 C. & K. 230. And the same 
thouo-h the jury say that they are not satisfied which gave 
the blow, if they are satisfied that one of them did, and 
that the others were present aiding and abetting : R, v. 
Downing, 1 Den. 52. When a prisoner was convicted upon 
an indictment which charged him with rape as a principal 
in the first count, and as an aider and abettor in the second, 
it was holden that the conviction upon the first count was 
good. R. v. Folkes, 1 Moo. 354 ; R. v. Gray, 7 C. & P. 164 : 
see R. V. Crisham, Car. & M. 187. 

Accessories before the fact. — An accessory before the 
fact is he who, being absent at the time of the felony com- 
mitted, doth yet procure, counsel, command or abet another 
to commit a felony: 1 Hale, 615. 

If the party be actually or constructively present wlien 
the felony is committed he is an aider and abettor, and not 
an accessory before the fact; for it is essential, to constitute 
the offence of accessory, that the party should be absent at 
the time the offence is committed: 1 Hale, 615; R. v. 
Gordon, 1 Leach, 515; 1 East, P. C. 352; R. v. Brown, U 
Cox, 144. 

The procurement may be personal, or through the inter- 
vention of a third person: Fost. 125; R. v. Earl of Somerset, 
19 St. Tr. 804; R. v. Cooper, 5 C, & P. 535; it may also be 



Seo. 61] 

direct, by hire, 

by evincing a 

another's felon 

c-29,s. 16; bu 

committed will 

s^-y before th< 

acquiescence, or 

be sufficient to 

procurement mi 

felony repent, a 

countermand hii 

commit the felc 

accessory: 1 Hal 

one crime, and t 

as, for instance, 

commit a larcen 

instead of so do 

the accessory wi 

the principal com 

instead of A., it 

^t ''^eq, ; but see I 

the accessory is li 

of the unlawful 

command B. to be 

is accessory to th 

617. Or if A. cor 

doing so the hous( 

burning of D.'s h( 

the oflfence comnu 

means from those < 

J- S. to poison A., i 

him, J. W. is, neve 

370 ; section 62, jm 

an intermediate ag( 

should name the pe 

Cooper, 5 C. & P. 5 



4^ 



Seo. 61] 



ACCESSORIES, ETC. 



37 



direct, by hire, counsel, command, or conspiracy ; or indirect, 
by evincing an express liking, approbation, or assent to 
another's felonious design of committing a felony : 2 Hawk, 
c. 29, 8. 16 ; but the bare concealment of a felony to be 
committed will not make the party concealing it an acces- 
go-y before the fact: 2 Hawk. c. 29, s. 23; nor will tacit 
acquiescence, or words which amount to a bare permission, 
be sufficient to constitute this offence: 1 Hale, 616 The 
procurement must be continuing; for if the procurer of a 
felony repent, and before the felony is committed actually 
countermand his order, and the principal notwithstanding 
commit the felony, the original contriver will not be an 
accessory: 1 Hale, 618. So, if the accessory order or advise 
one crime, and the principal intentionally commit another ; 
as, for instance, to burn a house, and instead of that he 
commit a larceny ; or to commit a crime against A., and 
instead of so doing he commit the same crime against B.; 
the accessory will not be answerable: 1 Hale, 617; but, if 
the principal commit the same offence against B. bj'^ mistake 
instead of A., it seems it would ue otherwise : Fost. 370, 
et seq,; but see I Hale, 617 ; 3 Inst 51. But it is clear that 
the accessory is liable for all that ensues upon the execution 
of the unlawful act commanded ; as, for instance, if A. 
command B. to beat C, and he beat him so that he dies, A. 
is accessory to the murder: see section 62, post; 1 Hale, 
617. Or if A. command B. to burn the house of C, and in 
doing so the house of D. is also burnt, A. is accessory to the 
burning of D.'s house : R, v. Saundei*s, Plowd. 475. So, if 
the offence commanded be effectetl, although bv different 
means from those commanded, as, for instance, if J. W. hire 
J. S. to poison A., and, instead of poisoning him, he shoots 
him, J. W. is, nevertheless, liable as accessory : Fost. 369, 
370 ; section 62, post. Where the procurement is through 
an intermediate agent it is not necessary that the accessory 
should name the person to be procured to do the act : R. v. 
Cooper, 5 C. & P. 535. 



'f 



88 



COMMISSION OF OFFENCES. 



[Sec. 61 



Several persons may be convicted on a joint charge 
against them as accessories before the fact to a particular 
felony, though the only evidence against them is of sepa- 
rate acts done by each at separate times and places : E. v. 
Barber, 1 C. «fe K. 442. 

It may be necessary to observe, that it is only in felonies 
that there can be accessories ; in high treason, every in- 
stance of incitement, etc., which in felony would make a 
man an accessory before the fact, will make him a princi- 
pal traitor : Fost. 341 ; and he must be indicted as such : 
1 Hale, 235. Also, all those who in felony would be acces- 
sories before the fact, in offences under felony are princi- 
pals, and indictable as such : R. v. Clayton, 1 C. & K. 128 ; 
R. V. Moland, 2 Moo. 276; R. v. Greenwood, 2 Den. 453; 
under section 61, ante, that now a2)plies to all o fences. 
In manslaughter it has been said there can be no acces- 
sories before the fact, for the offence is sudden and unpre- 
meditated ; and therefore, if A. be indicted for murder, and 
B. as accessory, if the jury find A. guilty of manslaughter 
they must acquit B: 1 Hale, 437, 466,615; 1 Hawk, 
c. 30, s. 2. Where, however, the prisoner 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 tlie fact to the crime of manslaugh- 
ter: R. V Gay lor. Dears. & B. 288. In the course of the 
argument in that case, Bramwell, B., said : "Suppose a man 
for mischief gives another a strong dose of medicine,- not in- 
tending any further injury than to cause him to be sick 
and uncomfortable, and death ensues, would not that be 
manslaughter ? Suppose, then, that another had counselled 
him to do it, would not he who counselled be an accessory 
before the fact ? 

In R. V. Chad wick, Stafford Sum. Ass. 1850, the prisoner 
was indicted as a principal for murder by arsenic, and tlie 
jury found that he procured the ar.senic, and caused it to 
be administered by another person, but was absent when it 



Sec. 02] 



ACCESSORIES, ETC. 



39 



was administered; and thereupon it was objected that the 
11 & 12 v., c. 46, s. 1, which was similar to chapter 145 Rev. 
Stat. s. 1, did not apply to murder, but Williams, J., over- 
ruled the objection, and refused to reserve the point. Where 
the principal and accessory are tried together, one being 
charged as principal and the other as accessory, if the prin- 
cipal plead otherwise than the general issue, the accessory 
shall not be bound to answer until the principal's plea be 
first determined : 1 Hale, 624. Where the principal was 
indicted for larceny in a dwelling-house, and the accessory 
was charged in the same indictment as accessory before the 
fact to the said "felony and burglary" and the jury 
acquitted the principal of the burglary, but found him 
guilty of the larceny, it seems the judges were of opinion 
that the accessory should have been acquitted ; for the 
indictment charged him as accessory to the burglary only, 
and the principal being acquitted of that, the accessory 
should have been acquitted also : R. v. Dannelly and 
Vaughan, R. & R. 310. Where three persons were charged 
with a larceny, and two others as accessories, in one count, 
and the latter were also charged separately in other counts 
with substantive felonies, it was held that, although the 
pi'incipals were accjuitted, the accessories might be convicted 
on the latter counts : R. v. Pulham, 9 C. & P. 280. 

If a man be indicted as accessory in the same felony to 
several persons, and be found accessory to one, it is a good 
verdict, and judgment may be passed upon him : R. v. Lord 
Sanchar, 9 Co. 189; Fost. 361; 1 Hale, 624. 



'f 



Okkrncks Committed Difkkukntly. 

03< Every one who counsels or procures another to be a party to an 
offence of which that other is afterwards guilty is a party to that offence, 
although it may be coniniitted in a way different from that which was 
counselled or suggested. 

2. Every one who counsels or procures another to be a party to an offence 
is a party to every offence whicli that other commits in consequence of such 
counselling or procuring, and which the jierson counselling or procuring knew, 
or ought to have known, to be likely to be committed in consequence of such 
counselling or procuring. 



40 



COMMISSION OF OFFENCES. 



[Sec. 63 






" This is believed to express the existing law: Fost., part 8, 
and cases under preceding section." — Imp. Comm. Rep. 

The mere fact of being stakeholder for a prize fight 

where one of the combatants was killed does not make one 

accessory before the fact to the manslaughter: R. v. Taylor, 

13 Cox, 68. 

AoosaaoRT After thk Fact. 

03« An accessory after the fact to an offence is one who receives, comforts 
or assists any one who has been a party to such offence in order to enable him 
to escajje, knowinjf him to have been a party thereto. 

2. No married person whose husband or wife has been a party to an 
offence shall become an accessory after the fact thereto by receiving, comfort- 
ing or assisting the other of them, and no married woman whose husband has 
been a party to an offence shall become an accessory after the fact thereto, 6^ 
receiving, comforting or assitting in hin presence and by his uuthoriti/ any other 
person who has been a party to such offence in order to enable her husband or 
such other person to escape. 

The Imperial Commissioners report this section as 
declaratory of the existing law, but that is an error. A 
husband, at common law, cannot aid his wife to escape. 
Then, section 13, ante, seems to have been forgotten in 
drafting this section 63. 

See as to punishment, sections 531, 532. Accessories 
after the fact to certain offences, not triable at Quarter 
Sessions, section 540. See section 627 as to indictment of 
accessories after the fact in certain cases : see R. v. Lee, 
Warb. Lead, Cas. 9, for a collection of cases on the subject. 

An accessory after the fact is one who, knowing a 
felony to have been committed by another, receives, relieves, 
comforts, or assists the felon: 1 Hale, 618; 4 Bl. Com. 37. 
Any assistance given to one known to be a felon, in order 
to hinder his apprehension, trial, or punishment, is suffi- 
cient to make a man an accessory after the fact ; as, for 
instance, that he concealed him in the house: or shut the 
door against his pursuers, until he should have an oppor- 
tunity of escaping : 1 Hale, 619 ; or took money from 
him to allow him to escape : or supplied him with 
money, a horse or other necessaries, in order to enable 
him to escape : 2 Hawk. c. 29, s. 26 ; or bribed 



Sec. 63] 



ACCESSORY AFTER THE FACT. 



41 



the gaoler to let him escape, or conveyed instruments to 
him to enable him to bre«' ^^rison and escape: 1 Hale, 
621. 

But merely suffering the principal to escape will not 
make the party an accessory after the fact, for it amounts 
at most but to a mere omission: 1 Hale, 619. So, if a 
person supply a felon in prison with victuals or other 
necessaries for his sustenance : 1 Hale, 620; or relieve 
and maintain him if he be bailed out of prison : Id. ; or if a 
physician or surgeon professionally attend a felon sick or 
wounded, although he know him to be a felon. »S'ee 
R. V. Chappie, 9 C & P. 355 ; R. v. Jarvis, 2 M. & Rob. 40. 

A wife is not punishable as accessory for receiving, etc., 
her husband, although she knew him to have committed 
felony: 1 Hale, 48, 621; R. v. Manning, 2 C. & K. 903, n.; 
for she is presumed to act under his coercion ; but see now 
section 13, ante. But no other relation of persons can 
excuse the wilful receipt or assistance of felons ; a father 
cannot assist his child, a child his parent, a husband his 
wife, a brother his brother, a master his servant, or a 
servant his master: 1 Chit. 266. (Section 63 ante alters 
this as to a husband assisting his wife.) Even one may 
make himself an accessory after the fact to a larceny of his 
ov.n goods, or to a robbery on himself, by harbouring the 
thief, or assisting in his escape: Fost. 123. If the wife 
alone, the husband being ignorant of it, receive any other 
person being a felon, the wife is accessory, and not the 
husband : 1 Hale, 621. And if the husband and wife both 
receive a felon knowingly, it shall be adjudged only the 
art of the husband, and the wife shall be acquitted : Id. 
{See now section 13 ante.) 

To constitute this offence it is necessary that the acces- 
sory have notice, direct or implied, at the time he assists or 
comforts the felon, that he had committed a felony. 
It is also necessary that the felony be completed at the 
time the assistance is given ; for. if one wounds another 



■I 



42 



COMMISSION OF OFFENCES. 



[Sec. G4 



Sec. 64 ] 



mortally, and after the wound given, but before death 
ensues, a person assist or receive the delinquent, this does 
not make him accessory to the homicide ; for until death 
ensues no murder or manslaughter is committed : 2 Hawk, 
c. 29,8. 35; 4 Bl. Com. 38. 

On an indictment charging a man as a principal felon 
only, he cannot be convicted of the offence of being an 
accessory after the fact: R. v. Fallon. L. & C. 217. 

The receipt of stolen goods did not at common law con- 
stitute the receiver an accessory, but was a distinct misde- 
meanour, punishable by fine and imprisonment: 1 Hale, 620; 
see now section 314, post. 

Four prisoners were indicted for murder jointly with 
two others indicted as accessories after the fact. The 
prisoners indicted for murder were found guilty of man- 
slaughter, and the other two guilty of having been acces- 
sories after the fact to manslaughter. Held, on motion in 
arrest of judgment, that the conviction against the acces- 
sories was right: R. v. Richards, 13 Cox, 611 ; see R. v. 
Brannon, 14 Cox, 894. 

Attempts. 

64. Every one wlio, having an intent to commit an offence, does or omits 
an act for the purpose of accomplishing his object, is guilty of an attempt to 
commit the offence intended whither under the circumatancea it waa poaaible to 
commit such offence or not. 

2. The question whether an act done or omitted with intent to commit an 
offence is or is not only preparation for the commission of that offence, and too 
remote to constitute an attempt to commit it, is a question of law. 

The words in italics were given as new law in the Impe- 
rial Commissioners' Report of 1879 in view of R. v. Collins, 
L. & C. 471, but that case has since been overruled : R. 
V. Brown, 24 Q. B. D.357, and R. v. Ring, 17 Cox, 491. 

See sections 528, 529, as to punishment in cases not 
otherwise provided for, and sections 711, 713 as to verdict 
of attempt under certain circumstances. 

Attempts to conunit certain crimes are specially provided 
for in sections 71, 75, 100, 120, 127, 129, 131, 132, 136, 154, 



175, 178, L 
432, 485, 4J 

A mere 

Some act is 

the commisi 

attempts to 

with it are 

R. v. Hens! 

R. v. Roberf 

An assai 

to commit i 

reporter's nc 

An atten 

such crime : 

rape, robber 

Stephen's Cr 

and an atte 

213, 21;;: s( 

v. Marsh, I D 

art, R. & R. 2i 

17 Cox, 495. 

If A., misi 

to murder B., 

attempt to m 

tlie above sec 

James Sfcephe 

of 1879 woi 

Stephen's Hisi 

" An atteni] 
ted with inten 
series of acts o 
offence, if such 
rupted, either h} 
to complete the 

"Everyone 
does or omits ar 



Sec. 64 ] 



ATTEMPTS. 



43 



*i 



175, 178. 185, 189, 232, 238, 241, 2486, 268, 270, 400, 424, 
432, 485, 488, 492, 494, 496, 500. 

A mere intention to commit a crime is not indictable. 
Some act is required, but acts only remotely leading towards 
the commission of an offence are not to be considered as 
attempts to commit it, whilst acts immediately connected 
with it are : R. v. Roebuck, Dears. & B. 24 ; 1 Russ. 83 > 
R. V. Hensler, 11 Cox, 570; R. v. Eagleton, Dears. 515; 
R. V. Roberts, Dears. 539 ; R. v. Cheeseman, L. & C. 140. 

An assault with intent to commit a crime is an attempt 
to commit that crime : R. v. Dungey, 4 F. & F. 99. See 
reporter's note in that case and R. v. John, 15 S. C. R. 384. 

An attempt to commit a crime is an intent to commit 
such crime manifested by some overt act, and, in cases of 
rape, robbery, etc., etc., necessarily includes an assault : 
Stephen's Cr. L. 49 ; in such cases, an assault is an attempt 
and an attempt is an as.sault ; R. v. Martin, 9 C. & P. 
213, 21 ' : we annotation to section 711, post; and R. 
V. Marsh, I Den. 505 ; R. v. Heath, R. & R. 184 ; R. v. Stew- 
art, R. & R. 288 ; R. V. Fuller, R. & R. 308 ; R. v. Duckworth, 
17 Cox, 495. 

If A., mistaking a post in the dark for B., and intending 
to murder B., shoots at the post, he haii not committed an 
attempt to murder, according to the existing law. Does 
the above section 64 clian, e the law in this respect ? Sir 
James Stephens thinks that article 74 of the Draft Code 
of 1879 would have had that effect in England : 2 
Stephen's Hist., 225. That article reads as follows : — 

" An attempt to commit an offence is an act done or omit- 
ted with intent to commit tliat offence, forming part of a 
series of acts or omissions which would have constituted the 
offence, if such series of acts or omissions had not been inter- 
rupted, either by the voluntary determination of the offender not 
to complete the offence, or by some other cause. 

" Every one who, believing that a certain state of facts exists, 
does or omits an act, the doing or omitting of which would, if 



If 



' j ' uuimi ' . e iiij g . ' 



44 



COMMISSION OF OFFENCES. 



[Sec. 61 



that state of facts existed, be an attempt to commit an offence, 
attempts to commit that offence, although its commission in the 
manner proposed was, by reason of tha non-existence of that 
state of facts at the time of the act or omission, impossible. 

" The question whether an act done or omitted with intent 
to commit an offence is or is not only preparation for the com- 
mission of that offence, and too remote to constitute an attempt 
to commit it, is a question of law." 

This article of the Imperial Draft Code, and of the Bill 
of 1879, re-appeared in tiio Bill of 1880, somewhat altered 
in shape and phraseology, but not in substance, as will be 
seen by comparing it with section 64 of this Code, which 
reproduces it verbatim as it was in that Bill of 1880. It 
thus seems clear that, in Sir James Stephen's opinion, the 
supposed case of attempting to murder by shooting at a 
post, would constitute ncr, under section 64 of this Code, 
an indictable attempt to commit murder — Sed qucvre? 
tiee Baron Bramwell's remarks in R. v. McPherson, Dears. & 
B. 197, in 1857, long before the decision in R. v. Collins, 
L. & C. 471. Sir James Stephens took the law as it 
was then settled by the case of R. v. Collins, which 
has since been over-ruled by R. v. Ring, 17 Cox, 491, 
and it was not necessary for him to distinguish between 
the case of the shooting at a post and the case of 
putting the hand in an empty pocket. In neither case, in 
his opinion, is there an indictable attempt to commit a 
crime. But though it is now unquestionable, under 
section 64, that the latter case constitutes an attempt to 
steal, though there was nothing to steal, it docs not follow 
that the former case constitutes an attempt to murder, 
though there was no one to kill. Here the assault, a 
principal ingredient of the offence, is wanting. There was 
no assault on B., and A. clearly could not be indicted under 
section 232, -post, because he did not shoot at any person : 
R. V. Lovel, 2 Moo. & R. 39. But, for an attempt to steal, 
the overt act, or commencement of execution of the theft is 
complete by itself when a man puts his hand into the 






Sec. 64] 



ATTEMPTS. 



45 



pocket of any one to steal whatever there may be in it. 
No ingredient of t)ie attempt is wanted there. The 
offender may be arvested inatanter, whilst no one could 
arrest a man who '.s preparing to shoot at a post, in the 
case first supposed. 

That is, no doubt, almost the same question in another 
form, but yet it serves as a test. The shooting in that 
case is an attempt to attempt to commit murder, whilst in 
the case of st?aling, the putting the hand in the pocket is 
the direct attempt to commit the stealing. The shooting is 
one decrree more remote from the murder than the thrust of 
the hand in the pocket is from the stealing. There may 
have been no killing, even if B., the person intended to be 
murdered, had really been shot at, as the shot might either 
have missed him or only wounded him, and then A. would 
have been guilty of an attempt to murder. Whilst, in the 
other case, if there is in the pocket anything to steal, the 
stealing itself is the proximate, and only possible, ofTence 
which the man who thrusts his hand in the pocket can 
commit. Between the shooting at a person wit^ intent to 
murder and the m irder there is an intermediate possible 
offence, that is, the jvttempt to murder, if the pereon shot at 
is not killed. Bet veen the thrust of the hand in the 
pocket with intent to steal, and the stealing, there is no 
such intermediate offence possible. In this last case, there- 
fore, there is a direct attempt to steal, whilst in the first 
case there is no attempt to murder, not because a murder 
was not possible, but because, under the terms of sub- 
section 2 of section 64, the act of shooting was too remote 
from the murder to constitute, in law, an attempt to 
murder, as the^e might have been no murder even if B. had 
actually been shot at. 



f 






'• •! 



46 



OFFEN(!ES AGAINST PUBLIC ORDER. 



[Sec. 65 



TITLE II. 

OFFENCES AGAINST PUBLIC ORDER, INTERNAL 

AND EXTERNAL. 



PART IV. 

TREASON AND OTHER OFFENCES AGAINST THE QUEEN'S 
AUTHORITY AND PERSON. 

69* Treason is — 

(a) The act of killing Her Majesty, or doing her any bodily harm tending 
to death or destruction, maim or wounding, and the act of imprisoning or 
restraining her; or 

(6) The forming and manifesting by an overt act an intention to kill Her 
Majesty, or to do her any bodily harm tending to death or destruction, maim 
or wounding, or to imprison or to restrain her ; or 

(c) The act of killing the eldes;; son and heir apparent of Her Majesty, or 
the Queen consort of any King of the United Kingdom of Great Britain and 
Ireland ; or 

(d) The forming and manifesting, by an overt act, an intention to kill the 
eldest son and heir apparent of Her Majesty, or the Queen consort of any 
King of the United Kingdom of Great Britain and Ireland ; or 

(e) Conspiring with any person to kill Her Majesty, or to do her any 
bodily harm tending to death or destruction, maim or wounding, or conspiring 
with any person to imprison or restrain her ; or 

( /) Levying war against Her Majesty either — 

(i) With intent to depose Her Majesty from the style, honour and 

royal name of the Imperial Crown of the United Kingdom of Great 

Britain and Ireland or of any other of Her Majesty's dominions or 

countries ; 

(ii) In order, by force or constraint, to compel Her Majesty to change 

her measures or counsels, or in order to intimidate or overawe both Houses 

or either House of Parliament of the United Kingdom or of Canada ; or 

ig) Conspiring to levy war against Her Majesty with any such intent or 
for any such purpose as aforesaid ; or 

(h) Instigating any foreigner with force to invade the said United King- 
dom or Canada or any other of the dominions of Her Majesty ; or 

(t) Assisting any public enemy at war with Her Majesty in such war by 
any means whatsoe\tT ; or 

( j) Violating, whether with her consent or not, a Queen consort, or the 
wife of the eldest son and heir apparent, for the time being, of the King or 
Queen regnant. 

2. Every one who commits treason is guilty of an indictable otfence and 
liable to suffer death. 



Secfe. 66-68] 



TREASON. 



47 



06. In every case in which it is treason to conspire with any person for 
any inirpose the act of so conspiring, and every overt act of any such con- 
spiracy, is an overt act of treason. 25 Edw. Ill, st. 5, c 2. 

Limitation, three years, section 551a, and see sub-section 
2 of section 551. Not triable at quarter sessions, section 
540. Compulsion by threats no excuse, section 12. 

Requisites of indictment section 614. 

Special provisions as to trial for treason, section 658. 

Evidence of one witness must be corroborated, section 
684. Sections 6 and 7 of chapter 146 Rev. Stat, stand 
unrepealed. 

See Archbold, 755 ; Stephen's Crim. L. 32 ; Sir John 
Kelyng's Crown Cases, p. 7, and a treatise on treason 
printed therein; Foster's Cr. Law, discourse on High 
Treason, 183. 

Also, R. V. Gallagher, 15 Cox, 291, Warb. Lead. Cas. 
39 ; R. V. Deasy, 15 Cox, 334 ; Mulcahy v. R. L. R. 3 
H. L. 306; R. v. Riel, 16 Cox, 48, 10 App. Cas. 675; 
R. v. Davitt, 11 Cox, 676. 

Accessories After the Fact.— (iVeio). 

07> Every one is guilty of an indictable offence and liable to two years' 
imprisonment who — 

(a) Becomes an accessory after the fact to treason ; or 

(b) Knowing that any person is about to commit treason does not, with all 
reasonable despatch, give information thereof to a justice of the peace, or use 
other reasonable endeavours to prevent the commission of the same. 

Not triable at quarter sessions, section 540. Requisites 
of indictment, section 614. Special provisions for trial, 
oection 658. This section covera the common law offence 
of misprision of treason. 

Levying War, Etc., Etc. 

68> Every subject or citizen of any foreign state or country at peace 
with Her Majesty, who— 

(a) Is or continues in arms against Her Majesty within Canada ; or 
(6) Commits any act of hostility therein ; or 

(c) ICnters Canada with intent to levy war against Her Majesty, Oi to 
commit any indictable offence therein for which any person would, in Canada, 
be liable to suffer death ; and 

Every subject of Her Majesty within Canada who — 



i'" i ■ 




?,ii ■ 



i 



48 



OFFENCES AGAINST PUBLIC ORDER. [Sec. 69, 70 



•i; 
;! 
ft 
li 



i 



(d) Levies war against Her Majesty in company with any of the subjects 
or citizens of any foreign state or country at ptta^e with Her Majesty ; or 

(e) Enters Canada in company with any such subjects or citizens with 
intent to levy war against Her Majesty, or to commit any such offence 
therein ; or 

(/) With intent to aid and assist, joins himself to any person who has 
entered Canada with intent to levy war against Her Majesty, or to oommil 
any such offence therein— is guilty of an indictable oflfence and liable to suffer 
death. R. S. C. c. 146, ss. 6 & 7. 

Not triable at quarter sessions, section 540. Special 

provisions as to indictment, section 614 Sections 6 and 7 

of chapter 146, Revised Statutes, stand unrepealed. They 

cover the same offences as the above section 68, but the 

punishment is discretionary, and they may be tried by 

court-martial. Every subject of Her Majesty within 

Canada who enters Canada with any foreigner with intent 

to commit any capital offence is, by this enactment, liable 

to suffer death. 

Treasonable Offences. 

60. Every one is guilty of an indictable oflfence and liable to imprison- 
ment for life who forms any of the intentions hereinafter mentioned, and 
manifests any such intention by conspiring with any person to carry it into 
effect, or by any other overt act, or by publishing any printing or writing ; 
that is to say — 

(a) An intention to depose Her Majesty from the style, honour and royal 
name of the Imperial Crown of the United Kingdom of Great Britain and 
Ireland, or of any other of Her Majesty's dominions or countries ; 

(6) An intention to levy war against Her Majesty within any part of the 
said United Kingdom, or of Canada, in order by force or constraint to compel 
her to change her measures or counsels, or in order to put any force or 
constraint upon, or in order to intimidate or overawe both Houses, or either 
House of Parliament of the United Kingdom or of Canada ; 

(c) An intention to move or stir any foreigner or stranger with force to 
invade the said United Kingdom, or Canada, or any other of Her Majesty's 
dominions or countries under the authority of Her Majesty. R. S. C. o. 146, 
8.3; 11-12 V.c. 12, (Imp.). 

Not triable at quarter sessions, section 540. Limita- 
tion, 3 years, section 551. . See sub-section 2 of section 551. 
Special provisions, section 614. See annotation under 
section 65, ante. 

Conspiracy to Intimidate Leoislaturb. 

70. Every one is guilty of an indictable offence and liable to fourteen 
years' imprisonment who confederates, combines or conspires with any person 



Sees. 71-73] 



ASSAULTS ON THE QUEEN. 



49 



to do any act of violence in order to intimidate, or to put any force or 
constraint upon, any Legislative Council, Legislative Assembly or House of 
As.sembly. R. S. C. c. 140, s. 4. 

Not triable at quarter sessions, section 540. Special 
provisions, section 614. 

This enactment does not apply to conspiracies to 
intimidate the Senate or House of Commons. They are 
covered partly by sections 65 and 69, ante. 

Assaults on the Queen. 

Tl. Every one is guilty of an indictable offence and liable to seven years 
impi'lsonment, and to be whipped once, twice or thrice as the court directs, 
who — 

(rt) Wilfully produces, or has near Her Majesty, any arm or destructive or 
dangerous thing with intent to use the same to injure the person of, or to alarm, 
Her Majesty ; or 

{b) Wilfully and witli intent to alarm or to injure Her Majesty, or to break 
the public peace : 

(i) Points, aims or presents at or near Her Majesty any firearm, loaded 
01- ot, or any other kind of arm ; 

^ii) Discharges at or near Her Majesty any loaded arm ; 
'iii) Discharges any explosive material near Her Majesty ; 
(iv) Strikes, or strikes at, Her Majesty in any manner whatever; 
(v) Tlirows anything at or upon Her Majesty ; or 
(c) Attempts to do a!iy of the things specified in paragraph (b) of this 
section. 

5 & 6 V. c. 51, (Imp.). Xot ti'iable at quarter sessions, 
section 540. Special provisions, section 614. As to whipping, 
section 957. 

Inciting to Mutiny. (Neio.) 

718. Every one is guilty of an indictable offence and liable to imprison- 
ment for life, who, f t)r any traitorous or mutinous purpose, endeavours to seduo* 
any jierson serving in Her Majesty's forces by sea or land from his duty and 
allegiance to Her Majesty, or to incite or stir up any such person to commit 
any traitorous or mutinous jn-actice. 

37 Geo. III. c. 10, (Imp.); 7 W. IV. & 1 Y. c. 91, (Imp.). Not 
triable at quarter sessions, section 540. Special provisions, 
section 614: R. v. Fuller, 1 B. k P. ISO; Archbold, 820; 
R. v. Tiorney, R. & R. 74. 

Enticing Solimehs ok Seamen to Desert. 
73. Everj' one is guilty of an indictable offence who, not being an enlisted 
soldier in Her Majesty's service, or a seauuvn in Her Majesty's naval 
service — 

CntM. Law— 4 



50 



OFFENCES AGAINST PUBLIC ORDER. [Sees. 74-76 



■I 
I 



■I 



(a) By words or with money, or by any other means whatsoever, directly or 
indirectly persuades or procures, or goes about or endeavours to persuade, pre- 
vail on or procure, any such seaman or soldier to desert from or leave Her 
Majesty's military or naval service ; or 

(6) Conceals, receives or assists any deserter from Her Majesty's military or 
naval service, knowing him to be such deserter, 

2. The offender may be prosecuted by indictment, or summarily before two 
justices of the peace. In the former ease he is liable to fine and imprisonment 
in the discretion of the court, and in the latter to a penalty not exceeding two 
hundred dollars, and not less than eighty dollars and costs, and in default of 
payment, to imprisonment for any term not exceedinif six months. R. S. C. 
c. 169, 88. 1 & 4 ; 6 Geo. IV. c. 5, (Imp.). 

Triable at quarter sessions. Section 614 applies, though 
through error. Arrest of suspected deserters, section 561. 

Resisting Warrant, Etc., Etc, 

T-l. Every one who resists the execution of any warrant authorizing the 
breaking open of any buildinpf to search for any deserter from Her Majesty's 
military or naval service is guilty of an offence and liable, on summary convic- 
tion before two justices of the peace, to a i)enalty of eighty dollars. R, ,S. C. 
c. 160, s. 7. 

Arrest of deserters, section 561. 

Enticing Militia or Mounted Policb Men to Desert. 

7Sm Every one is guilty of an offence and liable, on summary conviction, 
to six months' imprisonment with or without hard labour, who — 

(rt) Persuades any man who has been enlisted to serve in any corps of 
militia, or who is a member of, or ha* engaged to serve in the North-west 
mounted i)olice force, to dtsert, or attempts to procure or persuade any such 
man to desert ; or 

{b) Knowing that any such man is about to desert, aids or assists him in 
deserting ; or 

(c) Knowing that any sucli man is a deserter, conceals such man or aids or 
assists in his rescue. R. S. C. c. 41, s. 109 ; 52 V, c. 25, s. 4. 

Interpretation of Two Next Sections. 

TO. In the two following sections, unless the context otherwise re- 
quires — 

(rt) Any reference to a place belonging to Her Majesty includes a place 
belonging to any department of the Government of the United Kingdom, or 
of the Government of Canada, or of any province, whether the place is or is 
not actually vested in Her Majesty ; 

(i) Expressions referring to communications inchide any communication, 
whether in wliole or in part, and whetiier tlie document, sketch, plan, moc'.fl 
or information itself or the substance or effect thereof only be communicated ; 

(c) The expression " document '' includes part of a document ; 

(<l) The expressicm "model"' includes design, pattern and s^pecimen; 



Sec. 77] U: 

(e) The ex 

expression of a 

(/) The ej 

enaployment in 

Kingdom, or > 

c- 10, 8. 5. 

Those tf 
" Official Se( 



• • • Every 
ment for one yei 
imprisonment an 

(a) For the j 

(i) Enter 
Majesty, beir 
other like pla 

(ii) Wher 
obtains any i 
which he is n 
sketch or plan 

(iii) Whei 
Canada, belon 
authority givei 
fortress, arsem 
(6) Knowingly 
sketch, plan, model 
act which constitut 
time wilfully and v. 
municate the same 
of the state, to be a 
(c) After havin; 
Majesty with any d( 
such place as afores 
wilfully, and in bro 
the interests of the s 
(d) Having poss 
factory, dockyard, c 
Majesty, or to the 
manner the same has 
the same to any iktsi 
of the state, to be coi 
2. Every one wh 
a foreign state any ir 
obtained or taken by 
the same tfj any agen 
liable to imprisonmen 



Sec. 77] UNLAWFULLY OBTAINING INFORMATION. 



51 



(e) The expression " sketch " includes any photograph or other mode of 
expression of any place or thing ; 

(/) The expression "office under Her Majesty," includes any offic? or 
employment in or under any department of the Government of the United 
Kingdom, or of the Government of Canada or of any province. 53 V. 
c. 10, 8. 5. 

Those three sections are re-enactments of the Imperial 
" Official Secrets Act of 1889 " 52 & 53 V. c. 52. 

Unlawfully Obtaining Official Information. 

TT* Every one is guilty of an indictable offence and liable to imprison- 
ment for one year, or to a fine not exceeding one hundred dollars, or to both 
imprisonment and fine, who — 

(a) For the purpose of wrongfully obtaining information — 

(i) Enters or is in any part of a place in Canada belonging to Her 
Majesty, being a fortress, arsenal, factory, dockyard, camp, ship, office or 
other like place, in which part he is not entitled to be ; or 

(ii) When lawfully or unlawfully in any such place as aforesaid either 
obtains any document, sketch, plan, mixlel or knowledge of anything 
which he is not entitled to obtain, or takes without lawful authority any 
sketch or plan ; or 

(iii) When outside any fortress, arsenal, factory, dockyard or camp in 
Canada, belonging to Her Majesty, takes, or attempts to take without 
authority given by or on behalf of Her Majesty, any sketch or plan of that 
fortress, arsenal, factory, dockyard or camp ; or 

(b) Knowingly having possession of or control over any such document, 
sketch, plan, model, or knowledge as has been obtained or taken by means of any 
act which constitutes an offence against this and the following section, at any 
time wilfully and without lawful authority communicates or attempts to com- 
mimicate the same to any person to whom the same ought not, in the interests 
of the state, to be communicated at that time ; or 

(c) After having been intrusted in confidence by some officer under Her 
Majesty with any document, sketch, plan, model or information relating to any 
such place as aforesaid, or to the naval or military affairs of Her Majesty, 
wilfully, and in breach of such confidence, communicates the same when, in 
the interests of the state, it ought not to be communicated ; or 

(d) Having possession of any document relating to any fortress, arsenal, 
factory, dockyard, camp, ship, office or other like place belonging to Her 
Majesty, or to the naval or military affairs of Her Majesty, in whatever 
manner the same has been obtained or taken, at any time wilfully communicates 
the same to any ijerson to whom he knows tlie same ought not, in the interests 
of the state, to be communicated at the time ; 

2. Every one who commits any such offence intending to communicate to 
a foreign state any information, document, sketch, plan, model or knowledge 
obtained or taken by him, or intrusted to him as aforesaid, or communicates 
the same to any agent of a foreign state, is gtiilty of an indictable offence and 
liable to imprisonment for life. 53 V. c. 10, s. 1 . 



m^ 



i-'i'itii 

Mi 

i 



'1:1^1;: 



t' 



I 



52 



UNLAWFUL ASSEMBLIES, ETC. 



[Sees. 78, 79 



Not triable at quarter sessions, section 540. No prose- 
cution without consent of Attorney-General, section 543. 
Section 614 is made to applj^ though through error. 
" Having in possession " defined section 3. 

Breach op Official Tkust. 

TS. Every one who, by means of his holding or having held an office 
under Her Majesty, has lawfully or unlawfully, either obtained possession of 
or control over any document, sketch, plan or model, or acquired any informa- 
tion, and at any time corruptly, or contrary to his official duty, communicates 
or attempts to communicate such document, sketch, plan, model or informa- 
tion to any person to whom the same ought not, in the interests of the state, 
or otherwise in the public interest, to be communicated at that time, is guilty 
of an indictable offence and liable— 

(rt) If the communication was made, or attempted to be made, to a foreign 
state, to imprisonment for life ; and 

(6) In any other case to imprisonment for one year, or to a fine not exceed- 
ing one hundred dollars, or to both imprisonment and fine. 

2. This section shall apply to a person holding a contract with Her 
Majesty, or with any department of the Government of the United Kingdom, 
or of the Government of Canada, or of any province, or with the holder of any 
office under Her Majesty as such holder, where such contract involves an obli- 
gation of secrecy, and to any person employed by any person or body of jjersons 
holding such a contract who is under a like obligation of secrecy, as if the 
person holding the contract, and the person so employed, were respectively 
holders of an office under Her Majesty ; 53 V. c. 10, s. 2. 

See annotation under preceding section. 
The Imperial Foreign Enlistment Act, 33-34 V. c. 90, 
applies to Canada. See R. v. Sandoval, Warb. Lead. Cas. 43. 



PAllT \. 

UNLAWFUL ASSEMBLIES, RIOTS, BREACHES OF THE PEACE. 

70. An unlawful assembly is an assembly of three or more persons who, 
with intent to carry out any ccnnnion i)urpose, assemble in such a manner or 
so conduct themselves when assembled as to cause persons in the neighbourhood 
of such assembly to fear, on reasonable grounds, that the persons so assembled 
will disturb the peace tuniultuously, or will by such assembly needlessly and 
without any reasonahlt occasion provoke other persons to disturb the peace tumtd- 
tuously. 



Sec. 79] 

2. Persons 
conduct thems* 
made their asse 
purpose. 

3. An asset 
house of any oni 
such house in or 

R. V. Vir 
435; Beatty 
49 ; Back v. 
483 ; R. V. C 

" The def 

on the comm 

assembly is ii 

from it that tl] 

practice for thi 

to go to marke 

obvious thatni 

the conseqnenc 

bands would pr 

fear that they v 

was such as to : 

cases were decic 

a breach of the 

as almost to ma 

to resist those v* 

voured in sectior 

law, although in 

it causes persons 

Jessly, and witho 

turb the peace i 

not as yet been 

The clause as t 

inserted because ( 

Comm. Rep. 

Divers perso 
being paid, to w 
combatants fouo 
attended by a se 



Sec. 79] 



UNLAWFUL ASSEMBLIES, ETC. 



53 



2. Persons lawfully assembled may become an unlawful asssembly if they 
conduct themselves with a common purpose in «uch a manner as would have 
made their assembling unlawful if they had assembled in that manner for that 
purpose. 

3. An assembly of three or more persons for the purpose of protecting the 
house of any one in their number against persons threatening to break and enter 
such house in order to commit any indictable offence therein is not unlaioful, 

R. V. Vincent, 9 C. & P. 91 ; O'Kelly v. Harvey, 15 Cox, 
435; Beatty V. CA\\h- s, 15 Cox, 138; T.:' Lead. Cas. 
49 ; Back v. H( ^s, j ox, 2G3 ; R. v. ClaiKson, 17 Cox, 
483 ; R. V. Cunningham, 16 Cox, 420. 

" The definition of an unlawful assembly depends entirely 
on the common law. The earliest definition of an unlawful 
assembly is in the Year Book, 21 H. VII. 39. It would seem 
from it that the law was first adopted at a time when it was the 
practice for the gentry, who were on bad terms with each other, 
to go to market at the head of bands of armed retainers. It is 
obvious that no civilized government could permit this practice, 
the consequence of which was at the time that the assembled 
bands would probably fight, and certainly make peaceable people 
fear that they would fight. It was whilst the state of society 
was such as to render this a prevailing mischief that the earlier 
cases were decided ; and consequently the duty of not provoking 
a breach of the peace has sometimes been so strongly laid down 
as almost to make it seem as if it was unlawful to take means 
to resist those who came to commit crimes. We have endea- 
voured in section 84 to enunciate the principles of the common 
law, although in declaring that an assembly may be unlawful if 
it causes persons in the neighbourhood to fear that it will need- 
lessly, and without reasonable occasion, provoke others to dis- 
turb the peace tumultuously, we are declaring that which has 
not as yet been specifically decided in any particular case. 
The clause as to the defence of a man's house has been 
inserted because of a doubt expressed on the subject." — Imp. 
Comm. Rep. 

Divers persons assembled in a room, entrance money 
being paid, to witness a tight between two pei-sons. Tlie 
combatants fought in a ring with gloves, each being 
attended by a second, who acted in the same way as the 



i.n: i 
1 ■!■■■ 


' 




; 



I, if*;. 






V 



54 



UNLAWFUL ASSEMBLIES, ETC. 



[Sec. 79 




second at prize fights. The combatants fought for about 40 
minutes with great ferocity, and severely punished each 
other. The police interfered and arrested the defendants, 
who were among the spectators. 

Upon the trial of an indictment against them for 
unlawfully assembling together for the purpose of a prize 
fight, the chairman directed the jury that, if it was a mere 
exhibition of skill in sparring, it was not illegal ; but, if 
the parties met intending to fight till one gave in from 
exhaustion or injury received, it was a breach of the law 
and a prize fight, whether the combatants fought in gloves 
or not, and left it to the jury to say whether it was a prize 
fight or not. 

ife^tZ,thatthe jury were properly directed : R. v. Orton, 
14 Cox, 226 ; see R. v. McNaughten, 14 Cox, 576. 

The appellants with a considerable number of other 
persons, forming a body called "Salvation Army," assembled 
together in the streets of a town for a lawful object, and 
with no intention of carrying out their object unlawfully, 
or by the use of physical force, but knowing that their 
assembly would be opposed and resisted by other persons, 
in such a way as would in all probability tend to the 
committing of a breach of the peace on the part of such 
opposing persons. A disturbance of the peace having been 
created by the forcible opposition of a number of persons to 
the assembly and procession through the streets of the 
appellants and the Salvation Army, who themselves used 
no force or violence, it was — 

Held,hy Field and Cave, JJ., (reversing the decision of the 
justices), that the appellants had not been guilty of unlaw- 
full}'' and tumultuously assembling, etc., and could not 
therefore be convicted of that ofience, nor be bound over to 
keep the peace. 

Held, also, that knowledge by persons peaceably assem- 
bling for a lawful object, that their assembly will be forcibly 
opposed by other persons, under circumstances likely to lead 



R 



See. 80] 

to a breach 
does not i 
banks, 15 C 
A proce 
fired a pist( 
nobody was 

ffeld, th 
case reserv 
quashed 

On the 
assembly on 
of the pros( 
day previous 
that B., in m- 
reason to be 
Tlie prisoner 
that they ha 
and to give 
meeting, but 
C. J., and Fis] 
dis.), tliat tht 
conduct of tl: 
explain their < 
for quashing 
day that evid 
has been ini 
abandoned by 
case, and thert 
If a man kno) 
sumption of L 
the law will 
(N.B.), 493. 

80» A riot i 
l)eace tuinultuouslj 

See R. V. Ki 
Ccx, 420, and 



Sec. 80] 



RIOT, 



55 



to a breach of the peace on the part of such other persons, 
does not render such assembly unlawful : Beatty v. Gill- 
banks, 15 Cox, 138 ; see R. v. Clarkson, 17 Cox, 483. 

A procession being attacked by rioters a pei*son in it 
fired a pistol twice. He appeared to be acting alone and 
nobody was injured. 

Held, that he could not be indicted for riot, and, on a 
case reserved, a conviction on such an indictment was 
quashed : R. v. Corcoran, 26 U. C. C. P. 134. 

On the trial of an indictment for riot and unlawful 
assembly on the 15th Jan., evidence was given on the part 
of the prosecution of the conduct of the prisoners on the 
day previous, for the purpose of showing (as was alleged) 
that B., in whose office one act of riot was committed, had 
reason to be alarmed when the prisoners came to his office. 
The prisoner's counsel thereupon claimed the right to show 
that they had met on the 14th to attend a school meeting, 
and to give evidence of what took place at the school 
meeting, but the evidence was rejected. Held, per Allen, 
C. J., and Fisher and Dutt', JJ., (Weldon and Wetmore, JJ., 
dis.), tliat the evidence was properly rejected because the 
conduct of the prisoners on the 14th, could not qualify or 
explain their conduct on the following day. It is no ground 
for quashing a conviction for unlawful assembly on one 
day that evidence of an unlawful assembly on another day 
has been impi'operly received, if the latter charge was 
abandoned by the prosecuting counsel at the close of the 
case, and there was ample evidence to sustain the conviction. 
If a man knowingly does acts which are unlawfvil, the pre- 
sumption of law is that the mens veil exists ; ignorance of 
the law will not excuse him : R. v. Mailloux, 3 Pugs. 
(N.B.), 493. 

Riot. 
80. A riot is an unlawful assemblj' .which has begun to disturb the 
IH-ace tuniultuously. 

See R. V. Kelly, U. C. C. P. 372 ; R. v. Cunningham, 16 
Cvx, 420, and remarks under preceding section. 



'If 



* 



1,1 




56 



UNLAWFUL ASSEMBLIES, ETC. 



[Sees. 81-83 






W 



i 'II 
iiji. ,i^ 



Section 12 of chapter 147, R. S. C, provided specially 
for the punishment of a rout. 

Punishment for Unlawful Assembly. 

SI* Every member of an unlawful assembly is K^iilty of an indictable 
offence and liable to 07ie year's imprisonment. R. S. C. c. 147, s. 11. 

Fine and sureties, section 9o8. See post, under section 
83, and ante, under section 79. The punishment was two 
years under the repealed section. 

Punishment ok Riot. 

Htd» Every rioter is guilty of an indictable offence and liable to two years 
imprisonment with hard labour. R. S. C. c. 1-18, s. 13, 

Fine and sureties, section 958. The punishment was 
four years under the repealed section. 

Riot Act. 

8S. It is the duty of every sheriff, deputy -sheriff, mayor or other head 
officer, and justice of the peace, of any county, city or town, who has notice 
that there are within his jurisdiction persons to the number of twelve or more 
unlawfully, riotously and tupiultuorsly assembled together to the disturbance 
of the public peace, to resort to the place where such unlawful, riotous and 
tumultuous assembly is, and among the rioters, or as near to them as he can 
safely come, with a loud voice to command, or cause to be command<'d, silcm. e, 
and after that openly and with loud voice to make, or cause to be matle, a 
proclamation in these words or to the like effect : — 

"Our Sovereign Lady the Queen charges and commands all persons biiing 
assembled immediately to disperse and peaceably to depart to their habita- 
tions or to their lawful business, upon the pain of being guilty of an offence 
on conviction of which they may be sentenced to imprisonment for life. 

" God Save the Queen." 

2. Ail persons are guilty of an indictable offence and liable to imprison- 
ment for life who — 

(a) With force and arms wilfully oppose, hinder or hurt any person who 
begins or is about to make the said proclamation, whereby such proclamation 
is not made ; or 

(b) Continue together to the number of twelve for thirty minutes after 
such * ^iroclamation has been made, or if they know that its making was 
hindered as aforesaid, within thirty minutes after such hindrance. R. S. C. 
c. 147, ss. 1 & 2. 

The omission of " God Save the Queen" is fatal. R. v. 
Child, 4 C. & P. 442 ; see sections 40, 41, 42, ante, and 
Archbold, 955. Limitation, one j^ear, section 551. R. v. 
Pinney, 3 B. & Ad. 947 : R. v. Kennett, 5 C. & P. 282 : 



Sees. 84, 85] IF RIOTERS DO NOT DISPERSE, ETC. 



57 



a 



R. V. Neale, 9 C. & P. 431 ; R. v. Vincent, 9 C. & P. 91 ; R. 
V. James, o C. & P. 153. 

If Rioters do not Disperse, Etc., Etc. 

>i4. If the iieraons so unlawfully, riotously and tumultuously assembled 
together as mentioned in the next preceding seotion, or twelve or more of 
them, continue together, and do not disperse themselves, for the space of 
thirty minutes after the proclamation is made or after such hindrance as 
aforesaid, it is the duty of every such sheriff, justice and other officer, and 
of all persons required by them to assist, to cause such persons to be appre- 
hended and carried before a justice of the peace ; and if any of the persons so 
assembled is killed or hurt in the apprehension of such persons, or in the 
endeavour to apprehend or disperse them, by reason of their resistance, every 
person ordering them to bo apprehended or dispersed, and every person 
executing such orders, shall be indemnified against all proceedings of every 
kind in respect thereof : Provided, that nothing herein contained shall, in any 
way, limit or affect any duties or powers imjwsed or given by this Act as to 
the suppression of riots before or after the making of the said proclamation, 
R. S. C. c. 147, 8. 3. 

See annotation under preceding section, ' 

Riotous Destruction of Buildings. 

85. All persons are guilty of an indictable offence and liable to imprison- 
ment for life who, being riotously and tumultuously assembled together to the 
disturbance of the public peace, unlawfully and with force demolish or pull 
down, or begin to demolish <ir pull down, any building, or any machinery, 
whether fixed or movable, or any erection used in farming land, or in carrying 
on any trade or inaiuifacturo, or any erection or structure used in conducting 
the business of any mine, or any bridge, waggon-way or track for conveying 
minerals from any mine. R. S. C. c. 147, s. I) ; 24-25 V. c. 97, s. 11, (Imp.). 

See next section. 

Indictment. — That on at J. S., J. W. and 

E. W., together with divers other evil-disposed persons, to 
the jurors aforesaid unknown, unlawfully, riotously and 
tumultuously diil assemble together, to the disturbance of 
the public peace ; and being then and there so unlawfully, 
riotously and tumultuously assembled together as aforesaid 
did then and there unlawfully and with force begin to 
demolish and pull down, the dwelling-house of one J. ^., 
there situate. 

See note under next section. 

The accused may be convicted of the offence covered by 
next section, if the evidence warrants it: section 713. 



'f 



68 



UNLAWFUL ASSEMBLIES. ETC. 



[Se«. 80 



!'«' 



Riotous Dauaor to Buildings. 

80« All i)er8ons are guilty of an indictable offence and liable to seven 
years' imprisonmentwho, being riotously and tumultuously assembled together 
to the disturbance of the public peace, unlawfully and with force injure or 
damage any of the things mentioned in the last preceding section. 

2. It thalf not be a defence to a ehar<je of an offence against this or the last 
preceding section that the offender believed he had a right to aet as he did, unless 
he actually had such a right. R. S. C. c. 147, s, 10 ; 24-25 V. c. {»7, s. 12 (Imp.). 

" Sub-section 2 removes what is at least a doubt. See 

R. V. Langford, Car. &, M. 602 ; R. v. Casey, 8 Ir. Rep. C. L. 

408." — Imp. Coram. Rep. 

See R. V. Phillips, 2 Moo. 252; Drake v. Footitt, 7 
Q. B. D. 201. 

Iiulictment. — That on at S., J. W. and 

E. VV., together with divers other evil-disposed persons, to 
the said jurors unknown, unlawfully, riotously, and tumul- 
tuously did assemble together to the disturbance of the 
public peace, and being then and there so unlawfully, riot- 
ously and tumultuously assembled together as aforesaid, 
did then and there unlawfully and with force injure a 
certain dv^elling-house of one J. N., there situate. Add a 
count stating "damage" instead of "injure." 

The riotous character of the assembly must be proved. 
It must be proved that these three or more, but not less 
than three, persons assembled together, and that their 
assembling was accompanied with some such circumstances, 
either of actual force or violence, or at least of an apparent 
tendency thereto, as were calculated to inspire people with 
terror, such as being armed, using threatening speeches, 
turbulent gestures, or the like. It is a sufficient terror and 
alarm, if any one of the Queen's subjects be in fact terri- 
fied : Archbold, 552. Then prove that the assembly began 
with force to demolish the house in question. It must 
appear that they began to demolish some part of the free- 
hold ; for instance, the demolition of moveable shutters is 
not sufficient : R. v. Howell, 9 C. & P. 437. A demolition 
by fire is within the Statute. Prove that the defendants 
were either active in demolishing the house, or present, 



Sec8. 87, 88] 



UNLAWFUL DRILLING. 



69 



aiding and abetting. To convict under section 85, the jury 
must bo satisfied that the ultimate object of the rioters was 
to demolish the house, and that if they had carried their 
intention into effect, they would in point of fact have 
demolished it ; for if the rioters merely do an injury to the 
house, and then of their own accord go away as having 
completed their purpose it is not a beginning to demolish 
within this section. But a total demolition is not necessary, 
though the parties were not interrupted, and the fact that 
the rioters left a chimney remaining, will n. t prevent the 
Statute from applying. But if the demolishing or int;;nt 
to demolish be not proved, and evidence of riot and injury 
or damage to the building is produced, the jnry may find 
the defendant guilty of the offence created by section 86. 

Unlawful Dbillino. 

87. The Governor in Council is authorized from time to time t( j>r -..ibit 
assemblies without lawful authority of persons for the purpose of tr inin^j or 
drilling themselves, or of being trained or drilled to the use of arms, or for the 
purpose of practising military exercises, movements or evolutions, and to pro- 
liibit jiersons when assembled for any other purpose so training or drilling 
themselves or being trained or drilled. Any such prohibition may be general 
or may apply only to a particular place or district and to assemblies of a par- 
ticular character, and shall come into operation from the publicatio^i in the 
Canada Gazette of a proclamation embodying the terms of such prohibition, 
and shall continue in force until the like publication of a proclamation issued 
by the authority of the Governor in Council revoking such prohibition. 

2. Every person is guilty of an indictable offence and liable to two years' 
imprisonment who, without lawful authority and in contravention of such 
prohibition or proclamation — 

(rt) Is present at or attends any such assembly fo- ii^ purpose of training 
or drilling any other iierson to the use of arms or the praccice of military exer- 
cises or evolutions ; or 

(h) At any assembly trains or drills any other ; orson to the use of arms or 
tile practice of military exercises or evolution?-. R. S. C. c. 147, ss. 4 & 5. 
«0 Geo. III. and 1 Geo. IV. c. 1, (Imp.). IA„^ndeil.) 

Limitation, 6 months, section 551 ; see Archbold, 822. 

Unlawfully Bbing Drilled. 

88. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who, without lawful authority, attends, or is present at, any 
such assembly as in the last preceding section mentioned, for the purpose of 
being, or who at any such assembly is, ypthout lawful authority and in contra- 






60 



UNLAWFUL ASSEMBLIES, ETC. 



[Sees. 89, OO 



Sees. !)1, 92] 



■ ::f I 






▼ention of such prohibition or proclamation, trained or drilled to the use of 
arms or the practice of military exercises or evolutions. K. S. C. c. 147, s. 0, 

Limitation, 6 months, section 551. 

Forcible Extry or Detainer. 

80« Forcible entry is where a person, whether entitled or not, enters in 
a manner likely to cause a breach of the peace, or reasonable apprehension 
thereof, on land then in actual and peaceable possession of another. 

2. Forcible detainer is where a person in actual possession of land, with- 
out colour of right, detains it in a maimer likely to cause a breach of the peace^ 
or reasonable apprehension thereof, against a person entitled by law to the 
possession thereof. 

3. What amounts to actual possession or colour of right is a question of law. 

4. Every one who forcibly enters or forcibly detains land is guilty of an 
indictable offence and liable to one year's imprisonment. 

Arch bold, 886; R. v. Smyth, 5 C. & P. 201 ; Lows v. 
Telford, 13 Cox, 22G, VVarb. Lead Can. 51. 

*' Forcible entry and detainer are offences at common law ; 
and this section, we believe, correctly states the existing law." — 
Imp. Coinm. Rep. 

Indictment.— That A. D., C. D., E. F., G. H., and J. K, 
on day of , in the year of our Lord , 

milawfully and injuriously and with a strong hand 
entered into a certain mill, and certain lands and houses, 
and the sites of a cei'tain mill and certain houses, with the 
appurtenances, situate in the parish of , in the said 

county, and then in the possession of one L. M., and unlaw- 
fully and injuriously and with a strong hand, expelled and 
put out the said L.M. from the posse'ision of the said 
premises, in a manner likely to cause a breach of the peace. 

Affray. 

OO. An affray is the act of fighting in any public street or liighway, or 
fighting to the alarm of the public in any otlier place to wliicli the public have 
access. 

2. Every one who takes part in an affray is guilty of an indictable offence 
and liable to one i/eur's imprisonment with hard labour, R. S. C. c. 147, s. 14. 

The words " to the alarm of the public " should be in- 
serted after the word " fio-htiriir " in the first line. Under 
section 14, chapter 147 of the Revised Statutes, this offence 



was punish 
It must noA 



®l« Ever 
imprisonment 
person to fight , 
other person so 

This was 
581 ; R. V. P 



"8« In sec 

" prize-fight " me 
persons who have 
for them. R. S. 

R. V. Per] 
103 ; R. V. Co 
lor, 13 Cox, 6 
tight is not a 
the manslaugl 
being present 
R. V. Coney, /( 

The follow 
Statutes are ui 

6. If, at any tii 

any chief of police, j 

has reason to belie 

"bout to engage as j 

with arrest such per 

try offences against t 

upon oath, before sui 

tlie charge, and if he 

the time of his arrest 

require the accused t 

sum not exceeding fi\ 

conditioned that the 

fioni and after the da 

person before whom t 

the gaol of the countv 

or if there is no comw 

to the place where s 

I'-icognizance with sucl 



' . 



Sees. i)l, 92] 



CHALLENGE TO FIGHT A DUEL. 



61 



was punishable by three months on summary conviction. 
It must now be proceeded against by indictment. 

Challenge to Fight a Duel. 

01« Every one is guilty of an indictable offence and liable to three years' 
imprisonment who challenges or endeavours by any means to provoke any 
person to fight a duel, or endeavours to provoke any person to challenge any 
t>ther person so tn do. 

This was an offence at common law : R. v. Rice, 3 East, 
581 ; R. V. Philipps, 6 East, 463 : 3 Chit. 487. 

Prize Fights, Etc., Etc. 

03> In sections ninety-three to nmety-seven inclusive the expression 
" prize-fight " means an encounter or fight with fists or hands, between two 
persons who have met for such purpose by previous arrangement made by or 
for them. R. S. C. c. 153, s. 1. 

R. V. Perkins, 4 C. & P. 537 ; R. v. Murphy, 6 C. & P. 
103 ; R. V. Coney, 15 Cox, 46, 8 Q. B. D. 534 ; in R. v. Tay- 
lor, 13 Cox, 68, it was held that a stakeholder to a prize- 
tight is not an accessor}^ before the fact nor an abettor to 
the manslaughter, if one of the combatants is killed, he not 
being present : see R. v. Orton, Warb. Lead. Cas. 54, and 
R. V. Coney, Id. 56. 

The following three sections of chapter 153, Revised 
Statutes are unrepealed. 

0. If, at any time, the sheriff of any county, place or district in Canada, 
any chief of police, any police officer, or any constable, or other peace officer, 
has reason to believe that any jwrson within his bailiwick or jurisdiction is 
about to engage as princii)al in any prize-fight within Canada, he shall forth- 
with arrest such ijerson and take him before some person having authority to 
try offences against this Act, and shall forthwitli make complaint in that behalf, 
ui)on oath, before such person ; and thereupon such person shall inquire into 
the charge, and if he is satisfied that the {person so brought before him was, at 
the time of his arrest, about to engage as a principal in a prize-tight, he shall 
require the accused to enter into a recognizance, with sufficient sureties, in a 
sum not exceeding five thousand dollars and not less tha!i one thousand dollars, 
conditioned that the accused will not engage in any such fight within one year 
from and after the date of such arrest ; and in default of such recognizance, the 
person before whom the accused has been brought shall commit the accused to 
the gaol of the county, district or city within which sucii inquiry takes place, 
or if there is no common gaol there, then to the common gaol which is nearest 
to the place where such inquiry is had, there to remain until he gives such 
recognizance with such sureties. 



f 



j, ifc. 



J 'i 



I .ill' 



62 



UNLAWFUL ASSEMBLIES, ETC, 



[Sees. 93-96 



7. If any sheriff has reason to believe that a pnze-fight is taking ])lace or 
is about to take place within his jurisdiction as such sheriif, or that any persons 
are about to come into Canada at a point within his jurisdiction, from any place 
outside of Canada, with intent to engage in, or to be coi 3emed in, or to attend * 
any prize-fight within Canada, he shall forthwith summon a force of the inhabi- 
tants of his district or county sufficient for the purpose of suppressing and pre- 
venting such fight ; and he shall, with their ai(i, suppress and prevent the 
same, and arrest all persons present thereat, or who come into Canada as afore- 
said, and shall take them before some person having authority to try offences 
against this Act, to be dealt with according to law, and fined or imprisoned, or 
both, or compelled to enter into recognizances with sureties, as hereinbefore 
provided, according to the nature of the case. 

10. Every judge of a superior court or of a county court, judge of the 
sessions of the peace, stipendiary magistrate, police magistrate, and commis- 
sioner of police of Canada, shall, within the limits of his jurisdiction as such 
judge, magistrate or commissioner, have all the powers of a justice of the peace 
with respect to offences against this Act. 

Challenge to a Prize-fight. 

03. Every one is guilty of an offence and liable, on summary conviction, 
to a penalty not exceeding one thousand dollars and not less than one hundred 
dollars, or to imprisonment for a terra not exceeding six months, with or with- 
ffut hard labour or to both, who sends or publishes, or causes to be sent or 
published or otherwise made known, any challenge to fight a prize-fight or 
accepts any such challenge, or causes the same to be accepted, or goes into 
training preparatory to such fight, or acts as trainer or second to any person 
who intends to engage in a prize-fight. R. S. C. c. 153, s. 2. 

Principal in a Prize-fight. 

04. Every one is guilty of an offence and liable, on summary conviction, 
to imprisonment for a term not exceeding twelve months and not less than 
three months, with or without hard labour who engages as a principal in a prize- 
fight. R. S. C. c. 153, s. 3. 

Aiders, Abettors, Etc. 

95» Every one is guilty of an offence and liable, on summary conviction, 
to a penalty not exceeding five hundred dollars and not less than fifty dollar.^, 
or to imprisonment for a term not exceeding twelve months, with or without 
hard laljour or to both, who is present at a prize-fight as an aid, second, sur- 
geon, umpire, backer, assistant or reporter, or who advises, encourages or 
promotes .- ch tight. R. S. C. c. 153, s. 5. 

See R. V. Coney, 15 Cox, 46," Warb. Lead. Cas. 56, and 
note under section 92 ante. 

Leaving Canada to Engage in a Prize-fight. 

00. Every inhabitant or resident of Canada is guilty of an offence and 
liable, on summary conviction, to a penalty not exceeding four hundred dollars 
and not less than fifty dollars, or to imprisonment for a term not exceeding six 
months, with or without hard labour or to both, who leaves Canada with intent 
to engage in a prize-fight without the limits thereof. R. S. C. c. 153, s. 5. 



Sees. 97-99] 
The in 

difference 



»». If, a( 

origin of the fi{ 
made is satisfie 
or result of a qi 
engage therein, 
on the result o 
depended, such 
upon him a pen 

Section , 
to prevent b 
See ante, urn 

"8. Every ( 
imprisonment wl 
treaty Indians, o 

(«) To make j 
ment m a riotous 
calculated to caus 

(6) To do any 
s. 111. 

Inciting ar 
punishable by 
even if that 
punishment. 



UNLAWEU] 
SUBST 

"W. Every one 
ment for life who wi] 
a nature likely to end 
'">y injury to pnrdon c 



■ l'^: -]: 



Sees. 97-99] 



PRIZE FIGHT. 



63 



The interpretation clause does not state what is the 
difference between an inhabitant and a resident. 

Trial, Etc. 

OT. If, after hearinp evidence of the circumstances connected with the 
origin of the fight or intended fight, the person before whom the complaint is 
made is satisfied that such fight or intended fight was bona fide the consequence 
or result of a quarrel or dispute between the principals engaged or intended to 
engage therein, and that the same was not an encounter or fight for a prize, or 
on the result of which the handing over or transfer of money or property 
depended, such person may, in his discretion, discharge the accused or impose 
upon him a penalty not exceeding fifty dollars. R. S. C. c. 153, s. 9. 

Section 7, chapter 147, R S. C, authorizing the sheriff 
to prevent by force any prize-fight has not been repealed. 
See ante, under section 92. 

Inciting Indians to Riotous Acts'. 

08. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who ii.Juces, incites or stirs up any three or more Indians, non- 
treaty Indians, or half-breeds, apparently acting in concert — 

(a) To make any request or demand of any agent or servant of the Govern- 
ment m a riotous, routous, disorderly or threatening manner, or in a manner 
calculated to cause a breach of the peace ; or 

(6) To do any act calculated to cause a breach of the peace. R. S. C. c. 43, 
8. 111. 

Inciting an Indian to commit anv indictable offence is 
punishable by five years, section 112, chapter 43, R. S. C. 
even if that indictable offence is itself liable to a lesser 
punishment. 



■ tiS 

a 






■I M! 



f 



■:sl ! 



PART VI. 

UNLAWFUL USE AND POSSESSION OF EXPLOSIVE 

SUBSTANCES AND OFFENSIVE WEAPONS 

-SALE OF LIQUORS. 

00» Every one is guilty of an indictable offence and liable to imprison- 
ment for life who wilfully causes, by any explosive substance, an explosion of 
a nature likely to endanger life or to cause serious injury to property, whether 
any injury to psir-ton or property is actually caused or not. R. S. C. c. IVt, s. 3. 



64 



EXPLOSIVE SUBSTANCES, ETC. 



[Sees. 100-102 



See post annotations under sections 247, 248 & 488. 

As to search warrant, section 569 sub-sections 7, 8. — "Ex- 
plosive substance " defined, section 3. This and the two 
following sections are re-enactments of the Imperial " Ex- 
plosive Substances Act of 1883 " : 46 V. c. 3. 

Injuries by Explosive Substances. 

I00< Every one is guilty of an indictable ofiFence and liable to fourteen 
year.-*' imprisonment who wilfully — 

{a) Does any act with intent to cause by an explosive substance, or con- 
spires to cause by an explosive substance, an explosion of a nature likely to 
endanger life, or to cause serious injury to property ; 

(h) Makes or has in his possession or under his control any explosive 
substance witli intent by means thereof to endanger life or to cause serious 
injury to property, or to enable any other person by means thereof to endanger 
life "t to cause serious injury to property — 

Whether any explosion takes place or not and whether any injury to person 
or property is actually caused or not. R. S. C. c. loO, s. 3. 

See note under preceding section. 

Possession of E.xplosives. 

tOl- Every one is guilty of an indictable offence and liable to seven 
years' imprisonment who makes, or knowingly has in liis possession or under 
his control, any explosive substance under such circumstances as to give rise to 
a reasonable suspicion that he is not making it, or has it not in his possession 
or under his control, for a lawful object, unless he can sliow that he made it or 
had it in his possession or under his control for a lawful object. R. S. C. c. 150, 
s. 5; 46 V. c. 3 (Imp.). 

"Having in possession" and "Explosive substance" 
defined, section 3; R. v. Charles, 17 Cox, 499, is a case 
under the corresponding section of the Imperial act. 

Possession of Offensive Weapons. 

109* Every one is guilty of an indictable offence and liable to five years' 
imprisonment who has in his custody or iK)ssession, or carries, any offensive 
weapons for any purpose dangerous to the public peace. R. S. C. c. 149, s. 4. 
(Amciided). 

Limitation, 6 months, section 551. " Having in posses- 
sion " and " Ottlnisive weapon " defined, section 3 ; search 
warrant, section 569. The following sections of chapter 
149, Revised Statutes respecting the seizure of arms kept 
for dangerous purposes are unrepealed. 



Sees. 103-105] 

'^5. AIljus 

place, in Cana 

with the justic 

with respect tc 

respect to all i 

peace under th 

the commissior 

such districts, i 

7. The Go 

suspend the op« 

lar district, com 

the iieriod spec 

shall be suspend 

herein containec 

by proclamation 

again subject to 

mationthis Acts 



103. If tw( 

place in such a i 
create terror and 
befor two justice 
not less than ten 
term not exceedin 

Limitatior 
weapon " defii 

104. Every ( 
ment for ten years 
under any law rel; 
and knowing them 
c. 32, s. 213. (Anu 

As the sect 
possession and 
offence. Secti( 
Act respecting 
99, of chapter 
Inland Revenu 

lOfl, Every on 

to a penalty not exce 

to imprisonment for ( 

a soldier, sailor or vo 

Crim. Law- 



Sec9. 103-105] CARRYING OFFENSIVE WEAPONS. 



65 



'"~ 5. All justices of the peace in and for any district, county, city, town or 
place, in Canada, shall have concurrent jurisdiction as justices of the peace, 
with the justices of any other district, county, city, town or place, in all cases 
with respect to the carrying into execution the provisions of this Act, and with 
respect to all matters and things relating to the preservation of the public 
peace under this Act, as fully and effectually us if each of such justices was in 
the commission of the i)oace, or was ex officio a justice of the peace for each of 
such districts, counties, cities, towns or places. 

7. The Governor in Council may, from time to time, by proclamation, 
susp<>nd the operation of this Act in any province of Canada or in any particu- 
lar district, county or locality si>eciiied in the proclamation ; and from and after 
the iwriod specified in any such proclamation, the iwwers given by this Act 
shall be suspended in such province, district, county or locality ; but nothing 
herein contained shall prevent the Governor in Council from again declaring, 
by proclamation, that any such province, district, county or locality shall be 
again subject to this Act and the powers hereby given, and upon such procla- 
mation this Act shall be revived and in force accordingly. 

Carrying Offensive Weapons. 

103« If two or more ])ersons ojjenly carry offensive weaiwns in a public 
place in such a manner and under such circumstances as are calculated to 
create terror and alarm, each of such persons is liable, on summary conviction 
befor two justices of the peace, to a penalty not exceeding forty dollars and 
not less than ten dollars, and in default of payment to imprisonment for any 
term not exceeding thirty days. R. S. C. c. 148, s. 8. 

Limitation, one month, section 551. "Offensive 
weapon " defined, section 3. «, 

Being Found With Smuggled goods. 

104% Every one is guilty of an indictable offence and liable to imprison- 
ment for ten years who is found with any goods liable to seizure or forfeiture 
under any law relating to inland revenue, the customs, trade or navigation, 
and knowing them to be so liable, and carrying offensive weapons. R. S. C. 
c. 32, s. 213. {Amended). 

As the section reads, there must be both the unlawful 
possession and the carrying of arms to constitute this 
offence. Section 213, of chapter 32, Revised Statutes, An 
Act respecting the Customs, is repealed, also sections 98 and 
99, of chapter 34, Revised Statutes, An Act respecting the 
Inland Revenue. 

Cakrtino op Arms, Selling Arms. 

10>1« Every one is guilty of an offence and liable on summary conviction 
to a penalty not exceeding twenty -five dollars and not less than five dollars, or 
to imprisonment for one month, who, not being a justice or a public officer, or 
a soldier, sailor or volunteer in Her Majesty's service, on duty, or a constable 

Grim. L.vw — 5 



I! 



66 



EXPLOSIVE SUBSTANCES, ETC. 



[Sees. 106, 107 




I'i 






i 1 1 ; 



i !:,i>f 



.1 



or other peace officer, and not having a certificate of exemption from the opera- 
tion of this section as hereinafter provided for, and not having at the time 
reasonable cause to fear an assault or other injury to his person, family or 
property, has upon his persona pistol or air-gun elsewhere than in his own 
dwelling-house, shop, warehouse, or counting-house. 

2. If sufficient cause be shown upon oath to the satisfaction of any justice, 
he may grant to any ai)plicant therefor not under the age of sixteen years and 
as to whose discretion and good character he is satisfied by evidence ufjon oath, 
a certificate of exemption from the oi)eratio i of this section, for such period, 
not exceeding twelve months, as he deems fit 

3. Such certificate, upon the trial of any offence, shall be primd facie 
evidence of its contents and of the signature and official character of the per- 
son by whom it purports to be granted. 

4. When any such certificate is granted under the preceding v)rovisions of 
this section, the justice granting it shall forthwith make a return thereof to the 
proper officer in the county, district or place in which such certificate has been 
granted for receiving returns under section nine hundred and two; and in 
default of making such return within ninety days after a certificate is granted, 
the justice shall be liable, on summary conviction, to a penalty of not more 
than ten dollars. 

5. Whenever the Governor in Coimcil deems it expedient in the public 
interest, he may by proclamation suspend the operation of the provisions of the 
first and second sub-sections of this section respecting certificates of exemption, 
or exempt from such oi)eration any particular part of Canada, and in either 
case for such period, and witii such exceptions as to the persons hereby affected, 
as he deems fit. Section 1, c. 1-18. (A mended). 

Limitation, one month, s. 551. 

106* Every one is guilty of an offence and liable on summary conviction 
to a penalty not exceeding fifty dollars, who sells or gives any jjistol or air-gun, 
or any ammunition tlierefor, to a minor under tlie age cf sixteen years, unless 
he establishes to the satisfaction of the justice before whom he is charged that 
he used reasonable diligence in endeavouring to ascertain the age of the minor 
l)efore making sucli sale or gift, and that lie had good reason to believe that 
such minor was not under the age of sixteen. 

2. Every one is guilty of an offence and liable on summitry conviction to a 
penalty not exceeding twenty-five dollars who sells any pistol or air-gun with- 
out keeping a record of such sale, the date thereof, and the name of the 
purchaser and of the maker's name, or other mark by which such arm may be 
identified. 

Limitation, one month, s. 551. 

lOT. Every one who wlien arrested, either on a warrant issued against 
him for an offence or while committing an offence, has ujion his person a jiistol 
oraio-gun is guilty of an offence and liable on summary conviction before two 
justices of the peace, to a penalty not exceeding fifty dollars and not less than 
twenty dollars, or to imprisonment for any term not exceeding three months, 
with or without hard labour. R. S. C. c. 148, s. 2. 

Limitation, one month, s. 551. 



Sees. 108-] 

10§. 

therewith 
and liable, 
penalty noi 
impnsonmt 
labaur. R 

Limii 

109. 

firearm or i 
liable, on su 
exceeding or 
for any term 
c. 148, 8. 4. 

Limiti 

no. E 

dirk, metal k 
like charactei 
the end, or se 
being masked 
pm, is guilt, 
justices of the 
ten dollars, an 
not exceeding 

Limitai 

in. Eve] 
who is found ii 
liable, on sumn 
^ not exceeding 
payment therec 
or without hard 

Limitati 
The seci 
repealed sec 
of chapter 1 
Improper U 
pealed. 



118- It is ,, 

or volunteer in H 
loaded pistols or 
duty. R. s. C. c 

The wordi 



n 



Sees. 108-112] 



CARRYING SHEATH-KNIVES. 



67 



108* Every one who has upon his person a pistol or air-gun, with intent 
therewith unlawfully to do injury to any other person, is guilty of an offence 
and liable, on summary conviction before two justices of the peace, to a 
penalty not exceeding two hundred dollars and not less than^/<y ddlars, or to 
imprisonment for any term n(jt exceeding six months, with or without hard 
labour. R. S. C. c. 148, s. 3. 

Limitation, one month, s. 551. 

109* Every one who, without lawful excuse, points at another person any 
firearm or air-gun, whether loaded or unloaded, is guilty of an offence and 
liable, on summary conviction before two justices of the peace, to a penalty not 
exceeding one hundred dollars and not less than <cn dollars, or to imprisonment 
for any term not exceeding thirty days, with or tvithout hard labour. R. S. C.^ 
c. 148, 8. 4. 

Limitation, one month, s. 551. 

llO« Every one who carries about his person any bowie-knife, dagger, 
dirk, metal knuckles, skull cracker, slung shot, or other offensive weapon of a 
like character, or secretly carries .about his person any instrument loaded at 
the end, or sells or exposes for sale, pubiioly or privately, any such weapon, or 
being masked or disguised carries or has in his possession any firearm or air- 
gun, is guilty of an offence and liable, on summary conviction before two 
justices of the peace, to a ix»nalty not exceeding fifty dollars, and not less than 
ten dollars, and in default of payment thereof to imprisonment for any term 
not exceeding thirty days, tvith or loithout hard labour. R. S. C. c. 148, s. 5. 

Limitation, one month, s. 551. 

Carrying Sheath-Knives in Seaports. 

111. Every one, not being thereto required by his lawful trade or calling,, 
who is found in ani/ tomi or city carrying about his perscm any sheath-knife is 
liable, on summary conviction before two justices of the peace, to a i)enalty 
not exceeding forty dollars and not less than ten dollars, and in default of 
l)ayment thereof to imprisonment for any term not exceeding thirty days, with, 
or without hard labour. R. S. C. c. 14S, s. 6. 

Limitation, one month, s. 551. 

The section does not only apply to seaports as the 
repealed section did. The heading only does. Section 7 
of chapter 148, Revised Statutes. "An Act respecting the 
Improper Use of Firearms and other Weapons " is unre- 
pealed. 

Legal Carrying of Arms. 

lis. It is not an offence for any soldier, public officer, peace officer, sailor 
or volunteer in Her Majesty's service, constable or other policeman, to carry 
loaded pistols or other usutd arms or offensive weapons in the discharge of his 
duty. R. S. C. c. 148, s. 10. 

The words in italics are new. 



V 



68 



EXPLOSIVE SUBSTANCES, ETC. 



[Sees. 113-115 



Refusal to Deliver Arms when attendiko a Public Mbetino. 




iS ' 









(: t 






lis. Every one attending a public meeting or being on his way to 
attend the same who, upon demand made by any justice of the peace within 
whose jurisdiction such public meeting is appointed to be held, declines or 
refuses to deliver up, peaceably and quietly, to such justice of the peace, any 
offensive weapon with wliich he is armed or which he has in his possession, is 
guilty of an indict.able offence. 

2. The justice of the peace may record the refusal and adjudge the offender 
to imy a jjenalty not exceeding eight dollars, or the offender ii- y be proceeded 
against by indictment as in other cases of indictable offences. R. S. C. c. 152, 
8. 1. 

For a conviction under Indictment, the punishment 
would be under section 951, post; limitation, one year, sec- 
tion 551. Sections 1, 2, 3, chapter 152, " An Act respecting 
the Preservation of Peace at Public Meetings," are un- 
repealed. 

Coming Armed near a Meeting. 

114. Every one, except the sheriff, deputy sheriff and just ces of the 
l>eace for the district or county, or the mayor, justices of the ijeace or other 
peace officer for the city or town resjiectively, in which any public meeting 
is held, and the constables and special constables employed by them, or any of 
them, for the preservation of the public peace at such meeting, is guilty of an 
indictable offence, and liable to a penalty not exceeding one hundred dollars, 
or to imprisonment for a term not exceeding three months, or to both, who, 
during any ji.art of the day upon which such meeting is appointed to be held, 
comes within one mile of the place appointed for such meeting armed witli any 
offensive weajjon. R. S. C. c. 152, s. 5. 

Limitation, one year, section 551. "Offensive weapon" 
defined, section 3. 

An offender punishable by three months imprisonment 
should be liable to conviction upon summary proceedings. 

Lying in wait for Persons returning from Public Meeting. 

115* Every one is guilty of an indictable offence and liable to a penalty 
not exceeding two hundred dollars, or to imprisonment for a term not exceeding 
six months, or to both, who lies in wait for any person returning, or expected 
to return, from any such public meeting, with intent to commit an assault 
upon such person, or with intent, by abusive language, opprobrious epithets 
or other offensive demeanour, directed to, at or against such person, to provoke 
such person, or those who accompany him, to a breach of the peace. R. S. C. 
c. 152, s. 6. 

Limitation, one year, section 551. Why is the offence 
under this section indictable ? 



Sees. 116-11 



116.] 

before two j 
months' imp 
place in the 

. («) With 
of the Lieutoi 
permission, h 
or with any p 
(6) Havin 
such arm or ai 
same. 

2. The exi 
arms except sn 
fixed ammunit 

Section 
ritories Act 

As to sei 

117. Ever 
place in which t 
J'ublic Works is 
not exceeding fo 
found in his poss 
by which such J 
under his care or 

2. Everyone 
one hundred doll; 
defeating the saic 
or procures to be 
is at the time in 
employed on or al 

***• Upon 
force in any place 
J'ublic WorJi;, and 
no person shall, at 
sell, barter, or dirt 
exchange supply 
have in possession 
such way. 

2. The provisi, 
intoxicating liquor 
a licensed distiller < 

3. Everyone in 
penalty of forty do] 



Sees. 116-118] 



SALE OF ARMS. 



Sale of Arms, North-West Tkrritoriks. 



69 



I10> Every one is guilty of an offence and liable, on stunmary conviction 
before two justices of the peace, to a penalty of two hundred dollars or to six 
months' imprisonment, or to both, who, during any time when and within any 
place in the North- West Territories where section one hundred and one of 
The North- West Territories Act is in force — 

(a) Without the ijermission in writing (the proof of which shall be on him) 
o^ the Lieutenant Governor, or of a commissioner appointed by him to give such 
permission, has in his possession or sells, exchanges, trades, barters or gives to, 
or with any person, any improved arm or ammunition ; or 

(6) Having such jiermission sells, exchanges, trades, barters or gives any 
such arm or ammunition to any person not lawfully authorized to possess the 
same. 

2. The expression "improved arm" in this section means and includes all 
arms except smooth-bore shot-guns ; and the expression "ammunition" means 
fixed ammunition or ball cartridge. R. S. C. c. .'50, s. 101. 

Section 101, of chapter 50, R. S. C. the North West Ter- 
ritories Act, is unrepealed. 

As to search warrant, section 569. 

Protection op Public Works. 

IIT. Every one employed upon or about any public work, within any 
place in which the Act respecting the Preservation of Peace in the vicinity of 
Public Works is then in force, is liable, on summary conviction, to a penalty 
not exceeding four dollars and not less than two dollars for every such we.ajwn 
found in his possession who, upon or afner the day named in the proclamation 
by which such Act is brought into focce, keeps or has in his possession, or 
under his care or control, within any such place, any weapon. 

2. Every one is liable, on summary conviction, to a i)enalty not exceeding 
one hundred dollars and nc»t less than forty dollars, who, for the jnirpose of 
defeating the said Act, receives or conceals, or aids in receiving or concealing, 
or procures to be received or concealed within any place in which the said Act < 
is at the time in force, any weaiKjn belonging to or in custody of any person 
employed on or about any public work. R. S. C. c. 151, ss. 1, 5 & G. 

llSa Upon and after the daj' named in any proclamation jjutting in 
force in any place An Act reiipectimj the Preservation of Peace in the vicinity of 
Public Works, .and during such period as sucIj proclamation remains in force, 
no person shall, at any place within the limits specified in such proclamation, 
sell, barter, or directly or indirectly, for any matter, thing, profit or reward 
exchange supply or dispose of any intoxicating liquor nor expose, keep or 
have in possession any intoxicating liquor intended to be dealt with in any 
such way. 

2. The provisions of this section do not extend to any person selling 
intoxicating liquor by wholesale and not retailing the same, if such person is 
a licensed distiller or brewer. 

