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

See other formats

J^-.
^^^o

A^v

\'*' ^

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

11.25

121

2.2

S lit ■""

U 11.6

Hiotographic

Sciences
Corporation

23 WiST MAIN STREET

WEBSTER, N.Y. 14580

(716) 873-4S03

r<N^

'f'^

^6"-

^I^

'■^^

t/j

CIHM/ICMH

Microfiche

Series.

CIHIVI/ICIVIH
Collection de
microfiches.

Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiquas

Technical and Bibliographic Notas/Notas techniquas at bibliographiquas

The Institute has attempted to obtain the best
original copy available for filming. Features of this
copy which may be bibliographically unique,
which may alter any of the images in the
reproduction, or which may significantly change
the usual method of filming, are checked below.

□ Coloured covers/
Couverture de couleur

□ Covers damaged/
Couverture endommagie

I I c

Covers restored and/or laminated/
Couverture restaurie et/ou pelliculAe

I I Cover title missing/

Le titre de couverture manque

□ Coloured maps/
Cartes g^ographiquas en couleur

Coloured ink (i.e. other than blue or black)/
Encre de couleur (i.e. autre que bleue ou noire)

Coloured pistes and/or illustrations/
Planches et/ou illustrations en couleur

Bound with other material/
Relit avec d'autres documents

rri Tight binding may cause shadows or distortion

along interior margin/

La re liure serrie peut causer de I'ombre ou de la

distorsion ie long de la marge intirieure

Blank leaves added during restoration may
appear within the text. Whenever possible, these
have been omitted from filming/
II se peut que certaines pages blanches ajouties
lors d'une restauration apparaissent dans le texte,
mais, lorsque ceia itait possible, ces pages n'ont
pas 6x6 filmAes.

L'Institut a microfilm* le meilleur exemplaire
qu'il lui a 6t6 possible de se procurer. Les details
de cet exemplaire qui sont peut-Atre uniques du
point de vue bibliographique, qui peuvent modifier
une image reproduite, ou qui peuvent exiger une
modification dans la mithode normale de filmage
sont indiqute ci-dessous.

□ Coloured pages/
Pages de couleur

D
D

Pages damaged/
Pages endommagies

n
n

0Showthrough/
Transparence

Pages restored and/or laminated/
Pages restaurias et/ou peiliculies

Pages discoloured, stained o'- foxed/
Pages dicolories, tacheties ou piquies

Pages detached/
Pages ditachdes

I I Quality of print varies/

Quality inigale de I'impression

Includes supplementary material/
Comprend du materiel supplimentaire

T
si

Only edition available/
Seule Edition disponible

Pages wholly or partially obscured by errata
slips, tissues, etc., have been ref limed to
ensure the best possible image/
Les pages totalement ou partiellement
obscurcies par un feuillet d'errata, une pelure,
etc.. ont 6x6 filmies 6 nouveau de fapon 6
obtenir la meilleure image possible.

rll
re
m

Additional comments:/
Commentaires supplimentaires:

Various payings. Some pages may film out of focus.

This item is filmed at the reduction ratio checked below/

Ce document est film* au taux de reduction indiquA ci-dessous.

10X

14X

18X

22X

26X

30X

12X

16X

20X

24X

28X

32X

The copy filmed here has been reproduced thanks
to the generosity of:

National Library of Canada

L'exemplaire filmi fut reproduit grdce d la
g6n6rosit6 de:

Bibliothdque nationaie du Canada

The images appearing here are the best quality
possible considering the condition and legibility
of the original copy and in keeping with the
filming contract specifications.

Original copies in printed paper covers are filmed
beginning with the front cover and ending on
the last page witli a printed or illustrated impres-
sion, or the back cover when appropriate. All
other original copies are filmed beginning on the
first page with a printed or illustrated impres-
sion, and ending on the last page with a printed
or illustrated impression.

Les images suivantes ont 4t6 reproduitee avec le
plus grand soin, compte tenu de la condition et
de la nettetd de l'exemplaire film6, et en
conformity avec les conditions du contrat de
filmage.

Les exemplaires originaux dont la couverture en
papier est imprimie sont filmte en commenpant
par le premie; plat et en terminant soit par la
dernlAre page qui comporte une empreinte
d'impresslon ou d'illustration, soit par le second
plat, selon le cas. Tous les autres exemplaires
originaux sont filmte en commenpant par la
premidre page qui comporte une empreinte
d'impresslon ou d'illustration et en terminant par
la dernlAre page qui comporte une telle
empreinte.

The last recorded frame on each microfiche
shall contain the symbol — »> (meaning "CON-
TINUED"), or the symbol V (meaning "END"),
whichever applies.

Un des symboles suivants apparaftra sur la
dernidre image de cheque microfiche, selon le
cas: le symbole — ^ signifie "A SUIVRE", le
symbole y signifie "FIN".

Maps, plates, charts, etc., may be filmed at
different reduction ratios. Those too large to be
entirely included in one exposure are filmed
beginning in the upper left hand corner, left tc
right and top to bottom, as many frames as
required. The following diagrams illustrate the
method:

Les cartes, planches, tableaux, etc., peuvent Atre
f ilmfo A des taux de reduction diff^rents.
Locsque le document est trop grand pour Atre
reproduit en un seul clich6, il est film6 A partir
de I'angle suptrieur gauche, de gauche d droite,
et de haut en bas, en prenant le nombre
d'images nicessaire. Les diagrammes suivants
illustrent la m6thode.

1 2 3

32X

THE CRIMINAL CODE.

I L'

«3S f* K

I *'

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.

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

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

»,

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

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

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

1840— 3 & 4

1841— 4 & 5

1841- 5

1842- 5 & 6

•<

1848- 6 & 7

1844— 7 & 8

1845— 8 & 9

1846— 9 & 10

1847—10 & 11

1848—11 & 12

1849—12 & 13

1850—13 & 14

1851—14 & 15

((

1852—15 & 16

((

1853—16 & 17

1854—17 & 18

«i

1856—18 & 19

1856—19 & 20

1857-20

1857—20 & 21

1858—21 & 22

1859—22

1859—22 & 23

18G0— 23 & 24

1861—24 & 25

1862-

-25 & 26 Vic

1863-

-26 & 27

((

1864-

-27 & 28

1865-

-28 & 29

((

1866-

-29 & 30

1867-

-30 & 31

((

1868-

-31 & 32

((

1869-

-32 & 33

1870-

-33 & 34

1871-

-34 & 35

1872-

-35 & 36

1873-

-36 & 37

1874-

-37 & 38

1875-

-38 & 39

1876-

-39 & 40

• (

1877-

-40 & 41

1878-

-41 & 42

1879-

-42 & 43

1880-

-43 & 44

1881-

-44&45

1882-

-45 & 46

1883-

-46 & 47

1884-

-47 & 48

1885-

-48 & 49

«l

1886-

-49 & 50

1887-

-50 & 51

1888-

-51 & 62

1889-

-62

1889-

-52 & 63

18!)0-

-63 & 54

1891-

-54 & 65

1892-

-65 & 66

1833-

-66 & 67

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.

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

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 0

Crim. Law

;(.*;

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

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

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

■/

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

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

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

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

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

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

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

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 0

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

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

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

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.

•|

•

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 ...

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

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,

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 ...

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 .

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 • .

—

5 C. & P. 602 • .

. 413

Binns, —

26 St. Tr. 595 • .

Bircli, —

1 Leach, 79 . . .

. 498

—

1 Den. 185

. 821

Birchall, —

4 F. & F. 1087 . . . .

. 193

Bird, —

17 Co.x, 387 ...

—

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 Cox, 231 ...

. 294

5 C. & P. 300 .

361, 680

1 East P. C. 350 .

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

0 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 ; 0 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 .

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

. 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,

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, ~

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

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

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

r06, 8

53, 858, 867

—

15 Cox, 129

. 609

Carrell, —

1 Leach 237

. 461, 462

Carroll, —

7 C. & P. 145 .

—

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

—

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 .

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

— . • .

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

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

■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

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

Coxhead v. Richards .

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

. 981
. 298

■ Cmgenwen, —

■ Curran, —

TABI^ OF CASES CITE£>.

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

. 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 .

—

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

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 :

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

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\

, 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

— • . ■

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

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. 0 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

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

:.' 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

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 .

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 .

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

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
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

335

£«

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 . . • ,

—

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

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, —

8 C. & P. 595

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

—

160. R. 704

. 589, 868

I,:
'I'l

■ i '
hi

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

Oilmore, — . .

15 Cox, »^ . ... a

46, 718, 720

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 .

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 . . .

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 .

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

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 . . .

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

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

*mmft rtiaijMr^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

....

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, —

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

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

1 M(M.. 140 ...

. 281

!■!

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 .

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 .

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

457

244

519

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 .

Keena, R. v.,

11 Cox, 123 .

. 360

Keighly v. Bell, .

4 F. & F. 763

Keir v. Leeman, .

9 Q. B. 371 .

. 104

Keith, R. v.. ,

Dears. 486 .

. 526

Kelleher, —

14 Cox, 48 . .

. 413

Kelly, - . :

R. & R. 421

— .

2 C. & K. 379 .

—

6 U. C. C. P. 372

.55

Keuip V. Neville

10 C. B. N, S. 523

. 623

Kennett, R. v., .

5C. &P. 282

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

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. 0 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

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

Ixxii

TABLE OF CASES CITED.

PAOK.

■ ■ •

Lock, R. v.,

12 Cox, 244 ....

118, 261

Margetts, R.

Lockett, —

7 C. & P. 300

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 ....

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 .

Mayle, R. v.,

Manninjf, —

Warb. Lead. Caa. 7 .

. 28

Maynard, R. v.,

—

2C. &K. 903(n)

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

—

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.

. 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

'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

. 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, - . .

0 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

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

—

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 :»

! ;

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, —

0 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

—

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,

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

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

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 .

Oxfordshire, R. v.,

1 B. & Ad. 289 .

. 575

Oxley.R. v.,

3 C. & K. 317 .

Packer, R. v.,

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

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 .

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

". 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

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

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,

. 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 . . . .

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

! 1

■HI

■hi

''i

'»

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 .

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 .

Sherwooil, — . . .

Dears, k B. 251 .

. 407

Sherwood's Caije,

1 C. & K. 556 .

. 166

Shickle; R. v

11 Cox, 189

. 324

'■;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

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

—

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 ^^

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

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

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

N. 269

hxxvii

PAoa.

• 401

• VI

■ I3ii

■ 766

■ 26a

139

. 797

• 615

• 698
36, 692, 8?0

• 676

■ m

• 436

30, 31, 618

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

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

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

. Harris,

3 T. R. 176 ...

. 496

Taijrlor,

R. v.,

1 Leac h, 360

—

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

. Newman

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

. 375

. 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

PAG El

1 Thompson, R. v.,

11 Cox, 362 . . . .

. 488

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

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

'11'

• i» I,

■I ' I

•^1

iif !

! 'M

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

1.1

M 12.5

^ ... I

2.2

1-25 1.4 1.6

►

Photographic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 873-4503

^^%

'^^A^
'^. ^

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

—

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

. 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

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 .

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

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.,

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

. 612,767

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

Cai

Chi

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

XCVl

LIST OF ABBREVIATIONS.

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

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!

■'in' .

«M'

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.

(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.).

'-■-■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.

(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.).

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 ;

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" ?

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

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.

•*»■'.■

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 '

''Htl

: 1

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

^•^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' '

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:

8eo. 16]

EXECUTION OF PROCESS.

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 ?

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.

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

I,
'■

I' I!

^!i^''

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.

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

•■r.

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.

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

'»

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 \

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.

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.

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.

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

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.

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.

■I

JUSTIFICATION OR EXCtTSE.

[Sec. 64

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.

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."

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

(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-

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.

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,

,:?*' »^ *•

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.

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

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.

^: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

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

Seo. 61]

ACCESSORIES, ETC.

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.

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.

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.

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.

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.

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

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.

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

'j'uuimi'.eiiijg.'

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.

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.

'• •!

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.

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 ■

OFFENCES AGAINST PUBLIC ORDER. [Sec. 69, 70

•i;
;!
ft
li

(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.

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

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 ;

(<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.

(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 .

i-'i'itii

'1:1^1;:

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.

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*;.

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

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,

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, 0 U. C. C. P. 372 ; R. v. Cunningham, 16
Cvx, 420, and remarks under preceding section.

'If

1,1

UNLAWFUL ASSEMBLIES, ETC.

[Sees. 81-83

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.

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.

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.

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-

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.

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.

j, ifc.

J 'i

I .ill'

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.

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

■I M!

■: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.

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.

'"~ 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

EXPLOSIVE SUBSTANCES, ETC.

[Sees. 106, 107

I'i

i 1 1 ;

i !:,i>f

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

Sees. 108-112]

CARRYING SHEATH-KNIVES.

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.

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.

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;

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 ; (

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

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.

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

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

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 ■

...

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

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.

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.

i\l

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

Sees. 128, 129]

PIRATICAL ACTS.

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 ;

(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

'■.'': \:

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.

•

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

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.

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.

(/) 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 ;

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.

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

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 ;

(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.

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

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(

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.

, 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

s^.

A1^

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

Ui»2.S |2.5

■so *^™ H^Bi

«« ^ 12.2

m m

I.I 1/^ H^

L25 IIIIU 111.6

%^'%*'

^]^

Photographic

Sciences

Corporation

23 WIST MAIN STREET

WEBSTER, N.Y. 14580

(716)872-4503

MISLEADING JUSTICE.

[Sec. 145

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.

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

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.

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.

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.

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,

■1

Ill

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

Sec. 14S]

PERJURY.

be that they were not together at that time, evidence by
one witness that at the time named the one person was at
London, and by another witness that at the same time the
other 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

'J i I

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.

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.

!»

■ .^- I

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.

«»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

■|^

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.

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- '

..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

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

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

!■• ;

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

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:

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

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.

<: II

112

ESCAPES AND RESCUES.

[Seos. 164.167

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

10§. Every one

imprisonment, who kr
authority, directs or r
«) discharged, and th
K- S. C. 0. 155, 8. 8.

See remarks i

. "«»• 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.

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,

■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

I '!

ii4-:t

.if-

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- " ' !:■'

■m-^ i I

'';l-

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).

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.

I"' - : r

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 — {»

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

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!;;

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,

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."

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 ;

{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

'"•■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

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]

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

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

: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 .

\ !

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."

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

filP«

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

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

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 sufficient provocation
gives way to angry passion, and does not use his reason to
control it, — the law does not say that an act of homicide
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

](]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

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

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°?

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

"•"1 »uit, or if a preL™ „'' " , ^T "'" '"'*»''»'^ » "
fl-V-R from then, theM„ '";: 7'"''° - °ther pe,.on
'"'"*'■. unless, indeed, the hllid '' """'' '™»''' t*^
;.;-.» "ot likely or intended tokn ''"'i! '^"^'""'^^ ^y
1..3 1.eels,giving him a blow of a" o^r'^ "', '"PP"'S >>P
"■eapon not likely to kill or the 1^ '^ ""'^«"''' ""^ o""- '
l>™"ei.le, at most, would 4 matJ: ^ '" "■'"* "^ «-
a not or rebellious assen.bly "h '^'^^ °" ^^ I" ^Hse of

»---^"PP.-e33ed:ZctS:Ltt:'3^^^^^^^^

'-■-^ntvf:r:iT^---"p~ions

I ;

IMAGE EVALUATION
TEST TARGET (MT-S)

.^ «>.

(/.

1.0

I.I

1^128 |2.5

•^ 1^ 12.2

IL25 ii.4

1.6

Hiotographic

Sciences
Corporation

33 WeST MAIN STREET

WEBSTER, N.Y. M5S0

(716) 872-4503

.V^^

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(^.

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

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

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

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.

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

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 followed.

If a man undertakes to drive another in a vehicle he is
bound to take proper care in regard to the safety of the
man under his 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!

'I '

f !.

■■-'jf."

■ mI-

«fv^-»\ .♦;• . ■• ■;■.

! ■

■ "•>,:

* ■■ p

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

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 \'^: €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.

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.

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

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.

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

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

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

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

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.

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

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 manslaughter 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

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 0
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.

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

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.

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.

■•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

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.

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

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.

[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 may justify a battery by showing that he com-
mitted it in defence of his possession, as, for instance, to
remove the prosecutor out of his close or 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

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

Cbim. Law— 18

'ill'ijt -

'■'I;

■,%.^ ^%,

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

Hi §23 |2.5
^ 1^ 12.2

:^ us,

IL25 i 1.4

— 6'

1.6

Photographic

Sdences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. I4S80

(716) 872-4503

L17

•>

v^^*

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

»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.

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,

t:»

liiii

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

$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.

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 ;

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

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»

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.

*•

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

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.).

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-

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

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

.'■>

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

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.

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

GENERAL REMARKS.

321

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

T !

1 !■

:,-;; i

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 .

t ':. ■-'

\ . 1

' 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
■1 . 1

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:;;..

h.f

■■!.!•>:• 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.

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

■!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

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.

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

-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

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

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 the
possession of his master or employer ; or

(b) ixiijf a cashier, assistant cashier, manager, officer, clerk or servant
of any bank, or savings bank, steals any bond, obligation, bill obligatory
or of credit, or other bill or note, or any security for money, or any money
or effects of such bank or lodged or dejwsited with any such bank ;

(c) being employed in the service of Her Majesty, or of the Govern-
ment of Canada or the Government of any province of Canada, or of any
municipality, steals anything in his jxtssession by virtue of his employ-
ment. R. S. C. 0. 164, 88. 51, 52, 53, 54 & 59 {Ametuled). 24-25 V. c. 96,
s-dletseq. (Imp.).

356

THEFT, ETC.

[Sec. 310

I
I

See s. 623, post, as to indictments against public ser-
vants.

Special provisions as to embezzlement by post-office
officers are contained in s. 105, c. 35, B. S. C.

There is no such thing as embezzlement under the Code.
What constituted embezzlement is now theft.