3. Every one is liable, on summary conviction, for a first offence, to a 
penalty of forty dollars and costs, and, in default of payment, to imprisonment 



iii; 



f 



^ 



70 



SEDITIOUS OFFENCES, ETC. 



[Sees. 119, 120 



Sec. 121] 




for a term not exceeding three months, with or without hard labour,— and on 
every subsequent conviction to the said penalty and the said imprisonment in 
default of payment, and also to further imprisonment for a term not exceeding 
six months, witli or without hard labour, who, by himself, his clerk, servant, 
agent or other person, violates any of the provisions of this or of the preceding 
section. 

4. Every clerk, servant, agenn; or otiier jierson who, being, in the employ- 
ment of, or on the premises of, another iierson, violates or assists in violating 
any of the provisions of this or of the preceding section for the jwrson in 
whose employment or on whose premises he is, is equally guilty with the 
principal offender and liable to the same punishment. R. S. C. c. 151, ss. 1, 
13, 14 & 15. 

Chapter 151, Revised Statutes, "An Act respecting the 
Preservation of Peace in the vicinity of Public Works," 
is unrepealed. 

CONVEYIXC :(JUOR, FTC, KTC, ETC., TO HkR MaJESTY's ShIPS. 

1 10. Every one is guilty of an offence and liable, on summary conviction 
before two justices of the jjeace, to a fine not exceeding fifty dollars for each 
offence, and in default of payment to imprisonment for a term not exceeding 
one month, with or without hard labour, who, without the previous consent of 
the officer commanding the ship or vessel — 

(rt) Conveys any intoxicating liquor on board any of Her Majesty's ships 
or vessels ; or 

{b) Approaches or hovers about any of Her Majestj-'s ships or vessels for 
the purpose of conveying any such liquor on board thereof ; or 

(c) Gives or sells to any man in Her Majesty's service, on board any such 
ship or vessel, any intoxicating liquor. 50 51 V. c. 46, s. 1. 

As to arrest without warrant of offenders against this 
section by any officer, see section 552, sub-section 6 ; as to 
search for liquor and seizure by such officer, section 573. 



PART VII. 
SEDITIOUS OFFENCES.— UNLAWFUL OATHS. 

Oaths to Commit Certain Offences. (New). 

130. Every one is guilty of an indictable offence and liable to fourteen 
years' imprisonment who — 

{o.) Administers, or is present at and consenting to the administration of, 
any oath or any engagement purporting to bind the jjerson taking the same 



to commit any 
years ; or 

(b) Attemi 
engagement ; ( 

(c) Takes c 

Not tria 

This ent 
ter 10 of th 
5, 6, 7, 8 & 

lai. Ever 
imprisonment w 

(a) Adminis 
oath or engagem 

(i)To, 

(ii) Tod 
offence ; 

(iii) Not 
or other pers 

(iv) Not 
or any illegal 
engagement v 
any person, or 

(b) Attempts 
engagement ; or 

(c) Takes any 
c. 123 (Imp,). 

Not triabL 
R. V. Love 

Indictmen 

present, that , 

year of our L 

cause to be a( 

engagement, p 

said C. D., no 

associate, confc 

certain unlawf 

and which sai( 

the said C. D. 



Sec. 121] 



OTHER OATHS. 



71 



to commit any crime punishable by death or imprisonment for more than five 
years ; or 

(b) Attempts to induce or compel any person to take any such oath or 
ongagement ; or 

(c) Takes any such oath or engagement. 52 Geo. III. c. 104 (Imp.). 

Not triable at quarter sessions, section 510. 

This enactment and the two next arr- taken from chap- 
ter 10 of the Cons. Stat, of Lower Canada, of which sections 
5, 6, 7, 8 & 9 remain unrepealed. 

Other Unlawful Oaths. (Acio). 

l*il. Every one is guilty of an indictable offence and liable to seven years' 
imprisonment who — 

(a) Administers or is present at and consenting to the administration of any 
oath or engagement purporting to bind the person taking the same : 

(i) To engage in any mutinous or seditious purpose ; 

(ii) To disturb the public peace or commit or endeavour to commit any 
offence ; 

(iii) Not to inform and give evidence against any associate, confederate 
or other person ; 

(iv) Not to reveal or discover any unlawful combination or confederacy, 
or any illegal act done or to be done or any illegal oath or obligation or 
engagement which may have been administered or tendered to or taken by 
any person, or the import of any such oath or obligation or engagement ; "or 

(b) Attempts to induce or compel any person to take any such oath or 
engagement ; or 

(c) Takes any such oath or engagement : C. S. L. C. c. 10, s. 1. 37 Geo. III. 
c. 123 (Imp.). 

Not triable at quarter sessions, section 540. 

R V. Lovelass, 6 C. & P. 596. 

Indictment. — The jurors for our Lady the Queen, 
present, that A. B. on the day of , in the 

year of our Lord , did unlawfully administer and 

cause to be administered to one C. D. a certain oath and 
engagement, purporting, and then intended, to bind the 
said C. D., not to inform or give evidence against any 
associate, confederate, or other peraon of or belonging to a 
certain unlawful association and confedei'acy, to wit 
and which said oath and engagement was then taken by 
the said C. D. 









Si '.I 
' u ■ 






... 



7t 



SEDITIOUS OFFENCES, ETC. 



[fiecs. 122, 123 



INDICTMENT FOR TAKING AN UNLAWFUL OATH. 
Commence as ante] — did unlawfully take a certain oath 
and engagement, purporting [&c., as in the last precedent] : 
he, the said C. D., not being th'^n compelled to take the 
said oath and engagement. 

Compulsion. (New). 

193« Any one who, under Huoh'compulsion as would otherwise excuse 
him, ofifends against either of the last two preceding sections shall not 1^ 
excused thereby unless, within the period hereinafter mentioned, he de<jlares 
the same and what he knows touching tlie same, and the persons by whom and 
in whose presence, and when and where, such oath or obligation or engagement 
was administered or taken, by information on oath before one of Her Majesty's 
justices of the peace for the district or city or county in which such oath or 
engagement was administered or taken. 8uch declaration may be made by 
him within fourteen days after the taking of the oatii or, if he is hinden^d from 
making it by actual force or sickness, then within eight days of the cessation 
of such hindrance, or on his trial if it happens before the expiration of either of 
those periods. C. S. L. C. c. 10, s. 2. 

52 Geo. III. c. 104 ; 37 Geo. III. c. 123, (Imp.). 

SKDiTioua Offences Defined. (New). 

1 33» No one shall be deemed to'have a steditious intention only because 
he intends in good faith — 

(a) To show that Her Majesty has been misled or mistaken in her mea- 
sures ; or 

(b) To point out errors or defects in'the government or constitution of the 
Uni ted Kingdom, or of any part of it, or of Canada oi nny province thereof, or in 
either House of Parliament of the United Kingdom or of Canada, or in any 
legislature, or in the administration of justice ; or to excite Her Majesty's 
subjects to atteuipt to procure, by lawful means, the alteration of any matter 
in the state ; or 

(c) To point out, in order to their removal, matters which are producing or 
have a tendency to produce feelings of hatred and ill-will between different 
classes of her Majesty's subjects. 

2. Seditious words are words expressive of a seditious intention. 

3. A seditious libel is a libel expressive of a seditious intention. 

4. A seditious conspiracy is an agreement between two or more iJersons to 
carry into execution a seditious intention. 

•' This section appears to us to state accurately the existing 
law. On this very delicate subject, we do not undertake to sug- 
gest any alteration of the law." — Imp. Comm. Rep. 

R. V. Frost, 22 St. Tr. 471 ; R v. Winterbotham, 22 St. 
Tr. 823; R. v. Binns, 26 St. Tr. 595; O'Connell v. R., 11 



Sees. 124-126] 

CI. & F. 15 
Pigott, 11 C 

The trut 

pleaded as a 

L. R. 829; R 

15 Cox, 180 

section 170,j 

194. Everj 
imprisonment wl 
or is n party to a 

Fine or s 
sessions, secti 
libel, the wor 
under precedi 

I 

19.5, Every ( 
imprisonment who 
degrade, revile or t 
of any foreign stab 
any such state. 

Not triabl( 

need not be se< 

1 W. Bl. 517; ; 

Gas. Cr. L. 3; 

Warb. Lead, a 

244, per CoIeri( 

the punishnien 

and friendship 

foreign state v 

appear to be ne( 

Jaw : Stephen, C 

126 P] very one 
imprisonment who w 
whereby injury or mil 

Not triable i 
sureties for the p 



Seo8. 124-12G] 



PUNISHMENT. 



73 



CI. & F. 155, 234 ; R. v. Vincent, 9 C. & P. 91 ; R. v. 
Pigott, 11 Cox, 44 ; R. v. Burns. 16 Cox, 355. 

The truth of a seditious or blasphemous libel cannot be 
pleaded as a defence to an indictment : R. v. Duffy, 9 Ir. 
L. R. 329 ; R. v. Bradlaugh, 15 Cox, 217 ; Ex parte O'Brien, 
15 Cox, 180 ; R. v. Ramsay, 15 Cox, 231 ; see note under 
section 170, pout. 

Punishment. (New). 

194* Every one i^ fruilty of an indictable offence and liable to two yeaN' 
impriBonment who siieaks any seditious words or publishes any seditious libel 
or is n. party to any seditious conspiracy. 

Fine or sureties, section 958. Not triable at quarter 
sessions, section 540. On an indictment for a seditious 
libel, the words need not be set out, section 615 ; see note 
under preceding section. 

Libels on Foreion Sovereigns. (New). 

19.1. Every one is guilty of an indictable offence and liable to one year's 
imprisonment who, without lawful justification, publishes any libel tending to 
degrade, revile or expose to hatred and contempt in the estin.ation of the people 
of any foreign state, any prince or person exercising sovereign authority over 
any such state. 

Not triable at quarter sessions, section 540. Words 
need not be set out in indictment, section 615 ; R. v. D'Eon, 
1 W. Bl. 517 ; R. V. Peltier, 28 St. Tr. 529 ; Shirley's Lead. 
Cas. Cr. L. 3 ; R. v. Gordon, 1 Russ. 351 ; R. v. Bernard, 
Warb. Lead. Cas. 45 ; R. v. Most, 14 Cox, 583, 7 Q. B. D. 
244, per Coleridge, C.J. Fine, in lieu of, or in addition to 
the punishment, section 958. The intent to disturb peace 
and friendship between the United Kingdom and the 
foreign state whose sovereign has been libelled would 
appear to be necessary to constitute thi: offence at common 
law : Stephen, Cr. L. 99. 

False News. (New). 

186. Every one is guilty of an indictable offence and liable to one year's 
imprisonment who wilfully and knowingly publisher any false news or tale 
whereby injury or mischief is or is likely to be occasioned to any public interest. 

Not triable at quarter sessions, section 540. Fine and 

sureties for the peace, section 958. 



f 



i\l 



Ik 



74 



SEDITIOUS OFFENCES, ETC. 



• [Sec. 127 



fk 'f' r 



The 3 Edw. I. c. 34, and 2 Ric. II. c. 25 (now repealed 
by 50 & 51 V. c. 59), enact that none be so hardy to tell or 
publish any false news or tales, whereby discord or 
occasion of discord or slander, may grow between the 
King and his people, and the great men of the realm. 
In Chitty's Crim. Law, vol. 2, 527, is a form of indict- 
ment for spreading false rumours in order to enhance the 
price of hops. " It is said to have been resolved by all the 
Judges that all writers of false news are indictable and 
punishable ; and probably at this day the fabrication of 
news likely to produce any public detriment would be con- 
sidered as criminal " : Starkie on Libel, 546, 1st edition. 
What would constitute a " publishing " under the above 
section is not clear. In Chitty's form above cited, the 
publishing is not by writing. The 3 Edw. I. c. 34, 
has the words " tell or publish." A publication may be 
oral or written : 2 Starkie, Libel, 141. 



PART VIII, 

Piracy. (New). 
1*J7« Every one is guilty of an indictable offence who does any act which 
amounts to piracy by the law of nations, and is liable to the following punish- 
ment : — 

{a) To death, if in committing or attempting to commit such crime the 
offender murders, attempts to murder or v/ounds any person, or does any act 
by which the life of any person is likely kj be endangered ; 

(I/) To imprisonment for life in all other cases. 

" We have thought it better to leave this offence undefined, 
as no definition of it would be Siitisfactory which is not recog- 
nized as such by other nations ; and, after careful consideration 
of the subject, we have not been able to discover a definition 
fulfilling such a condition. We may observe as to this that the 
subject has been much discussed in the courts of the United 



Sees. 128, 129] 

States, and t 

have adopted. 

See Step 

sessions, sect 

I38« Ever} 

ment for life wh 

or who, havmg d 

witiiin Canada w 

(ff) Being a I 

diction of the Ad 

any foreign prince 

Majesty or not, or 

commits any act 

during any war i.. 

enemies ; 

(i) Whether a 

jurisdiction of tlie 

throws overboards 

or laden on board . 

('■) Being on bo 

jurisdiction of the 

(i) Turns 

any boat, ordna 

(ii) Yields t 

(iii) Brings 

(iv) Counsel 

«1"P. goods or m 

(v) Lay violi 

prevent him fron 

(vi) Confines 

(vii) Makes ( 

i'l) Being a Briti 

■subject or not) l)eing 

British ship, knowing 

(i) Furnishes 

(ii) Fits out f 

or corresiK)nd -vitl 

(lii) Conspires 

See under pre 



■ «1I. Every one 
death who, in committi 
^"th intent to mui-dei 
endanger the life of anj 

See annotation 



t; 



Sees. 128, 129] 



PIRATICAL ACTS. 



76 



States, and the result appears to justify the course which we 
have adopted." — Imp. Comm. Rep. 

See Stephen's, Cr. L. 104. Not triable at quarter 
sessions, section 540. 

Piratical Acts. {New). 

I38« Every one is guilty of an indictable offence and liable to imprison- 
ment for life who, witiiin Canada, does any of tlie following piratical acts, 
or who, having done any of the following piratical acts, comes or is brought 
witliin Ciinada without having been tried therefor: — 

{a) Being a British subjc^ct, on the sea, or in any place within the juris- 
diction of the Admiralty of England, under colour of any commission from 
any foreign prince or state, whether such prince or state is at war with Her 
Majesty or not, or under pretense of authority from any person whomsoever 
commits any act of hostility or robbery against other British subjects, or 
during any war is in any way adherent to or gives aid to Her Majesty's 
enemies ; 

(b) Whetiier a British subject or not, on the sea or in any place within the 
jurisdiction of the Admiralty of England, enters into any British ship, and 
throws overboards or destroys any part of the goods belonging to such ship, 
or laden on board the same ; 

(c) Being on board any British ship on the sea or in any place within the 
jurisdiction of the Admiralty of England— 

(i) Turns enemy or rebel, and i>iratically runs away with the shi>% or 
any boat, ordnance, ammunition or goods ; 

(ii) Yields thtm up voluntarily to any pirate ; 

(iii) Bring.s any seducing message from any pirate, enrmy or rebel ; 

(iv) Counsels or procures any iiersons to yield up or rua away with any 
ship, go'-ds or merchandise, or to turn pirates or to go over to pirates ; 

(v) Lay violent liands on the commander of any such ship in order to 
prevent him from fighting in defence of his ship and goods ; 

(vi) Confines the master or commander of any such ship ; 

(vii) Makes or endeavours to make a revolt in the ship ; or 
{(l) Being a British subject in any part of the world, or (whether a British 
8uV)ject or not) being in any part of Her Majesty's dominions or on board a 
British ship, knowingly — 

(i) Furnishes any pirate with any ammunition or stores of any kind ; 

(ii) Fits out any ship or vessel with a design to trade with or supply 
or corresiKnid -.vitlj any ))irate ; 

(iii) Conspires or corresixjiids with any pirate. 

See under preceding section. 

PUNISHMKNT. (Ncw). 

ISO. Every one is guilty of an indictable offence and liable to suffer 
death who, iii committing or attempting to commit any piratical act, assaults 
with intent to mui-der, or wounds, any iwrson, or does any act likely to 
indiuiger the life of any person. 

See annotation under section 127. 



;i. 1 



'■.'': \: 







76 



1^1 



li 1 

I ■ -I 






SEDITIOUS OFFENCES, ETC. 



[Sec. 130 



Not Fighting Pirates. (Neio). 

130« Every one ia guilty of an indictable ofiFence and liable to six 
months' imprisonment, and to forfeit to the owner of the ship all wages then 
due to him, who, being a master, officer or seaman of any merchant ship which 
carries guns and arms, does not, when attacked by any pirate, fight and 
endeavour to defend himself and his vessel from being taken by such pirate, 
or who discourages others from defending the ship, if by reason thereof the 
ship falls into the hands of such pirate : 8 Geo. I. c. 24, s. 6, (Imp.). 

Not triable at quarter sessions, section 540; fine or 
sureties, section 958. 



Sees. 131-132] 



OFFENCEl 



COKRUPT 

B3I. Ever 

yedfs' imprisonn 

(«) Holding 

legislature, corn 

obtain for himse 

office, place, or e 

or to be af terwan 

capacity as such ] 

(*) Corruptly 

such bribe as afoi 

Not triabl 

ment for ju( 

Attorney-Gen 

misderneanoui 

" In a gene: 

right to include 

of the kind has 

Bacon and Lor 

on the subject s 

CORRIJI 

133« P^very o 

yeare' imprisoninen 

in) Being a just 

in any capacity for i 

corruptly accepts or 

self, or for any otliei 

or employment, wit! 

tration of justice, or 

protect from detectic 

I'lg to commit any ct 

(!>) Corruptly giv 

as aforesaid with any 













* 


i/h ■ 


Seo8. 131.132] 


CORRUPTION OF JUDGES, 


ETC. 


77 


'4 


* 


- 


• 






1 ". ' 




^^ TTI t:< TTI -VT />< T7< C 


TITLE III. 

k n k T-VTCirn mTTTT" a tmh-ti 


kTTornn A m- 


r/~VlVT /-\T7' 




•J 
■ ■ J 


j 



I 



LAW AND JUSTICE. 



PART IX. 
CORRUPTION AND DISOBEDIENCE. 

Corruption of Judges or Members of Parliajient. (Xew). 

131. Everyone is guilty of an indictable offence and liable to fourteen 
yedfs' imprisonment who — 

(a) Holding any judicial office, or being a member of Parliament or of a, 
legislature, corruptly accepts or obtains, or agrees to accept, or attempt.s to 
obtain for himself or any other person, any money or valuable consideration, 
office, place, or employment on account of anything already done or omitted, 
or to be afterwards done or omitted, by him in his judicial capacity, or in his 
capacity as such member ; or 

(i) Corruptly gives or offers to any such j^erson, or to any other person, any 
such bribe as aforesaid on account of any such act or omission. 

Not triable at quarter sessions, section 540 ; no indict- 
ment for judicial corruption without the leave of the 
Attorney-General of Canada, section 544 ; a common law 
misdemeanour : see R. v. Bunting, 7 O. R. 524. 

" In a general code of the criminal law wc i.a,ve thought it 
right to include the offence of judicial corrupton. As no case 
of the kind has occurred (if we except the p.-osecutions of Lord 
Bacon and Lord Macclesfield) it is not surprising tlip ' the law 
on the subject should be somewhat vagr.-, --Imp Coram. Rep. 

Corruption of Peace Officers, Etc., Etc. {Xeiv). 

133> Every one is guilty of an indictable offence and liable to fourteen 
yeai-s' imprisonment who — 

{ft) Being a justice of the peace, peace officer, or public officer, eni ployed 
in any capacity for the prosecutjpn or detection or piuiishment of offenders, 
corruptly accepts or obtains, or agrees to accept or attempts to obtain for him- 
self, or for any otlier jierson, any money or valuable consideration, office, place 
or employment, with the intent to interfere corruptly with the due adminia 
tration of justice, or to procure or facilitate tlie commission of any crime, or to 
protect from detection or punishment any person having committed or intend- 
ing to commit any crime ; or 

{b) Corruptly gives or oflFers to any such officer as aforesaid any such bribe 
as aforesaid with any such intent. 






78 



OFFENCES AGAINST PUBLIC ORDER. 



[Sec. 133 



" Peace officer " defined, section 3. Not triable at quar- 
ter sessions, section 540 ; a common law misdemeanour ; 
form of indictment for attempt to bribe a constable : 
Archbold, 869. 

Frauds upon the Government. 

133« Every one is giiilty of an indictable otfence and liable to a fine of 
not less than one hundred dollars, find not exceeding one thousand dollars, 
and to imprisonment for a term not exceeding one year and not less than one 
month, and in default of payment of such fine to imprisonment for a further 
time not exceeding six months who — 

(a) Makes any offer, proposal, gift, loan or promise, or who gives or offers 
any compensation or consideratic;n, directly or indirectly, to any oflficiql or 
person in the emiiloyment of the Government, or to any member of his family, 
or to any person under his control, or for his benefit, with intent to obtain the 
assistance or influence of such oificial or person to promote either the procuring 
of any contract with tlie Government, for the performance of any work, the 
doing of any thing, or the furnishing of any goods, effects, food or materials, 
the execution of any such contract, or the payment of the price, or considera- 
tion stipulated tlierein, or any part thereof, or of any aid or subsidy, payable 
in respect thereof ; or 

(h) Being an official or person in tlie employment of the Government, 
directly or indirectly, accepts or agrees to accept, or allows to be accepted by 
any jjerson under his control, or for his benefit, any such offer, proposal, gift, 
loan, promise, compensation or consideration ; or 

(c) In the case of tenders being called for by or on behalf of the Govern- 
ment, for the performance of any work, the doing of any thing, or the 
ftmiishing of any goods, effects, food ot materials, directly or indirectly, by 
himself or by the agency of any other person on his behalf, with intent to 
(jbtain the contract therefor, either for himself or for any other jierson, pr(i[X)ses 
to make, or makes, any gift, loan, offer or promise, or offers or gives any con- 
sideration or compensation wliatsoever to any person tendering for such work 
or other service, or to any member of his family, or otlic-r person for his benefit, 
to induce such person to witlidraw his tender for such work or other service, or 
to compensate or reward him for having withdrawn sucli tender ; or 

((/) In case of so tendering, accepts or receives, directly or indirectly, (ir 
permits or allows to be accepted or received by any member of his family, oi 
by any other person under his ccmtrol, or for his benefit, any such gift, loan, 
offer, promise, consideration or compensation, as a consideration or reward for 
withdrawing or for having withdrawn such tAuler ; or 

(t) Being an official or employee of the (Jovernment, receives, directly or 
indirectly, whether personally, or by or tlirorgh any member of his family, or 
person under his control, or for his Ueisefit, any gift, loan, promise, compeiisa- 
titm or consideration wliatsoever, either in money or otherwise, from any pers(jii 
whomsoever, for assisting or favouring any individual in the transactimi of 
any business wliatsoever witli the Goveru'iient, or who gives or offers any such 
gift, loan, promise, compensation or consideration ; or 



Sec. 133] 

{/) By re, 

Government, 

receives from i 

the Governme 

procuring or fi 

any office, plac 

for himself or 

Government; ( 

stances and foi 

fee or reward ; 

(.'/) Having 

nient thereof, | 

after such deal; 

the department 

pennission siiall 

matter or thing 

member of the i 

contrf)], or for hi 

W Being ai 

receives, from su 

any otiier jjerson 

or any person un( 

(i) Any s 

(if) With 

in writing of 

been had, th( 

receives any ,s 

{') Having an 

w.)rk, the doing of 

niaterials, and ha' 

Government by re, 

self or by any per.s 

tosubscrii., f„rni> 

purpose of promoti 

party of candidates 

way of iiiHueiieing , 

2. If th.. value 

"used, received or 

'lollars, the offender 

vahie. 

•5. 1 he words " 
"f Canada and the i 
•Majesty in the right 
5^'-53V.c.<i!»(rmp.) 

^'ofc triable 
t^vo years, secti 
certain curses, 8e< 



Sec. 133] 



FRAUDS UPON THE GOVERNMENT. 



79 



(/) By reason of, or under the pretense of, possessing influence with the 
Government, or with any Minister or official thereof, demands, exacts or 
receives from any person, any compensation, fee or reward, for procuring from 
the Government the payment of any claim, or of any portion thereof, or for 
procuring or furthering the appointment of himself, oi t)f any other person, to 
any office, place or employment, or for procuring or furthering the obtaining 
for himself or any other person, of any grant, lease or other benefit from the 
Government ; or offers, promises or pays to such jjerson, under the circum- 
stances and for the causes aforesaid, or any of them, any such compensation, 
fee or reward ; or • 

(;/) Having dealings of any kind with the Government through any depart- 
ment thereof, pays any commission or reward, or within one year before or 
after such dfsalings, without the express permission in writing of the head of 
the dej)artment with which such dealings have been had, the proof of which 
permission siiall lie upon him, makes any gift, loan, or promise of any money, 
matter or thing, to any emi>loyee or official of the (government, or to any 
member of the family of such employee or official, or to any person under his 
control, or for his benefit ; or 

(/() Being an employee or official of the Government, demands, exacts or 
receives, from such person, directly or indirectly, by himself, or by or thi'ough 
liny other ixTscm for his benefit, or permits or allows any member of his family, 
or any pei'son under his control, to accept or receive — 

(i) Any such commission or reward ; or 

(ii) Within the '^aid pericnl of one year, without the express permission 
in writing of the head of the dejiartment with which such dealings have 
been had, the proof of which permission shall lie upon him, accepts or 
receives any such gift, loan or promise ; or 

((■) Having any cimtract with the (jroverument for the jHTformance of any 
work, the doing of auyt'iing, (n- the furnishing of any gixids, effects, food or 
materials, and having (ir exi>ectiiig to have any claim or demand against the 
Government by reason of sucli contract, either directly or indirectly, by him- 
self or by any person on his behalf, subscribes, furnishes or gives, or promises 
to subscrii ■ , furnish or give, any money or other valuable consideration fm- the 
purpose of promoting the election of any candidate, or of any number, class or 
l)arty of candidati's to a legislature or to Parliament, or with the intent in any 
way of iuHueucing or affecting the result of a provincial or Dominion ek'ction. 

2. If the value of tlie amount or thing paid, offered, given, loaned, pro- 
mised, received or subscribed, as the case may be, exceeds one thousand 
dollars, the offender under this section is liable to any fine not exceeding such 
viilue. 

;!. 1 lie words " the Government " in this section include the Government 
of Canada and tiie CJovernment of any province of Cana^la, as well as Her 
Majesty in the riglit of Canada or of any province thereof. 54-55 V. c. 2;i, s. 1 ; 
52-53 V. c. till (Imp.). 

Not triable at quarter sessions, section 540 ; limitation, 
two years, section 551. As to indictments for frauds in 
certain cases, section GIG. 



i^lf 



■t ; 



80 



OFFENCES AGAINST PUBLIC ORDER. [Sees. 134, 135 






Consequences of a Convictiok. 

IS'l* Every person convicted of an offence under the next preceding 
section shall be incapable of contracting with the Government, or of holding 
any contract or office with, from, or under it, or of receiving any benefit under 
any such contract. R. S. C, c. 173, ss. 22, 23 ; 54-55 V. c. 23, s. 2. 

Breach of Trust by Public Officer. {N'e^v). 

13>S> Every public officer is guilty of an indictable offence and liable to 
five years' imprisonment who, in the discharge of the duties of his office, com- 
mits luiy fraud or breach of trust affecting the public, whether such fraud or 
breach of trust would have been criminal or not if committed against a private 
person. 

Not triable at quarter sessions, section 540 ; fine or 
sureties, section 958. 

" A. an accountant in the office of the pay jn aster-gen- 
eral, fraudulently' omits to make certain entries in his 
accounts, whereby he enables the cashier to retain large 
sums of money in hit own possession, and to appropriate 
the interest on such sums to himself after the time wlien 
they ought to have been paid to the Crown. A. commits a 
misdemeanour. 2. A., a commissary-general of stores in tiie 
West Indies, makes contracts with B. to supply stores on 
the condition that B. should divide the profits with A. A. 
commits a misdemeanour." — Stephen's Cr. L. 121. 

No such enactment is to be found in the Imperial 
Draft Code of 1879, nor in the bill of 1880, though, by the 
latter, it was proposed to supersede the whole of the com- 
mon law. And that it was so left out intentionall}' is 
evident from the fact that it was provided for in the bdl 
of 1879, s. 71, drafted by Sir James Stephens, who took it 
from his ri.' 'est. Vrt. 121, from which it has been re-pro- 
duced verba' im in this code 

The de' udant, a government officer, having charge of 
some public dredging, used his own steam-yacht for tlie 
purpose of towing the government's dredges, and also used 
a storehouse of his OAvn for the purpose of stowing govern- 
ment stores. I'he steam yacht was registered in the name 
of one of the defendant's friends, in whose name the 
accounts for the towing were made out and rendered. 



Sec. 136] c 

The accouni 
in the nam 
defendant, 
under s. 42, 
received th( 
charged for 
were not hi 
had to pay 
services; alsc 
were infornK 
interpose to 
the defendai 
R- V. Arnoldi, 
the report of 

'36t Every c 

exceeding one thot 

imprisonment for a 

and in default of p? 

exceeding six mont 

(«) Makes any 

give any money o 

member of a muni 

advantage or to the 

such member either 

council of which he 

council, in favour ol 

submitted to such co 

(*) Makes any o 

give any money ," 

member or to any offi 

to aid in procuring oi 

any contract or advar 

('■) Makes any of] 

give anf money or otl 

of a municiia] council 

fn)m perforaiiig, or 

any officia' act ; or 

('0 B( ing a memb 
accept any such offer, 
or consideration as is 
thereof, votes or absta 
motion, resolution or q 
official act ; or 

Crim. Law--( 



I I 



'^ 



Sec. 136] CORRUPTION IN MUNICIPAL AFFAIRS. 



81 



The accounts for the storage were sent to the government 
in the name of another friend of the defendant. The 
defendant, whose duty it was to audit these accounts, 
under s. 42, c. 29, R. S. C, certified them as correct, and 
received the amounts. It was proved that the services 
sjharged for were rendered, and that the prices charged 
were not higher than what the government would have 
had to pay to any other person performing the same 
services ; also that some of the defendant's superior officers 
were informed of his doings in the matter and did not 
interpose to stop them. Held, upon a reserved case, that 
the defendant was guilty of misbehaviour in office : 
R. V. Arnoldi, 23 O. R. 201. See a form of indictment in 
the report of that case. 

Corruption in Municipal Affairs. 

1 3©f Every one is guilty of an indictable offence and liable to a fine not 
exceeding one thousand dollars and not less than one hundred dollars, and to 
imprisonment for a term not exceeding two years and not less than one month, 
and in default of payment of such fine to imprisonment for a further term not 
exceeding six months, who directly or indirectly, — 

(rt) Makes any offer, proposal, gift, loan, promise or agreement to pay or 
give any money or ether material comjiensation or consideration to any 
member of a irmnicipul council, whether the same is to inure to his own 
advantage or to the advantage of any other person, for the purpose of inducing 
such member either to vo'e or to abstain from voting, at any meeting of the 
council of which he is a member or at any meeting of a conmiittee of such 
council, in favour of or against any measure, motion, resolution or question 
submitted to such council or committee ; or 

{!>) Makes any offer, proposal, gift, loan, promise or agreement to pay or 
give any money ^" other material compensation or consideration to any 
member or to any officer of a municipal council for the purpose of inducing him 
to aid in procuring or preventing the passing of any vote or the granting of 
any contract or advantage in favour of any person ; or 

(c) Makes any offer, proposal, gift, loan, promise or agreement to pay or 
give anj^ money or other material compensation or consideration to any officer 
of a municiia) council for the purpose of inducing him to perform or abstain 
from perforaing, or to aid in procuring or preventing the performance of, 
any officia' act ; or 

(d) Bt ing a member or officer of a municipal council, accepts or consents to 
acc('i)t oiiy such offer, projwsal, gift, loan, promise, agreement, comijensation 
or consideration as is in thia section before mentioned ; or in oonsideratlon 
thereof, votes or abstains from voting in favour of or against any measure, 
motion, resolution or question, or performs or abstains from pertonning any 
official act ; or 

Grim. Law — 6 



.1 i 





82 



OFFENCES AGAINST PUBLIC ORDER. 



[Sec. 137 



(e) Attempts by any threat, deceit, suppression of the truth or other 
unlawful means to influence any member of a municipal council in giving or 
withholding his vote in favour of or against any measure, motion, resolution or 
question, or in not attending any meeting of the municipal council of which he 
is a member, or of any committee thereof ; or 

(/) Attempts by any such means as in the next preceding paragraph men- 
tioned to influence any member f)r any officer of a municipal council to aid in 
procuring or preventing the passing of any vote or the granting of any contract 
or advantage in favour of any person, or to perform or abstain from performing,, 
or to aid in procuring or preventing the performance of, any official act : 52 V. 
c. 42, 8. 2. 

Not triable at quarter sessions, section 540 ; limitation^ 
two years, section 551; see R. v. Lancaster, 16 Cox, 
737 ; K V. Hogg, 15 U. C. Q. B. 142. 

Selling Office, Appointjient, Etc., LiC, (New). 

IS?* Every one is guilty of an indictable offence who, directly or indi- 
rectly — 

(a) Sells or agrees to sell any appointment to, or resignation of any office, 
or any consent to any such appointment or resignation, or receives, or agrees to 
receive, any reward or profit from the sale thereof ; or 

(6) Purchases or gives any reward or profit for the purchase of any such 
appointment, resignation or consent, or agrees or promises to do so. 

Every one who commits any such offence as aforesai(?, in addition to any 
other penalty thereby incurred, forfeits anj- right which he may have in the 
office and is disabled for life from holding the 2ame. 

2 Every one is guilty of an indictable offence who, directly or indirectly — 

(«) Receives or agrees to receive any reward or profit for any interest, 

request or negotiation about any office, or under pretense of using any such 

interest, malcing any such request or being concerned in any such negotiation ; 

or 

(6) Gives or procures to be given any profit or reward, or makes or procures 

to be made any agreement^for the giving of any profit or reward, for any such 

interest, request or negotiatitni as aforesaid ; i )r 

(c) Solicits, recommends or negotiates in any manner as to any appointment 
to or resignation of any office in expectation (jf any reward or profit ; or 

{d) Keeps any office or place for transacting or negotiating any business 
relating to vacancies in, or the sale or purchase of, or appointmient to or 
resignation of offices. 

The word "office "in this section includes every office in the gift of tiie 
Crown or of any officer appointed by the Crown, and all commissions, civil, 
naval and military, and all places'or employments in any public department or 
office whatever, and all deputations to any such office and every participation 
in the profits of any office or deputation. 

Common law misdemeanour, 3 Chit. 681. The offence 
is not triable at quarter sessions, section 540 ; punishment 
under s. 951. 



Sees. 138142] DISOBEDIENCE TO STATUTE LAW. 



83 



Disobedience to Statute Law. 

138> Every one is guilty of an indictable offence anrf liable to one year's 
imprisonment who, without lawful excuse, disobeys any Act of the Parliament 
of Canada or of any legislature in Canada by wilfully doing any act which it 
forbids, or omitting todo any act which it requires to be done, unless some 
vcnalty or other mode of punishment is exjjressly provided by law. R. S. C. c. 173, 
s. 25 (amended), 

R. V. Walker, 13 Cox, 94 ; Stephen's Cr. L. Art. 124; 
fine or sureties, s. 958; see R. v. Hall, 17 Cox, 278, and cases 
there cited ; Hamilton v. Massie, 18 O. R. 585. 

The offence which had given rise to this last case would 
probably now be held to be a not indictable one under tlie 
above section 138. 

Disobedience to Orders of Court. (Xew). 

139. Every one is guilty of an indictable offence and liable to one year's 
imprisonment who, without lawful excuse, disobeys any lawful order other than 
for the payjnent of money made by any court of justice, or by any person or 
body of persons authorized by any statute to make or give such order, unless 
some penalty is imposed, or other mode of proceeding is expressly provided 
by law. 

Fine or sureties, section 958 ; Stephen's Cr. L. Art. 125 ; 
Archbokl, 949. 

Neglect op Peace Officer to Suppress Riot. (yexo). 

I<i0. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who, being a sheriff, deputy-sheriff, mayor, or other head officer, . 
justice of the peace, or other magistrate, or other peace officer, of any county, . 
city, town, or district, having notice that there is a riot within his jurisdiction, 
without reasonable excuse omits to do his duty in supjjressing such riot. 

Fine or sureties, section 958 ; R. v. Pinney, 3 B. & Ad,. 

947. 

Neglect to Aid Peace Officer to Suppress Riot. (Neio).. 

141. Every one is guj^ty of u\\ mdictable offence and liable to one year's 
imprisonment who, having reasonable notice that he is required to assist any 
sheriff, deputy-sheriff, mayor or other head officer, justice of the peace, 
magistrate, or peace officer in suppressing any riot, without reasonable excuse 
omits so to do. 

Fine or sureties, section 958 ; " peace officer " defined, 
section 3 ; R. v. Brown, Car. «& M. 314. 

Neglect to aid Peace Officer. (New). 

142. Every one is guilty of an indictable offence and liable to six months 
imprisonment who, having reasonable notice that he is required to assist any 



f 



84 



OFFENCES AGAINST PUBLIC ORDFR. [Sec«. 143, VA 



■Mm > 



*;; • 



sheriff, deputy- sheriff, mayor or other head officer, justice of the peace, 
magistrate, or peace officer, in the execution of his duty in arresting any person, 
or in preserving the peace, without reasonable excuse onitut su to do. 

See under preceding section ; fine in lieu of or in addi- 
tion to punishment, section 958 . R. v Sherlock, Warb. 
Lead. Cas. 53 

Indictment. — The jurors for our Lady the Queen pre- 
sent that heretofore and before the committing of the 
offence hereinafter mentioned, to wit, on the day of 

A. B. was lawfully in the custody of 
C. T)., a constable of , on a charge of and the 

said A B. on the day aforesaid, committed an assault upon 
the said G. D., being such constable as aforesaid, and a 
breach of the peace, with intent to resist such his lawful 
apprehension ; and the jurors aforesaid, do further present, 
that the said C. D., as such constable, there being a reason- 
able necessity for him so to do, called upon E. F., who was 
then present, for his assistance, in order to prev^ent the said 
assault and breach of the peace ; and that the said E. F. 
di<l unlawfully, wilfully, and knowingly refuse to aid the 
said G. D., being such constable in the execution of his 
duty in arresting the said A, B., and to prevent an assault 
and breach of the peace as aforesaid. 

AIlSCONDCCT OF OFFICERS, EtC, EtC. 

143. Every one is guilty of an indictable offence and liable to a fine and 
imprisonment, who, being a sheriff, deputy-sheriff, coroner, elisor, bailiff, con- 
stable or other officer intrusted with the execution of any writ, warrant or 
process, wilfully misconducts himself in the execution of the same, or wilfully, 
and without tlx- consent of the uerson in whose favour the writ, warrant or 
process was is.- !, makes any false return thereto. R. S. C. c. 173, s. 29. 

Section 984 as to amount of fine, and section 951 as to 
imprisonment. 

Obstrccting Peace Officer, Etc. 

144. Every one is guilty of an indictable offence and liable to ten years' 
imprisonment who resists or wilfully obstructs any public oflScer in the execu- 
tion of his duty or any person acting in aid of such officer. 

2. Every one is guilty of an offence and liable on indictment to two 
years' imprisonment, and on summary conviction before two justices of the 
peace to six months' imprisonment with hard labour, or to a fine of one 
hundred dollars, who resists or wilfully obstructs— 



Sec. 145] 

{a) A 
aid of anj 

(h) A 
goods or ii 

The 
clause, 
to the QA 

"Pea 
See ann( 
same offi 



145. Pt 

knowledge, m 
iiI>on oath or a 
affidavit or ot 
a.s.sertion beinfi 
to mislead the 
section include 
grand jury. 

2. Every p 
ally gives his e\ 
tohtthcr his evid 

3. Every pt 

i.s held in or und 

ur before either 

of either the Sci 

Legislative As.s( 

Powered by law i 

any arbitrator or 

or by any statute 

evidence therein 

ri?ht or liability 

J'M/ice or trihiiml 

o<msUii((eU or not 



Sec. 145] 



PERJURY. 



85 



, and 
I con- 
it or 

it or 

Is to 



^ears 
xecu- 

two 
If the 

one 



(a) Any peace officer in the execution of his duty or any person acting in 
aid of any such officer ; 

{h) Any person in the lawful execution of any process against sqy lands or 
goods or in making any lawful distress or seizure. R. S. C. c. 162, s. 34. 

The punishment was two years under the repealed 
clause. The increase to ten years gives twelve challenges 
to the accused, section 668. 

"Peace officor" and "public offi( defined, section 3. 
See annotation under section 263, ^ ,v hich covers the 

same offence and makes it punishabl two years. 



PART X. 

MISLEADING JUSTICE. 

Perjury. 

145« Perjury in an assertion as to a matter of fact, opinion, belief or 
knowledge, made by a witness in a judicial proceeding as part of his evidence, 
upon oath or a'Krmation, whether suuli evidence is given in open court, or by 
affidavit or otherwise, and whether such evidence is material or not, such 
assertion being known to such witness to be false, and being intended by him 
to mislead the court, jury, or person holding the proceeding. Evidence in this 
section includes evidence given on the voir dire and evidence given before a 
grand jury. 

2. Every person is a witness witiiin the meaning of this section who actu- 
ally gives his evidence, whether he was comi^etent to be a witness or not, and 
whtthcr his evidence was ailmissiblc or not. 

3. Every proceeding is judicial within the meaning of this section v.'hich 
is held in or under the authority of any court of justice, or before a grand jury , 
or before either tiie Senate or House of Commons of Canada, or any committee 
of either the Senate or House of Commons, or before any Legislative Council, 
Legislative Assembly or House oi Assembly or any committee thereof, em- 
powered by law to administer an oath, or before .iny justice of the peace, or 
any arbitrator or umpire, or any person or body of jHirsons authorized by law 
or by any statute in force for the time being to make an inquiry and take 
evidence therein uix)n oath, or before any legal tribunal by which any legal 
ricflit or liability can be established, or he/pre any pcrsmi actimj as a court, 
jitstice or (rifxtrud, havimj power to hold such jadici'd proccedimj, ivhether duly 
Constituted or not and whether the proceeding was duly instituted or not before 






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86 



MISLEADING JUSTICE. 



[Sec. 145 




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ill 



SMcA court or persmv so as to authorize it or him to hold the proceeding, and 
althotigh such proceeding vxts held in a wrong place or vxis othertoise invalid. 

4. Subornation of perjury is counselling or procuring a person to commit 
any perjury which is actually committed. 

The words in italics seem to be new law, or settle doubts 
which have been raised. 

" In framing the above section, we have proceeded on the 
principle that the guilt and danger of perjury consist in attempt- 
ing by falsehood to mislead a tribunal de facto e'':ercising judicial 
functions. It seems to us not desirable that a person who has 
done this should escape from punishment, if he can show some 
defect in the constitution of the tribunal which he sought to 
mislead, or some error in the proceedings themselves." — Imp. 
Comm. Rep. 

Perjury, by the common law, appears to be a wilful false 
oath by one who, being lawfully required to depose the 
truth in any proceeding in a " court " of justice, swears 
absolutely in a matter of some consequence to the point in 
question, whether he be believed or not : 3 Russ. 1. 

Hawkins, vol. 1, p. 429, has the word " course " of 
justice, instead of " court " of justice. 

Bishop, Cr. Law, vol. 2, 1015, says a "course" of 
justice, and thinks that the word " court " in Russell is a 
misprint for " course," though Bacon's abridgement, verb. 
perjury, also has " court" Roscoe, 747, has also " court " 
of justice, but says that the proceedings are not con- 
fined to courts of justice; and a note by the editor of the 
American sixth edition says a " course " of justice is a more 
accurate expression than a " court " of justice. 

There is no doubt, however, that, according to all the 
definition of this offence by the common law the party 
must be lawfully sworn, the proceeding in whjch the oath 
is taken must relate to the administration of justice, the 
assertion sworn to must be false, the intention to swear 
falsely must be wilful, and the falsehood material to the 
matter in question. Proi^issory oaths, such as those taken 
by officers for the faithful performance of duties, cannot be 
the subject of perjury. — Cr. L. Corars., 5th Report, 51. 






Sec. 145] 



PERJURY. 



87 



False swearing, under a variety of circumstances, has 
been declared by numerous statutes to amount to perjury, 
and to be punishable as such. But at common law false 
swearing was very different from perjury. The offence of 
perjury, at the common law, is of a very peculiar descrip- 
tion, say the Cr. L. Comrs., 5th Rep. 23, and differs in 
some of its essential qualities from the crime of false testi- 
mony, or false swearing, as defined in all the modern Codes 
of Europe. The definition of the word, too, in its popular 
acceptation, by no means denotes its legal signification. 
Perjury, by the common law, is the assertion of a falsehood 
upon oath in a judicial proceeding, respecting some fact 
material to the point to be decided in such proceeding ; 
and the characteristic of the offence is not the violation of 
the religious obligation of an oath, but the injury done 
to the administration of public justice by false testimony. 

Here, in Canada, the above section declares to be per- 
jury all oaths, etc., taken or subscribed in virtue of any law, 
or I'equired or authorized by any such law, as did the 
repealed statute; and voluntary and extra-judicial oaths^ 
being prohibited, it may be said that, with us, every 
false oath, knowingly, wilfully and corruptly taken^ 
amounts to perjury and is punishable as such. The inter- 
pretation Act, c. 1, Rev. Stat., enacts that the word oath 
includes a solemn affirmation whenever the context applies 
to any person and case by whom and in which a solemn 
affirmation may be made instead of an oath, and in like cases 
the word sworn includes the word affi^rmed or declared. 
See ss. 23, 24, Can. Ev. Act, 1893. The words "or whether 
such evidence is material or not " in the above section 145 
are an important alteration of the lav/ on perjury, as it 
stands in England. As stated before, by the common law, 
to constitute perjury, the false swearing must be, besides 
the other requisites, in a matter material to the point in 
question. By the above section.this ingredient of perjury is 
not necessary ; see Stephen's Digest of Criminal Law, xxxiii. 



lit 
ii:!' . 

Ui'r ■ > .x u 



3 ti 



'.I I- 










Ill 




8S 



MISLEADING JUSTICE. 



[Sec. 145 





i« 



Ist There must be a lawful oath. — R. v. Qibson, 7 R. 
L. 673 ; R. v. Martin, 21 L. C. J., 156 ; R. v. Lloyd, 16 
Cox, 235 ; 19 Q. B. D. 213. 

And, therefore, it must bo taken before a competent 
jurisdiction, or before an officer who had legal jurisdic- 
tion to administer the particular oath in question. And 
though it is sufficient priynd facie to show the ostensible 
capacity in which the judge or officer acted when the oath 
was taken, the presumption may be rebutted by other 
evidence, and the defendant, if he succeed, will be entitled 
to an acquittal: 2 Chit. 304; R. v. Roberts, 14 Cox, 
101 ; R. V. Hughes, 14 Cox, 284. 

The words in italics in the above section 145 have 
altered the law to a large extent as to this requisite of an 
oath impugned for perjury ; see a collection of cases in 
R, V. Hughes, Warb. Lead. Cas. 60. 

2nd. The oath must he false — By this, it is intended 
that the party must believe that what he is swearing is 
fictitious ; for, it is said, that if, intending to deceive, he 
asserts of his own knowledge that which may happen to be 
true, without any knowledge of the fact, he is equally 
criminal, and the accidental truth of his evidence will not 
excuse him : 2 Chit. 303. Bishop's first book of the law, 
117. How far this is the law under the above section 
remains to be settled by the jurisprudence. And a man 
may be indicted for perjury, in swearing that he believes a 
fact to be true which he must know to be false : R. v. 
Pedley, 1 Leach, 325. 

3rd. The false oath must he knowingly, ^ully, and 
corruptly taken. — The oath must be taken ^ . the false- 
hood asserted with deliberation and a consciousness of the 
nature of the statement made, for if it seems rather to have 
been occasioned by inadvertency or surprise, or a mistake 
in the import of the question, the party will not be sub- 
jected to those penalties which a corrupt motive alone can 
deserve : 2 Chit. 303. If an oath is false to the know- 



Sec. 145] 



PERJURY. 



89 



ledj^ of the party giving it, it is, in law, wilful and 
oorrupt : 2 Bishop, Cr. L. 1048, et eeq. 

It hath been holden not to be material, upon an indict- 
ment of perjury at common law, whether the false oath 
were at all credited, or whether the party in whose preju- 
dice it was intended were, in the event, any way aggrieved 
by it or not ; insomuch as this is not a prosecution grounded 
on the damage of the party but on the abuse of public 
justice : 8 Bum's Just. 1227 ; and that would be so now 
under the above section. 

Indictment for Perjvry : The Jurors for Our Lady the 
Queen present, that heretofore, to wit, at the (asaizea) 
holden for the county (or district) of on the 

day of before (on^ of the judges of Our Lady 

the Queen), a certain issue between one E. P. and one J. H. 
in a certain action of covenant was tried, upon which trial 
A. B. appeared as a witness for and on behalf of the said E. F. 
and was then and there duly sworn before the said 
and did then and there, upon his oath aforesaid, falsely, 
wilfully and coriniptly depose and swear in substance and 
to the effect following, " that he saw the said 0. H. duly exe- 
cute the deed on which the said action was brought," 
whereas, in truth, the said A. B. did not see the said G. H. 
execute the said deed, and the said deed was not executed 
by the said G. H., and the said A. B. did thereby commit 
wilful and corrupt perjury. See forms under s. 611, j^ost. 

Perjury is now triable at quarter sessions, section 540. 

The indictment must allege that the defendants swore 
falsely, wilfully and corruptly; where the word feloniously 
was inserted instead of falsely, the indictment, though it 
alleged that the defendant swore wilfully, corruptly and 
maliciously, was held bad in substance, and not amendable : 
R. v. Oxley, 3 C. & K. 817. 

If the same person swears contrary at different times, 
it should be averred on which occasion he swore wilfully, 
falsely and corruptly : R. v. Harris, 5 B. & Aid. 926. 





90 



MISLEADING JUSTICE. 



[Sec. 145 



As to assignments of perjury, the indictment must 
assign positively the manner in which the matter sworn to 
is false. A general averment that the defendant falsely 
swore, etc., etc., upon the whole matter is not sufficient ; 
the indictment must proceed by special averment to nega- 
tive that which is false: 3 Burn's Just. 1235; but see 
section 616, post. 

Proof. — It seems to have been formerly thought that 
in proof of the crime of perjury two witnesses were neces- 
sary ; but this strictness, if it was ever the law, has long 
since been relaxed, the true principle of the rule being 
merely this, that the evidence must be something more than 
sufficient to counterbalance the oath of the prisoner, and 
the legal presumption of his innocence : section 684, post. 
The oath of the opposing witness therefore will not avail 
unless it be corroborated by material and independent cir- 
cumstances ; for otherwise there would be nothing more 
than the oath of one man against another, and the scale of 
evidence being thus in one sense balanced, it is considered 
that the jury cannot safely convict. So far the rule is 
founded on substantial justice. But it is not precisely 
accurate to say that the corroborative circumstances must 
be tantamount to another witness ; for they need not be 
such as that proof of them, standing alone, would justify a 
conviction, in a case where the testimony of a single witness 
would suffice for that purpose. Thus, a letter written by 
the defendant, contradicting his statement on oath, will 
render it unnecessary to call a second witness. Still, evi- 
dence confirmatory of the single accusing witness, in some 
slight particulars only, will not be sufficient to warrant a 
conviction, but it must at least be strongly corroborative of 
his testimony, or to use the quaint but energetic language 
of Chief Justice Parker, " a strong and clear evidence, and 
more numerous than the evidence given for the defendant." 
When several assignments of perjury are included in the 
same indictment it does not seem to be clearly settled 
whether, in addition to the testimony of a single witness, 



Sec. 145] 



PERJURY. 



91 



corroborative proof must be given with respect to each, 
but the better opinion is that such proof is necessary, and 
that too, although all the perjuries assigned were committed 
at one time and place. For instance, if a person, on putting 
in his schedule in the Bankruptcy Court, or on other 
like occasion, has sworn that he has paid certain creditors, 
and is then indicted for perjury on several assignments, 
each specifying a particular creditor who has not been paid, 
a single witness with respect to each debt will not, it seems, 
suffice, though it may be very difficult to obtain any fuller 
evidence. The principle that one witness, with corrobor- 
ating circumstances, is sufficient to establish the charge of 
perjury, leads to the conclusion, that without any witness 
directly to disprove what is sworn, circumstances alone, 
when they exist in a documentary shape, may combine to 
the same effect ; as they may combine, though altogether 
unaided by oral proof except the evidence of their authen- 
ticity, to prove any other fact connected with the declara- 
tions of persons or the business of life. In accordance with 
these views, it has been held in America that a man may 
be convicted of perjury on documentary and circumstantial 
evidence alone, first, where the falsehood of the matter 
sworn to by him is directly proved by written evidence 
springing from himself, with circumstances showing the 
corrupt intent; secondly, where the matter sworn to is 
contradicted by a public record, proved to have been well 
known to the prisoner when he took the oath ; and thirdly, 
when the party is charged with taking an oath contrary 
to what he must necessarily have known to be true, the 
falsehood being shown by his own letter relating to the fact 
sworn to, or by any other writings which are found in his 
poscsession, and which have been treated by him as contain- 
ino* the evidence of the fact recited in them. 

If the evidence adduced in proof of the crime of per- 
jury consists of two opposing statements by the piisoner, 
and nothing more, he cannot be convicted. For, if one only 
was delivered under oath, it must be presumed, from the 



S,^i, 



f 




■1 



Ill 




98 



MISLEADING JUSTICE. 



[Seal4& 




solemnity of the sanction, that the declaration was the 
truth, and the other an error or a falsehood ; though the 
latter, being inconsistent with what he has sworn, may 
form important evidence with other circumstances against 
him. And if both the contradictory statements were 
delivered under oath, there is still nothing to show which 
of them is false ~vhen no other evidence of the falsity ia 
given. If, indeed, it can be shown that before making the 
statement on which perjury is assigned the accused had 
been tampered with, or if any other circumstances tend to 
prove that the statement offered as evidence against the 
prisoner was true, a legal conviction may be obtained, and 
provided the nature of the statement was such that one of 
them must have been false to the prisoner's knowledge 
slight corroborative evidence would probably be deemed 
sufficient. But it does not necessarily follow that because 
a man has given contradictory accounts of a transaction on 
two occasions he has therefore committed perjury. For 
cases may well be conceived in which a person might very 
honestly swear to a particular fact, from the best of his 
recollection and belief, and might afterwards from other 
circumstances be convinced that he was wrong, and swear 
to the reverse, without meaning to swear falsely either 
time. Moreover, when a man merely swears to the best of 
his memory and belief, it of course requires very strong 
proof to show that he is wilfully perjured. The rule 
requiring. something more than the testimony of a single 
witness on indictments for perjury is confined to the proof 
of the falsity of the matter on which the perjury is 
assigned. Therefore the holding of the Court, the pro- 
ceedings in it, the administering the oath, the evidence 
given by the prisoner, and, in short, all the facts, exclusive 
of the falsehood of the statement which must be proved at 
the trial, may be established by any evidence that would be 
sufficient were the prisoner charged with any other offence. 
For instance, if the false swearing be that two persons were 
together at a certain time, and the assignment of perjury 



it 



Sec. 14S] 



PERJURY. 



98 



be that they were not together at that time, evidence by 
one witness that at the time named the one person was at 
London, and by another witness that at the same time the 
other person was in York, will be sufficient proof of the 
assignment of perjury : 2 Taylor on Evidence, par. 876, 
et seq. 

On an indictment for perjury alleged to have been 
committed at the Quarter Sessions, the chairman of the 
Quarter Sessions ought not to be called upon to give evi- 
dence as to what the defendant swore at the Quarter 
Sessions : R. v. Gazard, 8 C & P. 595. 

But this ruling is criticized by Greaves, note n, 3 
Buss. 86, and Byles, J., in R. v. Harvey, 8 Cox, 99, said that 
though the judges of Superior Courts ought not to be called 
upon to produce their notes, yet the same objection was not 
applicable to the judges of inferior courts, especially where 
the judge is willing to appear : 3 Burn's Just. 1243. 

In R. V. Hook, Dears. & B. 606, will be found an inter- 
esting discussion on the evidence necessary upon an indict- 
ment for perjury. 

The Imperial Statute, corresponding to section 4 of c. 
154, Rev. Stat., unrepealed, {post, under next section), 
authorizes the judge to commit, unless such person shall 
enter into a recognizance and give sureties. Our statute 
gives power to commit or permit such person to enter into 
a recognizance and give sureties. 

Greaves remarks on this last mentioned clause : " The 
crime of perjury has become so prevalent of late years, and 
so many cases of impunity have arisen, either for want 
of prosecution, or for defective prosecution, that this and 
the following sections were introduced to check a crime 
which so vitally affects the interests of the community. 

" It was considered that by giving to every court and 
person administering oaths a power to order a prosecution 
for perjury at the public expense, coupled with a power of 
commitment in default of bail, many persons would be 



-i- 



•f 



'I 



'J i I 



94 



MISLEADING JUSTICE. 



[Sec. 145 




deterred from committing so detestable a crime, and in 
order to effectuate this object the present clause was 
framed, and as it passed the Lords it was much better cal- 
culated to effect that object than as it now stands. 

" As it passed the Lords it applied to any justice of the 
peace. The committee in the Commons confined it to 
justices in petty and special sessions, — a change much to be 
regretted, as a large quantity of business is transacted before 
a single justice or one metropolitan or stipendiary magis- 
trate, who certainly ought to have power to commit under 
this clause for perjury committed before them. 

" Again, as the clause passed the Lords, if an affidavit, 
etc., were made before one person, and used before another 
judge or court, etc., and it there appeared that perjury had 
been committed, such judge or court might commit. The 
clause has been so altered that the evidence must be given, 
or the affidavit, etc., made before the judge, etc., who com- 
mits. The consequence is that numerous cases are ex- 
cluded; for instance, a man swears to an assault or felony 
before one justice, and on the hearing before two it turns 
out he has clearly been guilty of perjury, yet he cannot be 
ordered to be prosecuted under this clause. Again, an 
affidavit is made before a commissioner, the court refer the 
case to the master and he reports that there has been gross 
perjury, or the court see on the hearing of the case before 
them that there has been gross perjury committed, yet there 
is no authority to order a prosecution under this clause, 
So, again, a man is committed for trial on the evidence of a 
witness which is proved on the trial to be false beyond all 
doubt, yet if such witness be not examined, and do not 
repeat the same evidence on the trial, the court cannot 
order him to be prosecuted. 

" It is to be observed, that before ordering a prosecution 
under this clause, the court ought to be satisfied, not only 
that perjury has been committed, but that there is a 
' reasonable cause for such prosecution.' Now it must ever 



Sec. 146] 



PERJURY. 



95 



be remembered that two witnesses, or one witness and 
something that will supply the place of a second witness 
are absolutely essential to a conviction for perjury. The 
court, therefore, should not order a prosecution unless it 
sees that such proof is capable of being adduced at the 
trial ; and as the court has the power, it would be prudent 
in every case, if practicable, at once to bind over such two 
witnesses to give evidence on the trial, otherwise it may 
happen that one or both may not be then forthcoming to 
give evidence. It would be prudent also for the court to 
give to the prosecutor a minute of the point on which, in 
its judgment, the perjury had been committed, in order to 
guide the framer of the indictment, who possibly may be 
wholly ignorant otherwise of the precise ground on which 
the prosecution is ordered. It is very advisable, also, that 
where the perjury is committed in giving evidence, such 
evidence should be taken down in writing by some person 
who can prove it upon the trial, as nothing is less satisfac- 
tory or more likely to lead to an acquittal than that the 
evidence of what a person formerly swore should depend 
entirely upon mere memory. Indeed, it may well be 
doubted whether it would be proper to order a prosecution 
in any case under this Act where there was no minute in 
writing of the evidence taken down at the time. 

" Again, it ought to be clear, beyond all reasonable 

doubt, that perjury has been wilfully committed before 

a prosecution is ordered" : Lord Campbell's Acts, by Greaves, 
22. 

See section 691 as to proof of trial at which perjury 
was committed : R. v. Coles, 16 Cox, 165. 

It is to be observed that this section is merely remedial, 
and will not prevent a regular record from being still admis- 
sible in evidence, and care must be taken to have such 
record drawn up in any case where the particular aver- 
ments in the former indictments may be essential : Lord 
Campbell's Acts, by Greaves, 27. 



f 



!» 



■ .^- I 





96 



MISLEADING JUSTICE. 



[See. 148 



Subornation of Perjury. — Subornation of perjury is an 
offence as perjury itself, and subject to the same punish- 
ment. 

Section 145, declaring all evidence whatever material 
with respect to perjury, also applies to subornation of 
perjury. 

Section 691, as to certificate of indictment and trial, 
applies also to subornation of perjury. Subornation of 
perjury, by the common law, seems to be an offence in pro- 
curing a man to take a false oath, amounting to perjury, 
who actually taketh such oath : 1 Hawk. 435. 

But it seemeth clear that if the person incited to take 
such an oath do not actually take it, the person by whom 
he was so incited is not guilty of subornation of perjury, 
yet it is certain that he is liable to be punished, not only 
by fine, but also by infamous corporal punishment : 
1 Hawk. loc. cit. This crime is incitement, section 530. 

An attempt to suborn a person to commit perjury, upon 
a reference to the judges was unanimously holden by them 
to be a misdemeanour : 1 Russ. 85. 

And upon an indictment for subornation of perjury if 
it appears, at the trial, that perjury was not actually com- 
mitted, but that the defendant was guilty of the attempt 
to suborn a person to commit the offence, such defendant 
may be found guilty of the attempt, section 711. 

In support of an indictment for subornation the record 
of the witness's conviction for perjury is no evidence 
against the suborners, but the offence of the perjured wit- 
ness must be again regularly proved. Although several 
persons cannot be joined in an indictment for perjury, yet 
for subornation of perjury they may: 3 Bum's Justice, 
1246. 

iThdictment, same as irKJictment for perjury to the end, 
and then proceed : — And the Jurors aforesaid further pre- 
sent, that before the committing of the said offence by the 



Seo. 146] 



PERJURY. 



m 



«»id A. B., to wit, on the day of at C. D. 

unlawfully, wilfully and corruptly did cause and procure 
the said A. B. to do and commit the said offence in the 
manner and form aforesaid. 

As perjury, subornation of perjury is now triable at 
Quarter Sessions. 

Indictment quashed, (for perjury) none of the formalities 
required by section 140 of the Procedure Act having been 
complied with : R. v. Granger, 7 L. N. 247. 

These formalities are now required in all indictments, 
section 641. 

A person accused of perjury cannot have accomplices, 
and is alone responsible for the crime of which he is 
accused : R. v. Pelletier, 1 R. L. 565. 

Including two charges of perjury in one indictment 
would not be ground for quashing it. An indictment that 
follows the form given by the statute is suflficient : R. v. 
Bain, Ramsay's App. Cas. 191. 

The non-production by the prosecution, on a trial for 
perjury, of the plea which was filed in the civil suit where- 
in the defendant is alleged to have given false testimony, is 
not material when the assignment of perjury has no refer- 
ence to the pleading, but the defendant may, if he wishes, 
in case the plea is not produced, prove its contents by 
secondary evidence. It is not essential to prove that the 
facts sworn to by the defendant, as alleged in the indictment, 
were material to the issue in the cause in'which the defend- 
ant was examined : R. v. Ross, M. L. R. 1 Q. B. 227 ; 28 
L C. J. 261. 

As to stenographer's notes and suflBciency of evidence 
in perjury: see Downie v. R., 15 S. C. R. 358, M. L. R. 3 
Q. B. 360; R. v. Murphy, 9 L. N. 95 ; R. v. Evans, 17 Cox, 
37;R. V. Bird, 17 Cox, 387. 

PCNISHJrtSt. 

149. Every one it gnii^^y of aa indictable offenoe aod liable to foHtteen 
yeaft' imprisonment who oommits perjury or sabomation of perjury. 

Crim. Law— 7 



f 



■|^ 



98 



MISLEADING JUSTICE. 



[Sees. W, 148 




2. 1/the crime w committed in order to procure the conviction of aperao^hfor 
any crime punishable by death or imprisonment for seven years or m^rre, the 
punishment may be imprisonment for life. R. S. C. c. 154, s. 1. 

The words in italics are new : see section 221, 'post. 
The following section of c. 154 E. S. C. is unrepealed. 

4. Any judge of any court of record, or any commissioner before whom any 
inquiry or trial is held, and which he is by law required or authorized to hold, 
may, if it appears to him that any person has been guilty of wilful and corrupt 
perjury in any evidence given, or in any a£5davit, affirmation, declaration, 
deposition, examination, answer or other proceeding made or taken before him, 
direct such person to be prosecuted for such perjury, if there appears to such 
judge or commissioner a reasonable cause for such prosecution,— and may 
commit such person so directed to be prosecuted until the next term, sittings 
or session of any court having power to try for perjury in tha jurisdiction 
within which such perjury was committed, or permit such person to enter into 
a recognizance, with one or more sufficient sureties, conditioned for the appear- 
ance of such person at such next t«rm, sittings or session, and that he will 
then surrender and take his trial and not depart the court without leave,— 
and may require any person such judge or commissioner thinks fit, to enter 
into a recognizance conditioned to prosecute or give evidence against such 
person so directed to be prosecuted as aforesaid. 

S>ee remarks under preceding section. A form of indict- 
ment under sub-section 2 of this section 146 is given in 
schedule one, form F. F. post, under s. 611, but the words, 
" penal servitude " therein are a gross error. Section 684, 
post, applies to this section 146. Hee MacDaniel's Case, 
Fost. 121. 

Falsr Oaths. {New). 

147* Every one is guilty of an indictable offence and liable kO seven 
years' imprisonment who, being required or authorized by law to mpke any 
statement on oath, affirmation or solemn deolaratioj, thereupon makes a 
statement which would amount to perjury if made in a judicial proceeding. 

" This is at most a common law miademeanoui: in cases not 
specially provided for by statute, of which there are a considiii- 
able number." — Imp. Gomm. Eep. 

This enactment seems unnecessary. It is covered by 
sub-section 3 of section 146, ante. : section 616, imt 
applies. 

False Oath, Other Casks. 

148. Every one is guilty of perjury who — 

(a) Having taken or made any oath, affirmation, solemn declaration or 
affidavit whereby any Act or law in force in Canada, or in any province of 



Sees. 149-151] 

Canada, it is re 
otherwise assun 
or affidavit of ai 
declaration or ai 
any such fact, n 

(*) Knowing 
declaration, affii 
verifying, assuri: 
80 to do, or kno\ 
any such affirma 
thing,— such sta 
the whole or any 

See notes 

False 
149. Ever] 
affirmation or sole 
but within Canad 
pose of being used 
ner as if such fal 
competent authori 
R. S. C. c. 154, 8. ; 

150. Every 
imprisonment who 
any statement or ( 
to be made before 
such notary, make 
oath in a judicial p 

Section 61 1 

" It may be 

mon law misdei 

made indictable 



151, Every o 
years' imprisonmen 
holdinganysuch ju 
means other than pt 

Section 61 ( 
the offence ma\ 

" Fabricating 
as perjury, but ^ 
An instance occu 
man with intent 



Sees. 149-1511 



PERJURY, ETC. 



99 



Canada, it is required or permitted that facts, matters or things be verified, or 
otherwise assured or ascertained by or upon the oath, affirmation, declaration 
or affidavit of any person, wilfully and corruptly, upon such oath, affirmation, 
declaration or affidavit, deposes, swears to, or makes any false statement as to 
any such fact, matter or thing ; or 

(6) Knowingly, wilfully and corruptly, upon oath, affirmation, or solemn 
declaration, affirms, declares, or deposes to the truth of any statement for so 
verifying, assuring or ascertaining any such fact, matter or thing, or purporting- 
80 to do, or knowingly, wilfully and corruptly takes, makes, signs or subscribes 
any such affirmation, declaration or affidavit, as to any such fact, matter or 
thing, — such statement, affidavit, affirmation or declaration being untrue, in 
the whole or any part thereof ; R. S. C. c. 154, s. 2. 

See notes under sections 145 & 146, ante. 

False Affidavit odt of Province where it is Used. 
140* Every person who wilfully and corruptly makes any false affidavit,^ 
affirmation or solemn declaration, out of the province in which it is to be used 
but within Canada, before any person authorized to take the same, for the pur- 
pose of being used in any province of Canada, is guilty of perjury in like man- 
ner as if such false affidavit, affirmation or declaration were made before a 
competent authority in the province in which it is used or intended to be used. 
R. S. C. c. 154, 8. 3. 

False Statements. {New). 

150< Every one is guilty of an indictable offence and liable to two years' 
imprisonment who, upon any occasion on which he is permitted by law to make 
any statement or declaration before any officer authorized by law to permit it 
to be made before him, or before any notary public to be certified by him as 
such notary, makes a statement which would amount to perjury if made on 
oath in a judicial proceeding. 

Section 616 applies. Fine or sureties, section 958. 

*• It may be doubtful whether this is at jresent even a com- 
mon law misdemeanour, but we feel no doubt that it ought to be^ 
made indictable." — Imp. Comm. Rep. 

Fabricating Evidence. {New). 

151. Everyone is guilty of an indictable oflFence and liable to sevfetf 
years' imprisonment who, with intent to mislead any court of justice or person 
holding any such judicial proceeding as aforesaid, fabricates evidence by any 
means other than perjury or subornation of perjury. 

Section 616 applies. A verdict of attempt to commit 
the offence may be given, section 711. 

«' Fabricating evidence is an oflFence which is not so common 
as perjury, but which does occur, and is sometimes detected. 
An instance occurred a few years ago in a trial for shooting at a 
man with intent to murder him, where the defence was that, 



V- ' 



I 



..A -LJ. 




100 



MISLEADINO JUSl'IOE. 



[Sec. 152 



though the acouddd did fird off a pi&tol it was not loaded With 
ball, and the only intent was to frighten. Evidence was given 
that a pistol ball was found lodged in the trunk of a tree nearly 
in the line from where the accused fired to where the prosecutor 
stood. It was afterwards discovered that the ball had been 
placed in the tree by those concerned in the prosecution in order 
to supply the missing link in the evidence. Such an offence is 
as wicked and as dangerous as perjury, but the punishment as a 
common law offence (if, irrespective of conspiracy, it be an 
offence), is only fine and imprisonment." — Imp. Gomm. Rep. 

To mislead a court by the manufacture of false evidence 
is a misdemeanour. An attempt to do so is also an offence, 
although in point of fact the court was not misled : 
R. V. Vreones, 17 Cox, 267, [1891] 1 Q. B. 360. 

Conspiracy to Bsmo Falsb Accusation. {New). 

ISS> Every one is guilty of an indictable offence who conspires to prose- 
cute any person for any alleged offence, knowing such person to be innocent 
thereof, and shall be liable to the following punishment : 

(a) To imprisonment for fourteen years if such person might, upon convic- 
tion for the alleged offence, be sentenced to death or imprisonment for life ; 

(6) To imprisonment for ten years if such person might, upon conviction 
for the alleged offence, be sentenced to imprisonment for any term less than 
life. 

A common law misdemeanour. Section 616, post, 
applies. 

Indictment. — That A. B. and G. D., being evil-disposed 
persons, and wickedly devising, and intending to deprive one 
E. F. of his good name, fame, and reputation, and subject 
him without just cause to the pains and penalties inflicted 
by law upon persons guilty of an assault, on , did 

unlawfully conspire, combine, confederate, and agree, wil- 
fully, unlawfully, and without any reasonable or probable 
cause in that behalf, to charge and accuse the said E. F. of 
the crime of indecently and unlawfully assaulting the said 
A. B., knowing the said E. F. to be innocent thereof. And 
the jurors aforesaid further present, that the said A. B. and 
C. D., in pursuance of the said conspiracy, combination, 
confederacy, and agreement on the day aforesaid, falsely 



Seo.159] 



ADMINISTERING 



HB, 



101 



m 



and maliciously did cause and procure the said E. ^. to be 
apprehended and taken into custody by one E. H., then 
being one of the constables of the police force, and to be 
conveyed in custody to a certain prison and police-station, 
and there to be imprisoned. 

Administkrinq Oaths withoot Authobitt. 

1S3- Every justioe of the peace or other person who administers, or 
causes or allows to be administered, or receives or causes or allows to be received 
any oath or affirmation touching any matter or thing whereof such justice or 
other person has not jurisdiction or cognizance by some law in force at the time 
being, or authorized or required by any such law, is guilty of an indictable 
offence and liable to a fine not exceeding fifty dollars, or to imprisonment for 
any term not exceeding three months. 

2. Nothing herein contained shall be construed to extend to any oath or 
affirmation before any justice in any matter or thing touching the preservation 
of the peace, or the prosecution, trial or punishment of any offence, or to any 
oath or affirmation required or authorized by any law of Canada, or by any law 
of the province wherein such oath or affirmation is received or administered, or 
is to be used, or to any oath or affirmation which is required or authorized hj 
the laws of any foreign country to give validity to an instrument in writing op 
to evidence designed or intended to be used in such foreign country. R, S. C. 
c. 141, ss. 1, 2. 

Sections 26 and 27 of the Canada Evidence Act of 1893 
re-enact sections 3 &; 4 of the Act respecting Extra Judicial 
Oaths, c. 141, R. S. C. 

Section 153 is taken from section 13 of 5 & 6 W. IV, c. 62, 
of the Imperial Statutes, the preamble of which reads thus : 

" Whereas a practice has prevailed of administering and 
receiving oaths and affidavits voluntarily taken and made 
in matters not the subject of any judicial inquiry, nor in 
any wise required or authorized by any law ; and whereas 
doubts have arisen whether or not such proceeding is illegal ; 
for the suppression of such practice and removing such 
doubts, Her Majesty," etc. 

Sir William Blackstone, before this statute, had said 
(Vol. IV, p. 137) : " The law takes no notice of any perjury 
but such as is committed in some court of justice having 
power to administer an oath ; or before some magistrate or 
proper officer, invested with a similar authority, in some 
proceedings relative to a civil suit or a criminal prosecu- 










102 



MISLEADING JUSTICE. 



[Sec. 153 



tion, for it esteems all other oaths unnecessary at least, and 
therefore will not punish the breach of them. For which 
reason, it is much to be questioned how far any magistrate 
is justifiable in taking a voluntary aflfidavit in any extra- 
judicial matter, as is now too frequent upon every petty 
occasion, since it is more than possible that, by such idle 
oaths, a man may frequently, in foro conscienticB, incur the 
guilt and, at the same time, evade the temporal penalties 
of perjury." 

" And Lord Kenyon, indeed, in different cases, has 
expressed a doubt, whether a magistrate does not subject 
himself to a criminal information for taking a voluntary 
extra-judicial affidavit." : 3 Bum's, Just. v. Oath. 

Indictment. — The Jurors for our Lady the Queen pre- 
sent, that J. S. on .... at ... . being one of the Justices 
of Our said Lady the Queen, assigned to keep the peace in 
and for the said county (or district), did unlawfully admin- 
ister to and receive from a certain person, to wit, one A. B., 
a certain oath, touching certain matters and things, whereof 
the said J. S., at the time and on the occasion aforesaid, had 
not any jurisdiction or cognizance by any law in force at 
the time being, to wit, at the time of administering and 
receiving the said oath, or authorized, or required by any 
such law ; the same oath not being in any matter or thing 
touching the preservation of the peace, or the prosecution, 
trial or punishment of any offence nor being required or 
authorized by any law of the Dominion of Canada, or by 
any law of the said Province of ... . wherein such oath 
has been so received and administered, and was to be used 
(if to be used in another Province add " or by any law of 
the Province of ... . wherein the said oath (or afUdavit) 
was (or is) to be used ") ; nor being an oath required by the 
laws of any foreign country to give validity to any instru- 
ment in writing or to evidence, designed or intended to be 
used in such foreign country ; that is to say, a certain oath 
touching and concerning; state the subject-rtiatter of the 



Seo. 153] 



ADMINISTERING OATHS. 



103 



oath or affidavit so as to show that it was not one of 
which the Justice had jurisdiction or cognizance, and 
was not within the exceptions. 

A county magistrate complained to the bishop of the 
diocese of the conduct of two of his clergy and to substan- 
tiate his charge he swore witnesses before himself, as 
magistrate, to the truth of the facts : held, that the matter 
before the bishop was not a judicial proceeding, and there- 
fore that the magistrate had brought himself within the 
statute against voluntary and extra-judicial oaths, and that 
he had unlawfully administered voluntary oaths, contrary 
to the enactment of the statute : R. v. Nott, Car. & M. 
288, 9 Cox, 301. 

In the same case, on motion in arrest of judgment, it 
was held, that an indictment under the statute (5 & 6 
W. IV, c. 62, s. 13) is bad, if it does not so far set out the 
deposition that the court may judge whether or not it is 
of the nature contemplated by the statute ; that the depo- 
sition and the facts attending it should have been distinctly 
stated, and the matter or writing relative to which the 
defendant was said to have acted improperly should have 
been stated to the court in the indictment, so that the 
court might have expressed an opinion whether the defend- 
ant had jurisdiction, the question whether the defendant 
had jurisdiction to administer the oath being one of law, 
and to be decided by the court ; but the majority of the 
court thought that it was not necessary to set out the 
whole oath. Greaves, nevertheless, thinks it prudent to 
set it out at full length, if practicable, in some counts : 1 
Russ. 193, note. 

Upon the trial, to establish that the defendant is a 
justice of the peace, or other person authorized to receive 
oaths or affidavits, evidence of his acting as such will, 
prima facie, be sufficient : Archbold. 830. 

And it is not necessary to show that he acted wilfully 



104 



MISLEADING JUSTICE. 



[Sees. 164, 155 



i 




in contravention of the Statute : the doing so, even inad-r 
vertently, is punishable : Id. 

Corrupting Juriks and Witnessks. 

184* Every one is guilty of an indiotable offence and liable to two years' 
imprisomnent who— 

(a) Dissuades or attempts to dissuade any person by threats, bribes or 
other corrupt means from giving evidence in any cause or matter, civil or 
criminal ; or 

(b) Influences or attempts to influence, by threats or bribes or other 
corrupt means, any juryman in his conduct as such, whether such person has 
been sworn as a juryman or not ; or 

(c) Accepts any such bribe or other corrupt consideration to abstain from 
giving evidence, or on account of his conduct as a juryman ; or 

(d) Wilfully attempts in any other way to obstruct, pervert or defeat the 
course of justice. R. S. C. c. 173, s. 30. (Amended). 

Sub-section (6) covers the common law offence of em- 
bracery : 4 Blac. Comm. 140 ; sub-section (a) also was a 
common law misdemeanour ; sub-sections (c) and {d), see 

1 Russ. 265 ; form of indictment, 2 Chit. 235 ; fine in 
addition to or in lieu of punishment, section 958 ; verdict of 
attempt on an indictment for principal offence, section 711. 

As to conspiracy to obstruct, pervert, prevent or defeat 
the course of justice, section 527, post. 

Compounding Penal Actions. 

ISS. Every one is guilty of an indictable offence and liable to a fine not 
exceeding the penalty compounded for, who, having brought, or under colour 
of bringing, an action against any person under any penal statute in order to 
obtain from him any penalty, compounds the said action without any order 
or consent of the court, ivliethcr any offence has in fact been committed or nut, 
R. S. C. c. 173, 8. 31. {Amended). 

This applies to qui tarn actions. The words in italics 
are new. 

See Keir v. Leeman, 9 Q. B. 371 ; R. v. Crisp, 1 B. & 
Aid. 282; R. v. Mason, 17 U. C. C. P. 534: R. v. Best, 

2 Moo. 124 ; Kueeshaw v. Collier, 30 U. C. C. P. 265 ; 
Windhill Local Board v. Vint, 17 Cox, 41, 45 Ch. D. 351, and 
cases there cited, as to compounding misdemeanours. 

The repealed statute, chapter 173, section 31, R. S. C. 
applied only to the Province of Quebec and had "without 



Seo.186] 



COMPOUNDINQ 0PPENC5ES. 



105 



the permisftion or direction of the Crown " instead of " with- 
out order or consent of the court." 

The court, under the above section 155, would probably 
require the consent of the Crown before giving its own 
consent. 

Taking a Reward for Helping to Recover Property Stolen, Etc. 

ISO. Every one is guilty of an indictable offence and liable to seven 
years' imprisonment who corruptly takes any money or reward, directly or 
indirectly, under pretense or upon account of helping any person to recover 
any chattel, money, valuable security or other property which, by any indict- 
able oflFence, has been stolen, taken, obtained, extorted, converted or disposed 
of, unless he has used all due diligence to cause the offender to be brought tu 
trial for the same. R. S. C. c. 164, s. 89; 24-25 V. c. 96, s. 101, (Imp.). 

As to the meaning of the words " valuable security " 
and " property," see ante, section 3. 

Indictment — The Jurors for Our Lady the Queen, 
present that A. B. on unlawfully and corruptly did 

take and receive from one J. N. certain money and reward, 
to wit, the sum of five dollars of the monies of the said J. N. 
under pretense of helping the said J. N. to recover certain 
goods and chattels of him the said J. N. before then stolen, 
the said A. B. not having used all due diligence to cause the 
person by whom the said goods and chattels were so stolen, 
to be brought to trial for the same. 

It was held to be an offence within the repealed statute 
to take money under pretense of helping a man to goods 
stolen from him, though the prisoner had no acquaintance 
with the felon, and did not pretend that he had, and though 
he had no power to apprehend the felon, and though the 
goods were never restored, and the prisoner had no power 
to restore them : R. v. Ledbitter, 1 Moo. 76. The section of 
the repealed statute, under which this case was decided, 
was similar to the present section : 2 Russ, 575. 

If a person know the persons who have stolen any pro- 
perty, and receive a sum of money to purchase such property 
from the thieves, not meaning to bring them to justice, he 
is within the statute, although the jury find that he did not 



f 



!■• ; 






106 



MISLEADING JUSTICE. 



[Se-^s. 167, 168 



mean to screen the thieves, or to share the money with 
them, and did not mean to assist the thieves in getting rid 
of the property by procuring the prosecutrix to buy it ' 
R. V. Pascoe, 1 Den. 456. 

A person may be convicted of taking money on account 
of helping a person to a stolen horse, though the money be 
paid after the return of the horse : R. v. O'Donnell, V Cox, 
337. As to the meaning of the words " corruptly takes ": 
■see R. V. King. 1 Cox, 36. 

As to compounding crimes: see R. v. Burgess, Warb. Lead. 
Cas. 67 ; 16 Q. B. D. 141. 

Unlawfully Advkrtisino Reward. 

197. Every one ia liable to a penalty of two hundred and fifty dollars 
for each offence, recoverable with co!>ts by any [lerson who sues for the same in 
any court of competent jurisdiction, who — 

(rt) Publicly advertises a reward for the return of any property which has 
been stolen or lost, and in such advertisement uses any words purporting that 
no questions will be asked ; or 

{b) Makes use of any words in any public advertisement purporting that a 
reward will be given or paid for any property wl.ich has been stolen or lost, 
without seizing or making any inquiry after the person producing such 
property ; or 

(c) Promises or offers in any such public advertisement to return to any 
pawnbroker or other person who advanced money by way of loan on, or has 
bought, any property stolen or lost, the money so advanced or paid, or any 
other sum of money for the return of such property ; or 

{d) Prints or publishes any such advertisement. R. S. C. c. 1(54, s. 90. 

The penalty is recoverable under section 929, post. 

Limitation, six months as to offence under (d), sec- 
tion 551. 

False Certificate of Execution of Sentence op Death. 