Indictment under (a). — on was clerk to

J. N., and that the said J. S., whilst he was such clerk to
the said J. N., as aforesaid, to wit, on the day and year
aforesaid, certain money to the amount of forty dollars,
ten yards of linen cloth, and one hat, of and belonging to
the said J. N., his master, unlawfully did steal.

Indictment under (b). — being employed in the pub-
lic service of Her Majesty, and being intrusted, by virtue
of such employment, with the receipt, custody, manage-
ment and control of a certain valuable security, to wit,

did then and there, whilst he was so employed as afore-
said, receive and take into his possession the said valuable
security, and the said valuable security then fraudulently
and unlawfully did steal : see E. v. Cumraings, 16 U. C.
Q. B. 15.

If the defendant is not shown to be the clerk or servant
of J. N., but a larceny is proved, he may be convicted of
the larceny merely, and punishable then under s. 356,
post : B. V. Jennings, Dears. & B. 447. It is not neces-
sary by the statute that the goods stolen should be the
property of the master ; the words of the statute are,
belonging to, or in the possession of the master. A second
count stating the goods " then being in the i^ossession " of
the master, may be added.

Evidence of acting in the capacity of an officer employed
by the crown is sufficient to support an indictment; and
the appointment need not be regularly proved : B. v. Town-
send, Car. & M. 178 ; R. v. Borrett, 6 C. & P. 124 ; E. v.
Boberts, 14 Cox, 101

Sec. 319]

BY CLERKS OR SERVANTS.

357

Upon the trial of any offence under this section, the
jury, if the evidence warrants it may convict of an attempt
to commit the same, under s. 711.

As to what is sufficient evidence of an attempt to steal :
see R. v. Cheeseman, L. & C. 140.

On an indictment for larceny as servants the evidance
showed that the complainant advanced money to the
prisoners to buy rags, which they were to sell to the com-
plainant at a certain price, their profit to consist in the
difference between the rate they could buy the rags at, and
this fixed price. The prisoners consumed the money in
drinks and bought no rags. Held, no larceny : R. v.
Chareat, 9 L. N. 114; but now these same facts would
constitute a theft under s. 305, ante.

It was the prisoner's duty as a country traveller to
collect moneys and remit them at once to his employers.
On the 18th of April he received money in county Y. On
the 19th and 20th he wrote to his employers not mention-
ing that he had received the money; on the 2l8t, by
another letter, he gave them to understand that he had
not received the money. The letters were posted in county
Y. and received ia county M. Held, that the prisoner
might be tried in county M. for the oflfence of embezzling
the money: R. v. Rogers, 14 Cox, 22.

Embezzlement means the appropriation to his own use
by a servant or clerk of mone^ or chattels received by him for
or on account of his master or employer. Embezzlement
differs from larceny in this, that in the former the property
misappropriated is not at the time in the actual or legal
possession of the owner, whilst in the latter it is. The
distinctions between larceny and embezzlement were often
extremely nice and subtle and it was sometimes ditHicult
to say under which head the offence ranged. But em-
bezzlement and theft are now offences of the same nature.

Greaves says : " The words of the former enactment
s-8. (rt) were "shall by virtue of such employment receive

\ ;

358

THEFT, ETC.

[Se\ 319

or take into bis possession any chattel, etc., for, or in the
name, or on the account of his master." In the present
clause, the words "by virtue of such employment" are
advisedly omitted in order to enlarge the enactment, and
get rid of the decisions on the former enactment. The
clause is so framed as to include every case where any
chattel, etc., is delivered to, received or ta;ken possession
of by the clerk or servant, for or in the name or on account
of the master. If therefore a man pay a servant money
for his master the case will be within the statute, thouah
it was neither his duty to receive it, nor had he authority
to do bo; and it is perfectly just that it should be so; for,
if my servant receive a thing, which is delivered to him for
me, his possession ought to be held to be my possession
just as much as if it were in my house or in my cart. And
the effect of this clause is to make the possession of the
servant the possession of the master wherever any property
comes into his possession within the terms of this clause,
so as ' D make him guilty of embezzlement if he converts
it to his own use. The cases of R. v. Snowley, 4 C. & P,
390 ; Crow's Case, 1 Lewin, 88 ; R. v. Thorley, 1 Moo. 343;
R. v. Hawtin, 7 C. & P. 281 ; R. v. Mellish. R. & R. 80,
and similar cases are consequently no authorities on this
clause. It is clear that the omission of the words in
question, and the change in the terms in this clause, render
it no longer necessary to prove that the property was
received by the defendant by virtue of his employment; in
other words, that it is no longer necessary to prove that
the defendant had authority to receive it. . . " Greaves
adds : ' Mr. Davis says " still it must be the master's
money which is received by the servant, and not money
wrongfully received by the servant by means of false pre-
tenses or otherwise.' This is plainly incorrect. A.'s
servant goes to B., who owes A. £10, and falsely states
that A. has sent him for the m^^ney, whereupon B. pays
him the money. This case is clearly within the clause;
for the money is delivered to and received and taken into

Sec. 319]

BY CLERKS OR SERVANTS.

359

possession by him for and in the name and on the account
of bis master, so that the case comes within every one of
the categories of the clause, and if it came within any one
it would suf^ce ; in fact, no case can be put where property
is delivered to a servant for his master that does not come
within the clause, and it is perfectly immaterial what the
moving cause of the delivery was ": Greaves, Cons. Acts, 156.

The words "by virtue of his employment " are inserted
in s-s. (c).

If the defendant has been guilty of other acts of stealing
within the period of six months, the same not exceeding
three in number, may be charged in the same indictment
in separate counts, (s. 626), as follows : And the jurors
aforesaid, do further present, that the said J. S., after-
wards, and within six calendar months from the time of
the committing of the said offence ia the first count of this
indictment charged and stated, to wit, on in the year

aforesaid, being then employed as clerk to the said A. B.^
did then, and whilst he was so employed as last aforesaid,,
receive and take into his possession certain other money to-
a large amount, to wit, to the amount of for and in

the name and on the account oi the said A. B., his said
master, and ili > said last mentioned money then, and with-
in the said si; cakmrlar months, fraudulently and unlaw-
fully did stei' , and 30 the jurors aforesaid upon their oath
aforesaid, do say, th»': ihe said J. S. then, in manner and
form Rfor<:jaid, the said money, the property of the said A.
B., his said master, from the said A. B., his said master,
unlawfully did steal, (and so on for a third count, if re-
quired.)

The indictment must show by express^ words that the
different sums ^vere stolen within the six months : R. v.
Noake, 2 C. & K. 620 ; U. v. Purchase, Car. & M. 617. It
was the duty of the defendant, an agent and collector of a
coal club, to receive payment, by small weekly instalments,
and to send in weekly accounts on Tuesdays, and on each

, I

360

THEFT, ETC.

[Sec. 319

Tuesday to pay the gross amount received into the bank to
the credit of the club ; the defendant was a shareholder and
co-partner in the society, and indicted as such ; the indict-
ment'charged him with three different acts of embezzlement
during six months ; each amount as charged was proved
by the different payments of smaller sums, making altogether
each amount charged; held, that the indictment might
properly charge the embezzlement of a gross sum and
be proved by evidence of smaller sums received at different
times by the prisoner, and that it was not necessary to
charge the embezzlement of each particular sum composing
the gross sum, and that, although the evidence might show
a large number of small sums embezzled, the prosecution
was not to be confined to the proof of three of such small
sums only ; E. v. Balls, 12 Cox, 96 ; R. v. Furneaux, R. &
R. 335 ; R. v. Flower, 8 D. & R. 512 ; R. v. Tyers, R. & R.
402, holding it necessary in all cases of embezzlement to
state specifically in the indictment some article embezzled,
are not now law. In case the indictment alleges tho em-
bezzlement of money such allegation, so far as regards the
•<lescription of the property, is sustained by proof that the
•offender embezzled any amount, although the particular
species of coin or valuable security of which such amount
^vas composed shall not be proved ; or by proof that he
embezzled any piece of coin or any valuable security, or
any portion of tbe value thereof, although such piece of coin
or valuable security may have been delivered to him in order
that dome part of the value thereof should be returned to
the party delivering the same, or to some other person, and
such part shall have been returned accordingly ; but an in-
dictment for embezzling money is not proved by showing
merely that the prisoner embezzled a cheque without
evidence that the cheque had been converted into money:
R. V. Keena, 11 Cox, 123. The indictment must allege
the goods embezzled to be the property of the master : R.
V. McGregor, 3 B. & P. 106, R. & R. 23 ; R. v. Beacall, 1
Moo. 15 : and it has been su.id that it must show that the

Sec. 319]

BY CLERKS OR SERVANTS.

361

defendant was servant at the time : R. v. Somerton, 7 B. &
0. 463. See, however, R. v. Lovell, 2 M. & Rob. 236. It
is not necessary to state from whom the money was received:
R, v. Beacall, 1 Moo. 15, and note in R. v. Crighton,
B. & R. 62. But the judge may order a particular of the
clinrge to be furnished to the prisoner : R. v. Bootyman, 5
C. .. P. 800; R. V. Hodgson, 8 C. & P. 422; s. 613, post.

A female servant is within the meaning of the Act : R.
V. Smith, R. & R. 267 ; so is an apprentice though under
age : R. v. Mellish, R. & R. 80 ; and any clerk or servant,
whether to person in trade or otherwise : R. v. Squire, R.
&R. 349; R. v. Townsend, 1 Den. 167; R. v. Adey, 1 Den.
571. A clerk of a savings bank, though elected by the
managers, was held to be properly described as clerk to
the trustees: R. v. Jenson, 1 Moo. 434. The mode by
which the defendant is remunerated for his services is im-
material, and now, if he has a share or is a co-partner in
the society whose monies or chattels he embezzled, he may
be indicted as if he was not such shareholder or co-part-
ner : R. V. Hartley, R. & R. 139 ; R v. Macdonald, L. & C.
85 ; R. V. Balls, 12 Cox, 96. So, where the defendant was
employed as a traveller to take orders and collect money,
was paid by a percentage upon the orders he got, paid his
owu expenses, did not live with the prosecutors, and was
employed as a traveller by other persons also, he was
holden to be a clerk of the prosecutors within the meaning
of the Act: R. v. Carr, R. & R. 193; R. v. Hoggins, R. &
R. 145; R. v. Tite, L. & C. 29, 8 Cox, 458. Where the
prisoner was emplo\ ed by the prosecutors as their agent
for the sale of coals on commission, and to collect monies
in connection with his orders, but he was at liberty to dis-
pose of his time as he thought best, and to get or abstain
from getting orders as he might choose, he was held not to
be a clerk or servant within the statute : R. v. Bowers, 10
Cos, 250. In delivering judgment in that case, Erie, C. J.,
observed : '* The cases have established that a clerk or ser-
vant must be under the orders of his master, or employed

362

THEFT, ETC.

[Sec. 31»

to receive the monies of hia employer, to be within the
statute ; but if a man be intrusted to get orders and to re-
ceive money, getting the orders where and when he chooses,
and getting the money where and when he chooses, he is
not a clerk or servant within the statute : see R. v. Walker,
Dears. & R. 600; R. v. Maj, L. & C. 13 ; R. v. Hall, 13
Cox, 49. A person whose duty it is to obtain orders where
and when he likes, and forward them to his principal for
execution, and then has three months within which to col-
lect the money for the goods sent, is not a clerk or servant;
if such a person, at the request of his principal, collects a
sum of money from a customer, with the obtaining of
whose order he has had nothing to do, he is a mere volun-
teer, and is not liable to be prosecuted for embezzlement
if be does not pay over or account for the money so
received: R. v. Mayle, 11 Cox, 160. The prisoner was
employed by a coal merchant under an agreement whereby
"he was to receive one shilling per ton procuration fee,
payable out of the first payment, four per cent, for collect-
ing, and three pence on the last payment ; collections to be
paid on Friday evening before 5 p.m., or Saturday before
2 p.m." He received no salary, was not obliged to be at
the office except on the Friday or Saturday to account for
what he had received ; he was at liberty to go where be
pleased for orders : Held, that the prisoner was not a clerk
or servant within the statute relating to embezzlement.
R. v. Marshall, 11 Cox, 490. Prisoner was engaged by U.,
at weekly wages to manage a shop; U. then assigned all
his estate and effects to R. and a notice was served on
prisoner to act as the agent of R. in the management of the
shop. For fourteen days afterwards R. received from U. the
shop moneys. Then the shop money was taV.en by U. as be-
fore. Prisoner received his weekly wageb from U. during
the whole time. Some time after a -iooaposition deed was
executed by R. and U. and U.'s creditors, by which R. re-
conveyed the estate and effects to U., but this deed was not
registered until after the embezzlement charged against the

fi-^\

Sec. 319]

BY CLERKS OR SERVANTS.

363

prisoner ; Held, that prisoner was the servant of U. at the
time of the embezzlement : R. v. Dixon, 11 Cox, 178. The
prisoner agreed with the prosecutor, a manufacturer of
earthenware, to act as his traveller, and " diligently em-
ploy himself in going from town to town, in England, Ire-
land and Scotland, and soliciting orders for the printed
and decorated earthenware manufactured by thp prosecu-
tor, and that he would not, without the consent in writing
of the prosecutor, take or execute any order for vending or
disposing of any goods of the nature or kind aforesaid for
or on account of himself or any other person." It was
further agreed that the prisoner should be paid by commis-
sion, airl should render weekly accounts. The prosecutor
subsequently gave the prisoner written permission to take
orders for two other manufacturers. The prisoner being
indicted for embezzlement : Held, that he was a clerk or
servant of the prosecutor within the meaning of the
btatute: R. v. Turner, 11 Cox, 551. Lush, J., in this case,,
said: " If a person says to another carrying on an inde-
pendent trade, ' if you get any orders for mo I will pay
you a commission,' and that person receives monpy and
applies it to his own use, he is not guilty of embezzlement,
for he is not a clerk or sercant ; l)ut if a man says ; ' I em-
ploy you and will pay you, not by salary, but by commis-
sion,' the person employed is a servant. In the first case
the person employing has no control over the person em-
ployed ; in the second case the person employed is subject
to the control of the employer. And on this, this ca«e was
distinguished from R. v. Bowers, and R. v. Marshall, supra.
So, iu R. V. Bailey, 12 Cox, 66, the prisoner was employed
as traveller to solicit orders, and collect the moneys due on
the execution of the orders, and to pay over moneys on the
evening of the day when collected, or the day following.
The prisoritr had no salary but was paid by commission.
The prisoner might get orders where and when he pleased
within his district. He was to be exclusively in the employ
of the prosecutors, and to give the whole of his time, the

■^l :|

364

THEFT, ETC.

[Sec. 319

whole of every day, to their service. Held, that the pris-
oner was a clerk and servant within the statute": see R. y.
Foulkes, 13 Cox, 63.

A person engaged to solicit orders and paid by com-
mission on the sums received, which sums he was forth-
with to hand over to the prosecutors, was at liberty to
apply for orders, when he thought most convenient, and
was not to employ himself to any other person. Held, not
a clerk or servant within the statute ; the prisoner was not
under the control and bound to obey the orders of the
prosecutors : E. v. Negus, 12 Cox, 492, Warb. Lead. Cas.
185 ; R. \ Hall, 13 Cox, 49 ; R. v. Coley, 16 Cox, 226.

Prisoner was employed by 0. to navigate a barge, and
was entitled to half the earnings after deducting the
expenses. His whole time was to be at O.'s service, and his
duty was to account to 0. on his return after every voyage.
In October prisoner was sent with a barge load of bricks
to London, and was there forbidden by 0. to take manure
for P. .Notwithstanding this prisoner took the manure,
and received £i for the freight which he appropriated to
his own use. It was not proved that he carried the
manure or received the freight for his master, and the per-
son who paid the f 4 did not know for whom it was paid.
Held, that the prisoner could not be convicted of embezzle-
ment, as the money was not received by him in the name of
or for, or on account of his master : R. v. CuUum, 12 Cox,
469 ; see R. v. Gale, 13 Cox, 340.

It is not necessary that the employment should be per-
manent ; if it be only occasional it will be sufdcient,
Where the prosecutor having agreed to let the defendant
carry out parcels when he had nothing else to do, for
which the prosecutor was to pay him what he pleased, gave
him an order to receive two pounds, which he received and
embezzled, he was holden to be a servant within the
meaning of the Act : R. v. Spencer, R. & R. 299 ; E. v.
Smith, R. & R. 516. And in R. v. Hughes, 1 Moo. 370,

r! ' '■■

Sec. 319]

BY CLERKS OR SERVANTS.

365

where a drover, who was employed to drive two cows to a
purchaser and receive the purchase money, embezzled it»
be was holden to be a servant within the meaning of the
Act by the Judges ; but the Judge presiding at the trial
seemed to be of a contrary opinion, and B. v. Nettleton, 1
Moo. 259 ; R. v. Burton, 1 Moo. 237, appear to be adverse
to R. V. Hughes : see R. v. Tongue, Bell 289 ; R. v. Hall,
1 Moo. 374 ; R. v. Miller, 2 Moo. 249 ; R. v. Proud, L. &
C. 97» 9 Cox, 22. The treasurer of a friendly society,
into whose hands the monies received on behalf of the
society were to be paid, and who was to pay no money
except by an order signed by the secretary and counter-
signed by the chairman or a trustee, and who by the statute
was bound to render an account to the trustees, and to pay
over the balance on such accounting when required, but
was not paid for his services, is not a clerk or servant, and
cannot be indicted for embezzlement of such balance : R.
V. Tyrie, 11 Cox, 241. And before the statute making it
larceny or embezzlement for a partner to steal or embezzle
any of the co-partnership property, the secretary of a
friendly society, and himself a member of it, could not be
convicted on an indictment for embezzling the society's
monies, laying the property in, and describing him as the
servant of, A. B. (another member of the society) and
others, because the "others" would have comprised himself,
and so the indictment would in fact have charged him with
embezzling his own money, as his own servant : R. v.
Diprose, 11 Cox, 185'; R. v. Taffs, 4 Cox, 169 ; R. v.Bren,
L. & C. 346. But a stealing by a partner is now provided
for by s. 311 ante.