158 Every one is guilty of an indictable offence and liable to two years' 
imprisonment, who knowingly and wilfully signs a false certificate or decla- 
ration when a certificate or declaration is required with respect to the 
execution of judgment of death on any prisoner. R. S. C. c. 181, s. li). 

This section seems out of place. It should come after 
section 946, post. 

Fine in addition to or in lieu of punishment, section 
958. 



Sec. 150] ESCAPES AND RESCUES. 107 



f 



PART XI. 
ESCAPES AND RESCUES. 

Beino at Laroe While Under Sentence. {New). 
ISO. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who, having been sentenced to imprisonment, is afterwards, and 
before the expiration of the term for which he was sentenced, at large within 
Canada without some lawful cause, the proof whereof shall lie on him. 
5 Geo. IV. 0. 84, s. 22, (Imp.). 

" In dealing with the somewhat intricate subject of escapes 
and rescues we have made distinctions which are, we think, 
insufficiently recognized by the existing law, between the com- 
mission of such offences by peace officers and gaolers, and by other 
persons." — Imp. Comm. Rep. 

Not triable at quarter sessions, section 540. 

Fine and sureties, section 958. 

Sections 1, 2, 6, 32 et seq. of 53 V. c. 37, are unrepealed. 

Form of indictment : Archbold 884. Proof of a pre- 
vious conviction, section 694. 

What is an escape. — An escape is where one who is ar- 
rested gains his liberty without force before he is delivered 
by due course of law. The general principle of the law on 
the subject is that as all persons are bound to submit them- 
selves to the judgment of the law, and to be ready to be 
justified by it, those who, declining to undergo a legal im- 
prisonment when arrested on criminal process, free them- 
selves from it by any artifice, and elude the vigilance of 
their keepers, are guilty of an offence of the nature of a 
misdemeanour. It is also criminal in a prisoner to escape 
from lawful confinement, though no force or artifice be used 
on his part to effect such purpose. Thus, if a prisoner go 
out of his prison without any obstruction, the doors being 
opened by the consent or negligence of the gaoler, or if he 
escape in any other manner, without using any kind of 
force or violence, he will be guilty of a misdemeanour : R, 
V. Nugent, 11 Cox, 64. The officer by whose default a 




108 



ESCAPES AND RESCUEa 



[S«o. 169 



■f: 



i 



prisoner gains his liberty before he is legally discharged is 
also guilty of the offence of escape, divided in law, then, into 
two offences, a voluntary escape or a negligent escape. To 
constitute an escape there must have been an actual arrest 
in a criminal matter. 

A voluntary escape is where an officer, having the cus- 
tody of a prisoner, knowingly and intentionally gives him 
his liberty, or by connivance suffers him to go free, either 
to save him from his trial or punishment, or to allow him 
a temporary liberty on his promising to return and, in fact, 
80 returning: K v. Shuttleworth, 22 U. C. Q. B. 372. 
Though some of the books go to say that, in this last case, 
the offence would amount to a negligent escape only. 

A negligent escape is where the party arrested or im- 
prisoned escapes against the will of him that arrests or has 
him in charge, and is not freshly pursued and taken again 
before he has been lost sight of. And in this case, the law 
presumes negligence in the officer, till evident proof on his 
part to the contrary. The sheriff is as much liable to 
answer for an escape suffered by his officers as if he had 
actually suffered it himself. A justice of the peace who 
bails a person not bailable by law is guilty of a negligent 
escape, and the person so discharged is held to have es- 
caped. 

When was an escape a felony, and when a mis- 
demeanour. — An escape by a prisoner himself is no more 
than a misdemeanour whatever be the crime for which he 
is imprisoned. Of course, this does not apply to prison- 
breaking, but simply to the case of a prisoner running 
away from the officer or the prison without force or vio- 
lence. This offence falls under section 164, post. An officer 
guilty of a voluntary escape is at common law involved in 
the guilt of the same crime of which the prisoner is guilty, 
and subject to the same punishment, whether the person 
escaping were actually committed to some gaol, or under 
an arrest only and not committed, and whether the offence 



or impnsonm 



Bee. 169] 



PRISON BREAKING, ETC. 



109 



be treason, felony or misdemeanour, so that, for instance, if 
a gaoler voluntarily allows a prisoner committed for lar- 
ceny to escape he is j?uilty of a felonious escape, and punish- 
able as for larceny; whilst if such prisoner so voluntarily 
by him allowed to escape was committed for obtaining 
money by false pretenses, the gaoler is then guilty of a 
misdemeanour, punishable under the common law by tine 
or imprisonment, or both, but now under sections 165 and 
166, ^08*. Greaves, note (r), 1 Russ. 587, says that the 
gaoler might also, in felonies, be tried, as an accessory after 
the fact, for voluntary escape: see 1 Hale 619, 620. A 
negligent escape is always a misdemeanour, and is punish- 
able, at common law, by fine or imprisonment or both. 

What is a prison-breaking, and when was it a felony 
or a misdemeanour ? The offence of piison-breach is a 
breaking and going out of prison by force by one lawfully 
confined therein. Any prisoner who frees himself from 
lawful imprisonment, by what the law calls a breaking, 
commits thereby a felony or a misdemeanour, according as 
the cause of his imprisonment was of one grade or the 
other : R. v. Haswell, R & R. 458. But a mere breaking is 
not sufficient to constitute this offence ; the prisoner must 
have escaped. The breaking of the prison must be an 
actual breaking, and not such force and violence only as 
may be implied by construction of law. Any place where 
a prisoner is lawfully detained is a prison quoad his 
offence, so a private house is a prison if the prisoner is in 
custody therein. If the prison-breaking is by a person 
lawfully committed for a misdemeanour it is, as remarked 
before, a misdemeanour, but if the breaking is by a person 
committed for felony then his offence amounts to felony. 

A prisoner was indicted for breaking out from the lock- 
up, being then in lawful custody for felony. It appeared 
that the prisoner and another man had been given into the 
custody of a police officer, without warrant, on a charge of 
stealing a watch from the person. Thoy were taken before 



f 



no 



ESCAPES AND RESCUES. 



[Sea 16t> 



a magistrate. No evidence was taken upon oath but the 
prisoner was remanded for three days. The prisoner broke 
out of the lock-up and returned to his home. He appeared 
before the magistrate on the day to which the hearing of 
the charge had been adjourned, and on the investigation 
of the charge it was dismissed by the magistrate, who 
stated that in his opinion it was a lark and no jury would 
convict. The prisoner contended that the charge having 
been dismissed by the magistrate he could not be convicted 
of prison-breaking, citing 1 Hale, 610, 611, that if a man be 
subsequently indicted for the original offence and acquitted 
such acquittal would be a sufficient defence to an indict- 
ment for breach of prison. But Martin, B., held that a 
dismissal by the magistrate was not tantamount to an 
acquittal upon an indictment, and that it simply amounted 
to this, that the justices did not think it advisable to pro- 
ceed with the charge, but it was still open to them to hear 
a fresh charge against him. The prisoner was found 
guilty : R. v. Waters, 12 Cox, 390. 

What is a rescue, and when was it a felony or a misde- 
meanour? — Rescue is the forcibly and knowingly freeing 
another from an arrest or imprisonment. A rescue in the 
case of one charged with felony is felony in the rescuer 
and a misdemeanour if the prisoner is charged »vith a mis- 
demeanour : R. v. Haswell, R. & R. 458. But though, upon 
the principle that wherever the arrest of a lolon is lawful 
the rescue of him is a felony, it will not be material whe- 
ther the party arrested for felony, or suspicion of felony, be 
in the custody of a private peraon or of an officer, yet, if he 
be in the custody of a private person, it seems that the 
rescuer should be shown to have knowledge of the party 
being under arrest for felony. 

See 1 Russ. 581, et seq. ; 4 Stephen's Comm. 227, et 
seq. ; 1 Hale, P. C. 595 ; 2 Hawk. p. 183 ; 5 Rep. Cr. L 
Com., (1840), p. 53 ; 2 Bishop, Cr. L. 1066 ; R. v. Payne. 
L. R. 1 C. C. R. 27. 



S«ci. 160-163] 



PRISON BREAKING, ETC. 



Ill 



■f 



For forms of indictment : see Archbold," 795 ; 2 Chit. 
Cr. L. 165; 5 Burn's Just. 137; 3 Bum's Just. 1332; 
2 Bum's Just. 10 ; R. v. Young, 1 Rusa. 291. 

By section 711, post, upon an indictment for any of 
these offences the defendant may be found guilty of the 
attempt to commit the offence charged, if the evidence war- 
rants it. 

None of the offences under this part XI are triable at 
quarter sessions, section 540. Fine when punishn^ent not 
more than five years, section 958. 

AsaisTiNO Escape of Pbisoners of War. (JVew). 

160. Every one is guilty of an indictable offence and liable to five yean' 
imprisonment who knowingly and wilfully — 

(a) Assists any alien enemy of Her Majesty, being a prisoner of war in 
Canada, to escape from any place in which he may be detained ; or 

(b) Assists any such prisoner as aforesaid, suffered to be at large on his 
parole in Canada or in any part thereof, to escape from the place where he is 
at large on his parole. 52 Geo. Ill, c. 156, (Imp.). 

Breakino Prison. 

16 1 • Every one is guilty of an indictable offence and liable to seven 
years' imprisonment who, by force or violence, breaks any prison with intent to 
set at liberty himself or any other person confined therein on any criminal 
charge. R. S. C. c. 15.5, s. 4. 

" Prison " defined, section 3. A verdict under next 

section may be given, section 711. See remarks under 

section 159, ante. 

Attempt, Etc., Etc. 

162. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who attempts to break prison, or who forcibly breaks out of his 
cell, or makes any breach therein with intent to escape therefrom. R. S. C. 
c. 155, 8. 5. 

" Prison " defined, section 3 ; fine and sureties, section 
958. 

Escape from Prison, Etc., Etc. 

163. Every one is guilty of an indictable offence and liable to two years* 
imprisonment who — 

{«) Having been convicted of any offence, escapes from any lawful custody 
in which he may be under such conviction ; or 

(b) Whether convicted or not, escapes from any prison in which he is law- 
fully confined on any criminal charge. 



f 



<: II 



112 



ESCAPES AND RESCUES. 



[Seos. 164.167 



m 






See remarks under preceding setitiona. A verdict of 
attempt may be given, section 711. 

EsoAPK FROM Lawful Costodt. 

10ft. Every one is gn^il^y of an indictable offence and liable to two years' 
imprisonment who beincr in lawful custody other than as aforesaid en any 
criminal charge, escapes from such custody. 

See remarks under preceding sections of this chapter. 

AssiaTiNO Escape in Certain Cases. 

163. Every one is guilty of an indictable offence and liable to seven years' 
imprisonment who — 

(a) Rescues any person or assists any person in escaping, or attempting to 
escape, from lawful custody, whether in prison or not, under sentence of death 
or imprisonment for life, or after conviction of, and before sentence for, or 
while in such custody, upon a charge of any crime pimishable with death or 
imprisonment for life ; or 

(6) Being a peace officer and having any such person in his lawful custody, 
or being an officer of any prison in which any such person is lawfully confined, 
voluntarily and mtentionally permits him to escape therefrom . 

See remarks under preceding sections of this chapter. 

Assisting Escape in Other Cases. 

166. Every one is guilty of an indictable offence and liable to five years' 
imt)risonment who — 

{a) Rescues any person, or assists any person in escaping, or attempting to 
escape, from lawful custody, whether in prison or not, under a sentence of im- 
prisonment for any term less than life, or after conviction of, and before 
sentence for, or while in such custody upon a charge of any crime punishable 
with imprisonment for a term less than life ; or 

(6) Being a peace officer having any such person in his lawful custody, or 
being an officer of any prison in which such person is lawfully confined, 
voluntarily and intentionally permits him to escape therefrom. 

Fine and sureties, section 958. See remarks under 
preceding sections. 

The Code does not provide for the offence of a neghgent 
escape by the sheriff or gaoler as section 7 of the repealed 
statute did as to escape from penitentiaries. 

Aiding Escape from Prison. 

107. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who with intent to facilitate the escape of any prisoner lawfully 
imprisoned conveys, or causes to be conveyed, anything into any prison. 
U. S. C. c. 155, 8. 6 ; 28-29 V. c. 126. s. 37, limp.). 

See remarks under preceding sections. 



Sees. 168, 169J 

^ndictTm 

sent, that be 

offence hereij 

, in t 

prisoner, and 

mon gaol in a 

afterwards an 

in custody as 

to be conveye( 

instruments pj 

the said files, 

unlawfully did 

-4. B. then bei 

W. S. as aforeg 

said keeper of 

instruments as 

gaol, and delive 

aforesaid, with 

so being such pr: 

from and out of 

t 

10§. Every one 

imprisonment, who kr 
authority, directs or r 
«) discharged, and th 
K- S. C. 0. 155, 8. 8. 

See remarks i 



w 



. "«»• Everyone™ 
'"the prison to which h 
at the time of his escape 
«uch escape; a„d any i 

penitentiary or prison f, 



Crim. Law- 8 



Sees. 168, 169] 



UNLAWFUL DISCHARGE. 



113 



Indictment. — The jurors for our Lady the Queen pre- 
sent, that before and at the time of the committing of the 
offence hereinafter mentioned, to wit, on the day of 

, in the year of our Lord , one A. B. was a 

prisoner, and in lawful custody of one W. S., in the com- 
mon gaol in and for the county of ; and that E. F. 
afterwards and whilst the said A. B. was such prisoner and 
in custody as aforesaid, unlawfully did convey and cause 
to be conveyed into the gaol aforesaid two steel files, being 
instruments proper to facilitate the escape of prisoners, and 
the said files, being such instruments as aforesaid, then 
unlawfully did deliver and cause to be delivered to the said 
A. B. then being such prisoner in the lawful custody of 
Tr. S. as aforesaid, without the consent or privity of the 
said keeper of the said gaol ; which said files being such 
instruments as aforesaid, were so conveyed into the said 
gaol, and delivered to the said A. B. by the said E. F. as 
aforesaid, with the intent to aid and assist the said A. B., 
so being such prisoner and in custody as aforesaid, to escape 
from and out of the said gaol, and to facilitate his escape. 

Unlawful Disohargk of Prisoner. 

168. Every one is guilty of an indictable offence and liable to two years' 
imprisonment, who knowingly and unlawfully, under colour of any pretended 
authority, directs or procures the discharge of any prisoner not entitled to be 
80 discharged, and the person so discharged shall be held to have escaped. 
R. S. C. 0. 155, 8. 8. 

See remarks under preceding sections. 

Punishment. 

169. Every one who escapes from custody shall, on being retaken, serve, 
in the prison to which he was sentenced, the remainder of his term unexpired 
at the time of his escape, in addition to the punishment which is awarded for 
such escape ; and any imprisonment awarded for such offence may be to the 
penitentiary or prison from which the escape was made. R. S. C. c. 165, s. 11. 






1, 



I 1 



i'i 



Cbim. Law— 8 



:#ii' 



114 



OFFENCES AGAINST RELIGION, ETC. 



[Sec. 170 




TirLB IV. 

OFFENCES AGAINST RELIGION, MORALS AND 
PUBLIC CONVENIENCE. 

PART XII. 

OFFENCES AGAINST RELIGION. (New). 

ITO. Every one is guilty of an indictable oflfence and liable to one ye.ar's 
imprisonment who publishes any blasphemous libel. 

2. Whether any particular published matter is a blasphemous libel or not 
is a question of fact. But no one is guilty of a blasphemous libel for expressing 
in good faith and in decent language, or attempting to establish by arguments 
used in g<x)d faith and conveyed in decent language, any opinion whatever upon 
any religious subject. 

Fine and sureties, section 958; special enactment as to 
indictments for libel, section 615. 

The truth of a blasphemous libel cannot be pleaded as a 
defence : see cases under section 123, ante ; also R. v. 
Hicklin, L. R. 3 Q. B. 360, and Archbold, 813. 

A blasphemous libel is triable at Quarter Sessions, 
though not a defamatory nor a seditious libel, section 540. 
This is new law. 

" This section provides a punishment for blasphemous libels, 
which offence we deem it inexpedient to define otherwise than 
by the use of that expression. As, however, we consider that 
the essence of the offence (regarded as a subject for criminal 
punishment) lies in the outrage which it inflicts upon the 
religious feelings of the community and not in the expression of 
erroneous opinions, we have added a proviso to the effect that no 
one shall be convicted of a blasphemous libel only for expressing 
in good faith and decent language any opinion whatever upon 
any rehgious subject. 

"We are informed that the law was stated by Mr. Justice 
Coleridge to this effect in the case of R. v. Pooley, tried at 
Bodmin in 1857. We are not aware of any later authority on 
the subject." — Imp. Comm. Rep. 



Sees. 171, 172] OBSTRUCTING CLERGYMEN, ETC. 



115 



Obstrdcting Clergymbn, Etc., Etc. 

I Yl. Everyone is guilty of an indictable offence and liable to two years* 
imprisonment who — 

(a) By threats or force, unlawfully obstructs or prevents, or endeavours to 
obstruct or prevent, any clergyman or other minister in or from celebrating 
divine service, or otherwise officiating in any church, chapel, meeting-house, 
school-house or other place /or divine worship, or in or from the performance of 
his duty in the lawful burial of the dead in any church-yard or other burial 
place. 24-25 V. c. 100, s. 36, (Imp.). 

172s. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who strikes or offers any violence to, or upon any civil process 
or under the pretense of executing any civil process, arrests any clergyman or 
other minister who is engaged in or, to the knowledge of the offender, is aboufe 
to engage in, any of the rites or duties in the next preceding section men- 
tioned, or who, to the knowledge of the offender, is going to perform the same,, 
or returning from the performance thereof. 

These two sections are a re-enactment of s. 1, c. 156, 
R. S. C. Fine or sureties, section 958. 

The word school-house in the first section is not in the 
English Act, and the words for divine worship are substi- 
tuted for of divine worship. In the Revised Statutes it 
was " used for." 

Indictment for obstructing a clergyman in the discharge 
of his duty — unlawfully did by force {threats or force). 
obstruct and prevent one J. N., a clergyman, then being the^ 
vicar of the parish of B., in the county of M., from cele- 
brating divine service in the parish church of the said 
parish (or in the perforiiuince of his duty in the laitful 
hurial of the dead in the church-yard of the parish church. 
of the said parish.) 

Prove that J. N. is a clergyman and vicar of the parish 
of B., as stated in the indictment ; that the defendant by 
force obstructed and prevented him from celebrating divine 
service in the parish church, etc., etc., or assisted in doing 
80 : Archbold. 

Indictmient for arresting a clergyman about to engage 
in the performance of divine service. — unlawfully did 
arrest one J. N., a clergyman, upon certain civil process, 
whilst he, the said J. N., as such clergyman as aforesaid, 



W 



■I . ,1 



-?^.! 



116 



OFFENCES AGAINST MORALITY. [Sees. 173, 174 



III 



was going to perform divine service, he the said (defend- 
ant) then well knowing that the said J. N. was a clergy- 
man, and was so going to perform divine service as afore- 
said. 

Disturbing Fcblio Wobshif. 

178. Evety one is guilty of an offence and liable, on summary ocmviotion, 
to a penalty not exceeding fifty dollars and costs, and in default of payment to 
one month's imprisonment, who wilfully disturbs, interrupts or disquiets any 
assemblage of persons met for religious worship, or for any moral, social or 
benevolent purpose, by profane discourse, by rude or indecent behaviour, or 
by making a noise, either within the place of such meeting or so near it as to 
disturb the order or solemnity of the meeting, R. S. C. c. 156, s. 2. 

The Imperial Statutes corresponding to this clause are 
52 Geo. III. c. 155, s. 12 ; 15-16 V. c. 36 ; 23-24 V. c. 32. 

The offences against it are punishable by summary con- 
viction. It seems to be based on c. 92, s. 18, C. S. Can. 
and c. 22, s. 3. C. S. L. C. 



PART XIII. 
OFFENCES AGAINST MORALITY. 

Unnatural Offkncbb. 

74. Every one is guilty of an indictable offence and liable to imprison- 
ment for life who commits buggery, either with a human being or with any 
other living creature. R. S. C. c. 157, s. 1. 24-25 V. c. 100, s. 61, (Imp.). 

Indictment. — in and upon one J. N. did make an 

assault, and then wickedly, and against the order of nature 
had a venereal affair with the said J. N., and then carnally 
knew him, the said J. N., and then wickedly, and against 
the ordjr of nature, with the said J. N., did commit and 
perpetrate that detestable and abominable crime of buggery. 

Sodomy or buggery is a detestable and abominable sin, 
amongst Christians not to be named, committed by carnal 



Sec. 174] 

knowledge 
of nature 
beast, or bj 

If the < 
years of ag 
If by a boy 
felony in th 

The evic 
tions; first, 
have been 
upon whom 
and patient 
Just. 644. 

In R. V. 
prisoner had 
of age, to go 
there, forced 
his private p« 
mouth; thej 
crime of sodo 
In one cas 
that the con 
indictable ; als 
Jellyman, Wa 
As in the < 
constitute the 
The evider 
portion as the 

Upon an in 

be convicted of 

The punish 

The defend 

offences created 

warrants it; si 

assaults on peri 



See. 174] 



UNNATURAL OFFENCES. 



117 



knowledge against the ordinance of the Creator and order 
of nature by mankind with mankind, or with brute and 
beast, or by womankind with brute beast : 3 Inst. 58. 

If the offence be committed on a boy under fourteen 
years of age, it is felony in the agent only : 1 Hale, 670. 
If by a boy under fourteen on a man over fourteen, it is 
felony in the patient only : Archbold, 752. 

The evidence is the same as in rape, with two excep- 
tions : first, that it is not necessary to prove the offence to 
have been committed against the consent of the person 
upon whom it was perpetrated ; and secondly, both agent 
and patient (if consenting) are equally guilty : 5 Burn's 
Just. 644. 

In R. V. Jacobs. R. & R. 331, it was proved that the 
prisoner had prevailed upon a child, a boy of seven years 
of age, to go with him in a back-jT^ard ; that he, then and 
there, forced the boy's mouth open with his fingers, and put, 
his private parts into the boy's mouth, and emitted in hisi 
mouth ; the judges decided that this did not constitute th^ 
crime of sodomy. 

In one case the majority of the judges were of opinion 
that the commission of the crime with a woman was 
indictable ; also by a man with his wife : 1 Rusa. 939 ; R. v. 
Jellyman, Warb. Lead. Cas. 57. 

As in the case of rape, penetration alone is sufficient to 
constitute the offence. 

The evidence should be plain and satisfactory in pro- 
portion as the crime is detestable. 

Upon an indictment under this section, the prisoner may 

be convicted of an attempt to commit the same, section 711. 

The punishment would then be under the next section. 

The defendant may also be convicted of either of the 
offences created by sections 178, 260 or 265, if the evidence 
warrants it; section 713. See section 261 as to indecent 
assaults on persons under fourteen. 



'^i^W: 





I 1 



118 



OFFENCES AGAINST MORALITY. 



[Sec. 175 



Indictment for bestiality. — with a certain cow 

(any animal) unlawfully, wickedly and against the order 
of nature had a venereal affair, and tlien unlawfully, wick- 
edly and against the order of nature, with the said cow did 
commit and perpetrate that detestable and abominable 
crime of buggery. 

Attempt to Commtt Sodomy. 

1T5. Every one ia guilty of an indictable offence and liable to ten years* 
imprisonment who attempts to commit the offence mentioned in the next pre- 
ceding section. R. S. C. c. 157, s. 2 ; 24-25 V. c. ]00, s. G2, (Imp.). 

Indictment. — in and upon one J. N. did make an 
assault, and him, the said J. N. did then beat, wound and 
ill-treat, with intent that detestable and abominable crime 
called buggeiy with the said J. N. unlawfully, wickedly, 
diabolically, and against the order of nature to commit and 
perpetrate. 

Where there is consent there cannot be an assault in 
point of law: R. v. Martin, 2 Moo. 123. A man induced 
two boys above the age of fourteen years to go with liim 
in the ev^ening to an out of the way place, where they 
mutually indulged in indecent practices on each others' 
persons; Held, on a case reserved, that under these circum- 
;8tances, a conviction for an indecent assault could not be 
upheld: R. v. Wollaston, 12 Cox, 180. But see now section 
178, ijost. 

But the definition of an assault that the act must l)e 
ago. lust the tvill of the patient implies the possession of an 
active will on his part, and, therefore, mere submission by 
a boy eight years old to an indecent assault and inmioral 
practices upon his person, without any active sign of dissent, 
the child being ignorant of the nature of the assault, does 
not amount to consent so as to take the offence out of the 
operation of criminal law: R. v. Lock, 12 Cox, 244. But 
see now section 261, jjost. 

The prisoner was indicted for an indecent assault upon 
a boy of about fourteen years of age. The boy had con- 



Sec. 17G] 



INCEST. 



119 



sented. Held, on the authority ofR. v. Wollaston, 12 Cox, 
180, that the charge was not maintainable : R. v. Laprise, 
3 L. J^. 139. See now section 261, post. 

Assault with intent to commit sodomy, section 260, 2)0st. 

Incest. 

ITfi. Every parent and child, every brother and sister, and every grand- 
parent and grandchild, who cohabit or have sexual intercourse with each 
other, shall each of them, if aware of their consanguinity, be deemed to have 
committed incest, and be guilty of an indictable offence and liable to fourteen 
years' imprisonment, and the male person shall also be liable to be whipped : 
Provided that, if the court or judge is of opinion that the female accused is a 
party to such intercourse only by reason of the restraint, fear or duress of the 
other party, the court or judge shall not be bound to impose any punishment 
on such person under this section. 53 V. o. 37, s. 8. 

Incest is not an offence at common law. It is a capital 
offence in Scotland : Wharton L. Lex. v. Iticest. 

In New Brunswick, by c. 145, Rev. Stat., unrepealed, it 
is indictable, punishment fourteen years. In Prince 
Edward Island also, under the Act 24 V. c. 27, unrepealed, 
incest is indictable, punishment twenty-one years. Also, in 
Nova Scotia, c. 160, R. S. N. S., punishment two years. 

A verdict of common or indecent assault may be given, 
sections 259, 261, 265, if the evidence warants it, section 
713. 

Or a verdict of a&sault with intent to commit an indict- 
able offence, section 263. 

A verdict of attempt to commit incest might als( under 
certain circumstances be given, section 711. In the United 
States, in a case of The People v. Murray, 14 Cal. 159, the 
court seems to have thought that such a verdict could be 
given. In Connnonwealth v. Goodhue, 2 Met. 193, it was 
held that one indicted for rape on the person of his daugh- 
ter might be convicted of incest. But this would not be 
.lk)wod under this code on a trial for rape, except it' the 
indictment contained also a count for incest: section 026. 
Then, the verdict would be on the count for incest, if the 
prisoner Jiad been tried on both counts together. 



r ■ 1 



iii 



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120 



OFFENCES AGAINST MORALITY. 



[Sec. 177 



The scienter must be alleged in the indictment. If one 
cf the parties is not aware of the consanguinity he is not 
guilty. In Bergen v. The People, 17 111. 426, it was held 
that the defendant's admission of relationship with the 
person with whom he held incestuous intercourse was suffi- 
cient proof of such relationship. 

Indictment. — that on at 

A. B. did unlawfully have sexual intercourse with his 
daughter, C. B., then and there knowing the said C. B. to be 
his daughter. (Add another count with "cohabit" instead 
of "have sexual intercourse." And another one with " com- 
mit incest" instead of "have sexual intercourse " : Baumer 
V. The State, 49 Ind. 544, Hawley, American Crim. Rep. 
vol. 1, 354. 

Indictment against father and daughter jointly. — 
that on at A. B. and C. B. father and 

daughter, did unlaw fully have sexual intercourse {in another 
could, "did cohabit" and in a third one, "did commit 
incest ") together and with one another, the said A. B. then 
and there knowing the said C. B. to be his daughter, and 
the said C. B. then and there knowing the said A. B. to be 
her father. 

Indecent Acts. 

ITT- Every one is guilty of an offence and liable, on suniniary conviction 
before two justices of the peace, to a fine of fifty dollars or to six months' 
imprisonment with or without hard labour, or to both fine and imprisonment, 
who wilfully — 

(a) In the presence of one or more persons does any indecent act in any 
place to which the public have or are permitted to have access ; or 

(6) Does any indecent act in any place intending thereby to insult or offend 
any person. 53 V. c. 37, s. 6. 

Section 6 of 53 V. c. 37, is unrepealed. Sub-section {h) is 
given as new by the Imperial Commission. See Archbold, 
1051 ; R. V. Holmes, Dears. 207; R. v. Wellard, 14 Q. B. D. 63. 

On an indictment at common law for indecent exposure 
of the person, Held, that the exposure must be in an open 
and public place, but not necessarily generally public and 
open ; if a person indecently exposed his person in a private 



Sees. 17«, 179] 



INDECENT ACTS, ETC. 



121 



yard, so that he might be seen from a public road where 
there were persons passing, an indictment would lie : R. v. 
Levasseur, 9 L. N. 386 ; Ex parte Walter, Ramsay's App. 
Cas. 183 ; R. v. Harris, 11 Cox, 659. 

See R V. Reed, 12 Cox, 1, post, under section 208 ; R. v. 
Crunden, Warb. Lead. Cas. 99. 

Acts op Gross Indkcknoy by a Male Person With Another Male. 

178. Eveiy male person is guilty of an indictable offence and liable to 
five years' imprisonment and to be whipped who, in public or private, commits, 
or is a party to the commission of, or procures or attempts to procure the 
commission by any male person of, any aot of gross indecency with another male 
person. 53 V. o. 37, s. 5. 48-49 V, c. 69, s. 11 (Imp.). 

Fine and sureties, section 958. Verdict of attempt on 
an indictment to commit the offence in certain cases, section 
711 ; see R. v. Jellyman, Warb. Lead. Cas. 57. 

The facts proved in R. v. Wollaston, 12 Cox, 180, would 
now be indictable under this section. So would the facts 
proved in R. v. Rowed, 3 Q. B. 180, A verdict of attempt to 
commit sodomy cannot be given on an indictment under 
this section. The indictment may simply charge that 
on at A. B., a male person, in public (in 

another count " in private ") committed {or ivas a pdrt}j to 
the commission of), (or procured), (or attempted to procure 
the commission of) an act of gross indecency with C. D., 
another male person. An indictment charging an attempt 
by a male person to commit an act of gi'oss indecency with 
another male person lies under section 529, post. Also 
under section 260, for an indecent assault by a male person 
on another male person. 

Publishing Obscene Matter. {New). 

179. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who knowingly, without lawful justification or excuse — 

(«) Publicly sells, or exposes for public sale or to public view, any obscene 
book, or other printed or written matter, or any picture, photograph, model 
or other object, tending to corrupt morals ; or 

[l] Publicly exhibits any disgusting object or any indecent show ; 

(c) Offers to sell, advertises, publishes an advertisement of, or has for sale 
or disposal any medicine, drug or article intended or represented as a means 
of preventing conception or causing abortion. 



•I- " ' !:■' 



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y. 



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122 



OFFENCES AGAINST MORALITY. 



[Sec. 180 



Sees. 181, 182] 



2. No one shall be convicted of any offeiKe in this section mentioned if he 
proves that the public good was served by the acts alleged to have been done. 

3. It shall be a question of law whether the occasion of the sale, publishing, 
or exhibiting is such as might be for the public good, and whether there is evi- 
dence of excess beyond what the public good requires in the manner, extent 
or circumstances in, to or under which the sale, publishing or exhibition h 
made, so as to afford a justification or excuse therefor ; but it shall be a qiieH- 
tion for the jury whether there is or is not such excess. 

4. The motives of the seller, publisher or exhibitor shall in all cases be 
irrelevant. 

Fine or sureties, section 958. Allegations in indict- 
ments, section 615. The corresponding article of the 
Imperial draft code covered obscene libels. 

" We believe that this section as to obscene publications 
expresses the existing law, but it puts it into a much more de- 
fiuite form than at present. We do not, however, think it desir- 
able to attempt any definition of obscene libel other than that 
conveyed by the expression itself." — Imp. Coram. Rep. 

Sub-section (c,) section 207, jiost, covers offences which, 
in certain cases, would fall under sub-section (h) of this sec- 
tion 179. 

See R. V. Bradlaugh, 3 Q. B. D. 607; Stephen's Cr. L. 
Art. 172 ; R. v. Adams, 16 Cox, 544, 22 Q. B. D. 66, Warb. 
Lead. Cas., 58 ; R. v. Saunders, 13 Cox, 116. 

Posting Immoral Books, Etc. 

ISO. Every one is guilty of an indictable offence and liable to two years' 
imprisonment who posts for transmission or delivery by or through the post— 

(«) Any obscene or immoral book, pamphlet, newspaper, picture, print, 
engraving, lithograph, photograph or other publication, matter or thing of an 
indecent or immoral character ; or 

('>) Any letter upon the outside or envelope of which, or any post card or 
post baud or wrapper upon whicli, there are words, devices, matters or things 
of the character aforesaid ; or 

(c) Any letter or ciroilar concerning schemes devised or intended to deceive 
and defraud the public or for the purjwse of obtaining money under false pre- 
tenses. R. S. C. c. 35, s. 103. (Amended). 47-48 V. c. 76, s. 4, (Imp.). 

Fine and sureties, section 958. Indictment, section G16. 

This section does not cover letters or writings of an 
immoral character. The posting to be indictable under this 
section must be made within Canada, but whether to be 



Sees. 181, 182] 



SEDUCTION, ETC. 



123 



delivered out of Canada or not is immaterial. 
.28 N. B. Rep. 564. 



R. V. McKay, 



Seduction of Girls Between Fourteen and Sixteen. 

181. Every one is gtiilty of an indictable offence and liable to two years' 
im))risonment who seduces or has illicit connection with any prirl of previously 
tliaste character, of or above the age of fourteen years and under the age of 
sixteen years. R. S. C. o. 157, s. 3 ; 53 V. c. 37, s. 3. {Amended). 48-49 
V. e. 09, 8. 5, (Imp.). 

Fine and sureties, section 958. Limitation, one year, 
section 551. One witness only not sufficient if not cor- 
roborated, section 684. 

Indictment. — . . . . that A. B. on ... . unlawfully 
f educed and had illicit connection with one C. D. a girl 
of previously chaste character, and then being of, (or above 
ike age of) fourteen years and under the age of sixteen 
years. 

As to evidence of age see R. v. Nicholls, 10 Cox, 476 , 
R. v. Weaver, L. R. 2 C. C. R. 85 ; R. v. Wedge, 5 C. & 
P. 298. 

If it is proved that the girl was under fourteen the 
prisoner must be acquitted. He may then be indicted 
under section 269. 

Previous chastity, according to a case in the United 
States, is not to be presumed ; it has to be proved. West 
V. The State, 1 Wis. 209; see Bishop, Stat. Cr. 639. A con- 
trary opinion is held in Archbold. The United States 
case seems to be correct. 

Seduction Under Promise of Marriage. 

188. Every one, above the age of twenty-one yeais, is guilty of an indict- 
able offence and liable to two years' imprisonment who, under promise of mar- 
riage, seduces and has illicit connection with any unmarried fem.ale of previously 
chaste character and under twenty-one years of age. 50-51 V. c. 48, a. 2. 

Fine, section 958. Limitation, one year, section 551. 

One witness must be corroborated, section 684 ; subse- 
quent marriage between the parties a good defence, section 

184, [Xew). 



ii 



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I i 



124 



OFFENCES AGAINST MORALITY. [Sees. 183, 184 



Indictment — That A. E. being then above the ago of 
twenty-one years, did seduce under promise of marriage one 
C, D. then an unmarried female of previously chaste char- 
acter and then being, the said C. D., under twenty-one years 
of age, and had illicit connection with her the said C. D. 

As to proof of a previous chaste character see under 
preceding section. If the man is married and the girl 
knows it there can be no offence under this section. The 
People v. Alger, 1 Parker, 333 , Bishop, Stat. Cr. 647. 

Seduction of Ward. 

183. Every one is guilty of an indictable offence and liable to two year«> 
imprisonment who, being a guardian, seduces or has illicit connection with his 
ward, and every one who seduces or has illicit connection with any woman or 
girl of previously chaste character and under the age of twenty-one years who 
is in his employment in a factory, mill or workshop, or who, being in a common 
employment with him in such factory, mill or workshop, is, in respect of her 
employment or work in such factory, mill or workshop, under or in any way 
subject to his control or direction. 53 V. o. 37, s. 4. 

Fine, section 958 ; limitation one year, section 551. 
Evidence of one witness must be corroborated, section G84. 
Subsequent marriage between the parties a defence, section 
184. Verdict of attempt in certain cases, section 711. 

The offence by a guardian on his ward need not have 
been seduction. Illicit intercourse with his ward consti- 
tutes an offence even if his ward was not of a previously 
chaste character. 

Indictment. — That on A. B. being the guardian of 

one C. D. unlawfully did seduce and have illicit connoction 
with the said C. D. his ward. {Add another count chdiylng 
illicit connection only.) 

The offence by an employer on his employee \6 seduc- 
tion ; the illicit connection must have been with a woman 
or girl of previously chaste character. Through an error, 
however, as the section reads, there is no offence what- 
ever of the kind provided for. 

Sbduction op Female Passengers on Vessels. 

184. Every one is guilty of an indictable offence and liable to a fine of 
our hundred dollars, or to one year's imprisonment, who, l>eing the master or 



Sec. 185] 



SEDUCTION, ETC. 



125 



other officer or a WAman or other |)er8on employed on board of any vessel, while 
juch vessel is in any water within the jurisdiction of the Parliament of Canada, 
under promise of marriage, or by threats, or by tlio exercise of his authority, 
or by solicitation, or the making of gifts or presents, seduces and has illicit con« 
nection with any female passenger. 

2. The subsequent intermarriage of the seducer and the seduced is, if 
pleaded, a go<xi defence to any indictment for any offence against this or either 
of the two next preceding sections, except in the case of a guardian seducing 
his ward. R. S. C. c. 65, s. 37. 

Evidence of one witness must be corroborated, section 
684, (Xew). 

Verdict of attempt in certain cases, section 711. 

Unlawfully Dkkilino Women. 

1 8 'I. Every one is guilty of an indictable oflfenoe, and liable to two years' 
imprisonment with hard labour, who — 

(a) Procures, or attempts to procure, any girl or woman under twenty-one 
years of age, not being a common prostitute or of known immoral character, to 
have unlawful carnal connection, either within or without Canada, with any 
other person or persons ; or 

(6) Inveigles or entices any such woman or girl to a house of ill-fame or 
assignation for the purpose of illicit intercourse or prostitution, or knowingly 
conceals in such house any such woman or girl so inveigled or enticed ; or 

(c) Procures, or attempts to procure, any woman or girl to become, either 
within or without Canada, a common prostitute ; or 

((/) Procures, or attempts to procure, any woman or girl to leave Canada 
with intent that she may becomean inmate of a brothel elsewhere ; or 

(e) Procures any woman or girl to come to Canada from abroad with intent 
that she may become an inmate of a brothel in Canada ; or 

(/) Procures, or attempts to procure, any woman or girl to leave her usual 
place of abode in Canada, such place not being a brothel, with intent that she 
may become an inmate of a brothel within or without Canada ; or 

(ij) By threats or intimidation procures, or attempts to procure, any woman 
or girl to have any unlawful carnal connection, either within or without 
Canada ; or 

(h) By false pretenses or false representations procures any woman or girl, 
not being a commcm prostitute or of known immoral character, to have any 
unlawful carnal connection, either within or without Canada ; or 

(i) Applies, administers to, or causes to be taken by any woman or girl any 
druif, intoxicating liquor, matter, or thing with intent to stupefy or overpower 
10 as thereby to enable any person to have unlawful carnal connection with ^.mo!> 
woman or girl. 53 V. a 39, a. 9 ; R. S. C. c. 157, a. 7. 

Limitation, one year, section 551. Fine, section 958. 

The 53 V. c. 39, cited under this section, is an Act 
respecting the Toronto Board of Trade. 



If 



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126 



OFFENCES AGAINST MORALITY. 



[Sec. 185 



Search warrant, section 574. Evidence of one witness 
must be corroborated, section 684. As to indictments 
charging false pretenses, fraud or fraudulent means, section 
616. 

This section is a re-enactment of sections 2 & 3 of 
48-49 V. c. 69, (Imp.) except (b) which is taken from section 7, 
chapter 157, R. S. C. Under (a) and (6), the woman or girl 
must be under twenty-one years of age. 

Forms of indictments. — (A) . . . that A. B., on etc., 
at etc., unlawfully did procure (or attempt to procure) one 
C. D,, a girl {or ivoman) then being, the said C. D., under 
the age of twenty-one years, and not a common prostitute or 
of known immoral character, to have unlawful carnal con- 
nection with another person (or other persons.) 

(B) . , . that A. B., on .... at ... . 
unlawfully inveigled and enticed one C. D., a girl (or woman] 
then being under the age of twenty-one years, she the said 
C. D. not b<Mng then a common prostitute or of known im- 
moral ch-.('ter, to a house of ill-fame (or assignation) for 
the purpose of illicit intercourse and prostitution . . . 

. . {or, that on .... at A. B. 

unlawfully concealed in a house oi iW-fame {or assignation) 
one C. D , a girl (or tvoman) then being, the said C. D., un- 
der the age of twenty-one years and not a common prosti- 
tute or of known immoral character, and which said C. D. 
had been unlawfully inveigled and enticed to the said house 
of ill-fame (or assignation) for the purpose of illicit inter- 
course and prostitution). ... 

(C.) .... That the said A. B., on etc., at etc., un- 
lawfully did procure {or attempt to procure) one C. D., a 
woman (or girl) to become a common prostitute : R. v. Mc- 
Namara, 20 O. R. 489. 

(D.) "^hat the said A. B., on etc., at etc., unlaw- 

fully did procure (or attempt to procure) C. D., a woman 
(or girl) to leave Canada with intent unlawfully that she 
might become an inmate of a brothel elsewhere. 



Sec. 1S6] 



SEDUCTION, ETC. 



127 



{E) that A. B.,at . . . 

.on . . . . unlawfully procured {or attempted to 
procure) one C. D. a woman (or girl) to come to Canada 
from abroad with intent unlawfully that she might become 
an inmate of a brothel in Canada. 

(F) . . . that on ... at ... A. B., un- 
lawfully procured (or attempted to procure) C. D., a woman 
(or girl) to leave her usual place of abode in Canada, tO' 
wit, at {naming her abode) such place not being a brothel, 
with intent that she should for the purposes of prostitution 
become an inmate of a brothel. 

(G.) . . . . That A. B. on etc., at etc., unlawfully by 
threats {or i^itiTnidation) procured {or attempted to procure} 
C. D., a woman {or girl) to have unlawful carnal connec- 
tion with men. 

(H.) .... That A. B. by false pretenses {or false 
representations) unlawfully procured C. D., a woman (or 
(j'lrl) not being a common prostitute or of known immoral 
character, to have unlawful carnal connection with men. 

(/.) That A. B. on, etc., at etc., unlawfully applied to 
{or administered to, or caused to be taken by) C. D., a 
woman (or girl) a certain drug, intoxicating liquor (or 
matter or thing) with intent to stupefy (or overpower) her 
so as thereby to enable a man to have unlawful carnal con- 
nection with her the said C. D. 

Parent or Guardian Puocurino Defilement of Ward. 

186. Every one who, being the parent or guardian of any girl or 
womim, — 

((() Procures such girl or woman to have carnal connection with any man 
other than the procurer ; or 

(/)) Orders, is party to, permits or knowingly receives the avails of the 
defilement, seduction or prostitution of such girl or woman, 

Ispfuiltyof an indictable otfence, and- liable to fourteen years' imprison- 
ment if such girl or woman is under the age of fourteen years, and if such giri 
or woman is of or above the age of fourteen years to five years' imprisonment. 
53 V. c. 37, 8. 9. 

Limitation, one year, section 551. One witness must be- 
corroborated, section 684. 



128 



OFFENCES AGAINST MORALITY. 



[Sec. 187 



A stranger to a girl under fourteen is liable to imprison- 
Tnent for life if he procures such girl to have carnal con- 
nection with any man : sections 61-269 ; but a mother who 
so procures her child to have carnal connection with a man 
is punishable hy fourteen years only. And, in the case of a 
girl between fourteen and sixteen, the mother who procures 
her prostitution is punishable by five years whilst a stranger 
is liable only to two ; sections 61-181. This last provision 
is not a wrong one taken by itself, but to find it in the same 
section with the firat one shows with what carelessness this 
legislation has been enacted. For a mother to procure the 
prostitution of her daughter is less criminal than if done by a 
stranger to her daughter, if that daughter is less than four- 
teen years old. But when the daughter is over fourteen 
and less than sixteen, the procurement of her prostitution by 
her mother is more criminal than if done by a stranger ! 
and a guardian who is accessory to the prostitution of his 
seventeen years old ward is liable to five years, but only to 
two years if he himself seduces that ward : ss. 183-186. 

HouaEHOLDER PERUITTINa DeBAUOUBRT ON HiS PREMISES. 

ISY. Every one who, being the owner and occupier of any premises, or 
having, or acting or assisting in the management or control thereof, inducoa 
or knowingly suffers any girl of such age as in this section mentioned to resort 
to or be in or upon such premises for the purpose of being unlawfully and 
carnally known by any man, whether such carnal knowledge is intended to be 
with any particular man, or generally, is guilty of an indictable offence and— 

(a) Is liable V) ten years' imprisonment if such girl is under the age of 
fourteen years ; and 

(b) Is liable to two years' imprisonment if such girl is of or above the age 
of fourteen and under the age of sixteen years. R. S. C. o. 157, s. 5 ; 53 V. 
0. 37, 8. 3 ; 48-49 V. o. 69, s. 6, (Imp.). 

Limitation, one year, section 551. One witness must be 
corroborated, section 684. 

A proviso in the Imperial Act, and in chapter 157 of the 
R S. C. 8. 5, making it a sufficient defence if it appears that 
the accused had reasonable cause to believe that the girl 
was above sixteen, has been struck out : see K. v. Packer, 
16 Cox, 57 ; R. v. Prince, 13 Cox, 138, Warb. Lead. Cas.89. 



li '■:!;. 



Sec. 188] 



SEDUCTION, ETC. 



129 



il i 



Indictment under (a) .... that A, B., on . . . . then 
being the owner and occupier (the Imperial statute has 
("or occupier") (or having, or acting, or assisting in the 
management or control) of certain premises, to wit, a house 
(describe it by street and number, or as oninutely as pos- 
sible) did unlawfully induce (or unlawfully and knowingly 
suffered) a certain girl, to wit, one C. D., then being under 
the age of fourteen years, to resort to (or to be in, or upon) 
the said premises for the purpose of being unlawfully and 
carnally known by a man named W. M. (or by a man) or 
by men generally. Vary in different counts. If it is proved 
that the girl is above fourteen, but under sixteen, the con- 
viction may be under (b) : see R. v. Webster, 16 Q. B. D. 
136 ; R. V. Barrett, L. & C. 263, and R. v. Stannard, L. & C. 
349. If it is proved that the girl is above sixteen the con- 
viction may be, if the evidence warrants it, under section. 
185. 

Conspiracy to Defile. (New). 

1§8. Every one is gwilty of an indictable offence and liable to two years' 
imprisonment who conspires with any other person by false pretenses, or false 
rei)resentations or other fraudulent means, to induce any woman to commit 
adultery or fornication. 

Fine, section 958 ; requirements of indictment, section 
616 ; one witness must be corroborated, section 684 : See 
R. v. Lord Grey, 3 St. Tr. 519 ; R. v. Mears, 2 Den. 79 ; 
R. v. Delaval, 3 Burr. 1435. Adultery is an indictable 
offence in New Brunswick : R. v. Egre, 1 P. & B. 189 ;.. 
R. V. Ellis, 22 N. B. Rep. 440. But it being unlawful, thougli 
not indictable in the other provinces, the above section has 
only the effect of reducing the punishment which, on an 
indictment at common law, for such conspiracy would be. 
punishable by five years under section 951. 

Indictment for conspiracy to procure a woman to 
have illicit connection with a num. — That A. B. and 
C. J)., being persons of wicked and depraved mind and dis- 
position, and contriving, craftily and deceitfully, to debauch 
and corrupt the morals of E, F., a woman, on the day 

Cbim. Law — {» 









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130 



OFFENCES AGAINST MORALITY. [Sees. 189, 190 



of , did conspire, combine, confederate, 

and agree together, wickedly, knowingly, designedly, and 
unlawfully, by false pretenses, false representations, and 
other fraudulent means, to induce the said E. F. to have 
illicit carnal connection and commit fornication with a man, 
whose name is to the jurors unknown, {or with A. D.). 

CARN.'iLLy Knowing Idiots. 

ISO* Every one is guilty of an indictable offence and liable to four years' 
imprisonment who unlawfully and carnally knows, or attempts to have unlaw- 
ful carnal knowledge of any female idiot or imbecile, insane or deaf and dumb 
woman or girl, under circumstances which do not amount to rape but which 
prove that the offender knew, at the time of the offence, that the woman or 
girl was an idiot, or imbecile, or insane or deaf and dumb. R. S. C. c. 157, s. 3. 
50-51 V. c. 48, 8. 1. 48-49 V. c. 69, s. 5, (Imp.). 

The words in italics are new : see R. v. Berry, 
1 Q. B. D. 447. Fine, section 958 ; one witness must be 
corroborated, section 684; verdict of attempt in certain 
cases when full offence charged, section 711. 

Indictment. — .... that A. B. on . . . . 
at . ... unlawfully did indecently assault, and 
unlawfully and carnally did know (or did attempt to have 
unlawful carnal knowledge of) a certain female idiot 
called C. D. {or imbecile and insane woman or girl) called 
C D. {or deaf and dumb ivoman or girl) called C. D. 
under circumstances that do not amount to rape, he, the 
said A. B., well knowing at the time of the said offence that 
the said woman {or girl) was an idiot, or {as tlie case 
may be.) 

See E. V. Pressy, 10 Cox, 635, and R. v. Arnold, 1 Russ. 9. 

Consent by the female is not a defence. A verdict of 
common ansault or indecent assault may be given, section 
713, but not a verdict of attempt to commit rape. If rape 
or attempt to commit rape is proved the judge may order 
that the offender be indicted accordingly. 

Prostitution of Indian Women. 

190« Every one is guilty of an indictable offence and liable to a penalty 
not exceeding one hundred dollars and not less than ten dollars, or six 
months' imprisonment — 



Sec. 191] 

(a) Who, b 
any unenfranch 
warn, knowing c 
is in or remains 
tuting herself tl 

(b) Who, be 

(c) Who, be 
found in a disorc 

2 Every pen 
the person who h 
which any such ; 
herself therein, is 
13 not in fact the 
c. 33, s. 11. 

Section 6t 
tiie enactmen 
Indians. The 



*"!• A comm( 
legal duty, which ac 
or comfort of the jhi 
or enjoyment of .iny 

4 Blac. Com 
1^(J cf seq, and 
184; R. V.Med 
R- V. Lister, Dej 
702 ; R. V. Bre^v 
« 0. R 583 ; R 
10L.C.R117; 
15 Q. L. R 147 ; 
Mayor of St. Jo 
^'iiisance, 102G, 






Sec. 191] 



SEDUCTION, ETC. 



131 



(a) Who, being the keeper of any house, tent or wigwam, allows or suffers 
any unenfranchised Indian woman to be or remain in such house, tent or wig- 
wam, knowing or hftving £)robable cause for believing that such Indian woman 
is in or remains in such house, tent or wigwam with the intention of prosti- 
tuting herself therein ; or 

(6) Who, being an Indiin woman, prostitutes herself therein ; or 

(c) Who, being an unenfranchised Indian woman, keeps, frequents or is 
found in a disorderly house, tent or wigwam used for any such purpose. 

2 Every person who appears, acts or behaves as master or mistress, or as 
the person who has the care or management, of any house, tent or wigwam in 
which any such Indian woman is or remains for the purpose of prostituting 
herself therein, is deemed to be the keeper thereof, notwithstanding he or she 
13 not in fact the real keeper thereof. R. S. C. c. 43, ss. 106 & 107. 50-51 V. 
c. 33, s. 11. 

Section Q84:,post, applies. Under c. 33, s. 11, 50-51 V. 
tlie enactment contained in this sectioi> applied only to 
Indians. The word " unenfranchised " is new. 



:!,;; .ijii!;; 






iT 



I'AUT XIV. 

NUISANCES. 

Common Nuisanx'e. 

Iftl • A common nuisance is an unlawful act or omission to discharge a 
legal chity, which act or omission endangers the lives, safety, health, property 
or comfort of the jniblic, or by which the public are obstructed in the exercise 
or t'lijoymcut of any right connuim to all Her Majesty's subjects 

4 Blac. Coinm. 1G6 : 1 lluss. 421 ; Stephen's Cr. L. Art. 
17G et seq, and cases there cited ; 11. v. JVIoorc, 3 B. ^: C. 
184 ; R. V. Medley, G C. & P. 292 ; R. v. Henson, Dears. 24 ; 
R. V. Lister, Dears. & B. 209 ; R. v. Stephens, L. R. 1 Q. B. 
702 : R. V. Brewster, 8 U. C. C. P. 208 ; Hillyard v. G. T. R. 
8 0. R. 583; R. v. Duiiiop, 11 L. C. J. 18G; R. v. Bruce, 
10 L. C. R. 117;' R. v. Patton, 13 L. C. R. 311 : R. v. Brice, 
15 Q. L. R. 147 ; Brown & Gu^y, 14 L. C. R. 213 ; R. v. The 
Mayor of St. John, Chipnian MSS. 155 ; 3 Burn's Just. v. 
Nuisance, 102G, 10G8. 



132 



NUISANCES. 



[Sec. 191 



"With regard to nuisances we have, in section 151 and 
section 152, (192, 193, post), drawn a line between such nuisances 
as are and such as are not to be regarded as criminal offences. 
It seems to us anomalous and objectionable upon all grounds that 
the law should in any way countenance the proposition that it is 
a criminal oflfence not to repair a highway when the liability to 
do so is disputed in perfect good faith. Nuisances which en- 
danger the life, safety, or health of the public stand on a differ- 
ent footing." 

" By the present law, when a civil right such as a right of 
way is claimed by one private person and denied by another, the 
mode to try the question is by an action. But when the right 
is claimed by the public, who are not competent to bring an 
action, the only mofle of trying the question is by an indictment 
or information, which is, in form, the same as an indictment or 
information for a crime. But it was very early determined that, 
though it was in form a prosecution for a crime, yet that, as it 
involved a remedy for a civil right, the Crown's pardon could 
not be pleaded in bar : see 3 Inst 237. And the legislature, so 
recently as in the statute 40 and 41 V. c. 14, (allowing defend- 
ant to i^e a witness) again recognized the distinction." 

*• The existing remedy in such cases is not convenient, but it 
is not within our province to suggest any amendment." — Imp. 
Comm. Rep. 

Indictment. — that A. B on 

and on divers other days and times as well before as after- 
wards, at (set forth the nuisance) (the clefendavt 

will he entitled to particulars. R. v. Purwood, S Ad. & 
El. 815, sections 611, 629, post) and the same nuisance so 
as aroresaid done, doth yet continue and suffer to remain 
to the great damage and common nuisance of all the liege 
subjects of Her Majesty. And the jurors aforesaid present 
that the said A. B. on the day and vear aforesaid did com- 
mit a common nuisance which endangered the lives, safety, 
health, property or comfort (as the case may be) of the 
public (or by which the pxdMc are obstructed in the 
exercise or enjoyment of a right common to all Her Ma- 
jesty's subjects, to wit, the rir/ht of) to the great damage and 



Sees. 192-196] 



NUISANCES. 



133 



common nuisance of all the subjects of Her Majesty, 
Special forms in 3 Burn, loc. clt.; R. v. Lister, Dears. & B. 
209 ; R. V. Mutters, L. & C. 491, Saunder's Precedents, 192, 
et aeq. 

Penalty fob Common Nuisance. (New). 

192* Every one is guilty of an indictable offence and liable to one year's 
imprisonment or a fine who commits any common nuisance which endangers 
the lives, safety or health of the public, or which occasions injury to the person 
of any individual. 

See under preceding section. The words in italics are 
new law. They are in contradiction with the definition 
given in the preceding section. 

Nuisances of a Pabticular Chabacteb. (New). 

103* Any one convicted upon any indictment or information for any 
common nuisance other than those mentioned in the preceding section, shall 
not be deemed to have committed a criminal offence ; but all such proceedings 
or judgments may be taken and had as heretofore to abate or remedy the 
mischief done by such nuisance to the public light. 

See annotation under section 191, ante. 

Selling Things Unfit fob Food. (New). 

194> Every one is guilty of an indictable offence and liable to one year's 
imprisonment who knowingly and wilfully exposes for sale, or hap in his pos- 
session with intent to sell, for human food, articles which he knows to be unfit 
for human food. 

2. Every one who is convicted of this offence after a previous conviction 
for tlie same crime shall be liable to two years' imprisonment. 

Fine, section 958. A common law misdemeanour: see 
Shillito V. Thompson, 1 Q. B. D. 12 ; 1 Russ. 169, and cases 
there cited. The offence is already covered by chapter 107, 
R S. C: Form, 2 Chit. 555. 

Common Bawdy House Defined. (New). 

lt)5> A common bawdy- liouse is a house, room, set of rooms or place of 
any kind kei)t for purposes of prostitution. 

Common Gaming House Defined. (New). 
1<)6« A common gaming-house is — 

(ii) A house, room or place kept by any person for gain, to which (lersona 
resort for the puri^se of playing at any game of chance ; or 

(>)) A house, room or place kept or used for playing therein at any game of 
chance, or any mixed game of chance and skill, in which — 






134 



NUISANCES. 



[Sees. 107, 198 



(i) A bank is kept by one or more of the players exclusively of the 
others ; or 

(ii) In which any game is played the chances of which are not alike 
favourable to all the players, including among the players the banker or 
other person by whom the game is managed, or against whom the game is 
managed, or against whom the other players stake, play or bet. 8-9 V. 
c. 109, s. 2 (Imp.). 

Every place where gaming in stocks is carried on is a 
gaming hou^j : ss. 198 and 201, pos^, and notes thereunder ; 
see Jenks v. Turpin, 13 Q. B. D. 505. 

Common Betting Housb Defined. 

197* A common betting-house is a house, office, room or other place — 

(rt) Opened, kept or used for the purpose of betting between persons 
resorting thereto and — 

(i) The owner, occupier, or keeper thereof ; 

(ii) Any person using the same ; 

(iii) Any person procured or employed by, or acting for or on behalf 
of, any such person ; 

(iv) Any person having the care or management, or in any manner 
conducting the business thereof ; or 

(6) Opened, kept or used for the purpose of any money or valuable tiling 
being received by or on behalf of any such person as aforesaid, as or for the 
consideration, 

(i) For any assurance or undertaking, express or implied, to pay or 
give thereafter any money or valuable thing on any event or contingency 
of, or relating to, any horse-race or other race, fight, game or sport ; or 

(ii) For securing the paying or giving by some other person of any 
money or valuable thing on any such event or contingency. l(i-17 V. c. 
Ill) ( Imp.). 

See Doggett v. Catterns, 19 C. B. N. S. 765 ; Haigli v. 
SheffieM, L. B. 10 Q. B. 102; R. v. Preedy, 17 Cox, 488; 
Whitelmrst v. Fincher, 17 Cox, 70; Davis v. Stephenson, 17 
Cox, 73; Snow v. Hill, 15 Cox, 737, 14 Q. B. D. 588 ; Ovm- 
inada v. Hulton, 17 Cox, 307 ; Hornsby v. Raggett, 17 Cox, 
428. 
Bawdy-House, Common Gaming or Betting-Housk, Punishment. (Niw). 

10S« Every one is guilty of an indictable offence and liable to one year's 
imprisonment who keeps any disorderly house, that is to say, any common 
bawdy-house, common gaming-house or common betting-house, as hereinl*fore 
defined. 

2. Any one who appears, acts, or behaves as master or mistress, or a« the 
person having the care, government or management, of any disorderly house 
shall be deemed to be the keeper thereof, and shall lie liable to be prosecuted 



Sees. 199, 200] 



NUISANCES. 



135 



and punished as such, although in fact he or she is not the i-eal owner or keeper 
thereof. 25 Geo. II. c. .S6, s. 8. 16-17 V. o. 119. 17-18 V. c. 38 '" .p.). 

A common law misdemeanour. Ss. 9 & lu of chapter 
158, R. S. C, "a,n Act respecting Gaming Houses," as to 
evidence in such cases, are unrepealed. Fine, s. 958. S. 
207, post, also provides for the offence of keeping a dis- 
orderly house. 

Section 575, 2^ost, as to search warrants ; ss. 702, 703, 
as to evidence in such cases, and ss. 783 & 784, as to sum- 
mary trial. 

Husband and wife may be indicted together: R. v. 
Williams, 1 Salk. 3S3 ; R. v. Dixon, 10 Mod. 335 ; R. v. 
Warren, 10 O. R. 590. *SVe R. v. Crawshaw, Bell, 303; R. 
V. Barrett, L. & C. 263 ; R. v. Rogier, 1 D & R. 284 ; Jenks 
V. Turpin, 13 Q. B. D. 505 ; R. v. McNamara, 20 O. R. 489 ; 
R. V. Stannard, L. & C. 349 ; R. v. Newton, 11 Ont. P. R. 
101 ; R. V. Rice, Warb. Lead. Cas. 101, as to Avhat is a 
bawdy house, or a common gaming house. 

Playing or Looking on in Gaming-Holse. 

199< Every one wlio plays or looks on while any other jierson is playing 
in a eoiniuon R'unincr-liouse is guilty of an otfcnco and liable, on summary con- 
viction before two justices of the ^leace, to a penalty not exceeding one hundred 
dollars and not less than twenty dollars, and in default of payment to two 
months' imprisonment. R. S. C. c. 1.58, s. 6. 

See. R. V. Murphy, 17 O. R. 201 

Obstructing Peace Okfickr Entering Gaming-Hocse. 

300. Every one is guilty of an offence and liable, on summary conviction 
l»fore two justices of the peace, to a penalty not exceeding one hundred dollars, 
and to six months' imprisonment, with or without hard labour, who — 

(d) Wilfully i)revents any constable or other officer duly authorized to 
cntu- any disorderly house, as mentionetl in section one hundred and ninety- 
eight, from entering the samo or any part thereof ; or 

(!>) Obstructs or delays any such constable or officer in so entering ; or 

(c) By any bolt, chain or other contrivance secures any external or internal 
door of, or means of access to, any counnon gaming-house so authorized to be 
entered ; or 

((/) Uses any means or contrivance whatsoever for the purpose of prevent- 
inc:, obstructing or delaying the entry of any constable or officer, authorized as 
ufori'said, into any such disorderly house or any part thereof. R. S. C. c. 158, 



f 



136 



NUISANCES. 



[Sees. 201-203 



Gaming in Stocks and Mekchandise. 

S01« Every one is guilty of an indictable offence and liable to five years' 
iinprisonment, and to a* line of five hundred dollars, who, with the intent to 
make gain or profit by the rise or fall in price of any stock of any incoriwrated 
or unincorporated company or undertaking, either in Canada or elsewhere, or 
of any goods, wares or merchandise— 

(«) Without the bona fide intention of acquiring any such shares, goods, 
wares or merciiandise, or of selling the same, as the case may be, makes or 
signs, or authorizes to be made or signed, any contract or agreement, oral or 
written, purporting to be for the sale or purchase of any such shares of stock, 
goods, wares or merchandise ; or 

{h) Makes or signs, or authorizes to be made or signed, any contract or 
agreement, oral or written, purporting to be for the sale or purchase of any 
such shares of stock, goods, wares or merchandise in resi^ect of which no 
delivery of tlie tiling sold or purchased is made or received, and without tlie 
honafidc intention to make or receive such delivery. 

2. But it is not an offence if the broker of the purchaser receives delivery 
on his behalf, of the article sold, notwithstanding that such broker retains or 
pledges the same as security for the advance of the purchase money or any 
part thereof. 

o. Every office or place of business wherein is carried on the business of 
making or signing, or procuring to be made or signed, or negotiating or bar- 
gaining for the making or signing of such contracts of sale or purchase as are 
prohibited in this section is a common gaming-house, and every one who as 
principal or agent occupies, uses, manages or maintains the same is tlie keeper 
of a common gaming-house. 51 V. c. 42. ss. 1 & 3. 

This is a re-enactment of the Act against bucket shops. 
Sec section 704, jjost, as to evidence. 

FaEyuENTiNO Places Where Gaming in Stock8 is Carried on. 

303* Every one is guilty of an indictable offence and liable to one 
year's imurisonuieiit wiio habitually frequents any office or place wherein the 
Hulking or siijiiing, or procuring to be made or signed, or the negotiating or 
l)i\rg;dning for the making or signing, of such contracts of sale or purcha.«eas 
lire mentioned in the section next preceding is carried on. 51 V. c. 42, s. 1. 



Fine, section 958. 

(iAMBLlNG IN PUDLIC CONVEYANCES. 

SOiti Every one is guilty of an indictable offence and liable to one year's 
imprisoniiicnt who — 

(") In any railway car or steamboat, used as a public conveyance for 
passengers, by means of any game of cards, dice or other instrument of 
gambling, or by any device of like character, obtains from any other person 
any money, chattel, valuable security or projHjfty ; or 

(b) Attempts to commit such offence by actually engaging any i^erson in 
i.ny :juch game with intent to obtain money or other valuable thing from him. 



Sec. 204] 



BETTING AND POOL-SELLING. 



137 



2. Every conductor, master or superior officer in charge of, and every 
clerk or employee when authorized by the conductor or superior officer in 
charge of, any railway train or steamboat, station or landing place in or at 
which any such offence, as aforesaid, is committed or attempted, 7nust, with or 
without warrant, arrest any person whom he has good reason to believe to have 
committed or attempted to commit the same, and take him before a justice of 
the i>eace, and make complaint of such offence on oath, in writing. 

3. Every conductor, master or sui^erior officer in charge of any such 
railway car or steamboat, who makes default in the discharge of any such duty 
is liable, on summary conviction, to a iienalty not exceeding one hundred 
dollars and not less than twenty dollars. 

4. Every company or iierson who owns or works any such railway car or 
steamboat must keep a copy of this section posted up in some conspicuous 
part of such railway car or steamboat. 

5. Every company or person who makes default in the discharge of such 
duty is liable to a ijenalty not exceeding one hundred dollars and not less than 
twenty dollars. R. S. C. c. 160, ss. 1, 3, 6. (A mended). 

Fine, section 958. 

Betting and Pool-Selling. 

304. Every one is guilty of an indictable offence, and liable to one year'i* 
imprisonment, and to a fine not exceedi;:<? one thousand dollars, who 

(a) Uses or knowingly allows any part of any premises under his control to 
be used for the purpose of recording or registering any bet or wager, or selling 
any uool ; or 

(h) Keeps, exhibits, -ji' employs, or knowingly allows to be kept, exhibited 
or employed, in any part of any premises under his control, any device or 
appa/atus for the purpose of retiording any bet or wager, or selling any pool ; 
or 

((■) Becomes the custodian or depositary of any money, property or valu- 
able thing staked, wagered or pledged ; or 

( /) Records or registers any bet or wager, or sells any pool, upon the 
result— 

(i) Of any political or municipal election ; 

(ii) Of any race ; 

(iii) Of any contest or trial of skill or endurance of man or boast. 

2. The provisions of this section shall not extend to any person by reason 
of Ills becoming the custodian or depositary of any money, property or valuable 
tliiiijf staked, to be paid to the winner of any lawful race, sport, game, or 
exorcise, or to the owner of any horse engaged in any lawful race, or to bets 
between individuals or viade on the race course of an incorporated association 
dunntj the actual progress of a rice meeting. R. S. C. c. 159, s. 9. 

The words in italics are new. Section 783, j)Ost, as to 
summary trial of offences under this section : see Fulton v. 
James, 5 U. C. C. P. 182; R. v. Dillon, 10 Ont. P. R 352; R. 
V. Smiley, 22 O. R. 686. 



1 1 1 



138 



NUISANCES. 



LoTTKRlEa. 



[Sec. 205 



\¥''4^^ 



90{|« Kvery one is guilty of an indictable offence and liable to two yean* 
imprisitnmo.nt and to a Jine not excecdin;/ two thousand dollars, wlio — 

{a) Makes, printH, advertises or publishes, or causes or procures to be 
made, printed, advertised or jjublished, any proiwsal, scheme or plan for 
advancing, lending, giving, selling or in any way disposing of any property, by 
lots, cards, tickets, or any mode of chance whatsoever ; or 

{b) Sel's, barters, exchanges or otherwise disposes of, or causes or procures, 
or aids or assists in, the sale, barter, exchange or other disposal of, or offers 
for sale, barter or exchange, any lot, card, ticket oi otiier means or device for 
advancing, lending, giving, selling or otherwise disixisiuj of any property by 
lots, tickets or any mode of chance whatsoever. 

2. Every one is guilty of an offence and liable on summary conviction to 
a penalty of twenty dollars, who buys, takes or receives any such lot, ticket or 
other device as aforesaid. 

3. Every sale, loan, gift, barter or exchange of any property, by any 
lottery, ticket, card or other mtxlo of chance depending upon or to be deter- 
mined by chance or lot, is void, and all such property so sold, lent, given, 
bartered or exchange.!, is liable to be forfeited to any person who sues for the 
same by action or information in any court of competent jurisdiction. 

4. No such forfeiture shall affect any right or title to such property 
acquired by any bunajide purchaser for valuable consideration, without notice. 

5. This section includes the printing or publishing, or causing to be 
printed or published, of any advertisement, scheme, proposal or plan of any 
foreign lottery, and the sale or offer for sale of any ticket, chance or sliaru in 
any 8v.oh lottery, or the advertisement for sale of such ticket, chance or share. 

6. This section does not apply to — 

(a) The division by lot or cliance of any property by joint tenants or 
tenants in common, or persons having joint interests (droits indivis) in any 
such property ; or 

(b) Raffles for prizes of small value at any bazaar held for any charit.able 
object, if permission to iiold the sa!no has been obtained from the city or other 
municipal council, or from the Mayor, reeve or otiior chief officer of the city, 
town or other municipality, wherein such bazaar is held and the articles 
raffled for thereat have first been offered for sale and none of them are of a 
value exceeding fifty dollars ; or 

(c) Any distribution by lot among the members or ticket holders 
of any incorporated society established for the encouragement of art, of any 
paintings, drawings or other work of art produced by the labour of the mem- 
bers of, or published by or under the direction of, such incorporated society. 

(d) The Credit Fonder du Jias-C'anada or to the Credit Foncier Fruncn- 
C'anadien. R. S. C. c. 159. 

" Property " defined, section 3. The words in italics are 
new. By the repealed statute the penalty was only twenty 
dollars punishable on summary conviction : see s. .575, as to 



.Sec. 20(!] 

■search warr 
Widder, 16 1 
Power V. Ca 
Villeneuve, i 

Mis 

SOO. Everj 

imprisonment wh 

(«) Without I 
upon him by law 
dead human body 

{b) Impropcrl; 
dead human body 

A common 
a dead body ) 
offence ; R. y 
Q. B. J). 2-17 ; 
079, Wurl). Le 
R. V. Feist, Dei 

Indictment 
of in 

yard of and be] 
in th 
wilfully did br€ 
tl.e body of one 
interred, and th 
'li'l (bV open, an 
^'I'ave aforesaid 
tJien take and 
""y^e»."),afulind( 
body : Jrd coim 
ileceiitlv." 



Sec. 20<i] 



MISCONDUCT— DEAD BODIES. 



130 



search warrants: R. v. Dodda, 4 O. R. 390; Cronyn v. 
Widder. 16 U. C. Q. B. 356; R. v. Jamieson, 7 O. R. 149 ; 
Power V. Canift, 18 U. C. Q. B. 403 ; L*i Socit^te St. Loui.s v. 
Villeneuve, 21 L. C. J. 309 ; R. v. Crawshaw, Bell, 303. 

Misconduct in Respect of Dea» Bodies. {Xew). 

300> Every one iti guilty of an indiutoble ofTenoe and liable to five yeara' 
imprisonment who — 

(a) Without lawful excuse, neglects to perfonn any duty either imposf d 
upon him by law or undertaken by him with reference to the burial of any 
deivd human body or human remains ; or 

('') Impioperly or indecently interferes with or offers any indignity to any 
dead human body or human remains, whether buried or not. 

A common law offence. Fine, section 958. To di*; up 
a dead body and sell it for purposes of dissection is an 
offence : R. v. Lynn, 1 Leach, 497. See R. v. Price, 12 
Q. B. I). 247 ; R. v. Stephenson, 13 Q. B. D. 331, 15 Cox, 
(j79, Warb. Lead. Cas. 97 , R. v. Sharpe, Dears. & B. 160 ; 
R. V. Feist, Dears. & B. 590. 

Iiullctment — that A. B. on the day 

of in the year of our Lord the church- 

yard of and belonging to the parish church of the parish of 
in the said county of unlawfully and 

wilfully did break and enter, and the grave there in which 
tl.e body of one C. D., deceased, had lately before then been 
interred, and there was, unlawfully, wilfully and indecently 
(lid dig open, and the body of him the said C. D. out of the 
(jrave aforesaid, unlawfully, wilfully and indecently did 
tiien take and carry away ; 2i}d count {((ftcf 

"iipcii"),iind indecently interfered with the said dead human 
Iwdy: 'ivd count, charging "improperly" instead of "in- 
decently." 



vl 



140 



VAGRANCY. 



[Sees. 207, 208 




PART XV. 

VAGRANCY. 

307* Every one is a loose, idle or disorderly person or vagrant who— 
(a) Not having^ any visible means of maintaining himself lives without 

employment ; 

{b) Being able to work and thereby or by other means to maintain himself 

and family wilfully refuses or neglects to do so ; 

(c) Openly exposes or exhibits in any street, road, highway or public place 
hny indecent exhibition. (Amended). 

{d) Without a certificate signed, within six months, by a priest, clergyman 
or minister of the Gospel, or two justices of the peace, residing in the munici- 
pality where the/alms are being asked, that he or she is a deserving object of 
charity, wanders about and begs, or goes about from door to door, or places 
himself or herself in any street, highway, passage or public place to beg or 
r jceive alms ; 

(e) Loiters on any street, road, highway or public place, and obstructs 
passengers by standing across the footpath, or by using insulting language, or 
in any other way ; 

(/) Causes a disturbance in or near any street,, road, highway or public 
place, by screaming, swearing or singing, or by being drunk, or by impeding 
or incommoding peaceable passengers ; 

iff) By discharging firearms, or by riotous or disorderly conduct in any 
street or highway, wantonly disturbs the peace and quiec of the inmates of any 
dwelling-house near such street or highway; 

{h) Tears down or defaces signs, breaks windows, or doors or door plates, 
or the walls of houses, roads or gardens, or destroys fences ; 

(i) Being a common prostitute or night walker, wanders in the fields, 
public streets or highways, lanes or places of public meeting or gathering of 
people, and does not give a satisfactory account of herself ; 

ij) Is a keeper or inmate of a disorderly house, bawdy-house or house of 
ill-fame, or house for the resort of prostitutes ; 

(k) Is in the habit of frequenting such houses and does not give a satis- 
factory account of himself or herself : o> 

(/) Having no peaceable profession or calling to maintain himself by, for 
the most part supports himself by gaming or crime, or by the avails of prosti- 
tution. R. S. C. c. 157, 8. 8. 

SOS* Every loose, idle or disorderly person or vagrant is liable, on sum- 
mary conviction before two justices of the peace, to a fine not exceeding fifty 
dollars or to imprisonment, with or without hard labour, for any tenn not 
exceeding six months, or to both. R. S. C. c. 167, s. 8. 



Sec. 208.] 



VAGRANCY. 



141 



The following section of c. 157, R. S. C. is unrepealed 
by section 983 and appendix, though repealed by schedule 2. 

(4) If provision is made therefor by the laws of the province in which the 
conviction takes place, any such loose, idle or disorderly person may, instead 
of being committed to the common gaol or other public prison, be committed 
to any house of industry or correction, alms house, work house or reformatory 
prison. 

A conviction under 32 & 33 V. c. 28, (D.) for that V. L. 
on was a common prostitute, wandering in the 

public streets of the city of Ottawa, and not giving a satis- 
factory account of herself contrary to this statute : Held, 
bad, for not shewing sufficiently that she was asked, before 
or at the time of being taken, to give an account of herself 
and did not do so satisfactorily : R. v. Levecque,30 U.C. Q. B. 
509. See R. v. Arscott, 9 O. R. 541, and Arscott & Lilly, 
11 0. R. 153 ; R. v. Remon, 16 O. R. 560. There may be a 
joint conviction against husband and wife for keeping a 
house of ill-fame : R. v. Warren, 16 O. R. 590 ; R. v. Williams, 
1 Salk. 383. 

Held, that under the Vagrant Act it is not sufficient to 
allege that the accused was drunk on a public street, with- 
out alleging further that he caused a disturbance in such 
street by being drunk : Ex parte Despatie, 9 L. N. 387. 

It is unlawful for men to bathe, without any screen or 
covering, so near to a public footway frequented by females 
that exposure of their persons must necessarily occur, and 
they who so bathe are liable to an indictment for indecency : 
R. V. Reed, 12 Cox, 1. 

To keep a booth on a race course for the purpose of an 
indecent exhibition is a crime : R. v. Saunders, 13 Cox, 116. 

A conviction under 32 & 33 V. c. 28, for keeping a house 
of ill-fame, imposed payment of a fine and costs to be col- 
lected by distress, and in default of distress ordered impri- 
sonment. Held, good : R. v. Walker, 7 O. R. 186. 

The charge again a prisoner, w^ho was brought up on 
a writ of habeas corpus, was " for keeping a bawdy house 
for the resort of prostitutes in the City of Winnipeg." 



ilil|!!!|i''i|fi 



li 




'"•■t 



1 1' -I 



>■ ^V 





^. 



142 



VAGRANCY. 



[Sec. 208 



** Keeping a bawdy house " is, in itself, a substantial offence ; 
so is " keeping a house for the resort of prostitutes." Held, 
nevertheless, that there was but one offence charged and 
that the commitment was good : R. v. Mackenzie, 2 Man. 
L. R. 168. 

See R. V. Rice, 10 Cox, 155, L. R. 1 C. C. R. 21, Warb. 
Lead. Cas. 101 ; R. v. Bassett, 10 Ont. P. R 386 ; Pointon v. 
Hill, 12 Q. B. D. 306 : R. v. Daly, 24 L. C. J. 157 ; R. v. 
Newton 11 Ont. P. R. 101 ; R. v. Organ, 11 Ont. P. R. 497 ; 
Smith V. R., M. L R. 4 Q. B. 325. 

See s. 576, p. 644, post, as to search warrant. 





Sees. 209-211] 



LEGAL DUTIES, t 






143 



^■■■H-^' 



«/ rt 






TITLE V. 



OFFENCES AGAINST THE PERSON AND REPUTA- 

j^i..-: ■ ' . ; . • TION. -^ ■[ ^ H Wi ..,, , .,,,., 



PART XVI. 



s . li 



DUTIES TENDING TO THE PRESERVATION OF LIFE. 

Duties— Definition. 
300* Every one who has charge of any other person unable, by reason 
either of detention, age, sickness, insanity or any other cause to withdraw him- 
self from such charge, and unable to provide himself with the necessaries of life, 
is, whether such charge is undertaken by him under any contract, or is imposed 
upon him by law, or by reason u 'is unlawful act, under £. legal duty to supply 
that person with the necess.^rie ' i 'e, and is criminally responsible for 
omitting, without lawful excus i, <>< form such duty if the death of such 
person is caused, or if his life i. i^.angered, or his health has been or is 
likely to be permanently injured, by such omission. 

See section 215, post: R. v. Friend, R. & R. 20; R. v. 
Shepherd, L. & C. 147 ; R. v. Smith, L. & C. 607 ; R. v. 
Marriott, 8 C. & P. 425 ; R. v. Ryland, L. R. 1 C. C. R. 
99; R. V. Morby; Warb. Lead. Cas. 115. 

DUTY OF PARENT OR GUARDIAN, ETC. 

Punishment, Etc. 

310< Every one who as parent, guardian, or head of a family is under a 
legal duty to provide necessaries for any child n7ider the age of sixteen years is 
criminally responsible for omitting, without lawful excuse, to do so whUe such 
child remains a member of his or her household, whether such child is /lelpless or 
not, if the death of such child is caused, or if his life is endangered or his health 
is oris likely to be permanently injured, by such omission. 

2. Every one who is under a legal duty to provide necessaries for his wife, 
is criminally resjwnsible for omitting, without lawful excuse, so to do, if the 
death of his wife is caused, or if her life is endangered, or her health is or is 
likely to be permanently injured by such omission. 

See section 2l&, post. 

211. Every one who, as master or mistress, has contracted to provide 
necessary f(x>d, clothing or lodging for any servant or apprentice under the age 
of sixteen years is under a legal duty to provide the same, and is criminally 
reepoiiHible for oni'tting, without lawful excuse, to |)erform such duty, if the 



I II 



i 






1 f , 



I i 



144 



OFFENCES AGAINST THE PERSON. [Sees. 212-216 




death of such servant or apprentice is caused, or if his life is endangered, or 
his health has been or is likely to be permanently injured by such omission. 

See section 215, post. 

212* Everyone who undertakes (except in case of necessity) to administer 
surgical or medical treatment, or to do any other lawful act the doing of which 
is or may be dangerous to life, is under a legal duty to have and to use reason- 
able knowledge, skill and care in doing any such act, and is criminally 
responsible for omitting, without lawful excuse, to discharge that duty if death 
is caused by such omission. 

313. Every one who has in his charge or under his control anything 
whatever, whether animate or inanimate, or who erects, makes or maintains 
anything whatever which, in the absence of precaution or care, may endanger 
human life, is under a legal duty to take reasonable precautions against, and 
use reasonable care to avoid, such danger, and is criminally responsible for the 
consequences of omitting, without lawful excuse, to perform such duty. 

Omissions Dangerous to Life. 

S14* Every one who undertakes to do any act, the omission to do which 
is or may be dangerous to life, is under a legal duty to do that act, and is 
criminally responsible for the consequences of omitting, without lawful excuse, 
to perform that duty. 

Punishment. 

219. Everyone is guilty of an indictable offence and liable to three 
years' imprieonment who, being bound to perform any duty specified in sections 
two hundred and nine, two hundred and ten and two hundred and eleven 
without lawful excuse neglects or refuses to do so, unless the offence amounts 
to culpable homicide. {Amendme7it of 1893). 

R. S. C. c. 162, 8. 19, 24-25 V. c. 100, 8. 26 and 31-32 V. 
c. 122, 8. 37, (Imp.). See Williams v. E. I. Co., 3 East, 192 ; 
R. V. NichoUs, 13 Cox, 75 ; R. v. Pelham, 8 Q. B. 959. 

Fine in addition to or in lieu of punishment, section 958. 

Sections 210 & 211, which replace section 19 of 
chapter 162, R. S. C, introduce changes in this part of the 
statutory law. 

1. In section 210 the words or " head of a family " are 
added to the words "parent or guardian." 2. The word 
"necessaries" in section 210, relating to parent and child 
and husband and wife, is substituted to the words " neces- 
sary food, clothing or lodging," whilst the words " necessary 
food, clothing or lodging" are retained in section 211, 
relating to master and servant or apprentice. 3. The 
words " while such child remains a member of his or her 



Seo. ^16] 

household, ' 
210, are ne^ 
age of sixl 
words "has 
words " beir 

These ti 

for word, fr 

exception o: 

addition. T 

these clauses 

" We belie 

state in a clea: 

the subject to 

re-enactment 

re-enactment c 

excitement co] 

Register, vol. £ 

cases where th( 

age with food, ( 

to limit it to se 

but it is right 

Section 160, (2 

same criminal r 

under the age o: 

age." 