The trustees of a benefit building society borrowed
money for the purpose of their society on their individual
responsibility ; the money, on one occasion, was received
by their secretary and embezzled by him: Held, that the
secretary might be charged in the indictment for embezzle-
ment of the property of W. and others, W. being one of the

■f;''

366

'."HEFT, ETC.

[See. 319

trusteea, and a member of the society; R. v. Bedford, 11
Cox, 367 A person cannot bo convicted of embezzlement
as clerk or servant to a society which, in consequence of
administering an unlawful oath to its members, is unlawful,
and prohibited by law: R. v. Hunt, 8 C. & P. 642. But an
unregistered friendly society or trades union may prosecute
its servants for embezzlement of its property, though some
of its rules may be void as being in restraint of trade, and
contrary to public policy. Rules in a trades union or
society imposing fines upon members for working beyond
certain hours, or for applying for work at a firm where
there is no vacancy, or for taking a person into a shop to
learn weaving where no vacant loom exists, though void as
being in restraint of trade, do not render the society crim-
inally responsible: R. v. Stainer, 11 Cox, 483. If the clerk of
several partners embezzle the private money of one of them
it is an embezzlement within the Act, for he is a servant
of each. So where a traveller is employed by several
persons and paid wages, to receive money he is the indi-
vidual servant of each: R. v. Carr, R. &R. 198; R.v, Batty, 2
Moo.- 257. So a coachman, employed by one proprietor of
a coach to drive a certain part of the journey, and to receive
money and hand it over to him, may be charged with em-
.bezzling the money of that proprietor, though the money,
when received, would belong to him and his partners: R.
v. White, 2 Moo. 91.

In R. V. Glover, L. & C. 466, it was held that a county
court bailiff, who has fraudulently misappropriated the
proceeds of levies made under county court process, can-
not be indicted for embezzling the monies of the high-bailiif,
bis master ; these monies are not the property of the high-
bailiff. A distraining broker employed exclusively by the
prosecutor, and paid by a weekly salary and by a commis-
sion, is a servant within the statute: R. v. Flanagan, 10
Cox, 661.

Where the prisoner was charged with embezzlement,
but his employer who made the engagement with him was

Sw. 31!)]

BY CLERKS OR SERVANTS.

367

(Mit

not called to prove the terms thereof, but only his manag-
ing clerk, who knew them through repute alone, having
been informed of them by his employer, it was held that
there was no evidenc3 to go to the jury that the prisoner
was servant to the prosecutor: R. v. Taylor, 10 Cox, 544.

Money received by the defendant from his master him-
self for the purpose of paying it to a third poroii, and
appropv ted by the defendant, is larceny : H. v, P./jk, 2
Rusp !i>; R. V. Smith, R.&R. 267; R. v. Hi. vkin>^, 1 Den.
584; K Goodenough, Dears. 210.

In . <Trove, 1 Moo. 447, a majority of ^the Judges
(ei^ht against seven) are reported to have held that an
indictment for embezzlement might be supported by proof
of a general deficiency of monies that ought] to be forth-
coming, without showing any particular sum received and
not accounted for. See also, R. v. Lambert, 2 Cox, 309 ;
R. v. Moah, Dears. 626. But in R. v. Jones, 8 C. & P. 288,
where, upon an indictment for embezzlement, it was opened
that proof of a general deficiency in the prisoner's accounts
would be given, but none of the appropriation of a specific
sum, Anderson, B., said : "Whatever difference of opinion
there might be in R. v. Grove, {tihi aupra) that proceeded
more upon the particular facts of that case than upon the
law; it is not sufficient to prove at the trial a general
deficiency in account ; some specific sum must be proved to
be embezzled, in like manner as in larceny some particular
article must be proved to have been stolen. See also, R.
V. Lister, Dears.&B. 118; R. v.Guelder,Bell,284 ; Greave's
note, 2 Russ. 455 ; R. v. Chapman, 1 C. & K. 119, 2 Russ.
460, and R. v. Wolstenholme, 11 Cox, 313 ; R. v. Balls,
12 Cox, 96.

On a trial for embezz' raent, held, that evidence of a
general deficiency having been given the conviction was
right, though it was not proved that a particular sum
coming from a particular person on a particular occasion,
was embezzled by the prisoner : R. v. Glass, 1 L. N. 41;
R. V. Slack, M. L. R. 7 Q. B. 408.

IMAGE EVALUATION
TEST TARGET (MT-S)

1.0

l^|28

■ 50 ""^^

u: tiii

2.5
2.2

1.1 l.-^liS

LL8.

L25 i 1.4

•w

Photographic

Sciences
Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 873-4503

". ■■:'-^*i' '.■^''' '"^

■ *• /

6^^

i«

368

PUNISHMENT OF THEFT.

[Sec 319

But a general deficiency alone is not sufficient to
support an indictment for larceny : B. v. Glass M. L. R,
7 Q. B. 405. If it was sufficient before the Code to support
an indictment for embezzlement, it w^uld seem that it
would be sufficient now to support an indictment for
larceny.

A conductor of a tramway car was charged with embez-
zling three shillings. It was proved that on a certain
journey there were fifteen threepenny fares, and twenty-five
twopenny fares, and the conductor was seen to give tickets
to each fare and to receive money from each, but what sum
did not appear. He made out a way bill for the journey
debiting himself with only nine threepenny fares and six-
teen twopenny fares. The mode of accounting was to
deliver the way bills for each journey to a clerk, and to
hand in all the money received during each day on the fol-
lowing morning. The prisoner's money should have been
£S Is. 9d., according to his way bills for the day, but be
paid in only £d Os. 8d. Heldf that there was sufficient
evidence of the receipt of seven shillings and eleven pence,
the total amount of fares of the particular journey, and of
the embezzlement of three shillings, part thereof : B. t.
King, 12 Cox, 73.

Where the indictment contains only one count, charging
the receipt of a gross sum on a particular day, and it appears
in evidence that the money was received in different sums
on different days, the prosecutor will be put to his election,
and must confine himself to one sum and one day : R. t.
Williams, 6 C. & P. 626.

The prisoner, not having been in the employment of the
prosecutor, was sent by him to one Milner with a horse as
to which Milner and the prosecutor, who owned the horse,
had had some negotiations, with an order to Milner to give
the bearer a cheque if the horse suited. On account of a
difference as to the price the horse was not taken and the
prisoner brought him back. Afterwards the prisoner, with -

Mffi'i

Sees. 320, 321]

BY CLERKS OR SERVANTS.

369

out any authority from the owner, took the horse to Milner
and sold it as his own property, or professing to have a
right to dispose of it, and received the money, giving a
receipt in his own name.

Held, that a conviction for embezzlement could not be
suBtained as the prisoner, when he received the money, did
not receive it as a servant or clerk but sold the horse as his
own and received the money to his own use : R. v. Topple,
3 R. & C. (N. S.) 566.

Punishment Under Sections 308, 309, 310.

320i Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who steals anything by any act or omission amounting to
theft under the provisions of sections three hundred and eight, three hundred
and nine and three hundred and ten.

See ante, ss. 308, 309, 310, pp. 341 & 342.

Public Servants Refusing to Deliver up Books, Etc.

331« Every one is guilty of an indictable offence and liable to fourteen)
years' imprisonment who, being employed in the service of Her Majesty or of
the Government of Canada or the Government of any province of Canada, or
of any municipality, and intrusted by virtue of such employment with the
keeping, receipt, custody, management or control of any chattel, money,,
valuable security, book, paper, account or document, refuses or fails to deliver
up the same to any one authorized to demand it. R. S. C. o. 164, s. 55.
(Amended),

See s. 623 as to indictment. The repealed clause made
this offence an embezzlement. The present one does not
make it a theft. " Valuable security " defined, s. 3. A
special enactment as to postmasters is contained in s. 101,^
c. 85, Br. S. C.

Indictment. — that A. B. on at

being employed in the service of the Government of Can-
ada as a and intrusted by virtue of such employ-
ment with the books and papers of his office, did unlawfully
refuse {or fail) to deliver up the said books and papers to
CD., then and there duly authorized to demand the said
books and papers. It would seem that after an officer -
has ceased to be in the employment of Her Majesty, it
might be contended that this section doei not apply.

Criu. Law— 24

, 1

370

THEFT.

[Sees. 322-324

Stealing bt Tknants and Lodoebs.
322« Every one who steals any chattel or fixture let to be used by him
or her in or with any house or lodgring is gruilty of an indictable ofiFence and
liable to two years' imprisonment, and if the value of such chattel or fixture
exceeds the sura of twenty-five dollars to four years' imprisonment. R. S. C.
c. 164, 8. 67. 24-25V.C. 96, s. 74(Imp.).

Fine, s. 958.

If the indictment be for stealing a chattel it may be, by
8. 625 post, in the common form for larceny, and in case of
stealing a fixture the indictment may be in the same form
as if the offender were not a tenant or lodger, and the
property may be laid either in the owner or person letting
;to hire.

'Jhere may be a conviction of an attempt to commit any
t>BPence mentioned in this section, upon a trial for that
ofifence, s. 711, post.

By common law a lodger had a special property in the
goods which were let with his lodgings ; during the lease
he, and not the landlord, had the possession ; therefore the
landlord could not maintain trespass for taking the goods;
in consequence, the taking by the lodger was not felonious;
Meere's Case, 2 Euss. 519 ; B. v. Belstead, B. & B. 411.
Hence, the statutory enactments on the subject.

Stealing Testamentary Instruments.
333* Every one is guilty of an indictable offence and hable to imprison-
ment for life who, either during the life of the testator or after his death, steals
the whole or any part of a testamentary instrument, whether the same relates
to real or personal property, or to both. R. S. C. c. 164, s. 14. 24-25 V. c. 96,
a. 29 (Imp.).

" Testamentary instrument " defined s. 3.

Indictment. — a certain mV X testamentary

instrument of one J. N. unlawfully did steal. {Add counU
varying description of the will, etc.)

The cases of B. v. Skeen, Bell 97, and E. v. Strahan,
7 Cox, 85, are not now law : Greaves Cons. Acts, 126.

Stealing Documents of Title to Lands ob Goods.
324* Every one is guilty of an indictable offence and liable to three years'
imprisonment who steals the whole or any part of any document of title to
lands or goods. R. S. C. c. 164, s. 13. 24-25 V. c. 96, s. 28 (Imp.).

See. 325] STEALING JUDICIAL DOCUMENTS. 871

See s. 3 for definitions of " title to lands or goods."

Fine, s. 958. The words in italics are new.

Indictment. — a certain document of title to lands,

the property of J. N., being evidence of the title of the said
J. N. to a certain real estate called in which

said real estate the said J. N. then had and still hath an
interest, unlawfully did steal.

Stealing Judicial Documents.

3S5> Every one is guiltj' of an indictable offence and liable to three
years' imprisonment who steals tLe whoi'e or any part of any record, writ,
return, affirmation, recognizance, co^inrvit actionem, bill, petition, answer,
decree, panel, process, interrogatory, deijosition, affidavit, rule, order or
warrant of attorney, or of any original document whatsoever of, or belonging
to any court of justice, or relating to any cause or matter begun, depending or
terminated in any such court, or of any original document in any wise relating
to the business of any office or employment under Her Majesty, and being or
remaining in any office apix'rtaining to any court of justice, or in any govern-
ment or public office. R. S. C. c. 164, s. 15 (Amended). 24-25 V. o. 96, s. 30
(Imp.).

Indictment for stealing a record. — a certain

judgment-roll of the Court of Our Lady ths Queen, before
the Queen herself, unlawfully did steal.

Stealing rolls of parchment will be larceny at common
law, though they be the records of a court of justice, unless
they concern the realty : R. v. Walker, 1 Moo. 155 ; but it
is not so if they concern the realty: R. v. Westbeer, 1
Leach, 13.

A commission to settle the boundaries of a manor is an
instrument concerning the realty, and not the subject of
larceny at common law : R. v. Westbeer, lac. cit.

An indictment describing an offence within 32 & 83 Y.
c. 21, s. 18, as feloniously stealing an information taken in a
police court, is sufficient after verdict : R. v. Mason, 22 U.
C. C. P. 246.

The destroying, taking, concealing, etc., judicial docu-
ments is provided for by ss. 863 & 354, post.

Sec. 325] STEALING JUDICIAL DOCUMENTS. 871

See B. 3 for definitions of " title to lands or goods."

Fine, s. 958. The words in italics are new.

Indictment. — a certain document of title to lands,

the property of J. N., being evidence of the title of the said
J. N. to a certain real estate called in which

eaid real estate the said J. N. then had and still hath an
interest, unlawfully did steal.

Stealing Judicial Doocmknts.

3S5« Every one is guilty of an indictable offence and liable to three
years' imprisonment who steals the whoi'e or any part of any record, writ,
return, affirmation, recognizance, cofinrDit actionem, bill, petition, answer.
decree, panel, process, interrogatory, deposition, affidavit, rule, order or
warrant of attornny, or of any original document whatsoever of, or belonging
to any court of justice, or relating to any cause or matter begun, depending or
terminated in any such court, or of any original document in any wise relating
to the business of any office or employment under Her Majesty, and being or
remaining in any office apjjertaining to any court of justice, or in any govern-
ment or public office. R. S. C. c. 1G4, s. 15 (Amended). 24-25 V. o. 96, s. 30
(Imp.).

Indictment for stealing a record. — a certain

judgment-roll of the Court of Our Lady the Queen, before
the Queen herself, unlawfully did steal.

A commission to settle the boundaries of a manor is an
instrument concerning the realty, and not the subject of
larceny at common law : R. v. Westbeer, loc. cit.

An indictment describing an offence within 32 & 83 V.
c. 21, 8. 18, as feloniously stealing an information taken in a
police court, is sufficient after verdict : R. v. Mason, 22 U.
C. C. P. 246.

The destroying, taking, concealing, etc., judicial docu-
ments is provided for by ss. 363 & 354, post.

tl:;

372

THEFT.

[Sees. 326-328

:KI

4,1

Stealing Post Letter Bags, Etc.

336. Every one is guilty of an indictable offence and liable to imprison-
ment for life, or for any term not less than three years who steals —

(a) a post letter bag ; or

(6) a post letter from a post letter bag, or from any post office, or from
any officer or person employed in any business of the post office of Canada, or
from a mail ; or

(d) any chattel, money or valuable secuiity from or out of a post letter.
R. S. C. c. 35, 88. 79, 80 & 81. 7 Wm. IV. & 1 V. c. 36 (Imp.).

" Valuable security " defined, s. 3.

See 8. 4, ante, as to meaning of words in enactments
relating to post office, and s. 624, post, as to indictment

Indictment. — that A. B., on unlawfully

did steal one post letter, the property of the postmaster-
general, from a post lette^r bag (or from a post office) (or a
post letter containing a sum of money) (or a sum of money
out of a post letter).

To unlawfully open la post letter bag is punishable bj
five y^ars : ss. 82, 89, c. 35, R. S. C. ; see R. v. Jones, 1
Den. 188 ; R. v. Pearce, 2 East P. C. 603 ; R. v. Poynton,

L. & C. 247.

Stealing Letters, Etc.

3ST- Every one is guilty of an indictable offence and liable to imprison-
ment for any term not exceeding «cicn years, and not less than three years, who
steals —

(a) any post letter, except as mentioned in paragraph (V) of section three
hundred and twenty -six ;

(&) any parcel sent by parcel post, or any article contained in any such
parcel ; or

(c) any key suited to any lock adopted for use by the Post Office Depart-
ment, and in use on any Canada mail or mail bag. R. S. C. c. 33,
88. 79, 83 & 88.

See under preceding section.

Stealing Other Mailable MAriER.

3%8. £very[one is guilty of an indictable offence and liable to five years'
imprisonment who'steals any printed vote or proceeding, newspaper, printed
paper or book, packet or package of patterns or samples of merchandise or
goods, or of seeds, cuttings, bulbs, roots, scions or grafts, or any post card or
other mailable matter (not being a post letter) sent by mail. R. S. C. c. 33,
8.90.

Fine, s. 958 ; see remarks under s. 826, ante.

Sees. 329-331] STEALING, ETC., ELECTION DOCUMENTS. 373

Stkalino Election Dooumknts.

339. Every one is guilty of an indictable offence and liable to a fine in
the discretion of the court, or to seven years' imprisonment, or to both fine and
imprisonment who steals, or unlawfully takes from any person having the
lawful custody thereof, or from its lawful place of deposit for the time being,
any writ of election, or any return to a writ of election, or any indenture,
poll-i)0f)k, voters' list, certiiioate, affidavit or report, ballot or any document or
paper made, prepared or drawn out according to or for the requirements of
any law in regard to Dominion, provincial, municipal or civic elections.
R. S. C. c 8, 8. 102 ; o. 164, s. 56.

The words in italics are new. S. 102, c. 8, R. S. C. is
unrepealed. See under s. 551, post, a reference to the
above section.

Stealing Railway Tickets, Etc.

330. Every one is guilty of an indictable offence and liable to two years'
imprisonment who steals any tramway, railway or steamboat ticket, or any
order or receipt for a passage on any railway or in any steamboat or other
vessel. R. S. C. c. 164, s. 16.

Fine, s. 958.

Stealing Cattle.

331. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who steals any cattle. R. S. C. c. 164, ss. 7 & 8.

See ante, s. 3, for interpretation of the word cattle.

Indictment. — that J. S. on at one

horse of the goods and chattels of J. N. unlawfally did
steal. {The indictment must give the animal one of the
descriptions mentioned in the statute ; otherwise the defend-
ant can he punished as for simple larceny merely) : R. v.
Beaney, R. & R. 416.

If a person go to an inn, and direct the ostler to bring
out bis horse, and point out the prosecutor's horse as his,
and the ostler leads out the horse for the prisoner to
meant, but, before the prisoner gets on the horse's back,
the owner of the horse comes up and seizes him, the offence
ot horse-stealing is complete : R. v. Pitman, 2 C. & P. 423.

The prisoners enter another's stable at night, and take
out bis horses, and ride them 32 miles, and leave them at
an inn, and are afterwards found pursuing their journey on
foot. On a finding by the jury that the prisoners took the

Sees. 329-331] STEALING, ETC., ELECTION DOCUMENTS.

373

Stkalino Election Dooumknts.

339. Every one is guilty of an indictable offence and liable loaftne in
the discretion of the court, or to seven years' imprisonment, or to both fine and
iiiiprisonment who steals, or unlawfully takes from any person havinpr the
lawful custody thereof, or from its lawful place of deposit for the time being,
any writ of election, or any return to a writ of election, or any indenture,
l)oll-lxx)k, voters' list, certificate, affidavit or report, ballot or any document or
paper made, prepared or drawn out according to or for the requirements of
any law in regard to Dominion, provincial, municipal or civic elections.
R. S. C. c 8, 8. 102 ; o. 164, s. 56.

The words in italics are new. S. 102, c. 8, B. S. C. is
unrepealed. See under s. 551, post, a reference to the
above section.

Stealinq Railway Tickets, Etc.

330. Every one is guilty of an indictable offence and liabU to ttoo years'
imprisonment who steals any tramway, railway or steamboat ticket, or any
order or receipt for a passage on any railway or in any steamboat or other
vessel. R. S. C. c. 164, s. 16.

Fine, s. 958.

Stealing Cattle.

331. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who steals any cattle. R. S. Co. 164, ss. 7 & 8.

See ante, s. 3, for interpretation of the word cattle.

Indictment. — that J. S. on at one

horse of the goods and chattels of J. N. unlawfully did
steal. (The indictment must give the animal one of the
descriptions mentioned in the statute ; otherwise the defend-
out can be punished as for simple larceny merely) : R. v.
Beaney, R. & R. 416.

If a person go to an inn, and direct the ostler to bring
out his horse, and point out the prosecutor's horse as his,
and the ostler leads out the horse for the prisoner to
mount, but, before the prisoner gets on the horse's back,
the owner of the horse comes up and seizes him, the offence
of horse-stealing is complete : R. v. Pitman, 2 C. & P. 423.

The prisoners enter another's stable at night, and take
out his horses, and ride them 32 miles, and leave them at
an inn, and are afterwards found pursuing their journey on
foot. On a finding by the jury that the prisoners took the

374

THEFT.

[See. 332

horses merely with intent to ride and afterwards leave them,
and not to return or make any further use of them, held,
trespass and not larceny : R. v. Fhilipps, 2 East, P. C. 662.
But now, it would be theft under s. 805, ante.

If a horse be purchased and delivered to the buyer, it is
no felony though he immediately ride away with it with-
out paying the purchase money : E. v. Harvey, 1 Leach,
467.

If a person stealing other property take a horse, not
with intent to steal it, but only to get off more conveniently
with the other property, such taking of the horse is not a
felony: R. v. Crump, 1 C. & P. 658.

Obtaining a horse under the pretense of hiring it for a
day, and immediately selling it, is a felony at common law
if the jury find the hiring was animu furandi: R. v. Pear, 1
Leach, 212; R. v. Gharlewood, 1 Leach, 409: see now e.
805, ante. It is larceny (at common law) for a person h\m\
for the special purpose of driving sheep to a fair to convert
them to his own use, the jury having found that he intended
80 to do at the time of receiving them from the owner: R.
V. Stock, 1 Moo. 87; see now s. 305, ante. Where the
defendant removed sheep from the fold into the open field,
killed them, and took away the skins merely, the judges
held that removing the sheep from the fold was a sufficient
driving away to constitute larceny: R. v. Rawlins, 2 East
P. C. 617.

Any variance between the indictment and the proof, in
the description of the animal stolen, may be amended:
8. 723, post; R. v. Gumble, 12 Cox, 248.

Stealing Dogs, Birds, Etc.

332. Every one is guilty of an offence and liable on summary conviction
to a penalty not exceeding twenty dollarH over and above the value of the
property stolen, or to one months' imprisonment with hard labour, who steals
any dcg, or any bird, beast or other animal ordinarily kept m a state of
confinement or for any domestic purpose, or for any lawful purpose of profit or
advantage.

Sees. 333, 334]

KILLING PIGEONS, ETC.

375

2. Every one who, having been convicted of any such ofiFence, afterwards
commits any such offence is liable to three months' imprisonment with hard
labour. R. S. C. c. 164, s. 9. 24-25 V. o. 96, ss. 18, 21 (Imp.).

The words in italics are not in the Enp;lish Act.
For injuries to such animals, see a. 501, post.

Killing Pigeons," Etc.

3S8. Every one who unlawfully and vnlfuUy kills, wounds or takes any
houbt-dove or pigoon, under such circumstances as do not amount to theft, is
guilty of an offence and liable, upon complaint of the owner thereof, on summary
conviction, to a penalty not exceeding ten dollars over and above the value of
the bird, R. S. 0. c. 164, b. 10. 24-25 V. c. 96, s. 23 (Imp.).

The words in italics are new.

This clause does not extend to killing pigeons under a
claim of right : Taylor v. Newman, 9 Cox, 314, 4 B. & S.
89 ; 8ee ante, s. 804, and note.

This section is out of place. It ought to be under Part
XXXVII. post.

Stealing Oysters.

334- Every one is guilty of an indictable offence and liable to seven
years' imprisonment who steals oysters or oyster brood.

2. Every one is guilty of an indictable offence and liable to three months
imprisonment who unlawfully and wilfully uses any dredge or net, instrument
or engine whatsoever, within the limits of any oyster bed, laying or fishery ,)
biing the property of any otheriperson, and sufficiently marked out or knownv
as such, for the purpose of taking oysters or oyster brood, although none are>
actually taken, or unlawfully and wilfully with any net, instrument oc engine^
drags upon the ground of any such fishery.

3. Nothing herein applies to any person fishing for or catching any
swimming fish within the limits of any oyster fishery with any net, instrument
or engine adapted for taking swimming fish only. R. S. C. c. 164, s. 11. 24-2.5
V.c. 96, 8. 26(Imp.).

See 8. 304, s-s. 6, ante, and s. 619 (e), post.

Indictment for stealing oysters or oyster brood. —
from a certain oyster-bed called the property of

J. N. and sufficiently marked out and known as the property
of the said J. N., one thousand oysters unlawfully did steal.

Indictment for using a dredge in the oyster fishery of
another. — within the limits of a certain oyster-bed

called the property of J. N., and sufficiently marked

out and known as the property of the said J. N., unlawfully

Sees. 333, 334]

KILLING PIGEONS, ETC.

375

2. Every one who, having been convicted of any such offence, afterwards
commits any auoh offence ia liable to three months' imprisonment with hard
labour. R. S. C. c. 164, s. 9. 24-25 V. c. 96, ss. 18, 21 (Imp.).

The words in italics are not in the English Act.
For injuries to such animals, see a. 501, post.

Killing Piokons," Etc.

388. Every one who unlawfully and wilfully kills, wounds or takes any
hou^e-dove or pigeon, under such circumstances as do not amount to theft, is
guilty of an offence and liable, upon complaint of the ovmer thereof, on summary
conviction, to a penalty not exceeding ten dollars over and above the value of
the bird. R. S. C. c. 164, s. 10. 24-25 V. c. 96, s. 23 (Imp.).

The words in italics are new.

This clause does not extend to killing pigeons under a
claim of right : Taylor v. Newman, 9 Cox, 814, 4 B. & B.
89 ; see ante, s. 304, and note.

This section is out of place. It ought to be under Part
XXXVII. post.

Stealing Oysters.

334. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who steals oysters or oyster brood.

2. Every one is guilty of an indictable offence and liable to three months
imprisonment who unlawfully and wilfully uses any dredge or net, instrument
or engine whatsoever, within the limits of any oyster bed, laying or fishery,,
biing the property of any otheriperson, and sufficiently marked out or knowni
as such, for the purpose of taking oysters or oyster brood, although none are,
actually taken, or unlawfully and wilfully with any net, instrument or engine^
drags upon the ground of any such fishery.

3. Nothing herein applies to any person fishing for or catching an^
swimming fish within the limits of any oyster fishery with any net, instrument
or engine adapted for taking swimming fish only. R. S. C. c. 164, s. 11. 24-25
V.C.96, 8. 26(Imp.).

See s. 304, s-s. 6, ante, and s. 619 (e), post.

Indictment for stealing oysters or oyster brood. —
from a certain oyster-bed called the property of

J. N. and suflSciently marked out and known as the property
of the said J. N., one thousand oysters unlawfully did steal.

Indictment for using a dredge in the oyster fishery of
another. — within the limits of a certain oyster-bed

called the property of J. N., and sufficiently marked

out and known as the property of the said J. N., unlawfully

376

THEFT.

[Sec. 338

and wilfully did use a certain dredge for the purpose of
then and there taking oysters.

In support of an indictment for stealing oysters iu a
tidal river it is sufficient to prove ownership by oral evi-
dence as, for instance, that the prosecutor and his father
for forty-five years had exercised the exclusive right of
oyster fishing in the loctia in quo, and that in 1846 an
action had been brought to try the right, and the verdict
given in favour of the prosecutor : R. v. Downing, 11 Cox,
680.

Steauko Thinob Fixed to Bdildinos

3*I5' Every one ia guilty of an indictable ofiFenoe and liable to seven
years' imprisonment who steals any glass or woodwork belonging to any
building whatsoever, or any lead, iron, copper, brass or other metal, or any
utensil or fixture, whether made of metal or other material, or of both, respect-
ively fixed in or to any building whatsoever, or anything made of metal fixed
in any land, being private proijerty, or for a fence to any dwelling-house,
garden or area, or in any square or street, or in any place dedicated to public
use or ornament, or in any burial ground. R. S. C. c. 164, s. 17.

The repealed section covered the " ripping, severing,
cutting and breaking" of the things therein specified, as
well as the stealing thereof.

At common law lai:c8ny could not be committed of
things attached to the freehold. Hence, the necessity
heretofore of such statutory enactments. But in this
Code they are perfectly useless.

This part of the Commissioners' draft, recopied verbatim
in this Code, well says Sir James Stephens, " is needlessly
minute, and shows an undue anxiety to avoid changes in the
existing law which might greatly simplify it " : 8 Stephen's
Hist. 167. It would have been better perhaps to leave out
8uch a provision as this one contained in s. 835 than the
one relating to the stealing of promissory notes and other
valuable securities as has been done in s. 858, post.

This enactment extends the offence much further than
the prior Acts did, as it includes all utensils and fixtures of
whatever materials made, either fixed to buildings or in
land, or in a square or street. A church, and indeed all

Sec. 336]

TREES, SAPLINGS, ETC.

377

buildings are within the Act, and an indictment for stealing
lead lixed to a certain building without further description
will suffice : Greaves' note ; R. v. Parker, 2 East P. C. 592 ;
K. V. Norris, R. & R. 69. An unfinished building boarded
on all sides, with a door and a lock, and a roof of loose '
gorse, was held a building within the statute : R. v. Wor-
rall, 7 C. & P. 616. So also where the lead stolen formed
the gutters of two sheds built of brick, timber and tiles
upon a wharf fixed to the soil, it was held that this was a
building within the Act : R. v. Rice, Bell, 87. But a plank
used as a seat, and fixed on a wall with pillars, but with no
roof, was held not to be a building : R. v. Reece, 2 Russ.

254. Where a man, having given a false representation of
himself, got into possession of a house under a treaty for
a lease of it, and then stripped it of the lead, the jury, being
of opinion that he obtained possession of the house with
intent to steal the lead, found him guilty, and he after-
wards had judgment : R. v. Munday, 2 Leach, 850.

The prisoners were found guilty of having stolen a
copper sun-dial fixed upon a wooden post in a churchyard.
Conviction held right : R. v. Jones, Dears. & B. 555.

The ownership of the building from which the fixture is
stolen must be correctly laid in the indictment : 2 Russ.

255. If necessary, it may now be amended at the trial,
and if not laid in the indictment at all the omission will
not vitiate it.

Indictment for stealing metal, etc. — two

hundred pounds weight of iron, the property of J. N., then
filed in a certain land then being private property, to wit,
in a garden of the said J. N., situate did unlawfully

steal.

Trees, Saplings, Etc.

336 Every one is guilty of an indictable oifence and liable to ttvo years'
imprisonment who steals the whole or any part of any tree, sapling or shrub,
or any underwood, the thing stolen being of the value of twenty -five dollars,
or of the value of five dollars if the thing stolen grows in any park, pleasure

378

TfeEFT.

[Sec. 337

jpround, garden, orchard or avenue, or in any ground adjoining or belonging to
any dwelling-house. R. S. C. c. 164, a. 18. 24-23 V. o. 96, a. 32 (Imp.).

Fine, a. 958.

Injuring trees is provided for in s. 508, post.

The words " grounds adjoining" mean grounds in active
contact with the dwelling-house. Whether the ground be
a park or garden, etc., is a question for the jury. It seems
it is not material that it should be in every, part of it a
park or garden : B. v. Hodges, M. & M. 341. The amount
of injury mentioned in this and the following section must
be the actual injury to the tree or shrub itself, and not the
consequential injury resulting from the act of the defend-
ant : B. V. Whiteman, Dears. 353. The respective values
of several trees, or of the damage thereto, may be added
to make up the twenty-five dollars, in case the trees were
cut down, or the damage done as part of one continuous
transaction : B. v. Shepherd, 11 Cox, 119.

Indictment for stealing trees, etc.. in paries, etc., of a
value above jive dollars. — one oak tree of the value

of eight dollars, the property of J. N., then growing in a
certain park of the said J. N., situate in the said

park, unlawfully did steal.

Indictment under first part of the section. —
one ash tree of the value of thirty dollars, the property of
J. N., then growing in a certain close of the said J. N.,
situate in the said close, unlawfully did steal.

It is not necessary to prove that the close was not a
park or garden, etc.

Stealing Sapling a, Shrubs, Etc.

33T. Every one who steals the whole or any part of any tree, sapling or
shrub, or any underwood, the value of the article stolen, or the amount of the
damage done, being twenty-five cents at the least, is guilty of an offence and
liable on summary conviction, to a penalty not exceeding twenty-five dollars
over and above the value of the article stolen or the amount of the injury done.

2. Every one who, having been convicted of any such offence, afterwards
commits any such offence is liable on summary ccmviction, to three months'
imprisonment with hard labour.

Sec. 337]

SAPLINGS, SHRUBS, ETC.

379

3. Every one, who, having been twice convicted of any such ofFence,
afterwards commits any such otTcnce is guilty of an indictable offence and
liable to five years' imprisonment. R. S. C. c. 104, s. 19. 24-25 V. c. 06, s. 33

(Imp.).

Fine, under s-s. 8, s. 958.

Injuring trees, etc.: see post, s. 508, et seq.

Indictment under s-s. 3. — that J. S. on

one oak sapling of the value of forty cents, the property of
J. N., then growing in certain land situate unlaw-

fully did steal, and the jurors aforesaid, do say, that
heretofore, and before the committing of the offence herein
before mentioned, to wit, on at the said

J. S. was duly convicted before J. P., one of Her said
Majesty's justices of her peace for the said district of
for that he, the said J. S., on {as in the first convic-

tion); and the said J. S. was thereupon then and there
adjadged, for his said offence, to forfeit and pay the sum of
twenty dollars, over and above the value of the said tree so
stolen as aforesaid, and the further sum of forty cents,
being the value of the said tree, and also to pay the further
sum of for costs ; and in default of immediate payment
of the said sums, to b3 imprisoned in the common gaol of
tbe said district of for the space of unless

the said sums should be sooner paid. And the jurors
aforesaid, do further say, that heretofore and before the
committing of the offence first hereinbefore mentioned, to
wit, on at the said J. S. was duly convicted

before 0. P., one of Her said Majesty's justices of the peace
for the said district of for that he {setting

out the second conviction m the same manner as the first, and
proceed thvs). And so, the jurors aforesaid, do say, that
the said J. S., on the day and year first aforesaid, the said
oak sapling of the value of forty cents, the property of the
said J. N., then growing in the said land situate
unlawfull}' did steal: Greaves on s. 116 of the Larceny Act,
and 37 of the Coin Act; R, v. Martin, 11 Cox, 343; see s.
628 and s. 676, post, as to previous convictions.

380

THEFT.

[Sees. 338-340

Timber Found Adrift.

338. Every one is guilty of an indictable offence and liable to three years'

imprisonment who —

(rt) without the consent of the owner thereof :

(i) fraudulently takes, holds, keeps in his possession, collects, conceals
receives, appropriates, purchases, sells or causes or procures or assists to be
taken possession of, collected, concealed, received, appropriated, purchased
or sold, any timber, mast, spar, saw-log or other description of lumber
which is found adrift in, or oast ashore on the bank or beach of, any river
stream or lake ;

(ii) wholly or ^lartially defaces or adds, or causes or procures to be
defaced or added, any mark or number on any such timber, mast, spar
saw-log or other description of lumber, or makes or causes or procures to
be made any false or counterfeit mark on any such timber, mast, spar
saw-log or other description of lumber ; or
(6) refuses to deliver up to the proper owner thereof, or to the person in

charge thereof, on behalf of such owner, or authorized by such owner to receive

the same, any such timber, mast, spar, saw-lojf or other description of lumber.

R S. C. c. 164, s. 87. i .

Fine, a. 958.

See s. 572, post, as to search warrant, and s. 708, as to
evidence.

Stealing Fences, Etc.