The differe 

between nece! 

lodging, is a ri^ 

child, or a husb 

which would ; 

combined) (see ] 

is only obliged 

the necessary 

contracted to so 

The only ch 

contained in the 

require no expl 

Cbim. Law— ^0 



Seo. ^15] 



LEGAL DUTIES, ETC. 



145 



household, whether such child is helpless or not," in section 
210, are new. 4. In both sections the words " under the 
age of sixteen years" are new. 5. In section 211 the 
words " has contracted to provide " are substituted to the 
words " being legally liable." 

These three clauses. 209, 210 & 211, are taken, word 
for word, from the draft of the Imperial Code, with the 
exception of sub-section 2 of section 210, which is an 
addition. The Commissioners say in their report, as to 
these clauses : — 

" We believe that this part of the draft code will be found to 

state in a clear and compendious form the unwritten law upon 

the subject to which it relates. Section 161, (211 ante) is a 

re-enactment of 24-25 V. c. 100, s. 26, which was itself a 

re-enactment of 14-15 V. o. 11. That statute was passed in the 

excitement consequent on the case of B. v. Sloane, Annual 

Register, vol. 92, p. 144, and was framed so as to embraca all 

cases where there was a contract to supply a servant of whatever 

age with food, clothing and lodging. It has been thought better 

to limit it to servants and apprentices under the age of sixteen, 

but it is right to point out that it is not the existing law. 

Section 160, (210 ante) puts the head of the family under the 

same criminal responsibility towards members of his household 

under the age of sixteen as a master is to a servant of the same 

age." 

The difference in these two sections, 210 and 211, 
between necessaries and necessary food, clothing or 
lodging, is a right one. A parent is obliged to supply his-, 
child, or a husband his wife, with all the necessaries of life, 
which would include medical attendance (209 & 210 
combined) (see R. v. Downes, 1 Q. B. D. 25), whilst a master- 
is only obliged to provide his servant or apprentice with 
the necessary food, clothing or lodging which he has. 
contracted to so provide. 

The only change of importance in the two sections is 
contained in the words " under sixteen years of age," which 
require no explanation. The provision of the repealed 
Cbim. Law— ■'0 



p 

m 

m 



:l.i 







146 



OFFENCES AGAINST THE PERSON. 



[S%c. 215 



section 19 of chapter 162, R. S. C, as to any bodily harm 
by a master to his apprentice or servant, now forms a 
separate section, section 217, ^os^. 

'Indictment under sections 209-315 against a gaoler for 
not providing a prisoner with the necessaries of life. . 

that A. B. at .... on ... . 

and on divers other days before and after, was the keeper 
of the common gaol for the District of . . . then and 
there situate, and as such had charge of all the prisoners 
therein confined ; and was under a legal duty to provide all 
said prisoners with the necessaries of life ; that one C. D. 
was then and there a prisoner detained in the said gaol and 
as such under the charge of the said A. B, ; that the aaid 
C. D. was, by reason of his said detention, unable to with- 
draw himself from such charge and unable to provide 
himself with the necessaries of life ; that the said A. B. waa 
then and there under a legal duty to provide the said C. D. 
with the necessaries of life, but that the said A. B. not re- 
garding his duty on that behalf, then and there unlawfully 
did refuse, omit and neglect, without lawful excuse, to pro- 
vide the said C. D. with the necessaries of life, by means 
whereof the life of the said C. D. was and is endangered 
and his health was and is permanently injured (or is likely 
to be permanently injured.) 

Indictment under sections 210-215, against a father, for 
not providing necessaries to his child — .... that 

A. B., the father of one C. D., at on . 

. . . and on divers other days, after and before that 
day, unlawfully did refuse, neglect and omit, without law- 
ful excuse, to provide for and find the said C. D., his child, 
-with sufficient food, clothing and lodging, and other neces- 
saries of life, the said C. D. being then and there a member 
of the household of his father, the said A. B., and being, 
then and there, under the age of sixteen years, and the said 
A. B. being then and there by law in duty bound to pro- 
►vide food, clothing and other necessaries of life for the said 



Sec. 218] 



LEGAL DUTIES, ETC. 



147 



C. D., his child as aforesaid, by means of which refuel, 
neglect and omission, the life of the said C. D. was and is 
endangered, and the health of the said C D. was and is {or 
is likely to he) permanently injured. 

Indictment under sections 210-215 against a husband 
for not providing necessaries for hih w' ... that on 
.... at .... , and on divers other ^^ys b,. .e and after, 
A. B. the husband of one C. D., being then and there under 
a legal duty to provide necessary food, clothing, lodging, 
and all other necessaries for the said C. D., his wife, unlaw- 
fully did refuse, neglect and omit without lawful excuse to 
provide for her the necessary food, clothing, lodging and 
other necessaries, so that the life of the said C. D. was and is 
thereby endangered, and her health was and is permanently 
ininved (or is likely to be permanently injured). . , . 

Indictment under sections 211-215 against a master 
for not providiTig an apprentice with necessary food. — 
.... That J. S. on . . . . then being the master 
of J. N. his apprentice, the said J. N. being then under the 
age of IG years, and the said J. S. having before the said 
day contracted to provide for the said J. N. as his appren- 
tice as aforesaid, necessary food {clothing or lodging) 
unlawfully and without lawful excuse, did refuse, omit and 
neglect to provide the same, so that the life of the said 
J. N. Was and is thereby endangered, {or the health of the 
said J. N. has been or is likely to be permanently injured). 
{Add counts varying the statement of the injuries sus- 
taived). 

Prove the apprenticeship, if it was by deed by produc- 
tion and proof of the execution of the deed, or in case it be 
in tlie possession of the defendant, and there be no counter- 
part, by secondary evidence of its contents, after due notice 
given to the defendant, to produce it. In England, it is 
said in Archbold that the legal liability of the defendant to 
provide his apprentice with necessary food, clothing or lodg- 
ing will be inferred, even if it be nob expressly stipulated 



! i. 



i I . 



\ ! 



i 



148 



OFFENCES AGAINST THE PERSON. 



[Sec. 215 





for, from the apprenticeship itself, but in Canada, upon an 
indictment under section 211, it must be proved that the 
defendant had contracted to provide for it, either by parol 
or in writing. Prove the wilful refusal or neglect of the 
defendant to provide the apprentice with necessary food, 
etc., as stated in the indictment, and that by such neglect 
the prosecutor's life was in danger, or his health was or is 
likely to be permanently injured. 

An indictment alleged in the first count that the 
prisoner unlawfully and wilfully neglected and refused to 
provide sufficient food for her infant child five years old, 
she being able and having the means to do so. The 
second count charged that the prisoner unlawfully and 
wilfully neglected and refused to provide her infant child 
with necessary food, but there was no allegation that she 
had the ability or means to do so. The jury returned a 
verdict of guilty, on the ground that if the prisoner had 
applied to the guardians for relief she would have had it. 
Held, that neither count was proved, as it was not enough 
that the prisoner could have obtained the food on applica- 
tion to the guardians, and that it is doubtful whether the 
second count is good in law : R. v. Rugg, 12 Cox, 16. 

It is to be remarked that the indictment in that case 
was under the common law, as, in England, the statute 
24 & 25 V. c. 100 applies only to masters and servants. 
The bill as introduced in the House of Lords extended its 
provisions to husband and parents, but the Commons 
restricted it to masters : Greaves, Cons. Acts, 56. By the 
common law an indictment lies for all misdemeanours of a 
public nature. Thus it lies for a breach of duty which is 
not a mere private injury but an outrage upon the moral 
duties of society ; as for the neglect to provide suilicient 
food or other necessaries for an infant of tender years 
unable to provide for and take care of itself, for whom the 
defendant is obliged by duty to provide, so as thereby to 
injure its health. 



Sec. 216] 



ABANDONING INFANTS, ETC. 



149 



But the parent must have a present means or ability to 
support the child ; the possibility of obtaining such relief 
is not sufficient ; and, by the neglect of such duty, the child 
must have suffered a serious injury. An opportunity of 
applying to a relieving officer of the union from which the 
mother would have received adequate relief on application 
is not a sufficient proof in England of her having present 
means : R. v. Chandler, Dears. 453; R. v. Hogan, 2 Den, 277 ; 
R. v. Phillpot, Dears. 179. But these and similar cases are 
no authorities under our present statute in Canada. 

In an indictment under s. 19, c. 162, R. S. C, it was not 
necessary to allege that the defendant had the means and 
was able to provide the food or clothing nor that his 
neglect to do so endangers the life or affects the health of 
hi^ wife: R. V. Smith, 2 L. N. 223; R. y. Scott, 
28 L. C. J. 264 ; but now, in an indictment under section 
210, it is necessary to allege that the refusal, omission and 
neglect was without lawful excuse and that by such refusal, 
omission, and neglect to provide the food, etc., necessary 
to his wife, her life has been and is endangered, or her 
health permanently injured, or likely to be permanently 
injured : see R. v. Maher, 7 L. N. 82 ; R. v. Nasmith, 42 
U. C. Q. B. 242. 

Held, Armour, J., dissenting, that the evidence of a wife 
is inadmissible on the prosecution of her husband for 
refusal to support her, under 32-33 V. c. 20, s. 25 ; R. v. 
Bissell, 1 0. R. 514. 

As to sections 213 & 214, which are common law rules, 
see annotation under section 220, jtost, and R. v. Salmon, 
Warb. Lead. Cas. 113, and cases there cited. 

Abandoning Inkants, Etc., Etc. 

216. Every one i» guilty of an indictable offence and liable to three years' 
im[)ri8onmeiit who unlawfully abandons or ex|>oses any child under the age of 
two years, whereby its life is endangered, or its health is permanently injured. 

2, The words "abandon " and "expose^' include a wilful omission to take 
charge of the child 07t the part of a person legally hound to do so, atw/ any mode of 





J^it. '. 




160 



OFFKNCES AGAINST THE PERSON. 



[Sec. 216 




dealinff with it ealeutated to leave it expotcd to riik without protection, R. S. C. 
c. 162, B. 20. 24.25 V. o. 100, s, 27 (Imp,). 

Fine, section 958. 

The repealed section had the words " or is likely to be 
permanently injured," and did not have sub-section 2. 

Greavea'lNote. — This clause is new. It is intended to 
provide for cases where children are abandoned or exposed 
under such circumstances that their lives or health may be, 
or are likely to]|be, "endangered : see R. v. Hogan, 2 Den. 
277 ; R. V. Cooper, 1 [Den. 459, 2 C. & K. 876 ; R. v. PhiU- 
pot. Dears. 179 ; R. v. Gray, Dears. & B. 303, which show 
the necessity for this enactment. 

Indictment. — .... unlawfully did abandon and 
expose a certain child called J. N., then being under the 
age of t'wo years, whereby the life of the said child was 
endangered (or i^Aerefty ^Ae health of such child was and 
is permanently injured). 

In order to sustain this indictment it is only necessary 
to prove that the defendant wilfully abandoned or exposed 
the child mentioned in the indictment, that the child was 
then under two years of age, and that its life was thereby 
endangered, or its health has been and is permanently 
injured 

A. and B. were indicted for that they " did abandon and 
expose a child then being under the age of two years, 
whereby the life of the child was endangered." A., the 
mother of a child five weeks old, and B. put the child into 
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 addressed, 
" Mr. Carr'a, Northoutgate, Gisbro, with care, to be deliv- 



ered imme(i 

(a bastard) 

the ordinar; 

the same ev 

from causes 

On proof of 

that there w 

endangered, 

exposure of 

The objectio 

guilty. ffeU 

Falkingham, 

A mother 
and left it ou 
her husband, 
and she called 
I am gone." 
stepped over 
and a luilf aft* 
child still iyi] 
bide there for 
to be taken up 
was found by i 
care, it was res 
that, though t 
child, yet, as h 
allowing it to r 
and exposure c 
endangered, wit 

ASSAI 

• 17. Every on« 
imprisonment who, h 
apprentice or servant, 
»o any such apprent 
Mi'vant is endangered 
"likely to be, pennan 

Chapter 62, 
Act respecting C 



See. 217] 



ASSAULT BY xMASTERS, ETC. 



161 



ered immediately," at which address the father of the dxild 
(a bastard) was then living. The hamper was carried' bx 
the ordinary passenger train, and delivered at its addrea» 
the same evening. The child died three weeks afterwards, 
f lom causes not attributable to the conduct of the prisoners. 
On proof of these facts, it was objected for the prisoners 
that there was no evidence that the life of the child was 
endangered, and that there was no abandonment and no 
e.Kposure of the child within the meaning of the statute. 
The objections were overruled and the prisoners found 
guilty. HeUlf that the conviction should be affirmed : R. v. 
Falkingham, 11 Cox, 475, Warb. Lead. Cas. 93. 

A mother of a child under two years of age brought it 
and left it outside the father's house (she not living with 
her husband, the father of it). He was inside the house, 
and she called out, " Bill, here's your child ; I can't keep it. 
I am gone." The father some time afterwards came out, 
stepped over the child and went away. About an hour 
and a half afterwards, his attention was again called to the 
child still lying in the road. His answer was, " It must, 
bide there for what he knew, and then the mother ought 
to be taken up for the murder of it." Later on, the child 
was found by the police in the road, cold and stiff; but, hy 
care, it was restored to animation. Held, on a case reserved, 
that, though the father had not had the custody of the 
child, yet, as he was by law bound to provide for it, his 
allowing it to remain where he did was an abandonment 
and exposure of the child by him, whereby its life was 
endangered, within the statute : R. v. White, 12 Cox, 83, 

Assault by Masters on Servants, Etc., Etc. 

817. Every one is guilty of an indictable offence and liable to three years' 
imprisonment who, being legally liable as master or mistress to provide for any 
apprentice or servant, unlawfully does, or causes to be done, any bodily hiirm 
to any such apprentice or servant so that the life of such apprentice or 
lervantis endangered or the health of such apprentice or servant has been, or 
iB likely to be, permanently injured. R. S. C. c. 62, s, 19. 

Chapter 62, R. S. C. cited under this section is "An 
Act respecting Copyright." 




% 



i 






152 



\ \ 



OFFENCES AGAINST THE PERSON. 



[Sec. 217 



Fine, section 958. Verdict of common assault may be 
given ; R. v. Bissonette, Ramsay's App. Cas. 190. See 
annotation under sections 211, 215. 

Indictment. — . . . . that A. B. on ... . then being the 
master of one J. N., his apprentice, and then being legally 
liable to provide for the said J. N. as his apprentice as 
aforesaid, unlawfully in and upon the said J. N. did make 
an assault, and him the said J. N. did then beat, wound 
and ill-treat, and thereby then did do, cause and occasion 
bodily harm to the said J. N. his apprentice as aforesaid, 
whereby the life of the said J. N. was endangered and 
his health has been and is permanently injured (07* ia likely 
to be permanently injured.) 



HOMICIDE. 



153 



HOMICIDE. 

J- He common law dpfinin r 

ing with malice aforethoug)" Z^" jLlTa'"/' " ""'^-^""^ WU- 
defined as " unJawfuUy Wllin. ^1^'"'' "^^^ ^« effect be 
The objection to these'defi'ZsTs tha" *,"''" ^^-«*^-"^ht." 
aforethought." is misleading ThL * "'' ^^'Pression .- malice 
popular sense, would be understood n ''P'''''°»' taken in a 
homicide may be murder, tt act *1TT"' ""' ^" ^^^^ *^^' 
greater or less extent, the jury havn^ ^' P^'^'^editated to a 
whether such a degree of ^^1'" '"'^ '''' *° '^^t-mine 
name." Premeditation existed as deserved the 

narrow, as Without wh'/t wouM^^comml' Tu^^ ^' °^^'°"«J>^ too 
tion. homicide might be commiZ i f ^' '"^^'^ P^«"^e^ita- 
danger and moral guilt in h^hittt 1^^ ^"^°^- P"'^^- 

" Of course, it can be « • f ^ '^^^ ^'^''^'" 
-.be said to be^e l^Z^ ^ fi'l?? ^'"^-"-^ -t 
cede the action. But even with t)T' , '"Mention must pre- 
calculated to mislead an/ol b^ 1?^ "'^T ' "- -Pr-^^^^^ 
curacy of the definition fs s" 11 mo' ?"'' ''"^"- ^'^« ^"'^- 
la;d own that a person m^be gJutvTr' 7'^" ""' ^""^ '' 
in ention to kill or injure the deceased ""^'^ ^"'^ "^ 

only to commit some other I'onTldlh '^"^ ^^^^^ P--«. but 
dual was a pure accident." ^ '°J^'^ 'o the indivi- 

" This conclusion was arrived at hv «, 
constructive or implied m^hcl I . ""^^^ ^ootvhe of 

other legal fictions, it is difficult . ?''' ^' '"^ '^^ «ase of 

extended." "^'^'^^^ to say how far the doctrine 

'«-3!!^n'o?ttX^ teirr^" *° -^- "Pon a 
committee of the House of rJ ''^'^^"">^ considered before a 
definition of homicidl tfoZTj t^ ^ ' '^"^ '^ "- 
Gurney. in 1874. It ^-s al^^ \, ^ '^® '^te Mr. RusseU 







if 



filP« 



m 




154 



HOMICIDE. 



" Each of these bodies reported that the present condition of 
the law was unsatisfactory, though neither arrived at a definition 
which was considered satisfactory." 

" The present law may, we think, be stated with su^cient 
exactness for our present purpose, somewhat as follows: — 
Murder is culpable homicide by any act done with malice afore- 
thought. Malice aforethought is a common name for all the 
following states of mind : — (a) An intent preceding the act to 
kill or to do serious bodily injury to the person killed or to any 
other person ; (b) knowledge that the act done is likely to pro* 
duce such consequences, whether coupled with an intention to 
produce them or not : (c) an intent to commit any felony ; (d) an 
intent to resist ah oificer of justice in the execution of his duty. 
Whether (c) is too broadly stated or not is a question open to 
doubt, but Sir Michael Foster, perhaps the highest authority on 
the subject, says (p. 258) * A. shooteth at the poultry of B., and 
by accident killeth a man. If his intention was to steal the 
poultry, which must be collected from circumstances, it will be 
murder by reason of that felonious intent ; but if it was done 
wantonly and without that intention, it will be barely man- 
slaughter.' " 

" It seems to us that the law upon this subject ought to be 
freed from the element of fiction introduced into it by the ex- 
pression of ' n^alice aforethought,' although the principle that 
murder may under certain circumstances be committed in the 
absence of an actual intention to cause death, ought to be main- 
tained. If a person intends to kill, and dues kill another, or if, 
without absolutely intending to kill, he voluntarily inflicts any 
bodily injury known to be likely to cause death, being reckless 
whether death ensues or not, ho ought, in our opinion, to be 
considered a murderer if death ensues." 

'• For practical purposes we can make no distinction between 
a man who shoots another through the head, expressly meauing 
to kill him, a man who strikes another a violent blow with a 
sword, care..3ss whether he dies of it or not, and a man who, in- 
tending for some object of his own to stop the passage of a rail- 
way train, contrives an explosion of dynamite or gunpowder 
under the engine, hoping indeed that death may not be caused, 



IMPERIAL COMMISSIONERS' REPORT. 



155 



bat determinei to effect his purpose whether it is so caused or 
not." 

" This is the general object kept in view, both in the Draft 
Code and in the Bill, but there is some difference in the extent 
t6 which they go. There is no difference as to the cases in 
which the death of the person killed or of some other person is 
intended. The Bill included in the definition of murder, all 
cases, in which the offender intended to cause, or knew that he 
probably would cause ' grievous bodily harm ' to any person. 
The Draft Code would include all such cases, substituting the 
expression • bodily injury known to the offender to be likely to 
cause death ' for ' grievous bodily harm,' which, to some extent, 
narrows the definition given in the Bill. On the other hand, the 
Draft Code (section 175) includes all cases in which death is 
caused by the infliction of a ' grievous bodily injury,' for the 
purpose of facilitating the commission of certain heinous 
offences. All these cases would fall within the definition of 
murder given in the Bill, according to which it is murder to 
kill by the intentional infliction of grievous bodily harm, irre- 
spectively of the purpose for which it is used. Lastly, section 
175 in sub-sections (i) & (o) provides that killing by the admin- 
istration of stupefying things, or by wilfully stopping the breath, 
for the purpose in either case of committing any of the specified 
offences, shall be murder, whether the offender knows or not 
that death is likely to ensue. According to the provisions of the 
Bill these cases would amount to murder only if the offender 
knew their danger. The difference between the Draft Code 
and the Bill upon the whole comes to this : A., in order to facili- 
tate robbery, pushes something into B.'s mouth to stop his 
breath and thus to prevent him from crying out ; the death of 
B., results. This is murder according to the Draft Code. Ac- 
cording to the Bill, it is murder if A. knew that such an act 
would probably cause death ; manslaughter if he did not. A few 
years ago a case occurred in the Western Circuit, which illus- 
trates the principle on which this portion of the Druft Code is 
framed better than any hypothetical case. An innocent girl, on 
iier way to church, had to pass over a stile into a narrow, wooded 
lane, and then go out of it by a stile on the other side. A ruffian 
who knew this lay in wait for her, muffled her head in a shawl 




'*f ' ■. 




I, r 



^^•^-^ 



I / 



156 



HOMICIDE. 






to stifle her cries, and proceeded to drag her down the lane 
towards a wood. She died before she reached it. He was exe- 
cuted for the murder. It is plain he did not mean to kill her, 
indeed his object was frustrated in consequence of her not reach- 
ing the wood alive, and he probably was not aware that stifling 
her breath for so short a time was dangerous to life ; but as the 
law at the time was, and now is, the death having been occa- 
sioned by violence used to facilitate the commission of a rape, the 
oflfence was murder. And we believe there are few who would 
not think the law defective if such an oflfence was not murder." 

"Again, A. stabs B. in the leg, not intending to kill him; 
B. dies. According to the Bill, this would be murder if the jury 
thought the act showed an intent to do grievous bodily harm, or 
if, without such intent, it was done with knowledge that it would 
probably cause death or grievous bodily harm. According to 
the Draft Code it would be murder if the jury thought the act 
was meant to cause B. an injury known to A. to be likely to 
cause death, he being reckless whether it caused death or not. 
It will thus be seen that the Bill and the Draft Code approach 
each other very closely." 

" There is no substantial difiference between the provisions 
of the Draft Code and the Bill dealing with provocation, though 
the language and arrangement differ. Each introduces an 
alteration of considerable importance into the common law. By 
the existing law, the infliction of a blow, or the sight by the hus- 
band of adultery committed with his wife, may amount to provo- 
cation which would reduce murder to manslaughter. It is pos- 
sible that some other insufferable outrages might be held to have 
the same effect. There is no definite authoritative rule on the 
subject, but the authorities for saying that words can never 
amount to a provocation are ^-eighty. We are of opinion that 
cases may be imagined where language would give a provocation 
greater than any ordinary blow. The question whether any 
particular act falls or not within this line appears to us to be 
pre-eminently a matter of degree for the consideration of the 
j ury." 

The law takes hd co<jnizance of homicide unless death 
result from bodily injui-y, occasioned by some act or 



GENERAL REMARKS. 



157 



unlawful omission, as contra-distinguished from death 
occasioned by any influence on the mind, or by any disease 
arising from such influence : see s. 223 post. The terms 
" unlawful omission " comprehend every case where 
any one, being under any legal obligation to supply food, 
clothing or other aid or support, or to do any other act, or 
make any other provision for the sustentation of life, or 
prevention of injury to life, is guilty of any breach of duty : 
s. 209, ante. It is essential to homicide of which the law 
takes cognizance that the party die of the injury done 
within one year and a day thereafter: s. 222, post. In 
the computation of the year and the day from the time of 
the injury, the whole of the day on which the act was done, 
or of any day on which the cause of injury was continuing, 
is to be reckoned the first. A child in the womb is not a 
subject of homicide in respect of any injury inflicted in the 
womb, unless it afterwards be born alive ; it is otherwise if 
a child die within a year and a day after birth of any 
bodily injury inflicted upon such child whilst it was yet in 
the womb : 4 Cr. L. Com. Rep. p. XXXII., 8th of March, 
1839. R 219, post. 

If a man have a disease which in all likelihood would 
tenninate his life in a short time, and another give him a 
wound or hurt which hastens his death, it is murder or 
other specie'" of homicide as the case may be : s. 224, 
poxf. And it has been ruled that though the stroke given 
is not in itself so mortal but that with good care it might 
be cured, yet if the party die of this w^ound within a year 
and a day, it is murder or other species of homicide as the 
case may be. And when a wound, not in itself mortal, for 
want of proper applications or from neglect turns to a 
gangrene or a fever, and that gangrene or fever is the 
immediate cause of the death of the party wounded, the 
party V>y whom the wound is given is guilty of murder or 
manslaughter, according to the circumstances; s. 225, 
p(i.^f. For though tiie fever or gangrene, and not the 






m 



nil, 

!'; 
li! 






) i 



158 



HOMICIDE. 





wound, be the immediate cause of death, yet the wound 
being the cause of the gangrene or fever is the immediate 
cause of the death, causa causati. So if one gives wounds 
to another, who neglects the cure of them or is disorderly, 
and doth not keep that rule which a person wounded 
should do, yet if he die it is murder or manslaughter, 
according to the circumstances ; because if the wounds had 
not been the man had not died ; and therefore neglect or 
disorder in the person who received the wounds shall not 
excuse the person who gave them : 1 Russ. 700. 

So if a man be wounded, and the wound become fatal 
from the refusal of the party to submit to a surgical 
operation : R. v. Holland, 2 M. & Rob. 351 ; R. v. Pym, 1 
Cox, 339; R. v. TJoIntyre, 2 Cox, 379; R. v. Martin, 5 
C. & P. 128 ; R. V. Webb, 1 M. & Rob. 405. But it is 
otherwise if death results not from the injury done, but 
from unskilful treatment, or other cause subsequent to the 
injury : 4th Rep. or. L. Com., p. XXXII., 8th of March, 
1839. S. 226, post. 

Murder is the killing any person under the king's 
peace, with malice prepense or aforethought, either express 
or implied by law. Of this description the malice prepense, 
mialitia precogitata, is the chief characteristic, the grand 
criterion by which murder is to be distinguished from any 
other species of homicide, and it will therefore be necessary 
to inquire concerning the cases in which such malice has 
been held to exist. It should, however, be observed that 
when the law makes use of the term malice aforethought, 
as descriptive of the crime of murder, it is not to be 
understood merely in the sense of a principle of malevo- 
lence to particulars, but as meaning that the act has been 
attended with such circumstances as are the ordinary 
symptoms of a wicked, depraved, and malignant spirit; a 
heart regardless of social duty, and deliberately bent upon 
mischief. And in general any formed design of doing mis- 
chief may be called malice. And, therefore, not such killing 



GENERAL REMARKS. 



159 



only as proceeds from premeditated hatred or revenge 
against the person killed, but also, in many other cases, 
such killing as is accompanied with circumstances that 
show the heart to be perversely wicked is adjudged to be 
of malice prepense, and consequently murder : 1 Buss. 
607. 

Malice may be either express or implied hy law. Ex- 
press malice is, when one person kills another with a sedate, 
deliberate mind and formed design ; such formed design 
being evidenced by external circumstances discovering the 
inward intention ; as lying in wait, antecedent menaces, 
fonner grudges, and concerted schemes to do the party 
some bodily harm. And malice is implied by law from any 
deliberate cruel act committed by one person against an- 
other, however sudden ; thus, where a man kills another 
suddenly without any, or without a considerable provoca- 
tion, the law implies malice ; for no person, unless of an 
abandoned heart, would be guilty of such an act upon a 
slight or no apparent cause. So if a man wilfully poisons 
another ; in such a deliberate act the law presumes malice, 
though no particular enmity be proved. And where one is 
killed in consequence of such a wilful act as shows the per- 
son by whom it is committed to be an enemy to all man- 
kind, the law will infer a general malice from such depraved 
inclination to mischief. And it should be observed as a 
general rule, that all homicide is presumed to be malicious, 
and of course amounting to murder, until the contrary 
appears from circumstances of alleviation, excuse or justi- 
fication ; and that it is incumbent upon the prisoner to make 
out such circumstances to the satisfaction of the court and 
jury, unless they arise out of the evidence produced against 
him. It should also be remarked that, where the defence 
rests upon some violent provocation, it will not avail, how- 
ever grievous such provocation may have been, if it appeara 
that there was an interval of reflection, or a reasonable 
time for the blood to have cooled before the deadl}' ])urpose 




160 



HOMICIDE. 





was effected. And provocation will be no answer to proof 
of express malice ; so that, if, upon a provocation received, 
one party deliberately and advisedly denounce vengeance 
against the other, as by declaring that he will have his bloody 
or the like, and afterwards carry his design into execution, 
he will be guilty of murder ; although the death happened 
so recently after the provocation as that the law might, 
apart from srch evidence of express malice, have imputed 
the act to unadvised passion. But where fresh provocation 
intervenes between preconceived malice and the death, it 
ought clearly to appear that the killing was upon the ante- 
cedent malice ; for if there be an old quarrel between A. 
aiid B. and they are reconciled again, and then upon a new 
and sudden falling out A. kills B., this is not murder. It 
is not to be presumed that the parties fought upon the old 
grudge unless it appear from the whole circumstances of 
the fact ; but if upon the circumstances it should appear 
that the reconciliation was but pretended or counterfeit, 
and that the hurt done was upon the score of the old malice, 
then such killing will be murder : 1 Russ. 667. 

If a man, after receiving a blow, feigns a reconciliation, 
and, after the lapse of a few minutes, invites a renewal of 
the aggression, with intent to use a deadly weapon, and on 
such renewal uses such weapon with deadly effect, there 
is evidence of implied malice to sustain the charge of 
murder. But if, after such reconciliation, the aggressor 
renews the contest, or attempts to do so, and the other 
having a deadly weapon about him, on such sudden re- 
newal of the provocation, uses it without previous intent 
to do so, there is evidence which may reduce the crime to 
manslaughter: R. v, Selten, 11 Cox, 674. Mr Justice 
Hannen in his charge to the jury in that case said : " Now, 
murder is killing with malice aforethought ; but though 
the malice may be harboured for a long time for the grati- 
^cation of a cherished revenge, it may, on the other hand, 
je generated in a man's mind according to the character of 



GENERAL REMARKS. 



161 



that mind, in a short space of time, and therefore it 
becomes the duty of the jury in each case to distinguish 
whether such motive had arisen in the mind of the prisoner, 
and whether it was for the gratification of such malice he 
committed the fatal act. But the law, having regard to 
the infirmity of man's nature, admits evidence of such 
provocation as is calculated to throw a man's mind off its 
balance, so as to show that he committed the act while 
under the influence of temporary excitement, and thus toi 
negative the malice which is of the essence of the crime of 
murder. It must not be a light provocation, it must be a; 
grave provocation ; and undoubtedly a blow is regarded by 
the law as such a grave provocation; and supposing a. 
deadly stroke inflicted promptly upon such provocation, a. 
jury would be justified in regarding the crime as reduced 
to manslaughter. But if such a period of time has elapsed 
as would be sufficient to enable the mind to recover its. 
balance, and it appears that the fatal blow has been struck 
in the pursuit of revenge, then the crime will be murder."^ 
Verdict of manslaughter : see s. 229, post. 

In a case of death by stabbing, if the jury is of opinion 
that the wound w^as inflicted by the prisoner while smart- 
ing under a provocation so recent and so strong that he 
may be considered as not being at the moment "the master 
of his own understanding, the offence will be manslaughter; 
but if there has been, after provocation, sufficient time for 
the blood to cool, for reason to resume its seat, before the, 
mortal wound was given, the offence will amount to.- 
murder ; and if the prisoner displays thought, contrivance • 
and design in the mode of possessing himself of the weapon, , 
and in again replacing it immediately after the blow was; 
struck, such exercise of contrivance and design denotes; 
rather the presence of judgment and reason than of violent 
and ungovernable passion: R. v. Hayward, 6 C. «& P. 157. 

Where a man finds another in the act of adultery with 
his wife, and kills him or her in the first transport of 
Cum. Law — 11 



W 





162 



HOMICIDE. 




.'(^. 



passion, he is only guilty of manslaughter and that in the 
lowest degree ; for the provocation is gi-ievous, such as the 
law reasonably concludes cannot be borne in the first 
transport of passion ; and the court in such cases will not 
inflict a severe punishment: 1 Russ. 786 ; see s. 11^, 'post 

But in the case of the moat grievous provocation to 
which a man can be exposed, that of finding another in the 
act of adultery with his wife, though it would be but 
manslaughter if he should kill the adulterer in the first 
transport of passion, yet if he kill him deliberately, and 
upon revenge, after the fact, and sufficient cooling time, it 
would undoubtedly be murder. For let it be observed 
that in all possible cases deliberate homicide upon a prin- 
ciple of revf^nge is murder. No man under the protection 
of the law is to be the avenger of his own wrongs. If they 
are of a nature for which the laws of society will give him 
an adequate remedy, thither he ought to resort; but be 
they of what nature soever, he ought to bear his lot with 
patience, and remember that vengeance belongeth only to 
the Most High: Fost. 296. 

So, in the case of a father seeing a person in the act of 
committing an unnatural ofTence with his son and killing 
him instantly, this would be manslaughter, but if he only 
hears of it, and goes in search of the person, and meeting 
him strikes him with a stick, and afterwards stabs him with 
a knife, and kills him, in point of law it will be murder : 
R. V. Fisher. 8 C. & P. 182, Warb. Lead. Cas. 112. 

If a blow without provocation is wilfully inflicted, the 
law infers that it was done with malice aforethought, and 
if death ensues the offender is guilty of murder, although 
the blow may have been given in a moment of passion: R. 
V. Noon, 6 Cox, 137. 

Even blows previously received will not extenuate 
homicide upon deliberate malice and revenge, especially 
where it is to be collected from the circumstances that the 



GENERAL REMARKS. 



163 



provocation was sought for the purpose of colouring the 
revenge : R. v. Mason, 1 East, P. C. 239. 

In R. V. Welsh, 11 Cox, 336, Keating, J., in summing 
up the case to the jury, said: " The prisoner is indicted for 
that he killed the deceased feloniously and with malice 
aforethought, that is to say, intentionally, without such 
provocation as would have excused, or such cause as might 
have justified, the act. Malice aforethought means intention 
to kill. Whenever one person kills another intentionally 
he does it with malice aforethought ; in point of law the 
intention signifies the malice. It is for him to show that it 
was not so by showing sufiicient provocation, which only 
reduces the crime to manslaughter, because it tends to 
negative the malice. But when that provocation does not 
appear the malice aforethought implied in the intention 
remains. By the law of England, therefore, all intentional 
homicide is prima facie murder. It rests with the party 
charged with and proved to have committed it to show, 
either by evidence adduced for the purpose, or upon the 
facts as they appear, that the homicide took place under 
such circumstances as to reduce the crime from murder to 
manslaughter. Homicide which would be prirtia facie 
murder may be committed under such circumstances of 
provocation as to make it manslaughter, and show that it 
was not committed with malice aforetho aght. The question 
therefore is, first, whether there is evidence of any such 
provocation as could reduce the crime from murder to man- 
slaughter; and if there be any such evidence, then it is for 
the jury, whether it was such that they can attribute the 
act to the violence of passion naturally arising therefrom 
and likely to be aroused thereby in the breast of a reason- 
able man. The law, therefore, is not, as was represented 
by the prisoner's counsel, that if a man commits the crime 
under the influence of passion it is mere manslaughter. 
The law is, that there must exist such an amount of provo- 
cation as would be excited by the circumstances in the mind 






164 



HOMICIDE. 




of a reasonable man, and so as to lead the jury to ascribe 
the act to the influence of that passion. When the law 
says that it allows for the infirmity of human nature, it 
does not say that if a man without su fficient provocatio n 
gives way to angry passion, and does not use his reason to 
control it, — the law does not say that an act of homicide 
intentionally committed under the influence of that passion 
is excused, or reduced to manslaughter. The law contem- 
platoH the case of a reasonable man, and requires that the 
provocation shall be such as that such a man might 
naturally be induced, in the anger of the moment, to com- 
mit the act. Now, I am bound to say that I am unable to 
discover in the evidence in this case any provocation which 
would suffice, or approach to 8uc>^ as would suffice, to reduce 
the crime to manslaughter. Iv nas been laid down that 
mere words or gestures will not be sufficient to reduce the 
offence, and at all events the law is clear that the provoca- 
tion must be serious. I have already said that I can 
discover no proof of such provocation in the evidence. If 
you can discover it you can give eflTect to it, but you are 
bound not to do so unless satisfied that it was serious. 
What I am bound to tell you is that, in law, it is necessary 
that there should have been serious provocation in order 
to reduce the crii.ie to manslaughter, as for instance a blow, 
and a severe blow, something which might naturally cause 
an ordinary and reasonably minded man to lose his self- 
control and commit .such an act." Verdict: Guilty of murder. 

So also if a man be greatly provoked, as by pulling his 
nose or other great indignity, and immediately kills the 
aggressor, though he is not excusable ae defendendo, since 
there is no absolute necessity for doing it to preserve him- 
self, yet neither is it murder for there is no previous malice ; 
but it is manslaughter. But in this and every other case of 
homicide upon provocation, if there be a sufficient cooling 
till e for passion to subside and reason to interpose, and the 
person so provoked afterwards kill the other, this is delib- 



GENERAL REMARKS. 



165 



erate revenge and not heat of blood, and accordingly 
amounts to murder : 4 Blacks. 191. S. 229, post. 

A packer found a boy stealing wood in his master's 
ground ; he bound him to his horse's tail and beat him ; the 
liorse took fright and ran away, and dragged the boy on 
the ground so that he died. This was holden to be murder. 
for it was a deliberate act and savoured of cruelty : Fost' 
292. 

At page 632 of Archbold is cited K. v. Rowley ; a boy 
after fighting with another ran home bleeding to his father; 
the father immediately took a staff, ran three-quarters of a 
mile, and beat the other boy who died of this blow. And 
this was holden to be manslaughter only. But Mr. Justice 
Foster, 294, says that he always thought Rowley's case a 
very extraordinary one. 

Though the general rule of law is that provocation by 
words will not reduce the crime of murder to that of man- 
slaughter, special circumstances attending such a provoca- 
tion might be held to take the case out of the general rule ; 
s. 229, 2)08t, has "any insult." In R. v. Roth well, 12 Cox, 147, 
Blackburn, J., in summing up, said : " A person who inflicts 
a dangerous wound, that is to say a wound of such a nature 
as he must know to be dangerous, and death ensues, is 
guilty of murder, but there may be such heat of blood and 
provocation as to reduce the crime to manslaughter. A blow 
is such a provocation as will reduce the crime of murder to that 
of manslaughter. Where, however, there are no blows, there 
must be a provocation equal to blows ; it must be at least 
as great as blows. For instance a man who discovers his 
wife in adultery, and thereupon kills the adulterer, is only 
guilty of manslaughter. As a general rule of law no pro- 
vocation of words will reduce the crime of murder to that 
of manslaughter ; but under special circumstances there 
may be such provocation of words as will have that effect ; 
for instance, if a husband, suddenly hearing from his wife 
that she had committed adultery, and he having no idea of 



. ;; i.l!il 



W^ 



](]6 



HOMICIDE. 




sucjh a thing before, were thereupon to kill his wife it 
might be manslaughter. Now, in this case, words spoken 
by the deceased just previous to the blows inflicted by the 
prisoner were these: 'Aye; but I'll take no more for thee, for 
I will have no more children of thee ; I have done it once, 
and I'll do it again,' meaning adultery. Now, what you 
will have to consider is, would these words, which were 
spoken just previous to the blows, amount to such a provo- 
cation as would in an ordinary man, not in a man of vio- 
lent or passionate disposition, provoke him in such a way 
as to justify him in striking her as the prisoner did." Ver- 
dict of manslaughter. 

In Sherwood's Case, 1 C. & K. 556, Pollock, C. B., in 
summing up said ; " It is true that no provocation by words 
only will reduce the crime of murder to that of man- 
slaughter ; but it is equally true that every provocation by 
blows will not have this effect, particularly when, as in this 
case, the prisoner appears to have resented the blow by using a 
weapon calculated to cause death. Still, however, if there 
be a provocation by blows, which would not of itself render 
the killing manslaughter, but it be accompanied by such 
provocation by means of words and gestures as would be 
calculated to produce a degree of exasperation eijuul to 
that which would be produced by a violent blow, I am not 
prepared to say that the law will not regard these circum- 
stances as reducing the crime to that of manslaughter only." 

When A. finding a trespasser upon his land, in the first 
transport of his passion beat him and unluckily killed liira, 
and it was holden to be manslaughter, it must be understood 
that he beat the trespasser, not with a mischievous inten- 
tion, but merely to chastise him, and to deter him from a 
future commission of such a trespass. For if A. had 
knocked his brains out with a bill or hedge stake, or liad 
killed him by an outrageous beating with an ordinary 
cudgel, beyond the bounds of a sudden resentment, it 
would have been murder ; these circumstances being some 



of the genui 
upon mischi 
in the legal i 
annoyed by 
gave notice t 
length dischfi 
and wounded 
the man died. 
1 Russ. 718 ; i 
under s. 53, a 
Malice in 
intentionally, 
dale, J., in M 
Cresswell, J., i 

'• We must 1 
legal import of 
conversation. ; 
sion of hatred 
wicked or misch 
" Thus, in th 
indictment to b 
neither necessarj 
prisoner had an 
absence of iil-wil 
is proved that 
without any just 
2 B. & C. 268. 

The nature 
maxim " Culpa I 

Malice afore 
murder, may be 
orachuil ajwetii 
of the mind, but 
and mental culpa 
be sufficient to i 
only manslaught( 



GENERAL REMARKS. 



167 



of ihe genuine symptoms of the mala mens, the heart bent 
upon mischief, which enter in^ the true notion of malice 
in the legal sense of the word. Moir having been greatly 
annoyed by persons trespassing upon his farm, repeatedly 
gave notice that he would shoot any one who did so, and at 
length discharged a pistol at a pei*son who was trespassing, 
and wounded him in the thigh, which led to erysipelas, and 
the man died. Moir was convicted of murder and executed : 
1 Russ. 718 ; s. 227,2>os<. See Imp. Comm. note on that case 
under s. 53, ante. 

Malice in its legal sense denotes a wrongful act done 
intentionally, without just cause or excuse. Per Little- 
dale, J., in McPherson v. Daniels, 10 B. & C. 272 ; and 
Cresswell, J., in R. v. Noon, 6 Cox, 137 : — 

•' We must settle what is meant by the term malice. The 
legal import of this term differs from its acceptation in common 
conversation. It is not, as in ordinary speech, only an expres- 
sion of hatred and ill-will to an individual, but means any 
wicked or mischievous intention of the mind. 

" Thus, in the crime of murder which is always stated in the 
indictment to be committed with malice aforethought, it i» 
neither necessary in support of such indictment to show that the 
prisoner had any enmity to the deceased, nor would proof of 
absence of ill-will furnish the accused with any defence, when it 
is proved that the act of killing was intentional and dono 
without any justifiable cause." Per Best, J., in R. v. Harvey, 
2 B. & C. 268. 

The nature of implied malice is illustrated by tho 
maxim " Culpa lata dolo aiqiiiparatur" 

Malice aforethought, which makes a felonious killin ; 
uiurtler, may be practically defined to be not actual Tnalic^ 
oradiud aforethought, or any other particular actual state 
of the mind, but any such combination of wrongful deed 
and mental culpability as judicial usage has determined to 
be sufficient to render that murder which else would be 
only manslaughter. One proposition is plain : that an 



If 



168 



HOMICIDE. 



actual intent to take life is not a necessary ingredient in 
murder, any more than it is in manslaughter. Where the 
prisoner fired a loaded pistol at a person on horseback, and 
the ball took effect on another, whose death it caused, the 
offence was held to be murder; though the motive for 
firing it was not to kill the man, but only to frighten his 
horse, aad cause the horse to throw him : 2 Bishop, Cr. L. 
C75, 676, 682 ; s. 227, post 

In Grey's case the defendant, a blacksmith, had broken, 
with a rod of iron, the skull of his servant, whom he did 
not mean to kill, and this was held to be murder; for, 
says the report, if a father, master, or school-master will 
correct his child, servant or scholar, he must do it with 
such things as are fit for correction, and not with such 
instruments as may probably kill them : Kel. 99. 

A person driving a cart or other carriage happeneth to 
[kill. If he savr or had timely notice of the mischief likely 
to ensue, and yet drove on, it will be murder ; for it was 
wilfully and deliberately done. If he might have seen 
the danger, but did not look before him, it will be man- 
slaughter for want of due circumspection. But if the 
accident happened in such a manner that no want of due 
care could be imputed to the driver it will be accidental 
death, and tlie driver will be excused : Fost. 263. 

Further, if there be an evil intent, though that intent 
extendeth not to death, it is murder. Thus if a man, 
knowing that many people are in the street, throw a stone 
over a wall, intending only to frighten them or to give 
them a little hurt, and thereupon one is killed, this is mur- 
der : for he had an ill intent, though that intent extendeth 
not to death, and thougli he knew not the party slain: 
3 Inst. 57 ; s. 227, post. 

Although the malice in murder is what is called " malice 
aforefhou;/ht," yet tliere is no particular period of time 
during which it is necessary it should have existed, or the 
prisoner should have contemplated the homicide. If, for 



169 



GENERAL REMARKS. ,.q 

example, the intent to kill or to W. ,u 
is executed the instant it sprinl Lt^^^^^^ harm 

^s as truly n^urder as if if S d" It .^^1' *^^ ^^^««- 
period: 2 Bishop, Cr. L. 677 ^''' ^^^ ^ longer 

grievous bodily ha™, if death .n tf'" *" "''U <»- 'odo 

-iif in such case, th'o petlToZt" '" '' """''"' ' 
lie does not J;no,v that it is lo„I!, k ^® '"^"P""- "'""sh 
-certain, it is manslaught ' r^ 'r*"^ *^'""' ^° ««'e to 
Tf i- ' (^ampbell, 1] Cot <!9q 

K an action, unlawful in itself u ^ 
and with intention of mis^hi,^f „ ^'""' ''^"'^■•ately, 

particular individuals, oTT^l^Lf^' "'"•^^ harm t"^ 
i' where it may, and death „sue at 'f '^\"™'»''tely fall 
ginal intention of the partv T M? ?" "' ^'''^' ">e ori- 
739. If a man deliberate y^hL" ^ ""''«'••• ^ ««»■ 
Ml B., this is murder fl^l'l*' V"" »- him, but 
poisoned apple to his wife, inten'din„ t„ ^.'''"''^ A. gave a 
-V. e, ignorant of the matter rvo^! " ^T,", ''""' ""'^ *h« 
™i Jied, this was held mu^r i' A "h "'':*° '"""^ " 
present at the time, endeavour!/. ,' ""^^ he, being 
girfng the apple to the clild Cl/ T''' ''" ^"'^ f™"' 

So if a pe,»„ give medicm! •'"■'''■ ^'''^'• 

.fertion, by which the wotrisl^llT;"" '° P"'""'-'' -• 
dearly to be nuu-der, for though nf' *'" ""^^ «■»« held 
««""t intended, ihe act' is of ° ''°''*'' "^ ""^ "•"■"an 

■iciou,, and neces^ariy allied ^ ''""'"•''*^ ""J "»- 
1"- on whom it /asp^etlt, '/'""' '"«- *° "'e 
* ■i-i'd. pSst. ' "'■""' •• I East, P. C, 230, 254 ; 

-^^^z:::^::::^-::;^' "r ««.. of co t. 

''A J-et, if the life of aTothef ^ "."^'■'•"" '" '""««" 



170 



HOMICIDE. 




be there : 1 Russ. 741, and Greaves' note to it. That is not 
law now; see ss. 227, 228, ^osi. 

In R. V. Lee, 4 F. & F. 63, Pollock, C.B., told the jury 
" that if two or more persons go out to commit a felony 
with intent that personal violence shall be used in its com- 
mittal, and such violence is used and causes death, then they 
are all guilty of murder, even although death was not in- 
tended." That is now limited to the offences mentioned in 
s-8. 2, s. 228, post 

Where two persons go out with the common object of 
robbing a third person, and one of them, in pursuit of tliat 
common object, does an act which causes the death of that 
third person, under such circumstances as to be murder in 
him who does the act, it is murder in the other also : R. v. 
Jackson, 7 Cox, 357. 

If a man intends to maim and causes death, and it can 
be made out most distinctly that he did not mean to kill 
yet if he does acts and uses means for the purpose of 
accomplishing that limited object, and they are calculated 
to produce death, and death ensues, by the law of Eng- 
land that is murder, although the man did not mean to 
kill. It is not necessary to prove an intention to kill ; it 
is only necessary to prove an intention to inflict an injury 
that might be dangerous to life, and that it resulted in 
death. A party may be convicted upon an indictment for 
murder by evidence that would have no tendency to prove 
that there was any intent to kill, nay, by evidence that 
might clearly show that he meant to stop short of death, 
and even take some means to prevent death ; but if that 
illegal act of his produces death that is murder : R. v. 
Salvi, 10 Cox, note h., 481 ; s. 227, 2)ost. 

" A common and plain rule on this subject," says Bishop 
2 Cr. L. 694, " is that, whenever one does an act with the i 
design of committing any felony, though not a felony <biii- 
gerous to human life, yet, if the life of another is accident- 
all}' taken, his offence is murder." Or in the language of I 



GENERAL REMARKS. 



171 



Baron Bramwell, in R. v. Horsey, 3 F. & F. 287 ; " the law 
laid down was that where a prisoner, in the course of com- 
mitting a felony, caused the death of a human being, that 
was murder, even though he did not intend it ; " see Oreaves' 
note, 1 Russ. 742. & s. 228, s-s. 2, post 

And if the act committed or attempted is only a mis- 
demeanour, yet the " accidental " causing of death, in 
consequence of this act, is murder, if the misdemeanour is 
one endangering human life : Bishop, 2 Cr. L. 691. 

If a large stone be thrown at one with a deliberate in- 
tention to hurt, though not to kill him, and, by accident, 
it kill him, or any other, this is murder : 1 Hale, 440, 1 
Russ. 742. Also, where the intent is to do some great 
bodily harm to another, and death ensues, it will be mur- 
der : as if A. intend only to beat B. in anger, or from pre- 
conceived malice, and happen to kill him, it will be no ex- 
cuse that he did not intend all the mischief that followed : 
for what he did was malum in se, and he must be answer- 
able for all its consequences : he beat B. with an intention 
of doing him some bodily harm, and is therefore answerable 
for all the harm he did. In Foster, 261, it is said : " If an 
action unlawful in itself be done deliberately and with 
intention of mischief or great bodily harm to particulars, 
or of mischief indiscriminately fall it where it may, and 
death ensue against or beside the original intention of the 
party, it will be murder. But if such mischievous inten- 
tion doth not appear, which is matter of fact and to be 
collocted from circumstances, and the act was done heed- 
lessly and incautiously, it will be manslaughter, not 
accidental death, because the act upon which death ensued 
was unlawful." 

Extreme necessity of hunger does not justify homicide : 
R. V. Dudley, 15 Cox, 624, 14 Q. B. D. 273. 

If two persons enter into an agreement to commit 
sulci do toi^^other, and the means employed kill one of them 




m 



172 



HOMICIDE. 




only, the survivor is guilty of murder : R. v. Jessop, 16 Cox 
204; s. 237, 2W8t. 

The circumstance of a person having acted under an 
irresistible influence to the commission of homicide is no 
defence, if at the time he committed the act he knew he 
was doing what was wrong : R. v. Haynes, 1 F. & F. 666 ; 
see s. 11 ante. 

On an indictment for murder, it being proved that the 
prisoner, a soldier, shot his officer through the head, the 
only evidence for the defence being that the act was sudrlen, 
without apparent motive, and that he had been addicted to 
drink, and had been suffering under depression ; Held, that 
this was not enough to raise the defence of insanity; that 
the sole question was whether the prisoner fired the gun 
intending to kill; and that his expressions soon after the 
act were evidence of this, and that alleged inadequacy of 
motive was immaterial, the question being, not motive, but 
intent: R. v. Dixon, 11 Cox, 341. 

Killing a man who was out at night dressed in white as 
a ghost, for the purpose of frightening the neighbourhood, ia 
murder; it is no excuse that he could not otherwise be 
taken: 1 Russ. 749. 

Forcing a person to do an act which is likely to produce 
and does produce death is murder; so, if the deceased tlirew 
himself out of a window, or in a river, to avoid the violence 
of the prisoner: 1 Russ. 676; R. v. Pitts, Car. & M. 284; 
R. V. Halliday, 6 Times L. R. 109 ; s. 220, jwst. 

If two persons fight, and one overpowers the other aiul 
knocks him down, and puts a rope lound his neck, and 
strangles him, this will be murder : R. v. Shaw, 6 C. & P. 
372. 

If a person being in possession of a deadly woapou 
enters into a contest with another, intending at the time to 
avail himsel" of it, and in the course of the contest actiially 
uses it, and kills the other, it will hn murdor ; Init if lie diii 



GENERAL REMARKS. 



17S 



not intend to use it whoa he began the contest, but used it 
in the heat of passion, in consequence of an attack made 
upon him, it will be manslaughter. If he uses it to protect 
his own life or to protect himself from such serious bodily 
harm as would give him a reasonable apprehension that his 
life was in immediate danger, having no other means of 
defence, and no means of escape, and retreating as far as he 
can, it will be justifiable homicide : R. v. Smith, 8 C. & P.. 
160. 

A person cannot be indicted for murder in procuring 
another to be executed, by falsely charging him with a. 
crime of which he was innocent: K v. Macdaniel, 1 Leach,. 
44; see now s. 221. 

Child 7)utrder. — To justify a conviction on an indict- 
ment charging a woman with the wilful murder of a child 
of which she was delivered, and which was bcrn alive, the 
jury must be satisfied affirmatively that the whole body 
was brought alive into the world ; and it is not sufficient 
that the child has breathed in the progress of the birth : R. 
V. Poulton, 5 C. & P. 329 ; R. v. Enoch, 5 C. & P. 539. If a, 
child has been wholly produced from the body of its mother, 
and she wilfully and of malice aforethought strangles it 
while it is alive, and has an independent circulation, this is 
murder, although the child ia still attached to its mother by 
the umbilical cord : R. v. Trilloe, 2 Moo. 260. A prisoner 
was charged with the murder of her new-born child by 
cutting off" its head: Held, that, in order to justify a convic- 
tion for murder, the jury must be satisfied that the entire 
child was actually born into the world in a living state ; 
and that the fact of its having breathed is not a decisive 
proof that it was born alive, as it may have breathed and 
yet died before birth: R. v. Sellis, 7 C. & P. 850; R. v. 
Handley, 13 Cox, 79 ; s. 219, poi^t 

An infant in its mother's womb is not considered as a 
person who can be killed witliin the description of murder 
or manslaughter. The rule is thus: it must be born, every 



'A- 



174 



HOMICIDE. 



part of it must have come from the mother, before the 
killing of it will constitute a felonious homicide : R. v. 
Wright, 9 0. & P. 754; R. v. Brain, 6 C. & P. 349 ; 1 Rasa. 
670; 2 Bishop, Cr. L. 632. Giving a child, whilst in the 
act of being bom, a mortal wound in the head as soon as 
the head appears, and before the child has breathed, will, if 
the child is afterwards born alive and dies thereof, and there 
is malice, be murder ; but if there is not malice, man- 
slaughter: R. V. Senior, 1 Moo. 346; 1 Lewin, 183 ; s. 219, 
post. 

Marder by poisoning. — Of all the forms of deatli by 
wliicb luman nature may be overcome, the most detest- 
ablo is 'hat of poison : because it can, of all others, be the 
kasii prevented either by manhood or forethought : 3 Inst. 
48. lie that wilfully gives poison to another, that hath 
provoktj'l him or not, is guilty of wilful murder ; the 
reason is because it is an act of deliberation odious in law, 
and presumes malice : 1 Hale, 455. A prisoner was 
indicted for the murder of her infant child by poison. She 
purchased a bottle of laudanum, and directed the person 
who had the care of the child to give it a teaspoonful every 
night. That person did not do so but put the bottle on 
the mantel-piece, where another little child found it and 
gave part of the contents to the prisoner's child who soon 
after died : held, that the administering of the laudanum 
by the child was as much, in point of law, an administering 
by the prisoner as if she herself had actually administered 
it with her own hand : R. v. Michael, 2 Moo. 120. On a 
trial for murder by poison; :au 8ia,1>ements made by the 
deceased in a conversation sh ^rtly before tho ^ :me at which 
the poison is supposed to have been administered are 
evidence to prove the state of his health at that time : R. 
V. Johnston, 2 C. & K. 354. On an indictment for the 
murder of A., evidence is not admissible that three others 
in the same fa.nily died of similar poison, and that the 
prisoner was at all the deaths, and administered .sc.niething 



GENERAL REMARKS. 

to two of his patients • K v W i 
jn indict^ent'against f JoZ^I^'-J ^°^- '''■ On 
husband by araenic, in Sept^X ^ ' '"'"■''*'• »* her 
on behalf of the P«>seoutr^"A;;e " »" "1 '^»<''-'^' 
by her two sons, one of whom d' 7 ^ '"«^ ^'^ tok"" 
other in Mar* subsequenUyTnd al " "^^""'er and the 
took a^eniem April LlouW but i^ ^"'^''^ ^°°' '"ho 
given of a similarity of sl„t "^ °°' <■'«■ P^'of was 
Evidence was also tended tZ^T '?• *''* f™^ »^«. 
house with her husband »d son . r" "" ">« »«■"« 
their tea, cooked their v^als" w"!*''^* ^he prepai^d 
the four parties: heU. that th fa tl^^'^^uted them to 
for the pu.pose of pro;inrfi^t .hllr": ""^ '^'^'^^^^^ 
.ctually died of a«enic; tcondlt th ■ \'''""'^^'' ''™»»"<i 
accidental; and that it wasTt f; ^ ^I' *""' "«« "ot 
its tendency to prove orT^ate a '"""""l^'hle by reason of 

f'Y ■■ E. V. Geerin,, ,8 Tt uTlT n" ''"""^^^"' 
of a husband and wife for iha ^ ' j " ^P°" *he trial 

'onner by administerLg 1 "rnic tfh" "V"" "'°"'- "* *>• 
rebutting the inference CthraLenrh; 1'" ""'^^ "' 
accdent evidence was admittedThT .J "^ ^"^ ''''^«° by 
fet wife had been poisoned nte ^1^ ""!'' ^"-"-^ 
he woman who waited upon hTr , P'''™™'^ i that 
erfood, shewed symptom^, of haW„" r^r'""'^"^ ^ated 
he food was always prepared bvtJ? ,'" ^''°"' 'hat 
'hat the twoprisoners the ^J^ot ,t ™'" P™"™^: and 
-..not affected wik any symlr'T' '" "'^ '"«'-. 
Gainer, 4 F. & F. 346 And Ar I f ? "' °^ P™^°''^ «■ v 
r»"ook, C.B., in R. V. c:tt^^;o1'•"'■■''f'-'=™™>ti".' 
;*™ a prisoner. was ch^;'' ^. ,,^"^' *»»■ '-W. that 
'"I'l by poison, and the defeti-e wl H . . """*'• "^ her 
".. an accidental taking of ",",?!!• "^*»*h resulted 






I 4-s • 



176 



HOMICIDE. 




MURDER BY KILLING OFFICERS OF JUSTICE. 

Ministers of justice, as bailiffs, constables, watchmen, 
etc. (either civil or criminal justice), while in the execution 
of their oflBces, are under the peculiar protection of the 
law ; "a protection founded in wisdom and equity, and in 
every principle of political justice, for without it the pub- 
lic tranquility cannot possibly be maintained, or private 
property secured. For these reasons the killing of officers 
so employed has been deemed murder of malice prepense 
as being an outrage wilfully committed in defiance of the 
justice of the kingdom. The law extends the same protec- 
tion to any person acting in aid of an officer of justice, 
whether specially called thereunto or not. And a public 
officer is to be considered as acting strictly in discharge of 
his duty, not only while executing the process intrusted to 
him, but likewise while he is coming to perform, and 
returning from the performance of his duty : s. 228, post. 

He is under the protection of the law eundo, morando 
et redeundo. And, therefore, if coming to perform his otRce 
he meets with great opposition and retires, and iu the 
retreat is killed, this will be murder. Upon the same prin- 
ciples, if he meets with opposition by the way, and is 
killed before he comes to the place (such opposition being 
intended to prevent his performing his duty), this will also 
be murder : Roscoe, 697 ; 1 Russ. 732. But the defendant 
must be proved to have known that the deceased was a 
public officer, and in the legal discharge of his duty as 
such ; for if he had no knowledge of the officer's authoritj' 
or business the killing will be manslaughter only : s. 229, 
8-s. 4, 'post. 

In order to render the killing of an officer of justice, 
whether he is authorized in right of his office or by war- 
rant, amount to murder, upon his interference with an 
afFray, it is necessary that he should have given some noti- 
fication of his being an officer, and of the intent with which 
he interfered : R. v. Gordon, 1 East, P. C.315, 352: s. S2,ant€. 



Where 
peace, and i 
^im as kne' 
and such as 
446. Butii 
peace, constt 
killed in end 
the person b 
it hath been 
a sudden affi 
comes, by con 
keep the peac 
tion to be not 
he who kills 
might suspect 
but if the pei 
^vithin Iiis proi 
'edged to bear 
that tlie party J 
ifitbein the d 
Killing an o 
DO warrant, am 
committed, and 
thouo-h such ch 
ticuJare necessar 
R-^R.329; ,,, 
«• V, Carey, 14 ^ 

^J'^ing an offi 

'""i''l^'i'. though tJ 

'"a" has done not} 

'^t'i<^ officer has a 

"'an knows the . 

officer dues not not 

^' v^ Woolmev, 1 3f 

So.whereamai 
fresh pui-suit kilJs 

'■"'^r Law— 12 



] 



GENERAt REJURKS. 



Where a constable interferJ"""" "'' 

peace, and is killed, auch of tlf' '° ^" "^^y ^ keep the 
«.m as knew hi„ to be a <lttS'""''™'™^'' '- k-'l £ 
and such as did not know i^f 1 ^ «"'"^ »' "-urdeT 
4«. But it hath been L- j ""^'oughter only • i „,?' 
peace, eonstabie oJ:Z:^':^^J ''"' « " >»'■■- ofS 
tilled in endeavouring tn!^* .' fu ™" * P"™** Person T 
the pe«o„ by whom het M ?"* "''°» h« -es^Snt 
it hath been resolved, tilt .f tb .1 ^"'^ "' »"dS ye^' 
a audden affray do i t givl'^lf "^ "^"O" ^'ain i^',^^ 
comes, by commanding the^^ °" '" "'<"" Purpose he 

keep the peace, or othrtisem^tf ?, ""^ '""'"^ »'»« to 
t-on to be not to take parlTn^K "^ ^^^"'"S bis inten 
he -h" kills him is Zll '," '^"""'^ «">' to app,l"f "" 
might suspect that he c^^t »»«la«ghter on^^ he 
b"t if the pe,.o„ intl;:::., rf "■■"^ ''« "dv" 
«>th,„ his proper distriefarfk' °'' "^ ^ «■> officer 

S '" 'r '"^ °«- he alumelh ■.rr"''"^--'-- - 
thatthepartykiiji h^ ™'neth, the law will presume 

"" he m the day time : 1 flawt jof '■°'™'' ^'P^^-'ly 

Killmg an officer will »„ , 
"» "arrant, and wis 'i,"""° """der, though he 1, ^ 
-mittod, and takes the Sr' '^"^ -^ i^eCwI. 
"•»'«h such charge doe, „ ^^ ^ ^"" " ''""•ffe only I^ 

-', see Kaffertv v Tk^ n ^' ^- ^ Ford 
" '•Carey, 14 Cox, 214 ^'"' ^^°P'«. '2 Cox, 6iV ' 

Killing an officer who »t* . 
"«■*'■ though the officer Wi^P*^ '° '"™»' " »«„ will h, 
"■' ''''■• '!»e nothing C'J'r '™'™nt,a„d though ,, 

'■«". U„.-,2 ""• " '» "^ >m,ch „,u,.der al°? 



I" 

w 



178 



HOMICIDE. 



the party weif killed while attempting to take the defend- 
ant in the act, for any person, whether a peace officer or 
not, has power to arrest a person attempting to commit or 
actually committing a felony : R. v. Howarth, 1 Moo. 207. 
If a person is playing music in a public thoroughfare, 
and thereby collects together a crowd of people, a police- 
man is jusoititd in desiring him to go on, and in laying his 
hand on him and sliglitly pushing him, if it is only done 
to give effect to his i-emonstrance ; and if the person, on so 
small a provocation, strikes the policeman with a dangerous 
weapon and kills him, it will be murder, but otherwise if 
the policeman gives him a blow and knocks him down : R. 
V. Hagan, 8 C. & P. 167. 

MURDER. -KILLING BY OFFIOERS OF JUSTICE. 
Where an officer of justice, in endeavouring to execute 
his duty, kills a man, this is justifiable homicide, or man- 
slaughter, or murder, according to circumstances. Where 
an officer of justice is resisted in the legal execution of his 
duty lie may repel force by force ; and if, in doing so, he 
kills the par'y resisting him, it is justifiable homicide ; and 
this in civil as well as iti criminal cases : 1 Hale, 494 ; 2 
Hale, 118. And the same as to persons acting in aid of 
such officer. Thus if a peace officer have a legal warrant 
against B.for felony, or if B. stand indicted for felony, in these 
cases if B. resist.and in the struggle be killed by the officer.or 
any person acting in aid of him, the killing is justifi- 
able : Fost. 318 ; s. 33, et seq., ante. So, if a private 
person attempt to arrest ' ne who commits a felony 
in his presence or interferes to suppress an atfray, 
and he resists, and kill the jjerson resisting, this 
is also justifiable homicide : 1 Hale, 481, 484. Still 
there must be an apparent necessity for the killing: 
for if the officer were to kill after the resisting had ceased, 
or if there were no reasonable necessity for the violent' 
ysed upon the part of the officer, the killing would be man- 
slaughter at th6 least. Also, in order to justify an officer 



e Words 



'' }^^ to bio 
le inipoi-tJ 



OKNERAL REMARKS. . „. 

«■ pmato person in those cases it i, „ 
should, at the time, be in thTll 1 f <=e»™ry that they 
Juty imp^d upon them by L '„^ 'T"^ ''^«''«'« a 
^tenees that, if the officer o"^ ^^2 J "' ™"" -="■««»■ 
would have been murder- for [f ,1 ^ " "^'^ ''"'"J. it 
case were such that it would h»LT ""='"»''ta>"=e3 of the 
to kill the oiflcer or private p'Z 'r^-rr'""^""-' ""'^ 
at east, in the officer or pH^Z' ' '"' »«"»'>'«gl.t.-- 

-»ti„g: Fost. 318; 1 if^to'ltT "" ""^ P''-^ 
Raol, or fcroing to a gaol assault *1 , " P"«>ner,s iu ^ 

in his defence, kilfa„yTttrf°'--. officer, and ' 

'%t P-venting an elape^'j-^i: ,'^^"^^35'%? " "'« 
Where an officer or nriv»t„ ""''*• 35. 36. ,<«fc. 
authority to apprehend a man L^ ^T"' ''"""8 iegal 
man, instead of Resisting, fleslr^"?"" *" <■" «>. «"<' the 
■» killed by the officer or ptl "'"' ^^'^ "fe"- »d 

the oHonce with which tte " anT ". "'' P"'™"' 'f 
treason or a felon,- or » T ^""^ charged were a 

coui.1 not otherwi^^b: ap;^^:rrr r-"" ^i^--. »d >,: 

«ab.e; but if charged ,S f Si 'ft^'"* '» J^"" 
niLsdemeanour merely or if n,„ *''" P^'^e <>'• other 

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180 



HOMICIDE. 




was altogether sudden and not the result of preconceived 
anger or malice ; for in no case will the killing, though in 
mutual combat, admit of alleviation if the fighting were 
upon malice. Thus a party killing another in a deliberate 
duel is guilty of murder : 1 Russ. 727. 

Where, upon a previous agreement, and after there has 
been time for the blood to cool, two persona meet with 
deadly weapons, and one of them is killed, the party who 
occasions the death is guilty of murder, and the seconds 
also are equally guilty ; and with respect to others shewn 
to be present the question is : Did they give their aid and 
assistance by their countenance and encouragement of the 
principals in the contest ? mere presence will not be suffi- 
cient ; but if they sustain the principals either by advice 
or assistance, or go to the ground for the purpose of 
encouraging and forwarding the unlawful conflict, although 
they do not say or do anything, yet, if they are present 
assisting and encouraging by their presence at the moment 
when the fatal shot is fired, they are, in Taw, guilty of the 
crime of murder : R. v. Young, 8 C. & P. 644. 

Where two persons go out to fight a deliberate duel and 
death ensues, all persons who are present, encouraging and 
promoting that death, will be guilty of murder. And the 
person who acted as the second of the deceased person in 
such a duel may be convicted of murder, on an indictment 
charging him with being present, aiding and abetting the 
person b}"- whose act the death of his principal was 
occasioned: R. v. Cuddy, 1 C. & K. 210 ; s. 61, anf(^. 



on 

kill and s 
It nee 

Chatburn 
slaughter 
omission s 
11 Cox, 21 

Mansla 
der in this, 
is unlawfuj 
yet the ma 
essence of 
slaugliter, t 
human nati 

In this 
ingredient i 
wanting; an 
yet it is in 
infirmity; t 
criminal, is 
human cons 
slaughter a 
aiding and t 
considered 
the fact in 
sumed to be 
And it was 
against A. ai 
as accessorie 
abetting, for 



MANSLAUGHTER. 



181 



MANSLAUGHTER. 

(Section S30, post.) 



The jurors 
in the county 



that A. B. 
did unlawfully 



Indictment. — 
on at 

kill and slay one 

It need not conclude contra formam statuti: R. v. 
Chatburn, 1 Moo. 403, Nor is it necessary where the man- 
slaughter arises from an act of omission, that such act of 
omission should be stated in the indictment : R. v. Smith, 
11 Cox, 210. 

Manslaughter is principally distinguishable from mur- 
der in this, that though the act which occasions the death 
is unlawful, or likely to be attended with bodily mischief, 
yet the malice, either express or implied, which is the very 
essence of murder is presumed to be wanting in man- 
slaughter, the act being rather imputed to the infirmity of 
human nature : Roscoe, 638 ; Fost. 290. 

In this species of homicide malice, which is the main 
ingredient and characteristic of murder, is considered to be 
wanting; and though manslaughter is in its degree felonious, 
yet it is imputed by the benignity of the law to human 
infirmity ; to infirmity which, though in the eye of the law 
criminal, is considered as incident to the frailty of the 
human constitution. In order to make an abettor to a man- 
slaughter a principal in the felony, he must be present 
aiding and abetting the fact committed. It was formerly 
considered that there could not be any accessories before 
the fact in any case of manslaughter, because it was pre- 
sumed to be altogether sudden, and without premeditation. 
And it was laid down that if the indictment be for murder 
against A. and that B. and C. were counselling and abetting 
as accessories before only (and not as 'present aiding and 
abetting, for such are principals), if A. be found guilty only 




'i: 



■.i:. 




182 



MANSLAUGHTER. 





of manslaughter, and acquitted of murder, the accessories 
before will be thereby discharged. But the position ought 
to be limited to these cases where the killing is sudden and 
unpremeditated, for there are cases of manslaughter where 
there may be accessories. Thus a man may be such an 
accessory by purchasing poison for a pregnant woman to 
take in order to procure abortion, and which she takes and 
thereby causes her death: R. v. Gaylor, Dears. & B. 288. If, 
therefore, upon an indictment against the principal and an 
accessory after the fact for murder the offence of the 
principal be reduced to manslaughter, the accessory may 
be convicted as accessory to the manslaughter: 1 Russ. 783. 
' 'an^laughter is homicide not under the influence of 
malice: R. v. Taylor, 2 Lewin, 215. 

The several instances of manslaughter may be considered 
in the following order : 1. Cases of provocation. 2. Cases 
of mutual combat. 3. Cases of resistance to officers of 
justice, to persons acting in their aid, and to private persons 
lawfully interfering to apprehend felons, or to prevent a 
breach of the peace. 4. Cases where the killing takes place 
in the prosecution of some criminal, unlawful or wanton 
act. 5. Cases where the killing takes place in consequence 
of some lawful act being criminally or improperly per- 
formed, or of some act performed without lawful authority: 
1 Russ. loc. cit 

CASES OF PROVOCATION. 

Whenever death ensues from the sudden transport of 
passion, or heat of blood upon a reasonable provocation, and 
without malice, it is considered as solely imputable to 
human infirmity and the offence will be manslaughter. It 
should be remembered that the person sheltering himself 
under this plea of provocation must make out the circum- 
stances of alleviation to the satisfaction of the court and 
jury unless they arise out of the evidence produced against 
him, as the presumption of law deems all homicide to be 
malicious until the contrary is proved. The most grievous 



words of. 
gestures, 
free the pi 
provocatic 
tion to kil 

manifested 
manifested 
on the ear 
to kill, and 
will be onli 
violence or 
as by pullin 
kills the age 
in case it apj 
and the age 
brevis occasi 
along the si 
venient dists 
him and jost 
such jostling 
make the kil 

And agaii 
A. riding on t 
track, and th< 
slaugliter. B 
the lii'st aggn 
cumstances of 
trivial provoc 
^sault, that . 
killing to man 
dered as sufl^ci 
the revenge is 
'ind barbarous 
the provocatior 
caused a sudde: 
killina^ which e 




I ! 



GENtJRAL REMARKS. 



183 



words of reproach, contempt'iiotis and inEniltihg actions of 
gestures, or' trespasses against lands or goods, will not 
free the party killing from the guilt of murder, if upon such, 
provocation a deadly weapon was made use of, or an inten- 
tion to kill, or to do some great bodily harm, was otherwise 
manifested. But if no such weapon be used, or intention 
manifested, and the party so provoked give the other a box 
on the ear or strike with a stick or other weapon not likely 
to kill, and kill him unluckily and against his intention, it 
will be only manslaughter. Where an assault is m^de with 
violence or circumstances of indignity upon a man'f; person, 
as by pulling him by the nose, and the party so assaulted 
kills the aggressor, the crime will be reduced to manslaughter 
in case it appears that the assault was resented immediately, 
and the aggressor killed in the heat of blood, the furor 
hrevis occasioned by the provocation. So if A. be passing 
along the street, and B. meeting him (there being con- 
venient distance between A. and the wall) take the wall of 
him and jostle him, and thereupon A. kill B., it is said that 
such jostling would amount to provocation which would 
make the killing only manslaughter. 

And again it appears to have been considered that where 
A. riding on the road B. whipped the horse of A. out of the 
track, and then A. alighted and killed B. it was only man- 
slaughter. But in the two last cases it should seem that 
the first aggression must have been accompanied with cir; 
cumstances of great violence or insolence; for it is not every 
trivial provocation which, in point of law, amounts to an 
issauli, that will of course reduce the crime of the party 
killing to manslaughter. Even a blow will not be consi- 
dered aa sufficient provocation to extenuate in cases where 
the revenge is disproportioned to the injury, and outrageous 
and barbarous in its nature; but where the blow which gave 
the provocation has been so violent as reasonably to have 
caused a sudden transport of passion and heat of blood, the 
killinsf which ensued has b^n regarded as the consequence 



:m 






# 



184 



MANSLAUGHTER. 




of human infirmity, and entitled to lenient consideration : 

1 Buss. 784. For cases on this defence of provocation : see 
ante, pp. 159, et seq. 

In R. V. Fisher, 8 C. & P. 182, 1 Russ. 725, it was ruled 
that whether the blood has had time to cool or not is a 
question for the court and not for the jury, but it is for the 
jury to find what length of time elapsed between the pro- 
vocation received, and the act done. But in R. v. Lynch, 
5 C. & P. 324 ; R. v. Hay ward, 6 C. & P. 157 ; R. v. Eagle, 

2 F. &. F 827 ; the question, whether or not the blow was 
struck before the blood had time to cool and in the heat of 
passion, was left to the jury ; and this seems now settled to 
be the law on the question. The English commissionei-s, 
4th Report, p. XXV, are also of opinion that " the law may 
pronounce whether any extenuating occasion of provoca- 
tion existed, but it is for the jury to decide whether the 

^ offender acted solely on that provocation, or was guilty of 
a malicious excess in respect of the instrument used or the 
manner of using it :" see s. 229, post. 

Vases of mutual comhat — Where, upon words of re- 
proach, or any other sudden provocation, the parties come 
to blows, and a combat ensues, no undue advantage bein? 
sought or taken on either side, if death happen under such 
circumstances the offence of the party killing will amount 
only to manslaughter. If A. has formed a deliberate design 
to kill B. and after this they meet and have a quarrel and 
many blows pass, and A. kills B., this will be murder if the 
jury is of opinion that the death was in consequence of 
previous malice, and not of the sudden provocation: R. v. 
Kirkham, 8 C. & P. 115. If, after an exchange of blows on 
equal terms, one of the parties on a sudden and without 
any such intention at the commencement of the affray 
snatches up a deadly weapon and kills the other party 
with it, such killing will only amount to manslaughter; 
but it will amount to murder if he placed the weapon, 
before they began to fight, so Ihat he might use it during 



the affray : 
Whiteley, 1 

Where t 
of the partie 
stamped upc 
thereby kill 
slaughter: I 

If two p( 
intent to pai 
he be killed 
slaughter. 

A sparring 
vate room is ] 
an injury rece 
manslaughter ; 

Oases of ■; 
acting in the 
inferfering to 
of the peace. 
arrest a man 
making the at 
was not actuall 
himself with a 
the prisoner w. 
have escaped fr< 
he should have < 
arrest him befoj 
^^foo. 80 ; 8. 229, 

W a constab 
charge which gi, 
soner runs away 
constaI)le at the 
the man kills J. i 
be murder but m 
arrest was illegal 
^'«e:R. v. Curv, 



GENERAL REMARKS. 



185 



the affray : 1 Russ. 731; R. v. Kessal, 1 C. & P. 437; R. v. 
Whiteley, 1 Lewin, 173. , 

Where there had been mutual blows, and then, upon one 
of the parties being pushed down on the ground, the other 
stamped upon his stomach and belly with great force, and 
thereby killed him, it was considered only to be man- 
slaughter : R. V. Ayes, R. &; R. 166 ; aed qucere. 

If two persons be fighting, and another interfere with 
intent to part them but do not signify such intent, and 
he be killed by one of the combatants, this is but man- 
slaughter. 

A sparring match with gloves fairly conducted in a pri- 
vate room is not unlawful, and therefore death caused by 
an injury received during such a match does not amount to 
manslaughter: R. v. Young, 10 Cox, 371. 

Cases of resistance to ojfficers of justice, to persons 
acting in their aid, UTid to private persons lawfully 
interfering to apprehend felons or to prevent a breach 
of the peace. See s. 229, s-s. 4. Attempting illegally to 
arrest a man is sufficient to reduce killing the pei-son 
making the attempt to manslaughter, though the arrest 
was not actually made, and though the prisoner had armed 
himself with a deadly weapon to resist such attempt, if 
the prisoner was in such a situation that he could not 
have escaped from the arrest ; and it is not necessary that 
he should have given warning to the person attempting to 
arrest him before he struck the blow : R. v. Thompson, 1 
Moo. 80 ; s. 229, post. 

If a constable takes a man without warrant upon a 
charge which gives him no authority to do so, and the pri- 
soner runs away and is pursued by J. S., who was with the 
constable at the time, and charged by him to assist, and 
the man kills J. S. to prevent his retaking him, it will not 
be murder but manslaughter only ; because if the original 
arrest was illegal the recaption would have been so like- 
wise : R. V. Curvan, 1 Moo. 132. 



\ 



186 



MANSLAUGHTER. 






Where a common soldier stabbed a sergeant in the same 
regiment who had arrested him for some alleged misde- 
meanour, held, that as the articles of war were not produced, 
by which the arrest might have been justified, it was only 
manslaughter as no authority appeared for the arrest : R. v. 
Withers, 1 East, P. C. 295. 

A warrant leaving a blank for the christian name of the 
person to be apprehended, and giving no reason for omit- 
ting it but describing him only as the son of J. S. (it 
appearing that J. S. had four sons, all living in his house), 
and stating the charge to be for assaulting A. without par- 
ticularizing the time, place or any other circumstances of 
the assault, is too general and unspecific. A resistance to 
an arrest thereon, and killing the person attempting to ex- 
ecute it, will not be murder : R. v. Hood, 1 Moo. 281. This 
is not now law ; s. 229, jyost 

A constable having a warrant to apprehend A. gave it 
to his son, who in attempting to arrest A. was stabbed by 
him with a knife which A. happened to have in his hand 
at the time, the constable then being in sight, but a quar- 
ter of a mile off: held, that this arrest was illegal, and 
that if death had ensued this would have been manslaugh- 
ter only unless it was shown that A. had prepared the 
knife beforehand to resist the illegal violence : R. v. 
Patience, 7 C. & P. 795. 

In order to justify an arrest even by an officer, under a 
warrant, for a mere misdemeanour, it is necessary that he 
should have the warrant with him at the time. Therefore, 
in a case where the officer, although he had seen the war- 
rant, had it not with him at the time, and it did not appear 
that the party knew of it ; held, that the aiTest was not 
lawful ; and the person against whom the warrant was 
issued resisting apprehension and killing the officer ; held, 
that it was manslaughter only : R. v. Cliapman, 12 Cox, 4; 
s. 32 ante. 



"If a pr 
police constal 
constable, or i 
causes death, j 
harm, he is g- 
intent to esoap 
dentally causes 
a constable, ha 
the bad warrftni 
it is void and rt 
the death of th( 
officer had the ( 
the man guilty o 
he knew nothing 
for saying that h 
on which the kij 
wilfully setting t] 
execution of Jjis 
officer whilst ejieo 
that every man hi 
such an arrest is j 
manslaughter. L 
setting the law a 
appeared to him to 
cation would be juj 
It is of the essenc 
it is executed shouJ 
arrest.' {Per Colt 
1B.&C.288.) An 
it is of the essence ( 
arrested should hav, 
of the arrest. Nov 
arrests on the void 
notice of tl,e good ; 
Botice of it for ever' 
tiie void warrant; aj 
calculated to mislead 
««nt, and knows not 
warrant. Lastly, it c 



GENERAL REMARKS. 



187 



"If a priioner, having been lawfully apprehended by a 
police constable on a oriminal charge, tises violence to the 
constable, or to any one lawfully aiding or assisting him, which 
causes death, and does so with intent to inflict grievous bodily 
harm, lie is guilty of murder ; and so if he does so only with 
intent to escape. But if, in the course of the struggle, he acci- 
dentally causes an injury it would be manslaughter. Suppose 
a constable, having a good and a bad warrant, arrest a man on 
the bad warrtot only which he allows the man to read who sees 
it is void and resists his arrest on that ground, and the result is 
the death of the officer ; if this had been the only authority the 
officer had the offence would have been only manslaughter ; is 
the man guilty of murder by reason of the good warrant of which 
he knew nothing ? It would seem that there are strong reasons 
for saying that he would not be guilty of murder. The ground 
on which the killing an officer is murder is that the killer is 
wilfully setting the law at defiance, and killing an officer in the 
execution of his duty. The ground on which the killing of an 
officer whilst execnting an unlawful warrant is manslaughter ia 
that every man has a right to resist an unlawful arrest, and that 
such an arrest is a sufficient provocation to reduce the killing to 
manslaughter. In the supposed case the killer would not be 
setting the law at defiance, but would be resisting to what 
appeared to him to be an unlawful arrest ; and the actual provo- 
cation would be just as great as if the bad warrant alone existed. 
It is of the essence of a warrant that ' the party upon whom 
it is executed should know whether he is bound to submit to the 
arrest.' {Pi'i- Coltman, J., in Hoye v. Bush, citing R. v. Weir, 
1 B. & C. 288.) And where an arrest is made without a warrant 
it is of the essence of the lawfulness of the arrest that thei.party 
arrested should have either express or implied notice of the cause 
of the arrest. Now, where a constable in the supposed case 
arrests on the void warrant, the party arrested has no express 
notice of the good warrant for it is not shown, and no implied 
notice of it for everything done by the constable is referable to 
tiie void warrant ; and, besides, the conduct of the constable is 
I' calculated to mislead, and it may well be that the party is inno- 
eent, and knows nothing of the offence specified in the valid 
warrant. Lastly, it must be remembered that in such a case the 



r 






188 



MANSLAUGHTER. 





criminality of the act depends upon the intention of the party 
arrested, and that intention cannot in any way be affected by 
facts of which he is ignorant." 

*' On the other hand, it would seem to be clear that, where an 
officer has two or more warrants one of which is bad, and he 
shows all to the party to be arrested who kills the officer in 
resisting the arrest, it would be murder, for he was bound to 
yield obedience to the lawful authority." By Greaves, in notes 
on "arrest without warrant." — Cox & Saunder's Crim. Law 
Consol. Acts, p. Ixxvii. 

Cases where the killing takes place in the prosecution of 
name criminal, unlawful or wanton act. — Where from an 
action unlawful in itself, done deliberately and with mis- 
chievous intention, death ensues, though against or beside 
the original intention of the party, it will be murder ; and 
if such deliberation and mischievous intention do not 
appear, which is matter of fact and to be attested from 
circumstances, and the act was done heedlessly and incau- 
tiously, it will be manslaughter : R. v. Fentou, I Lewin, 
179; R. V. Franklin, 15 Cox, 163; s. 227, post. 

And if a person breaking an unruly horse ride him 
amongst a crowd of people, and death ensue from the 
viciousness of the animal, and it appear clearly to have 
been done heedlessly and incautiously only, and not with 
the intent to do mischief, the crime will be manslaughter: 
1 Euss. 849. 

Where one, having had his pocket picked, seized the 
offender, and being encouraged by a concourse of people 
threw him into an adjoining pond by way of avenging the 
theft by ducking him but without any intention of taking 
nway his life, this was held to be manslaughter only : E.t. 
Fray, 1 East, P. C. 236. 

Causing the death of a child by giving it spirituous 
liquors in a quantity quite unfit for its tender age amounts 
to manslaughter : B. v. Martin, 3 C. & P. 211. 

If a man take a gun not knowing whether it is loaded 
or unloaded and, using no means to ascertain, fires it in the 



GENERAL REMARKS. 



180 



direction of any other person and death ensues, thia is 
manslaughter : B. v. Campbell, 11 Cox, 823. 

The prisoner was charged with manslaughter. The 

evidence showed that the prisoner had struck the deceased 

twice with a heavy stick, that he had afterwards left him 

asloep by the side of a small fire in a country by-lane 

during the whole of a frosty night in January, and the next 

morning, finding him just alive, put him under some straw 

in a barn where his body was found some months after. 

The jury were directed that if the death of the deceased had 

resulted from the beating or from the exposure during the 

night in question, such exposure being the result of the 

prisoner's criminal negligente, or from the prisoner leaving 

the body under the straw ill but not dead, the prisoner was 

guilty of manslaughter: verdict, manslaughter: B. v. 

Martin, 11 Cox, 136 ; see R. v. Towers, 12 Cox, 530, as to 

causing death through frightening the deceased ; and B. v. 

Dugal, 4 Q. L. B. 350 ; s. 220, post. 

Cases tchere the killing takes plcice in consequence of some 
lawful act being criminally or improperly performed, or of 
iome net performed without lauful authority. — Where a felony 
has been committed, or a dangerous wound given, and the 
party flies from justice, he may be killed in the pursuit if 
be cannot otherwise be taken. And the same rule holds if 
a felon, after arrest, break away as he is carried to gaol, 
and his pursuers cannot retake without killing him. But 
if he may be taken in any case without such severity, it is 
at least manslaughter in him who kills him, and the jury 
ought to inquire whether it were done of necessity or not : 
BS. 38, 58, ante. 

Id making arrests in cases of misdemeanour and breach 
of the peace (with the exception, however, of some cases 
of flagrant misdemeanours), it is not lawful to kill the party 
accused if he fly from the arrest, though he cannot other- 
vise be overtaken, and though there be a warrant to appre- 
hend him, and generally speaking it will be murder ; but 



I 



190 



MANSLAUGHTER. 



under some oircumstaQcea it may amount only to man- 
slaughter, if it appear that death was not intended : 1 
EuBS. 858. 

If an ofiQcer, whose duty it is to execute a sentence of 
whipping upon a criminal, should be so barbarous as to 
oause the party's death by excessive execution of the 
sentence, he will at least be guilty of manslaughter: 
Hawk. c. 29, s. 5. 

Killing by correction. — Moderate and reasonable cor- 
rection may properly be given by parents, masters and 
other persons, having authority in foro domeatico, to those 
who are under their care ; but if the correction be immo- 
derate or unreasonable, either in the measure of it or in 
the instrument made use of for that purpose, it will be 
either murder or manslaughter, according to the circum- 
stances of the case: ss. 55, 58, ante. If it be done 
with a dangerous weapon, likely to kill or maim, due regard 
being always had to the age and strength of the party, it 
will be murder; but if with a cudgel or other thing not 
likely to kill, though improper for the purpose of correction, 
it will be manslaughter : 1 Buss. 861. 

A schoolmaster who, on the second day of a boy's 
return to school, wrote to his parent, proposing to beat 
him severely in order to subdue his alleged obstinacy, and 
and on receiving the father's reply assenting thereto beat 
the boy for two hours and a half secretly in the night, and 
with a thick stick, until he died, is guilty of mansldugbter: 
E. V. Hopley, 2 F. «& F. 202. 

Where a person in loco parentis inflicts corporal punish- 
ment on a child, and compels it to work for an unreasonable 
number of hours and beyond its strength, and the child 
dies, the death being of consumption but hastened by the 
ill-treatment, it will not be murder but only manslaughter 
in the persoa inflicting the punishment, although it was 
cruel and excessive, and accompanied by violent and 
threatening language, if such person believed that the child 



GENERAL REMARKS. 



in 



wa& shamming illn«88,anGi was reall; able to do the quantity 
of work required : B. v. Cheeseman, 7 C. & P. 454. 

An infant, two years and a half old, is not capable of 
appreciating correction ; a father therefore is not justified 
in correcting it, and if the infant dies owing to such 
correction the father is guilty of manslaughter: K. y. 
Griffin, 11 Cox, 402. 

Di'nth canted by negligence. — Where persons employed 
about such of their lawful occupation, from whence danger 
may probably arise to others, neglect the ordinary pre- 
cautions, it will be manslaughter at least, if death is caused 
by such negligence : 1 Buss. 864 ; s. 218, ante. 

That which constitutes murder when by design and of 
malice prepense, constitutes manslaughter when arising 
from culpable negligence. The deceased was with others 
employed in walling the inside of a shaft. It was the duty 
of the prisoner to place a stage over the mouth of the shaft, 
and the death of deceased was occabioned by the negligent 
omission on his part to perform such duty. He was con- 
victed of manslaughter, and upon a case reserved the 
conviction was affirmed : B. v. Hughes, 7 Cox, 301 ; ss. 212, 
218, 214, ante. 

The prisoner, as the private servant of B., the owner of 
a tramway crossing a public road, was entrusted to watch 
it. While he was absent from hia duty an accident 
happened and G. was killed. The private Act of Parlia- 
ment, authorizing the road, did not require B. to watch the 
tramway : Heldy that there was no duty between B. and the 
public, and therefore that the prisoner was not guilty of 
negligence : B. v. Smith, 11 Cox, 210. 

Although it is manslaughter, where death was the result 
of t^e joint negligence of the prisoner and others, yet it 
must ^ve been th^ direct result wholly or in part of the 
prisov^r's negligence, and his neglect must have heei^ 
vholly or in part the proximate and efficient cause ol the 
death, and it is not so where the negligence of some other 



V 



192 



MANSLAUGHTER. 






person has intervened between his act or omission and the 
fatal result : E. v. Ledger, 2 F. & F. 867 ; R. v. Pocock, 
17 Q. B. 34. 

If a person is driving a cart at an unusually rapid rate,, 
and drives over another and kills him, he is guilty of man- 
slaughter though he called to the deceased to get out of the 
way, and he might have done so if he had not been in a state 
of intoxication : R. v. Walker, 1 C. & P. 320; s. 220, post. 
And it is no defence to an indictment for manslaughter 
where the death of the deceased is shown to have been 
caused in part by the negligence of the prisoner, that the 
deceased was also guilty of negligence, and so contributed 
to his own death. Contributory negligence is not an 
answer to a crir^inal charge : R. v. Swindall, 2 Cox, 141. 
In summing up in that ^ase, Pollock, C.B., said : 
'* The prisoners are charged with contributing to the 
death of the deceased by their negligence and improper 
conduct ; and, if they did so, it matters not whether the 
deceased was deaf, or drunk, or negligent, or in part con- 
tributed to his own death ; for in this consists a great 
distinction between civil and criminal proceedings. If 
two coaches run against each other, and the drivers of both 
are to blame, neither of them has any remedy for damages 
against the other. But in the case of loss of life, the law 
takes a totally different view ; for there each party is 
responsible for any blame that may ensue, however large 
the share may be ; and so highly does the law value human 
life, that it admits of no justification wherever life has been 
lost, and the carelessness and negligence of any one person 
has contributed to the death of another person." 

In R. V. Dant, 10 Cox, 102, L. & C. 670, Blackburn, J., 
said : "I have never heard that upon an indictment for 
manslaughter, the accused is entitled to be acquitted 
because the person who lost his life was in some way to 
blame." And Erie, Channell, Mellor and Montague Smith, 
JJ., concurred. 




GENERAL REMARKS. 



193 



And in B. v. Hutchinson, 9 Cox, 666, Byles, J., in his 
charge to the Grand Jury, said : " If the man had not heen 
killed, and had brought an action for damages, or if his 
wife and family had brought an action, if he had in any 
degree contributed to the result an action could not be 
maintained. But in a criminal case it was different. The 
Qaeen was the prosecutor and could be guilty of no negli- 
gence ; and if both the parties were negligent the survivor 
was guilty." 

And the same learned Judge, in B. v. Eew, 12 Cox, 866^ 
said: "It has been contended if there was contributory 
negligence on the part of the deceased, then the defendants 
are not liable. No doubt contributory negligence would 
be an answer to an action. But who is the plaintiff^ 
here ? The Queen, as representing the nation ; and if they 
were all negligent together I think their negligence would 
be DO defence." 

And Lush, J., in B. v. Jones, 11 Cox, 644, distinctly 
said that contributory negligence on the part; of the deceased 
was DO excuse in a criminal case. 

In E. V. Birchall, 4 F. & F. 1087, Willes, J., however^ 
held that where the deceased has contributed to his deaths 
by his own negligence, although there may have been* 
negligenie on the part of the prisoner, the latter cannot' 
be convicted of manslaughter, observing that, until he saw 
a decision to the contrary, he should hold that a man was' 
pot criminally responsible for negligence for which he would 
not be responsible in an ac'iion. But that case hq-s not 
bjen fo llowed. 

If a man undertakes to drive another in a vehicle he is 
bound to take proper care in regard to the safety of the 
man under his charge ; and if by culpably negligent driving 
^e causes the death of the other he will be guilty of man- 
slaughter : B. V. Jones, 11 Cox, 644. 

In order to convict the captain of a steamer of man- 
slaughter in causing a death by running down another 

Crim. Law— 13 



Jill! 



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«fv^-»\ .♦;• . ■• ■;■. 




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194 



MANSLAUGHTER. 



yessel, there must be some act of personal . misconduct or 
personal negligence shown on his part: B. v. Allen, 
7 C. & P. 153 ; B. v. Green, 7 C. & P. 166 ; B. v. Taylor, 
9 C. & P. 672. 

On an indictment against an engine driver and a fire- 
man of a railway train for the manslaughter of persons 
killed while travelling in a preceding train, by the prisoner's 
train runni: ; into it, it appeared that on the day in question 
special instr ctions had been issued to them, which in 
some respects differed from the general rules and regula- 
lations, and altered the signal for danger so as to make it 
mean not "stop" but "proceed with caation;" that the 
trains were started by the superior officers of the company 
irregularly, at intervals of about five minutes; that the 
preceding train had stopped for three minutes, without any 
notice to the prisoners except the signal for caution ; and 
that their train was being driven at an excessive rate of 
speed, and that then they did not slacken immediately on 
perceiving the signal, but almost immediately, and that as 
soon as they saw the preceding train they did their best 
to stop but without effect : Held, first, that the special 
rules, so far as they were not consistent with the general 
rules, superseded them; secondly, that if the prisoners 
honestly believed they were observing them, and they were 
not obviously illegal, they were not criminally responsible ; 
thirdly, that the fireman being bound to obey the directions 
of the engine driver, and, so far as appeared, having done 
80, there was no case against him : B. v. Trainer, 4 F. & 
F. 105. 

Where a fatal railway accident had been caused bj tbe 
train running off the line, at a spot where rails had been 
taken up without allowing sufficient time to replace them, 
and also without giving sufficient, or at all events effective, 
warning to the engine-driver ; and it was the duty of tbe 
foreman of plate layers to direct when the work shoaldbe 
done : Held, that though he was under the general control 



I 

f 



of an inspi 
^^t that tl 
been a maj 
«ven althou 
the engine- 
Benge, 4 F. 
By medl 
Me and hon 
performs an 
is not guiliy 
whether such 
he has had a 
ButcbelJ, 3 C 
as a man n 
uterus of one i 
placenta, by n 
able for man 
misconduct ar 
from the most 
&V. 635. A 
licensed or unl 
<leath of a pati 
conduct is cha 
art, or by gross 
St. John Long, 
ing the cure of j 
education or no 
his patient aft( 
rashness in th( 
consequence of , 
8'aughter; B. ^ 
8- 212, ante. 

Whereapera 
a dangerous rem( 
medical assistan 
fangerous remed 
'°« 't is guilty of 



I 



i \'^: €m 



GENERAL REMARKS. 



im- 



of an inspector of the district, the inspector was not liable 
but that the foreman was, assuming his negligence to have 
been a material and a substantial cause of the accident, 
even although there had also been negligence on the part of 
the engine-driver in not keeping a sufficient lookout : B. v. . 
Benge, 4 F. «& F. 604. 

By medical practitioners and quacks. — If a person, bona 
fide and honestly exercising his best skill to cure a patient, 
performs an operation which causes the patient's death, he 
is not guilly of manslaughter, and it makes no difference 
whether such person is a regular surgeon or not, nor whether 
he has had a regular medical education or not : B. v. Van 
Butchell, 3 G. & P. 629. A person in the habit of acting 
as a man midwife tearing away part of the prolapsed 
uterus of one of his patients, supposing it to be part of the 
placenta, by means of which the patient dies, is not indict- 
able for manslaughter unless he is guilty of criminal 
misconduct arising either from the grossest ignorance or 
from the most criminal inattention : B. v. Williamson, 8 G. 
&, F. 685. A person acting as a medical man, whether 
licensed or unlicensed, is not criminally responsible for the 
death of a patient occasioned by his treatment unless his 
conduct is characterized either by gross ignorance of his 
art, or by gross inattention to his patient's safety : B. v. 
St. John Long, 4 G. & P. 898. Where a person undertak- 
ing the cure of a disease (whether he has received a medical 
education or not), is guilty of gross negligence in attending 
his patient after he had applied a remedy, or of gross 
rashness in the application of it, and death ensues in 
consequence of either, he is liable to be convicted of man- 
slaughter : B. V. St. John Long (2nd case), 4 G. & P. 423 ; 
s. 212, ante. 

Where a person grossly ignorant of medicine administers 
a dangerous remedy to one labouring under a disease, proper 
medical assistance being at the time procurable, and that 
dangerous remedy causes death, the person so administer- 
ing it is guilty of manslaughter : B. v. Webb, 2 Lewin, 196. 




r I 




•'1 







196 



MANSLAUGHTER. 



In this case . Lord Lyndhurst laid down the following 
rule : " In these cases there is no difference between a 
licensed physician or surgeon, and a person acting as 
physician or surgeon without license. In either case, if 
a party having a competent degree of skill and knowledge 
makes an accidental mistake in his treatment of a patient, 
through which mistake death ensues, he is not thereby 
guilty of manslaughter ; but if, where proper medical as- 
sistance can be had, a person totally ignorant of the science 
of medicine takes on himself to administer a violent and 
dangerous remedy to one labouring under disease, and death 
ensues in consequence of that dangerous remedy having 
been so administered, then he is guilty of manslaughter." 

If a medical man, thoug'h lawfully qualified to practice 
as such, causes the death of a person by the grossly un- 
skilful, or grossly incautious, use of a dangerous instrument, 
he is guilty of manslaughter : E. v. Spilling, 2 M. & Bob. 
107. Any person, whether a licensed medical practitioner 
or not, who deals with the life or health of any of Her 
Majesty's subjects is bound to have competent skill, and is 
bound to treat his or her patients with care, attention and 
assiduity ; and if a patient dies for want of either the per- 
son is guilty of manslaughter : B. v. Spiller, 5 C. & P. 833 ; 
B. V. Simpson, 1 Lewin, 172 ; B. v. Ferguson, 1 Lewin, 
181. In cases of this nature the question for the jury is 
always, whether the prisoner caused the death by his crim- 
inal inattention and carelessness : B. v. Crick, and B. v. 
Crook, 1 F. & F. 519, 621 ; B. v. Macleod, 12 Cox, 684. On 
an indictment for manslaughter by reason of gross ignor- 
ance and negligence in surgical treatment, neither on one 
side nor on the other can evidence be gone into of former 
cases treated by the prisoner : B. v. Whitehead, 3 C. & K. 
202. 

A mistake on the part of a chemist in putting a poison- 
ous liniment into a medicine bottle, instead of a liniment 
bottle, in consequence of which the liniment was taken by 



GENERAL REMARKS. 



m 



his ousiomer internally with fatal results, the mistake being 
made under circumstances which rather threw the prisoner 
off his guard, does not amount to such criminal negligence 
as will warrant a conviction for manslaughter : I{! v. Noakes, 
4 F. &. F. 920. On an indictment for manslaughter 
against a medical man by administering poison by mistake 
for some other drug it is not sufficient for the prosecution 
merely to show that the prisoner who dispensed his own 
drugs supplied a mixture which contained a large quantity 
of poison ; they are bound also to show that this happened 
through the gross negligence of the prisoner : B v. Spen- 
cer, 10 Cox, 525. A medical man who administered to his 
mother for some disease, prussic acid, of which she almost 
immediately died, is not guilty of manslaughter, it not ap- 
pearing distinctly what the quantity was which he admin- 
istered, or what quantity would be too great to be admin- 
istered with safety to life : R. v. Bull, 2 F. & F. 201. If 
an unskilled practitioner ventures to prescribe dangerous 
medicines of the use of which he is ignorant, that is culp- 
able rashness for which he will be held responsible : R- v. 
Markuss, 4 F. & F. 356; R. v. Macleod, 12 Cox, 534. 

The prisoner was indicted for the manslaughter of an 
infant child ; the prisoner, who practiced midwifery, was 
called in to attend a woman who was taken in labour, and 
when the head of the child became visible the prisoner, 
being grossly ignorant of the art which he professed, and 
unable to deliver the woman with safety to herself and the 
child, as might have been done by a person of ordinary 
skill, broke and compressed the skull of the infant, and 
thereby occasioned its death immediately after it was born; 
the prisoner was found guilty ; it was submitted that the 
child being en ventre de sa mhe when the wound was given 
the prisoner could not be guilty of manslaughter ; but, 
upon a case reserved, the judges were unanimously of 
opinion that the conviction was right : R. v. Senior, 1 Moo. 
846 ; 8. 219, potL 




. « 



'iii 






198 



"#7 



\ 



BlANSLAUGHTER. 



NEGLECT OF NATURAL DUTIES. ^^'^ ;^'''- 



iSee Section il5, ante. 



Lastly, there are certain natural and moral duties 
towards others which, if a person neglect without malicious 
intention, and death ensue, he will be guilty of manslaughter. 
Of this nature is the duty of a parent to supply a child with 
proper food. When a child is very young and not weaned 
the mother is criminally responsible if the death arose 
from her not suckling it when she was capable of doing so: 
B. V. Edwards, 8 G. & P. 611. But if the child be older 
the omission to provide food is the omission of the husband, 
and the crime of the wife can only be the omitting to 
deliver the food to the child after the husband has provided 
it : E. V. Saunders, 7 C. & P. 277. 

A master is not bound by the common law to find 
medical advice for his servant ; but the case is different 
with respect to an apprentice, for a master is bound during 
the illness of his apprentice to find him with proper 
medicines, and if he die for want of them it is manslaughter 
in the master : B. v. Smith, 8 G. & P. 153. Where a 
person undertakes to provide necessaries for a person who 
is 80' aged and infirm that he is incapable of doing it for 
himself, and through his neglect to perform his under- 
taking death ensues, be is criminally responsible. On an 
indictment for the murder of an aged and infirm woman 
by confining her against her will, and not providing her 
with meat, drink, clothing, firing, medicines and other 
necessaries, and not allowing her the enjoyment of the open 
air, in breach of an alleged duty, if the jury think that the 
prisoner was guilty of wilful neglect, so gross and wilful 
that they are satisfied he must have contemplated her 
death, he will be guilty of murder ; but if they only think 
that he was so careless that her death was occasioned by 
his negligence, though he did not contemplate it, he will be 
guilty of manslaughter : E. v. Marriott, 8 G. & P. 426. 



To rend 
through n< 
culpability : 
B. V. Finne 
V. Handley, 
Lead. Caa. ; 



OBNERAL REMARKS. 



199 



To render a person liable to conTiofcion for manslaughter 
through neglect of duty there must be sneb a degree of 
culpability in his conduct as to amount to gross negligence : 
B. V. Finney, 12 Cox, 626 ; B. v. NichoUs, 18 Cox, 75 ; B. 
V. Handley, 18 Cox, 79 ; B. v. Morby, 15 Cox, 86, Warb. 
Lead. Cas. 116 ; B. v. Elliott, 16 Cox, 710. 

OTHER OASES OF MANSLAUGHTER. ^ " 

Death resulting from fear, caused by menaces of per- 
sonal violence and assault, though without battery, is 
Bufficient in law to support an indictment for manslaughter : 
B. V. Dugal, 4 Q. L. B. 850; ss. 220, 228, post. 

One who points a gun at another person, without pre- 
viously examining whether it be loaded or not, will, if the 
weapon should accidentally go off and kill him towards 
whom it is pointed, be guilty of manslaughter : B. v. Jones, 
12 Cox, 628 ; 8ee B. v. Weston, 14 Cox, 846 ; s. 218, ante. 

Three persons went out together for rifle practice. They 
selected a field near to a house, and put up a target in a 
tree at a distance of about a hundred yards. Four or five 
shots were fired, and by one of them a boy who was in a 
tree in a garden, at a distance of three hundred and ninety- 
three yards, was killed. It was not clear which of the three 
persons fired the shot that killed the boy. Held, that all 
three were guilty of manslaughter: B. v. Salmon, 14 Cox, 
494, Warb. Lead. Cas. 118. 

If an injury is inflicted by one man upon another, which 
compelled the injured man, under medical advice, to sub- 
mit to an operation during which he dies, for that death the 
assailant is guilty of manslaughter : B. v. Davis, 15 Cox, 
174 ; 8. 226, po8t. 

An indictment for manslaughter will not lie against the 
mauaging director of a railway company by reason of the 
omission to do something which the company, by its char- 
ter, was not bound to do, although he had personally pro- 
mised to do it : Ex parte Brydges, 18 L. C. J. 141. 




200 



MANSLAUGHTER. 





An indiotment contained two counts, one charging the 
prisoner with mardering M. J. T. on the 10th of November, 
1881, the other with manslaughter of the said M. J. T. on 
the same day. The grand jury found a "true bill." 
A motion to quash the indictment for misjoinder was 
refused, the counsel for the prosecution electing to proceed 
on the first count only. Held, affirming the judgment of 
the Supreme Court of New Brunswick, that the motion 
could not be granted ; Theal v. E., 7 S. C. E. 397. 

The prisoner was convicted of manslaughter in killing 
his wife, who died on the 10th Nov., 1881. The immediate 
cause of her death was acute inflammation of the liver 
which the medical testimony proved might be occasioned 
by a blow or fall against a hard substance. About three 
weeks before her death (17th October preceding), the pri- 
soner had knocked his wife down with a bottle ; she fell 
against a door and remained on the floor insensible for 
some time ; she was confined to her bed soon afterwards 
and never recovered. Evidence was given of frequent acts 
of violence committed by the prisoner upon his -wif?, 
within a year of her death, by knocking her down and 
iiicking her in the side. The following questions were 
reserved, viz., whether the evidence of assaults and violence 
committed by the prisoner upon the deceased, prior to the 
10th Nov. or the 17th Oct., 1881, was properly received, 
and whether there was any evidence to leave to the jury to 
sustain the charge in the first count of the indictment. Held, 
affirming the judgment of the Supreme Court of New 
Brunswick, that the evidence was properly received and 
that there was evidence to submit to the jury that the 
<lisease which caused her death was produced by the inju- 
ries inflicted by the prisoner : Id. 

A corporal was tried for murder and convicted of man- 
slaughter. The evidence showed that W. (the deceased), 
having been confined for intoxication, defendant with two 
men was ordered by a sergeant to tie him so that he could 



GENERAL REMARKS. 



201 



not make a noise. The order was not executed so as to stop 
the noise, and a second order was given to tie W. so that 
be could not shout. To effect this defendant caused W. to 
be tied in a certain manner, and he died in that position, 
Held, that whether the illegality consisted in the order of 
the sergeant, or in the manner in which it was carried out, 
the defendant might he properly convicted: held, also, that 
the jury were justified in finding that the death of W. was 
caused or accelerated by the way in which he was tied by 
defendant, or by his directions: B v. Stowe, 2 G. & 0. 
(N. S.) 121. 

In the North West Territories it is not necessary that a 
trial for murder should be based upon an indictment by a 
grand jury or a coroner's inquest : E. v. Connor, 2 Man. 
L. R. 236. 

As to insanity as a defence in criminal cases: see B. v. 
Biel, 2 Man. L. B. 321. 

Evidence of one crime may be given to show a motive for 
committing another; and where several felonies are part of 
tbe same transaction evidence of all is admissible upon the 
trial of an indictment for any of them; but where a prisoner 
indicted for murder, committed while resisting constables 
about to arrest him, had, with others, been guilty of riotous 
acts several days before, it is doubtful if evidence of such 
riotous conduct is admissible, even for the purpose of 
showing the prisoner's knowledge that he was liable to be 
arrested, and, therefore, had a motive to resist the officers: 
E. V. Chasson, 3 Pugs. (N. B.) 546. 

As to the admissibility of dying declarations the most 
recent cases are: B. v. Morgan, 14 Cox, 337; B. v. Beding- 
field, 14 Cox, 341; see same case in Warb. Lead. Cas. 254; 
K. V. Hubbard, 14 Cox, 565 ; B. v. Osman, 15 Cox, 1 ; B. 
V. Goddard, 15 Cox, 7; E. v. Smith, 16 Cox, 170; B. v. 
Oloster, 16 Cox, 471; B. v. Mitchell, 17 Cox, 503; see also 
E.V.Jenkins, 11 Cox, 250, Warb. Lead. Cas. 252, and cases 
there collected; B. v. MoMahon, 18 O.B. 502. 



W 






V 









202 



MANSLAUGHTBR. 



Homioide in self-defence, i.e., committed «« tt tua de- 
fendendo in defence of a man's person or property, upon 
some sadden affray, has been nsnally classed with homicide 
per infortunium, under the title of excusable, as distinct 
from juttifiable, because it was formerly considered by the 
law as in some measure blameable, and the person convicted 
either of that or of homicide by misadventure forfeited his 
goods: Fo8t.278. 

Homicide se defendendo seems to be where one, who 
has no other possible means of preserving his life from one 
who combats with him on a sudden quarrel, or of defending 
his person from one who attempts to beat him (especially 
if such attempt be made upon him in his own house), kills 
the person by whom he is veduced to such inevitable 
necessity. And not only he who on assault retreats to a 
wall or some such straight, beyond which he can go no 
farther, before he kills the other is judged by the law to 
act upon unavoidable necessity ; but also he who, being 
assaulted in such a manner and such a place that he can- 
not go back without manifestly endangering his life, kills 
the other without retreating at all : Hawk. c. 11, ss. 18-14; 
ss. 51, 52, ante. 

In the case of justifiable self-defence the injured party 
may repel force by force in defence of his person, habitation 
or property against one who manifestly intendeth and 
endeavoureth by violence or surprise to commit a known 
felony upon either. In these cases he is not obliged to 
retreat, but may pursue his adversary till he findeth him- 
self out of danger, and if in a conflict between them he hap- 
peneth to kill, such killing is justifiable : Fost. 273. 

Before a person can avail himself of the defence that 
he used a weapon in defence of his life he must satisfy 
the jury that the defence was necessary, that he did all be 
could to avoid it, and that it was necessary to protect him- 
self from such bodily harm as would give him a reasonable 
apprehension that his life was in immediate danger. If be 



Qsed the wea 
no means of 
hs could, he 
R. V. BuiJ, 9 

Under the 
oaturai relati( 
servant, pare 
assailant in tl 
ly, are justifici 
the act of the 
ante. 

Chance med 
medley, has be 
manner of hom 
tation seems 
encounter; it w 
ing to whether 
bating at the ti 
hnafide endear 
afterwards, beir 
to avoid his own 
jnstifiabJe or ox 
slaughter : 1 Bu« 
A man is not 
if, in attempting 
assaulted by the 
»« defendendo, sup 
means to avoid th 
and in such a ca8( 
in other cases of t 
I protection of his ov 
But it would se 
intentionally takiE 
I his own life not b 
Ifrom the conseque 
to turn \ 



GENERAL REMARKS. 



203 



need the weapon having no other means of resistance and 
no means of escape, in such oases, if he retreated as far as 
he could, he would be justified : R v. Smith. 8 C. & P. 160; 
R. V. Bull, 9 C. & P. 22. 

Under the excuse of self-defence the principal civil and 
natural relations are comprehended ; therefore master and 
servant, parent and child, husband and wife, killing an 
assailant in the necessary defence of each other respective- 
ly, are justified, the act of the relation being construed as 
the net of the party himself: 1 Hale, 484; ss. 47, 51, 52„ 
ante. 

Chance medley, or as it was sometimes written, chaud 
medley, has been often indiscriminately applied to any 
manner of homicide by misadventure ; its correct interpre- 
tation seems to be a killing happening in a sudden 
encounter; it will be manslaughter or self-defence accord- 
ing to whether the slayer was actually striving and com- 
bating at the time the mortal stroke was given, or had 
hona fide endeavoured to withdraw from the contest, and 
afterwards, being closely pressed, killed his antagonist 
to avoid his own destruction ; in the latter case it will be 
jnstifiable or excusable homicide, in the former, man- 
slaughter : 1 Buss. 888. 

A man is not justified in killing a mere trespasser ; but 
if, in attempting to turn him out of his house, he is 
assaulted by the trespasser he may kill him, and it will be 
u defendendo, supposing that he was not able by any other 
means to avoid the assault or retain his lawful possession, 
and in such a case a man need not fiy as far as he can as 
in other cases of se defendendo, for he has a right to the 
protection of his own house : 1 Hale, 485 ; ss. 51 et seq., ante. 

But it would seem that in no case is a man justified in 

I intentionally taking away the life of a mere trespasser^ 

bis own life not being in jeopardy ; he is only protected 

I from the consequences of such force as is reasonably 

I necessary to turn the wrong-doer out. A kick has been 



IF 



V 



204 



MANSLAUGHTER. 





held an unjustifiable mode of doing so : Wild's Case, 2 
Lewin, 214. Throwing a stone has been held a proper 
mode: Hinchclifife's Case, 1 Lewin, 161; see B. v. Moir, 
ante, p. 25 under s. 53. 

homicide committed in prevention of a forcible and 
atrocious crime, amounting to felony, is justifiable. As if a 
man come to burn my house, and I shoot out of my house, 
or issue out of my house and kill him. So, if A. makes an 
assault upon B. a woman or maid, with intent to ravish her, 
and she kills him in the attempt, it is justifiable, because 
he intended to commit a felony. And not only the person 
upon whom a felony is attempted may repel force by force, 
but also his servant or any other person present may 
interpose to prevent the mischief; and if death ensue 
the party so interposing will be justified ; but the attempt 
to commit a felony should be apparent and not left in 
doubt, otherwise the homicide will be manslaughter at 
least; and the rule does not extend to felonies without 
force, such as picking pockets, nor to misdemeanours of any 
kind: 2 Burn, 1314; ss. 51, 52, ante. 

It should be observed that, as the killing in these cases 
is only justifiable on the ground of necessity, it cannot be 
justified unless all other convenient means of preventing 
the violence are absent or exhausted ; thus a person set 
to watch a yard or garden is not justified in shooting one 
^ho comes into it in the night, even if he should see him 
go into his master's hen roost, For he ought first to see if | 
be could not take measures for his apprehension ; but if, i 
from the conduct of the party, he has fair ground forj 
believing his own life in actual and immediate danger, 
is justified in shooting him : B. v. Scully, 1 J. & P. 319. j 
Nor is a person justified in firing a pistol on every forcible 
intrusion into his house at night ; he ought, if he have j 
reasonable opportunity, to endeavour to remove him with- 
out having recourse to the last extremity : Meade's 
1 Lewin, 184. 



Secf . 218, 210] 



HOMICIDE-STATUTE. 



205 






As to justifiable homicide by officers of justice or other 
persons in arresting felons : $ee antef p. 178. As to homi- 
cide by misadventure. 2 Burn, 816. 

Petit treaaon was a breach of the lower allegiance of 
private and domestic faith, and considered as proceeding 
from the same principle of treachery in private life as 
would have led the person harbouring it to have conspired 
in public against his liege lord and sovereign. At common 
law the instances of this kind of crime were somewhat 
numerous and involved in some uncertainty ; but by the 
25 Edw. III. 0. 2, they were reduced to the following cases r 
1. Where a servant killed his master. 2. Where a wife 
killed her husband. 8. Where an ecclesiastical person^ 
secular or regular, killed his superior, to whom he owed 
faith and obedience. 




f 



PART XVII. 



HOMICIDE. 



DByiNITION. 

31§. Homicide is the killing of a human being by anoth<3r, directly or 
indirectly; by any means whatsoever. 

When a Child Becomes a Human Being. 

210. A child becomes a human being within the meaning of this Act 
when it has completely proceeded, in a living stat«, from the body of its 
mother, whether it has breathed or not, whether it has an independent circula- 
tion or not, and whether the navel string is severed or not. The killing of 
8uch child is homicide when it dies in consequence of injuries received before, 
during or after birth. 

See 88. 239, 240, 271 post ; R. v. Poulton, 5 C. & P. 329 ; 
R. V. Brain, 6 C. & P. 349 ; R. v. Handley, 13 Cox, 79. If 
a mortal wound be given to a child whilst in the act of 
; born, for instance upon the head as soon as the head 




N 



206 



HOMICIDE. 



[Sec. 220 



appears and before the child has breathed, it may be mur* 
der if the child is afterwards born alive and dies thereof: 
B. y. Senior, 1 Moo. 846. But the entire child must 
actually have been born into the world in a living state, 
and the fact of its having breathed is not a conclusive proof 
thereof : B. v. Sellis, 7 C. & P. 860 ; B. v. Crutchley, 7 C. & 
P. 814. A child is born alive when it exists as a live child, 
breathing and living by reason of breathing through its 
own lungs alone, without deriving any of its living or power 
of living by or through any connection with its mother, but 
the fact of the child being still connected with the mother 
by the umbilical cord will not prevent the killing from 
being murder: E. v. Crutchley, 7 C. & P. 814 ; E. v. Tril- 
loe, 2 Moo. 260 ; E. v. West, 2 C. & K. 784. See post, s. 697 
as to evidence on a charge of murder of a bastard child by 
his mother. 

Culpable Homicide. 
220. Homicide may be either culpable or not culpable. Homicide is 
culpable when it consists in the killing of any person, either by an unlawful 
act or by an omission, without lawful excuse, to perform or observe any legal 
duty, or by both combined, or by causintr a person, by threats or fear of vio- 
lence, or by deception, to do an act which causes that person's death, or by 
wilfully frightening a child or sick person. 

2. Culpable homicide is either murder or manslaughter. 

3. Homioide which is not culpable is not an offence. 

This is the common law. 

Sections 209, 210, 211, ante, when death results from 
the offences provided for thereby are instances of Qulpable 
homicide by omission without lawful excuse to perform a 
legal duty. Ss. 213 & 214 are nothing but additions to 
the definition of culpable homicide. S. 255, s-s. 2, post, as 
to any one meeting death by falling through a hole in the 
ice, unlawfully left unguarded, is also nothing but a 
corollary of the definition given in the above s. 220. Other 
illustrations appear ante under the headings of murder and 
manslaughter. It is proper to note here that the Imperial 
Commissioners, from whose report all these sections on 
homicide are taken verbatim, state positively that no altera* 



..-r-- 



Sec. 220]. 



HOMICIDE. 



207 



tion is made thereby in the law on the Bobject as generally 
understood in modern times. {See their report ante p. 168.) 
An exception, however, as to the distinction between mur- 
der and manslaughter, and they doubt if it is one, is 
contained in what is reproduced, posf, in s-s. 4 of s. 229, as 
to the killing of an officer of justice making an arrest. 

Another exception is contained in what is s-s. 2 of that 
same s. 229, post, which the commissioners give as altering 
the rule that words can never amount to a provocation 
sufficient to reduce a killing from murder to manslaughter. 
{There are cases to the contrary,) See ante, pp. 159, et seq. 

Section 237 post, is also an alteration of the law as to 
aiders and abettors to suicide. It is also not now law, though 
the Imperial Commissioners do not notice it specially as an 
alteration, that the killing of any one in the attempt to 
commit any felony is murder. This part of the law is 
modified by s. 228, post, and restricted to the killing of any 
one, whether the o£fender means or not death to ensue, or 
knows or not that death is likely to ensue, for the purpose 
of facilitating the commission of the offence (whether this 
offence has actually been committed or not) either of 
treason and the other offences provided for in ss. 65 to 78, 
or of piracy as provided for in ss. 127, 128, 129, or of es- 
cape or rescue from prison or lawful custody, or of resisting 
lawful apprehension, or of murder, or of rape, or of forcible 
abduction, or of robbery, or of burglary, or of arson, or for 
the purpose of facilitating the flight of an offender upon 
the commission or attempted commission of any of the 
aforesaid offences ; to constitute murder in such cases, how- 
ever, the killing, though not intentional, must result from 
an act done with intention to inflict grievous bodily harm 
for the purposes aforesaid: (see under s. 241, post, and 
R. V.Martin, 8 Q. B. D. 54; II. v. Clarence, 22 Q. B. D. 23, 
Warb. Lead. Cas. 130, as to what constitutes to inflict griev- 
oui bodily hami). To oause death by administering any 
stupefying or overpowering thing, or wilfully stopping the 



^4 





1 1 



III 




208 



HOMICIDE. 



[Sees. 221-22* 



breath of any one for the purpose of facilitating the com- 
mission of any of the above specified offences, or of facilita- 
ting the flight of an offender upon the commission or 
attempted commission of any of the said offences, is also 
murder under the provisions of s. 228. The other cases 
where homicide constitutes murder are specified in s. 227. 
All other criminal homicides constitute manslaughter : 
ss. 220, 223, 224, 225, 226, 229, 230 ; see annotation, pages 
166, et aeq., ante. 

Procuring Death by False Evidsnok. 

331. Procuring by false evidence th« conviotion and death of any person 
by the sentence of the law shall not be deemed to be homicide. 

This settles a point upon which some doubt has at times 
been thrown by some who, according to Foster, viewed the 
question "ratl^er as divines and casuists than as lawyers "r 
Fost. 132. Lord Coke said, "It is not holden for 
murder at this day": 3 Inst. 48. A special punishment 
for perjury in such a case is now provided for by section 
146, ante. 

Death Within a Year and a Day. 

223. No one is criminally responsible for the killing of another unless 
the death take place within a year and a day of the cause of death. The 
period of a year and a day shall be reckoned inclusive of the day on which the 
last unlawful act contributing to the cause of death took place. Where the 
cause of death is an omission to fulfil a legal duty the period shall be reckoned 
inclusive of the day on which such omission ceased. Where death is in part 
caused by an unlawful act and in part by an omission, the period shall be 
reckoned inclusive of the day on which the last unlawful act took place or the 
omission ceased, whichever happened last. 

" This is the existing law ": Imp. Comm. Eep.; 4 Blacks. 

197. 

Killing by Influence on the Mind. 

223. No one is criminally responsible for the killing of another by any 
influence on the mind alone, nor for the killing of another by any disorder or 
disease arising from sucli influence, gave t». cither case by wilfully frightening a 
child or iick person, 

"This (the words in italics) obviates a possible doubt": 
Imp. Comm. Eep.; see 1 Hale, 428. The only difficulty is 
to prove the connection of the act with the result. It is 
not; quite clear upon what principle this section limits to 



TtacA' 

9*6 Every one w\ 

01.8 nature to any, person 

Jeumnediateoauaeofd, 

CwM. Law— 14 



Seo8. 224-226] 



ACCELERATION OF DEATH. 



209 



the killing of a child, or a sick person the culpability of 
killing by fright. 

In B. v. Towers, 12 Cox, 580, a man -was convicted of 
manslaughter for frightening a child to death. In B. v. 
Dugal, 4 Q. L. B. 850, a man in Quebec was convicted of 
manslaughter upon evidence of death from syncope caused 
by threats of personal violence and assault without battery 
on the deceased. If magnetism and hypnotism become 
more commonly practiced, the law of this section may have 
to be altered. 

ACCKLEHATION OP DkATH. 

SS4> Every one who, by any act or omission, causes the death of an- 
other kills that person, although the effect of the bodily injury caused to such 
other person be merely to accelerate his death while labouring under some dis- 
order or disease arising from some other cause. 

This is a well recognized rule, and a common sense one. 
No one has the right to shorten the life of another. A 
contrary rule, it is obvious, would lead to singular conse- 
quences. See 1 Hale, 428 ; B. v. Martin, 5 C. & P. 128. 

That Death Might Have Been Prevented No Excuse. 

23>'(. Every one who, by any act or omission, causes the death of an- 
other kills that person, although death from that cause might have been pre- 
vented by resorting to proper means. 

That is common law. 

A. injures B.'s finger. B. is advised by a surgeon to 
allcw it to be amputated, biit he refuses to do so, and dies 
of lockjaw. A. has killed B. When a wound, not in itself 
mortal, turns to a gangrene or fever, from neglect or want 
of proper applications, the party by whom the wound was 
given is guilty of a culpable homicide, murder or man- 
alau^bter, according to circumstances. The wound being 
the cause of the gangrene or fever is the immediate cause 
of death, causa causati. 

Tbeatmbnt or Injuby Caubino Death. 

<tS6. Every one who causes a Ixnlily injury, which is of itself of a danger- 
ous nature to any ])erson, from which death results kills that person, although 
the immediate oause of death be treatment proper or improper applied in good 

ftith. 

Crim. Law— 14 



^% 





V 






210 



MURDER, MANSLAUGHTER, ETC. Seoa. 227, 22a 



That is common law. If one wounds another, and oom- 
petent surgeons perform with ordinary skill an operation 
to cure the wound, which operation they in good faith think 
necessary but which results in death, this is a killing by 
the party who inflicted the wound, though the surgeons 
were mistaken as to the necessity of the operation, but if 
the surgeons had acted from bad faith, or had been guilty 
of negligence in the operation, the party who inflicted the 
wound is not guilty: see E. v. Pym, 1 Cox, 339, Warb. 
Lead. Gas. 105, and cases there cited. 





PART XVIII. 
MURDER, MANSLAUGHTER, ETC. 

Murder— Dbfinition. 

327- Culpable homicide is murder in each of the following cases : 

(rt) If the offender means to cause the death of the person killed ; 

(6) If the offender means to cause to the person killed any bodily injury 
which is known to the offender to be likely to cause death, and is reckless 
whether death ensues or not ; 

(c) If the offender means to cause death or, being so reckless as aforesaid, 
means to cause such bodily injury as aforesaid to one person, and by accident 
or mistake kills another person, though he does not mean to hurt the person 
killed ; 

(rf) If the offender, for any unlawful object, does an act which he knows 
Drought to have known to be likely to cause death, and thereby kills any per- 
son, though he may have desired that his object should be effected without 
hurting any one. 

Mcrder Further Defined. 

3SS- Culpable homicide is also murder in each of the following cases 
whether the offender means or not death to ensue, or knows or not that death 
is likely to ensue : 

(a) If he means to inflict grievous bcdily injury for the purpose of facilitat- 
ing the commission of any of the offences in this section mentioned, or the 



k^i' 



Sees. 229, 230] 



PROVOCATION. 



211 



flight of the offender upon the commission or attempted commission thereof, 
and death ensues from such injury ; or 

(b) If he administers any stupefying or overpowering thing for either of the 
purposes aforesaid, and death ensues from the effects thereof ; or 

(e) If he by any means wilfully stops the breath of any person for either of 
the purposes aforesaid, and death ensues from such stopping of the breath. 

2. The following are the offences in this section referred to : — Treason and 
the other offences mentioned in Part IV. of this Act, piracy and offences 
deemed to be piracy, escape or rescue from prison or lawful custody, resisting^ 
lawful apprehension, murder, rape, forcible abduction, robbery, burglary, 
arson. 

See B. V. Sernd, 16 Cox, 311, Warb. Lead. Cas. 108, 
and remarks under s. 220, ante; alsoB. v. Handley, 13 Cox, 
79. The shooting by A. at a fowl to steal it, by which 
B. is accidentally killed is clearly not now murder. A. crim- 
inally sets a house on fire not knowing that there is any 
one in it, there was, 'however, some one in it who perishes 
in the fire, A. will not now be guilty of murder. 

Provocation. 

2189. Culpable homicide, which would otherwise be murder, may be 
reduced to manslaughter if the person who causes death does so in the heat of 
passion caused by sudden provocation. 

2. Any wrongful act or insult, of such a nature as to be sufficient to deprive* 
an ordinary person of the power of self-control, may be provocation if the 
offender acts upon it on the sudden, and before there has been time for his 
passion to cool. 

3. Whether or not any particular wrongpful act or insult amounts to provo- 
cation, and whether or not the person provoked was actually deprived of the 
power of self-control by the provocation which he received, shall be questions 
of fact. No one shall be held to give provocation to another by doing that 
which he had a legal right to do, or by doing anything which the offender 
incited him to do in order to provide the offender with an excuse for killing or 
doing bodily hann to any person. 

4. An arrest shall not necessarily reduce the offence from murder to man- 
slaughter because the arrest was illegal, but if the illegality was known to the 
offender it may be evidence of provocation. 

See E. V. Fisher, Warb Lead. Cas. 112, and cases there 
cited, and ss. 45, 46, 220 ante ; also a note to E. v. Allen, 
in appendix, Stephen's Cr. L. Art. 225. 

Manslaughtkr. 
830. Culpable homicide, not amounting to murder, is manslaughter. 




tllf^'f 






212 



MURDER, MANSLAUGHTER, ETC. [Sees. 231, 282 




MCRDKR— PCNISHMTOT. 

f831- Every one who commits murder is guilty of an indictable offence 
and shall, on conviction thereof, be sentenced to death. R. S. C. c. 162, s. 2 ; 
24-25 V. c. 100, s. 1 (Imp.). 

Not triable at Quarter Sessions, s. 540. 

Indictment. — that on A. 

murdered B. (schedule one form F. F., post ; ) under 
s. 611. 

In murder, no count charging any other offence allowed, 
s. 626, and if evidence proves manslaughter the jury may 
return a verdict of not guilty of murder but guilty of man- 
slaughter, s. 713 ; and, on an indictment for child murder, 
of concealment of birth, if the evidence warrants it, s. 714. 
As to a previous conviction or acquittal of murder being a 
bar to an indictment for manslaughter for the same 
homicide, and vice versa : see s. 633 post. 
Attkmpts to Commit Murder. 

S3S- Every one is guilty of an indictable offence and liable to imprison- 
ment for life, who does any of the following things with intent to commit 
murder ; that is to say — 

(a) Administers any poison or other destructive thing to any person, or 
^»u8e8 any such poison or destructive thing to be so administered or taken, or 
attempts to administer it, or attempts to cause it to be so administered or 
taken ; or 

(6) By any means whatever wounds or causes any grievous bodily harm to 
any person ; or 

(c) Snoots at any person, or by drawing a trigger or in any other manner, 
attempts to discharge at any person any kind of loaded arms ; or 

(d) Attempts to drown, suffocate, or strangle any person ; or 

(«) Destroys or damages any building by the explosion of ?.ny explosive 
flubsteanee; or 

(/) Sets fire to any ship or vessel or any part thereof, or any part of the 
tackle, apparel or furniture thereof, or to any goods or chattels being therein ; 
or 

{g) Casts away or destroys any vessel ; or 

{h) By any other means attempts to commit murder. R. S. C. o. 162, 
88. 8, 9, 10, 11, 12 ; 24-25 V. c. 100, ss. 11 to 15 (Imp.). 

Not triable at quaiter sessiotis, s. 540. " Explosive 
subfltftnoe " defined, «. B; " loaded armfi " defined, b. 8. 



Sec. 232] 



ATTEMPTS TO COMMIT MURDER. 



213 



The words "whether any bodily injury is effected or not" 
have been stricken out from the repealed clause^ s. 11» 
B. S. C. c. 162. 

It is not necessary on an indictment for wounding with 
intent to murder that the prosecutor should be in fact 
wounded in a vital part, for the question is not what the 
wound is, but what wound was intended: B. v. Hunt, 1 
Moo. 93. There is no objection to insert counts on ss. 241, 
242, 262 & 265: 3 Burn, 753; R. v. Strange, 8 C. & P. 
172; E. V. Murphy, 1 Cox, 108. But it is not necessary, 
as by s. 713, on the trial of any indictment for wounding 
with intent to murder, if the intent be not proved the 
jury may convict of any of the offences falling under 
these sections. The defendant may also be found guilty 
of an attempt to commit the offence charged: s. 711; 
K. V. Cruse, 2 Moo. 63; R. v. Archer, 2 Moo. 283. An 
attempt to commit suicide is not an attempt to commit 
murder: R. v. Burgess, L. & C. 258. 

Indictment under (a) for administering poison with intent 
to murder. — that J. S. on unlawfully did 

administer to one A. B. {administer or cause to be admin- 
istered to or to be taken by any person), a large quantity, to 
wit, two drachms of a certain deadly poison called white 
arsenic, {any poison or other destructive thing), with intent 
thereby then unlawfully the said A. B. to kill and murder. 
(Add counts stating that the defendant unlawfully, "did cause 
to be administered to'* and unlawfully, " did cause to be taken 
hy" a large quantity, etc., and if the description of poison be 
douUful, add counts describing it in different ways and one 
count stating it to be ** a certain destructive thing to the jurors 
aforesaid unknown.") Add a count with intent to commit 
murder. 

The indictment must allege the thing administered to 
be poisonous or destructive ; an'l therefore an indictment 
for administering sponge mixed with milk, not alleging tho 




214 







MURDER, MANSLAUGHTER, ETC. 



[Sec. 232 



sponge to be destructive, was holden bad: B. v. Powles, 4 
C. & P. 571. 

If there be any doubt whether the poison was intended 
for A. B. add a count, stating the intent to be to " commit 
murder" generally: B. v. Byan, 2 M. & Bob. 218; B. v. 
Duffin, B. & B. S65. 

If a person mix poison with coffee, and tell another that 
the coffee is for her, and she takes it in consequence, it 
seems that this is an administering ; and, at all events, it 
is causing the poison to be taken. In B. v. Harley, 4 C. 
& P. 869, it appeared that a coffee pot, which was proved to 
contain arsenic, mixed with coffee, had been placed by the 
prisoner by the side of the grate; the prosecutrix was going 
to put out some tea, but on the prisoner telling her that the 
coffee was for her, she poured out some for herself, and 
drank it, and in about five minutes became very ill. It was 
objected that the mere mixing of poison, and leaving it in 
some place for the person to take it was not sufficient to 
constitute an administering. Park, J., said : " There has 
been much argument whether, in this case, there has been 
an administering of this poison. It has been contended 
that there must be a manual delivery of the poison, and the 
law, as stated in Byan & Moody's Beport, goes that way: 
B. V. Cadman, 1 Moo. 114; but as my note differs from 
that report, and also from my own feelings, I am inclined 
to think that some mistake has crept into that report. It 
is there stated that the judges thought the swallowing of 
the poison not essential, buv my recollection is that the 
judges held just the contrary. I am inclined to hold that 
there was an administering here; and I am of opinion that, 
to constitute an administering it is not necessary that there 
should be a delivery by the hand." 1 Buss. 988, and 
Greaves, note (n). 

An indictment stating that the prisoner gave and 
administered poison is supported by proof that the prisoner 
gave the poison to A. to administer as a medicine to B. 



Sec. 232] 



ATTEMPTS TO COMMIT MURDER. 



215 



mih intent to murder B., and that A. neglecting to do so, 
it was accidentally given to B. by a child, the prisoner's 
intention to murder continuing: B. v. Michael, 2 Moo. 
120. 

Where the prisoner, having mixed corrosive sublimate 
with sugar, put it into a parcel, directing it to " Mrs. Daivs^ 
Toivnhope" and left it on the counter of a tradesman, who 
sent it to Mrs. Daws who used some of the sugar, Gurney, J., 
held it to be an administering : B. v. Lewis, 6 0. & P. 161. 

And if the indictment contains a count " with intent to 
commit murder," generally the preceding case, B. v. Lewis, 
is clear law : Archbold, 653. 

Evidence of administering at different times may be 
given to show the intent : Archbold, 650 ; 1 Buss. 1004, et 
seq. The intent to murder must be proved by circum- 
stances from which that intent may be implied. 

No verdict for assault can be given upon an indictment 
under s. 232 (a) ; B. v. Dilworth, 2 M. & Bob. 531; B. v. 
Draper, 1 C. &. K. 176; but a verdict for the offence, 
covered by section 245 or 246, or for the attempt to poison, 
may be given : ss. 711, 713. 

Indictment under (a) for attempting to poison tvitk 
intent. — unlawfully did attempt to administer {attempt 

to administer to, or attempt to cav^e to be administered or 
to he taken by) to one J. N. a large quantity, to wit', two 
drachms of a certain deadly poison called white arsenic 
{any poison or other destructive thing), with intent thereby 
then unlawfully the said J. N. to kill and murder, 

{Add a count stating the intent " to commit murder," gener- 
ally. Add counts charging that thti defendant " attempted to 
cause to be administered to" and that he "attempted to cause 
to he taken by J. N. the poison.") 

In B. V. Gadman, 1 Moo. 114, the dafendant gave the 
prosecutrix a cake containing poison, which the prosecutrix 
merely put into her mouth, and spit out again, and did not 



f 




216 



MURDER, MANSLAUGHTER, ETC. 



[Sec. 232 




swallow any part of it. These cireumstancea would now 
lopport an indictment under the above elanae. 

Where the prisoner put salts of sorrel in a sugar basin, 
in order that the prosecutor might take it with his tea, it 
was held an attempt to administer : B. v. Dale, 6 Cox, 14. 

Greaves on this clause remarks : " Where the prisoner 
delivered poison to a guilty agent, with directions to him to 
cause it to be administered to another in the absence of 
the prisoner, it was heid that the prisoner was not guilty of 
an attempt to administer poison, within the repealed acts. 
B. V. Williams, 1 Den. 89; and the words 'attempt to 
cause to be administered to, or to be taken by' were intro- 
duced in this section to meet such cases." 

Indictment under {b)for wounding with intent to murder.-^ 
one J. N. unlawfully did wound (wound or cause 
any grievous bodily harm) with intent, etc., (aa in the last pre- 
cedent). Add a count " with the intent to commit murder " 
generally. 

The instrument or means by which the wound was 
inflicted need not be stated, and, if stated, would not con- 
fine the prosecutor to prove a wound by such means : R. v. 
Briggs, 1 Moo. 318. 

As the general term " wound " includes every " stab " 
and " cut " as well as other wound, that general term has 
alone been used in these Acts. All, therefore, that it is now 
necessary to allege in the indictment is, that the prisoner 
did wound the prosecutor ; and that allegation will be 
proved by any wound, whether it be a stab, cut, or other 
wound. Greaves, Cons. Acts. 45. The word " wound " in- 
cludes incised wounds, punctured wounds, lacerated 
wounds, contused wounds, and gunshot wounds : Archbold, 
664. 

But to constitute a wound, within the meaning of this 
statute, the continuity of the skin must be broken : B. v. 
Wood, 1 Moo. 278. 



Sec. 232] 



ATTEvIPTS TO COMMIT MURDER. 



217 



The whole Bkin» not the mere cuticle or upper akin» 
nmst be divided : Archbold, 665. 

But a division of the internal skin, within the cheek or 
lip, is sufBcient to constitute a wound within the statute : 
Archbold, 665. 

« Tlie statute says ' by any means whatsoever/ so that 
it is immaterial by what means the wound is inflicted, pro> 
vidcd it be inflicted with the intent alleged : B. v. Harris, 
B. V. Steyens, B. v. Murrow and Jenning's case, and other 
gimilar cases cannot therefore be considered as authorities 
ander the present law": Greaves, Cons. Acts, 45. 

Indictment under (c) for shooting with intent to murder. 
a certain gun, then loaded with gunpawder and 
divers leaden shot, at and against one J. N. unlawfully did 
shoot, with intent thereby then unlawfully (aa in 

the last precedent.) (Add also counts stating " with intent to 
commit murder" generally. Also a count for shooting with 
intent to maim, etc.,) under s. 241 post. 

Iq order to bring the case within the above section it 
must be pro'ud that the prisoner intended by the act 
charged to cause the death of the suffering party. This 
will appear either from the nature of the act itself, or from 
the conduct and expressions used by the prisoner: Roscoe, 
720. 

Upon an indictment for wounding Taylor with intent 
to murder him, it appeared that the prisoner intended to 
murder one Maloney, and, supposing Taylor to be Maloney, 
shot at and wounded Taylor ; and the jury found that the 
prisoner intended to murder Maloney, not knowing that 
the party he shot at was Taylor, but supposing him to be 
JIaloney, and that he intended to murder the individual 
he 8hot at, supposing him to be Maloney, and convicted 
the prisoner ; and upon a case reserved, it was held that 
the conviction was right, for though he did not intend to 
kill the particular person, he meant to murder the man at 
whom be shot : B. v. Smith, Dears. 559 ; 1 Buss. 1001. 



If 



\ 




218 



MURDER, MANSLAUGHTER, ETC. 



[Sfo. 232 



It seems doubtful whether it must not appear, in order 
to make out the intent to murder, that that intent existed 
in the mind of the defendant at the time of the offence, or 
whether it would be sufiScient if it would have been murder 
had death ensued : Archbold, 652. 

On this question, Greaves, note (g) 1 Buss. 1003, remarks: 
^' It seems probable that the intention of the Legislature, in 
providing for attempts to commit murder, was to punish 
every attempt where, in case death had ensued, the crime 
would have amounted to murder. . . The tendency of 
the cases, however, seems to be that an actual intent to 
murder the particular individual injured must have been 
shown. . . Where a mistake of one person for another 
occurs, the cases of shooting, etc., may, perhaps, admit of 
a different consideration from the cases of poisoning. In 
the case of shooting at one person under the supposition 
that he is another, although there be a mistake, the pri- 
soner must intend to murder that individual at whom he 
fihoots ; it is true he may be mistaken in fact as to the per- 
son, and that it may be owing to such mistake that be 
shoots at such person, but still he shoots with intent to kill 
that person. So in the case of cutting ; a man may cut 
one person under a mistake that he is another person, but 
still he must intend to murder the man whose throat be 
cuts. In E. V. Mister, the only count charging an intent 
to murder was the first, and that alleged the intent to be 
to murder Mackreth ; and although on the evidence it was 
perfectly clear that Mister mistook Mackreth for Ludlow, 
whom he had followed for several days before, yet he was 
convicted and executed, and I believe the point never 
noticed at all. The case of poisoning one person by mis- 
take for another seems different, if the poison be taken in 
the absence of the prisoner ; for in such case, he can have 
no actual intent to injure that person. These difficulties, 
however, seem to be obviated by the present statute, which, 
instead of using the words " with intent to murder such 



Sec. 232] 

person," has 
• In aJ 
be prudent tc 
tent to murde: 
der; "and a t 
the person re 
intended to be 
A. with intent 1 

A verdict i 
also for attemp 
marks under pr 

The definiti( 

produced with a 

24&25V.(Imp.j 

is new and is ini 

attempts to disci 

which misses fin 

from any like (ol 

R. V. Harris, 5 C 

as authorities un< 

Indictment un 
etc.- did, 

or in any other a 
the barrel with g\ 
a ball cartridge) i 
pistol at and agair 
last precedent.) 
Mrder,a"1. count 
mini, under s. 2 
guilty under that 
Baker, 1 C. & K. 2 
also in certain cat 
loga quarrel, a pisl 

"«»g it by another 
section: B. v. St. 



Sec. 232] 



ATTEMPTS TO COMMIT MURDER. 



219 



person," has the words " with intent to commit murder " 
. In all cases of doubt, as to the intention, it would 
be prudent to insert one count for shooting at A. with in- 
tent to murder him ; another " with intent to commit mur- 
der ; " and a third for shooting at A. with intent to murder 
the person really intended to be killed, and if the party 
intended to be killed were unknown, a count for shooting at 
A. with intent to murder a person to the jurors unknown. 

A verdict under ss. 241 & 265 may be given, s. 713 ; 
also for attempt, if the evidence warrants it, s. 711 ; see re- 
marks under preceding section. 

The definition of the words "loaded arms" in s. 3, is re- 
produced with a slight alteration in words from c. 100, s. 19, 
24&25 V.(Imp.), uponwhich Greaves remarks: "This clause 
is new and is intended to meet every case where a prisoner 
attempts to discharge a gun, etc., loaded in the barrel, but 
which misses fire for want of priming or of a copper cap, or 
from any like (other) cause. K. v. Carr, K. & R. 377; and 
R. V. Harris, 6 C. & P. 159, cannot therefore be considered 
as authorities under this Act": seeB,. v. Jackson, posf, p. 220. 

Indictment under (c) for attempting to shoot with intent, 
etc.— did, by drawing the trigger (drawing a trigger 

or in any other manner) of a certain pistol then loaded in 
the barrel with gun-powder and one leaden bullet (or with 
a ball cartridge) unlawfully attempt to discharge the said 
pistol at and against one J. N. with intent (as in the 

last precedent.) {Add a count charging an intent to commit 
mirder, a'd counts for attempting to shoot with intent to 
mini, under s. 241, though the prisoner may be found 
guilty under that section without such a count: E. v. 
Baker, 1 C. & K. 254). A verdict of common assault may 
also in certain cases be given, s. 713. If one draws, dur- 
ing a quarrel, a pistol from his pocket, but is prevented from 
using it by another person, there is no offence against this 
section: R. v. St. George, 9 C. & P. 483 ; R. v. Brown, 15 



220 



MURPER, MAXSLAUGHTER, ETC. 



[Sec. 232 




I* 



Cox, 199. E. V. St. George is now overruled by E. v. Duck- 
worth, 17 Cox, 495, [18921 , 2 Q. B. 83. 

See remarks under preceding form. 

Upon an indictment for attempting to discharge a 
loaded arm with intent to murder, the prisoner may be 
found guilty of the charge upon evidence that he bad 
pointed at the prosecutor a revolver loaded in some of its 
chambers with ball cartridges, but not in others, sayiuT 
that he would shoot him, and that he had pulled the trigger 
of the revolver, but that the hammer had fallen upon a 
chamber which contained an empty cartridge: per Charles, 
J., E. v. Jackson, 17 Cox, 104. 

Indictment under (d) for attempting to drown tvith intent 
to murder. — unlawfully did take one J. N. into both 

the hands of him the said J. S., and unlawfully did cast, 
throw, and push the said J. N. into a certain pond, whereiu 
there was a great quantity cf waiter, and did thereby then 
unlawfully attempt the said J. N. to drown and suffocate, 
with intent thereby then unlawfully the said J. N. to kill 
and murder, (Add a count charging generally that the 

defendant did attempt to drown J. N. and counts charging the 
intent to be to commit murder.) 

It has been held that upon an indictment for attempting 
to drown it must be shown clearly that the acts were doue 
with intent to drown. An indictment alleged that the 
prisoner assaulted two boys, and with a boat-hook made 
holes in a boat in which they were, with intent to drown 
them. The boys were attempting to land out of a boat 
they had punted across a river, across which there was a 
disputed right of ferry ; the prisoner attacked the boat with 
his boat-hook in order to prevent them, and by means of 
the holes which he made in it caused it to fill with water, 
and then pushed it away from the shore, whereby the boys 
were put in peril of being drowned. He might have got 
into the boat and thrown them into the water ; but he con- 
fined bis attack to the boat itself; as if to prevent tli 



Sec. 232] 



ATTEMPTS TO COMMIT MURDER. 



221 



landing, but apparently regardless of the consequences. 
Coltman, J., stopped the case, being of opinion that the 
(>viclence against the prisoner showed his intention to have 
been rather to prevent the landing of the boys than to do 
them any injury : Sinclair's Case, 2 Lewin 49 ; R. v. Dart, 
14 Cox, 143. 

A verdict of common assault may be given, s. 713. 

Indictment ur>ier{e). that on J. S. unlawfully 

did, by the explosion of a certain explosive substance, that 
is to say, gunpowder, destroy {destroy or damage) a certain 
building situate with intent thereby then unlawfully 

one J. N. to kill and murder. {Add a count, stating the 

mtmt to be generally " to commit murder.") 

In R. V. Ryan, 2 M. & Rob. 213, Parke and Alderson 
held that a count alleging with intent to commit murder, 
generally, is sufficient. 

The jury may return a verdict of guilty of an attempt 
to commit the offence, s. 711. 

Indictment under (f) and {g). unlawfully did set fire to 
{cast away or destroy) a certain ship called with intent 

thereby then to kill and murder one. {Add a count 

ttating the intent to " commit murder " generally). 

Indictment under (h). — did, by then {state 

the act) attempt unlawfully one J. N. to kill and murder. 
{Add a count charging the intent to be to commit 
murder.) 

Greaves says : " This section is entirely new, and con- 
tains one of the most important amendments in these Acts. 
It includes every attempt to murder not specified in any 
preceding section. It will therefore embrace all those 
atrocious cases where the ropes, chains or machinery used 
in loTrering miners into mines have been injured with intent 
that tfaey may break, and precipitate the miners to the 
bottom of the pit. Bo, also, all cases "where steatn engines 
are injured, set on work, stopped, or anything pnt into 




222 



MURDER, MANSLAUGHTER, i^TO. 



[Sec, 233 



them, in order to kill any person who may fall into it. So 
also, cases of sending or placing infernal machines with 
intent to murder : see R. v. Mountford, 1 Moo. 441. In. 
deed, the malicious may now rest satisfied that every 
attempt to murder, which their perverted ingenuity may 
devise, or their fiendish malignity suggest, will fall within 
some clause of this Act, and may be visited with penal 
servitude for life. In any case where there may be a doubt 
whether the attempt falls within the terms of any of the 
preceding sections, a count framed on this clause should 
be added." 

A verdict under ss. 241, 242 & 265 may be given, 
s. 713, if the evidence warrants it. 

Threats bt Letter to Murder. 

933. Every one is f^ilty of an indictable offence and liable to ten years' 
imprisonment who sends, delivers or utters, or directly or indirectly causes to 
be received, knowing the contents thereof, any letter or \\ riting threatening to 
kill or murder any person. R. S. C. c. 173, s. 7. 2t-25 V. o. 100, s. 16 (Imp.). 

Not triable at quarter sessions, s. 540. 

A verdict of attempt allowed, s. 711, if the evidence 
warrants it. " Writing " defined, s. 3. 

Indictment. that J. S. on at 

unlawfully did send to one J. N. a certain letter (or writing) 
directed to the said J. N., by the name and description of 
Mr. J. N. threatening to kill and murder the said J. N. he 
the said (defendant) then well knowing the 

contents of the said letter, which said letter is as followa, 
that is to say And the jurors aforesaid that 

the said on at unlawfully 

did utter a certain writing (as in the first count). 

In R. V. Hunter, 2 Leach, 631, the court said : "In an 
indictment for sending a threatening letter, the letter must 
be set out in order that the court may judge from the face j 
of the indictment whether it is or is not a threatening 
letter within the meaning of the statute on which the in- 
dictment is founded." 



Sec. 233] 

The same r 
P. C. 1122. 

Under s. 613 
for the omissio 
correct to set it 

Greaves saj 
indirectly causes 
c. 55, s. 8, and 
difficulty which 
the words send, 
person in the 10 ( 
in order that oi 
causing to be re 
person were to se 
by a person with 
house in which s( 
drop such a lette 
be within this cl 
offence to consis 
which contains a 
soever, and it is m 
to the person th 
eases, therefore, o 
ridge, 2 M. & Rob 
218; and R. v. G 
sidered as authorii 
that the letter muj 
In every indictme] 
other acts, a coun 
defendant uttered 
to whom it was utt 

Where the thre; 
tjiejurytosay wh( 
till or murder; R. 
1 Moo. 428. 



* ; 



Sec. 233] 



THREATS BY LETTER. 



223^ 



The same ruling had been held in B. v. Lloyd, 2 East, 
P. C. 1122. 

Under s. 618 po8t an indictment would not be quashed 
for the omission of the letter, but it is undoubtedly more 
correct to set it out. 

Greaves says on this clause : " The words directly or 
indirectly causes to he received, are taken from the 9 Geo. IV. 
c, 56, s. 8, and introduced here in order to prevent any 
difficulty which might arise as to a case not falling within 
the words send, deliver or utter. The words to any other 
person in the 10 & 11 V. c. 66, s. 1, were advisedly omitted,, 
in order that ordering, sending, delivering, uttering, or 
causing to be received may be included. If, therefore, a 
person were to send a letter or writing without any address 
by a person with direction to drop it in the garden of a 
house in which several persons lived, or if a person were to 
drop such a letter or writing anywhere, these cases would 
be within this clause. In truth, this clause makes the 
offence to consist in sending, etc., any letter or writing 
which contains a threat to kill or murder any person what- 
Boever, and it is wholly immaterial whether it be sent, etc.,^ 
to the person threatened or to any other person. The 
cases, therefore, of R. v. Paddle, R. & R. 484 ; R. v. Bur- 
ridge, 2 M. & Rob. 296 ; R. v. Jones, 2 C. & K. 398, 1 Den. 
218 ; and R. v. Grimwade, 1 Den. 30, are not to be con- 
sidered as authorities on this clause, so far as they decide 
that the letter must be sent, etc., to the party threatened. 
In every indictment on this and the similar clauses in the 
other acts, a count should be inserted alleging that the 
defendant uttered the writing without stating any person 
to whom it was uttered." 

Where the threat charged ia to kill or murder, it is for 
the jury to say whether the letter amounts to a threat to- 
killer murder: R. v. Giru.vood, 1 Leach, 142; R. v. Tyler, 

1 Moo. 428. 






224 



MURDER, MANSLAUGHTER, ETC. 



[Sec. 234 



The bare delivery of the letter, though sealed, is evidence 
of a knowledge of its contents by the prisoner in certain 
cases: B. v. Girdwood, 1 Leach, 142. 

And in the same case, it was held that the offender may 
be tried in the county where the prosecutor received the 
letter, thovgh he may also be tried in the county where the 
sending took place. 

In B. V. Boucher, 4 C. & P. 562, the following letter was 
held to contain a threat to murder: — "You are a rogue, 
thief and vagabond, and if you had your deserts, you should 
not live the week out; I shall be with you shortly, and then 
you shall nap it, my banker. Have a care, old chap, or 
you shall disgorge some of your illgotten gains, watches and 
cash, that you have robbed the widows and fatherless of. 
Don't make light of this, or I'll make light of you and 
yours. Signed, Cut-throat." 

.Where an indictment contained three counts, each 
charging the sending of a different threatening letter, 
Byles, J., held the t the prosecutor must elect on which count 
he would proceed, though any letter leading up to or 
explaining the letter on which the trial proceeded would be 
admissible: E. v. Ward, 10 Cox, 42; see s. 69,6, post. 

OoN8PiRAcr TO Murder. 

334. Every one is guilty of an indictable offence and liable to fourteen 
pears' imprisonment, who — 

(a) Conspires or agrees with any person to murder or to cause to be mur- 
dered any other person, whether the person intended to be murdered is a subject 
of Her Majesty or not ; or is within Her Majesty's dominions or not ; or 

(6) Counsels or attempts to procure any person to murder such other person 
anywhere, althouijh such person is not murdered in consequence of suchcoumel- 
ling or attempted procurement. R. S. C. c. 162, s. 3. (Amended). 24-25 V. 
c. 100, 8. 4 (Imp.). 

Not triable at quarter sepsions, a. 640. The words in 
italics are new, and unnecessary. As to conspiracies 
generally : see remarks under s. 527, post. 

Indictment. that J. S., J. T., and E. T., ou 

unlawfully and wickedly did conspire, confederate 

and agree together one J. N. unlawfully to kill and murder. 



I» 



Sees. 235, 236] ACCESSORY AFTER THE FACT. 



225 



See 1 EuBS. 967; 3 Rusa. 664; R. v. Bernard, 1 F. & F. 
240 ; 2 Stephen's Hist. 12. 

In E. V. Banks, 12 Cox, 898, upon an indictment under 
this clause, the defendants were convicted of an attempt to 
commit the misdemeanour charged. In B. v. Most, 14 Oox» 
583, the defendant having written a newspaper article 
eDCOuraging the murder of foreign potentates, was found 
gailty of an offence under the corresponding clause of the 
Imperial Act. 

Would any one conspiring in Canada with another 
person in the United States to himself murder any one in 
the United States be subject to indictment under s. 234? 

AcoBsssoRY After thb Fact to Mcrder. 

335. Every one is guilty of an indictable offence, and liable to imprison' 
ment for life, who is an accessory after the fact to murder. R. S. C. c. 162^ 
8. 4. 24-25 V. 0. 100, s. 67 (Imp.). 

Not triable at quarter sessions, s. 540. See remarks 
ander s. 63, ante, and s. 532, post. 

Punishment of Mansladohter. 

936. Every one who commits manslaughte r is guilty of an indictable 
offence, and liable to imprisonmeni for life. R^^. C. c. 162, s. 5. (Amended). 
24-25 V. c. 100, s. 5 (Imp.). 

Indictment. — that A. B. on at 

unlawfully did kill and slay one and thereby 

committed manslaughter. 

The evidence is the same as in murder, with this ex- 
ception, that in murder the prosecutor need only prove the 
homicide without going into evidence of the circumstances 
under which it was committed in manslaughter ; he must 
give evidence of all the facts in the case, so as to prove the 
homicide to be manslaughter. As to the cases in which a 
homicide amounts to manslaughter only, and not to mur- 
der, see ante, ss. 229, 230, and remarks pages 181 et seq. A 
summary conviction for assault under s. 42 of 24 & 25 Y. 
c. 1(X), is not a bar to a subsequent indictment for man- 
slaughter, upon the death of the man assaulted consequent 

Criu. Law— 15 



f 



2S6 



MUEDEE, MANSLAUGHTBE, ETC. 



[Sec. 237 



'('■ I ill 




upon the eame aflsault : R. v. Morris, 10 Cox, 480 ; B. v. 
Friel, 17 Cox, 3'26; see ss. 866 & 969, post. 

AiDiNO AND Abettino Suioide. (New). 

937- Every one is guilty of an indictable offence and liable to imprison- 
ment for life who counsels or procures any person to commit suioide, actually 
committed in consequence of such counselling or procurement, or who aids or 
abets any person in the commission of suioide. 

This is new. By the common law suicide is murder, 
and if one encourage another to commit suicide, and is 
present abetting him while be does so, such person is guilty 
of murder as a principal, and if two persons encourage each 
other to self murder and one kills himself, and the other 
one fails, the latter is a principal in the murder of the 
other: B. v. Dyson, B. & B. 623; B. v. Bussell, 1 Moo. 
356 ; B. V. Alison, 8 C. & P. 418; B. v. Jessop, 16 Cox, 
5204. Now, under analogous facts, he would be indictable 
(under this s. 237 for counselling the other to commit 
Buieide, and also under the next section for attempting 
himself to commit suicid'^- 

A felo de se, or felon of himself, is a person who, being 
of sound mind and of the age of discretion, voluntariij 
killetb himself : 3 Inst. 54. 

If a man give himself a wound, intending to be felo de 
ae, and dieth not within a year and a day after the wound, 
he is not felo de se : Id. 

The following passages from Hale and Hawkins may 
be usefully inserted here : — 

" It is not every laelancholy or hypochondriacal dig- 
lemper that denominaf;e8 a man noa compos, for there are 
few who commit this offence but are under such infirmi- 
ties, bnt it mufit be such an alienation of mind that 
renders them to be madmen, or frantic, or destitute of the 
use of reason ; a lunatic killing himself in a fit of lunacy 
is not felo de §e: otherwise it is, if it be at another time:" 
I Hale, 412. 

** But here, I cannot but take notice of a strange notion 
which faai unaccountably prevailed of Ute, that every one 



Sec. 237] 



AIDING AND ABETTING SUICIDE. 



227 



who kills bim.self must be non compos of course ; for it is 
said to be impossible that a maa in bis senses sbould dQ a 
thing so contrary to nature and all sense and reason. If 
this argument be good self-murder can be no crime, for a 
madman can be guilty of none ; but it is wonderful tbat 
the repugnancy to nature and reason, wbich is the highest 
aggravation of this offence, should be thought to make it 
impossible to be any crime at all, which cannot but be the 
necessary consequence of this position that none but a 
madman can be guilty of it. May it not, with as much 
leason, be argued that the murder of a child or of a parent 
is against nature and reason, and consequently that no 
man in his senses can commit it": 1 Hawk. c. 9, s. 2. 

In England the attempt to commit suicide is not an 
attempt to commit murder, within 32 & 33 Y. o. 20, but still 
remains a common law misdemeanour : B. v. Burgess, 
L. & C. 258 ; B. v. Doody, 6 Cox, 463. 

An aider and abettor, called a principal in the second 
degree, is one who is actually or constructively present 
when an offence is committed ; one who counsels or 
procures the commission of an offence, but is absent when 
it is committed, is called at common law an accessory 
before the fact. Both are now treated as principals : s. 61, 
a)xte', but that section does not apply as to punishment 
where the offence of counselling or of aiding and abetting 
is made a distinct offence. As to what is a counselling or 
procurement 8ee remarks under tb# said section. 

Indictment. — that on at one A. B. 

committed suicide, and that on divers days before the said 
oiience was conmitted by the said A. B., as aforesaid, G. D. 
did unlawfully move, procure, aid, counsel, hire and com- 
mand the said A. B. the said offence and suicide to do and 
commit {or, that C. D. wa-j present and aiding and 

abetting the said A. B. in the commission of the said 
offence and suicide.) 





228 



MURDER, MANSLAUGHTER, ETC. [Sees. 23J, 23i> 



If the suicide was not committed yet the inciting to it is 
an offence : R. v. Gregory, L. R. 1 C. C. E. 77 ; so is the 
conspiracy by two persons to commit suicide together, 
s. 627. 

See R. V. Dyson, R. & R. 623 ; R. v. Russell, 1 Moo. 
866. This last case applies only to an accessory, not to a» 
aider and abettor : R. v. Towh. R. & R. 814. , 

A. and B. go out together with a gun to kill D. A. 

fires the shot, but his gun bursts and kills himself (A). A. 

has committed suicide, and B. was aider and abettor to 

that suicide. 

Attempt to Commit Sdicidb. (New). 

S3S- Every one who attempts to commit suicide is guilty of an indictable 
offence and liable to two years' imprisonment. 

See remarks under preceding section ; fine, s. 968. 

Indictment. — that A. B. on unlawfully and 

wilfully did attempt and endeavour to unlawfully kill him- 
self and thereby to commit suicide. 

Neglect by a Mother in Child-birth to Obtain Assistance. (New). 

230. Every woman is guilty of an indictable offence who, with either of 
the intents hereinafter mentioned, being with child and being about to be 
delivered, neglects to provide reasonable assistance in her delivery, if the child 
is permanently injured thereby, or dies, either just before, or during, or shortly 
after birth, unless she proves that such death or permanent injury was not 
caused by such neglect, or by any wrongful act to which she was a party, and 
is liable to the following punishment : 

(a) If the intent of such neglect be that the child shall not live, to imprison- 
ment for life ; 

(6) If the intent of such neglect be to conceal the fact of her having had o 
child, to imprisonraert for seven years. 

See ante, remarks under s. 219. 

This is new. It is taken from the English bill of 1880. 

The Imperial Commissioners reported thereon as follows: 

" The subject of child-murder is one as to which the existing 

. law seems to require alteration. At present no distinction is 

made between the murder of a new-born infant by its mother, 

and the murder of an adult. Practically this severity defeats 

itself, and offences which are really cases of child murder are 



840. Every on 
imprisonment, wlio d 
intent to conceal the 
died before, or dun 
2<-25V.c.lOO,8.60 



Sec. 240] 



CONCEALING DEAD BODY. 



229 



often treated as cases of concealment of birth simply. . . . 
This section will afford a means of punishment for child murder 
where there would be a practical difficulty in obtaining a convic- 
tion for that offence." 

Under a charge of child murder the accused cannot 
be found guilty of this new offence created by s. 239. A 
verdict of concealment of birth may be given if the evidence 
warrants it, s. 713. The punishment would then be under 
next section. 

If R. v. Handley, 13 Cox, 79, is good law, the offence 
covered by this s. 239 would at common law, when the 
child dies after birth, be murder or manslaughter. 

It is not easy to imagine a case where it would be pos- 
sible to obtain a conviction under this section, where a child 
dies before, even if it is only just before, his birth. The 
expression itself " dies before his birth " is not a happy 
one; see s. 219, ante. 

The words " unless she proves," etc., are utterly useless. 
Either the prosecutor's case must be proved or not. If it 
is, the jury must convict ; if not, they must acquit ; and it 
is not if it is not proven that the death or injury was 
caused by the neglect. 

Indictment under (a). — that A. B. on at 

a then and there being with child and about to 

be delivered, did unlawfully, with intent that her said child 
should not live, neglect to provide reasonable assistance in 
her delivery, whereby her said child was permanently in- 
jured, {or died during or shortly after birth.) A verdict of 
guilty under s-s. (6) may be given upon this indictment if 
the evidence warrants it. 

Concealing Dead Body ok a Child. 

240. Every one is guilty of an indictable oflfence, and liable to tioo years' 
imprisonment, who disposes of the dead body of any child in any manner, with 
intent to conceal the fact that its mother was delivered of it, whether the child 
died before, or during, or after birth. R. S. C. c. 162, s. 49. (Amended). 
24-25V. clOO, 8.60(Imp.). 



290 



MURDER, MANSLAtfQHTER, ETC. 



[See. 240 




Fine, s. 958. A conviction for this offence may be given 
Upon an indictment for child murder, s. 714. 