83V. Every one who steals any part of any live or dead fence, or any
■wooden post, pale, wire or rail set up or used as a fence, or any stile or gate,
or any part thereof respectively, is guilty of an offence and liable, on sum-
mary conviction, to a penalty not exceeding twenty dollars over and above
the value of the article or articles so stolen or the amount of the injury doue,
2. Every one who, having been convicted of any such offence, afterwards
commits any such offence is liable, on summary conviction, to 'hree months'
imprisonment with hard labour. R. S. C. c. 164, s. 21. 24-25 V. c. 96, 8.31,
<Imp.).

Injuring fences, etc. : see s. 507, post.

Unlawful Possession of Tree, Sapling, Etc.

34LO. Every one who, having in his ix>ssession or on his premises with
his knowledge, the whole or any part of any tree, sapling or shrub, or any
underwood, or ary part of any live or dead fence, or any post, pale, wire, rail,
stile or gate, or any fiart thereof, of the value of twenty-five cents at the least,
is taken or summoned before a justice of the peace, and does not satisfy such
justice that he came lawfully by the same, is guilty of an offence and liable, on
summary conviction, to a penalty not exceeding ten dollars, over and above
the value of the article so in his pos^essioa or on his premises. R. S. C.
c. 164, a. 22.

" Having in possession " defined : s. 8.

Sec. 341]

PLANTS, ETC., IN GARDENS.

381

This section does not apply to cord- wood: R. v. Caswell,
33 U. C. Q. B. 303.

Plants, Etc., in Gardens.

34 !• Every one who steals any plant, root, fruit or vegetable productioa
growing in any garden, orchard, pleasure ground, nursery ground, hot-house,
green-house or conservatory is guilty of an offence and liable, on summary
conviction, to a penalty not exceeding twenty dollars over and above the value
of the article so stolen or the amount of the injury done, or to one month's
imprisonment with or without hard labour.

2. Every one who, having been convicted of any such offence, afterwards
commits any such offence is guilty of an indictable offence and liable to three
years' imprisonment. R. S. C c. 164, s. 23. 24-25 V. c. 96, s. 36 (Imp.).

Fine, s. 958 ; injuring plants, etc., s. 509, post.

The words plant and vegetable production do not apply
to young fruit trees: B. v. Hodges, M. & M. 341. Steal-
ing trees would fall under ss. 336 and 337.

Indictment under s-a. 2. — . that J. S., on

twenty pounds' weight of grapes, the property of J. N., then
growing in a certain garden of the said J. N., situate
unlawfully did steal ; and the jurors aforesaid, do say that
heretofore, and before the committing of the offence here
inbefore mentioned, to wit, on at the said J. S.

was duly convicted before J. P., one of Her Majesty's jus
tices of the said district of for that he, the said J. S.

on {as in the previous conviction) and the said J. S.

was thereupon then and there adjudged for the said offence
to forfeit and pay the sum of twenty do^^rs, over and
above the value of the article so stolen as aforesaid, and
the further sum of six shillings, being the amount of the
said injury ; and also to pay the sum of ten shillings for
costs, and in default of immediate payment of the said
sums, to be imprisoned in for the space of un-

less the said sum should be sooner paid, and so the jurors
aforesaid, do say, that the said J. S., on the day and in the
year first aforesaid, the said twenty pounds' weight of
grapes, the property of the said J. N., then growing in the
said garden of the said J. N., situate unlawfully did steal.
See ss. 628 and 676, post^ as to previous convictions.

=^f*^

382

THEFT.

[Sees, 342, 343

Plants Etc., not in Gardens.

343. Every one w ho steals any cultivated root or plant used for the fcxxl
of man or lieast, or for medicine, or for distilling, or for dyeing, or for or in the
course of any manufacture, and growing in any land, open or inclosed, not
being a garden, orchard, pleasure ground, or nursery ground, is guilty of an
offence and liable, on summary conviction, to a penalty not exceeding five
dollars over and above the value of the article so stolen or the amount of the
injury done, or to one months' imprisonment with hard labour.

2. Every one who, having been convicted of any such offence, afterwards
commits any such offence is liable to throe months' imprisonment with hard
labour. R. S. 0. c. 164, s. 24. 24-25 V. c. 96, s. 37 (Imp.).

Injuring roots, etc., s. 510, post.

Clover has been held to be a cultivated plant : R. v.

Brumby, 8 G. & E. 315 ; but it was doubted whether grass

v.ere so : Morris v. Wise, 2 F. & F. 51.

Stealing Ore, Minerals, Etc.

343. Every one is guilty of an ihdictable offence and liable to two years'
imprisonment who steals the ore of any metal, or any quartz, lapis calaminaris
manganese, or mundic, or any piece of gold, silver or other metal, or any wad,
black oawk, or black lead, or any coal, or cannel coal, or any imirble, stone or
other minerul, from any mine, bed or vein thereof respectively.

2. It is not an offence to take, for the puriJoses of exploration or scientific
investigation, any specimen or specmiens of any ore or mineral from any piece
of ground uninclosed and not occupied or worked as a mine, quarry or digging,

R. S. C. c. 164, s. 25. 24-25 V. c. 96, s. 38 (Imp.).

Fine, s. 958.

See S3. 571, 621 & 707, which apply to this section.

Sections 312 and 354 provide for the concealing of gold
and silver from a mine, or of anything that can be stolen.

The words "or any marble, stone, or other mineral"
are not in the English Act.

R V. Webb, 1 Moo. 431 ; R. v. Holloway, 1 Den. 370;
R. V. Poole, Dears. & B. 345, would now fall under s. 854,
post. It must be alleged and proved that the ore was
stolen from the mine : R. v. Trevenner, 2 M. & Rob. 476.

Indictment. — twenty pounds' weight of copper

ore, the property of J. N., from a certain mine of copper
ore of the said J. N., situate unlawfully did steal.

=SB"

Sec. 344]

STEALING FROM TH.

SON.

383

Stealing fbom the Pe.".iOX.
344* Every one is guilty of an indictable offonce and liable to fourteen
years' imprisonment who steals any chattel, money or valuable security from
the person of another, R. S. C. c. 164, s. 32. 24-25 V. c. 96, s. 40 (Imp.).

•' Valuable security " defined, s. 3 ; and see remarks
under s. 353, post.

Indictment for stealing from the person. — one

watch, one pocket-book and one pocket handkerchief of the
aoods and chattels of J. N., from the person of the said
J. N., unlawfully did steal.

The words " from the person of the said J. N." consti-
tute the characteristic of this offence, as distinguished from
simple larceny ; the absence of force, violence or fear dis-
tinguishes it from robbery.

The indictment need not negative the force or fear
necessary to constitute robbery ; and though it should ap-
pear upon the evidence that there was such force or fear,
the punishment for stealing from the person may be in-
flicted: R. V. Robinson, R. & R. 821; R. v. Pearce, R. &
R. 174.

To constitute a stealing from the person the thing
taken must be completely removed from the person.
Where it appeared that the prosecutor's pocket-book was in
the inside front pocket of his coat, and the prosecutor felt
a hand between his coat and waistcoat attempting to get
the book out, and the prosecutor thrust his right hand
down to his book, and on doing so brushed the prisoner's
hand ; the book was just lifted out of the pocket an inch
above the top of the pocket, but returned immediately into
the pocket; it was held by a majority of the judges that the
prisoner was not rightly convicted of stealing from the
person, because from first to last the book remained about
the person of the prosecutor, but the judges all agreed that
the simple larceny was complete. Of ten judges, four were
of opinion that the stealing from the person was complete:
R. V. Thompson, 1 Moo. 78.

384

THEFT.

[Sec. 345

Where the prosecutor carried his watch in his waistcoat
pocket, fastened to a chain, which was passed through a
button-hole of the waistcoat, and kept there by a. watch-key
at the other end of the chain ; and the defendant took the
watch out of the pocket, and forcibly drew the chain and
key out of the button-hole, but the point of the key caught
upon another button, and the defendant's hand being seized
the watch remained there suspended, this was held a suffi-
cient severance. The watch was no doubt temporarily,
though but for a moment, in the possession of the pri-
soner: R. V. Simpson, Dears. 421. In this case Jervis, CJ.,
said he thought the minority of the judges in Thompson's
case, supra, were right.

Where a man went to bed with a prostitute, leaving his
watch in his hat, on the table, and the woman stole it whilst
he was asleep, it was held not to be stealing from the per-
son, but stealing in the dwelling-house : R. v. Hamilton,
8 C. & P. 49.

Upon the trial of any indictment for stealing from the
person, if no asportation be proved the jury may convict
the prisoner of an attempt to commit that offence, under
8. 711.

In R. V. Collins, L. & G. 471, it was held that there
can only be an attempt to commit an act, where there is
such a beginning as if uninterrupted would end in the
completion of the act, and that if a person puts his hand
into a pocket with intent to steal, he cannot be found guilty
of an attempt to steal, if there was nothing in the pocket.
But that case is overruled : see s. 64. p. 42, ante, and cases

cited.

Stealing in a Dwkllinq-hocse.

34S. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who —

(a) steals in any dwelling-house any chattel, money or valuable security to
the value in the whole of twenty-five dollars or more ; or,

(b) steals any chattel, money or valuable security in any dwelling-house,
and by any menace or threat puts any one therein in bodily fear. R. S. C.
c. 164, S3. 45 & 46. 24-25 V. c. 96, ss. 60, 61 (Imp.).

Sec. 346]

STEALING IN A DWELLING-HOUSE.

385

t there
ihere is

in the
is hand
guilty

pocket,
kd cases

fourteen

tecurityto

Ing-houBe,
R.S.C.

As to the meaning of the words "valuable security":
see ante, s. 3, and remarks under s. 853, post.

Indictment under (a). — one silver sugar basin,

of the value of twenty-five dollars, of the goods and chattels
of A. B., in the dwelling-house of the said A. B., situate
unlawfully did steal.

If no larceny is proved the defendant must of course be
acqiiitted altogether, except if the jury should find him
guilty of the attempt to commit the offence charged, under
s. 711, but the jury could not find him guilty of an attempt
to commit a simple larceny: R. v. McPherson, Dears. & B.
197; but see now s. 713.

The word "dwelling-house*' has the same meaning as in
burglary. If the proof fails to prove the larceny to have
been committed in a dwelling-house or in the dwelling-
house described, or that the value of the things stolen at
any one time amounts to twenty-five dollars, the defendant
must be acquitted of the compound offence, and may be
found guilty of the simple larceny only.

The goods must be stolen to the amount of twenty-five
dollars or more at one and the same time: K. v. Petrie, 1
Leach, 294; R. v. Hamilton, 1 Leach, 348; 2 Russ. 85.

It has been held in several cases that, if a man steal the
goods of another in his own house, R. v. Thompson, R. v.
Gould, 1 Leach, 338, it is not within the statute, but these
cases appear to be overruled by R. v. Bowden, 2 Moo. 285.
Bowden was charged with having stolen Seagall's goods in
his, Bowden's house, and having been found guilty the
conviction was affirmed. Where a lodger invited an
acquaintance to sleep at his lodgings, without the know-
ledge of his landlord, and, during the night, stole his watch
from his bed's head, it was doubted at the trial whether the
lodger was not to be considered as the owner of the house
with respect to the prosecutor; but the judges held that the
defendant was properly convicted of stealing in the dwelling-
house of the landlord; the goods were under the protection

Cbim. Law— 25

386

THEFT.

[Sec. 345

of the dwelling-house: B. y. Taylor, R. & B. 418. If the
goods be under the protection of the person of the prose-
cutor, at the time they are stolen, the case will not be
within the statute; as, for instance, where the defendant
procured money to be delivered to him for a particular
purpose and then ran away with it: B. v. Campbell, 2
Leach, 664 ; and so, where the prosecutor, by the trick of
ring-dropping, was induced to lay down his money upon
the table, and the defendant took it up and carried it away:
B. Y. Owen, 2 Leach, 572. For a case to be within the
statute the goods must be under the protection of the
house. But property left at a house for a person supposed
to reside there will be under the protection of the house,
within the statute. Two boxes belonging to A., who resided
at 38 Bupert street, were delivered by a porter, whether
by mistake or design di(^ not appear, at No. 33 in the same
street ; the owner of the house imagining that they were
for the defendant who lodged there delivered them to him;
the defendant converted the contents of the boxes to his own
use, and absconded; it was doubted at the trial whether the
goods were sufficiently within the protection of the dwelling-
house to bring the case within the statute, but the judges
held that they were: B. v. Carroll, 1 Moo. 89. If one on
going to bed put his clothes and money by the bedside
these are under the protection of the dwelling-house and
not of the person ; and the question whether goods are under
the protection of the dwelling-house, or in the personal
care of the owner, is a question for the court, and not for
the jury: B. v. Thomas, Carr. Supp. 3rd Ed. 295. So where
a man went to bed with a prostitute, having put his watch
in his hat on a table, and the woman stole the watch while
he was asleep; this was held to be a stealing in a dwelling-
house, and not a stealing from the person : B. v. Hamilton,
8 C. & P. 49. But if money be stolen from uuder the
pillow of a person sleeping in a dwelling-house this is not
stealing in the dwelling-house within the meaning of the
Act: 2 Buss. 84. In ascertaining the value of the articles

Sec. 345]

STEALING IN A DWELLING-HOUSE.

387

stolen the jury may use that general knowledge which any
man can bring to the subject, but if it depends on any
particular knowledge of the trade by one of the jurymen
this juryman must be sworn and examined as a witness :
R. V. Rosser, 7 C. & P. 648. Under s-s. (6) the indictment
must expressly allege that some pe? son in the house was
put in fear by the defendant: B. v. Etherington, 2 Leach,
671.

The observations, post, under the head " Burglary "
upon questions which may arise as to what shall be deemed
a dwelling-house, will apply to the offence under this
clause : 2 Russ. 78.

The value, if amounting to twenty-five dollars, had
better always be inserted, as then, if no menace or threat,
or no person in the house being put in fear, are proved, thr
defendant may be convicted of stealing in the dwelling-
house to the value of twenty-five dollars, under s-s. (a).
If there is no proof of a larceny in a dwelling-house, or the
dwelling house alleged, or if the goods stolen are not laid
and proved to be of the value of twenty-five dollars, the
defendant may still be convicted of simple larceny if the
other aggravating circumstances are not proved.

The value is immaterial if some person was in the
house at the time, and was put in bodily fear by a menace
or threat of the defendant, which may either be by words or
gesture : R. v. Jackson, 1 Leach, 267.

It is clear that no breaking of the house is necessary to
constitute this offence ; and it should seem that property
might be considered as stolen in the dwelling-house,
within the meaning of the statute, if a delivery of it out of
the house should be obtained by threats, or an assault upon
the house by which some persons therein should be put in
fear. But questions of difficulty may perhaps arise as to
the degree of fear which must be excited by the thief.
Where, however, the prosecutor, in consequence of the
threat of an armed mob, fetched provisions out of his house

■"" '7'' ■ ';

Bill

I'll^

K P

ifflV

r V-.;

388

THEFT.

[Sec. 345

and gave them to the mob, who stood outside the door, this
was holden not to be a stealing in the dwelling house : B.
V. Leonard, 2 Buss. 78. But Greaves adds : *' It is sub-
mitted with all deference that this decision is erroneous ;
the law looks on an act done under the compulsion of
terror as the act of the person causing that terror just as
much as if he had done it actually with his own hands.
Any asportation, therefore, of a chattel under the effects of
terror is in contemplation of law the asportation of tbe
party causing the terror " : Note g, 2 Euss. loe. cit.

It does not appear to have been expressly decided under
the repealed statute whether or not it was necessary to
prove the actual sensation of fear felt by some person in
the house, or whether fear was to be implied, if some
person in the house were conscious of the fact at the time
of tbe robbery. But it was suggested as the better opinion,
and was said to have been the practice, that proof should
be given of an actual fear excited by the fact, when
committed out of the presence of the party, so as not to
amount to a robbery at common law. And it was observed
that where the fact was committed in the presence of the
party, possibly it would depend upon the particular
circumstances of the transaction whether fear would or
would not be implied; but that clearly, if it should appear
that the party in whose presence the property was taken
was not conscious of the fact at the time, the case was not
within that statute. But now, by tbe express words of the
statute, the putting in fear must have been by an actual
menace or threat : 2 Russ. 79 ; Archbold, 401.

A person outside a house may be a principal in the
second degree to menaces used in the house ; menaces used
out of the house may be taken into consideration with
menaces used in the house : R. v. Murphy, 6 Cox, 840.

Upon the trial of any offence mentioned in this section
the jury may, under s. 711, convict of an attempt to
commit such offence.

Sees. 346, 347] STEALING BY PICKLOCKS, ETC.

889

Indictment under (b). — one silver basin {of the

v:ilue of twenty-five dollars) of the goods and chattels of J.
N., in the dwelling house of the said J. N., situate
unlawfully did steal ; one A. B. then, to wit, at the time of
the committing of the offence aforesaid being in the said
dwelling-house, and therein by the said (defendant)

by a certain menace and threat then used by the said
(defendant) then being put in bodily fear. (As
to value, see ante p. 387.)

SiBAtiNO BY Picklocks, Etc. (New).

340- Evety one is guilty of an indictable offence and liable to fourteen
years' imprisonment who, by means of any picklock, false key or other instru-
ment steals anything from any receptacle for projjerty locked or otherwise

secured.

This enactment is taken from the English draft code.

Indictment. — that A. B. on at

unlawfully did steal by means of a picklock (false key or

other instrument) the sum of ten dollars, of the goods and

chattels of C. D., from a receptacle for property locked and

secured.

Stbaunq in Mancfactoriks.

347. Every one is guilty of an indictable offence and liable to^ve years'
imprisonment who steals, to the value of two dollars, any woollen, linen,
hempen or cotton yarn, or any goods or articles of silk, woollen, linen, cotton,
alpaca or mohair, or of ".ny one or more of such materials mixed with each
other or mixed with any other material, while laid, placed or exposed, during
any stage, process or progress of manufacture, in any building, field or other
place. R. S. C. c. 164, s. 47. 24-25 V. c. 96, s. 62 (Imp.).

Fine, s. 958. Injuring such goods, s. 499. post.

If you prove the larceny, but fail to prove the other
circumstances so as to brinp; the case within the statute,
the defendant may be found guilty of the simple larceny
only.

Goods remain in "a stage, procebs or progress of
manufacture," though the texture be complete, if they be
not yet brought into a condition fit for sale : R. v. Wood-
head, 1 M. & Rob. 549. See R. v. Hugill, 2 Russ. 517; R.
V. Dixon, R. & R. 53.

390

THEFT.

[Seo8. 348, m

Upon the trial of any offence mentioned in this section
the jury may, under s. 711, convict the prisoner of an
attempt to commit the same.

Indictrtient — on thirty yards of linen

cloth, of the value of four dollars, of the goods and chattels
of J. N., in a certain building of the said J. N., situate
unlawfully did steal, whilst the same were laid, placed and
exposed in the same building, during a certain state,
process and progress of manufacture. (Other counts may
be added, stating the particular process and progress of
manufacture in which the goods were when stolen. J

Fraud in Disposal op Goods for Manupacturk.

348- Every one is Ruilty of an indictable offence and liable to hco years'
imprisonment, when the offence is not within the next preceding section, wlio,
having been intrusted with, for the purpose of manufacture or for a special
purpose connected with manufacture, or employed to make, any felt or hat, or
to prepare or work up any woollen, linen, fustian, cotton, iron, leather, fur,
hemp, flax or silk, or any such materials mixed with one another, or having
been so intrusted, as aforesaid, with any other article, materials, fabric or
thing, or with any tools or apparatus for manufacturing the same, fraudulently
disposes of the same or any part thereof. R. S. C. c. 164, s. 48. 6-7 V. c. 40,
8. 2 (Imp.).

Fine, s. 968.

Indictment. — that A. B. on at

having been intrusted with, for the purpose of manufactuve,
a large quantity of, to wit of felt, of the goods and

chattels of 0. D., fraudulently disposed of the same [orauy
part thereof).

Stealing proji Ships, Wharves, Etc.

340. Every one is guilty of an indictable offence and liable to fuurteeu
years' imprisonment who —

(a) steals any goods or merchandise in any vessel, barge or boat of any
description whatsoever, in any haven or in any port of entry or discharge, or
upon any navigable river or canal, or in any creek or basin belonging to or
communicating with any such haven, port, river or canal ; or

(6) steals any goods or merchandise from any dock, wharf or quay adjaaut
to any such haven, port, river, canal, creek or basin. R. S. C. c. IH s. 49.
24-25 V. c. 96, 8. 63 (Imp.).

See sched. one, form F. F., under s. 611 pont.

Sec. 349]

STEALING IN SHIPS, ETC.

391

Indictment for stealing in a vessel on a navigable
river. — on twenty pounds weight of indigo

of the goods and merchandise of J. N., then being in a
certain ship called the Rattler upon the navigable river
Thames, in the said ship, unlawfully did steal.

hulictment for stealing from a dock. — on

twenty pounds weight of indigo of the goods and

merchandise of J. M., then being in and upon a certain

dock adjacent to a certain navigable river called the Thames,

from the said dock, unlawfully did steal.

The value is immaterial, and need not be laid. If the
prosecutor fails to prove any of the circumstances necessary
to bring the case within the statute, but proves a larceny,
the defendant may be convicted of the simple larceny.

The construction of the old statutes was generally con-
fined to such goods and merchandise as are usually lodged
in ships, or on wharves or quays ; and therefore where
Grimes was indicted for stealing a considerable sum of
money out of a ship in port, though great part of it con-
sisted in Portugal money, not made current by proclama-
tion, but commonly current, it was ruled not to be within
the statute : B. v. Grimes, Fost. 79 : B. v. Leigh, 1 Leach,
52. The same may be said of the present statute, by
reason of the substitution of the words " goods or merchan-
dise" for the words "chattel, money or valuable security"
which are used in other parts of the Act : Archbold.

It would not be sufficient, in an indictment for stealing
goods from any vessel on a certain navigable river, to prove
in evidence that the vessel was aground in a dock in a creek
of the river, unless the indictment were amended : B. v.
Pike, 1 Leach, 317. The words of the statute are " in any
vessel," and it is therefore immaterial whether the defend-
ant succeeded in taking the goods from the ship or not, if
there was a sufficient asportation in the ship to constitute
larceny : 3 Burn, 254.

392

THEFT.

[Sees. 350, 361

The MTords of the statute are " from any dock," so that,
upon an indictment for stealing from a dock, wharf, etc., a
mere removal will not suffice; there must be an actual
removal /rom the dock, etc : Archbold, 409.

A man cannot be guilty of this offence in his own ship:
B. V. Madox, B. & B. 92 ; but see B. v. Bowden, 2 Moo.
285. And now, s. 805, ante, would apply to such a case,
being stealing by fraudulent conversion.

The luggage of a passenger going by steamer is within
the statute. The prisoners were indicted for stealing a
portmanteau, two coats and various other articles, in a
vessel upon the navigable Biver Thames. The property
in question was the luggage of a passenger going on board
the Columbian steamer from London to Hamburg ; and it
was held that the object of the statute was to protect
things on board a ship, and that the luggage of a passenger
came within the general description of goods : B. v. Wright,
7 C. & P. 159.

Upon an indictment for any offence mentioned in this
section the jury may convict of dn attempt to commit the
same, under s. 711, if the evidence warrants it.

Stkalino Wrecks.

330. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who steals any wreck. R. S. C. c. 81, s. 36 (c). 24-25 V.
c. 96, 8. 64, (Imp.).

" Wreck " defined, s. 3.

Indictment. — that on at

a certain ship, the property of a person or persons to the
jurors unknown (or of ) was stranded, and that

A. B., on the said day, ten pieces of oak planks, being
parts of the said ship (or twenty jiounds weight' of cotton
of the goods and merchandize of a shipwrecked 'person
belonging to the said ship), unlawfully did steal.

Stealing on Railways. (Ifew).

391. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who steals anything in or from any railway station or
building, or front any engine, tender or vehicle of any kind on any railway.

Sees. 362, 863] STEALING IN INDIAN GRAVE.

398

IndictTTMnt.— that A. B., at on

unlawfully did steal a leather portmanteau of the ^oods and
chattels of C. D. in (or from) a railway station, to wit, the
station there situate belonging to the Canadian Pacific
Railway.

The value is immaterial. A verdict for attempt, s. 711,
or for simple larceny, s. 718, may be given if the evidence
warrants it. In the first case, the punishment would be
under s. 628, post : in the latter case, under s. 856.

See remarks under s. 849 as to the words in or from
in this section.

Stbalino Things in Indian Gravb.

SI58. Every one who steals, or unlawfully injures or removes, any
image, bones, article or thinf^ deposited in or near any Indian grave is guilty
of an oSenoe and liable, on summary conviction, for a first offence to a penalty
not exceeding one hundred dollars or to three months' imprisonment, and for
a subsequent offence to the same penalty and to six months' imprisonment
with hard labour. R. S. C. c. 164, s. 98. (Amended).

This enactment by the repealed statute applied only to
British Columbia.

Dkstroyino DoCCMENTa.

35S. Every one who destroys, cancels, conceals or obliterates any docu-
ment of title to goods or lands, or any valuable security, testamentary
instrument, or judicial, official or other document, for any fraudulent purpose,
i!> guilty of an indictable offence and liable to the same punishment as if he
had stolen such document, security or instrument. R. S. C. c. 164, ss. 12, 13,
14. (Amended). 24-25 V. o. i)6, ss. 27, 28, 29 (Imp.).

See ante remarks under s. 385. S. 101, c. 35, R. S. C,
provides for certain offences of the same nature by post-
masters.

"Document of title to goods or lands," "valuable
security " and *' testamentary instrument " defined, s. 3.
Punishment, for stealing testamentary instruments, is
provided for by s. 323; documents of title to lands or goods,
by s. 824; and judicial or official document, by s. 325.
For stealing other documents not specially provided for
iu this Code, and for promissory notes, bills of exchange,
and other valuable securities, the punishment falls under

«?

394

THEFT.

[Sec. 353

8S. 356 & 357. The repealed section (12, o. 164, R. 8. C.)
provided in express terms for the stealing of such securities,
but the Code has no express provision on the subject.
S. 303 is the only one under which the stealing of these
securities may be held to be indictable: s. 353 merely
assumes that they are.

As to what constitutes a " valuable security," it must
be remarked that the interpretation given to this word,
in s. 3, ante, is wider or, at least, more explicit than the
interpretation given in the Imperial Act, 24 & 25 "V. c. 96,
8. 1. The case of Scott v. R., 2 S. C. R. 849, and (in first
instance) 21 L. C. J. 225, refers to a number of cases as to
unstamped documents, where stamps are necessary. B. y.
Phipoe, 2 Leach, 673, and R. v. Edwards, 6 C. & P. 521,
would now fall under s. 405, post. An instrument need
not be negotiable to be a " valuable security " under the
statute : R. v. John, 13 Cox, 100. See Austin and King's
cases, 2 East P. C. 602 ; R. v. Hart, 6 C. & P. 106;
R. V. Clark, R. & R. 181 ; R. v. Watts, 6 Cox, 304 ; R. v.
Morton, 2 East P. C. 955 ; R. v. Dewitt, 21 N. B. 17 ; R.
V. Bowerman, 17 Cox, 151, [1891] 1 Q. B. 112. The
cheque of a firm before it is endorsed by the payee, and
while still in the hands of one of the members of the firm,
is not a valuable security within the meaning of this Act :
R. V. Ford, M. L. R. 7 Q. B. 413 ; but a receipt is : R. v.
Doonan, M. L. R. 6 Q. B. 186.

Indictment under 8. 353. — on a certain

valuable security, to wit, one bill of exchange for the pay-
ment of one hundred dollars (drawn ) unlawfully did,
for a fraudulent purpose, destroy and cancel (conceal or
obliterate), the said bill of exchange, being then due and
unsatisfied. (In another count detail the purpose.)

Upon an indictment for taking a record from its place
of deposit, with a fraudulent purpose, the mere taking is
evidence from which fraud may fairly be presumed, unless
it be satisfactorily explained.

Sec, 353]

DESTROYING DOCUMENTS.

395

The first count charged the prisoner with stealing a
certain process of a court of record, to wit, a certain war-
rant of execution issued out of the county court of Berk-
shire, in an action wherein one Arthur was plaintiff and the
prisoner defendant. The second count stated that at the
time of committing the offence hereinafter mentioned, one
Brooker had the lawful custody of a certain process of a
court of record, to wit, a warrant of execution out of the
county court of that defendant intending to prevent

the due course of law, and to deprive Arthur of the rights,
benefits and advantages from the lawful execution of the
warrant, did take from Brooker the said warrant, he,
Brooker, having then the lawful custody of it. Brooker
was the bailiff who had seized the defendant's goods, under
the said writ of execution. The prisoner, a day or twa
afterwards, forcibly took the warrant out of the bailiff's
band, and kept it. He then ordered him away, as having
no more authority, and, on his refusal to go, forcibly
turned him out. The prisoner was found guilty, and the
conviction affirmed upon a case reserved. Cockburn,^
C.J., said : " I think that the first count of the indictment
which charges larceny will not hold. There was no taking
liicri causa, but for the purpose of preventing the bailiff
from having lawful possession. Neither was the taking
animo furandi. I may illustrate it by the case of a man
who, wishing to strike another person, sees him coming
along with a stick in his hand, takes the stick out of his
band, and strikes him with it. That would be an assault,
but not a felonious taking of the stick. There is, however,
a second count in the indictment which charges in effect
that the prisoner took the warrant for a fraudulent pur-
pose. The facts show that the taking was for a fraudulent
purpose. He took the warrant forcibly from the bailiff, in
order that he might turn him out of possession. That wa»
a fraud against the execution creditor, and was also con-
trary to the law. I am therefore of opinion that it amounts
to a fraudulent purpose within the enactment, and that the

i^W

mi' I

ltti'K^3

396

THEFT.

[Sees. 354.355

conviction must be affirmed " : E. v. Bailey, 12 Cox, 129.
Such a case would now fall under next section.

Maliciously destroying an information or record of the
police court is a felony within 32 & 83 V. c. 21, s. 18 ; E.
V. Mason, 22 U. C. C. P. 246.

Concealing. (Neie).

354- Every one is guilty of an indictable offence and liable to two
years' imprisonment who, for any fraudulent purpose, takes, obtains, removes
or conceals anything capable of being stolen.

Fine, s. 958. See remarks and cases under ss. 843 and
358, ante. S. 26, c. 164, R. S. C. was confined to the
concealing of minerals.

Indictment. — on did unlawfully take [or

obtain, remove or conceal) ten bushels of oats, the property
of of the value of five dollars, for a fraudulent

purpose, to wit, for the purpose of

Bringing by Thief into Canada of Anything Stolen Elsewherk.

355. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who, having obtained elsewhere than in Canada any
proi)erty by any act which, if done in Canada, would have amounted to theft,
brings such property into or has the same in Canada. R. S. C. c. 164, s. 8S.
{Aiaetuled).

"Property" defined, s. 3: see R. v. Hennessej*, 35
U. C. Q. B. 603.

The repealed section extended to property obtained by
false pretenses. There is no statutory enactment of this
kind in England : R. v. Prowes, 1 Moo. 349 ; R. v. Debruiel,
11 Cox, 207. One was proposed in the draft code.

Receiving in Canada property stolen abroad by any
other person does not fall under the above clause. It falls
under s. 314, ante.

On a charge of having in possession goods stolen in a
foreign country not always necessary to prove state of the
law in that country. Crown proved that prisoner had iu
Canada property taken in another country under circum-
stances which would have made it felony in Canada if so

Sees. 356-358]

OTHER CASES.

397

taken there. Ofifence held proved. Allegation in indict-
ment that prisoner ** feloniously had taken and carried
£ivfay," the goods does not impose any additional harden
of proof on the Crown : R. v. Jewell, 6 Man. L. R. 460.

Punishment in Other Cases.

356. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who steals anything for the stealing of which no punish-
ment is otherwise provided, or commits in respect thereof any offence for which
he is liable to the same punishment as if he had stolen the same.

2. The offender is liable to ten years' imprisonment if he has been
previously convicted of theft. R. S. C. c. 164, ss. .'), 6 & 85. (Amended).

As to previous convictions, see ss. 628, 676. The words
"any felony" stood in lieu of the word "theft" in the
repealed clause. The words in italics are superfluous.

Punishment when Value Exceeds $200.

357. If the value of anything stolen, or in respect of which any offence
is committed for which the offender is liable to the same punishment as if he
had stolen it, exceeds the sum of two hundred dollars, the offender is liable to
/jCQ yetars' imprisonment, in addition to any punishment to which he is other-
wise liable for such offence. R. S. C. c. 164, s. 86. {Amended).

The indictment must specially aver that the value
exceeds two hundred dollars. The additional punishment
was seven years by the repealed clause, which also applied
to obtaining by false pretenses.

PART XXVII.

OBTAINING PROPERTY BY FALSE PRETENSES AND OTHER
CRIMINAL FRAUDS AND DEALINGS WITH PROPERTY.

Definition.

358- A false pretense is a representation, either by words or otherwise,
uf a matter of fact either present or past, which representation is known to the
person making it to Ite false, and which is made with a fraudulent intent to
induce the person to whom it is made to act \i\yon such representation.

•398

FALSE PRETENSES.

[Sec. 359

2. Exaggerated commendation or depreciation of the quality of anythine
is not a false pretense, unless it is carried to such an extent as to amount to a
fraudulent misrepresentation of fact.

3. It is a question of fact whether such commendation or depreciation does
or does not amount to a fraudulent misrenresentation of fact.

This definition is taken from the English draft, where
it is given as existing law.

* Punishment.

3S0- Every one is guilty of an indictable offence and liable to three
years' imprisonment who, with intent to defraud, by any false pretense
cither directly or through the medium of any contract ohtaitied by such false
pretense, obtains anything capable of being stolen, or procures anything capable
of being stolen to be delivered to any other person than himself. R. s, C.
■c. 164, 8. 77. (Amended).

As to what things are capable of being stolen, see
remarks under s. 353, ante.

The first part of this section is based on 24 & 25 V. c. 96,
s. 88, the second part on s. 89 of the Imperial Act.

Section 198 of the Procedure Act, which allowed a
conviction for obtaining under false pretenses on a trial for
larceny, and s. 196 of the same Act which enacted that on
a trial for obtaining under false pretenses, if a larceny was
proved the defendant could nevertheless be found guilty of
the oflfence charged, have not been re-enacted: 3 Stephen's
Hist. 162 ; R. v. Adams, 1 Den. 38 ; R. v. Rudge, 13 Cox,
17 ; R. V. Bryan, 2 Russ. 664, note ; R. v. Solomons, 17
Cox, 93 ; R. v. Gorbutt, Dears. & B. 166.

By 8. 711, upon an indictment under this sectioQ, the
jurj may return a verdict of guilty of an attempt to commit
the oflfence charged, if the evidence warrants it : R. v.
Roebuck, Dears. & B. 24 ; R. v. Eagleton, Dears. 376, 515 ;
R. V. Hensler, 11 Cox, 670; R. v. Goff, 9 U. C. C. P. 438.

By ss. 613 and 616 post, in indictments for obtaining or
attempting to obtain under false pretenses, a general intent
to defraud is a sufficient allegation, and it is not necessary
to allege any ownership of the chattel, money or valuable
security.

Sec. 369]

FALSE PRETENSES.

399

To constitate the offence of obtaining goods by false
pretenses three elements are necessary. 1st, the statement
upon which the goods are obtained must be untrue ; 2nd,
the prisoner must have known at the time he made the
statement that it was untrue ; 8rd, thd^ goods must have
been obtained by reason and on the representation of that
false statement : B. v. Burton, 16 Cox, 62 ; see R. v.
Buckmaster and R. v. Solomons, Warb. Lead. Cas. 158,
160 ; R. V. Russett, 17 Cox, 534.