The enactment applies not only to a mother, bat to 
every one who disposes of the dead body of a child with 
intent to conceal its birth. The repealed clause had the 
words " by any secret diapoaition" 

Indictment. — thatA. B., on was delivered* 

of a child ; and that subsequently, on , the said 

child having died, the said A. B. did unlawfully dispose of 
the dead body of the said child by secretly burying it with 
intent to conceal the fact that she had been delivered of it. 
{State the means of concealment specially.) 

In B. V. Berriman, 6 Cox, 388, Erie, J., told the jury 
that this offence cannot be committed unless the child had 
arrived at that stage of maturity at the time of birth that 
it mip;ht have been a living child. But in a later case, B. 
V. Colmer, 9 Cox, 506, Martin, J., ruled that the offence is 
complete on a foetus delivered in the fourth or fifth month 
of pregnancy, not longer than a man's finger, but having 
the shape of a child. 

Final disposition of the body is not material, and hiding 
it in a place from which a further removal was contem- 
plated would support the indictment : K. v. Goldthorpe, 2 
Moo. 244 ; E. v. Perry, Dears. 471. 

Leaving the dead body of a child in two boxes, closed 
but not locked or fastened, one being placed inside the other 
in a bedroom but in such a position as to attract the 
attention of those who daily resorted to the room, is not a 
secret disposition of the body within the meaning of the 
statute : E. v. George, 11 Cox, 41. 

What is a secret disposition of the dead body of a child 
within the statute is a question for the jury, depending on 
the circumstances of the particular case. Where the dead 
body of a child was thrown into a field, over a wall 4| feet 
high separating the yard of a public house from the field, 



Sec. 240] 



COIfCEAtINO DEAD BODY. 



2afi 



And a person looking over the wall from the yard might 
have seen the body, but persons going through the yard 01 
asing it in the ordinary way would not, it was held, on a 
case reserved, that this was an offence within the statute : 
B. V. Brown, 11 Cox, 617, Warb. Lead. Cas. 94. 

Although the fact of tho prisoner having placed the 
,dea<l body of her newly-born child in an unlocked box is not 
of itself sufficient evidence of a criminal concealment of 
birth, yet all the attendant circumstances of the case must 
be taken into consideration in order to determine whether 
or not an offence has been committed : B. v. Cook, 11 Coxt 
542. 

In order to convict a woman of attempting to conceal 
the birth of her child, under s. 711, post, a dead body 
must be found and identified as that of the child of which 
she is alleged to have been delivered. A woman, ap- 
parently pregnant, while staying at an inn, at S.-ifford^ 
received by post, on the 28th of August, 1870, a Rughyi 
newspaper loith the Rugby post mark upon it. On the sam& 
day, her appearance ana the state of bev room seemed to- 
indicate that she had been delivered of a child. She left 
for Shrewsbury next morning, carryinij a parcel. That 
afternoon a parcel was found in a waiting room at Stafford 
station. It contained the dead body of a newly-born child, 
wrapped in a Rugby Gazette, of August 27th, bearing the 
Rufiby postmark. There is a railway from Stafford to 
Shrewsbury, but no proof was given of the woman having 
been at Stafford Station : Held, that thi^ evidence was not 
sufficient to identify the body found as the child of which 
the woman was said to have been delivered, and would 
not therefore justify her conviction for concealment 
birth: R. v. Williams, 11 Cox, 684. 

Where death not proved conviction is illegal : R. v. Bell, 
8 Ir. R. C. L. 642. 

A, being questioned by a police-constable about the 
concealment of a birth, gave an answer which caused the 



^ 



232 



MURDER, MANSLAUGHTER, ETC. 



[Sec, 240 




oflScer to say to her, " It might be better for you to tell the 
^ruth and not a lie." Held, that a further statement made 
by A. to the policeman after the above inducement was in- 
admissible in evidence against her, as not being free and 
voluntary. A. was taken into custody the same day, 
placed with two accomplices, B. and C. and charged with 
concealment of birth. All three then made statements. 
Held, that those made by B. and C. could not be deemed 
to be affected by the previous inducement to A. and were, 
therefore, admissible against B. and C. respectively, al- 
though that made by A. was not so. The prisoners were 
sent for trial, but before their committal they received the 
formal caution from the magistrate as to anything they 
might wish to say. Whereupon A. made a statement 
which was taken down in writing, as usual, and attached 
to the deposition : Held, that this latter statement of A. 
might be read at the trial as evidence against herself. 
Mere proof that a woman was delivered of a child and 
allowed two others to take away its body is insufficient to 
sustain an indictment against her for concealment of birth : 
B. V. Bate, 11 Cox, 686. 

A woman delivered of a child born alive endeavoured 
to conceal the birth thereof by depositing the child while 
alive in a corner of a field, when it died from exposure. 
Held, that she could not be indicted under the above 
section : R. v. May, 16 L. T. 362. 

The prisoner who lived alone had placed the dead 
body of her new born child behind a trunk in the room she 
occupied, between the trunk and the wall. On being charged 
with having had a child she at first denied it. Held, 
sufficient to support a conviction for concealment of birth : 
E. V. Pich^, 30 U. C. C. P. 409. 

See other cases under s. 714 post, and R. v. Handley 
13 Cox, 79. 



BODILY INJ1 



Sec. 241] 



WOUNDING WITH INTENT. 



233 



PART XIX. 

BODILY INJURIES, AND ACTS AND OMISSIONS CAUSING 
DANGER TO THE PERSON. 

WouNDiNrt WITH Intent. 

S4I- Every one ia guilty of an indictable oflfence and liable to imprison- 
ment for life who, with intent to maim, disfigure or disable any person, or to 
do some other grievous bodily harm to any person, or with intent to resist or 
,,:i'vent the lawful apprehension or detainer of any person, unlawfully by any 
means wounds or causes any grievous bodily harm to any jierson, or shoots at 
any person, or, by drawing a trigger, or in any other manner, attempts to 
discharge any kind of loaded anns at any person. R. S. C. c. 1G2, 8. 13 
[Amended); 24-25 V. c. 100, s. 18 (Imp.). 

The repealed clause contained the words " unlawfully 
mdmaliciously by any means ivhatsoever.'^ 

" Loaded arms " defined, s. 3 : see R. v. Latiirer, 16 
Cox, 70, Warb. Lead. Cas. 117 ; and R. v. Clarence, Warb. 
Lead. Cas. 130, 22 Q. B. D. 23. 

An indictment under the English clause charging that 
the prisoner did " inflict " grievous bodily harm instead of 
"cause" is sufficient : R. v. Bray, 15 Cox, 197. 

Indictment for wounding ivith intent to maim. — 
that J. S. on one J. N. unlawfully did wound, with 

intent in so doing him the said J. N. thereby there to maim 
{add count stating " ivith intent to disfigure " and one 
"with intent to disable." Also one stating " ivith intent to do 
some grevious bodily harm." And if necessary, one " with 
intent to prevent {or resist) the lawful apprehension of.) See 
form F. F. scheuule one under s. 611 post, in which the 
words " did actual bodily harm " are quite wrong. 

An indictment under the repealed act, charging the act 
to have been done " feloniously, wilfully and maliciously" 
was held bad, the words of the statute, then being " unlaw- 
fully and maliciously : " R. v. Ryp.u, 2 Moo. 15. In 
practice the first count of the indictment is generally for 
wounding with intent to murder. These counts are allowed 
to be joined in the same indictment. 



f 



y ■• 



234 



BODILY INJURIES, ETC. 



[Sec. 241 




This clause includes every wounding done without law- 
ful excuse with any of the intents mentioned in it ; from 
the act itself malice will be inferred : R. t. Latimer, 
17 Q. B. D. 359, Warb. Lead. Cas. 117, and cases there 
cited. 

The instrument or means by which the injury was 
inflicted need not be stated in the indictment, and if stated 
need not be proved as laid : R. V. Briggs, 1 Moo. 318. And 
in the same case it was held that upon an indictment 
which charged a wound to have been inflicted by striking 
with a stick and kicking with the feet, proof that the wound 
was caused either by striking with a stick or kicking was 
sufficient, though it was uncertain by which of the two the 
injury was inflicted. 

In order to convict of the offence the intent must be 
proved as laid; hence the necessity of several counts charg- 
ing the offence to have been committed with different 
intents. If an indictment alleged that the defendant ciil; 
the prosecutor with intent to disable, and to do some 
grievous bodily harm, it will not be supported by proof of 
an intention to prevent a lawful apprehension : R. v. Duffin, 
R. &. R. 3G5 ; R. v. Boyce, 1 Moo. 29 ; unless for the pur- 
pose of affecting his escape the defendant also harboured 
one of the intents stated in the indictment : R. v. Gillow, 
1 Moo. 85 ; for where both intents exist it is immaterial 
which is the principal and which the subordinate. There- 
fore where, in order to commit a rape, the defendant cut 
the private parts of an infant, and thereby did her grievous 
bodily harm, it was holden that he was guilty of cutting 
with intent to do her grievous bodily harm, notwitl stand- 
ing his principal object was to commit the rape : R. v. Cox, 
R. & R. 362. So also, if a person wound another in order 
to rob him, and thereby inflict grievous bodily harm, he 
may be convicted on a count charging him with an intent 
to do grievous bodily harm. 



I*., 



Seo. 241] 



WOtTNDING WITH INTENT. 



235 



An indictment charging the prisoner with wounding A. 
with intent to do him grievous bodily harm, is good 
although it is proved that he mistook A. for somebody else, 
and that he intended to wound another person : B. v. 
Stopford, 11 Cox, 643 : nee E. v. Hunt 1 Moo. 93. 

The prisoner was indicted for shooting at A. with in- 
tent to do him grievous bodily harm. He fired a pistol 
into a group of persons who had assaulted and annoyed 
him, among whom was A., without aiming at A. or any one 
in particular, but intending generally to do grievous bodily 
harm, and wounded A. Held, on a case reserved, that he 
MS rightly convicted : R. v. Fretwell, L. & C. 443. 

With respect to the intents mentioned in the statute it 
may be useful to observe that to maim is to injure any part 
of a man's boiy which may render him in fighting less 
able to defend himself, or annoy his enemy ; to disfigure 
is to do some external injury which may detract from his 
personal appearance ; and to disable is to do something 
which creates a permanent disability, and not merely tem- 
porary injury : Archbold, 666. It is not necessary that a 
grievous bodily harm should be either permanent or dan- 
gerous ; if it be such as seriously to interfere with health or 
comfort that is sufficient ; and, therefore, where the 
defendant cut the private parts of an infant, and the wound 
was not dangerous, and was small, but bled a good deal, 
and the jury found that it was a grievous bodily harm, it 
was holdeo that the conviction was right : R. v. Cox, R. & 
R. 362. 

Where the intent laid is to prevent a lawful apprehen- 
sion it must be shown that the arrest would have been 
lawful ; and where the circumstances are not such that the 
party must know why he is about to be apprehended it 
must be proved that he was apprised of the intention to 
apprehend him : Archbold, 667. 

While the dofendant was using threatening language to 
a third person a constable in plain clothes came up and 






'te; 






\ 



236 



BODILY INJURIES, ETC. 



[Sec. 241 





interfered. The defendant struck the constable with his 
£st, and there was a struggle between them. The con- 
stable went away for assistance, and was absent for an 
hour ; he changed his plain clothes for his uniform and 
returned to defendant's house with three other constables. 
They forced the door and entered the house. The dftfend- 
ant refused to come down, and threatened to kill the first 
man who came up to take him. The constables ran up- 
stairs to take him, and he wounded one of them in the 
atruggle that took place. Held, upon a case reserved, that 
the apprehension of the prisoner at the time was unlawful, 
and that he could not be convicted of wounding the con- 
stable with intent to prevent his lawful apprehension : B. 
V. Marsden, 11 Cox, 90. 

Upon an indictment for an assault with intent to do 
grievous bodily harm a plea of guilty to a common assault 
may be received if the prosecution consents : R. v. Box- 
burgh, 12 Cox, 8. 

Upon an indictment for any offence under this clause 
the jury may find a verdict of guilty of an attempt to com- 
mit it, s. 711. 

A verdict of common assault may also be found, s. 713, 

And, if the prosecutor fail in proving the intent, the 
defendant may be convicted of unlawfully wounding, and 
sentenced under the next section. 

And where three are indicted for malicious wounding 
^ith intent to do grievous bodily harm the jury may con- 
vict two of the offence under s. 241, and the third of un- 
lawfully wounding under s. 242: B. v. Cunningham, Bell, 72, 

Where a prisoner was indicted for feloniously wounding 
with intent to do grievous bodily harm : Held, that the 
intention might be inferred from the act : B. v. LeDante; 
2 G. & 0. (N. S.) 401. 

L. was tried on an indictment under 32 & 33 V. c. 20, 
containing four counts. The first charged that he di( 



The repealed 
ciouely." Fine, 

Indictment fo 
unlawfully did ^ 
ham upon), 
"didinjlict grievo 

The act mus 
would in most c 
Martin, 14 Cox, 6 

See remarks u 
8 Q. B. D. 64. 

But general 
ifalice against th( 



Sec. 242] 



UNLAWFUL WOUNDING. 



237 



unlawfully, etc., kick, strike, wound and do grievous bodily 
barm to W., with intent, etc., to maim ; the second charged 
ac assault, as in ilrst, with intent to disfigure ; the third 
charged intent to disable ; the fourth charged the intent 
to do some grievous bodily harm. The prisoner was found 
guilty of a common assault. Held, that L. was rightly 
convicted, s. 51 of the Act, 32 & 83 Y. c. 20, authorizing 
fluch conviction : E. v. Lackey, 1 P. & B. (N. B.) 194. 

An indictment for doing grievous bodily harm, which 
alleged that the prisoner did " feloniously " stab, cut and 
vroand, etc., instead of alleging, in the terms of the 17th 
section of 32 & 33 V. c. 20, that he did " unlawfully " and 
"maliciously" stab, etc., is good: a defective indictment 
is amendable under 32 & 33 Y. c. 29, s. 32, and any ,.^>iectioD 
to it for any defect apparent on the face thereof ^ : be 
taken by demurrer or motion to quash the h .i' v;;ent 
before the defendant has pleaded and not afterwards: 
R. Y. Flynn, 2 P & B. (N. B.) 321. 

Unlawful Wounding. 

24S- Every one is guilty of an indictable offence and liable to three years* 
imprisoninent who unlawfully wounds or iniUctn any grievous bodily harm 
upon any other person, either with or without any weapon or instrument. 
R. S. C. c. 162, 8. 14 (Amended^ 24-25 V. c. 100, s. 20 (Imp.). 

The repealed clause contained the words " and mali- 
ciously." Fine, s. 958. 

Indictment for unlawfully loounding. — one J. N 

unlawfully did wound {wound or inflict any grievous bodily 
harm upon). {Add a count charging that the defendant 

"did inflict grievous bodily harm upon J. N.**) — 

The act must have been done maliciously. Malice 
would in most cases be presumed : ,8 Burn, 754 ; B. v. 
Martin, 14 Cox, 633, 8 Q. B. D. 54. 

See remarks under preceding section and B. v. Martin^ 

8 Q. B. D. 54. 

But general malice alone constitutes the offence. 
Malice against the person wounded ib not a necessary in- 





236 



BODILY INJURIES, JETO. 



[Sec. 242 





gredi«nt of tb9 offeooe. So if any one, intending to wound 
A., accidentally wounds B., be is guilty of an offence under 
this clause : B. t. Latimer, 16 Cox, 70, 17 Q. B. D. 359. 

' Upon an indictment for assaulting, beating, wounding 
and inflicting grievous bodily barm, the prisoner may be 
convicted of a common assault : B. v. Oliver, Bell, 287. 

Upon an indictment charging that the prisoner '* unlaw- 
fully and maliciously did assault one H. B., and did then 
and there unlawfully and maliciously kick and wound him, 
the said H. B., and thereby then and there did unlawfully 
and maliciously inflict upon the said H. B. grievous bodily 
barm, against" the jury may return a verdict of 

guilty of a common assault merely : B. v. Yeadon, L. & G. 
61. 

In B. V. Taylor, 11 Cox, 261, the indictment was as 

follows i — "That Taylor on unlawfully and 

maliciously did wound one Thomas and the jurors 

that the said Taylor did unlawfully and maliciously 

inflict grievous bodily harm upon the said Thomas." 

Upon this indictment the jury returned a verdict of 
common assault, and upon a case reserved the convictiou 
was affirmed. 

In B. V. Ganwell, 11 Cox, 263, a verdict of eommoQ 
assault was also given upon an indictment containing only 
one count for maliciously and unlawfully inflicting grievous 
bodily barm, and the conviction was affirmed upon a case 
reserved. 

The defendant may be found guilty of the attempt to 
commit the ofSenee charged, e. 711. 

To cause any one by threats of violence to do an act, 
under the impulsion of fright, by which he is grievously in- 
jured is a eriminai offence under this section: B. v. Haili- 
day, 6 Times, L.B. 109. 

▲ man doea not inflict grievous bodily harm on his wife 
vithio th« me%img of tbif eeo^o by oommumeitiflg to 



Sees. 243. 24i] 



SHOOTING AT VESSELS, ETC. 



299 



ber a venereal disease : B. v, Clarence, 16 Cox, 511, 22 
Q. B. D. 28, Warb. Lead. Cas. 180 ; see Hegarty v. Shine, 
14 Cox, 124. A previous conviction for an assault bars an 
indictment for unlawful wounding based on the same 
facts : B. v. Miles, 17 Cox, 9. 

Shooting at Hkb Majesty's Vessels— Wounding an Offiobu cn duty. 
^43* Every one is guilty of an indictable offence and liable to fourteen 
ycari' imprisonment who wilfully — 

(a) Shoots at any vessel belonging to Her Majesty or in the service of 
Canada ; or 

(b) Maims or wounds any public officer engaged in the execution of his 
duty or any person acting in aid of such officer. R. S. C. c. 32, s. 213 ; c. 34, 
8. 99 (Amended). 

"Pablio officer" defined, s.8. The punishment is altered. 
The repealed enactments applied only to customs or inland 

revenue officers. 

Choking ob Dbuoouto with Intent. 

Ii44« Every one is guilty of an indictable offence and liable to impriion- 
nmt for life and to be whipped, who with intent thereby to enable himself or 
tny other person to commit, or with intent thereby to assist any other person 
in committing any indictable offence — 

(a) By any means whatsoever, attempts to choke, suffocate or strangle any 
other person, or by any means calculated to choke, suffocate or strangle, 
attempts to render any other person insensible, unconscious or incapable of 
neiatance ; or 

(h) Unlawfully applies or administers to, or causes to be taken by, or 
attempts to apply or administer to, or attempts or causes to be administered 
to or taken by, any person, any chloroform, laudanum or other stupefying or 
OTCfpoweriag drug, matter or thing. R. S. C. c. 162, sa. 15 ft 16 (Amended). 
21-25 V. c. 100, 88. 21, 22. 26-27 V. o. 44 (Imp.). 

Indictment for attempting to choke.-^ unlawfully 

did attempt by then {state the meane)^ to choke, suffocate 
and etrangle one J. N. {suffbeate or strangle any person, or 
), with intent thereby then to enable him, the said 
A. 6., the monies, goods, and chattels of the said J. N., 
from the person of the said J. N., unlawfully to steal. {Add 
mnts varying the statement of the overt acts, and of the 
intent.) 

This clause is new, and is directed against those 
Attempte at robbery which have been accompanied by 
Tiolenee to the throat : Greaves, Cons. Acts, 64. 







240 



BODILY INJURIES, ETC. 



[Sees. 246, 24« 



In certain cases a verdict of common assault may be 
given upon an indictment for this offence, s. 713. 

Indictment for attempting to drug. — unlawfully 

did apply and administer to one J. N. (or came ) 

certain chloroform with intent thereby {intent as in the Uut 
precedent). 

If it be not certain that it was chloroform, or laudanum, 
that was administered, add a count or counts stating; it to 
be "a certain stupefying and overpowering drug and 
matter to the jurors aforesaid unknown." Add also counts 
varying the intent if necessary. 

As to what constitutes an " administering, or attempt- 
ing to administer ": see remarks under s. 232, ante. 

AdHINISTERINO PoiSok so A3 TO ENDANGER LiFE. 

%45- Every one is guilty of an indictable offence and liable to fourteen 
years' imprisonment who unlawfully administers to, or causes to be admiD- 
istered to or taken by any other person, any poison or other destructive or 
noxious thing so as thereby to endanger the life of such person^ or so as there- 
by to inflict upon such person any grievous bodily harm, B. S. C. o. 162, a. 17- 
24-25 V. c. 100, s. 23 (Imp.). 

The words "and maliciously" were in the repealed 
section after " unlawfully ": see remarks under next section, 
and under ss. 241 and 242, ante. 

Adhinisterino Poison with Intent to Injure. 

fS4tt. Every one is guilty of an indictable offence and liable to three years' 
imprisonment who unlawfully administers to, or causes to be administered to 
or taken by, any other person any poison or other destructive or noxious thing, 
with intent to injure, aggrieve or annoy such person. R. S. C. c. 162, s. 18. 
24-25 V. c. 100, 8. 24 (Imp.). 

The words "and maliciously" were in the repealed 
section after " unlawfully." 

Fine, s. 958. 

Under an indictment under s. 245 the jury may find 
the prisoner guilty of the offence provided for in s. 246. 

Indictment under s. 245 for administering poison so as to 
endanger life. — unlawfully did administer to one 

J. N. (or cause ), a large quantity, to wit, tvo 



Sees. 247, 248] 



INJURIES BY EXPLOSIVES. 



241 



drachms of a certain deadly poison called white arsenic* 
and thereby then did endanger the life of the said J. N. 

Add a count stating that the defendant " did cause to be 
taken by J. If. a large quantity of ** and if the kind 

of poison be doubtful, add counts describing it in different 
ways, and also stating it to be "a certain destructive thing, 
{(yr a certain noxious thing) to the jurors aforesaid unknown.'* 
There should be also a set of counts stating that the defendant 
thereby " inflicted upon J. N. grievous bodily harm." 

Administering cantharides to a woman with intent to 
excite her sexual passion, in order to obtain connexion with 
ber, is an administering with intent to injure, aggrieve or 
annoy, within the meaning of s. 246: B. v. Wilkins, L. 
&C. 89. 

If the poison is administered merely with intent to 
injure, aggrieve or annoy, which in itself would merely 
amount to an offence under s. 246, yet if it does, in fact, 
inflict grievous bodily hari;n, this amounts to an offence 
under s. 245 : TuUey v. Corrie, 10 Cox, 640. 

But to constitute this offence the thing administered 
muBt be noxious in itself, and not only when taken in 
excess : K. v. Hennah, 13 Cox, 547. 

" An intent to injure, in strictness, means more than an 
intent to do harm. It connotes an intent to do wrongful 
harm " : per Bowen, L.J., Mogul Co. v. McGregor, 2a. 
Q.B.D.598. 

Causing Bodily Injuries bt Explosives. 

24T. Every one is guilty of an indictable offence and liable to imprison' 
mat for life who unlawfully and by the explosion of any explosive substance 
bums, maims, disfigures, disables or does any grievous bodily harm to any 
person. R. S. C. c. 162, s. 21. 24-25 V. c. 100, s. 28 (Imp.). 

The words " and maliciously " were in the repealed sec- 
tion after " unlawfully." 

See remarks under next section. 

248. Every one is guilty of an indictable offence and liable, in case (a) to 
intprisonment for life and in case (6) to fourteen years' imprisonment, who 
unlawfully— 

CRia. LAW--16 




I < 




'A'- 




242 



BODILY INJURIES, ETO. 



[Sec. 248 




(a) With intent to burn, maim, disfigure or disable any person, or to do 
some fpievous bodily harm to any person, whether any bodily harm is effected 
or not — / 

(i) OauMB any explosive substance to explode ; 

(ii) Sends or delivers to, or causes to be taken or received by, any 
person any explosive substance, or any other dangerous or noxious thing ■ 

(iii) Puts or lays at any place, or oasts or throws at or upon, or other- 
wise applies to, any person any corrosive fluid, or any destructive or 
explosive substance ; or 

(b) Places or throws in, into, upon, against or near any building, ship or 
vessel any explosive substance, with intent to do any bodily injury to any 
person, whether or not any expiation takes place and whether or not any bodily 
injury is effected. R. S- C. c. 162, ss. 22 and 23. 24-25 V. o. 100, ss. 29 & 30 
(Imp.). 

The words in italics are not in the Imperial Act. 

" Explosive substance " defined, s. 3. 

Hhe words "and maliciously" were in the repealed 
section after " unlawfully." 

Indictment under 8, 248 for sending an explosive svh- 
Mtance with intent, etc, unlawfully did send {or 

deliver to or cause to be taken or received by) to one J. N., a 
certain explosive substance and dangerous and noxious 
thing, to wit, two drachms of fulminating silver, and two 
pounds weight of gunpowder, with intent in so doing him 
the said J. N. thereby then to burn (maim, disfigure or 
disable, or do some grievous bodily harm). (Add counts 

varying the injury and intent). 

Indictment under s. 848 for throwing corrosive fluid, with 
intent, etc. unlawfully did cast and throw upon one 

J. N. a certain corrosive fluid, to wit, one pint of oil of 
vitriol, with intent in so doing him the said J. N., thereby 
^en to born. {Add counts varying the injury and h 

intent.) 

In B. V. Crawford, 1 Den. 100, the prisoner was indicted 
for maliciously throwing upon P. C, certain destractive 
matter, to wit, one quart of boiling water, with intent, etc. 
The prisoner was the wife of P.* C, and when he was asleep 
she, under the influence of jealousy, boiled a quart of water, 
and poured it over his face and into one of his mh *>)<' 



Seo.349] 



SETTING SPRING GUNS, ETC. 



243 



ran off boasting she bad boiled him in his sleep. The 
injury was very grievous. The man was for a time deprived 
of sight, and bad frequently lost for a time the bearing of 
one ear. The jury having convicted, the judges held that 
the conviction was right. 

In B. V. Murrow, 1 Moo. 456, it was held, where the 
defendant threw vitriol in the prosecutor's face, and so 
wounded him, that this wounding was not the " wounding " 
meant by the 9 Geo. IV. c. 81, s. 12 ; but it would now 
fall under this statute. The question of intent is for the 
jury : R* v. Saunders, 14 Cox, 180. 

Indictment under a. 24-7 for turning by gunpowder. — 
unlawfully, by the explosion of a certain explosive 
substance, that is to say, gunpowder, one J. N. did burn 
[Add counts varying the atatement of the injury, according 
to circumatancea.) 

Indictment charged defendants with having unlawfully, 
knowingly and wilfully deposited in a room in a lodging 
or boarding house (described) in the city of Halifax, near 
to certain streets or thoroughfares and in close proximity 
to divers dwelling houses, excessive quantities of a danger- 
ous and explosive substance called dynamite, in excessive 
and dangerous quantities, by reason whereof the inhabi- 
tants, etc., were in great danger: Held, good, without 
alleging carelessness, or that the quantities deposited were 
80 great that care would not produce safety : B. v. Holmes, 
5R.&G. (N. S.)498. 

Settino Spring Guns, Traps, Etc., Etc. 

349. Every one is guilty of an indictable ofiFence and liable to Jive years' 
imprisonment who sets or places, or causes to be set or placed, any spring-gun, 
mantrap, or other engine calculated to destroy human life or inflict grievous 
bodily harm, with the intent that the same or whereby the same may destroy, 
or inflict grievoue bodily harm upon any trespaaser or other person coming in 
contact therewith. 

2. Every one who knowingly and wilfully permits any such spring-gun, 
man-trap or other engine which has been set or placed by some other person, 
in any place which is in, or afterwards comes into, his possession or occupa- 
tion, to continue so set or placed shall be deemed to have set or placed such 
gun, trap or engine with such intent as aforesaid. 





'in 



244 



BODILY INJURIES, ETC. 



[Sec. 24» 



3. This section does not extend to any gun or trap usually set or placed 
with the intent of destroying vermin or noxiout animaU. R. S. C. c. 162, g. 24. 
24-26 V. 0. 100, 8. 31 (Imp.). 

The last three words are new : see Wootton v. Dawkins^ 
2 C. B. N. 8. 412 ; Bird v. Holbrcok, 4 Bing. 628 ; Ilott 
V. Wilkes, 3 B. & Aid. 304 ; Jordin v. Crump 8 M. & W. 
782. 

Fine, s. 968. 

The English Act has the following additional proviso : 
" Provided also that nothing in this section shall be deemed 
to make it unlawful to set or place or cause to be set or 
placed, or to be continued set or placed, from sunset to 
sunrise, any spring-gun, man-trap, or other engine which 
shall be set or placed, or caused or continued to be set or 
placed, in a dwelling-house for the protection thereof." 

Indictment. — unlawfully did set and place, and 

caused to be set and placed, in a certain garden situate 
a certain spring-gun which was then loaded and 
charged with gunpowder and divers leaden shot, with intent 
thaj; the said spring-gun, so loaded and charged as afore- 
said, should inflict grievous bodily harm upon any trespasser 
who might come in contact therewith. 

Prove that the defendant placed or continued the spring- 
gun loaded in a place where persons might come in contact 
with it; and if any injury was in reality occasioned state 
it in the indictment, and prove it as laid. The intent can 
only be inferred from circumstances, as the position of the 
gun, the declarations of the defendant, and so forth; any 
injury actually done will, of course, be some evidence of the 
intent: Archbold. 

A dog- spear set for the purpose of preserving the game 
is not within the statute, if not set with the intention to do 
grievous bodily harm to human beings: 1 Russ. 1052. 

The instrument must be calculated to destroy life or 
cause grievous bodily harm, and proved to be such; and, if 
the prosecutor, while searching for a fowl among some bushes 



bj 



Endan 

*5t. Every one 

mprigonment who, b 

of duty, endangers or 

eywd or being in or u 

S.27. 24-25 V.clOO 

^ine, 8. 958. 
evidence warran 



Sees. 260, 261] INJURIES TO RAILWAYS, ETC. 



245 



in the defendant's garden, came in contact with a wire 
which caused a loud explosion, whereby he was knocked . 
down, and sliKfatly injured about the face, it was held that 
the case was not within the statute, as it was not proved 
what was the nature of the engine or substance which caused 
the explosion, and it was not enough that the instrument 
was oae calculated to create alarm: 1 Buss. 1053. 

INJURIR8 TO Railways, Etc. 

390. Every one is guilty of an indictable offence and liable to imprison- 
ment for life who unlawfully — . 

(a) With intent to injure or to endanger the safety of any person travel- 
ling or being upon any railway, 

(i) Puts or throws upon or across such railway any wood, stone, or 
other matter or thing ; 

(ii) Takes up, removes or displaces any rail, railway switch, sleeper or ' 
other matter or thing belonging to such railway, or injures or destroys 
any tra«k, bridge or fence of such railway, or any portion thereof ; 

(iii) Turns, moves or diverts any point or other machinery belonging 
to such railway ; 

(iv) Makes or shows, hides or removes any signal or light upon or 
near to such railway ; 

(v) Does or causes to be done any other matter or thing with such in- 
tent; or • ' 
(h) Throws, or causes to fall or strike at, against, into or upon any engine^ 
tender, carriage or truck used and in motion upon any railway any wood, stone 
or other matter or thing, with intent to injure or endanger the tafety of any 
person being in or upon such engfitie, tender, carriage or truck, or in or upon 
any other engine, tender, carriage or truck of any train of which such first 
mentioned engine, tender, carriage or truck forms part. R. C. S. c. 162, ss. 25 
&26. 24-25 V. c. 100, s. 32-33 (Imp.). 

The words "and maliciously*' were in the repealed 
sectiou after " unlawfully." 

See remarks under next section. . ' . 

Ekdanoerino Safety of Person on Railway. 

351. Every one is guilty of en indictable offence and liable to two years' 
iiiprigonment who, by any unlawful act, or by any wilful omission or neglect 
ofrfMt^v, endangers or causes to be endangered the safety of any person con- 
eyed or being in or upon a railway, or aids or assists therein. R. S. C. c. 162, 
s, 27. 24-25 V. c. 100, s. 34 (Imp.). 

Fine, s. 958. A verdict of attempt may be given, if the 
evideDce warrants it, s. 711. 



w 




246 



BODILY INJURIES, ETC. 



[S«o. 261 



The words "of duty" in this last section are not in 
the English Act. 

Indictment under ». 251 for endangering by wilful neglect 
the safety of railway passengers. that J. S. on 

unlawfully did, by a certain wilful omission and neglect of 
bis duty, that is to say, by then wilfully omitting and 
neglecting to turn certain points in and upon a certain 
railway called in the parish which points it 

was then the duty of him, the said J. S., to turn, endanger 
the safety of certain persons then conveyed and being in 
and upon the said railway . (Add counts varying 

the statement of defendant's duty, etc.) 

An acquittal of the offence under s. 250 was no bar to 
an indictment for the offence under s. 251 : B. v.Gilmore, 15 
Cox, 85 ; but now it would be as a verdict for the offence 
provided for in s. 251 can be given on an indictment under 
6. 260 : 8. 713, post. 

See post, remarks under s. 489. The forms of indict- 
ments there given may form a guide for indictments under 
the present section. 

Prove that it was the duty of the defendant to turn the 
points; that he wilfully omitted and neglected to do so; 
and that, by reason of such omission and neglect, the 
safety of the passengers or other persons conveyed or being 
on the railway was endangered (which words will include, 
not only passengers, but officers and servants of the rail- 
way company) : Archbold. 

In R. V. Holroyd, 2 M. & Rob. 339, it appeared that 
large quantities of earth and rubbish were found placed 
across the railway, and the prosecutor's case was that this 
had been done by the defendant wilfully and in order to 
obstruct the use of the railway ; and the defendant's case 
was that the earth and rubbish had been accidentally 
dropped on the railway : Maule, J., told the jury, that if 
the rubbish had been dropped on the rails by mere 
accident the defendant was not guilty ; but " it was by no 



See. 251] 



INJURIES TO RAILWAYS, ETC. 



247 



meand neoeasary, in order to bring the case within this 
Act, that the defendant should L Ave thrown the rnbbiah on 
the rails expressly with the view to upset the train of 
carriages. If the defendant debignedly placed these sub- 
stances, having a tendency to produce an obstruction, not 
caring whether they actually impeded the carriages or not, 
that was a case within the Act." And on one of the jury 
asking what was the meaning of the term " wilfully," then 
UBed in the statute, the learned judge added " he should 
consider the act to have been wilfully done, if the 
defendant intentionally placed the rubbish on the line, 
knowing that it was a substance likely to produce an 
obstruction ; if, for instance, he had done so in order to 
throw upon the company's officers the necessary trouble of 
removing the rubbish." This decision may afiford a safe 
guide to the meaning of the term wilful in this clause, 
251 : Greaves, Cons. Acts, 62. In the other clauses the 
word wilfully is now replaced by unlawfully. 

On 8. 250 (6) Greaves says : — *' The introduction of the 
word at extends this clause to cases where the missile fails 
to strike any engine or carriage. Other words were intro- 
duced to meet cases where a person throws into or upon 
one carriage of a train, when he intended to injure a 
person being in another carriage of the same train, and 
similar cases. In B. v. Court, 6 Cox, 202, the prisoner 
was indicted for throwing a stone against a tender with 
intent to endanger the safety of persons on the tender, 
and it appeared that the stone fell on the tender but 
there was no person on it at the time, and it was held 
that the section was limited to something thrown upon an 
engine or carriage having some person therein, and conse- 
quently that no offence within the statute was proved ; 
but now this case would clearly come within this clause." 

In B. V. Bradford, Bell, 268, it was held that a rail- 
way not yet opened for passengers, but used only for the 
carriage of materials and workmen, is a railway within the 
Btatate. 










248 



BODILY INJURIES, ETC. 



[Sec. 251 



In B. V. Bowray, 10 Jur. 211, 1 Buss. 1058, on an 
indictment for throwing a stone on a railway so as to 
endanger the safety of passengers, it was held that the 
intention to injure is not necessary, if the act was done 
wilfully, and its effect be to endanger the safety of the 
persons on the railway. 

It is not necessary that the defendant should have en- 
tertained any feeling of malice against the railway com- 
pany, or against any person on the train; it is quite 
enough to support an indictment under the statute if the 
act was done mischievously, and with a \iew to cause an 
obstruction of a train : B. v. Upton, 5 Cox, 298. 

Twc boys went upon premises of a railway company, 
and began playing with a heavy cart which was near the 
line. Having started the cart it ran down an embankment 
by its own impetus. One boy tried to divert its course ; 
the other cried to him " let it go." The cart ran on with- 
out pushing until it passed through a hedge, and a fence 
of posts and rails, and over a ditch on to the railway ; it 
tested so close to the railway lines as to obstruct any car- 
triages passing upon them. The boys did not attempt to 
dremove it : Held, that as the first act of moving the cart 
ivas a trespass, and therefore an unlawful act, and as the 
jury found that the natural consequence of it was that the 
cart ran through the hedge and so on to the railway, the 
boys might be properly convicted : E. v. Monaghan, 11 
Gox, 608. 

Indictment under «. 260 (h). that on at 

A. B. unlawfully did throw {or cause to fall or strike 
against, into or upon) upon a certain carriage {engine, ten- 
der, carriage, or truck), then and there used upon a certain 
railway there, called a certain large piece of wood 

(any tcood, stone, or other matter or thing) with intent 
thereby then and there to Aidanger the safety of one C. D., 
then and there being in {in or upon) the said carriage 
(engine, tender, carriage or truck) : see a form in schedule 
one, post, form F. F., under s. 611, 



Sees. 252, 233] 



INJURY BY NEGLIGENCE. 



249: 



Causing Injury bt Nbolioenoe. 

S5f3> Every one is guilty of an indictable ofiFence and liable to two years' ■ 
imprisonment who, by any unlawful act, or by doing negligently or omitting 
to do any acf which it is his duty to do, causes grievous bodily injury to any 
other person. R. S. 0. o. 162, s. 33. 

Fine, s. 958. 

This clause is not in the English Act. It is nearly in 
the same terms as s. 251, except that this last one applies 
only to passengers by railway endangered by the unlawful 
act or neglect, or omission of duty. 

An injury resulting from an omission does not subject 
the person causing it to punishment unless such omission 
be unlawful. An omission is deemed unlawful whensoever 
it is a breach of some duty imposed by law, or gives cause 
to a civil action : 2nd Report Cr. L. Com. 14 May, 1846 ; 
see R. V. Instan, [1893] , 1 Q. B. 450. 

Mr. Starkie, one of the English Commissioners, in a 
separate report, objected strongly to such an enactment, 
and the framers of the Imperial Statutes have thought 
proper to leave it out. 

This section uses the term " bodily injury " instead of 
" bodily harm " used in the next section and in s. 241, 
et seq. Did the drafter intend to make a distinction 
between the two ? Probably not. 

Injury by Furious Driving. 

3S3. Every one is guilty of an indictable offence and liable to Uvo years' 
imprisonment who, having the charge of any carriage or vehicle, by wanton or 
furious driving, or racing or other wilful misconduct, or by wilful neglect, does 
or causes to be done a-.iy bodily harm to any person. R. S. C. c. 162, s. 28. 
24-25 V.c. 100,8. 35 limp.). 

Indictment. — being then a coachman, and then 

having charge of a certain carriage and vehicle called an 
omnibus, unlawfully did, by the wanton and furious driv- 
ing of the said carriage and vehicle by him the said 
(defendant) cause certain bodily barm to be done to one 
J. N. ■ 

This section includes all carriages and vehicles of every 
description, both public and private. Wilful means volun- 
tary : Greaves, Cons. Acts, 63. 





260 



BODILY INJURIES, ETC. 



[Sees. 254, 255 





See remarks under 8. 251 as to the word "wilful," and 
under s. 262 as to the words " bodily harm." 

Pbkventino any Shipwbeoked PERSCpT PROM Savino HIS LiFE. {At amewki 

in 1893.) 

294> Every one is Kui^^y o^ ^ia indictable offence and liable to seven 
years' imprisonment — 

(a) Wlio prevents or impedes, or endeavours to prevent or impede any 
shipwrecked person in his endeavour to save his life ; or 

(b) Who without reasonable cause prevents or impedes, or endeavours to 
prevent or impede, any person in his endeavour to save the life of any ship, 
wrecked person. R. S. C. c. 81, s. 36. 24-25 V. c. 100, s. 17 (Imp.). 

** Shipwrecked person " defined, s. 3. 

Indictment. — that before and at the time of the 

committing of the offence hereinafter mentioned, to wit, 
on a certain ship was wrecked, stranded and cast on 

shore, and that A.B., on the day and year aforesaid, did 
unlawfully prevent and impede {or endeavour to prevent and 
impede) one CD., a shipwrecked person then endeavouring 
to save his life from the said ship so wrecked, stranded, and 
cast on shore, in his endeavours to save his life. 

Leavino Holes in the Ice, Etc., Etc., IJNauABDED. 

S55- Everyone is gailtyof an offence and liable, on summary convic- 
tion, to a fine or imprisonment with or without hard labour (or both) who— 

(a) Cuts or makes, or causes to be cut or made, any hole, opening, aperture 
or place, of sufficient size or area to endanger human life, through the ice on 
any navigable or other water open to or frequented by the public, and leaves 
such hole, opening, aperture or place, while it is in a state dangerous to human 
life, whether the same is frozen over or not, uninclosod by bushes or trees 
or unguarded by a guard or fence of sufficient height and strength to prevent any 
person from accidentally riding, driving, walking, skating or falling therein ; 
or 

(b) Being the owner, manager or superintendent of any abandoned or un- 
used mine or quarry or property u]K)n or in which any excavation has been or 
is hereafter made, of a sufficient area and depth to endanger human life, leaves 
the same unguarded and uninclosed by a guard or fence of sufficient height and 
strength to prevent any person from accidentally riding, driving, walking or 
falling thereinto ; or 

(c) Omits within five days after conviction of any such oflfence to make the 
inclosure aforesaid or to construct around or over such exposed opening or j 
excavation a guard or fence of such height and strength. 

2. Every one whose duty it is to guard svjch hole, opening, aperture or 
place is guilty of manslaughter if any person loses his life by accidentally falling 
therein while the same is unguarded. R. S. C. o. 102, ss. 2i), 30, 31 k 32. 



Sees. 266, 267J 

This sul 
slaughter un 
enactment h 

Send] 

fiSH. Every 

imprisomnent whi 

Sends, or atte; 

Canada to sea, or c 

voyage from any p, 

place on the inland 

or place on the inia 
inland waters of Caj 
underloading or imp 

orfrom any other ca 
thereby, unless he pi 

sent to sea or on sue] 
on such voyage in 

reasonable and justifi 

257. Everyone 

impnsoninent who, be 

takes such ship to sea, 
or on a voyage from' 
to any port or pJacel 
» voyage trota any , 
place on the inland w 
of overloading or und 
insufficiently manned , 
My to be endangered 
'"ch voyage in such un, 
awe and justifiable. 52 

^'*ne, 8. 958. 

for the offences un. 
0^ tie Minister o 
Diust precede the 
magistrate, when 
' complaint. 



S^miKT] TO8BAW0BTHYSHIP. 

This sub-fleotion lb) nrovi,l.= , .. 
slaagh.er„„a« s. m.^Z^^^^l^^'^ "»»M be „.,„- 
.nactaent ,„ England is containedTn 60 & sfv" .T"' 

tol^-omnent who- *° '"" "° «*«««. offe,«» .„d ,i.u, ,_^^ ^^_^^. 

Sends, or attempts to SAnH «- • 
Canada to sea, or on a vZT ' " * P'""*^ *« sendin? a Bh.r. 

voyage f.mV^r^rErtre^V''^^"'*"^ -teVo S^^r " 
place on the inland waters oUheu'^^'^ °^ Canada to"^;; ^^rT,; 

or place on the inland waters of the Sed sf ; '?" '^ ^°^*^« ^ «>m anTl^ 
inland waters of Canada in «„„», ^"'ted States to any nort or r^i„ . 

(./i»m .„y oth«r cau.s, thai the iif. „? °' "*"* 'iMuffioientlr malj 

857. Every one is jfuiltv of 
imprisonment who, beinir th« «. f " '"<^'«table offence and liabJ« t^ a 

takeasueh «hip to La.:? o'n'rvrySel^t^ Tl^*^^^^^ 
or on a voyagre from any port o^^i ^ ""^ ^^^ ^"'^"^ waters of crn"?^ 
to any port or place on the inL^ """ ''" '^' '"'^"d wate " of cl JT' 
a voyage from any port T ^ '^***''^ "^ the United Sf.f ^* 
place on the inland' w^t 3 of crJ" -^'^ ^"'*«^ Sta^to^ny V/, °" 
of overloading or underioL ^^ '" ''"^^ ""seaworthv sLn ^ ""* 

sufficiently LnnHo'ttlroh"'"'"^ ^"^""*^' 07'/ fa I'^^f "J^" 
Wy to be endange.;d tkZZ:^:^^' '''{ '"^^ "^^ of TnTp^L^/^f 
such voyage in such unseawn^f 1 . ^^^^^^ *hat her <roin«? tr^ T 

*-'"«* ^?^ :^''.:r3::s V* '?: °'~«'-:„™ 

f^ine, 8. 968. •*" ^- c- so (imp.). 

Bys. 546, as amended in iaqq 
for the offences under a 2^^ ! f '"!? P'*°«^«"tion is allowed 
0^ t^e Minister oiulZ Tn, F f "''°"' *^^ — ^^ 
^«st precede the inforration n ^ '''^1' ^^^' ^«"«««t 
magistrate, when prosecution h 'T^'"'"' ^^^^^'^ ^he 
complaint. ^ o^ecution begins by information or 





252 . ASSAULTS. [Seo8. 258, 269 

PART XX. / ; 

' ' ASSAULTS. 

Definition. 

358. An assault is the act of intentionally applying force to the person 
of another, directly or indirectly, or attempting or threatening, by any act or 
^sture, to apply force to the person of another, if the person making the 
threat has, or causes the other to believe, upon reasonable grounds, that he has 
present ability to effect his purpose, and in either case, without the consent of 
the other or with such consent if it is obtained by fraud. 

As to the words in italics: see R. v. Clarence, 16 Cox, 511 
22 Q. B. D. 23, Warb. Lead. Cas. 130. This definition 
covers an assault and battery, as well as a simple assault: 
see post remarks under ss. 262 and 26 J 

Indecent Assaults on Females. 

S50. Every one is guilty of an indictable offence and liable to two years' 
imprisonment, and to be whipped, who — 

(a) Indecently assaults any female ; or 

(b) Does anything to any female by her consent which but for such consent 
would be an indecent assault, such consent being obtained by false and fraudu- 
lent representations as to the nature and quality of [the act. 53 V. c. 37, s. 12. 
24-25 V. c. 100, 8. 52 (Imp.). 

Fine, s. 958 

See s. 685, post, as to evidence of young children upon 
a charge of an indecent assault ; also s. 25 of I'he Canada 
Evidence Act 1893, and s. 261. 

Indictment. — one A. D. a female, unlawfully and 

indecently did assault, and her, the said A. D. did then 
beat, wound and ill treat, and other wrongs to the said 
A. D. did, to the great damage of the said A. D. 

Upon the trial of the prisoner, a school teacher, for an 
indecent assault upon one of his schoLirs, it appeared that 
he forbade the prosecutrix telling her parents what had 
happened, and they did not hear of it for two months. 
After the prosecutrix had given evidence of the assault 
evidence was tendered of the conduct of the prisoner 
towards her subsequent to the assault : Held, that the 
evidence was admissible as tending to show the indecent 



Sees. 260-262] 



INDECENT ASSAULTS, ETC. 



253 



quality of the assault, and as being, in effect, a part or 
continuation of the same transaction as that with which 
the prisoner was charged : B. v. Chute, 46 U. C. Q. B. 555 ; 
see R. V. Drain, under s. 262, post. 

As to sub-section (6) of s. 259, see B. v. Bennett, 4 
F. & F. 1105 ; B. v. Case, 1 Den. 580 ; R. v. Clarence, 
16 Cox, 511, 22 Q. B. D. 23, Warb. Lead. Cas. 130. 

Indecent Assaults on Males. 
!260* Every one is guily of an indictable offence and liable to ten years' 
imprisonment and to be whipped who assaults any iierson with intent to com- 
mit sotlomy, or who, being a male, indecently assaults any other male person. 
R. S. C. c. 157, s. 2. {Amended). 

Attempt to commit sodomy is provided for by s. 175. 

See ante, notes under ss. 174, 175, 178, and post, under 
s. 261. 

An indictment under this clause is defective even after 
verdict if it does not aver in express terms that the accused 
and the assaulted party are males : B. v. Montminy on a 
case reserved, Q. B. Quebec, May, 1893. 

See form, ante, under s. 178. 

Consent op Children Under 14 No Defence. 
361« It is no defence to a charge or indictment for any indecent assault 
on a young person under the age of fourteen years to prove that he or she con- 
sented to the act of indecency. 53 V. c. 37, s. 7. 43-44 V. c. 45, s. 2 (Imp.). 

This enactment applies to assaults on males as well as 
on females ; B. v. Mehegan, 7 Cox, 145 ; B. v. Johnson, 
L. & C. 632, and that class of cases are not now law ; see 
B. V. Brice, 7 Man. L. B. 627. 

This enactment applies to all offences which include an 
indecent assault. 

Actual Bodily Harm. 

363. Every one who commits any assault which occasions actual bodily 
harm is miilty of an indictable offence and liable to three years' imprisonment. 
R, S. C. c. 162, 8. 35. 

Fine, s. 958. 

In B. V. Clarence, 16 Cox, 511, 22 Q. B. D. 23, Warb. 
Lead. Cas. 130, it was held that a husband who communi- 
cates a venereal disease to bis wife cannot be indicted for 
causing her actual bodily harm. 



i 




■•ti^jv 





254 



ASSAULTS. 



[Sec. 263 



Indictment for an assault occasioning actual bodily harm. 
^-^ thai J. S., on in and upon one J. N. did 

make an assault, and him the said J. N. did then beat, 
wound and ill-treat, thereby then occasioning to the said 
J. N. actual bodily harm, and other wrongs to the said 
J. N. then did, to the great damage of the said J. N. 

The defendant may be convicted of a common assault 
upon an indictment for occasioning actual bodily harm: 
R. V. Oliver, Bell, 287 ; R. v. Yeadon, L. & C. 81 ; s. 713, 
post. 

The intent to do bodily harm, or premeditation, is not 
necessary to convict upon an indictment under this section; 
thus a man who commits an assault the result of which is 
to produce bodily harm is liable to be convicted under this 
section, though the jury find that the bodily harm formed 
no part of the prisoner's intention, and was done without • 
premeditation, under the influence of passion : E. v. Spar- 
row, Bell, 298. 

The actual bodily harm mentioned in this section would 
include any hurt or injury calculated to interfere with the 
health or comfort of the prosecutors ; it need not be an 
injury of a permanent character, nor need it amount to 
what would be considered to be grievous bodily harm. 

On an indictment for assault and battery occasioning 
actual bodily harm the evidence proved only a common 
assault or an assault and battery : Held, on a case re- 
served, that the accused was not a competent witness on 
his own behalf under c. 174, s. 216. 

A statement by the man assaulted, made immediately 
after the assault and in presence of the accused, was held 
admissible : B. v. Drain, 8 Man. L. B. 535. 

AOGRAVATEO ASSAULTS, EtO. 

363. Every one is guilty of an indictable offence and liable to two years' 
impriHonment who — 

(a) Assaults any person with intent to comuiit any indictable offence ; or 
(6) Assaults any pubi. or j)eaoe officer engaged in the execution of his 
duty, or any person acting in aid of such officer ; or 

(c) Assaults any person with intent to resist or prevent the lawful appre- 
hension or detainer of himself, or of any other iierson, for any offence ; or 



\* 



Sec. 263] 



AGGRAVATED ASSAULTS, ETC. 



255 



(d) Asaaulta any person in the lawful execution of any process against any 
lands or goods, or in making any lawful distress or seizure, or with intent to 
fescue any goods taken under such process, distress or seizure. R. S. C. c. 162 
8.34. 

(e) On any day whereon any poll for any election, parliamentary or 
municipal, is being proceeded with, within the distance of two miles from the 
place whore such poll is taken or held, assaults or beats any person. R. S. U. 
c. 8,8.- 77. 

Section 77 of c.8, B. S.G. (unrepealed), of which the above 
g.g. («) is a partial re-enactment, applies only to battery, 
and the prosecution if taken under that Act is limited by 
oue year, and punishable by five years, s. 951, post. 

Fine, s. 958. "Public officer" and "peace officer" 
defined, s. 3. 

Indictment under (a). in and upon one J. N. unlaw- 

fully did make an assault, and him the said J. N. did beat, 
wound and ill-treat with intent him the said J. N. unlaw- 
fully to kill and murder. {Add a count for a common 
assault). 

Every attempt to commit an offence against the person 
of an individual without his consent involves an assault. 
Prove an attempt to commit such an offence, and prove it 
to have been done under such circumstances that, had the 
attempt succeeded, the defendant might have been con- 
victed of the offence. If you fail proving the intent, but 
prove the assault, the defendant may be convicted of the 
common assault. 

Indictment under (b). in and upon one J. N. then 

being a peace officer, to wit, a constable {any peace officer 
in the execution of Mb duty, or any person acting in aid of) 
and then being in the due execution of his duty as such 
constable, did make an assault, and him, the said J. N., so 
being in the execution of his duty as aforesaid, did then 
beat, wound and ill-treat, and other wrongs to the said J.N., 
tben did, to the great damage of the said J. N. {Add a 
comt for a common assault.) 

Prove that J. N. was a peace officer, as stated in the 
indictment, by showing that he had acted as such. 




256 



ASSAULTS. 



[Sec 263. 




It is a maxim of law that " omnia proeaumuntur riU 
et aolenniter esse acta donee probetur in contrarium" 
upoD which ground it will be presumed, even in a case of 
murder, that a man who has acted in a public capacity or 
situation was duly appointed: B. v. Yerelst, 8 Gamp. 432 > 
R. V. Gordon, 1 Leach, 515; R. v. Murphy, 8 0. & P. 297« 
R. V. Newton, 1 C. & K. 469 ; Taylor, on !^vidence, par. I39 
431. Prove that J. N. was in the due execution of his duty 
and the assault : MacFarlane v. R., 16 S. C. R. 393, and B. 
V. King, 18 0. R. 666; R. v. Lantz, 19 N. S. Rep. 1. If yoa 
< fail in proving that J. N. was a peace officer, or that he was 
acting lawfully as such, the defendant may be convicted of 
a common assault. 

The fact that the de'fendan^ did not know that the per- 
son assaulted was a peace officer, or that he was acting in 
the execution of his duty, is no defence: R. v. Forbes, 10 
Cox, 362. 

Sections 144 & 263 (6) ought to form only one: 144 s-s. 1 
is for resisting or obstructing & public officer in theexecu- 
tion of his duty: punishment, ten yeass; 263 is for 
assaulting a public or peace officer in the execution of his 
duty: punishment, two years; then s-s.' 2, s. 144, again 
provides for the oflfence of resisting or w'ilftflly obstructing 
any peace officer in the execution of his duty : punishment, 
two years. Ten years for resisting a public officer, and, 
by the same clause, two years for resisting a peace officer. 
By the interpretation clause, s. 3, the expression " peace 
officer " includes a "Mayor, Warden, Reeve, Sheriff, Deputy 
Sheriff, Sheriff's officer and Justice of the peace, and also 
the Warden, Keeper or guard of a penitentiary, or of any 
prison, and any police officer, police constable, bailiff, con- 
stable or other person employed for the preservation and 
maintenance of the public peace, or for the service or 
execution of civil process." 

; So that, by 263, an assault on a Mayor, Reeve or 
Warden^ in the execution of his duty, is punishable by tm 



Sec. 263] 

years, and by 
duty is punisJ 

In an ind 

executing a wi 
ment as to the 

Held, on a 
its face the she 
a mere irregula 
the prisoner wa 
L, R. 609. 

Indictment 
malte an assaul 
wound and iil-ti 
prevent {reaiat 01 
[himself or of ai 
is to say {state ti 
mm assault). 

It must be s 
was lawful: see 
the intent be not 
be given. But it 
an illegal arrest 
warrant is necessa 
the warrant with 
resists and assau 
on an off 
I Co<ld V. Cabe, 13 ( 

Indictment un( 
lawfully make an 

making in his qua 
pawful seizure unc 
1 J. N. was mal 

[quality. ♦ 

Indictment und< 
' did make t 

Cbim. Law— 17 



Sec. 263] 



AGGRAVATED ASSAULTS, ETC. 



25T 



years, and by 144, obstructing bim in the execution of his 
daty is punishable by ten years. 

In an indictment for obstructing a sheriff's officer in ' 
executing a writ of Ji. fa. the writ contained a mis-state- 
ment as to the date of the judgment on which it was issued. 

Held, on a case reserved, that the writ being regular on 
its face the sheriff was hound to execute it The error was 
a mere irregularity ^hich might have been amended and 
the prisoner was rightly convicted: B. v. Monkman, 8 Man.^ 
L. B. 509. 

Indictment under (c). — in and upon one J. N., did 
make an assault, and him, the said J. N., did then beat, 
\(ound and ill-treat with intent in so doing to resist and 
prevent {resist or prevent) the lawful apprehension of 
[himself or of any other person) for a certain offence, that 
is to say {state the offence generally). {Count for com- 

mon assault). - 

It must be stated and proved that the apprehensiooi 
was lawful : see R. v. Davis, L. & C. 64. If this and 
the intent be not proved a verdict of common assault may 
be given. But it must be remembered that resistance to 
an illegal arrest is justifiable, and if, in a case where a 
warrant is necessary and the officer making an arrest has not 
the warrant with him, tbe party whom he tries to arrest,' 
resists and assaults him, he cannot be convicted of an 
assault on an officer in the due execution of his officer 
Codd V. Cabe, 13 Cox, 202. 

Indictment under {d). — in and upon J. N. did un- 

i lawfully make an assault, the said J. N. then and there 

making in his quality of a duly appointed bailiff of a 

lawful seizure under authority of justice, and whilst the 

i J. N. was making the said lawful seizure in his said 

[quality. * 

Indictment under (c). — in and upon one J. N., un- 
llawfully did make an assault, on a day whereon a poll fov 

CwM. Law— 17 



258 



ASSAULTS. 



[Sec. 861 




an election for was being prooeeded with at fo 

to wit, on and within the distance of two miles 

from the place where such poll was held. 

KiDKAPPmo. 

804< Every one is eruilty of an indictable offence and liable to seven 
years' imprisonment who, without lawful authority, forcibly seizes and oon- 
fines or imprisons any other person within Canada, or kidnaps any other 
person with intent — 

(a) to cause such other person to be secretly confined or imprisoned in 
Canada against his will ; or 

(b) to cause such other person to be unlawfully sent or transported out of 
Canada against his will ; or 

(c) to cause such other person to be sold or captured as a slave, or in anv 
'way held to service against his will. 

2. Upon the trial of any offence under this section the non-resistance of 
the person so kidnapped or unlawfully confined thereto shall not be a defence 
unless it appears that it was not caused by threats, duress or force or e: .ition 
of foroe. R. S. C. c. 162, s. 46. 

At common law kidnapping ia a misdemeanour, pun- 
ishable by fine and imprisonment : 1 Buss. 962. 

The forcible stealing away of a man, woman or child 
from their own country, and sending them into another, 
was capital by the Jewish and also by the civil law. This 
is unquestionably a very heinous crime, as it robs the 
sovereign of his subjects, banishes a man from his country, 
and may, in its consequences, be productive of the most 
cruel and disagreeable hardships : 4 Blacks. 219. 

By the above section transportation to a foreign country 
is not necessarily an ingredient in this offence. 

The defendant may be found guilty of an attempt to 
kidnap upon an indictment for kidnapping, s. 711. 

A verdict of assault may also be given if the evidence 
warrants it, s. 713. 

Indictment. — with force and arms unlawfully an 

assault did make on one A. B., and did thep and there, , 
without lawful <\uthority, unlawfully and forcibly seize and 
imprison the suid A. \, within the Dominion of Canada 1 
{or confine or kidnap) with intent the said A. B. unlawfully 



Sec.a6SJ 

and forcibly 
Canada, aga 
ffeld, on 
under 32 (fesj 
to the 8eizur( 
ping, and the 
waliv. B., 33 

969. Every 
offence and liable 
ment, or to a fine 
viction to a fine 1 
imprisonment with 

*^^« a. 109, 
and s. 258 as t 

Indictment 
on the at 

did maJie, and J 
wound and ili-i 
wrongs and inju 

A common a 
ment or under tl 

post. 

Costs on coni 

An assault is 

ience, to do a con 

or wantonness ; , 

weapon, though j 

drawing a swordj 

wound or strike, 

person within th( 

«a"y, or pointing 

reach, holding m 

insulting manner 

(Jeiote at the tii 

*y, of using 

^n^ount to an ass J 



Sec.26S] 



COMMON ASSAULT. 



269 



and forcibly to cause to be unlawfully transported out of 
Canada, against bis will. 

Held, on tbe trial of an indictment for kidnapping 
under 32 & 88 V. c. 20, s. 69, that the intent required applies 
to the seizure and confinement as well as to the kidnap- 
ping, and the indictment should state such intent : Corn- 
wall V. B., 88 U. C. Q. B. 106. 

CouHON Assault. 
96(1. Every one who commits a common assault ia guilty of an indictable 
offence and liable, if convicted upon an indictment, to one year's imprison" 
ment, or to a fine not exceeding one hundred dollars, and on summary oou" 
viotion to a fine not exceeding twenty dollars and costs, or to two months' 
impriBonment with or without hard labour. R. S. C. c. 162, a. 36. 

Hee 8. 109, ante, as to pointing firearms at any person, 
and 8. 258 as to definition of an assault. 

Indictment for a common assault. — that C. D., 

on tbe at in and upon one A. B., an assault 

did make, and him the said A. B. then and there did beat, 
wound and ill-treat, and then and there to him other 
wrongs and injuries did. 

A common assault may be prosecuted either by indict- 
ment or under the Summary Convictions clauses, 839, «^ seq. 



If 



\ 



Costs on conviction for assault, s. 834, pod. 

An assault is an attempt or offer, with force and vio- 
lence, to do a corporal hurt to another, whether from malice 
or wantonness ; as by striking at him with or without a 
weapon, though the party striking misses his aim; so 
drawing a sword, throwing a bottle or glass with intent to 
wound or strike, presenting a loaded gun or pistol at a 
person within the distance to which the gun or pistol will 
carry, or pointing a pitchfork at a person standing within 
reach, holding up one's fist at him in a threatening or 
insulting manner, or with such other circumstances as 
denote at the time an intention, coupled with a present 
ability, of using actual violence against his person, will 
amount to an assault : 1 Burn, 308. 



260 



ASSAULTS. 



[Seo. 26J 



It had been said that the presenting a gun or pistol at 
a person within the distance to which it will carry, though 
in fact not loaded, was an assault, but later authorities 
have held that, if it be not loaded, it would be no assault 
to present it and pull the trigger : 1 Burn, loc. cit : see b, 
109, ante. . i 

One charged with an assault and battery may be found 
guilty of the assault, and yet acquitted of the battery ; but 
every battery includes an assault ; therefore on an indict- 
ment for assault and battery, in which the assault is ill- 
laid, if the defendant be found guilty of the battery it is 
sufficient : 1 Hawk. 110 ; see note to B. v. Bead, 1 Deu. 
377. 

Mere words will not amount to an assault, though per- 
haps they may in some cases serve to explain a doubtful 
action : 1 Burn 309. 

If a man strike at another, but at such a distance that 
he cannot by possibility touch him, it is no assault. But 
if A. advances in a threatening attitude with bis fists 
clenched towards B., with an intention of striking him, so 
that his blow would have almost immediately reached B., 
if he had not been stopped by a third person, this would 
be an assault in point of law, though at the particular 
moment when A. was stopped he was not near enough for 
his blow to take effect : Stephens v. Myers, 4 C. & P. 349. 

To collect a number of workmen round a person who 
tuck up their sleeves and aprons and threaten to break bis 
neck if he did not go out of the place, through fear of 
whom he did go out, amounts to an assault. There is the 
intention and present ability and a threat of violence caus- 
ing fear : Bead v. Coker, 13 C. B. 850. 

So riding after a person and obliging him to run away 
into a garden to avoid being beaten is an assault : Mortia 
V. Shoppee, 3 C. & P. 373. 

Any man wantonly doing an act of which the direct 
consequence is that another person is injured commits an 



See. 265] 

assault at coi 
between the j 
Thus to drive 
a person is sil 
person is sitti 
the chair, as t 
encouraging i 
person with a 
1021. . 

In E. V. T 

"If anything 

another, to ma] 

out the oonser 

whom it is do 

there may be s 

feelings are repi 

mission is tota 

present case thei 

in the act dom 

defendant was ac 

upon whom he w 

practices, had bei 



was uoue. But 



t 



IB Butifresistai] 
If a man, there 
n woman, under pn 
of an assault : 
Saunders, 8 C. & 
In R. V. Lock, 
held that the defit 
against the will of 
active will on bia p 

I'yachildoftendei 
assault, without an 
ignorant of the na 
consent so as to 
criminal law. 



Sec. 265] 



C'^Mi-ION ASSAULT. 



261 



assault at common law» though a third body is interposed 
between the person doing the act and the person injured. 
Thus to drive a carriage against another carriage in which 
a person is sitting, or to throw over a chair on which a 
person is sitting, whereby the person in the carriage or on 
the chair, as the case may be, is injured, in an assault. So 
encouraging a dog to bite, or wantonly riding over a 
person with a horse, is an assault : 1 Burn, 809 ; 1 Buss. 
1021. 

In K. V. Wollaston, 12 Cox, 182, Kelly, C.B., said : 
''If anything is done by one being upon the person of 
another, to make the act an assault it must be done with- 
out the consent and against the will of the person upon 
whom it is done. Mere submission is not consent, for 
there may be submission without consent, and while the 
feelings are repugnant to the act being done. Mere sub- 
mission is totally different from consent. But in the 
present case there was actual participation by both parties 
in the act done, and complete mutuality : " and the 
defendant was acquitted as the boys, aged above fourteen, 
upon whom he was accused of having indulged in indecent 
practices, had been willing and assenting parties to what 
^aB uone. But nes now s. 178, ante. 

But if resistance be prevented by fraud it is an assault. 
If a man, therefore, have connection with a married 
woman, under pretense of being her husband, he is guilty 
of an assault : R. v. Williams, 8 C. & P. 286 ; R. v. 
Saunders, 8 C. & P. 265 ; now, of rape ; s. 266 post. 

In B. V. Lock, 12 Cox, 244, upon a case reserved, it was 
held that the definition of an assault that the act must be 
di^mtt the ivill of the patient implies the possession of an 
active will on bis part, and, therefore, the mere submission 
by a child of tender years (eight years old) to an indecent 
assault, without any active sign of dissent, the child being 
ignorant of the nature of the assault, does not amount to 
consent so as to take the offence out of the operation of 
criminal law. 



i':, 







"\\r inn I" - iiwiwiiiii 



262 



ASSAULTS. 



w^ 



[Seo. 266 




In B. V. Woodhurst, 12 Cox, 443, on an indictment for 
carnal knowledge of a girl above ten years of age and 
under twelve, and also for an assault, it was held on the 
latter count that, although consent would be a defence, 
consent extorted by terror or induced by the influence of a 
person in whose power the girl feels herself, is not really 
such consent as will have that effect ; following B. v. Day, 
9 0. & P. 722 ; B. v. Nichol, B. & B. 130 ; B. v. Bosinski,* 
1 Moo. 19 ; B. V. Case, 1 Den. 580 ; 1 Buss. 933. 

An unlawful imprisonment is also an assault for it is 
a wrong done to the person of a man, for which, besides 
the private satisfaction given to the individual by action, 
the law also demands public vengeance, as it is a breach 
of the King's peace, a loss which the State sustains by the 
confinement of one of its membern, and an infringement of 
the good order of society : 4 Blacks. 518. It has been 
supposed that every imprisonment includes a battery, but 
ibis doctrine was denied in a recent case, where it was 
said by the Court that it was absurd to contend that every 
imprisonment included a battery : 1 Buss. 1025. 

A battery in the legal acceptation of the word includes 
beating and wounding : Archbold, 659. Battery seemeth 
to be, when any injury whatsoever, be it ever so small, is 
actually done to the person of a man in an angry or 
revengeful, or rude, or insolent manner, as by spitting in 
his face, or throwing water on him, or violently jostling 
him out of the way : 1 Hawk. c. 15, s. 2. For the law 
cannot draw the line between different degrees of violence, 
and therefore totally prohibits the first and lowest stages 
of it, every man's person being sacred, and no other having 
a right to meddle with it in any, the slightest, manner: 
1 Bass. 1021. 

The touch or hurt must be with a hostile intention, and, 
therefore, a touch given by a constable's staff, for the 
purpose of engaging a person's attention only, is not a 
battery : 1 Burn, 812. 



Sec. 266] 



COMMON ASSAULT, 



263 



Whether the act shall amount to an assault must in 
every case be collected from the intention; and if the 
injury committed were accidental and undesigned it will 
not amount to a battery: 1 Buss. 1025. 

Striking a horse, whereon a person is riding and whereby 
he is thrown, is a battery on him, and the rider is justified 
in striking a person who wrongfully seizes the reins of his 
horse, and in using all the violence necessary to make him 
loose his hold. A wounding is where the violence is such 
that the flesh is opened ; a mere scratch may constitute a 
wounding : 1 Burn, 812. 

Even a mayhem is justifiable if committed in a party's 
own defence. But a person struck has merely a right to 
defend himself, and strike a blow in his defence, but he has 
DO right to revenge himself; and if, when all the danger is 
past, he strikes a blow not necessary he commits an 
assault and battery. And in no case should the battery be 
more than necessary for self defence : 1 Burn, 312 ; ss. 45» 
46, 58, ante. 

The mere offer of a person to strike another is sufficient 
to justify the latter's striking him ; he need not stay till the 
other has actually struck him. 

A husband may justify a battery in defence of his wife, 
a wife in defence of her husband, a parent in defence of his 
child, a child in defence of his parent, a master in defence 
of bis servant and a servant in defencti; of his master ; but 
in all these cases the battery must be bi^ch only as was 
necessary to the defence of the party or his relation, for if it 
were excessive, if it were greater than was necessary for 
mere defence, the prior offence will be no justification : 
8. 47, ante. So a person may lay hands upon another to 
prevent him from fighting, or committing a breach of the 
peace, using no unnecessary violence. If a man without 
authority attempt to arrest another illegally it is a breach 
of the peace, and any other person may lawfully interfere to 
prevent it, doing no more than is necessary for that purpose. 



: r 



264 



ASSAULTS. 



[Sec, 265 





Churchwardens and private persons are justified in 
gently laying their * hands on those who disturb the per- 
formance of any part of divine service, and turning them 
out of church : 1 Burn, 314. 

A parent may in a reasonable manner chastise his child 
jt a master his servant, or a schoolmaster his scholar, or a 
gaoler his prisoner, and a captain of a ship any of the crew 
\7ho have mutinously or violently misconducted themselves : 
1 Burn ; ss. 55, 56, 58, ante. 

So might a military officer order a moderate correction 
for disobedience of orders : 1 Burn, 314. 

A party ma y justify a battery by showing that he com- 
mitted it in defence of his possession, as, for instance, to 
remove the prosecutor out of his close or house, — or to 
remove a servant, who, at ' night, is so misconducting 
himself as to disturb the peace of the household, — or to 
remove a person out of a public house, if the party be 
misconducting himself, or to prevent him from entering 
the defendant's close or house, — to restrain him from 
•taking or destroying his goods, — from taking or rescuing 
cattle, etc., in his custody upon a distress, — or to retake 
personal property improperly, detained or taken away,— or 
the like : ss. 48 et aeq. ante. 

In the case of a trespass in law merely without actual 
force, the owner of the close, or house, etc., must first 
request the trespasser to depart, before he can justify 
laying his hands on him for the purpose of removing him ; 
and even if he refuse he can only justify so much force as is 
necessary to remove him. But if the trespasser use force 
then the owner may oppose torce to force ; and in such a 
case, if he be assaulted or beaten he may justify even a 
wounding or mayhem in self-defence, as above mentioned. 
In answer to a justification in defence of his possession it 
may be shown that the battery was excessive, or that the 
party assaulted, or some one by whose authority he acted, 
had a right of way or other easement over the close, or tlie 
like : 1 Burn, 313. 



•I, 41 



Sec. 266] 



COMMON ASSAULT 



265 



" It should be observed with respect to an assault by a 
man on a party endeavouring to dispossess him of his land, 
that where the injury is a mere breach of a close, in con- 
templation of law the defendant cannot justify a battery 
without a request to depart ; but it is otherwise where any 
actual violence is committed, as it is lawful in such a case 
to oppose force by force ; therefore, if a person break down 
the gate, or come into a close vi et armia, the owner need 
not request him to be gone, but may lay hands on him 
immediately ; .for it is but returning violence with violence. 
If a person enters another's house with force and violence 
the owner of the house may justify turning him out, using 
no more force than is necessary, without a previous request 
to depart ; but if the person enters quietly the other party 
cannot justify turning him out without previous request" : 
1 Russ. 1028 ; see ss. 63, et seq. ante. 

It appears to have been formerly holden that a person 
could not be prosecuted upon one indictment for assaulting 
two persons, each ' sault being a distinct offence ; but a 
subsequent decision has established the contrary : B. v. 
Benfield, 2 Burr. 984. 

There is a manifest distinction between endeavouring to 
turn a person out of a house into which he has previously 
entered quietly, and resisting a forcible attempt to enter ; 
in the first ct.se a request to depart is necessary but not 
in the latter. In a criminal prosecution by the wife of 0., 
for assault made upon her in entering her husband's house, 
the defence was that she had no right to enter, and that 
her intention was to take away property which she had no 
legal right to take, but held, on a case reserved, that this 
wuuld not justify the assault, there being no previous 
request made of her to leave the house, nor any statement 
of her intention, or an attempt to take anything : R. v. 
O'Neill, 3 P. & B. {N.B.) 49. 

An indictment declaring that the prisoner did " beat, 
wound and ill-treat" A. was held to be substantially an 



I ! 




266 



ASSAULTS 



[Sec. 265 



indictment for a common assault : B. v. Shannon, 28 N. 
B. Bep. 1. 

If the charge is, as under s. 864, post, before the magis- 
trate on a legal complaint, and the evidence goes to prove 
an offence committed which he has no jurisdiction to hear 
and determine, as if, on a complaint of an assault, the 
evidence go to show that a rape or assault with intent to 
commit a felony has been committed, he may, if he dis- 
believes the evidence as to the rape or intent, convict as to 
the residue of it of an assault : Wilkinson v. Dutton, 3 B. 
& S. 821 ; Anon, 1 B. & Ad. 382. 

In this last case Lord Tenterden held that the magis- 
trate had found that the assault was not accompanied by 
any attempt to commit felony, and that, quoad hoc, bis 
decision was final. ' 

In B. V. Walker, 2 M. & Bob. 446, Coltman, J., gave 
the same interpretation to the clause, 

In B. V. Elrington, 1 B & S. 688, it was held that the 
magistrate's certificate of dismissal, as under s. 865, 866 
postt is a bar to an indictment for an unlawful assault 
occasioning actual bodily harm, arising out of the bame 
circumstances : see Wemyss v. Hopkins, L. B. 10 Q. B. 
378. 

In B. V. Stanton, 6 Cox, 324, Erie, J., said that, in his 
opinion, a summary conviction before justices of the peace 
{in England, the law requires two) is a bar to an indict- 
ment for a felonious assault arising out of the same facts. 

In B. V. Miles, 17 Cox, 9, Warb. Lead. Caa. 320, a con- 
viction of assault was held to be, at common law, a bar to 
a subsequent indictment for unlawful wounding : see ss. 
866 & 969, post. See Beed v. Nutt, 17 Cox, 86, 24 
Q. B. D. 669, as to a magistrate granting a certificate 
illegally. 

But a summary conviction for assault is no bar to a 
subsequent indictment for manslaaghter, upon the death of 
the man assaulted consequent upon the same assault ; 



Sec. 266] 



COMMON ASSAULT. 



267 



B. V. Morris, 10 Cox, 480; B. v. Basset, Greaves, Cons. 
Acts, 72 ; R. v. Friel, 17 Cox, 825. 

Where an assault charged in an indictment and that 
referred to in a certificate of dismissal by a magistrate 
appear to have been on i\ie same day it is prima facie 
evidence that they are one and the same assault, and it is 
incumbent on the prosecutor to show that there was a 
second assault on the same day if he alleges that such is 
the case. The defendant having appeared before the 
magistrate the recital in the certificate of the fact of a 
complaint having been made and of a summons having 
been issued is sufficient evidence of those facts: B. v. 
Westley, 11 Cox, 189. 

Wlien a question of title to lands arises before him 
the magistrate's jurisdiction is at an end, and he cannot 
inquire into or adjudicate upon an excess of force or vio- 
lence which may be used in the assertion of a title to lands: 
R. V. Pearson, 11 Cox, 498 ; s. 842, post. 

A person making t. boTia fide claim of right to be pre- 
sent as one of the public in a law court at the hearing of a 
suit is not justified in committing an assault upon a police 
constable and an official who endeavours to remove him. 
Such a claim of right does not oust the jurisdiction of the 
magistrate who has to try the charge of assault, an<^ he 
may refuse to allow cross-examination and to aumit 
evidence in respect of such a claim : B. v. Eardly, 49 
J. P. 551. 

By 8. 864, post, a magistrate cannot now try summarily 
b charge of assault if either the person aggrieved or the 
accused objects thereto. 




I.. 



268 



RAPE AND PROCURING ABORTION. [Sees. 266.288 




PART XXI. 
RAPE AND PROCURING ABORTION. 

• Dbfinition. 

360. Rape ia the act of a man havinnr carnal knowledppe of a woman who 
is not his wife without her consent, or with consent which haa been extorted 
by threats or fear of bodily harm, or obtainld by personating the woman's hvs- 
band, or by false and fraudulent repre^^Bitfttion as to the nature and quality of 
the act. 

2. No one under the age of foui ' 'en years can commit this offence. 

"^. Carnal knowledge ia oo'...i, < upon penetration to any, even the 
slightest degree, and even without i .> emission of seed. R. S. C. c. 174 
fl. 22e." 

Sub-section 3 no« ((umip a. 4a, in Part I. (amendment 
of 1893). 

The words in italics repi .uuce the Imperial Act 48 & 49 

V. c. 69. s. 4. 

Punishment. 

207. Every one who commits rape is guilty of an indictable offence and 
liable to suffer death, or to imprisonment for life. R. S. C. c. 162, s. 37, 
24-25 V. c. 100, 8. 48 (Imp.). 

The repealed section enacted a minimum punishment 
of seven years. 

Attempt. 

868. Every one is guilty of an indictable offence and liable to seven 
years' imprisonment who attempts to commit rape. R. S. C. c. 162, s. 38. 

The repealed section enacted a minimum punishmeut 
of two years. 

Bape and attempt to commit rape are not triable pt 
quarter sessions, s. 640. See appendix to 2nd ed:!, of tLic 
book for a note on rape by Greaves. 

Indictment. — that A. B. on in and upon 

one 0. D., a woman, unlawfully and violently did make an 
assault and her the said G. D. violently and without her 
consent unlawfully did ravish and carnally know. 

Averment of woman's age unnecessary: 2 Bishop, Ci. 
Proc. 954. 



Sec 268] 



ATTEMPT. 



269 



Rape has been defined to be the having unlawful and 
carnal knowledge of a woman, by force, and against her 
will: 1 Russ. 904. 

To constitute the offence there must be penetration, or 
res in re, in order to constitute the " carnal knowledge " 
which is a necessary part of the offence But a very slight 
penetration is sufiScient, though not attended with the 
deprivation of the marks of virginity: 1 Buss. 912. 

A boy under fourteen years of age is presumed by law 

incapable to commit a rape, and therefore he cannot be 

guilty of it, noi* of an assault with intent to commit it; and 

no evidence is admissible to show that, in point of fact, he 

could commit the offence of rape: aee R. v. Bead, 1 Den. 

377. But on an indictment for rape he may be found 

guilty of a comraon assault or of an indecent assault: s. 713; 

B. V. Brimilow, 2 Moo. 122. A husband cannot be guilty of 

ar&pe upon his wife, but he may be guilty as an accessory 

before the fact or an aider and abettor to it: see B. v. 

Audley (Lord), 3 St. Tr. 402. The offence of rape may be 

committed though the woman at last yielded to the 

violence, if such her consent was forced by fear of death or 

by duress. 

It will not be any excuse that the woman was first taken 
with her own consent if she were afterwards forced against 
bar will; nor will it be an excuse that she consented after 
the fact, or that she was a common strumpet, or the con- 
cubine of the ravisher. Circumstances of this kind, however, 
though they do not necessarily prevent the offence from 
amounting to a rape, yet are material to be left to the jury 
inf^T ur of the party accused, especially in doubtful cases. 
The notion that if the woman conceived it could not be a 
rape, because she must, in such case, have consented, 
appears to be quite exploded: 1 Buss. 905. 

Upon the trial of an indictment for rape upon an idiot 
girl the proper direcuon to the jury is that if they are 
satisfied that the girl was in such a state of idiocy as to 



iii;>^x 



270 



RAPE AND PROCURING ABORTION. 



[Sec. 268 






be incapable of expressing either consent or dissent, and 
that the prisoner had connection with her without her 
consent, it is their duty to find him guilty : B. v. Barratt, 
12 Cox, 498. In B. v. Fletcher, 10 Cox, 248, the law was 
80 given, but the evidence of non-consent was declared 
insufficient. The accused upon such an indictment may 
now be found guilty of the offence provided for in s. 189, 
ante, if the evidence warrants it, s. 713. 

If a woman is incapable of resisting it is no defence 
that she did not resist : B. v. Fletcher, 8 Cox, 131, Bell, 
63 ; B. V. Camplin, I Den. 89 ; B. v. Flattery, 18 Cox 
888 ; B. V. Cardo, 17 0. B. 11. If a man has or attempts 
to have connection with a woman while she is asleep it is 
no defence that she did not resist, as she is then incapable 
of resisting. The man can' therefore be found guilty of a 
rape, or of an attempt to commit a rape: B. v. Mayers, 
12 Cox, 311 ; B. V. Young, 14 Cox, 114. 

It is clear that the party ravished is a competent wit- 
ness. But the credibility of her testimony must be left to 
the jury, upon the circum8t£.nces of fact which concur with 
that testimony. Thus if she be of good fame ; if she 
presently discovered the offence and made search for the 
offender; if she showed circumstances and signs of the 
injury, whereof many are of that nature that women only 
are proper examiners ; if the place where the act was done 
were remote from inhabitants or passengers ; if the party 
accused fled for it ; these, and the like, are concurriDg 
circumstances which give greater probability to her evi. 
dence. But if, on the other hand, the witness be of evil 
fame, and stand unsupported by others ; if, without being 
under the control or the influence of fear, she concealed 
the injury for any considerable time after she bad the 
opportunity of complaining ; if the place where the fact ia 
alleged to have been committed was near to persons by 
whom she might probably have been heard, and yet she 
made no outcry ; if she has given wrong description s of the 



Sec. 268] 

place; these, 
though not c 
feigned : 1 Bi 

The ohan 
may be impen 
general light 
with other pei 

In B. V. H 
ness box was 
connection wil 
before had ooi 
The court rule 
qaestion. In 
a witness to pr 
aboat a year b 
court ruled tl 
These rulings 



y 



Although 
particular acts 
not answer the 
she deny it, cal 
croft, 11 Cox, 4 

But she ma 
connection wit! 
nesees may be ( 
&P. 562; B.v 
Lead. Cas. 128. 

On the tria 
the defence beii 
she denied on 
with a third per 
ined to contradi 
to cases of rape, 
assaults in the i 
Holmes, 12 Cox 



Sec 268] 



ATTEMPT. 