The distinction between larceny and false pretenses is
that, if by means of any trick or artifice the owner of pro-
perty is induced to part with the possession only, still mean-
ing to retain the right of property, the taking by such means
will amount to larceny ; but if the owner part with not only
the possession of the goods, but the right of property in them
also, the offence of the party obtaining them will not be lar-
ceny, but the offence of obtaining goods by false pretenses.

Indictment. — that J. S., on unlawfully, and

with a fraudulent intent, did falsely pretend to one A. B.
that be, the said J. S., then was the servant of one 0. E.,
of tailor, (the said 0. K. then and long before being

well known to the said A. B., and a ciustomer of the said
A. B. in hia business and way of trade as a woollen
draper), and that he, the said J. S., was then sent by the
said 0. E. to the said A. B. for five yards of superfine
woollen cloth, by means of which said false pretenses, the
said J. S. did then unlawfully and fraudulently obtain from
the said A. B. five yards of superfine woollen cloth.

A form is given in schedule one, F. F.: see under s. 611.
Under s. 982, an indictment drawn upon that form is suffi-
cient. But, to avoid the necessity of giving particulars,
which the court will not refuse to the defendant, ss. 616,
617, the false pretenses should be averred in the indictment.
It is not necessary, however, as heretofore, to aver that the
false pretenses were not true.

400

FALSE PRETENSES.

[Sec. 359

The pretense must be set out in the indictment : R. v.
Mason, 2 T. R. 581 ; R. v. (joldsmith, 12 Cox, 479; see
now 8. 616, post. And it must be stated to be false:
R. V. Airey, 2 East, 30. And it must be of some existing
fact ; a pretense that the defendant will do some act, or
that he has got to do some act is not sufficient : R. v
Goodhall, R. & R. 461 ; R. v. Johnston, 2 Moo. 264 ; R. v.
Lee, L. & C. 809. Where the pretense is partly a misre-
presentation of an existing fact, and partly a promise to do
some act, the defendant may be convicted, if the property is
parted with in consequence of the misrepresentation of fact
although the promise also actf^d upon the prosecutor's mind:
R. V. Fry, Dears. & B. 449 ; R. v. West, Dears. & B. 575;
R. V. Jennison, L. & C. 167, Warb. Lead. Cas. 167.

Where the pretense, gathered from all the circumstances,
was that the prisoner had power to bring back the hus-
band of the prosecutrix, though the words used were
merely promissory that she, the prisoner, would bring him
back, it was held a sufficient pretense of an existing fact,
and that it is not necessary that the false pretense should
be made in express words, if it can be inferred from all the
circumstances attending the obtaining of the property:
R. V. Giles, L. & C. 602.

Where the indictment alleged that the prisoner pre-
tended to A.'s representative that she was to give him
twenty shillings for B., and that A. was going to allow B. ten
shillings a week, it was held that it did not sufficiently
appear that there was any false pretense of fku existing
fact : R. v. Henshaw, L. 6i, C. 444.

An indictment alleged that the prisoner obtained a coat
by falsely pretending that a bill of parcels of a coat, value
£0 148. 6d. of which £0 4s. 6d. had been paid on account,
and £0 10s. Od. only was due, was a bill of parcels of
another coat of the value of twenty-two shillings. The evi-
dence was that the prisoner's wife had selected the £0 Us.
6d. coat for him, subject to its fitting him, and had

GENERAL REMARKS.

401

£0 4s. 6d. account, for which she on received a bill of parcels
giving credit for that amount. On trying on the coat it
\vas found to be too small, and the prisoner was then mea-
sured for one to cost twenty-two shillings. When that was
made it was tried on by the prosecutor, who was not privy
to the former part of the transaction. The prisoner when
the coat was given to him handed/ the bill of parcels for
the £0 14s. 6d. and also £0 10s. Od. to the prosecutor, saying
" There is £0 10s. Od. to pay." The bill was receipted, and
the prisoner took the twenty-two shillings 3oat away with
him. The prosecutor stated that believing the bill of par-
cels to refer to the twenty-two shillings coat he parted with
that coat on payment of £0 10s. Od. otherwise he should
not have done so : Held, that there was evidence to support
a conviction on the indictment : B. v. Steels, 11 Cox, 5.

So the defendant may be convicted although the pre-
tense is of some existing fact, the falsehood of which might
have been ascertained by inquiry by the party defrauded
R. V. Wickham, 10 A. & E. 34 ; R. v. Woolley, 1 Den. 559
R. V. Ball, C. & M. 249 ; R. v. Roebuck, Dears. & B. 24
or against which common prudence might have guarded
R. V. Young, 3 T. R. 98 ; R. v. Jessop, Dears. & B. 442
R. V. Hughes, 1 F. & F. 355. If, however, the prosecutor
knows the pretense to be false : R. v. Mills, Dears. & B.
205 ; or does not part with the goods in consequence of
defendant's representation : R. v. Roebuck, Dears. & B. 24 ;
or parts with them before the representation is made : R.
V. Brooks, 1 F. & F. 502 ; or in consequence of a represen-
tation as to some future fact : R. v. Dale, 7 G. & P. 352 ; or
if the obtaining of the goods is too remotely connected with
the false pretense, which is a question for the jury : R. v.
Gardner, Dears. & B. 40; R. v. Martin, 10 Cox, 383, Warb.
Lead. Gas. 173; or if the prosecutor continues to be
interested in the money alleged to have been obtained, as
partner with the defendant, R. v. Watson, Dears. & B. 348 ;
B. V. Evans, L. & G. 252 ; or the objest of the false pretense

Cbim. Law— 26

V.' Jh
-5? Y

402

FALSE PRETENSES, ETC.

is something else than the obtaining of the moriey : B. \.
Stone, 1 F. & F. 311, the defendant cannot be convicted.

Falsely pretending that he has bought goods to a
certain amount, and presenting a check-ticket for them :
R. V. Barnes, 2 Den. 69 ; or overstating a sum due for dock
dues or custom duties : R. v. Thompson, L. & G. 233 ; will
render the prisoner liable to be convicted under the statute
{See reporter's note to this last case.)

The pretense need not be in words but may consist of
the acts and conduct of the defendant. Thus the giving a
cheque on a banker with whom the defendant has no
account : R. v. Flint, R. & R. 460; R. v. Jackson, 3 Camp.
370 ; R. V. Parker, 2 Moo. 1 ; R. v. Spencer, 3 C. & P. 420;
R. V. Wickman, 10 A. & E. 34 ; R. v. Philpotts, 1 C. & K
112 ; R. V. Freeth, R. &-R. 127 ; or the fraudulently assum-
ing the name of another to whom money is payable : R. v.
Story, R. & R. 81 ; R. v. Jones, 1 Den. 551 ; or the fraudulently
assuming the dress of a member of one of the universities,
is a false pretense within the statute : R. v. Barnard, 7 C.
& P. 784, Warb. Lead. Gas. 162.

The prisoner obtained a sum of money from the prose-
cutor by pretending that he carried on an extensive busi-
ness as an auctioneer and house agent, and that he wanted
a clerk, and that the money was to be deposited as security
for the prosecutor's honesty as such clerk. The jury found
that the prisoner was not carrying on that business at all.
Held, that this was an indictable false pretense : R v.
Grab, 11 Gox, 85; R. v. Gooper, 13 Gox, 617.

The defendant, knowing that some old country bank
notes had been taken by histuncle forty years before, and
that the bank had stopped payment, gave them to a man
to pass, telling him to say, if asked about them, that he
had taken them from a man he did not know. The mau
passed the notes, and the defendant obtained value for
them. It appears that the bankers were made bankrupt.
Held, that the defendant was guilty of obtaining money by

GENERAL REMARKS.

403

■y bank
)re, and
} a man
that he
'he mau
,lue for
inkrupt.
loney by

false pretenses, and that the bankruptcy proceedings need
not be proved : R. v. Dowey, 11 Cox, 116.

The indictment alleged that the prisoner was living
apart from her husband under a deed of separation, and
vvas in receipt of an income from her husband, and that he
was not to be liable for her debts, yet that she falsely
pretended to the prosecutor that she was living with her
husband, and was authorized to apply for and receive from
the prosecutor goods on the account and credit of her
husband, and that her husband was then ready and willing
to pay for the goods. The evidence at the trial was that
the prisoner went to the prosecutor's shop and selected the
goods, and said that her husband would give a cheque for
them as soon as they were delivered, and that she would
send the person bringing the goods to her husband's office,
and that he would give a cheque. When all the goods were
delivered the prisoner told the man who delivered them to
go to her husband's office, and that he would pay for them.
The man went but could not see her husband, and ascer-
tained that there was a deed of separation between the
prisoner and her husband, which was shown to him. He
communicated what he had learned to the prisoner who
denied the deed of separation. The goods were shortly
after removed and pawned by the prisoner. The deed of
separation between the prisoner and her husband was put
in evidence, by which it was stipulated that the husband
was not to pay her debts ; and it was proved that she was
living apart from her husband, and receiving an annuity
from him, and that she was also cohabiting with another
man. Held, that the false pretenses charged were
sufficiently proved by this evidence : R. v. Davis, 11 Cox,
181.

On an indictment for fraudulently obtaining goods in a
market by falsely pretending that a room had been taken
at which to pay the market people for their goods, the jury
found that the well known practice was for buyers to

ii:;^

Mf'i

404

FALSE PRETENSES. ETC.

engage a room at a public house, and that the prisoner, pre-
tending to be a buyer, conveyed to the minds of the market
people that she had engaged such a room, and that they
parted with their goods on such belief : Held, there being
no evidence that the prisoner knew of such a practice
and the case being consistent with a promise only on her
part to engage such a room and pay for the goods there,
the conviction could not be sustained : R. v. Burrows, 11
Cox, 258.

On the trial of an indictment against the prisoner for
pretending that his goods were unencumbered, and obtain-
ing thereby eight pounds from the prosecutor with intent
to defraud, it appeared that the prosecutor lent money to
the prisoner at interest, on the security of a bill of sale on
furniture, a promissory note of prisoner and another person
and a declaration made by prisoner that the furniture was
unencumbered. The declaration was untrue at the time it
was handed to the prosecutor, the prisoner having a few
hours before given a bill of sale for the furniture to
another person, but not to its full value : Held, that there
was evidence to go to the jury in support of a charge of
obtaining money by false pretenses: R. v. Meakin, 11
Cox, 270.

A false representation as to the value of a business will
not sustain an indictment for obtaining money by false
pretenses. On an indictment for obtaining money by false
pretenses it appeared that the prisoner, on engaging an
assistant from whom he received a deposit, represented to
him that he was doing a good business, and that he had
sold a good business for a certain large sum, whereas the
business was worthless and he had been bankrupt : UeJd,
that the indictment could not be sustained upon either of
the representations : R. v. Williamson, 11 Cox, 328.

It has been seen, ante, that in R. v. Mills, Dears. & B. 205,
Warb. Lead. Cas. 172, it was held that the defendant
cannot be convicted if the prosecutor knows the pretense

GENERAL REMARKS.

405

to be false. The defendant, however, in such cases may,
under s. 711, po8t, be found guilty of an attempt to commit
the oflfence charged, or be, in the first instance, indicted
for the attempt. In R. v. Hensler, 11 Cox, 570, the prisoner
was indicted for attempting to ojbtain money by false
pretenses in a begging letter. In reply to the letter the
prosecutor sent the prisoner five shillings ; but he stated in
bis evidence at the trial that he knew that the statements
contained in the letter were untrue ; it was held, upon a
case reserved that the prisoner might be convicted, on this
evidence, of attempting to obtain money by false pretenses.
But an indictment for an attempt to obtain property by
false pretenses must specify the attempt : B. v. Marsh, 1
Den. 505. The proper course is to allege the false pretenses,
and to deny their truth in the same manner as in an indict-
ment for obtaining property by false pretenses, and then to
allege that by means of the false pretenses the prisoner
attempted to obtain the property; note by Greaves, 2
Russ. 698.

An indictment charged that the prisoner falsely pre-
tended that he had got a carriage and pair, and expected it
down to T.* that day or the next, and that he had a large
property abroad. The evidence was that the prisoner was
at E., assuming to be a man of position and wealth, but was
in a destitute condition, and could not pay his hotel and
other bills. That three days after he came to T., and
induced prosecutor to part with goods on the representa-
tion that he had just come from abroad and had shipped a
large quantity of wine to R., from EIngland, and expected
his carriage and pair to come down, and that he had taken
a large house at T., and was going to furnish it : Held,
that the false pretenses charged were suflScient in point of
law, and also that the evidence was sufficient to sustain a
conviction: R. v. Howarth, 11 Cox, 588.

Prisoner was indicted for obtaining from George Hislop,
the master of the workhouse of the Strand Union, one pint

406

FALSE PRETENSES, ETC.

of milk and one egg, by falsely protending that a certain
child then brought by him had been by him found in
Leicester Square, whereas these facts were untrue. The
facts were that the prisoner was waiter at an hotel in
George Street, Hanover Square. A female servant there,
named Spires, had been delivered of a child by him, which
was put out to nurse. The child falling ill the nurse
brought it to the hotel, and the prisoner, saying that he
would find another nurse, took the woman with him to
Westminster, where the nurse put the child into his arms
and went away. He took it to the work-house of St.
Martin-in-the-Fields, which is in the Strand Union, and
delivered it to the Master, stating that he had found it in
Leicester Square. It was by the master delivered to the
nurse to be taken care of, and the nurse fed it with the pint
of milk and egg which was the subject of the charge of the
indictment as the property obtained by the false pretenses
alleged : Held, that this evidence did not sustain the indict-
ment, and that the food given to the child was too remote
an object : R. v. Carpenter, 11 Cox, 600.

In R. V. Walne, 11 Cox, 647, the conviction was also
quashed on the deficiency of the evidence, as no false
pretense of an existing fact was proved : see R. v. Speed, 15
Cox, 24.

Prisoner by falsely pretending to a liveryman that he
was sent by another person to hire a horse for him for a
drive to E., obtained the horse. The prisoner returned in
the same evening but did not pay for the hire : Held, that
this was not an obtaining of a chattel with intv.nt to defraud
within the meaning of the statute. To constitute such an
offence, there must be an intention to deprive the owner of
the property: R. v, Kilham, 11 Cox, 561, Warb. Lead. Cas.
175. It may, perhaps, be stealing now in Canada.

There may be a false pretense made in the course of a
contract, by which money is obtained under the contract :
R. V. Kenrick, D. & M. 208; R. v. Abbott, 2 Cox, 430;

GENERAL REMARKS.

407

R. V. Burgon, Dears. & B. 11 ; as to weight or quantity of
(foods sold when sold by weight or quantity : R. v. Sher-
vvood, Dears. & B. 251 ; R. v. Ragg, Bell, 214 ; R. v. Goss,
Bell, 208 ; R. v. Lees, L. & C. 418 ; R.^v. Ridgway, 3 F. & F.
838 ; but, in all such cases, there must be a misrepresenta-
tion of a definite fact.

But " puffing " or a mere false representation as to
quality is not indictable : R. v. Bryan, Dears. & B. 265, and
the coinraents upon it by the judges, in Ragg's case, Bell.
2U ; R. V. Pratt, 8 Cox, 334 ; see R. v. Foster, 13 Cox, 393.
Thus representing a chain to be gold, which turns out to be
made of brass, silver and gold, the latter very minute in
uuautity, is not within the statute : R. v. Lee, 8 Cox, 233 ;
sed qiuere ? And see Greaves' observations, 2 Russ. 664,
and R. v. Suter, 10 Cox, 577 ; and cases collected in R, v.
Bryan, Warb. Lead. Cas. 170.

It is not a false pretense, within the statute, that more
money is due for executing certain work than is actually
due, for that is a mere wrongful overcharge : R. v. Oates,
Deal's. 459. So, where the defendant pretended to a parish
officer, as an excuse for not working, that he had no clothes,
and thereby obtained some from the officer, it was held that
he was not indictable, the statement being rather a false
excuse for not working than a false pretense to obtain
goods : R. V. Wakeling, R. & R. 504.

Where the prisoner pretended, first, that he was a
single man, and next, that he had a right to bring an action
tor breach of promise, and the prosecutrix said that she was
induced to pay him money by the threat of the action, but
she would not have paid it had she known the defendant
to be a married man, it was held that either of these tvro
false pretenses was sufficient to bring the case within the
statute : R. v. Copeland, Car. & M. 516.

Where the prisoner represented that he was connected
with J. S., and that J. S. was a very rich man, and obtained
goods by that false representation, it was held within the

408

FALSE PRETENSES, ETC.

statute : R. v. Archer, Dears. 449. Obtaining by falsely
pretending to be a medical man or an attorney is within
the statute : R. v. Bloomfield, Car. & M. 537 ; R. v. Asterley,
7 C. & P. 191.

It is no objection that the moneys have been obtained
only by way of a loan : R. v. Crossley, 2 M. & Rob. 17 ;
2 Russ. 668, and R. v. Kilham, 11 Cox, 561.

Obtaining goods by false pretenses intending to pay
for them is within the statute : R. v. Naylor, 10 Cox, 149,
Warb. Lead. Cas. 169.

It must be alleged and proved that the defendant knew
the pretense to be false at the time of making it : R. v.
Henderson, 2 Moo. 192; R. v. Philpotts, 1 C. & K. 112;
R. V. Gray, 17 Cox, 299. After verdict, however, an
indictment following the words of the statute is sufficient:
R. V. Bo wen, 3 Cox, 483 ; Hamilton v. R. in error, 2 Cox,
11. It is no defence that the prosecutor laid a trap to draw
the prisoner into the commission of the offence : R. v
Adamson, 2 Moo. 286 ; R. v. Ady, 7 C. & P. 140.