271 



place ; these, and the like circumstanoes, afford a strong 
though not conclusive presumption that her testimony is 
feigned: 1 Buss. 692. 

The character of the prosecutrix as to general chastity 
may be impeached by general evidence, as by showing her 
general light character, etc., but evidence of connection 
with other persons than the prisoner cannot be received. 

In B. V. Hodgson, B. & B. 211, the woman in the wit- 
ness box was asked : Whether she had not before had 
connection with other persons, and whether she had not 
before had connection with a particular person (named). 
The court ruled that she was not obliged to answer the 
question. In the b. me case the prisoner's counsel offered 
a witness to prove that the woman had been caught in bed 
aboat a year before this charge with a young man. Tbe 
court ruled that this evidence could not be received. 
These rulings were subsequently maintained by all the 



Although you may cross-examine the prosecutrix as to 
particular acts of connection with other men (and she need 
not answer tbe question unless she likes), you cannot, if 
fibe deny it, call witnesses to contradict her : B. v. Cock- 
croft, 11 Cox, 410 ; B. V. Lalibert^, 1 S. C. B. 117. 

But she may be cross-examined as to particular acts of 
connection with the prisoner, and if she denies them wit- 
nesees may be called to contradict her : B. v. Martin, 6 C. 
« P. 562 ; B. V. Biley, 16 Cox, 191, 18 Q. B. D. 481, Warb. 
Lead. Cas. 128. 

On tbe trial of an indictment for an indecent assault, 
the defence being consent on the part of the prosecutrix, 
she denied on cross-examination having had intercourse 
with a third person, S. Held, that S. could not be exam- 
ined to contradict her upon this answer. This rule applies 
to cases of rape, attempts to commit a rape, and indecent 
assaults in the nature of attem pts to commit a rape : B. v. 
Holmes, 12 Cox, 137. 



I I 



272 



RAPE AND PROCURING ABORTION. 



[Sec. 26g 




It is true rape is a most detestable crime, and there- 
fore ought severely and impartially to be punished with 
death, but it must be remembered that it is an accusation 
easily to be made and hard to be proved, and harder to be 
defended by the party accused though never so innocent : 
1 Hale, 634. 

Upon an indictment under section 267, the jury may 
f find the prisoner guilty of an attempt to commit rape under 
j s. 268; R. v. Hapgood, 11 CoX, 471 ; or may Und a verdict 
■ of common assault, or indecent assault. 

Under s. 268, for an assaui ^ with intent to commit rape 
the indictment may be as follows : in and upon one 

A. B., a woman (or girl), unlawfully did make au assault, 
with intent her, the said A. B., violently and unlawfully with- 
out her consent, to ravish and carnally know. ' (Add a 
count for a common assault), though it is not necessary. 

If, upon trial for this offence, the offence under s. 867 be 
proved the defendant is not therefore entitled to an acquit- 
tal, 8. 712, post. 

On an indictment for an assault with intfat to commit 
a rape Patteson, J., held that eviciance of ihe prisoner 
having, on a prior occasion, taken liberties with the prose- 
cutrix >:* *^ot receivable to show the prisoner's intent; 
a' V "er to convict of assault with intent to com- 

mit n. ' ^ ^ T must be satisfied, not only that the 
prisoner iL " i io gratify his passion on the person of 
the prosecutri :. but that he intended to do so at all events, 
and notwithstanding any resistance on her part: R. v. 
Lloyd, 7 C. & P. 318. 

When a man is charged with rape all that the woman 
I said to other persons in his absence shortly after the 
^ alleged offence is admissible in evidence : B. v. Wood, 14 
Cox, 46 ; see E. v. Little, 15 Cox, 319. 

In R. V. Gisson, 2 C. & K. 781, it was held that aa 
acquittal on an indictment for a rape could not be su^^cesB- 
fully pleaded to a subsequent indictment for an assault 



Sec 268] 



ATTEMPT. 



273 



vfith intent to commit a rape,, becaut^e a verdict fox th«i 
attempt to commit the ofifence could not be received on an 
indictment charging the offence itself. But that case is 
not now to be followed. The case of R. v. Dungey, 4 F. & 
F. 99, is a clear authority that upon a trial for rape the 
defendant may be found guilty of an attempt to commit it. 
In fact there can now be no doubt upon this ; s. 711, post, is 
clear. See cases cited under that section. 

An assault with intent to commit rape is very different 
from an assault with intent to have an improper connec- 
tion. The former is with intent to have connection by 
force and against the will of the woman : B. v. Stanton ^ 
1 G. & K. 416 ; R. v. Wright, 4 F. & F. 967 ; R. v. Rudr 
land, 4 F. & F. 495 ; R. v. Dungey, 4 F. & F. 99. 

An indictment for an attempt to commit rape is always 
in the form of an assault with intent to commit rape, as in 
R.V. Riley, 16 Cox, 191, for instance. And in R. v. Dungey, 
ui)t supra, the judge charged the jury that they could, on 
an indictment for rape, find the prisoner guilty of an assault 
with intent to commit rape. 

In this Code, however, a difference is made between an 
attempt to commit an offence and an assault with intent to. 
commit it ; ss. 175-260. 

In a case of John v. R., in British Columbia, upon ar 
writ of error, the court held that, upon an indictment for 
rape, the prisoner had been lawfully convicted of an assault' 
with intent to commit rape. That decision was upheld b j 
the Supreme Court : John v. R., 16 S. C. R. 884. 

In R. V. Wright, 4 F. & F. 967, the prisoner was in- 
dicted for rape and for assault with intent to commit rape. 
Under ss. 626 and 713, post, there is not the least room to 
doubt that this can now be done, whatever doubts may have 
existed in that case. 

In a case of rape the counsel for the prosecution should 
uot tell the jury that to acquit the prisoner is to find the 

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274 RAPE AND PROCURING ABORTION. [Sees. 269, 270 

Woman guilty of perjury : R. v. Rudland, and R. v. Puddiok 
4 P. & F. 496, 497. 

On trial for rape evidence was that of a woman alone 
which, in view of previous admissions and the circum- 
stances, was unsatisfactory : Held, evidence was properly 
submitted to jury, but court directed that attention of 
Executive should be called to the case : R. v. Lloyd, 19 
0. R. 352. ' 

What is sufficient evidence ? R. v. Bedere, 21 0. R. 189. 

Cabnallt Knowing a Gibi. Undxb Foubtekk 

S00> Every one is guilty of an indictable offence and liable to imprison- 
'ment for life, and to be whipped, who carnally knows any girl under the age of 
fourteen years, not being his wife, whether he believes her to be of or above that 
'age or not. 63 V. c. 37, s. 12 (Amended). 48-49 V. c. 69, s. 4 (Imp.). 

The repealed section enaicted a minimum punishment of 
five years ; see remarks and form of indictment under next 
section. 

The words in italics are not in the English Act. They 
are unnecessary. The girl thore must be under thirteen. 
Proof of penetration is sufficient : R. v. Marsden, 17 Cox, 
297. 

Attekft. 

870. Every one who attempts to have unlawful carnal knowledge of 
any girl under the age of fourteen years is guilty of an indictable offence and 
liable to two years' imprisonment, and to be whipped. 63 V. c. 37, a. 12. 
48-49y.o.69, 8. 4(Imp.). 

See 8. 685 as to evidence of young children in trials 
under these two sections. This section 270 has no other 
effect but to reduce the punishment, which, without it, 
would be seven yeacs' imprisonment, s. 628. 

Indictment under «. 269. — in and upon one A. N., 

a girl under the age of fourteen years, to wit, of the age of 
twelve years, unlawfully did make an assault, and her, the 
said A. N., then and there did unlawfully and carnally know. 

The evidence is the same as in rape, with the exception 
that the consent or non-consent of the girl is immaterial 
independently of the enactment contained in s. 261. Set 
B. V. Brice, 7 Man. L. R. 627. 



Sees. 271, 2 

Upon 
the jury 
common 
Den. 377 
14 Cox, 4i 

Under 
indicted ui 
charged, il 
101;R. V. 
cannot be < 
551 

An indi 
under four! 
Cox, 127. 

Indictm 
under fourt 
the said J., 
carnally kr 
general verc 
Case, 7 Man 

Ki 

»71« Ever} 

ment for life wh 

being, in such a 

child had been h 

2. No one it 

considers necessa 

causes the death 

See 88. 2 
R- V. Haudli 
verdict for 
indictment ul 
enactment tc 

878. Every! 

ment for life wj 

whether she is oJ 
*» taken by hetT 



Seoa. 271, 272] 



KILLING CHILD IN WOMB. 



275 



Upon the trial of an indictment under these olanses 
tbe jury may, under s. 713, find the defendant guilty of a 
common assault, or an indecent assault : B. v. Bead, 1 
Den. 377 ; B. v. Connolly, 26 U. C. Q. B. 317 ; B. v. Boadley, 
U Cox, 463; even if the girl assented: s. 261, ante. 

Under s. 711, post, the defendant may be convicted, if 
indicted under s. 269, of an attempt to commit the offence 
charged, if the evidence warrants it : E. v. Byland, 11 Cox, 
101; B. v. Gatherall, 13 Cox, 109; but a boy under fourteen 
cannot be convicted of such attempt : B. v. Waite, 17 Cox, 
554. 

An indictment for rape still lies for ravishing a girl 
under fourteen : B. v. Dicken, 14 Cox, 8 ; B. v. Batcliffe, 15 
Cox, 127. 

Indictment that prisoner in and upon one J., a girl 
under fourteen, feloniously did make an assault, and her, 
the said J., then and there feloniously did unlawfully and 
carnally know and abuse, etc; evidence of consent; 
general verdict of guilty affirmed : B. v. Chisholm, Jacobs' 
Case, 7 Man. L. B. 613. 

Killing Child in his Mothbr's Womb. {New), 

S71t Every one is guilty of an indictable offence and liable to imprison- 
ment for life who causes the death of any child which has not become a human 
being, in such a manner that he would have been guilty of murder if such 
child had been bom. 

2. No one is guilty of . . offence who, by means which he in good faith 
considers necessary for the preservation of the life of the mother of the child, 
causes the death of any such child before or during its birth. 

See ss. 219 & 239 ante : B. v. West, 2 C. & K. 784 ; 
B. V. Handley, 13 Cox, 79. This is a new offence. No 
verdict for concealment of birth can be given upon an 
indictment under this section, in the absence of an express 
enactment to allow it. 

Pboodbino Abortion. 

SY%« Every one is guilty of an indictable offence and liable to imprison- 
ment for life who, with intent to procure the miscarriage of any woman, 
whether she is or is not with child, unlawfully administers to her or causes to 
be taken by her any drug or other noxious thing, or unlawfully usas any 





876 



RAPE AND PROCURING ABORTION. [Sees. 273, 27t 





instrument or other means whatsoever with the like intent. I^ S, C. o. 162 
8.47. 24-26 V. 0. 100, 8. 68 (Imp.). 

Woman Pboocbino hkr own Misoabriaok. 
9T3 Every woman is guilty of an indictable offence and liable to sevea 
years' imprisonment who, whether with child or not, unlawfully administers to 
herself or permits to be administered to her any drug or other noxious thing, 
or unlawfully uses on herself or permits to be used on her any instrument or 
other means whatsoever with intent to procure miscarriage. R. S. C. o. 162 
8. 47 {Amended). 24-26 V. a 100, s. 68 (Imp.). 

The words in italics are new. 

SUPFLTINO MXANS OF PbOOCBINO ABOBTION. 

2T4* Every one is guilty of an indictable offence and liable to two years'' 
imprisonment who unlawfully supplies or procures any drvig or ether noxious 
thing, or any instrument or thing whatsoever, knowing that the same is 
intended to be unlawfully used or employed with intent to procure the mis- 
carriage of any woman, whether she is or is not with child. R. S. C. c. 162 
8. 48. 24-26 v. c. 100, s. 69 (Imp.). 

Section 273, as it reads, is an absurdity. It ought to 
read as in the English Act, and s. 47, c. 162, B. S. C., 
" Every woman being with child." 

Indictment for woman administering poison to her- 
self, with intent or, etc. that C. D., late of 
on at and being then with child, with intent 
to procure her own miscarriage, did unlawfully administer 
to herself one drachm of a certain poison {or noxious thing) 
called (or did unlawfully use a certain instrument 
or means) to wit. 

Indictment for administering poison to a woman, 

with intent to procure abortion.-^ that C. D. on 

unlawfully did administer to {or cause to he taken 

by) one S. P. one ounce weight of a certain poison, called 

{or noxious thing called ) with intent then 

and thereby to cause the miscarriage of the said S. P. 

Indictment for using instrument with the like intent, 
— unlawfully did use a certain instrument called a 

upon the person of one S. P., with intent then and 
thereby to cause the miscarriage of the said S. P. 

In order to constitute an offence under s. 273, as it vas 
in the repealed clausa, the woman must be with child, 



Sec. 274] 



ABORTION. 



m 



though Dot necessarily quick with child. The t)oison 6i 
other noxioas thing must have been administered, or the 
instrument used, with the intent to procure the mis- 
carriage. It must be proved, according to the fact stated 
in the indictment, that the woman administered to herself, 
etc., or that the defendant administered, etc., or caused to 
be taken, etc., the drug, as therein stated, and thajb the 
drug was noxious, or that the defendant used the instru- 
ment, or other means, mentioned in the manner described 
in the indictment : 1 Burn, 14. 

Where the prisoner gave the prosecutrix the drug for 
the purpose of procuring abortion, and the prosecutrix 
took it for that purpose in the prisoner's absence, this 
^vas held to be a causing of it to be taken within s. 272 : 
B. V. Wilson, Dears. & B. 127 ; R. v. Farrow, Dears. & B. 
164. » • 

A man and woman were jointly indicted for feloniously 

administering to C. a noxious thing to the jurors unknown 

with intent to procure miscarriage. C, being in the 

family way, went to the male prisoner, who said he wonld 

give her some stuff to put her right, and gave her a light 

coloured medicine, and told her to take two spoonfuls till 

she became in pain. She did so and it made her ill. She 

then went to him again, and he said the safest course 

\fould be to get her a place to go to. He told her that he 

had found a place for her at L., and gave her some more 

of the stuff, which he said would take effect when she got 

there. They went together to L. and met the female 

prisoner, who said she had been down to the station 

several times the day before to meet them. G. then began 

to feel pain and told the female prisoner. Then the male 

prisoner told what he had given C. They all went home 

to the female prisoner's, and the male prisoner then gave 

C. another bottle of similar stuff in the female prisoner's 

presence, and told her to take it like the other. She did 

so and became very ill, and the next day hftd a miseatriage, 



W 



t:» 



liiii 








V 






278 



RAPE AND PROCURING ABORTION. 



[Sec. 274 



the female prisoner attending her and providing all things. 
Held, that there was evidence that the staff administered 
was a noxious thing within the 24 & 26 V. c. 100, s. 58 
(Imp.)* Also that there was evidence of the female being 
an accessory before the fact, and a party, therefore, to the 
administering of the noxious thing : B. v. HoUis, 12 Cox, 
468. 

Under s. 272, the fact of the woman being pregnant is 
immaterial : B. v. Goodhall, 1 Den. 187. But the prisoner 
must have believed her to be pregnant, otherwise there 
could be no intent under the section. Under an indictment 
for this offence the prisoner may be convicted of an attempt 
to commit it : s. 711 ; see B. v. Cramp, 14 Cox, 890 & 401, 
and Warb. Lead Cas. 120. 

Indictment under 8. 274--^ unlawfully did procure 
{suppli^ or procure) a large quantity, to wit, two ounces of 
a certain noxious thing called savin, he the said (defendant) 
then well knowing that the same was then intended to be 
unlawfully used and employed with intent to procure the 
miscarriage of one A. N. 

The drug supplied must be a poison or noxious thing, 
and the supplying an innoxious drug, whatever may be 
the intent of the person supplying it, is not an offence 
against the enactment : B. v. Isaacs, L. & C. 220. 

In order to constitute the offence within the meaning of 
this section it is not necessary that the intention of em- 
ploying the noxious drug should exist in the mind of the 
woman ; it is sufficient if the intention to procure abortion 
exists in the mind of the defendant : B. v. Hillman, L. &; 
C. 843. 

The prisoner ma}/ be convicted of an attempt to commit 
this offence, upon an indictment under this section, s. 711. 

Supplying a noxious thing with the intent to procure 
abortion is an offence under this section, whether the 
woman is pregnant or not : B. v. Titley, 14 Cox, 502. 



Sec 276] 



BIGAMY. ETC. 



27^ 



Giving oil of savin to procure abortion is indictable : 
B. V. Stitt, 80 U. C. C. P. 80. 

lu B. V. Dale, 16 Cox, 708, upon the trial cf an ofifence, 
as provided for in s. 272, ante, evidence was admitted that 
at various times, before and after the offence charged, the 
prisoner had caused other miscarriages by similar means. 

See R. V. Whitchurch, 16 Cox, 748, 24 Q. B. D. 420, on 
a conspiracy to procure •abortion. 



PART XXII. 

OFFENCES AGAINST CONJUGAL AND PARENTAL 
RIGHTS-BIGAMY-ABDUOTION. 

Dbpinition. 
8T5» Bigamy is— 

(a) The act of a person who, being married, goes through a form of marriage* 
with any other person in ony part of the world ; or 

(b) The afit of a person who goes through a form of marriage in ajip parV 
oftht world with any person whom he or she knows to be married ; or 

(c) The act of a person who goes through a form of marriage with more thaor 
one person simultaneously or on the same day. R. S. C. c 37, s. 10. {The Act 
cited is on RaUxmyt). 

2. A "form of marriage " is any form either recognized as a va!id form by 
the law of the place where it is gone through, or though not so recognized, 
is such that a marriage celebrated there in that form is recognized as binding 
by the law of the place where the offender is tried. Every form shall for the 
purpose of this section be valid, notwithstanding any act or default of the per- 
son charged with bigamy, if it is otherwise a valid form. The fact that ther 
parties would, if unmarried, have been incompetent to contract marriage shall 
be no defence upon a prosecution for bigamy. 

3. No one commits bigamy by going through a form of marriage — 

(a) // he or she in good faith and on reasonable grounds believes his wife or 
htr kuthand to be dead ; or 

(b) If his wife or her husband has been continually absent for seven years 
then last past and he or she is not proved to have known that his wife or her 
busband was alive at any time during those seven years ; or 

(c) If he or she haa been divorced from the bond of the first marriage ; or 




m 




$80 



BIGAMY-ABDUCTION, ETC. 



[See. 276 



to I 




(d) If the former marrisge has been declared void by a court of competent 
Jurisdiction. R. 8. C. c. 161, a. 4. 

4. No person shall be liable to be convicted of bigamy in respect of having 
gone through a form of marriage in a place not in Canada, unless such person, 
being a British subject resident in Canada, leaves Canada with intent to (^o 
through such form of marriage. R. S. C. c. 161, s. 4. 

The words in italics settle the law as it was held to be 
heretofore by the decision in B. v. Tolson, 16 Cox, C29, 
23 Q. B. D. 168, Warb. Lead. Cas.. 72. 

* 

As to the competency of a colonial legislature to punish 

bigamy committed outside of the colony, see MacLeod v. 

The Attorney-General of New South Wales, 17 Cox, 341, 

[1891] , A. C. 456 ; and K. v. Brierly, 14 0. R. 625 ; R. v. 

Topping, 7 Cox, 103. 

Punishment. 

ST6* Every one who commits bigamy is guilty of an indictable (>J:ence 
and liable to seven years' imprisonment. 

2. Every one who commits this offence after a previous conviction for a 
like offence shall be liable to fourteen years' imprisonment. R. S. C. c. 161, 
8. 4. 53 V. 0. 37, ss. 10, 11. 24-26 V. o. 100, s. 57 (Imp.). 

.Sub-section 2 is new. 

Indictment. — that J. S. on at the parish of in 
the did marry one A. C, spinster, and her the said 

A. C. then and there had for his wife ; and that the said 
J. S. afterwards, and whilst he was so married to the said 
A. C, as aforesaid, to wit, on the day at 

unlawfully did marry and take to wife one M. Y., and to 
her the said M. Y. was then and there married, the said 
A. C, his former wife, being then alive. 

Bigamy is the offence of a husband or wif« marrying 
again during the life of the first wife or husband. It is 
not strictly correct to call this ofifence bigamy ; it is more 
properly denominated polygamy, i. e., having a plurality of 
-wives or husbands at once, while bigamy according to the 
canonists consists in marrying two virgins successively, 
one after the death of the other, or in once marrying a 
widow. 



Sec. 276] 



BIGAMY. 



281 



Upon an indictment for bigamy, the proseeutor must 
prove: let, the two marriages; 2nd, the identity of the 
parties : Bosooe, 294. 

The law will not, in cases of bigamy, presume a mar- 
riage valid to the same extent as in civil cases: B. v. 
Jacobs, 1 Moo. 140. 

The first wife or husband is not a competent witness 
to prove any part of the case, but the second wife or hus- 
band is after the first marriage is established, for she or he 
is not legally a wife or husband : R. v. Ayley, 15 Cox, 328. 

The first marriage must be a valid one. The time at 
which it was celebrated is immaterial, and whether cele- 
brated in this country or in a foreign country is also imma- 
terial : Archbold, 883. 

If celebrated abroad it may be proved by any person 
vtho was present at it ; and circumstances should also be 
proved from which the jury may presume that it was a 
valid marriage according to the laws of the country in 
which it was celebrated. Proof that a ceremony was per- 
formed by a person appearing and officiating as a priest, 
and that it was understood by the parties to be the mar- 
riage ceremony, according to the rites and customs of the 
foreign country, would be sufficient presumptive evidence 
of it so as to throw upon tbe defendant the onus of impugn- 
ing its validity: B. v. C^u^^swell, 13 Cox, 126; see B. v. 
Savage 13 Cox 178 ; and R. v. Griffin, 14 Cox, 308 ; B. 
V. Brierly 14 0. B. 625. 

In the case of B. v. McQuiggan, 2 L. C. B. note, 346, 
tbe proof of the first marriage was attempted to be made 
by the voluntary examination of the accused, taken before 
Thomas Clancy the committing magistrate, but this being 
irregular and defective its reception was successfully ob- 
jected to by the counsel for the prisoner. The Crown then 
tendered the evidence of Mr. Clancy as to the story the 
prlBooer told him when taken before him after his arrest. 
This the Court held to be good evidence, and allowed it to 



>■:» 









282 



BIGAMY-ABDUCTION, ETC. 



[Sec. 27ft 



go to the jury ; this was the only evidence of the first mar- 
riaf^e, the prisoner having on that occasion, as Mr. Clancy 
deposed, confessed to him that he was guilty of the offence 
as charged, and at the same time expressed his readiness 
to return and live with his first wife. The second marriage 
was proved by the evidence of the olerg}'man who solem- 
nized it. 

In B. V. Creamer, 10 L. C. B. 404, upon a case reserved, 
the Court of Queen's Bench ruled, that upon the trial of an 
indictment for bigamy the admission of the first marriage 
by the prisoner, unsupported by other testimony, is suffi- 
cient to support a conviction. 

In B. V. Newton, 2 M. & Bob. 503 : and B. v. Sim- 
monsto, 1 C. & K. lo4, it was held that the prisoner's 
admissions, deliberately made, of a prior marriage in a 
foreign country are sufficient evidence of such marriage, 
without proving it to have been celebrated according to the 
law of the country where it is stated to have taken place : 
contra, B. v. Savage, 13 Cox, 178 ; B. v. Bay, 20 0. E. 212. 

A first marriage, though voidable, if not absolately 
void will support an indictment for bigamy : Archbold, 886 : 
see E. V. Kay, 16 Cox, 292. 

As to the second marriage it is immaterial whether it 
took place in Canada, or elsewhere, provided, if it took 
place out of Canada, the defendant be a subject of Her 
Majesty resident in Canada, whence he had left to commit 
the offence. 

The offence will be complete, though the defendant 
assume a fictitious name at the second marriage : B. v. 
Allison, E. & B. 109 ; E. v. Bea, 12 Cox, 190. 

Though the second marriage would have been void, in 
any case, as for consanguinity or the like, the defendant is 
guilty of bigamy : B. v. Brawn, 1 C. & K. 144. 

In E. V. Fanning, 10 Cox, 411, a majority of the judges 
'qji the Irish Court of Criminal Appeal held, contrary to B. 



Sec. 276] 



BIGAMY. 



288 



V,. Brawn, that to oonstitate the offence of bigamy the 
second marriage must have been one which, but for the 
existence of the previous marriage, would have been a valid 
marriage, but the Court of Criminal Appeal, by sixteen 
judges, in R v. Allen, 12 Cox, 193, Warb. Lead. Cas. 76, 
since decided, as in B. v. Brawn, that the invalidity of the 
second marriage, on account of relationship, does not pre- 
vent its constituting the criue of bigamy. That is clearly 
BO in Canada now by s. 275, ante. 

It must be proved that the firs^ wife was living at the 
time the second marriage was solemnized, which may be 
done by some person acquainted with her and who saw her 
at the time or afterwards : Archbold, 887. On a prosecu- 
tion for bigamy it is incumbent on the prosecutor to 
prove that the husband or wife, as the case may be, 
was alive at the date of the second marriage. There is no 
presumption of law of the continuance of the life of the 
party for seven years after the date at which he or she was 
proved to have been alive. The existence of the party at 
an antecedent period may or may not afford a reasonable 
inference that he or she was alive at the date of the second 
marriage ; but it is purely a question of fact for the jury : 
R. V. Lumley, 11 Cox, 274. 

On the trial of a woman for bigamy, whose first husband 
had been absent from her for more than seven years, the 
jary found that they had no evidence that at the time of her 
second marriage she knew that he was alive, but that she 
had the means of acquiring knowledge of that fact, had she 
chosen to make use of them. It was held that upon this 
finding the conviction could not be supported : B. v. Briggs, 
Dears. & B. 98. 

On this last case. Greaves, 1 Buss., 270, note 1, 
remarks: " The case was argued only on the part of the 
prisoner, and the court studiously avoided determining on 
which side the onus of proof as to the knowledge of the first 
being alive lay, and yet the point seems very clear. 



If 



284 



BIGAMY^ABDUCTION, ETC. 



[Sec. 27« 




It is plain that the latter part of the section in the 9 Geo. 
IV,o.81,8. 22, and in the new Act is in the nature of a proviBo. 
Now no rule is better settled than that if an exception 
comes by way of proviso, whether it occurs in a subsequent 
part of the Act, or in a subsequent part of the same section 
containing the enactment of the offence, it must be proved 
in evidence by the party relying upon it. Hence it is that 
no indictment for bigamy ever negatives the exceptions as 
contained in the proviso, and hence it follows that the proof 
of those exceptions lies on the prisoner; if it was otherwise, 
the prosecutor would have to prove more than he has 
alleged. Then the proviso in terms requires proof both of 
the absence of the party for seven years, aoid that the pariy 
shall not have been known by the prisoner to have been 
living within that time, and consequently it lies on the 
prisoner to give evidence of both; and as the Legislature 
has required proof of both, it never could have been in- 
tended that proof of the one should be sufficient evidence 
of the other. When, however, the prisoner has given 
evidence to negative his knowledge that the party is alive, 
the onus may be thrown on the prosecutor to shew that be 
had that knowledge ; and in accordance with this view it 
the dictum of Willes, J., in B. v. Ellis, 1 F. and F. 809, 
that 'if the husband has been living apart from his wife for 
seven years, under such circumstances as to raise a proba- 
bility that he supposed that she was dead when he was re- 
married, evidence may be necessary that he knew bis first 
wife was alive.' As to the manner in which the case should 
be left to the jury, it should seem that the proper course is 
to ask them whether they are satisfied that the prisoner 
was married twice, and that the person whom he first married 
was alive at the time of the second marriage ; and, if tbey 
are satisfied of these facts, to tell them that it then lies 
upon the prisoner to satisfy them that there was an absence 
for seven years, and also that during the whole of those 
seven years he was ignorant that his first wife was alive, 
and that unless he has proved both those facts to their 



960.376] 



BIGAMY. 



285 



gatisfaotion th«y ought to oonvict him. It is perfectly clear 
that the question is not whether he knew that hia first wife 
was alive at the time of the second marriage, for he may 
hsTe known that she was alive within the seven years, and 
yet not know that she was alive at the time of the second 
marriage, and, if he knew that she was alive at any time 
within the seven years, he ought to be convicted." 

If it appears that the prisoner and his first wife had 
lived apart for seven years before he married again mere 
proof that the first wife was alive at the time of the second 
marriage will not warrant a conviction, but some affirma- 
tive evidence must be given to show that the accused was 
aware of this fact : B. v. Curgenwen, 10 Cox, 152 ; B. v. 
Fontaine, 15 L. C. J. 141 ; see B. v. Jones, 15 Cox, 284. 

In 1863 the prisoner married Mary Anne Bichards, 
lived with her about a week and then left her. It was not 
proved that he had since seen her. In 1867 he married 
Elizabeth Evans, his first wife being then alive. The 
court left it to the jury to declare if they were satisfied 
that the prisoner knew his first wife was alive at the time 
of the second marriage, and ruled that positive proof on 
that point was not absolutely necessary. The prisoner 
was found guilty, and on a case reserved the conviction 
was affirmed: B. v. Jones, 11 Cox, 358. 

In R. V. Horton, 11 Cox, 670, Cleasby, B., summed up 
as follows : " It is submitted that, although seven years had 
not passed since the first marriage, yet if the prisoner 
reasonably believed (which pre-supposes proper grounds of 
belief) that his first wife was dead he is entitled to an 
acquittal. It would press very hard upon a prisoner if 
ander such circumstances he could be convicted, when it 
appeared to him as a positive fact that his first wife was 
dead. The case of B. v. Turner, 9 Cox, 145, shows that 
this was the view of Baron Martin, a judge of as great ex- 
perience as any on the bench now, and I am not disposed 
to act contrary to his opinion. You must find the prisoner 



«^ 



286 



BIGAMY-ABDCUTION, ETC. 



[Sec. 276 






guilty, unless you think that he had fair and reasonable 
grounds for believing, and did honestly believe, that his first 
wife was dead." The jury returned a verdict of guilty, and 
the judge sentenced the prisoner to imprisonment for three 
days, remarking that he was quite satisfied with the verdict 
and that he should inflict a light sentence, as he thought the 
prisoner really believed his first wife was dead although he 
was not warranted in holding that belief : see B. v. Moore 
18 Cox, 544. 

On an indictment for bigamy a witness proved the first 
marriage to have taken place eleven years ago, and that 
the parties lived together some years, but could not sav 
how long, it might be four years. Wightman, J., said: 
"How is it possible for any man to prove a negative? 
How can I ask the prisoner io prove that he did not know 
that his wife was living ? " There is no evidence that the 
prisoner knew that his wife was alive, and there is no 
offence proved : B. v. Heaton, 3 F. & F. 819. 

In B. V. McQuiggan, 2 L. G. B. 840, the court ruled 
that in an indictment for bigamy, under the Canadian 
Statute, it is absolutely necessary, when the second mar- 
riage has taken place in a foreign country, that the indict- 
ment should contain the allegations that the accused is a 
TBritish subject, that he is or was resident in this Province, 
and that he left the same with intent to commit the offence: 
sec also B. v. Pierce, 18 0. B. 226. 

On a trial for bigamy the Crown having proved the 
prisoner's two marriages it is for him then to prove the 
absence of his first wife during seven years preceding the 
second marriage ; and when such absence is not proved it 
is not incumbent on the Crown to establish the prisoner's 
knowledge that the first wife was living at the time of the 
second marriage : B. v. Dwyer, 27 L. C. J. 201 : see R. v. 
Willshire, 14 Cox, 541. 

The prisoner was convicted of bigamy under 82 & 88 Y. 
c. 20, 8. 58. The first marriage was contracted in Toronto 



Sees. 277, 278] 



FEIGNED MARRIAGES. 



287 



and the second in Detroit. The judge at the trial directed 
the jury that if prisoner was married to his first wife in 
Toronto and to his second in Detroit they should find him 
gaiity. Held, a misdirection, and that the jury should have 
been told, in addition, that before they found him guilty 
they ought to be satisfied of his being, at the time of his 
eecond marriage, a subject of Her Majesty resident in 
Canada, and that he had left Canada with intent to com- 
mit the offence. Held, also, that it was incumbent on the 
Crown to prove these facts. Quoere, per Wilson, C.J., 
whether the trial should not have been declared a nullity : 
R. V. Pierce, 13 0. R. 226. 

Feiqnkd Mabbiaoes. 

fSYT* Every one ia guilty of an indictable offence and liable to seven years' 
imprisonment who procures a feigned or pretended marriage between himself 
and any woman, or who knowingly aids and assists in procuring such feigned 
or pretended marriage. R. S. G. c. 161, s. 2. 

The punishment was two years by the repealed section. 
The alteration gives twelve challenges instead of four. 

See s. 684, post, as to evidence on a prosecution under 
this enactment. 

Under the repealed statute any offence under the 
corresponding section had to be prosecuted within a year : 
that limitation of time has not been re-enacted. 

This offence was first created by 49 V. c. 52, s. 8. The 
male offender only is punishable. 

POLYOAMY. 

fS78> Every one is guilty of an indictable offence and liable to imprison. 
ment for five years, and to a fine of five hundred dollars, who — 

(a) Practices, or, by the rights, ceremonies, forms, rules or customs of any 
denomination, sect or society, religious or seoular, or by any form of contract, 
or by mere mutual consent, or by any other method whatsoever, and whether 
in a manner recognized by law as a binding form of marriage or not, agrees or 
consents to practise or enter into 

(i) any form of polygamy ; 

(ii) any kind of conjugal union with more than one person at the same 
time; 

(iii) what among the persons commonly called Mormons is known as 
spiritual or plural marriage ; 





Mt 



il ! ' 



28a 



\ 



BIGAMY-ABDUCTION, ETO. 



[Seof 1179,280 



(iv) who lives, cohabits, or agrees or consents to live or .^bit, in 
any kind of conjugal union with a person who is married to a;>.<i'.ier, or 
with a person who lives or cohabits with another or others in any land of 
conjugal union ; or 

(6) Celebrates, is a party to, or assists in any such rite or oeremony which 
purports to make binding or. to sanction any of the sexual relationships men- 
tioned in paragraph (a) of this section ; or 

(c) Procures, enforoen, enables, is a party to, or assists in the compliance 

with or carrying out of, any such form, rule or custom which so purports ; or 

{d) Procures, enforces, enables, is a party to, or assists in the execution of, 

any such form of contract which so purports, or the giving of any such consent 

which so purports. 6S V. o. 87, s. 11. . 

As to evidence in trials for offences against this section: 
see 8. 706, post. 

See E. V. Labrie, M. L. B. 7 Q. 6. 211, where it was held 
that mere cohabitation is not an offence punishable under 
this enactment. Also The People v. Mosher 2 Parker 195. 
In B. V. Liston, Toronto, April, 1893 (unreported), Armour, 
G.J., also held that adultery is not indictable under the 
above enactment. 




Solemnization of Marbiaob Withot;t Adthobitt. 

279. Every one is guilty of an indictable offence and liable to a line, or 
to two years' imprisonment, or to both, who — 

(a) Without lawful authority, the proof of which shall lie on him, solemn- 
izes or pretends to solemnize any marriage ; or 

(b) Procures any person to solemnize any marriage knowing that such 
person is not lawfully authorized to solemnize such marriage, or knowingly aids 
or abets such person in performing such ceremony. R. S. C. c. 161, a. 1. 
4 Geo. IV. c. 76, s. 21 (Imp.). 

Limitation two years, s. 551. There was none under 
the repealed statute. 

Indictment. — that A. B., on at 

without lawful authority, did unlawfully solemnize (or 
pretend to solemnize) a marriage between one C. D. and one 
M.N. 

See E. V. Ellis, 16 Cox, 469. 

SOLEHNIZINO A MaRRIAQB CONTRART TO LaW. 

SSO. Every one is guilty of an indictable offence and liable to a fine, or 
to one year's imprisonment, who, being lawfully authorized, knowingly and 



Sees. 281, 282] 



ABDUCTION. 



28» 



wilfully Bolemnizes any marriage in violation of the laws of the province ia 
which the marriage is solemnized. B. S. C. c. 161, s. 3. 

A limitation of two years has not been re-enacted. 

Indictment. — that A. B., at on ■ being: 

a clergyman of and lawfully authorized to marry, did 

unlawfully solemnize a marriage between one G. D., and 
one £. F., before proclamation of banns in violation of the 
laws of the Province of in which the said marriage 

was solemnized. 

Abduotion. 

2S1> Every one is guilty of an indictable offence and liable to fourteen^ 
years' imprisonment who, with intent to marry or carnally know any woman, 
whether married or not, or with intent to cause any woman to be married to or 
carnally known by any other person, takes away or detains any woman of any 
age against her will. R. S. C. o. 162, s. 43 {Amended), 24-25 V. c. 100« 
6. 54 (Imp.). 

The words in italics are new. 

The words " by force " were inserted before " takes. 
away " in the repealed clause ; see notes under next section. 

Indictment. — unlawfully did take away {or de^ 

tain) one A. 6., against her will, with intent her, the said 
A. B., to marry {or ) (If the intent is doubtr 

fd, add a count stating it to be to " carnally know," or to 
cause her to be married to one iV. *Si., or to some persons 
to the jurors unknown, or to cause her to be carnally 
hown by, etc.) : 1 Burn, 12. 

A verdict for assault or for an attempt to commit the^ 

offence charged, may be given, if the evidence warrants it ; 

8S.111, lis, post. 

Abduotion. 

382. Every one is guilty of an indictable offence and liable to fourteen 
years' imprisonment who, ivith intent to nuirry or carnally know any woman, or 
with intent to cause any woman to bo married or carnally known by any 

jwrson— 

[a] from motives of lucre takes away or detains against her will any such 
woman of any age who has any interest, whether legal or equitable, present or 
future, absolute, conditional or contingent, in any real or personal estate, or 
who is a presumptive heiress or co-heiress or presumptive next of kin to any 
one having such interest ; or 
Crim. Law— 19 







890 



BIGAMY— ABDUCTION, ETC. 



[Seo. 382 



{p) fraudolelitly rilurca, takas aWajt or detaiiM any nioh wolnsn, beinr 
under the age of twentfjr-one J^ears, out of the possession and against the will of 
her father or mother, or of any other person having the lawful care or charge 
of her, with intent to marry or eamally know her. 

2. Every one eonvicted of any offenoe defined in this section is incapable 
of taking any estate or interest, legal or equitable, in any real or personal 
propei^ty of such woman, or in which she has any interest, or which comes to 
her as such heiress, co^heiress or next of kin ; and if any such marriage takes 
place such -property shall, upon such conviction, be settled in such manner as 
any court of competent jurisdiction, upon any information at the instance of 
the Attorney -General appoints. R. S. 0. c. 162, s. 42. 24-25 V. c. 100, s. 53 
(Imp.). 

The words in italics in s-s. (b) are a repetition. 

" Attomdy-General " defined, s. 8. 

On the trial of an indictment for an ofT^^nre under s^s. 
(b) of this Motion, it is not necessary to prove that the 
accused knew that the girl he abducted had an interest in 
jftny property : R. v. Kaylor,; 1 Dor. Q. B. E. 364. 

It is not necessary that an actual marriage or defile- 
ment should take place. Under the first part of this sec- 
tion, the taking or detaining must he from motives of lucre 
and against the will of the woman, coupled with an intent 
to marry or carnally know her or cause her to be married 
or carnally known by any other person. 

Indictment under (a). — from motives of lucre, did 
unlawfully take away and detain ('* take away or detain ") 
one A. N. against her will, she, the said A. N., then having 
a certain present and absolute interest in certain real 
estate {any interest, whether legal or equitable, present or 
future, absolute, conditional or contingent in any real 
or personal estate) with intent her, the said A. N., to marry 
(or carnally know her, or cau»e her to be married or carnalbj 
known by ). f^dd a count stating generally the nature 

of *OMW part oftkt property and, if the intent be doubtjul, add 
Counts varying the intent J See another form, in 3 Cbit 
C. L. 818. 

Indictment under (6).— fi-audtllefltly ftlltited {took 

away or detained) one A. B.» out of the possesBion at 
against the will of G. D., her father, sb«i the said A. B., 



Seo. 882] 



ABDroTIoN. 



then Mug ander the ,ge of tw«„., **' 

Under the eecond part Zt "' "' '»'«'•) 

i" the fraadnlent aiLmento/rt" ''*'■*'''■''' «''''«i«s 
one ont of the p„,se».i„„ of or J.™? u"^*' '"""J" 
parent or guardian, copied w,U T"°. ""* ""' °' her 
carnally know her, or cause he" t be ' a^V" """'^ »' 
known by another person, but, for tWaT"'" "' ""-""y 
of lucre are mentioned, nor shonM ;7^ f"*' '"' """''Vm 
.ga.n8t the will of the woman thlr'K '"""""'»'' 
heiress, or such a woman as d«L,-KT?^ '''* "«»' •>« an 
this section. *' described m th« first liaes of 

The taking under the first nart «f «•• 
agamst the will of the womarL^I •, " '""'O" ""»' be 
although it be with her wm ' t ", /^ T,"" ""^ *•>«'• 
fraud practised upon her the i •■ *' ^ "^^^^ by 
for she cannot whilst underthe;"' ^^'*^^ "-eAot 
«*red to be a free agent """"" "' '»"<' be con- 

If the woman be taken away in th. « . • 
her own consent, but afterwardsrl? * "' ""'»"«« »"h 
offeuder, the offence is ZpLta 11?°^"''"'''"'' ""« 
*e may from that time ZTol^T^ " ""' ~ "f-^-- 
against her will as if she had neve i" *" u *''' *» '«' '»k«n 
for, till the force was put lorh « »h ^^ °°"'''''' »' »"' 
power: 1 Burn, 8. '^ "' '''« "M in her own 

offe:~''"°*'*-^«^-''berwi,,,shy itself an 

rt^'a?";tr:ra:\r:f''^''''-~s„ 

for .f she were in force a th «1 ??'"? "'"^'^ « m. 
f 'to time of the taking Td th. '''^''*''°«• ''« complete 
*o™ the prowsion. of Z 'tatte bf h"'" " •"" '» •»»«- 
'" ''•^"-^ <" «"« woman ?^^, cfta" s* "'"""'' »'« 



292 



BIGAMY— ABDUCTION, ETC. 



[Sec. 28» 




m: 




The second part of this section expressly contemplates 
the case of a girl, under twenty-one, whose co-operation has 
been obtained by influence over her mind, and who has been 
taken out of the possession of her parent or guardian by 
means of a fraud practised upon them and against their 
will, or by force, against their will, but with her consent. 
If a girl, under twenty-one, is taken away or detained 
against her own will, or her consent is obtained through 
fear, that case would be within the first part of this section. 
The woman, though married, may be a witness against the 
offender: Archbold, 700. 

" If, therefore," says Taylor, on Evidence, par. 1236, 
" a man be indicted for the forcible abduction of a woman 
with intent to marry her, she is clearly a competent witness 
against him if the force were continuing against her till the 
marriage. Of this last fact also she is a competent witness, 
and the better opinion seems to be that she is still com- 
petent, notwithstanding her subsequent assent to the 
marriage and her voluntary co-habitation; for otherwise,, 
the offender would take advantage of bis own wrong." 

Under s. 711 the prisoner may be found guilty of an 
attempt to commit the offence charged and punished under 
8. 528. 

Under s. 713 the prisoner may be found guilty of an 
assault, if the evidence warrants such finding. 

Abduction— Girl under Sixteen. 

S83* Every one is guilty of an indictable ofFence and liable to fire years' 
imprisonment who 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 car« or 
charge of her. 

2. It it immaterial whether the girl is taken with her own eoruent or at her 
ovm suggettion or not. 

3. It it immaterial whether or not the offender believed the girl to be of or 
above the age of sixteen. R. S. C. c. 162, s. 44 {Am,ended). 24-25 V. c. 100, 
8. 65, and 48-49 Y. o. 69, s. 7 (Imp.). 

Sub-sections. 2 and 3 are new enactments though not 
new law. Fine, s. 958. 



To pick up 
not to take he 
Priwner met a ^ 
and induced her 
'^^ere he seduc. 
^e then took J 
returned home t 






Sec. 283] 



ABDUCTION. 



293 



The intent to marry or carnally know is not an in|?re- 
dient of this offence. The only intent which is material is 
the intent to deprive the parent or legal guardian of the 
possession of the child. No motives of lucre are neces- 
sary. A woman may be guilty of this offence. 

It is immaterial whether the girl consents or not, and 
the taking need not be by force, actual or constructive : 
R. V. Mankletow, 1 Russ. 954, Dears. 159. Where a 
parent countenances the loose conduct of the girl the jury 
may infer that the taking is not against the parent's will, 
loiiorance of the girl's age is no defence : 1 Buss. 952 ; R. 
V. Robins, 1 C. & K. 456. It is not necessary that the 
taking away should be for a permanency ; it is sufficient 
if for the temporary keeping of the girl : R. v. Timmins, 
Bell, 276. 

On an indictment for abducting a girl under sixteen 
years of age it appeared that the girl, when abducted, had 
left her guardian's house for a particular purpose with his 
sanction : Held, that she had not ceased to be in his pos- 
session under the statute : R. v, Mondelet, 21 L. C. J. 154 ; 
see R. v. Henkers, 16 Cox, 257. 

On a trial for taking an unmarried girl under the age of 
sixteen out of the possession of her guardian : 

Held, 1st. That evidence of her being badly treated by 
her guardian is inadmissible. 2nd. That secondary evi- 
dence of the age of the child is admissible. 3rd. That in 
this case the defendant was not guilty of taking the child 
out of the possession of the guardian : R. v. Hollis, 8 L. N. 






To pick up a girl in the streets and take her away is 
not to take her out of the possession of any one. The 
prisoner met a girl under sixteen years of age in a street, 
and induced her to go with him to a place at some distance, 
where he seduced her and detained her for some houi-s. 
He then took her back to where he met her, and she 
returned home to her father. In the absence of any evi- 




294 



BIGAMY^ABDUCTION, ETC. 



[8eo.283 



denea that the prisoner knew, or had reason for knowing, 
or that he believed that the girl was under the care of her 
father at the time, held by the court of Criminal Appeal 
that a conviction under this section could not be sustained : 
R. V. Green, 3 F. & F. 274 ; R v, Hibbert, 11 Cox, 246. 

One who takes an unmarried giri under the age of six- 
t jen years out of the possession and against the will of her 
father or mother is guilty of this offence, although he may 
not have had any bad motive in taking her away, nor 
means of ascertaining her age, and although she was will, 
ing to go : R. v. Booth, 12 Cox, ?31 ; R, v. Kipps, 4 Cox, 
167. 

The defence in Booth's case was that the prisoner 
actuated by religious and philanthropic motives, had taken 
the girl from her parents in order to save her from seclu- 
sion in a convent. He was found guilty and sentenced. 

A girl who is away from her home is still in the custody 
or possession of her father, if she intends to return ; it is 
not necessary to prove that the prisoner knew the girl to 
be under sixteen ; the fact of the girl being a consenting 
party cannot absolve the prisoner from the charge of 
abduction; this section is for the protection of parents: 
R. V. Mycock, 12 Cox, 28 ; R. v. Olifier, 10 Cox, 402 ; E. v. 
Miller, 13 Cox, 179. 

Indictment-^ unlawfully did take (or cause to 

be taken) one A. B. out of the possession and against the 
will of E. F., her father, she, the said A. B., being then an 
unmarried girl, and under the age of sixteen years, to wit, 
of the age of , etc. (// necessary add a count stat- 

ing E. F. to he a 'person having the lawful care and charge 
of the said A. B., or that the defendant unlawfully did 
cause to he taken one ): see R. v. Johnson, 15 

Cox, 481. 

It is no defence to an indictment under this section 
that the prisoner believed the girl to be eighteen; R. v. 
Prince, 13 Cox, 188, Warb. Lead. Cas. 89. 



Sec 284] 



STEALING CHILDREN. 



296 



It waa held in R v. Bishop, 6 Q. B. D. 269, that under 
a statute which prohibits the receiving of lunatics for 
treatment in a house not duly lieensed, the owner of a house 
who had received lunatics was guilty of the offenea created 
by the statute, though the jury found that he believed 
honestly and on reasonable grounds that the perscma 
received were not lunatics. 

" I do not think that the maxim as to the mena rea has 
go wide an application as it is sometimes considered to have. 
In old time, and as applicable to the common law or to 
earlier statutes, the maxim may have been of general 
application ; but a difference has arisen owing to the greater 
preciBion of modem statutes. It is impossible now to 
apply the maxim generally to all statutes, and it is neces- 
sary to look at the object of each act to see whether and 
how far knowledge is of the essence of the offence created ". 
Per Stephen, J., in Cundy v. LeCocq, 13 Q. B. D. 207. 

See R. V. Tolson, 16 Cox, 629, 23 Q. B. D. 168, as to mens 
rea; also Betts v. Armstead, 16 Cox, 418, 20 Q. B. D. 771 i 
Ford V. Wiley, 16 Cox, 683, 23 Q. B. D. 203; Wood v. 
Burgess, 16 Cox, 729 ; Pain v. Boughtwood, 16 Cox, 747 ; 
and cases under s. 14, ante. 

Stealing Chii.dbkk Undrr iTouRTKKN. 

fi84* Every one is guilty of an indictable ol fence and liable to seven yean 
impnsonment who, with intent to deprive any parent or guardian, or other 
person having the lawful charge, of any child under the age of fourteen years, 
of the posse«!iion of such child, or with intent *x> steal any article about or on 
the person of such child, unlawfully — 

((() takes or entices away or detains any such child ; or 

(b) receives or harbours any such child kqowing i^ to have been dealt With 

as aforesaid. 

2. Nothing in this section shall extend to any one who gets possession of 
any child, olaimiog in good faith a right to the possession of the obild. B. S. C. 
c. 162, B. 45 (Amended). 24^25 Y. o. 100, s. 56 (Imp. ). 

The words " by force or fraud " were in the repealed 

clause. 

See R. v. Johnson, 15 Cox, 481, Warb. Lead. Cas. 91 ; 
and R. v, Barrett, 15 Cox, 658. 








*• 



V 





296 



DEFAMATORY LIBEL. 



[S«c. 285 



• Indictment. — unlawfully did take away (take 

away, or entice away, or detain) one A. N., a child then 
under the age of fourteen years, to wit, of the age of seven 
years, with intent thereby then to deprive one A. S., the 
father of the said A. N., of the possession of the said A. N. 
his said child, against . And the jurors that 

the said afterwards, to wit, on the day and year 

^.foresaid, unlawfully did take away (or etc.,) the said A. N, 
a child then under the age of fourteen years, to wit, of the 
9,ge of seven years, with intent thereby then to steal, take 
and carry away divers articles, that is to say then 

being upon and about the person of the said child. (Add 
counts stating that the defendant did entice away, or did 
detain, if necessary). 

Upon the trial of any offence contained in this section 
the defendant may, under s. 711, be convicted of an attempt 
to commit th*» same. 

All those claiming a right to the possession of the child 
^re specially exempted from the operation of this section, 
by s-s. 2. . . 





PART XXIII. 
> DEFAMATORY LIBEL. 

Definition. 

{S85< Adefamatory libel is matter published, without legal justification or 
excuse, likely to injure the reputation of any person by exposing him to hatred, 
cjontempt or ndicule, or designed to insult the person to whom it is published. 

2. Such matter may be expressed either in words legibly marked upon any 
substance whatever, or by any object signifying such matter otherwise than by 
^ords, and may be expressed either directly or by insinuation or irony. 

See remarks under s. 302. 



SecH. 286-291] 



DEFAMATORY LIBEL. 

PCBLHHIMO DiriNID. 



297 



Ii86* Publishing a libel is exhibiting it in public, or causing it to berp Jl 
or Keen, or showing or delivering it, or causing it to be shown or delivered, with 
} view to its being read or seen by the person defamed or by any other 
person. 

PuBUHHmo Upok Invitation. 

8S7' No one commits an o£Fence by publishing defamatory matter on 
the invitation or challenge of the person defamed thereby, nor if it is necessary 
to publish such defamatory matter in order to refute some other defamatory 
statement published by that person concerning the alleged offender, if such 
Klefamatory matter is believed to be true, and is relevant to the invitation, 
challenge or the required refutation, and the publishing does not in 
manner or extent exceed what is reasonably sufficient for the occasion. 

PuBLiauiNo IN Courts, Etc., Etc., Etc. 

S88. Xo one commits an offence by publishing any defamatory matter, 
in any proceedings held before or under the authority of any court exercising 
judicial authority, or in any inquiry made under the authority of any statute 
or by order of her Majesty, or of any of the departments of Government, 
Dominion or provincial. 

PuBLiSHiNo Farliahkntary Pafers, Eto., Etc. 

289. No one commits an offence by publishing to either the Senate or 
House of Commons, or to any Legislative Council, Legislative Assembly or 
House of Assembly, defamatory matter ccmtained in a petition to the Senate, 
or House of Commons, or to any such Council or Assembly, or by publishing 
)]y order or under the authority of the Senate or House of Commons, or of 
any such Council or Assembly, any paper containing defamatory matter or by 
publishing, in good faith and without ill-will to the person defamed, any 
extract from or abstract of any such paper. 

See a. 705, post, and ss. 6 & 7, c. 163, R. S. C. p. 306, post 

Prockkdinos OF Parliament and Courts, Etc., 51-62 V. c. 64 (Imp.). 

S90. No one commits an offence by publishing in good faith, for the 
information of the public, a fair report of the proceedings of the Senate or 
House of Commons, or any committee thereof, or of any such Council or 
Assembly, or any committee thereof, or of the public proceedings preliminary 
or final heard before any court exercising judicial authority, nor by publishing, 
in good faith, any fair comment upon any such proceedings. 

Procbkdinos or Public Meetings (New). 

291. No one commits an offence by publishing in good faith, in a news- 
paper, a fair report of the proceedings of any public meeting if the meeting is 
lawfully convened for a lawful purpose and opjn to tKe public, ana if such 
report is fair and accurate, and if the publicatioit of t'.ie matter complained of 
is for the public benefit, and if the defendant does not refuse to insert in a 
conspicuous place in the newspaper in which the report apf/cared a reasonable 
letter or document of explanation or contradiction by or on behalf of the 
prosecutor. 




298 



DEFAMATORY LIBEL. 



[S«oi. 392.297 




Pais DiioufwioN. 

909>|No 'one commita an offence by publishing »ny defamatoiy matter 
which he, on 'reasonable frrounds, believes to be true, and which is relevant 
to any lubjeot of public interest, the public discussion of which is for the 
public benefit. 

FaIB COMMIVT, 

999* No one commits an offence by publishing fair comments upoa the 
public ooaduot of a person who takes part in public aifairs. 

9. No one commits an offence by publishing fair comments on any pub- 
lished book oi{othflr literary production, or any composition or work of art or 
performance publicly exhibited, or any other communication made to the 
public on anyr*ubjeot, if such comments are confined to oriticinn on luch 
book or literary production, composition, work of art, performance or com* 
munication. 

Sebkinq Rkmedt roR Oriivanoi. 

A04> No one commits an offence by publishing defamatory matter for 
the purpose, in good faith, of seeking remedy or redress for any private or 
public wrong or grievance from a person who has, or is reasonably believed by 
the person publishing to have, the right or be under obligation to remedy or 
redress such wrong or grievance, if the defamatory matter is believed by him 
to be true, and is relevant to the remedy or redress sought, and such pub> 
lishing does not in manner or extent exceed what is reasonably sufficient 
for the occasion. 

Answbr to Inquiries. 

81I9< No one commits an offence by publishing, in answer to inquiries 
made of him, defamatory matter relating to some subject as to which the 
person by whom, or on whose behalf, the inquiry is made has, or on reasonable 
grounds is believed by the person publiuhing to have, an interest in knowing 
the truth, if such^matter is published for the purpose, in good faith, of giving 
information in respect thereof to that ])er8on, and if such defamatory matter is 
believed to be true, and is relevant to the inquiries made, and uIho if such 
publishing does not in manner or extent exceed what is reasonably sufficient fur 
the occasion. 

Giving Information. 

309- No one commits an offence by publishing to another person 
defamatory matter for the purpose of griving information to that person with 
respect to some subject as to which he has, or is, on reasonable grounds, 
believed to have, such an interest in knowing the truth as to make the con- 
duct of the person giving the information reasonable under the circumstances : 
Provided that such defamatory matter is relevant to such subject, and that it 
is either true, or is made without ill-will to the person defamed, and in the 
belief, on reasonable grounds, that it is true. 

Se^ Coxhead v. Richards, 2 C. B. 569 ; Robshaw v. 
Smith, 38JL. T. N. S. 424 ; R. v. Perry, 15 Cox, 169. 

Besponsibilitv of Proprietor of Newhpapbr or of Seller of a Libil 

I8©7. Every proprietor of any newspajwr is presumed to be criminally 
responsible for defamatory matter inserted and published therein, but such 



Ex 

I '**• Every one it 

■mprisonment, or to a fii 

publishes or threatens 

offers to prevent the pub 

pwy or to induce any 

hppomtment or office of r 

Uimdtd). 6-7V. c. 96 



••^■' 



9r(w. 996-aOO] 



SELLING LIBELS, ETC. 



299 



presumptiun miky be rebutted by proof that the particular defamatory matter 
«u in»«rted in lucli newspaper without lueh proprietor'! oognizaoM, and 
without notfl'Vnnoe on hit part. 

2 General authority given to the person actually inserting such defama- 
tory matter to manage or conduct, as editor or otherwise, such newspaper, 
ind to insert therein what he in his discretion thinks fit, shall not be negli- 
renoe within this section unless it be proved that the proprietor, when 
originally giving such general authority, meant that it should extend to 
in^rting and publishing dofamatury matter, or continued such general 
tuthority knowing that it had been exercised by inserting defamatory matter 
in any number or part of such newspaper. 

3, No one is guilty of an offence by selling any number or part of such 
newspaper, unless he knew either that such number or part contained 
defamatory matter, or that defamatory matter waa habitually contained in 
such newspaper. R. S. C. c. 163, s. 6 {Amended). 

« Newspaper " defined, s. 3, ante. 

Selling Libels, Etc. 

Ji98« No one commits an offence by sellimg^ any book, magazine, pamph- 
let or other thing, whether forming part of any periodical or not, although the 
same contains defamatory matter, if, at the time of such sale, he did not know 
that such defamatory matter was contained in such book, magazine, pamphlet 
ur other thing. 

2. The sale by a servant of any book, magazine, pamphlet or other thing, 
whether periodical or not, shall not make his employer criminally responsible 
in respect of defamatory matter contained therein unless it be proved that such 
employer authorized such sale knowing that such book, magazine, pamphlet or 
utber thing contained defamatory matter, or, in case of a number or part 
of a periodical, that defamatory matter was habitually contained in such 
periodical. 

When Trcth is a Defence. 

999» It shall be a defence to an indictment or information for a defa Jia- 
tory libel that the publishing of the defamatory matter in the manner in wtiich 
it waa published was for the public benefit at the time when it was published, 
and that the matter itself was true. R. S. C. c. 163, s. 4. 

See 8. 634, p. 305, post. 

Extortion by Defamatory Libel. 
300. Every one is guilty of an indictable offence and liable to two yean' 
imprisonment, or to a fine not exceeding six hundred dollars, or to both, who 
publishes or threatens to publish, or offers to abstain from publishing, or 
offers to prevent the publishing of, a defamatory libel with intent to extort any 
money or to induce any person to confer upon or procure for any person any 
jppointment or office of profit or trust, or in consequence of any person having 
Ittn rtfused " any auch inoney," appointment or office. R. S. C. c. 163, s. 1 
I {immM). 6-7 V. c. 96, s. 3 (Imp.). 



If 




300 



DEFAMATORY LIBEL. 



[Sec8. 301, 302 




Punishment of Defamatory Libel with Soienteb. 

30 1 • Every one is guilty of an indictable offence and liable to ttoo yeart' 
imprisonment or to a fine not exceeding four hundred dollars, or to both who 
publishes any defamatory libel knowing the same to be false. R. S. C. 163 b. 2. 

FCNISHMBNT OF DEFAMATORY LiBEL. 

302. Every one is guilty of an indictable offence and liable to one year's 
imprisonment, or to a fine not exceeding two hundred dollars, or to both, who 
publishes any defamatory libel. R. S. O. c. 163, s. 3. 

All of these sections from s. 285 are taken, with the 
exception of s. 291, from the Imperial Draft Code of 1879 
which the commissioners reported to be a re-enactment of 
the existing law. On ss. 297 & 298 they remark, how- 
ever, that they have made some alteration so as to meet 
a difference of judicial opinion on the construction of the 
corresponding enactments in 6 «& 7 V. c. 96, citing E. v. 
Holbrook, 4Q. B. D. 42. ' 

The Imperial statutes on libel by newspapers are 44 & 
45 V. c. 60, and 51 & 62 V. c. 64. 

The costs of showing cause against a rule for the filiug 
of an information are covered by s. 833, p. 306, post : B. 
V. Steel, 13 Cox, 169. 

Indictment for a falsedefamiatory libel. — .... that 
J. S., unlawfully, and maliciously intending to injure, aud 
prejudice one J. N., and to deprive him of his good name and 
reputation, and to bring him into public contempt or ridicule 
and disgrace, on ... , unlawfully and maliciously did write 
and publish, and cause and procure to be written and pub- 
lished, a false and defamatory libel, in the form of a letter 
directed to the said J. N. (or, if the publication were in 
any other manner, omit the words, " in the form," etc.), 
containing divers false and defamatory matters and things 
of and concerning the said J. N., and of and concerning etc., I 
{here insert such of the subjects of the libel as it may hel 
necessary to refer to by the innuendoes, in setting out thel 
libel), according to the tenor and effect following, that istof 
say (here set out the libel, together with such innuendml 
as may be necessary to render it intelligible), he, the saidj 



Sec. 302] 

J. S., then w< 
false : see fori 

Imprisonn 
If the prosecu 
may neverfchel 
libel, and puni 
iDg one year, c 
Q.B.D. 284. 
plea o{ not guiJ 
that it was for 
lished, setting i 
the publication 

The offence 
s. 540. 

The defendar 
libel, in the mar 
tioned in s. 299. 

The following 
And for a furth! 
that Our Lady tl 
the said indictme 
is true that (ste., , 

of the publication 
before and at the 

ment mentioned (s 

Imtion of benefit 

for the pubh'c bene 

the said indictme 

This plea may be p 

that the identical , 

'he time of compoi 

"le subject of the 

lication which was 

»°<i against the 

is no 

Dears. 85 






Sec. 302] 



PUNISHMENT. 



301 



J. Sm then well knowing the said defamatory libel to be 
false : see form H, under s. 611 & s. 615, p. 804, post 

Imprisonment not exceeding two years, and fine, s.SOl. 
If the prosecutor fail to prove the scienter the defendant 
may nevertheless be convicted of publishing a defamatory 
libel, and punished by fine, or imprisonment not exceed- 
ing one year, or both : s. 302 ; Boaler v. R. 16 Cox, 488, 21 
Q. B. T>' 284. The defendant may plead, in addition to the 
plea of not guilty, that the matters charged were true, and 
that it was for the public benefit that they should be pub- 
lished, setting forth the particular facts by reason of which 
the publication was for the public benefit. 

The offence of libel is not triable at quarter sessions : 
B. 540. 

The defendant may allege and prove the truth of the 
libel, in the manner and subject to the conditions men- 
tioned in 8. 299. 

The following may be the form of the special plea : 
And for a further plea in this behalf, the said J. S. saith 
that Our Lady the Queen ought not further to prosecute 
the said indictment against him, because he saith that it 
is true that {stc, alleging the truth of every libelloiis part 
of the publication) ; and the said J. S. further saith, that 
before and at the time of the publication in the said indict- 
ment mentioned (sto^e here the facts which retidered the puh- 
Imtion of benefit to the public) ; by reason whereof it was 
for the public benefit that the said matters so charged in 
the said indictment should be published. And this, etc. 
This plea may be pleaded with the general issue. Evidence 
that the identical charges contained in a libel had, before 
the time of composing and publishing the libel which is 
the subject of the indictment, appeared in another pub- 
lication which was brought to the prosecutor's knowledge, 
and against the publisher of which he took no legal 
proceedings, is not admissible under this section: B. v. 
I Newman Dears. 85, 1 E. & B. 268. Where the plea con- 




\mi 



\ I 





802 



\ 



DEFAMATORY LIBEL. 



[Sec. 302 



tains several charges, and the defendant fails in proof of 
any of the matters alleged in it, the jury must of necessity 
find a verdict for the crown ; and the court, in giving judg. 
ment, is bound to consider whether the guilt of the defend- 
ant is aggravated or mitigated by the plea, and by the 
evidence given to prove or disprove it, and form its own 
conclusion on the whole case. 

The replication may be as follows: — And ad to the plea 
of the said J. S., by him secondly above pleaded, the said 
A. B. (the clerk of assize or clerk of the peace) saith that 
by reason of anything in the said second plea alleged. Our 
said Lady the Queen ought not to be precluded from further 
prosecuting the said indictment againat the said J. S., be- 
cause he saith, that he denies the said several matters in 
the said second plea alleged, and saith that the same are 
not, nor are nor is any or either of them, true. And this 
he, the said A. B., prays may be inquired of by the country, 
etc. And the said J. S. doth the like. Therefore, etc. 

Indictment for threatening to pvMiah a defamatory 
libel, etc., with intent to extort money under a. 300.-^ 
unlawfully did threaten one J. N. to publish a certain libel 
of and concerning him the said J« N- (" if any person 
pvhlishes, or threatens to publish, any libel upon any other 
person, or offers to abstain from, publishing, or offers to 
prevent the publishing of a defam/xtory libel), with intent 
thereby then to extort money from the said J. N. (*• with 
intent to extort any money, or with intent to induce awj 
person to confer upon or procure for any person any ap- 
pointment or office of profit or trust, or in consequence of 
any person having been refused any such money, appoint- 
ment or office"). If it be doubtful whether the matter 
threatened to be published be libellous, add a count charg- 
ing that the defendant " did propose to the said J. N. to 
abstain from printing and publishing a certain matter and 
thing touching the said J. N. {or one J. F.) with intent, 
etc." 



Sec. 303] 



PUNISHMENT. 



303 



What is a libol? Duties of gran^ jurors on kn indict- 
ment fot libel : 10 L. N. 861. 

Information for a libel : Ex parte Gugy, 8 L. C E. 353. 

Under s. 299 the magistrate has no jurisdiction to re- 
ceive evidence of the truth of the libel upon an informa- 
tion : B. V. Garden, 6 Q. B. D. 1, 14 Cox, 359. 

In a ease of libel it is no ground to change the venue that 
many of the defendant's witnesses reside at a distance, aiul 
the defendant has no funds to bring them to that venue : 
R. V. Casey, 13 Cox, 614. 

On s. 299 see B. v. Laurier, 11 B. L. 184 ; on s. 297 
see R. V. Holbrook, 3 Q. B. D. 60, 4 Q. B. D. 42, 13 Cox, 
650, 14 Cox, 185. As to right of the Crown to set aside 
jurors in cases of libel : see B. v. Patteson, 36 U. C. Q. B. 
129, and B. v. Maguire, 13 Q. L. B. 99 ; and s, 669, post. 

It must be proved upon an indictment against the pro- 
prietor of a newspaper thai the defendant was proprietor or 
pttblisber of the journal at the time of the publication of the 
libel. That he is such at the time of the trial is not suffi- 
cient: B. V. Sellars, 6 L. N. 197. 

Under s. 634, p. Q05, post, see B. v. Dougall, 18 L. C. J. 

85. 

The defendant was indicted for a malicious libel, and 
specially pleaded the truth of the libel as well as the plea of 
not guilty. Under this plea he endeavoured to prove justi- 
fication. Held, that evidence was not admissible, as, under 
the statute, to be allowed to justify, the defendant baa to 
plead not only that the publication was true, but also that 
it was made for the public good: B. v. Hickson, 3 L. N. 139 ; 
3. 299, ante. 

See R. V. Labouchere, 14 Cox, 419, as to the sufficiency 
of a plea of justification, and B< v. Creighton, 19 0. B. 839. 

As to what constitutes a guilty knowledge under s. 301, 
and that it is for the jury to decide under A plea of justift- 




V 





304 



DEFAMATORY LIBEL. 



[Sec. 302^ 



cation if the statemeht complained of is true, and if it was 
published for the public benefit: see B. v. Tass^, 8 L. N. 98. 

No action for libel by a wife against her husband: B.v^ 
Lord Mayor, 16 Q. B. D. 772, 16 Cox, 81. 

On an accusation for libel it is no defence that the libel 
was published with " no personal malice ": B. v. " The 
World," 13 Cox, 806. 

The truth of a seditious or blasphemous libel cannot be 
pleaded to an indictment for such libel. S. 299, ante, of 
the Act does not apply to such libels, but s. 297 applies : 
B. V. Bradlaugh, 15 Cox, 217; B. v. Bamsay, 15 Cox, 231; 
Ex parte O'Brien, 15 Cox, 180. 

Held, 1. A criminal information (for libel) will not be 
granted except in case of a libel on a person in authority, 
and in respect of duties pertaining to his office. 

2. Where a libel was directed against M., who was at 
the time attorney general, but alleged improper conduct 
upon his part when he was a judge, an information was 
refused. 

3. The applicant for a criminal information must rely 
wholly upon the court for redress, and must come there 
entirely free from blame. 

4. Where there is foundation for a libel, though it falls 
far short of justification, an information will not be granted: 
B. V. Biggs, 2 Man. L. B. 18. 

See ss. 634 & 719, p. 305, post, as to plea of justification 
and trial, and B. v. Adams, 16 Cox, 544, 22 Q. B. D. 66, where 
an obscene letter sent to a young woman was held to consti- 
tute a defamatory libel. 



PROCEDURE SECTIONS ON LIBEL. 

Form of Indictment. 
615. No count for publishing a blasphemous, Heditious, obscene or defa- 
matory libel, or for selling or exhibiting an obscene book, pamphlet, newspaper 
or other printed or written matter, shall be deemed insufficient on the ground 
that it does not set out the words thereof : Provided that the court may order 
that a particular shall be furnished by the prosecutor stating what passages iti 



Sec. 302] 



PLEA OF JUSTIFICATION. 



305 



such book, pamphlet, newspaper, printing or writing are relied on in support 
of the charge. 

2. A count for libel may charge that the matter published was written in a 
sense which would make the publishing criminal, specifying that sense with- 
out any prefatory averment showing how that matter was written in that sense. 
And on the trial it shall be suiBoient to prove that the matter published was 
criminal either with or without such innuendo. 

Plea of Justification. 

634. Every one accused of publishing a defamatory libel may plead that 
the defamatory matter published by him was true, and that it was for the 
public benefit that the matters charged should be published in the manner and 
at the time when they were published. Such plea may justify the defamatory 
matter in the sense specified, if any, in the count, or in the sense which the 
defamatory matter bears without any such specification ; or separate pleas 
justifying the defamatory matter in each sense may be pleaded separately to 
each as if two libels had been charged in separate counts. 

2. Every such plea must be in writing, and must set forth the particular 
fact or facta by reason of which it was for the public good that such matters 
should be so published. The prosecutor may reply generally denying the truth 
thereof. 

3. The truth of the matters charged in an aUeged libel shall in no case be 
inquired into without such plea of justification unless the accused is put upon 
his trial upon any indictment or information charging him with publishing the 
libel knowing the same to. be false, in which case evidence of the truth may be 
given in order to negative the allegation that the accused knew the libel to be 
false. 

4. The accused may, in addition to such plea, plead not guilty and such 
pleas shall be inquired of together. 

5. If when such plea of justification is pleaded the accused is convicted, 
the court may, in pronouncing sentence, consider whether his guilt is aggravatod 
or mitigated by the plea. R. S. C. c. 174, ss. 148, 149, 150 & 151. 

Trial in Province Whebe Newspaper Published. 

640. (2) Every proprietor, publisher, editor or other person charged with the 
publication in a newspaper of any defamatory libel shall be dealt with, indicted, 
tried and p\mished in the province in which he resides, or in which such news- 
paper is printed. 51 V. c. 44, s. 2. 

JunoR Cannot be Ordered to Stand Aside, 
660. The right of the Crown to cause any juror to stand aside until the' 
panel iuvs been gone through shall not be exercised on the trial of any 
indictment or information by a private prosecutor for the publication of a 
defamatory libel. R. S. C. o. 174, s. 166. 

Trial and Verdict. 

71!). On the trial of any indictment or information for the making or 
publisiiing of any defamatory libel, on the plea of not guilty pleaded, the jury 
Bwom to try the issue may give a general verdict of guilty or not guilty upon 
CiiiM. Law— 20 




V 




306 



DEFAMATORY LIBEL. 




[Sec, 302 



the whole matter put in issue upon such indictment or information, and shall 
not be required or directed, by the court or judge before whom such indictment 
or information is tried, to find the defendant guilty merely on the proof of 
publication by such defendant of the paper charged to be a defamatory libel 
and of the sense asoril)ed to the same in such indictment or information ; but 
the court or judge before whom such trial is had shall, according to the discre- 
tion of such court or judge, give the opinion and direction of such court or 
judge to the jury on the matter in issue as in other criminal cases ; and the 
jury may, on such issue, find a special verdict if they think fit so to do ; and the 
defendant, if found guilty, may move in arrest of judgment on such ground 
and in such manner as he might have done before the passing of this Act 
JR. S, 0. 0. 174, 8. 152. 32 Geo. III. o. 60. ss. 1, 2, 3, 4 (Imp.). 

Costs. 
833. In the case of an indictment or information by a private prosecutor 
lor the publication of a defamatory libel if judgment is given for the defendant 
he shall be entitled to recover from the prosecutor the costs incurred by him 
by reason of such indictment or information either by warrant of distress 
issued out of the said court, or by action or suit as for an ordinary debt. 
B. S. C. c. 174, ss. 153 & 154. 

Costs against a defendant fall under s. 832. 

The following sections of c. 163, E. S. C. are unrepealed. 

6. Every person against whom any criminal proceedings are' commenced 
or prosecuted in any manner for or on account of or in respect of the publica- 
tion of any report, paper, votes or proceedings, by such iierson or by his ser- 
vant, by or under the authority of any Legislative Council, Legislative 
Assembly or House of Assembly, may bring before the court in which such 
proceedings are so commenced or prosecuted, or before any judge of the same, 
first giving twenty-four hours' notice of his intention so to do, to the prosecutor 
in such proceedings, or to his attorney or solicitor, a certificate under the hand 
of the speaker or clerk of any Legislative Council, Legislative Assembly or 
House of Assembly, as the case may be, stating that the report, paper, 
votes or proceedings as the case may be, in resi^ect whereof such criminal pro- 
ceedings have been commenced or prosecuted, was or were published by sucii 
person, or by his servant, by order or under the authority of any Legislative 
Council, Legislative Assembly or House of Assembly, as the case may be, 
together with an affidavit verifying such certificate ; and such court or judge 
shall thereupon immediately stay such criminal proceedings, and the same 
shall be and shall be deemed and taken to be finally put an end to, detennined 
and superseded by virtue hereof. 24 V. (P. E. I.), c. 31, s. 1. 3-4 V. c. 9, 
e. 1 (Imp.). 

7. In case c' any criminal proceedings hereafter commenced or prnseciited 
for or on account or in respect of the publication of any copy of sucli report, 
paper, votes or proceedings, the defendant, at any stage of the proceedings, 
may lay before the court oi" judge such re|X)rt, paper, votes or proceedings, and 
•uch copy, with an affidavit verifying such report, paper, votes or proceedings, 
and the correctness of such copy ; and the court or judge shall immediately 
stay such criminal proceedings, and the same shall be and shall be deemed to 
be finally put an end to, determined and 8Uperse<led by virtue hereof. 24 V. 
(P.E.L), c. 31, 8. 2. 3-t V. c. 9. s. 2 (Imp.). 



GENERAL REMARKS. 



307 



■1 W t 



LARCENY. 



GENERAL REMARKS. 



(From 2nd Edition.) 

Larceny, at common law, is the wrongful taking and 
carrying away of the personal goods of any one from his 
possession, with a felonious intent to convert them to the 
use of the offender, without the consent of the owner : 2 
East, P. C. 553 ; the word " felonious " showing that there 
is no colour of right to excuse the act, and the " intent " 
being to deprive the owner permanently of his property : 
E. V. Thurborn, 1 Den. 387 ; R. v. Guernsey, IF. & F. 
394 ; R. V. Holloway, 1 Den. 370 ; 2 Russ. 146, note by 
Greaves; R. v. Middleton, 12 Cox, 417. 

It is not, however, an essential ingredient of the offence 
that the taking should be for a cause of gain, lucri causa ; 
a fraudulent taking, with intent wholly to deprive the 
owner of his property, or with intent to destroy it, is 
sufficient. 

Larceny is either simple, that is, unaccompanied by any 
other aggravating circumstance, or compound, that is, 
when it is accompanied by the aggravating circumstances 
of taking from the house or person, or both. 

Larceny was formerly divided into grand larceny and 
petit larceny ; but this distinction is now abolished. 

By B. 857, ^)os^, a more severe punishment may be 
inflicted when the value of the article stolen is over two 
hundred dollars, but then this value must be alleged in the 
indictment and duly proved on the trial, otherwise the 
larceny is punishable under s. 856, when no special pun- 
ishment is provided for. 





308 LARCENY. 

The requisites of the offence are : 

The taking. 

The carrying away. 

The goods taken. 

The owner of the goods 

The owner's dissent from the taking. 

The felonious intent in taking. 

THE TAKING. 

To constitute the crime of larceny at common law there 
must be a taking or severance of the thing from the actual or 
constructive possession of the owner ; for all felony includes 
trespass, and every indictment must have the words feloni- 
ously took as well as carried away ; from whence it follows 
that, if the party be guilty of no trespass in taking the 
goods, he cannot be guilty of felony in carrying them 
away : 1 Hawk. p. 142. As in the case of a wife carry- 
ing away and converting to her own use the goods of her 
husband, for husband and wife are one person in law, and, 
consequently, there can be no taking so as to constitute 
larceny : 1 Hale, 514 ; and the same if the husband be 
jointly interested with others in the property so taken: 
R. v. Willis, 1 Moo. 375 ; see now s. 805, post. 

The taking, however, may be by the hand of another : 
2 East, P. C. 555 ; as if the thief procure a child within 
the age of discretion to steal goods for him, it will be the 
same as if he had taken them himself, and the taking in 
such case should be charged to him : 1 Hale, 507. 

Where the offender unlawfully acquired the possession 
of goods, as by fraud or force, with an intent to steal them, 
the owner still retaining his property in them, such offend- 
er will be guilty of larceny in embezzling them. There- 
fore, hiring a horse on pretense of taking a journey, and 
immediately selling it, is larceny; because the jury found the 
defendant auted anitno furandi in making the contract, and 
the parting with the possession merely bad not changed the 
nature of the property: R. v. Pear, 1 Leach, 212. And so, 



;.*,il 



GENERAL REMARKF 



309 



where a person hires a post-cdaise for an indefinite period, 
and converts it to his own use, he may be convicted of lar- 
ceny if his original intent was felonious : R. v. Semple, 1 
Leach, 420. 

So, where the prisoner, intending to steal the mail bags 
from the post office, procured them to be let down to him by 
a string from the window of the post office, under pretense 
that he was the mail guard, he was held guilty of larceny : 
E. V. Pearce, 2 East, P. C. 603. 

Where the prisoner was hired for the special purpose of 
driving sheep from one fair to another, and, instead of doing 
80, drove them, the following morning after he received 
them, a different road, and sold them ; the jury having found 
that, at the time he received the sheep, he intended to con- 
vert them to his own use, and not drive them to the specified 
fair, the judges were unanimously of opinion that he was 
rightly convicted of larceny : R. v. Stock, 1 Moo. 87. 

Where the prisoner covered some coals in a cart with 
elack, and was allowed to take the coals away, the owner be- 
lieving the load to be slack, and not intending to part with 
his property in the coals, it was held a larceny of the 
coals : R. v. Bramley, L. & C. 21. 

Prevailing upon a tradesman to bring goods proposed to 
be bought to a given place, under pretense that the price 
shall then be paid for them, and further prevailing upon him 
to leave them there in the care of a third person, and then 
getting them from that person without paying the price, is a 
felonious taking, i(, ab hiitio, the intention was to get the 
goods from the tradesman and not pay for them : R. v. Camp- 
bell, 1 Moo. 179. 

In another case a person by false pretenses induced a 
tradesman to send by his servant to a particular house 
goods of the value of two shillings and ten pence, with 
change for a crown piece. On the way he met the ser- 
vant, and induced him to part with the goods and the 
change for a crown piece, which afterwards was found to 



If 



.'■> 






310 



LARCENY. 



be bad. Both the tradesman and the servant swore that 
the latter had no authority to part with the goods or change 
without receiving the crown piece in payment, though the 
former admitted that he intended to sell the goods, and 
never expected them back again: it was held that the 
offence amounted to larceny : B. v. Small, 8 C. & P. 46. 

The prosecutor met a man and walked with him 
During the walk, the man picked up a purse, which he said, 
he had found, and that it was dropped by the prisoner. 
He then gave it to the prisoner who opened it, and there 
appeared to be about forty pounds in gold in it. The pris- 
oner appeared grat'i'ul, and said he would reward the man 
and the prosecutor hr restoring it. The three then went 
to a public house and had some drink. Prisoner then 
showed some money, and said if the man would let him 
have ten pounds, and let him go out of his sight, he would 
not say what he would give him. The man handed what 
seemed to be ten pounds in money, and the prisoner and 
prosec':;tor then went out together. They returned, and 
prisoner appeared to give the ten pounds back and five 
pounds more. Prisoner then said he would do the same 
for the prosecutor, and by that means obtained three 
pounds in gold, and the prosecutor's watch and chain from 
him. The prisoner and the man then left the public house, 
and made off with the three pounds and the watch and 
chain At the trial the prosecutor said he handed the 
three pounds and the watch and chain to the men in terror, 
being afraid they would do something to him, and not ex- 
pecting they would give him five pounds. Held, that the 
prisoner was properly convicted of larceny : R. v. Hazeli, 
11 Cox, 697. 

Prosecutor sold onions to the prisoners who agreed to 
pay ready money for them. The onions were unloaded at 
a place indicated by the prisoners, and the prosecutor was 
then induced to make out and sign a receipt which the 
prisoners got from him, and then refused to restore 



GENERAL REMARKS. 



the onions or pay the price. The jury 
prisoners of larceny, and said that they never Intended to 
pay for the onions, and that the fraud was meditated by 
them from the beginning. Held, that the conviction was 
right : K. v. Slowly, et al, 12 Cox, 269. 

So, taking goods the prisoner has bargained to buy is 
felonious if, by the usage, the price ought to be paid before 
tbey are taken, and the owner did not consent to their 
being taken, and the prisoner, when he bargained for them, 
did not intend to pay for them, but meant to get them into 
bis possession and dispose of them for his own benefit 
without paying for them : R. v. Gilbert, 1 Moo. 185. 

So, getting goods delivered into a hired cart, on the ex- 
press condition that the price shall be paid for them before 
tbey are taken from the cart, and then, getting them from 
tbe cart without paying the price, will be larceny if the 
prisoner never had the intention to pay, but had, ab initio^ 
the intention to defraud : R. v. Pratt, 1 Moo. 250. 

So, where the prosecutor, intending to sell his horse, 
sent his servant with it to the fair, but the servant had no 
authority to sell or deal with it in any way, and the defend- 
ants, by fraud, induced the servant to part with the pos- 
session of the horse under colour of an exchange for an- 
other, intending all the while to steal it ; this was holden 
to be larceny: R. v. Sheppard, 9 C. & P. 121. 

So, where the prisoner, pretending to be the servant of 
a person who had bought a chest of tea deposited at the 
East India Company's warehouse, got a request paper and 
permit for the chest, and took it away with the assent of a 
person in the company's service who had the charge of it, 
it was held that this was larcenv : R. v. Hench, R. & R. 163. 

Prisoner and a confederate went to prosecutor's shop to 
buy something, and put down a florin in payment. Prose- 
cutor put the florin into the till and placed the change on 
the counter, which the prisoner took up. The confederate 

1, "You need not have changed," and threw down a 



# 







h0 



312 



LARCENY. 



penny on the counter, which the prisoner took up, and put 
a sixpence in silver and sixpence in copper down, and asked 
prosecutor to give him a shilling for it. Prosecutor took a 
shilling from the till, and put it on the counter win n pri- 
soner said, " You may as well give me the florin back and 
take it all." Prosecutor took the florin from the till and 
put it on the counter, expecting to receive two shillings of 
the prisoner's money in lieu of it. Prisoner took up the 
florin, and prosecutor took up the silver sixpence and the 
sixpence in copper, and the shilling put down by herself 
and was putting them in the drawer when she saw that 
she had only got one shilhng of the prisoner's money and 
lier own shilling ; but, at that moment, her attention was 
diverted by the confederate, and both confederate and pri- 
soner quitted the shop. Held, upon a case reserved, that 
this was a case of larceny, for the transaction of exchange 
was not complete ; prosecutor had not parted with the 
property in the florin : R. v. McKale, 11 Cox, 32 ; E. v. 
Eussett, 17 Cox, 534. 

On the other hand, if the owner give his property volun- 
tarily, whatever false pretense be used to obtain it, no 
felony can be committed : 1 Hale, 506 ; R. v. Adams, H. & 
R. 225 ; R. v. Buckmaster, 20 Q. B. D. 182, W^rb. Lead. 
Cns. 158. 

Thus where, in a case of ring-dropping, the prisoners 
prevailed on the prosecutor to buy the share of the other 
party, and the prosecutor was prevailed on to part with his 
money, intending to part with it for ever and not with the 
possession of it only, it was held by Coleridge, J., that this 
was not a larceny: R. v. Wilson, 8 C. & P. Ill; see R. v. 
Solomons, 17 Cox, 93, Warb. Lead. Cas. 160; R. v. Russett, 
17 Cox, 534. 

It was the duty of the prisoner to ascertain the amount 
of certain dock dues payable by the prosecutors, and hav- 
ing received the money from their cash keeper to pay the 
dues to those who were entitled to them. He falsely 



GENERAL REMARKS. 



313 



represented a larger sum to be due than was due, and, pay- 
ing over the real amount, converted the difference to his 
own use. This was held not to be a larceny : R. v. Thomp- 
son, L. & C. 283. 

So, where the prisoner was sent by his fellow workmen 
to get their wages, and received the money from the 
employer done up in separate pieces of paper, and converted 
the money to his own use, it was held upon an indictment 
laying the property in the employer that the prisoner could 
not be convicted, he being the agent of the workmen : E. v. 
Barnes, 12 Jur. N. S. 549; and see R. v. Jacobs, 12 Cox, 151. 
A cashier of a bank has a general authority to part v*i'. ]• 
his employer's money in payment of such cheques as •...• 
may think genuine ; where, therefore, money has h. 
obtained from a cashier at a bank on a forged clii^^ue 
knowingly it does not amount to the crime of larceny : R. 
T. Prince, 11 Cox, 193. In this case Bovill, C.J., said: 
"The distinction between larceny and false pretenses is 
very material. The one is a felony and the other is a mis- 
demeanour; and although, by reason of modern legislation. 
it has become not of so much importance as formerly, it is 
still desirable to keep up the distinction. To constitute a 
larceny there must be a taking of the property against 
the will of the owner, which is the essence of the crime of 
larceny. The authorities cited by the counsel for the 
prisoner show that where the property has been obtained 
voluntarily from the owner, or a servant acting within the 
scope of his authority, the offence does not amount to 
larceny. The cases cited for the prosecution were cases 
where the servant who parted with the property had a 
limited authority only. In the present case the cashier of 
the bank was acting within his authority in parting with 
the pcjf'session and property in the money. Under these 
circumstances the conviction must be quashed." 

And if credit be given for the property, for ever so short 
a time, no felony can be committed in converting it: 2 East, 

P.C.677. 



314 



LARCENY. 




Thus, obtaining the delivery of a horse sold, on promise 
to return immediately and pay for it, and riding off, and not 
returning, is no felony: R. v. Harvey, 1 Leach, 467; but 
see now s. 305, post. 

So, where the prisoner, with a fraudulent intent to 
obtain goods, ordered a tradesman to send him a piece of 
silk, to be paid for on delivery, and upon the silk being sent 
accordingly gave the servant who brought it bills which 
were mere fabrications, and of no value ; it was holden not 
to be larceny on the ground that the servant parted with 
the property by accepting such payment as was offered, 
though his master did not intend to give the prisoner credit: 
Parkes's Case, 2 Leach, 614. 

The prisoner, having entered into a contract with the 
prosecutors for the purchase of some tallow, obtained the 
delivery orders from the prosecutors by paying over to 
them a cheque for the price of the tallow, and, when the 
che'.j[ue was presented, there were no assets. Held, not to 
be a larceny of the delivery orders by a trick, but a lawful 
possession of them by reason of the credit given to the 
prisoner in respect of the cheque: R. v. North, 8 Cox, 433. 

To constitute larceny at common law there must be an 
original felonious design. Lord Coke draws a distinction 
between such as gain possession aninio furandi and such 
as do not. He says : " The intent to steal must be when it 
comes to his hands or possession ; for if he hath the pos- 
session of it once lawfully, though he hath the animm 
furandi afterwards, and carrieth it away, it is no larceny." 
Therefore, when a house was burning, and a neighbour took 
some of the goods to save them but afterwards converted 
them to his own use, it was held no felony : 1 Leach, 411. 

But if the original intent be wrongful, though not a 
felonious trespass, a subsequent felonious appropriation i3 
larceny. So, where a man drove away a flock of lambs 
from a field, and in doing so inadvertently drove away 
along with them a lamb, the property of another person, 



GENERAL REMARKS. 



315 



and, as soon as he discovered that he had done 80,i|Bold 
the lamb for his own use, and then denied all knowledge of 
it. Held, that as the act of driving the lamb from the 
geld in the first instance was a trespass, as soon as 
he resolved to appropriate the lamb to his own use the 
trespass became a felony: R. v. Riley, Dears. 149, 6 Cox, 88. 

It is peculiarly the province of the jury to determine 
with what intent any act is done ; and, therefore, though 
in general he who has a possession of anything on delivery 
by the owner cannot commit larceny thereof at common 
law, yet, that must be understood, first, where the pos- 
session is absolutely changed by the delivery, and next, 
where such possession is not obtained by fraud, and with a 
felonious intent. For if, under all the circumstances of 
the case, it be found that a party has taken goods from the 
owner, although by his delivery, with an intent to steal 
them such taking amounts to felony : 2 East, P. C. 685. 

Overtures were made by a person to the servant of a 
publican to induce him to join in robbing his master's till. 
The servant communicated the matter to the master, and, 
some weeks after the servant, by the direction of the 
master, opened a communication with the person who had 
made the overtures, in consequence of which he came to 
the master's premises. The master, having previously 
marked some money, it was, by his direction, placed upon 
the counter by the servant in order that it might be taken 
up by the party who had come for the purpose. It was so 
taken up by him. Held, larceny in such party : R. v. 
Williams, 1 C. & K. 195. 

If the party obtained possession of the goods lawfully, 
as upon a trust for, or on account of, the owner, by which 
he acquires a special property therein, he cannot at common 
law be afterwards guilty of felony in converting them to 
his own use, unless by some new and distinct act of taking, 
as by severing part of the goods from the rest, with intent 
to convert them to his own use, he thereby determines the 





316 



LARCENY. 



pri1»ity of the bailment and the special property thereby 
conferred upon him : 1 Hale, 504 ; 2 East, P. C. 564. But 
that is not now law ; see s. 305, post. 

'Sec E. V. Wells, 1 F. & F. 109, where it was held that 
a carrier who, receiving money to procure goods, obtained 
and duly delivered the goods but fraudulently retained the 
money, may be convicted of larceny as a bailee. 

A man cannot, however, be convicted of larceny as a 
bailee unless the bailment was to re-deliver the very same 
chattel or money : E. v. Hoare, 1 F. & F. 647 ; E. v. 
Garrett, 2 F. & F. 14 ; E. v. Hassall, L. & C. 68. 

The prisoner was intrusted by the prosecutor with 
money to buy a load of coals, which were to be brought to 
the prosecutor's by the prisoner in his own cart, the 
prisoner being paid for his services including the use of his 
horse and cart. He bought a load of coals in his own 
name, and on the way to the prosecutor's abstracted a 
portion of the coal and converted it to his own use, 
delivering the rest of the coal to the prosecutor as and 
for the whole load. Held, that he was rightly convicted of 
larceny as a bailee : E. v. Bunkall, L. & C. 371, 9 Cox, 
419. 

A carrier employed by the prosecutor to deliver in his, 
the prisoner's, cart a boat's cargo of coals to persons 
named in a list, to whom only he was authorized to deliver 
them, and having fraudulently sold some of the coals and 
appropriated the proceeds, was properly convicted of larceny 
as a bailee : E. v. Davies, 10 Cox, 239. 

If the goods of a husband be taken with the consent or 
privity of the wife it is not larceny: E. v. Harrison, 1 
Leach, 47 ; E. v. Avery, Bell, 150 ; see now s. 813, jmt. 

Howover, it is said that if a woman steal the (^[oodsof 
her husband, and give them to her avowterer, who, know- 
ing it, carries them away, the avowterer is guilty of felony: 



GENERAL REMARKS. 



317 



Palt. c. 104. And where a stranger took the goods of the 
husband jointly with the wife this was holden to be larceny 
in him, he being her adulterer : R. v. Tolfree, 1 Moo. 243, 
overruling R.V.Clarke, 1 Moo. 376, note (a) ; see s. 313, po«^ 

Also, in R. V. Featherstone, Dears. 369, the prisoner 
was charged with stealing twenty-two sovereigns and some 
wearing apparel. The prosecutor's wife took from the pro- 
secutor's bedroom thirty-five sovereigns and some articles 
of clothing, and left the house, saying to the prisoner, who 
was in a lower room : " It's all right, come on." The 
prisoner and the prosecutor's wife were afterwards seen 
together, and were traced to a public house where they 
slept together. When taken into custody the prisoner had 
twenty-two sovereigns on him. The jury found the prisoner 
guilty on the ground that he received the sovereigns from 
the wife knowing that she took them without the authority 
of her husband. Upon a case reserved it was held that 
the conviction was right. Lord Campbell, C.J., in deliver- 
ing the judgment, said : " We are of opinion that this con- 
viction is right. The general rule of law is that a wife 
cannot be found guilty of larceny for stealing the goods of 
her husband, and that is upon the principle that the hus- 
band and the wife are, in the eye of the law, one person ; 
but this rule is properly and reasonably qualified when she 
becomes an adulteress. She thereby determines her quality 
of wife, and her- property in her husband's goods ceases ": 
m R. V. Berry, Bell, 95. 

And 80 it is even though no adultery has been com- 
mitted, but the goods are taken with the intent that the 
wife shall elope and live in adultery with the stranger : 
E. V. Tollett, C. & M. 112 ; R. v. Thompson, 1 Den. 649. 

And if a servant, by direction of his master's wife, 
carries off his master's property, and the servant and wife 
go off together with the property with the intention of 
committing adultery, the servant may be indicted for 
stealing the property: R. v. Mutters, L. & C. 511. 



TX 



318 



LARCENY. 



It seems, however, that if a wife elopes with an adul- 
terer it is no larceny in the adulterer to assist in carrying 
away her necessary wearing apparel : R. v. Fitch, Dears. 
& B. 187, overruling on this point the direction of Cole- 
ridge, J., in R. V. ToUett, cited supra ; see s. 313, post. 

The prisoner who had lodged at the prosecutor's house 
left it, and the next day the prosecutor's wife also left 
taking a bundle with her, which, however, was not large 
enough to contain the things which, the evening she left, it 
was found had been taken from the house. Two days 
after all the things were found in the prisoner's cabin, or 
on his person, in a ship in which the prosecutor's wife 
was, the prisoner and the prosecutor's wife having taken 
their passage in the ship as man and wife. It was 
held that from these facts the jury were justified in drawin" 
the inference that the prisoner had received the property 
knowing it to have been stolen : R. v. Deer, L. & C. 240. 
But an adulterer cannot be convicted of stealing the goods 
of the husband brought by the wife to his house, in which 
the adultery is afterwards committed, merely upon evidence 
of their being there, unless they be traced to his personal 
possession : R. v. Rosenberg, 1 C. & K. 233. When a wife 
absconds from the house of her husband with her avowterer 
the latter cannot be convicted of stealing the husband's 
money missing on their departure, unless he be proved to 
have taken some active part, either in carrying away or in 
spending the money stolen : R. v. Taylor, 12 Cox, 627. 

Nor can an avowterer be found guilty of felonious 
receiving of the husband's property taken by the wife, as 
a wife cannot steal her husband's property : R. v. Kenny, 
13 Cox, 397 ; see now s. 313, 2^'JSt. 

The prisoner eloped with the prosecutor's wife, travel- 
ling in a cart which the wife took from her husband's yard. 
The prisoner sold the pony, cart and harness in the 
presence of the wife, who did not object to the sale, and 
received the proceeds, which she retained after paying the 



GENERAL REMARKS. 



319 



,i-.r- 



prisoner a sovereign he had expended in obtaining lodging 
while they were living in a state of adultery. Held, that 
the presence of the woman did not alter the offence ; that 
the fact that he negotiated the sale and received part of the 
proceeds was sufficient ; from the circumstances, the 
prisoner must have known that the pony, cart and harness 
\\ere not the property of the woman ; and that if the jury 
were of opinion he had that knowledge they were bound 
to convict him : K. v. Harrison, 12 Cox, 19 ; E. v. Flat- 
man, 14 Cox, 396. ^ 

Under certain circumstances, indeed, a man may com- 
mit felony of his own goods ; as if A. bail goods to B. and 
afterwards, animo furandi, steal the goods from B. with 
design to charge him for the value of them, this is felony : 
1 Hale, 513 ; 2 East, P. C. 558. 

So where A., having delivered money to his servant to 
carry to a certain place, disguised himself, and robbed the 
servant on the road, with intent to charge the hundred, 
,hiB was held robbery in A. : 2 East, P. C. 55b. 

If a man steal his own goods from his own bailee, 
though he has no intent to charge the bailee but his 
intent is to defraud the King, yet, if the bailee had an in- 
terest in the possession and could have withheld it from 
the owner, the taking is a larceny : R v. Wilkinson, R & 
R. 470. But it is said in Eoscoe, Cr. Evid. 697 : " It may 
be doubted whether the law has not been som "hat dis- 
torted in this case in order to punish a flagrant iraud." 

Bishop, 2 Cr. L. 790, says : ** If one, therefore, has 
transferred to another a special property in goods, retaining 
ill himself the general ownership, or, if the law has made 
such transfer, he commits larceny by taking them with 
felonious intent." 

So if a man steal his goods in custodia legis. But " if 
the goods stolen were the general property of the defend- 
ant, who took them from the possession of one to whose 
care they had been committed, as for instance, from an 



f * 



320 



LARCENY. 



officer seizing them on an execution against the defendant, 
it must he shown that the latter knew of the execution and 
seizure ; otherwise the required intent does not appear. 
The presumption, in the absence of such knowledge, would 
be, that he took the goods supposing he had the right sa 
to do": 2 Bishop, Cr. Proc. 749 ; see a. 306, post. 

If a part owner of property steal it from the person in 
whose custody it is, and who is responsible for its safety, he 
is guilty of larceny : E. v. Bramley, K. & B. 478. 

A wife may steal the goods of her husband which have 
been bailed or delivered to another person, or are in the 
possession of a person who has a temporary special pro- 
perty in them: 1 Hale, 513. 

The wife cannot commit larceny in the company of her 
husband ; for it is deemed his coercion, and not her own 
voluntary act. Yet, if she do in his absence, and by his 
mere command, she is then punishable as if she were sole : 
E. V. Morris, E. & E. 270; E. v. Eobson, L. & C. 93; see 
now s. 13, ante. 

THE CARRYING AWAY. 

{Sec s. 305, s-s, 4, post) 

To constitute larceny there must be a carrying} away, 
asportation, as well as a taking. The least removing of 
the thing taken from the jAace where it was before is suffi- 
cient for this purpose, though it be not quite carried off. 
And, upon this ground, the guest, who, having taken off the 
sheets from his bed, with an intent to steal them, carried 
them into the hall, and was apprehended before he could 
get out of the house, was adjudged guilty ol larceny. So, 
also, was he, who, having taken a horse in a close, with an 
intent to steal him, was apprehended before he could get 
him out of the close. And such was the case of him who, 
intending to steal plate, took it out of the trunk wherein it 
was, and laid it on the floor, but was surprised before lie 
could remove it any further: 2 East, P. C. 555; 3 Burn, 
214. Or if a servant, animofurandi, take his master's hay 



W: 



GENERAL REMARKS. 



321 



U 



from bis stable, and put it into his master's wagf^on : B. v. 
Gruncell, 9 C i& P. 366. 

H. was indicted for stealing a quantity of currants » 
which were packed in the forepart of a waggon. The pri- 
soner had laid hold of this parcel of currants, and had got 
near the tail of the waggon with them, when be was appre- 
hended ; the parcel was afterwards found near the middle 
of the waggon. On tnis case being referred to the twelve 
judges they were unanimously of opinion that, as the pri- 
soner had removed the property from the spot where it was 
originally placed, with intent to steal, it was a taking and 
carrying away: Cozlett's Case, 2 East, P. C. 556. 

Prisoner bad lifted up a bag from the bottom of a boot 
of a coach, but was detected before he had got it out ; it did 
not appear that it was entirely removed from the space it 
at first occupied in the boot, but the raising it from the 
bottom had completely removed each part of it from the 
space that specified part occupied: Held, that this was a 
complete asportation: R v. Walsh, 1 Moo. 14. 

The offence of simple larceny is complete, if the defend- 
ant drew a book from the inside pocket of the prosecutor's 
coat about an inch above the top of the pocket, though the 
prosecutor then suddenly putting up his hand the defendant 
let the book drop, and it fell back into the prosecutor's 
pocket: K. v. Thompson, 1 Moo. 78. 

On the other hand, a mere change of position of the 
goods will not suffice to make out a carrying away. So,. 
where W. was indicted for stealing a wrapper and some 
pieces of linen cloth, and it appeared that the linen was 
packed up in the wrapper in the common form of a long 
square, which was laid length-way in a waggon, and that- 
the prisoner set up the wrapper on one end in the waggoa 
for the greater convenience of taking the linen out, and cut 
the wrapper all the way down for that purpose, but was 
apprehended before he had taken anything ; all the judges 
agreed that this was no larceny, although his intention to 

CKiii. Law— 21 



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T ! 



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322 



LARCENY. 



steal was manifest. For a carrying away, in order to con- 
stitute felony, must be a removal of the goods from the 
place where they were; and the felon must, for the instant 
at least, have the entire and absolute possession of them: 
E. V. Cherry, 2 East, P. C. 656. 

So, where one had his keys tied to the strings of his 
purse in his pocket, which W. attempted to take from him 
and was detected with the purse in her hand, but the 
strings of the purse still hung to the owner's pocket by 
means of the keys, this was ruled to be no asportation: 
Wilkinson's case, 1 Leach, 821 ; see s. 711, post, 

8o in another case, where A. had his purse tied to his 
"girdle, and B. attempted to rob him ; in the struggle the 
girdle broke, and the purse fell to the ground ; B. not hav- 
ing previously taken hold of it, or picked it up afterwards, 
it was ruled to be no taking : 1 Hale, 633 ; see b. 711, post. 

Upon an indictment for robbery the prisoner was found 
to have stopped the prosecutor as he was carrying a feather 
bed on his shoulders, and told him to lay it down, or be 
would shoot him, on which the prosecutor laid the bed ou 
the ground, but the prisoner was apprehended before be 
could take it up so as to remove it from the spot where it 
lay, the judges were of opinion that the offence was not 
complete : Farrell's case, 2 East, P. C. 657. 

Where the prisoner, by means of a pipe and stopcock, 
turned off the gas belonging to a company before it came 
into the meter, and so consumed the gas, it was held tbat 
there was a sufficient severance of the gas in the entrance 
pipe to constitute an asportavit : B. v. White, Dears. 203 ; 
R. v. Firth, 11 Cox, 234. 

If the thief once take possession of the thing the offence 
is complete, though he afterwards return it : 3 Burn, 215. 

Where it is one continuing transaction, though there be 
several distinct asportations in law by several persons, yet 
all may be indicted as principals who concur in ibe felony 



GENERAL REMARKS. 



323 



Kifore the final carrying away of the goods from the virtual 
custody of the owner; 2 East, P. C. 567; and if several 
persons act in concert to steal a man's goods, and he is 
induced by fraud to trust one of them, in the presence of 
the others, with the possession of the goods, and another 
of them entice him away that the man who has his goods 
may carry them off, all are guilty of felony ; the receipt by 
one is a felonious taking by all : B. v. Standley, B. & B. 
805. 

And where property which the prosecutors had bought 
was weighed out in the presence of their clerk, aud deli- 
vered to their carter's servant to cart, who let other persons 
take away the cart and dispose of the property for his 
benefit jointly with that of the other persons, it was held, 
that the carter's servant, as well as the other persons, 
was guilty of larceny at commou law : B. v. Harding, B. 
& K. 125. 

THE GOODS TAKEN. 

The property taken must, to constitute larceny at com- 
mon law, be personal property, and of some intrinsic value, 
though it need not be of the value of some coin known to 
the law : B. v. Morris, 9 C. & P. 349 ; 3 Burn, 216 ; B. v. 
Walker, 1 Moo. 155 ; see s. 303, post. 

Things real, or which savour of the realty, choses in 
action, as deeds, bonds, notes, etc., cannot be the subject 
of larceny, at common law : see s. 303, post. 

No larceny, at common law, can be committed of such 
animals in which there is no property, either absolute or 
qualified; as of beasts that are fene natarce and unre- 
claimed. But if they are reclaimed or confined, or are 
practically under the care and dominion of the prosecutor 
and may serve for food, it is otherwise : see s. 304, post. 

So young pheasants, hatched by a hen, and under the 
care of the hen in a coop, although the coop is in a field at 
a distance from the dwelling-house, and although the 
pheasants are designed ultimately to be turned out and to 









I . 



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' I 



824 



LARCENY. 



become wild, are the subject of larceny: B. v. Cory, lo 
Cox, 23. 

Partridges were reared from eggs by a common hen ; 
they could fly a little, but still remained with the hen as 
her brood, and slept under her wings at night, and from 
their inability to escape were practically in the power and 
dominion of the prosecutor: Held, that they were the 
subject of larceny at common law : R v. Shickle, 11 Cox, 189. 

The prisoner was indicted for stealing one dead par- 
tridge, and the proof was that the partridge was wounded, 
but was picked up or caught by the prisoner while it was 
alive but in a dying state : Held, that the indictment was 
not proved : R v. Eoe, 11 Cox, 554. What value necessary 
in property to be subject to larceny : R. v. Edwards, Warb. 
Lead. Cas. 132. 

Rabbits were netted, killed, and put in a place of de- 
posit, \iz : a ditch, on the land of the owner of the soil on 
which the rabbits were caught, and some three houro after- 
wards the poachers came to take them away, one of whom 
was captured by gamekeeper a wbc bad previously found 
the rabbits, and lay in wait for the poachers : Held, that 
this did not amount to larceny : R v. Townley, 12 Cox, 5S), 
Warb. Lead. Cas. 133. But a trespasser who, having cut 
grass on another man's land, leaves it there, but returns 
and carries it away afterwards, commits hrceny : K. v. 
Foley, 17 Cox, 142. Water in the pipes of a company 
may be the subject of larceny : Ferens v. O'Brien, 15 Cox, 
332. 

AGAINST OWNERS CONSENT. 

The taking must be against the will of the owner. The 
primary inquiry to be made is, whether the taking were 
invito domino, that is to say, without the will or approba- 
tion of the owner ; for this is of the very essence of larceny 
and its kindred offence, robbery: 3 Burn, 218. 

But where a servant, being solicited to become an 
accomplice in robbing his master's house, informed bi& 



GENERAL REMARKS. 



325 



master of it, and the master thereupon told him to carry 
on the affair, consented to his opening the door leading to 
the premises, and to his being with the robbers during the 
robbery, and also marked his property, and laid it in a 
place where the robbers wore expected to come : it was 
iiolden, that this conduct of the master was no defence to 
an indictment against the robbers : see Bishop, 1 Cr. L. 
262, and 2 Cr. L. 811. 

An indictment charged the stealing of " nineteen shil- 
lings in money " of the moneys of A. B. It appeared that 
A. B. got into a merry-go-round at a fair, and handed the 
prisoner a sovereign in payment for the ride, asking her 
to give change. The prisoner gave A. B. eleven pence, and 
gaid she would give the rest when the ride was finished. 
After the ride was over the prisoner said A. B. only gave 
her one shilling, and refused to give her the nineteen shil- 
lings change : Held, that the prisoner could not be con- 
victed upon this indictment of stealing nineteen shillings : 
R. V. Bird, 12 Cox, 257. 

B., making a purchase from the prisoner, gave him half 
a sovereign in mistake for a sixpence. Prisoner looked 
at it and said nothing but put it into his pocket. Soon 
afterwards B. discovered the mistake, and returned and 
demanded the restoration of the half sovereign. Prisoner 
said "all right, my boy ; Pll give it to you," but he did not 
return it, and was taken into custody : Held, not to be a 
larceny: R. v. Jacobs, 12 Cox, 151. Obtaining money from 
any one by frightening him, is larceny: R. v. Lovell, 8 
Q. B. D. 185 ; R. v. McGrath, Warb. Lead. Cas. 140. 

THE FELONIOUS INTENT. 

The taking and carrying away must, to constitute lar- 
ceny at common law, be with & felonious intent entertained 
at the time of the taking : see now s-s. 3, s. 305, post. 

Felony is always accompanied with an evil intention, 
and, therefore, shall not be imputed to a mere mistake. 



iJit 



Mti 



'I 
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326 



LARCENY. 



As where persons break open a door in order to execute a 
warrant which will not justify such a proceeding : for in 
such case there is no feloniom intention : 1 Hawk. 142. 

For it is the mind that makes the taking of another's 
goods to be felony, or a bare trespass only ; but, because 
the variety of circumstances is so great, and the complica- 
tion thereof so mingled, that it is impossible to prescribe 
all the circumstances evidencing a felonious intent or the 
contrary, the same must be left to the due and attentive 
consideration of the judge and jury : wherein, the best rule 
is, in doubtful matters, rather to incline to acquittal than 
conviction. Only, in general, it may be observed, that the 
ordinary discovery of a felonious intent is, the party doing 
it secretly, or, being charged with the goods, denying it: 
1 Hale, 509. 

And if goods be taken on claim of right or property in 
them it will be no felony ; at the same time, it will be 
matter of evidence whether they were, bona fide, so taken, 
or whether they were not taken from the person actually 
possessing them, with a thievish and felonious intent, and 
therefore, obtaining possession of goods by a fraudulent 
claim of right, or by a fraudulent pretense of law, and 
then running away with them, would be a felony : 1 Hale, 
607 ; Lemott's case and Farre's case, Kelyng, 64, 65. 

The prisoner had set wires, in which game was caught. 
The prosecutor, a game-keeper, took them away for the 
use of the lord of the manor, while the prisoner was absent. 
The prisoner demanded his wires and game, with menaces, 
and under the influence of fear the prosecutor gave them 
up. The jury found that the prisoner acted under a bona 
fide impression that the game and wires were his property, 
and that he merely, by some degree of violence, gained 
possession of what he considered his own. It was held no 
robbery, there being no animus furandi : R. v. Hall, 3 C. 
& P. 409, 



GENERAL REMARKS. 



327 



And where a letter, directed to J. 0. at St. Martin's 
Lane, Birmingham, inclosing a bill of exchange drawn in 
fa/our of J. 0., was delivered to the defendant, whose name 
was J. 0., and who resided near St. Martin's Lane, 
Birmingham ; but, in truth, the letter was intended for a 
person of the name of J. 0. who resided in Ntiw Hall 
Street ; and the prisoner, who, from the contents of the 
letter, must have known that it was not intended for him, 
applied the bill of exchange to his own use ; the judges 
held that it was no larceny, because at the time when the 
letter was delivered to him the defendant had Uv.t the 
animus furandi : B. v. Mucklow, 1 Moo. 160. 

And to constitute larceny at common law the intent 
must be to deprive the owner, not temporarily, but per- 
manently, of his property : B. v. Philipps, 2 East, P. C. 
66'2 ; B. V. Hemmings, 4 F. & F. 60 ; but see now s. 305, 
post. 

Money was given to the prisoner for the purpose of 
paying turnpike tolls at two gates on his journey. Twelve 
days afterwards, on being asked if he had paid the toll at 
one of the gates, the prisoner said he had not, that he had 
gone by a parish road which only crossed the road at that 
gate, and so no toll was payable there, and that he had 
spent the money on beer for himself and his mates. The 
prisoner having been convicted of larceny of the money, 
but it not appearing on a case reserved as to whether the 
facts proved a larceny, and that the question of felonious 
intention had been distinctly left to the jury, the court 
quashed the conviction : B. v. Deering, 11 Cox, 298. 

In all cases of larceny the questions whether the 
defendant took the goods knowingly or by mistake ; 
whether he took them bona fide under a claim of right or 
otherwise; and whether he took them with an intent to 
return them to the owner, or to deprive the owner of them 
altogether, and to appropriate and convert them to his own 
use, are questions entirely for the consideration of the 



1 * ^ 



\ 




328 



LARCENY. 



jury, 10 be determined by them upon a view of the 
particular facts of the case : 1 Leach, 422. 

Upon an indictment for larceny it appeared that the 
prisoner had been instructed by the wife of the prosecutor 
to repair an umbrella. After the repairs were finished, 
and it had been returned to the prosecutor's wife, a dispute 
arose as to the bargain made. The prisoner thereupon 
carried away the umbrella as a security for the amount 
alleged by him to be due for repairing it. Blackburn, J., 
left it to the jury to say whether the taking by the 
prisoner was an honest assertion of his right, or only a 
colourable pretense to obtain possession of the umbrella ; 
verdict, not guilty: R. v. Wade, 11 Cox, 549. 

A depositor in a post office savings bank obtained a 
warrant for the withdrawal of ten shillings, and presented 
it with bis depositor's book to a clerk at the post office, 
who, instead of referring to the proper letter of advice for 
ten shillings, referred by mistake to another letter of 
advice for eight pounds, sixteen shillings and ten pence, 
and placed that sum upon the counter. The clerk entered 
eight pounds, sixteen shillings and ten pence in the 
depositor's book as paid, and stamped it. The depositor 
took up that sum and went away. The jury found that he 
had the animus furandi at the moment of taking the 
money from the counter, and that he knew the money to 
be the money of the postmaster general when he took it 
up, and found him guilty of larceny. Held, by a majority 
of the judges, that he was properly convicted of larceny. 
Per Cockburn, C.J., Blackburn, Mellor, Lush, Grove, 
Denman and Archibald, JJ., that the clerk and there- 
fore, the postmaster general, having intended that the 
property in the money should belong to the prisoner 
through mistake, the prisoner knowing of the mistake, and 
having the animus furandi at the time, was guilty of 
larceny. Per Bovill, C.J., Kelly, C.B., and Keating, J., 
that the clerk, having only a limited authority under the 



GENERAL REMARKS. 



329 



ii:' 



letter of advice, had no power to part with the property 
jQ the mouey to the prisoner, and that, therefore, the 
conviction was right. Per Figott, B., that, before posses- 
BJoD of the money was parted with, and while it was on the 
counter, the prisoner had the animiu furandi, and took it 
up, and was therefore guilty of larceny. Per Martin, B,, 
Bramwell, B., Brett, J., and Cleasby, B., that the money 
was not taken invito domino, and therefore that there was 
DO larceny. Per Bramwell, B., and Brett, J., that the 
authority of . the clerk authorized the parting with the 
possession and property in the entire sum laid down on the 
counter : B. v. Middleton, 12 Cox, 260, 417. 

Larceny by finding. — As to concealing treasure trove, 
m B. V. Thomas, Warb. Lead. Gas. 79. If a man lose 
goods and another find them, and, not knowing the 
owner, convert them to his own use, this has been said to 
be no larceny, even although he deny the finding of thsm, 
or secrete them. But the doctrine must be taken with 
great limitation, and can only apply where the finder 
Una fide supposes the goods to have been lost or abandoned 
by the owner, and not to a case in which he colours a 
{elonious taking under that pretense : see B. v. Thurborn, 
1 Den. 887, Warb. Lead. Gas. 149, and cases there 
collected. 

The true rule of law resulting from the authorities on 
the subject has been pronounced to be that "if a man find 
goods that have been actually lost, or are reasonably sup- 
posed by him to have been lost, and appropriates them with 
intent to take the entire dominion over them, really believ- 
ing, 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 supposed to be lost, but reason- 
ably believing that the owcer can be found, it is larceny: " 
B. V.Dixon, Dears. 580; B. v. Ghristopher, Bell, 27. 

In R V. Moore, L. & G. 1, on an indictment for stealing 
a bank note, the jury found that the prosecutor had dropped 



lli'li:;;.. 



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■■!.!•>:• I; I 




330 



LARCENY. 



the note in the defendant's shop; that the defendant had 
found it there, and that at the time he picked it up he did 
not know, nor had he reasonable means of knowing, who 
the owner was; that he afterwards acquired knowledge who 
the owner was, and after that converted the note to his own 
use ; that he intended, when he found the note, to take it 
to his own use and deprive the owner of it, whoever he was; 
and that he believed, when he found it, that the owner 
could be found. It was held that upon these findings the 
defendant was rightly convicted of larceny. It is to be 
observed that in the last mentioned case, although the 
prisoner at the time he found the bank note did not know, 
nor had reasonable means of knowing, who the owner was, 
yet that he did believe at tl^e time of the finding that the 
owner could be found. 

The case of B. v. Glyde, 11 Cox, 0. ihows that the 
belief by the prisoner at the time of the finding of the chattel 
that he could find the owner is a necessary ingredient in 
the offence, and that it is not sufficient that he intended to 
appropriate the chattel at the time of finding it, and that 
he acquired the knowledge of who the owner was before be 
converted it to his own use. In that case the prisoner 
found a sovereign on the highway, believing it had been 
accidentally lost; but, nevertheless, with a knowledge that 
he was doing wrong, he at once determined to appropriate 
it, notwithstanding it should become known to him who the 
owner was. The owner was speedily made known to him, 
and the prisoner refused to give up the sovereign. There 
was, however, no evidence that he believed, at the time of 
finding the sovereign, that he could ascertain who the 
owner was, and the prisoner was, therefore, held not guilty 
of larceny. 

In R. V. Deaves, 11 Cox, 227, the facts were th&t the 
prisoner's child, having found six sovereigns in the street, 
brought them to the prisoner, who counted them and told 
some bystanders that the child had found a sovereign. The 



GENERAL REMARKS. 



331 



prisoner and the child then \<rent down the street to the 
place where the child had found the money, and found a 
half' sovereign and a bag. On the same evening, about two 
hours after the finding, the prisoner was told that a woman 
had lost money, upon which the prisoner told her informant 
to mind her own business, and gave her half a sovereign. 
It was held by the majority of the Irish Court of Criminal 
Appeal that this case would not be distinguished from B. 
V. Glyde, supra ; that there was nothing to show that at the 
time the child brought her the money the prisoner knew 
the property had an owner, or, at all events, to show that 
she was under the impression that the owner could be 
found, and that, therefore, the conviction of the prisoner 
for larceny must be quashed. 

Prisoner received from his wife a ten pound Bank of 
England note, which she had found, and passed it away. 
The note was endorsed " E. May " only, and the prisoner, 
when asked to put his name and address on it by the 
person to whom he passed it, wrote on it a false name and 
address. When charged at the police station the prisoner 
said he knew nothing about the note. The jury were 
directed that, if they were satisfied that the prisoner could, 
within a reasonable time, have found the owner, and if 
instead of waiting the prisoner immediately converted the 
note to his own use, intending to deprive the owner of it, 
it would be larceny. The prisoner was convicted but, 
upon a case reserved, it was held that the conviction was 
wrong, and that the jury ought to have been asked whether 
the prisoner, at the time he received the note, believed the 
owner could be found : E. v. Knight, 12 Cox, 102. 

It is clearly larceny if the defendant, at the time ho 
appropriates the property, knows the owner ; and, there- 
fore, where a bureau was given to a carpenter to repair, 
and he foand money secreted in it which he kept and 
converted to his own use, it was held to be larceny : Cart- 
wright v. Green, 2 Leach, 952. 





332 



LARCENY. 



So if a hackney coachman convert to his own use a 
parcel left by a passenger in his coach by mistake, it ii 
felony if be knows the owner, or if he took him up or set him 
down at any particular place, where he might have inquired 
for him : E. v. Wynne, 2 East, P. C. 664 ; B. v. Sears, 1 
Leach, 415. 

So, in every case where the property is not, properly 
speaking, lost, but only mislaid, under circumstances which 
would enable the owner to know where to look for and find 
it, as where a purchaser at a stall of the defendant in a 
market left his purse on the stall, the peison who fraudu- 
lently appropriates property so mislaid is guilty of larceny: 

B. V. West, Dears. 402. 

And in every case in which there is any mark upon the 
property by which the owner may be traced, and the finder, 
instead of restoring the property, converts it to bis own 
use, such conversion will amount to larceny : B. v. Pope, 6 

C. & P. 346 ; B. v. Mole, 1 C. & K. 417 ; B. v. Preston, 2 
Den. 353. 

Doing an act openly doth not make it the less a felony, 
in certain cases : 3 Burn, 223. So, where a person came 
into a seamstress's shop, and cheapened goods, and rau 
away with the goods out of the shop, openly, in her sight, this 
was adjudged to be a felony : Cbiser's Case, T. Baym. 276. 

Beturning the goods will not purge the offence if the 
prisoner took them originally with the intent of depriving 
the owner of them, and of appropriating them to his own 
use. In B. v. Trebilcock, Dears. & B. 453, the jury found 
the prisoner guilty, but recommended him to mercy, 
" believing that he intended immediately to return the 
property:" Held, that the conviction was right: the 
recommendation of the jury is no part of the verdict. 

The felonious quality consists in the intention of the 
prisoner to defraud the owner, and to apply the thing stolen 
to his own benefit or use. 



GENERAL REMARKS. 



338 



The intent need not be lucri caiisa : B. v. Morfit, B. & 
E. 307; E. v. Gruncell, 9 C. & P. 866; E. v. Handley, 
Car.& M. 547 ; E. v. Privett.l Den. 193; E. v. Jonea, 1 Pen» 
188. 

Possession of stolen property recently after its loss, if 
nnexplained, is presumptive evidence that the party in pos- 
session stole it. Such presumption will, however, vary 
according to the nature of the property stolen, and whether 
it be or not likely to pass readily from hand to hand : E. v. 
Partridge, 7 C. «fe P. 651, Warb. Lead. Gas. 182. 

Prisoner was found with dead fowls in his possession 
of which he could give no account, and was tracked to a 
fowl house where a number of fowls were kept, and on the 
floor of which were some feathers corresponding with the 
feathers of one found on the prisoner from the neck of 
which feathers had been removed. The fowl-house, which 
was closed over night, was found open in the morning. 
The spot where the prisoner was found was twelve hundred 
yards from the fowl-house, and the prosecutor, not knowing 
the number of fowls kept, could not swear that he had lost 
any : Held, that there was evidence to support a conviction 
for larceny : E. v. Mockford, 11 Cox, 16 ; $ee E. v. Dredge, 
Warb. Lead. Cas. 135. 

On the first floor of a warehouse a large quantity of 
pepper was kept in bulk. The prisoner was met coming 
oat of the lower room of the warehouse, where he had no 
business to be, having on him a quantity of pepper of the 
same kind as that in the room above. On being stopped 
he threw down the pepper and said, "I hope you will not 
be hard with me." From the large quantity in the ware- 
house it could not be proved that any pepper had been 
taken from the bulk. It was objected that, as there was 
no direct proof that any pepper had been stolen, the judge 
was bound to direct an acquittal, but the court of Criminal 
Appeal held that there was evidence to warrant a oonvio- 
tion: B. v. Burton, 6 Cox, 293. 




1 





334 



LARCENY. 



To obtain, money by the trick known as " ringing the 
changes " is larceny : B. v. Hollis,, 16 Cox, 845. T^^.- j. ' 

A. was indicted for larceny under the following circum« 
stances : — B., intending to lend A. a shilling, handed him 
a sovereign, believing it to be a shilling. A., when he 
received the sovereign, believed it to be a shilling, and did 
not know until subsequently that it was not a sL'Mir 
Immediately A. became aware that it was a soverei^, ., and 
although he knew that E. had not intended to part with 
the possession of a sovereign, but only with the possession 
of a shilling, and although he could easily have returned 
the sovereign to B., fraudulently appropriated it to his own 
use. Prisoner was convicted of larceny. Upon a case re- 
served, seven judges held the conviction right, and seven 
were of opinion that these facts did not constitute larceny : 
E. V. Ashwell, 16 Cox, 1, 16 Q. B. D. 190. 

In B. V. Flowers, 16 Cox, 33, 16 Q. B. D. 648, held, 
that where money or goods have been innocently received 
a subsequent fraudulent appropriation will not render the 
receiver guilty of larceny, the above lastly cited case not 
being an authority to the contrary. 

A declaration made by a prisoner tried on an indictment 
for larceny, before he was charged with the crime, in 
answer to a question asked him where he got the property, 
is evidence on his behalf. 

On the trial of an indictment for larceny of a watch the 
prisoner's counsel called a witness, W., who stated that the 
prisoner was drinking at a public house on the evening 
when the alleged offence was committed, and had the 
watch with him ; that W. went home with the prisoner, 
and they sat down in the bouse ; that while they were 
sitting there the prisoner fell upon the floor and the watch 
fell out of his pocket, and W. picked it up and asked him 
where he got it. His answer to this question was rejected. 
The prisoner being convicted, it was held by the court, ou 
a case reserved, that the evidence should have 



GENERAL REMARKS. 



335 



i i; 



received, and the conviction was quashed : B. v. Ferguson, 
8 Pugs. (N. B.) 612. 

H. and W. were jointly indicted for stealing. H. ^ras 
found guilty, but the jury could not agree as to W., and 
were discharged from giving a verdict as to him. Held, 
tb&t the verdict warranted the conviction of H. : B. v. 
Hamilton and Walsh, 23 N. B. Bep. 540. 

Evidence oi . general deficiency in the books of a clerk 
not sufficient to support a charge of larceny : B. v. Glass, 
M. L. E. 7 Q. B. 405 ; see E. v. Wright, 7 Cox, 413. Now, 
evidence of a general deficiency would, it seems, support an 
indictment for theft, s. 305, post. 



I -^ 



1' fff'ii I 





336 



OFFENCES AGAINST PROPERTY, ETC. [Sec. 303 



TITLB VI. 

OFFENCES AGAINST RIGHTS OF PROPERTY AND 

RIGHTS ARISING OUT OF CONTRACTS, AND 

OFFENCES CONNECTED WITH TRADE. 

PART XXIV. 

What Things Can bk Stolen. 

308* Every inanimate thing whatever which is the property of sny 
person, and which either is or may be made moveable, shall henceforth be 
capable of being stolen as soon as it becomes moveable, although it is made 
moveable in order to steal it : Provided, that nothing growing out of the earth 
of a value not exceeding twenty-five cents shall (except in the cases hereinafter 
provided) be deemed capable of being stolen. 

Section 887, post, provides for the stealing of trees of a 
value not exceeding twenty-five cents. 

By the above section, whatever remained of the common 
law rule as to fixtures, things growing, minerals, choses in 
action, is superseded. The reason why things growing 
under the value of twenty-five cents are excepted is the 
harshness of exposing every person to be treated as a thief 
who picked a flower in a garden or cut a stick from a 
hedge : 8 Stephen's Hist. 162. 

" The rules that documents evidencing certain rights, and 
that land and things ' savouring of the realty ' are not capable of 
being stolen, appear to us wholly indefensible. It is, no doubt, 
physically impossible to steal a legal right, or to carry awaj a 
field, but this afifords no ground at all for the rule that it shall 
be legally impossible to commit theft upon documents ^vhicli 
afford evidence of legal rights, or upon things which, though 
fastened to, growing out of, or forming part of the soil, are 
capable of being detached from it and carried away. 

" These rules have been qualified by statutory exceptions so 
wide and intricate that they are practically abolished, but they 
still give form to a considerable part of the law of theft, and 



^ 304] ANIMALS CAPABLE OT BEING STOLEN. 



3»T 



occasionally produoe failure of justice in oases io whidi the 
statutory exception is not quite oo*extennve with the oommon 
law role. These rules we propose to abolish absolotely." — Imp* 
Oomm. Bep. 

Animals Capable of Bkino Stolin. 
S04* All tame living creatares, whether tame by nature or wild hy 
nature and tamed, shall be capable of being stolen ; but tame pigeons shall be 
capable of being stolen so long only as they are in a dovecote or on their 
owner's land. 

2. All living creatures wild by nature, such as are not commonly found in 
a condition of natural liberty in Canada, s^ ill, if kept in a state of confinement* 
be capable of being stolen, not only while they are so confined but after they 
have escaped from confinement. 

3. All other living creatures wild by nature shall, if kept in a state of 
confinement, be capable of being stolen so long as they remain in confinement 
or are being actually pursued after escaping therefrom, but no longer. 

4. A wild living creature shall be deemed to be in a state of confinement 
go lonK as it is in a den, cage or small inolosure, stye or tank, or is otherwise so 
situated that it cannot escape and that its owner can take possession of it at 
pleasure. 

5. Oysters and oyster brood shall be capable of being stolen when in oyster 
beds, layings, and fisheries which are the property of any person, and 
sufficiently marked out or known as such property. 

6. Wild creatures in the enjoyment of their natural liberty shall not be 
capable of being stoljn, nor shall the taking of their dead bodies by, or by the 
orders of, the person who killed them before they are reduced into actual 
possession by the owner of the land on which they died, be deemed to be theft 

7. Every thing produced by or forming part of any living creature 
capable of being stolen, shall be capable of being stolen. 

As to the stealing of pigeons when away from their. 
owner's land, see post^ s. 333. 

As to stealing oysters, see post a. 334. 

" As to animals, one rule of the existing law ia founded off 
the principle that to steal animals used for food or labour is a 
crime worthy of death, but that to steal animals kept for pleasure 
or curiosity is only a civil wrong. The principle has long since 
been practically abandoned. Sheep stealing is no longer a 
capital crime, and dog stealing is a statutory offence ; but the 
distinction still gives its form to the law, and occasionally pro- 
duces results of a very undesirable kind. It has been lately held, 
for instance, that as a dog is not the subject of larceny at 
common law, it is not a crime to obtain by &ise pretenses two 
Cbim. Law— 22 






S38 



OFFENCES AGAINST PROPERTY, ETC. [Sec. 305 



valuable pointers : B. v. Robinson, Bell, 84. It seems to us 
that this rule is quite unreasonable, and that all animals which 
are the subject of property should also be the subject of larceny. 
This, however, suggests the question, what wild animals are the 
subject of property, and how long do they continue to be so ? 
This question must be considered in reference to living animals 
fera natura in the enjoyment of their natural liberty ; living 
animals fera naturo! escaped from captivity ; and pigeons which 
singularly enough, form a class by themselves. The existing law 
upon this subject, is that a wild living animal in the enjoyment of 
its natural liberty is not the subject of property ; but that when 
dead it becomes the property of the person on whose land it dies 
in such a sense that he is entitled to take it from a trespasser 
hut not in such a sense that the person who took it away, on 
killing it, is guilty of theft. This is specially important in 
reference to game. This state of the law we do not propose to 
alter. As to living animals fei-a natura in captivity, we think 
they ought to be capable of being stolen. 

" When such an animal escapes from captivity, a distinction 
appears to us to arise which deserves recognition. If the animal is 
one which is commonly found in a wild state in this country 
it seems reasonable that on its escape it should cease to be 
property. 

" A person seeing such an animal in a field may have no 
reasonable grounds for supposing that it had just escaped from 
captivity. 

" If, however, a man were to fall in with an animal imported 
as a curiosity, at great expense, from the interior of Africa, be 
could hardly fail to know that it had escaped from some person 
to whom it would probably have a considerable money value. 
We think that a wild animal should, on escaping from confine- 
ment, still be the subject of larceny, unless it be one commonly 
found wild in this country." — Imp. Comm. Rep. 

Definition op Thkpt. 
305* Theft or stealing is the act of fraudulently and without colour of 
right taikmg, or fraudtdentl!/ and without colour of right converting to the useofann 
persvn, anything capable of being stolen, with intent — 

(a) to deprive the owner, or any person having any special property 
or interest therein, temporarily or absolutely of such thing or of such pro- 
perty or interest ; or 



BB 



■!ii 



See. 303} 



DEFINITION OF THEFT. 



339 



(b) to pledge the same or deposit it as security ; or 

(«) to part with it under a condition as to its return which the person 
parting with it may be unable to perform ; or 

{d) to deal with it in such a manner that it cannot be] restored in the 
condition in which it was at the time of such taking and conversion. 

2. The taking ur conversion may be fraudulent, although effected without 
secrecy or attempt at concealment. 

3. It is immaterial whether the thing converted was taken for the purpose 
of conversion, or whether it was, at the time of the conversion, in the 'awful 
posseBsion of the person converting. 

4. Theft is committed when the offender moves the thing or causes it to 
move or to be moved, or begins to cause it to become moveable, with intent to 
steal it. 

5. Provided, that no factor or ag^nt shall be guilty of theft by pledging or 
giving; a lien on any goods or document of title to goods intrusted to him for 
thp purix)8e of sale or otherwise, for any sum of money not greater than the 
amount due to him from his principal at the time of pledi^ing or giving a lien 
on the same, together with the amount of any bill of exchange accepted by him 
for or on account of his principal. 

6. Provided, thit if any servant, contrary to the\ordera of hia matter, takes 
Jromhispoasefsion any food for the purpose of giving the same or having the 
same given to any horse or other animal belonging to or in the possession of his 
matter, the servant so offending shall not, by reason thereof, be guilty of theft. 
R. S. C. c. 104, 8. 63. 

The words in italics " fraudulently and without colour of 
right, converting to the use of any person," have the effect 
of abolishing the distinction between embezzlement and 
larceny. By that definition the gist of the offence of theft is 
now a fraudulent conversion, and not an unlawful taking : 
3 Stephen's Hist. 166. The word " temporarily " is new, 
and was not in the English draft. It may have been in- 
serted 80 as to include the enactment of b. 85 B. S. G. c. 
164, but is nevertheless wrong. S-s. 6 (new) is a partial 
re-enactment of 26 & 27 V. c. 103, (Imp.), by wbJch the case 
of B. V. Morlit, B. & B. 807, is not now law in England. 

"Technicalities of more importance connected with the 
taking are those which have led to the distinction between theft 
and embezzlement. The immediate consequence of the doctrine 
tliat a wrongful taking is of the essence of theft is, that if a 
person obtains possession of a thing innocently, and afterwards 
fraudulently misappropriates it, he is guilty of no offence. This 
doctrine has been qualified by a number of statutory exceptions, 



f^' 



I I 




340 



OFFENCES AGAINST PROPERTY, ETC. 



[Sec. 30tt 




each of which has been att<)nded witli difficulties of its own. 
. . . . We have therefore defined theft in sach a manner as 
to put wrongful taking and all other means of fraudulent mis- 
appropriation on the same footing. The definition properly 
expounded and qualified will, we think, be found to embrace 
every act which in common language would be regarded as theft, 
and it will avoid all the technicalities referred to as arising out 
of the common law rules, as well as out of the intricate and 
somewhat arbitrary legislation on the subject. 

" The crime of embezzlement, wherever the subject matter 

of it is a chattel or other thing which is to be handed over in 

specie will, come within the definition of theft, but where the 

subject matter is not to be handed over in specie, but may be 

accounted for by handing over an equivalent, it requires separate 

provisions which will be found in ss. 249, 250 & 251 (ss. 308, 309, 

310, post). It is essential to all of these offences that there 

should be the animus furandi, that guilty intention which makes 

the difference between a trespass and a theft." — Imp. Comm. 

Bep. 

Thkpt of Things Undbr Seizure. 

306* Every one commits theft and steals the thing taken or carried 
away who, whether pretending to be the owner or not, secretly or openly, takes 
or carries away, or causes to be taken or carried away, without lawful author- 
ity, ary property under lawful seizure and detention. R. S. C. c. 164, a. 50. 

Punishment, s. 356, post. 

The words "and whether with or without force and vio- 
lence " were in the repealed clause. 

Bishop, 2 Cr. L. 790, says : " If one, therefore, has 
transferred to another a special property in goods, retain- 
ing in himself the general ownership, or, if the law has 
made such transfer, he commits larceny by taking thorn 
with felonious intent." 

So if a man steal his goods in custodia legis. But " if 
the goods stolen were the general property of the defendant, 
who took them from the possession of one to whose care 
they had been committed, as, for instance, from an officer 
seizing them on an execution against the defendant, it must 
be shown that the latter knew of the execution and seizure; 



Se««. 307, 306] 



KILLING ANIMALS, ETC. 



841 



otherwise the required intent does not appear. The pre- 
sumption, in the absence of such knowledge, would be, that 
be took the goods, supposing he had the right so to do": 
2 Bishop, Gr. Proc. 749. 

Section 212, c. 82, B. S. C. contains an enactment in a 
similar sense as to goods seized by the customs officers. 

Killing Animals to Steal Caroasbs, Eto. 

307* Every one oommits theft and atealB the oruature killed who kills 
any living creature capable of beinf; i.^olen with interns to steal the carcase, 
skin, plumage or auy part of such creature. B. S. C. o. 164, s. 8. (Amended). 
2t-25 V. 0. 96, 8.11 (Imp.). 

Punishment, s. 356, pott. 

The repealed Beidon i,pplied to "animals" instead of 
" living creaturea." 

Indictment. — one theep of the goods 

and chattels of I. N. unlawfully did stf 1. 

Gutting ofif part o; a sheep, in this instance the leg, 
while it is alive, with intent to steal it, will suppr ^rt an in- 
dictment for killing with intent to steal, if the cutting off 
must occasion the sheep's death : B. v. Clay, B. & B. 887. 

So on the trial of an indictment for killing a ewe with 
intent to steal the carcase, it appeared that the prisoner 
wounded the ewe by cutting her throat, and was then 
interrupted by the prosecutor, and the ewe died of the 
wounds two days after. It was found by the jury who con- 
victed the prisoner that he intended to steal the carcase of 
the ewe. Tb3 court held the conviction right : B. 
V. Sutton, B C. & P. 291. It is immaterial whether the 
intent was to steal the whole or part only of the carcase : 
E. V. Wi:iiams, 1 Moo. 107. 

Kay one killing cattle with intent to steal the carcase, 
should be indicted under s. 499, post. 

Thkft by Aoent. 

SOS. Every one commits theft who hiiving received any money or . 

valuable security or other thing whatsoever, on terms requiring him to account | 

for or pay the same, or the proceeds thereof, or any part of such proceeds, to i 
any other person, though not requiring him to deliver over in sijecie the 




342 



OFFENCES AGAINST PROPERTY, ETC. [Seen. 309, 310 





identical money, valuable security or other thing received, fraudulently con- 
verts the same to his own use, or fraudulently omits to account for or pay the 
same or any part thereof, or to account for, or pay such proceeds or any part 
thereof, which he was required to account for or pay as aforesaid. 

2. Provided, that if it be part of the said terms that the money or other 
thing received, or ihe proceeds thereof, shall form an item in a debtor and 
creditor account between the person receiving the same and the person to 
whom he is to account for or pay the same, and that such last mentioned per- 
son shall rely only on the personal liability of the other as his debtor in respect 
thereof, the proper entry of such money or proceeds, or any part thereof, in 
such account, shall be a sufficient accounting for the money, or proceeds, or 
part thereof so entered, and in such case no fraudulent conversion of the 
amount accounted for shall be deemed to have taken place. R. S. C. c. 164 
8. 61, et seq. {Amended). 24-25 V. c. 96, s. 75 rt aeq. (Imp.). 

" Valuable security " defined, s. 3 ; see post, under s. 
310, and R. v. Barnett, 17 0. R. 649. 

Thkvt bt Person Holding Power of Attornet. 

300« Every one commits theft who, being intrusted, either solely or 
jointly with any other person, with any power of attorney for the sale, mort- 
gage, pledge or other disposition of any property, real or personal, whether 
capable of being stolen or not, fraudulently sells, mortgages, pledges or 
otherwise disposes of the same or any part thereof, or fraudulently converts the 
proceeds of any sale, mortgage, pledge or other disposition of such property, or 
any part of such proceeds, to some purpose other than that for which he was 
intrusted with such power of attorney. R. S. 0. o. 164, s. 62. {Am'.nded). 
24-25V. c. 96, 8. 77, (Imp.). 

See under next section. 

Theft of Proceeds Under Direction. 

310. Every one commits theft who, having received, either solely or 
jointly with any other person, any money or valuable security or any power of 
attorney for the sale of any property, real or personal, with a direction that 
such money, or any part thereof, or the proceeds, or any part of the proceeds 
of such security, or such property, shall be applied to any purpose or paid to 
any persnu specified in such direction, in violation of good faith and contrary 
to such direction, fraudulently applies to any other purpose or pays to auy 
other person such money or proceeds, or any part thereof. 

2. Provided, that where the person receiving such money, security or 
power of attorney, and the person from whom he receives it, deal with each 
other on such terms that all money paid to the former would, in the absence of 
any such direction, be properly treated as an item in a debtor and creditor 
account between them, this section shall not apply unless such direction is in 
writing. R. S. C. c. 164, s. 60. (Ametided). 

There is under this code no " embezzlement " as a 
distinct offence: see Imp. Commissioners' Report under 
8. 805, p. 889, ante. 

" Valuable security " defined, s. 3. 



Seo. 310] 

Punisl 
320, 367, i 
and simpi; 

Under 
(except as j 
repealed st 
8. 809 mus 
and the po^ 
also to be 
Cosser, 13 ( 

Theindi 
in tbe usual 
taken at the 
tbe statute: 
may be in tb 

Tndictmet 
did receive fi 
property of tl 
A. B. to pay 
M. N. and th 
good faith an 
convert the £ 
thereby steal 

Indictment 
being intruste 
sale of a certs 
same did frauc 
to wit, the SUE 
than that for 
attorney by ur 

own use and be 
to wit, tbe said 

Indictment \ 
did give a pow< 
one hundred ba 
dollars, for the 



See. 310] 



THEFT BY AGENTS, ETC. 



343 



PuniBbment under three next preceding sections: ss^ 
320, 357, po8t. What was embezzlement is now theft purely 
and simply. 

Under s. 810 the direction need not be in writing 
(except as per proviso) as it was needed to be in s. 60 of the 
repealed statute. But the power of attorney mentioned in 
g, 309 must be in writing: B. v. Chouinard, 4 Q. L. B. 220; 
and the power of attorney mentioned in s. 810 would have 
also to be in writing. As to who is an agent: see B. v. 
Cosser, 18 Cox, 187; B. v. Cronmire, 16 Cox, 42. 

The indictment under these three sections may be drawn 
in the usual short form for simple theft but care must be 
taken at the trial that the evidence brings the facts within 
the statute: B. v. Haigh, 7 Cox, 408. Special indictments 
may be in the following forms: — 

Indictment under s. 308. — that A. B. on 

did receive from C. D., a sum of one thousand dollars, the 
property of the said C. D. on terms requiring him the said 
A. B. to pay the said sum of one thousand dollars to one 
M. N. and that the said A. 6. afterwards, in violation of 
good faith and contrary to his obligation, fraudulently did 
convert the said sum to his own use and benefit and did 
thereby steal the same. 

Indictment under s. 309. — that A. B. on 

being intrusted by C. D. with a power of attorney for the 
sale of a certain piece of land having afterwards sold the 
same did fraudulently convert the proceeds of the said sale, 
to vrit, the sum of to some purpose other 

than that for which he was intrusted with such power o£ 
attorney by unlawfully applying the said proceeds to his 
own use and benefit, and did thereby steal the said proceeds, 
to wit, tbe said sum of 

Indictment under a. 309. — that A. B. on 

did give a power of attorney and thereby intrust to C. D., 
one hundred bales of cotton, of tbe value of four thousand 
dollars, for the purpose of selling the same, and that the 



If 




dM 



OFFENCES AGAINST PROPERTY, ETC. 



[Sec. 810 



said G< D. afterwards, contrary to and without the authority 
t)f the Mid A. B., for hie own benefit, and in violation of 
good faith, unlawfully did deposit the said cotton with E. F. 
of as and by way of a pledge, lien and security, 

for a sum of money, to wit, four hundred dollars, by the 
said G. D., then borrowed and received of and from the said 
JSi.F., and that the said G. D. did thereby steal the said 
one hundred bales of cotton of the goods and chattels of the 
Baid A. B, 

Indictment under 8. 310. — that A. B. on 

did intrust G. D. with a certain large sum of money, to wit, 
ihe sum of four hundred dollars, with a direction to the said 
G. D. to pay the said sum cf money to a certain peraon 
specified in the said direction, and that the said G. D. after- 
wards, to wit, on in violation of good faith and 
contrary to the terms of such direction, frauduleiitly did 
convert to his own use and benefit the said sum of money 
so to him intrusted as aforesaid, and that the said G. D. 
thereby did steal the said money of the goods and chattels 
of the said A. B. {A count should he added stating partic- 
ularly to whom the money was to be paid). 

See E. v. Gooper, 12 Cox, 600 ; R. v. Tatlock, 13 Cox, 
828; R. V. Fullagar, 14 Cox, 370; R. v. Brownlow, 14 Cox, 
216; Ex parte Piot, 15 Cox, 208; R. v. Bowerman, 17 Cox, 
X51, (X891) 1 Q. B. 112, Warb. Lead. Gas. 177; Ex parte 
Bellencoutre, 17 Cox, 263, [1891] 2 Q. B. 122. 

The changes in the law introduced by this code must 
not be lost sight of in the reference to these cases. All 
criminal breaches of common law trusts are now either 
theft under the preceding sections, or punishable under s. 
868, post, and the distinctions of larceny by bailees, or 
embezzlements or frauds by agents, bankers, factors, 
attornies, etc., are superseded. The imperfections in the 
l^ngliflh law alluded to by the Judges in Ex parte Bellen- 
ooutre, 17 Cox, 258. [1891] 2 Q. B. 122. have now been 
removed in Canada. 



Sees. 311, 312] 



THEFT BY CO-OWNER. 



345 



Theft bt Co-Owner. 

311. Theft may be committed by the owner of anything capable of being 
stolen against a person having a special property or interest therein, or by a per- 
son having a special property or interest therein against the oumer thereof, or by 
a lessee against his reversioner, or by one of several joint owners, tenants in 
tonmon or partners of, nr in any such thing against the other persons interested 
therein, or by the directors, puUie officers or members of a public company, or 
hodii corporate, or of an unincorporated body or society associated together for 
any lawful purpose, against such public company or body corporate or unincorpor- 
ated body or society. R. S. C. o. 164, s. 58. (Amended). 31-32 V. o. 116, s. 1, 
(Imp.). 

See R. V. Bobaon, Warb. Lead. C :i8. 139. 

Indictment. — that on at 

Thomas Butterworth, of was a member of a certain 

co-partnership, to wit, a certain co-partnership carrying on 
the business of and trading as waste dealer, and which said 
co-partnership was constituted and consisted of the said 
Thomas Butterworth and of John Joseph Lee, trading as 
aforesaid ; and, thereupon, the said Thomas Butterworth, 
at aforesaid, during the continuance of the said 

copartnership, and then being a member of the same as 
aforesaid, to wit, on the day and year aforesaid, eleven bags 
of cotton waste of the property of the said co-partnership 
unlawfully did steal: B. v. Butterworth, 12 Cox, 132. 

See B. V. Balls, 12 Cox, 96, for an indictment against a 
partner for embezzlement, now theft, of partnership prop* 
erty ; also, R. v. Blackburn, 11 Cox, 157. 

A partner, at common law, may be guilty of larceny ot 
the partnership's property ; so may a man be guilty of 
larceny of his own goods : R. v. Webster, L. & C. 77 ; R. 
V. Burgess, L. & C. 299 ; R. v. Moody, L. & C. 173 ; that is 
when the property is stolen from another person in whose 
custody it is, and who is responsible for it. See also, R. 
V. Diprose, 11 Cox, 185, and R. v. Rudge, 13 Cox, 17. 

CoNCKAiiNo Gold or Silver with Intent, Etc. 

812» Every one commits theft who, with intent to defraud his co-partner, 
cu-adventurer, joint tenant or tenant in common, in any mining claim, or in 
any share or interest in any such claim, secretly keeps back or conceals any 
gold or silver found in or upon or taken from such claim. R. S. C. c. 164 

8.31. 




V 



346 



OFFENCES AGAINST PROPERTY, ETC. 



[Sec 313 



Not in the Imperial Statute. 
Panishment under s. 356, post. 

Indictment may be as for simple theft : ss. 611, 613. As 
to search warrant, s. 571. 

Husband and Wifk. (New). 

313* No husband shall be convicted of stealing, during co-habitation, the 
property of his wife, and no wife shall be convicted of stealing, during 6o> 
habitation, the property of her husband ; but while they are living apart from 
each other either shall be guilty of theft if he or she fraudulently takes or 
converts anything which is, by law, the property of the other in a manner 
which, in any other person, would amount to theft. 

2. Every one commits theft who, while a husband and wife are living 
together, knowingly — 

(a) assists either of them in dealing with anything which is the 
property of the other in a manner which would amount to theft if ther 
were not married ; or 

(6) receives from either of them anything, the property of the other 
obtained from that other by such dealing as aforesaid. 

" By the present law a husband or wife cannot steal from 
his wife or her husband, even if they are living apart, although 
by recent legislation the wife is capable of possessing separate 
property. 

" So long as co-habitation continues this seems reasonable, 
but when married persons are separated, and have separate pro- 
perty, it seems to us to follow that the wrongful taking of it 
should be theft. This section is also framed so as to put an end 
to an unmeaning distinction, by which it is a criminal offence 
in an adulterer to receive from his paramour the goods of her 
husband, but no offence in any one else to receive such goods 
from the wife." — Imp. Comm. Rep. 



Sec 314] 



RECEIVING STOLEN GOODS. 



347 



\ PART XXV. 

RECEIVING STOLEN GOODS. 

314> Every one is guilty of an indictable offence, and liable to fourteen 
vears' imprisonment, who receives or retotns in his |)0««es8um anything obtained 
ly any offence punishable <m indictment, or hy any acts wheresoever committed, 
vte'i) ^f committed in Canada after the commencement of this Act, would have 
tmttituted an offence punishable upon indictment knowing such thing to have 
beea so obtained. R. S. C. o. 164, s. 82. 24-25 V. c. 96, s. 91 (Imp.). 

The words in italics are new. See s. 627, post, as 
to indictment of receivers in certain cases; also ss. 715, 716, 
717 as to trial, and s. 3, ante, as to what constitutes " hav- 
ing in possession." See remarks under next section. 

Obtaining by false pretenses is punishable by three 
years, s. 359 ; but knowingly receiving anything so obtained 
is punishable by fourteen years. 

Receiving property obtained by any indictable otfence 
abroad is punishable under this section ; s. 355 is limited 
to theft and the thief himself. 

Indictment against a receiver of stolen goods. — that 
A. B., on at one silver tankard, of the goods and 

chattels of J. N. before then unlawfully stolen, did unlaw- 
fully receive and have, he the said A. B. at the time when 
lie so received the said silver tankard as aforesaid, then 
I well knowing the same to have been stolen. 

Any number of receivers at different times of stolen 
I property may be charged with substantive felonies in the 
1 same indictment, s. 627, post. 

And where the indictment contains several counts for 
[larceny, describing the goods stolen as the property of dif- 
ferent persons, it may contain the like number of counts^ 
Uith the same variations, for receiving the same goods : B. 
iT.BeetoD, 1 Den. 414. It is not necessary to state by whom 

stealing was committed: B. v. Jervis, 6 G. & P. 156; 
land, if stated, it is not necessary to aver that the principal 





V 





-948 



RECEIVING STOLEN GOODS. 



[Sec. 314 



has not been convicted : B. v. Baxter, 5 T. B. 83. Where 
an indictment charged Woolford with stealing a gelding, 
and Lewis with receiving it knowing it to have been "go 
feloniously stolen as aforesaid," and Woolford was acquitted 
Patteson, J., held that Lewis could not be convicted upon 
this indictment, and that he might be tried on another 
indictment, charging him with having received the gelding 
knowing it to have been stolen by some person unknown : 
B. V. Woolford, 1 M. & Bob. 384 ; 2 Buss. 656. 

An indictment charging that a certain evil-disposed 
person feloniously stole certain goods, and that C. D. and 
E. F. feloniously received the said goods knowing them to 
be stolen, was holden good against the receivers, as for a 
substantive felony ; B. v. Caspar, 2 Moo. 101. The defend- 
ant may be convicted both on a count charging him as 
accessory before the fact and on a count for receiving : B. 
V. Hughes, Bell, 242. The first count of the indictment 
charged the prisoner with stealing certain goods and chat- 
tels ; and the second count charged him with receiving 
** the goods and chattels aforesaid of the value aforesaid so 
as aforesaid feloniously stolen." He was acquitted on the 
first count but found guilty on the second : Held, that the 
conviction was good : B. v. Huntley, Bell, 238 ; B. v. Grad- 
dock. 2 Den. 31. 

Indictmentagainstthe principaland receiver jointly.— 
that G. D. on at one silver spoon and 

one table-cloth, of the goods and chattels of A. B., unlaw- 
fully did steal, and the jurors aforesaid, do further present, 
that J. S. afterwards, on the goods and chattels afore- 
said, so as aforesaid stolen, unlawfully did receive and hare, 
he the said J. S. then well -knowing the said goods and chat- 
tels to have been stolen. 

Indictment against the receiver as accessory, the prin- 
cipal having been convicted. — that heretofore, to 
wit, at the general sessions of the holden at od 
it was presented, that one J. T. {continuing the for- 



8ec.314] 



RECEIVING STOLEN GOODS. 



349 



^r indictment to the end ; reciting it, however, in the 
pst and not in the present tense :) upon which said indict- 
ment the said J. T., at aforesaid, was duly convicted 
of the theft aforesaid. And the jurors aforesaid, upon their 
oath aforesaid, do further present, that A. B. after the 
committing of the said theft as aforesaid, to wit, on 
the goods and chattels aforesaid, so as aforesaid stolen, 
anla\7fully did receive and have, he the said A. B. then 
well knowing the said goods and chattels to have been 
stolen. ' 

Indictment against a receiver where the principal 
offence is obtaining under false pretenses.-^ on 

at one silver tankard of the goods and chattels of J. 

N. then lately before unlawfully, knowingly, and designedly 
obtained from the said J. N. by false pretenses, unlawfully 
did receive and have, he the said A. B. at the time when he 
so received the said silver tankard as aforesaid, then well 
knowing the same to have been unlawfully, knowingly, and 
designedly obtained from the said J. N. by false pretenses. 

The indictment must allege the goods to have been 
obtained by false pretenses, and known to have been so; it 
is not enough to allege them to have been " unlawfully 
obtained, taken and carried away " : E. v. Wilson, 2 Moo. 
52. 

At common law receivers of stolen goods were only 
guilty of a misdemeanour, even when the thief had been 
convicted of felony: Fost. 373. 

The goods must be stolen goods when they are received. 
If the owner has resumed possession, though the receiver 
does not know it, there is no receiving of stolen property: 
K. V. Villensky 11892] , 2 Q. B. 597; see s. 318 post,- R. v. 
Schmidt, Warb. Lead. Gas. 180. 

There may be a criminal receiving from a first receiver : 
K.v. Reardon, L. R. 1 C. C. R. 31. 

The goodb must be so received as to divest the posses- 
sion out of the thief: R. v. Wiley, 2 Den. 37. But a person 



f 





350 



RECEIVING STOLEN GOODS. 



[Seo. iU 



having a joint possession with the thief may be convicted 
as a receiver : B. v. Smith, Dears. 494. Manual possesaion 
is unnecessary ; it is sufficient if the receiver has a control 
over the goods: B. v. Hobson, Dears. 400; B. v. Smith, 
Dears. 494 ; see ante, s. U, and post, s. 317, as to the words 
" having in possession." The defendant may be convicted 
of receiving although he assisted in the theft : B. v. Dyer, 2 
East, P. 0. 767; B. v. Craddock, 2 Den. 31; B. v. Hilton, Bell, 
20 ; B. V. Hughes, Bell, 242. But not if he actually stole 
• the goods: B. v. Perkins, 2 Den. 459. Where the jury 
found that a wife received the goods without the knowledge 
or control of her husband, and apart from him, and that be 
afterwards adopted his wife's receipt, no active receipt on 
his part being shown, it was held that the conviction of the 
husband could not be sustained; B. v. Dring, Dears. &£. 
829; but see B. v. Woodward, L. & C. 122. 

There must be a receiving of the thing stolen, or of part 
of it ; and where A. stole six notes of illOO each and having 
changed them into notes of £20 each, gave some of them to 
B.: it was held that B. could not be convicted of receiving 
the said notes, for he did not receive the notes that \rere 
stolen : B. v. Walkley, 4 C. & P. 182. But where the 
principal was charged with sheep-stealing, and the acces- 
sory witb receiving "twenty pounds of mutton, parcel of 
the goods," it was held good : B. v. Gowell, 2 East, P. C. 
617, 781. In the last case the thing received is the same, 
for part, as the thing stolen, though passed under a new 
denomination, whilst in the first case nothing of the article 
or articles stolen have been received, but only the proceeds 
thereof. And, says Greaves' note, 2 Buss, 561, it is con- 
ceived that no indictment could be framed for receiving the 
proceeds of stolen property. The section only applies to 
receiving the chattel stolen, knowing that chattel to bare 
been stolen. In the case of gold or silver, if it were melted 
after the stealing an indictment for receiving it might be 
supported, because it would still be the same chattel though 



Sec. 314] 



RECEIVING STOLEN GOODS. 



351 



altered by the melting; but where a dSlOO note is changed 
for other notes the identical chattel is gone and a person 
might as well be indicted for receiving the money for which 
a stolen horse was sold, as for receiving the proceeds of a 
atolen note. 

The receiving must be subsequent to the theft. If a 
servant commit a larceny at the time the goods are received 
both servant and receiver are principals, but if the goods 
are received subsequently to the act of larceny it becomes 
a case of principal and receiver: R. v. Butteris, 6 C. & P. 
147; R. V. Gruncell, 9 C. & P. 365; R. v. Roberts, 3 Cox, 74. 

The receiving need not be lucri causa ; if it is to conceal 
the thief, it is sufficient : R. v. Richardson, 6 C. & P. 365 ; 
R. V. Davis, 6 C. & P. 177. 

There must be some evidence that the goods were stolen 
by another person, R. v. Densley, 6 C. & P. 399 ; R. v. 
Cordy 2 Russ. 556. 

A husband may be convicted of receiving property which 
his m(e has stolen, R. v. McAthey, L. & G. 250, if he 
receive it knowing it to have betn stolen. 

The principal felon is a competent witness to prove the 
larceny: R. v. Haslam, 1 Leach, 418. But his confession 
is not evidence against the receiver, R. v. Turner, 1 Moo. 
347, unless made in his presence and assented to by him : 
R. V. Cox, 1 F. & F. 90. If the principal has been convicted 
the conviction, although erroneous, is evidence against the 
receiver until reversed : R. v. Baldwin, R. & R. 241. 

To prove guilty knowledge other instances of receiving 
similar goods stolen from the same person may be given in 
evidence, although they form the subject of other indict- 
ments, or are antecedent to the receiving in question : R. 
V. Dunn, 1 Moo. 146 ; R. v. Davis, 6 C. »fe P. 177 ; R. v. 
Nicholls, 1 F. & F. 51 ; R. v. Mansfield, Gar. & M. 140. But 
evidence cannot be given of the possession of goods stolen 
from a different person: R. v. Oddy, 2 Den. 264; see now s. 



# 





35f 



RECEIVING STOLEN GOODS. 



[Sea3U 



716, pott. Where the Btolen goods are goods that have been 
found the jury must be satisfied that the prisoner knew 
that the circumstances of the finding were such as to con- 
stitute larceny : B. v. Adams, 1 F. & P. 86. Belief that the 
goods are stolen, without actual knowledge that they are 
so, is sufficient to sustain a conviction: B. v. White, i 
F. & F. 666. 

Becent possession of stolen property is not generally 
alone sufficient to support an indictment under this section: 
2 Buss. 666; B. v. Perry, 10 E. L. 66. However, in Rv. 
Langmead, L. & C. 427, the judges would not admit this as 
law, and maintained the conviction for receiving stolen 
goods grounded on the recent possession by the defendant 
of stolen property: see also B. v. Deer, L. & C. 240. 

An indictment charged S. with stealing eighteen shil- 
lings and sixpence, and G. with receiving the same. The 
facts were : S. was a barman at a refreshment bar, and G. 
went up to the bar, called for refreshments and put down 
a florin. S. served G., took up the florin, and took from bis 
employer's till some money, and gave G. as his change 
eighteen shillings and six pence, which G. put in his pocket 
and went away with. On leaving the place he took some 
silver from his pocket and was counting it when he was 
arrested. On entering the bar signs of recognition took 
place between S. and G., and G. was present when S. took 
the money from the till. The jury convicted S. of stealing 
and G. of receiving. Held, that this was evidence which 
the judge ought to have left to the jury as reasonable evi- 
dence upon which G. might have been convicted as a prin- 
cipal in the second degree, and that, therefore, the convic- 
tion for receiving could not be sustained : B. v. Coggins, 
12 Cox, 517. 

On the trial of a prisoner on an indictment charging 
him with receiving property which one M. had feloniously 
stolen, etc., the crime charged was proved, and evidence 
for the defence was given to the effect that M. had been 



Sec. 315] 



STOLEK" POST-LETTER, ETC. 



35S 



tried on a charge of stealing the same property and 
acquitted. The counsel for the crown then applied to 
amend the indictment by striking out the allegation that 
M.had stolen the property, and inserting the words "some 
evil disposed person " which was allowed. Heldf 1. That 
the record of the previous acquittal of M. formed no defence 
OD the trial of this indictment, and was improperly 
received in evidence. 2. That the amendment was im- 
properly allowed : R. v. Ferguson, 4 P. &. B. (N.B.) 259. 

Defendant sold to C, among other things, a horse 
power and belt, part of his stock in the trade of a butcher 
in which he also sold a half interest to G. The horse 
power had been hired from one M. and at the time of the 
sale the term of hiring had not expired. At its expiry M. 
demanded it and G. claimed that he had purchased it from 
the defendant. Defendant then employed a man to take 
it out of the premises where it was kept and deliver it to 
M., which he did. Defendant was summarily tried before 
a police magistrate and convicted of an offence against 
32 & 33 V. c. 21, s. 100. Held, that the conviction was 
bad, there being no offence against that section. Remarks 
upon the improper use of criminal law in aid of civil rights : ■ 
R. V. Young, 5 0. R. 410. 

On an indictment for receiving stolen goods it is not 
necessary to prove by positive evidence that the property 
found in the possession of the prisoner belongs to the. 
prosecutor : R. v. Gillis, 27 N. B. Rep. 30. 

Rkckivi.vg Stolen Post-Letter. Eto. 

313. Every oae is guilty of an indictable offence and liable to fite years* 
imprisonment who receives or retains in his possession anj' (stolen) post letter 
post letter bag, or ani/ chattel, numey or valuable security, parcel or other thing, 
the stealing whereof is hereby declared to be an indictable offence knowing 
the same to have been stolen. R, S.C. o. 35, ss. 83, 84 (Amended). ~ Wm. IV 
1 1 V. c. 36, 8. 30 (Imp. ). 

See ss. 622 ife 627, post, as to indictment and trial ; 
also 38. 715, 716, 717, po»t: ss. 326 & 327 are the 



m 



Criu. Law— 28 





354 



RECEIVING STOLEN GOODS. 



[Sec. 31G 



enactments on the stealing of post letters, etc. See s. 4 
ante, for definitions of expressions in the Post Office Acl. 

Indictment. — that A. B., on at one po8t 

letter the property of the postmaster-general before then, 
from and out a certain post letter bag unlawfully stolen, 
unlawfully did receive and reta'n in his possession, he, the 
said A. B., then well knowing the said letter to have been 
stolen. 

Why is the punishment less under this clause than 
under the preceding one ? 

For stealing, the fact that the article stolen is a post 
letter is an aggravation, and renders it liable to imprison- 
ment for life, B. 326, whilst stealing money or other things is 
punishable by only seven years, s. 356 ; but for criminal 
receiving of a stolen post letter, the ofifence is punishable 
T)nly by five years, whilst the criminal receiving of any 
other stolen thing is fourteen years ! Then, this s. 315 
enacts that every one is guilty of an indictable offence 
punishable by five years, who receives any chattel, money, 
or valuable security, parcel or other thing, the stealing 
whereof is hereby declared to be an indictable offence, know- 
ing the same to have been stolen, whilst s. 314 enacts a 
punishment of fourteen years against any one who know- 
ingly receives anything obtained by any offence pun ishahk 
on indictment. The consequence is that s. 314 does not 
apply to any chattel, Tnoney or valuable security, parcel or 
ether thing, the stealing whereof is declared by the Code to 
be an indictable ofifence. Its provisions are cut down by 
8. 815. This last section, it may be assumed, was intended 
to apply only to money or valuable security stolen out of 
a post letter, but it does not say it. 

Recbivino Property— Other Cases. 

31 0« Every one who receives or retains in his possession a,ny thing, know- 
ing the same to be unlawfully obtained, the stealing of which 18 punishable, on 
summary conviction, either for every offence, or for the first and second offwice 
only, is guilty of an offence and liable on summary conviction, for every first, 
second or subsequent offence of receiving, to the same punishment as if he were 



Sees. 317-319] WHEN RECEIVING COMPLETE. 



355 



wilty of a first, second or subsequent offence of stealing tho same. R. S. 0. 
c, 164, s. 84. 24-25 V. c. 5)6, s. 97 (Imp.). 

This enactment is singularly worded. 

Whkn Reckivino Complbtk. 

317* The act of receiving anything unlawfully obtained is complete as 
goon ftx the offender hrt><, either exclusively or jointly with the thief or any other 
person, possession of or control over such thing, or aids in concealing or disixjs- 

ing of it. 

See cases, ante, under s. 314. 

Rrokiving Aktkr Restoration to Owner. 

5M8. When the thing unlawfully obtained has been restored to the owner, 
or when a legal title to the thing so obtained has been acquired by any person, 
a subsequent receiving thereof shall not be an offence although the receiver 
may know that the thing had i)reviou8ly been dishonestly obtained. 

See cases, ante, under s. 314, and K. v. Yilleusky, 
1892],2Q. B. 597. 



PART XXVI. 

PUNISHMENT OF THEFT AND OFFENCES RESEMBLING THEFT 
COMMITTED BY PARTICULAR PERSONS IN RESPECT OF 
PARTICULAR THINGS IN PARTICULAR PLACES. 

Theft bv Clerks or Servants. 
310* Every one is guilty of an indictable offence and liable to fourteen 
years' impriHonment, who — 

(a) being a clerk or servant, or being employed for the purpose or in 
the capacity of a clerk or servant, steals anything belonging to or in th