Upon a charge of obtaining money by false pretenses
it is sufficient if the actual substantial pretense, which is
the main inducement to part with the money, is alleged
in the indictment, and proved, although it may be shewn
by evidence that other matters not laid in the indictment
in some measure operated upon the mind of the prosecutor
as an inducement for him to part with his money : R. v.
Hewgill, Dears. 315. The indictment must negative the
pretenses by special averment, and the false pretense must
be proved as laid. Any variance will be fatal, unless
amended : 3 Bum, 277. But proof of part of the pretense,
and that the money was obtained by such proof is suffi-
cient : R. V. Hill, R. & R. 190 ; R. v. Wickham, 10 A. & E.
34 ; R. V. Bates, 3 Cox, 201 ; see s. 616 and form F. F.,
sched one, under s. 611.

But ttie goods must be obtained by means of some of the
pretenses laid : R. v. Hunt, 8 Cjx, 495 ; R. v. Jones, 15

GENERAL REMARKS.

40&

Cox, 475. And where the indictment alleged a pretense
which in fact the prisoner did at first pretend, but the
prosecutor parted with his property in consequence of a
subsequent pretense, which was not alleged, it was held
that the evidence did not support the indictment: R. v.
Bulmer, L. & C. 476.

Where money is obtained by the joint effect of several
mis-statements, some of which are not and some are false
pretenses within the statute, the defendant may be convicted:
R. V. Jennison, L. &; C. 157 ; but the property must be
obtained by means of one of the false pretenses charged,
and a subsequent pretense will not support the indictment :
R. V. Brooks, 1 F. & F. 502 ; see R. v. Lince, 12 Cox, 451.

Parol evidence of the false pretense may be given,
although a deed between the parties, stating a different
consideration for parting with the money, is produced, such
deed having been made for the purpose of the fraud : R. v.
Adamson, 2 Moo. 286. So also parol evidence of a lost
written pretense may be given : R. v. Chadwick, 6 C. & P.
181. On an indictment for obtaining money from A.,
evidence that the prisoner about the same time obtained
money from other persons by similar false pretenses is not
admissible : R. v. Holt, 8 Cox, 411, Bell, 280. But other
false pretenses at other times to the same persons are
admissible, if they are so connected as to form one contin-
uing representation, which it is the province of the jury to
determine : R. v. Welman, Dears. 188, 6 Cox, 153. See R.
V. Durocher, 12 R. L. 697.

Inducing a person by a false pretense to accept a bill of
exchange is not within this section : R. v. Danger, Dears.
& B. 307 ; see R. v. Gordon, 16 Cox, 622 ; see s. 360, post.

A railway ticket obtained by false pretenses is within
the statute, R. v. Boulton, 1 Den. 508 ; R. v. Beecham, 5
Cox, 181 ; ss. 330, 369 ; and so is an order by the president
of a burial society on a treasurer for the payment of
money : R. v. Greenhalgh, Dears. 267.

410

FALSE PRETENSES, ETC.

Where the defendant only obtains credit and not any
specific sum by .the false pretenses it is not within the
statute : R. v. Wavell, 1 Moo. 224 ; R. v. Garrott, Dears. 232;
R. V. Crosby, 1 Cox, 10.

There must be an intent to defraud. Where C. B.'s
servant obtained goods from A.'s wife by false pretenses, in
order to enable B., his master, to pay himself a debt due
from A., on which he could not obtain payment from A., it
was held that C. could not be convicted : R. v. Williams, 7
C. & P. 354. But it is not necessary to allege nor to
prove the intent to defraud any person in particular.
With intent to defraud are the words of the statute.

But these words " with intent to defraud" are a material
and necessary part of the indictment; their omission is
fatal, and cannot be remedied by an amendment inserting
them. By Lush, J., R. v. James, 12 Cox, 127 ; R. v. Davis,
18 U. C. Q. B. 180 ; R. v. Norton, 16 Cox, 59. At the trial
the court might, it seems, allow the amendment; s. 723, psf.

An indictment for false pretenses charged that the
defendant falsely pretended that he had a lot of trucks of
coal at a railway station on demurrage, and that he required
forty coal bags. The evidence was that defendant sa\y
prosecutor and gave him his card, " J. W. and Co., timber
and coal merchants," and said that he was largely in the
coal and timber way, and inspected some coal bags, but
objected to the price. The next day he called again,
showed prosecutor a lot of correspondence, and said that he
had a lot of trucks of coal at the railway station under
demurrage, and that he wanted some coal bags imme-
diately. Prosecutor had only forty bags ready, and it was
arranged that defendant was to have them, and pay for
them in a week. They were delivered to defendant, and
prosecutor said he let the defendant have the bags in con-
sequence of his having the trucks of coal under demurrage,
at the station ; there was evidence as to the defendant
having taken premises, and doing a small business in coal,

GENERAL REMARKS.

411

again,
that he
, under
imrae-
id it was
pay for
ant, and
s in con-
inurrage,
ifendant
in coal,

but he had no trucks of coal on demurrage at the station.
The jury convicted the prisoner, and on a case reserved
the judges held that the false pretense charged was not too
remote to support the indictment, and that the evidence was
sufficient to maintain it : R. v. Willot, 12 Cox, 68.

The prisoner induced the prosecutor to buy a chain by
knowingly and falsely asserting, (inter alia), " it is a 15-
carat fine gold, and you will see it stamped on every link."
In point of fact, it was little more than 6-carat gold : Held^
upon a case reserved, that the above assertion was suffi-
cient evidence of the false representation of a definite
matter of fact to support a conviction for false pretenses :
R. V. Ardley, 12 Cox, 23 ; R. v. Bryan, Dears. & B. 265, was
said by the judges not to be a different decision, but that
there was in that case no definite matter of fact falsely
represented: see Warb. Lead. Cas. 170.

On an indictment for inducing the prosecutor, by means
of false pretenses, to enter into an agreement to take a field
for the purpose of brick-making, in the belief that the soil
of the field was fit to make bricks, whereas it was not, he
being himself a brickmaker, and having inspected the field
and examined the soil : Held, that nevertheless, if he had
been induced to take the field by false and fraudulent
representations by the defendant of the specific matters of
fact relating to the quality and character of the soil, as, for
instance, that he had himself made good bricks therefrom,
the indictment would be sustained : Held, also, that it
would be sufficient, if he was partly and materially, though
not entirely, influenced by the false pretenses : R. v.
English, 12 Cox, 171.

If the possession only and not the property has been
passed by the prosecutor the offence is larceny and not
false pretenses: R. v. Radcliffe, 12 Cox, 474.

All persons who concur and assist in the fraud are
principals, though not present at the time of making the

•■ii«f

412

FALSE PRETENSES, ETC.

pretense or obtaining the property : R. v. Moland, 2 Moo.
276 ; R. V. Kerrigan, L. & C. 383.

On the last part of this s. 359, Greaves says: "This
clause is new. It is intended to meet all eases where any
person by means of any false pretense induces another to
part with property to any person other than the party
making the pretense. It was introduced to get rid of the
narrow meaning which was given to the word ' obtain ' in
the judgments in R. v. Garrett, Dears. 232, according to
which it would have been necessary that the property
should either have been actually obtained by the party
himself, or for his benefit. * * This clause includes every
case where a defendant by any false pretense causes
property to be delivered to any other person, for the use
either of the person ipaking the pretense, or of any other
person. It, therefore, is a very wide extension of the law
as laid down in R. v. Garrett, and plainly includes every
case where any one, with intent to defraud, causes any
person by means of any false pretense to part with any
property to any person whatsoever."

Prisoner was indicted for an attempt to obtain money
from a pawnbroker by false pretenses, (inter alia) that a
ring was a diamond ring. To show guilty knowledge evi-
dence that he had shortly before offered other false articles
of jewellery to other pawnbrokers was held to be properly
admissible : R. v. Francis, 12 Cox, 612, Warb. Lead. Cas.
176.

Goods fraudulently obtained by prisoner on his cheque
on a bank where he had no funds : Held, that he cannot
be found guilty of having falsely represented that he had
money in the bank, but that he was guilty of falsely
representing that he had authority to draw the cheque, and
that they were good and valid orders for the payment of
money : R. v. Hazelton, 13 Cox, 1, Warb. Lead. Cas. 164

See R. v. Holmes, 15 Cox, 343, as to where is the juris-
diction when offence is committed by a letter.

!n;7'

GENERAL REMARKS.

413

Prisoner convicted of obtaining his wages by false
pretenses in representing falsely that he had performed a
condition precedent to his right to be paid : R. v. Bull, 13
Cox, 608.

The indictment must state the pretense which is pre-
tended to have bec^i false, and must negative the truth of
the matter so pretended with precision : R. v. Kelleher, 14
Cox, 48. See R. v. Perrott, 2 M. & S. 379 ; see s. 616 and
form F. F., sched. one, under s. 611

Obtaining by false pretenses. What constitutes false
pretenses : R. v. Durocher, 12 R. L. 697 ; R. v. Judah, 7 L.
N. 385 ; R. V. Lavall^e, 16 R. L. 299 ; R. v. Ford, M. L. R.
7 Q. B. 413.

To prove intent to defraud, evidence of similar frauds
having recently been practiced upon others is admissible :
R. V. Durocher, 12 R. L. 697.

An indictment for obtaining board under false pretenses
is too general : R. v. McQuarrie,22 U. C. Q. B. 600.

A clause of a deed by which the borrower of a sum of
money falsely declares a property well and truly to belong
to him may constitute a false pretense : R. v. Judah, 8
L N. 124.

On a trial for obtaining under false pretenses property
of a joint stock company, parol evidence that the company
has acted as an incorporated company is sufficient evidence
of its incorporation : R. v. Langton, 13 Cox, 345.

The prisoner who had been discharged from the service
of A. went to the store of D. and S. and represented herself
as still in the employ of A., who was in the habit of dealing
there, and asked for goods in A.'s name, which were put up
accordingly, but sent to A.'s house instead of being delivered
to the prisoner. The prisoner, however, went directly from
the store to A.'s house, and remaining in the kitchen with
the servant until the clerk delivered the parcel, snatched
it from the servant, saying " that is for me, I was going to

Mi ;.
mm I'l

414

FALSE PRETENSES, ETC.

[Sec. 360

71 j>

see A." but, instead of going in to see A., went out of the
house with the parcel. Conviction for having obtained
goods from D. & S. by false pretenses, held good : R. v.
Robinson, 9 L. C. R. 278.

Where the prosecutor had laid a trap for the prisoner
who had written to induce him to buy counterfeit notes
and prisoner gave him a box which he pretended contained
the notes, but which, in fact, contained waste paper and
received the prosecutor's watch and $50.

Held, that the prisoner was rightly convicted of obtain-
ing the prosecutor's property under false pretenses : R. v.
Corey, 22 N. B. Rep. 543 ; see R. v. Cameron, 23 N. S. 150.

Obtaining Valuable Seoukity by False Pretenses.

360. Every one is guilty of an indictable offence and liable to three
years' imprisonment who, with intent to defraud or injure any person by any
false pretense, causes or induces any person to execute, make, accept, endorse
or destroy the whole or any part of any valuable security, or to write, impress
or affix any name or seal on any paper or parchment in order that it may after
wards be made or converted into or used or. dealt with as a valuable security
R. S. C. c. 164, s. 78. 24-25 V. c. 96, s. 90 (Imp.).

" Valuable security " defined, s. 3.

See remarks under s. 353. See ss. 613, 616, as to indict-
ment.

On the corresponding clause Greaves says : " This
clause is principally new ; it will include such cases as R,
V. Danger, Dears. & B. 307."

Indictment — that A. B., on unlawfully,

knowingly and designedly did falsely pretend to one J. K,
that' by means of which false pretense the said A.

B. did then unlawfully and fraudulently induce the said
J. N. to accept a certain bill of exchange, that is to say, a
bill of exchange for five hundred dollars, with intent
thereby then to defraud and injure the said J. N., whereas,
in truth and in fact (here negative the false 'pretenses).

Prisoner was indicted at the Court of Queen's Bench for
having induced, by false and fraudulent pretenses, one B.,
a farmer, to endorse a promissory note for $170.45 and

Sec. 360]

OBTAINING VALUABLE SECURITY,

415

moved to quash on the ground that the indictment did not
state that the endorsement in question had been declared
false in any manner by competent iiuthority, etc., nor that
the said endorsement had been obtained for the purpose of
converting the said note or paper-writing into money —
Motion rejected. And a motion to quash, on the ground
that the crown prosecutor, representing the attorney gene-
ral, had refused to furnish to prisoner the particulars of the
false pretenses charged, although demanded, was refused :
R. V. Boucher, 10 K L. 183.

Proof that the defendant had obtained from the
prosecutor a promissory note on a promise to pay the plain-
tiff what he owed him out of the proceeds of the note when
discounted is not sufficient to sustain a conviction of ob-
taining a signature with intent to defraud under this sec-
tion : R. V. Pickup, 10 L. C. J. 310.

An indictment charging prisoner with unlawfully and
fraudulently, with intent to defraud them, inducing prose-
cutors to " make a certain valuable security," to wit, a
promissory note for £100 by the false pretense that he was
prepared to pay them or one of them £100 ; held good. It
must be taken by necessary inference to allege a false
pretense of an existing fact, viz., that he was prepared to
pay prosecutors £100 and had the money ready for them
on their signing the note. It also showed the offence of
fraudulently causing a person to "make a valuable security"
under 24 & 25 V. c. 96, s. 90, though note might not be of
value until delivered to prisoner : R. v, Gordon, 23 Q. B. D«
354, 16 Cox, 622.

Prisoner fraudulently induced prosecutor to sign a con-
tract for seed wheat, representing that he was agent of H.
named in contract. H. afterwards induced prosecutor to
give him a note for price of wheat, though contract did not
provide for a note. Prosecutor swore he gave note because
he had entered into the contract. Indictment for, by false
pretenses, fraudulently inducing prosecutor to write his

416

FALSE PRE'JENSES, ETC.

[Sec. 360

name on a paper so that it might be afterwards dealt
with as a valuable security ; 2nd count, for procuring, by
false pretenses, prosecutor to deliver to H. a valuable
security. Held, on case reserved, that charge of false
pretenses could be sustained as well as where the money
was obtained or note procured to be given through the
mediam of a contract, as when obtained or procured with-
out contract ; that a note instead of monej'' was given
did not relieve prisoner from consequences of his fraud
giving of note was direct result of the fraud upon which the
contract was procured and that defendant was properly
convicted on 1st count under c. 174, s. 78. But held, that
note before delivery to H. was not a valuable security, but
only a paper on which prosecutor had written his name so
that it might be used as such, and conviction on 2nd count
could not stand : R. v. Danger, Dears. & B. 307, followed ;
R. V. Rymal, 17 O. R. 227.

Prisoner indicted on two counts. First, for obtaining
from H. a note with intent to defraud ; second, inducing
H, to make a note with said intent. Evidence showed that
prisoner's agent obtained from H. an order on prisoner for
wheat which H. was to put out on shares and to pay
prisoner $240 on delivery, and equally divide balance of
proceeds with holder of order. Later, prisoner by false
and fraudulent representations as to quality of wheat, etc.,
induced H. to sign a note, telling him it would not be
negotiable. Evidence was given, subject to objection, of
similar frauds on others, and that prisoner was pursuing a
series of like frauds. Prisoner was convicted.

Held, on case reserved, that conviction should be sus-
tained on second count, as evidence showed that H. signed
note on faith of representations made and not merely to
secure the carrying out of the contract ; that it was
immaterial that a note was given when the order called
for cash, and that the evidence objected to was admissible :
H. V. Hope, 17 O. R. 463.

! I:

Sees. 361-363] PRETENDING TO INCLOSE MONEY.

417

Falskly Pretbndino to Inclose Money in a Lbtteb.

361* Every one is guilty of an indictable offence and liable to three
years' imprisonment who, wrongfully and with wilful falsehr' pretends or
alleges that he inclosed and sent, or caused to be inclosed an ^ sent, in any post
letter any money, valuable security or chattel, which in fact he did not so
inclose and send or cause to be inclosed and sent therein. R. S. C. c. 164, s. 79.
{Amended). ^

This section is not in the English statutes : " Valuable
security " defined, s. 3. Bee s. 618, 'post, as to indictment
and trial under this section.

Obtaining Passage by False Tickets.

36%. Every one is guilty of an indictable offence and liable to six
months' imprisonment who, by means of any false ticket or order, or of any
other ticket or order, fraudulently and unlawfully obtains or attempts to obtain
any passage on any carriage, tramway or railway, or in any steam or other
R. S. C. c. lfS4, 8. 81.

The clause provides for the offence and the attempt to
commit the offence. Under s. 711,/)0«<, upon the trial of an
indictment for any offence the jury may convict of the
attempt to commit the offence charged, if the evidence
warrants it.

Criminal Breach op Trust.

363- Every one is guilty of an indictable offence and liable to seven
years' imprisonment who, being a trustee of any property for the use or benefit,
either in whole or in part, of some other person, or for any public or charitable
purpose, with intent to defraud, and in violation ot his trust, converts any-
thing of which he is trustee to any use not authorized by the trust. R. S. C.
0. 164, 8. 65. 24-25 V. c. 96, s. 80, (Imp.).

See R. V. Cox, 16 O. R. 228 ; R. v. Stansfeld, 8 L. N. 123.

Section 197 of the Procedure Act, which allowed a con-
viction under this clause though a larceny was proved, has
not been re-enacted in express terms.

" Trustee " defined, s. 3.

By 8. 547, posi, no prosecution is to be commenced under
this section without the consent of the Attorney-General of
the province.

Indicttnent — that A. B., at on then

heing the trustee of certain property under the will of
Grim. Law— 27

I: ■ f

418

FRAUD.

[Sec. 364

for a certain public (or charitable) purpose, to wit, for
unlawfully, with intent to defraud and in violation of his
trust, did convert and appropriate the same to a use not
authorized by the said trust, and for a purpose other than
the said public (or charitable) purpose, contrary to s. 363
of the Criminal Code of 1892.

^■^■M

PART XXVIII.

FRAUD.

By Directors, Etc.

304. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who, being a director, manager, public officer or mp!iiber
of any body corporate or public ct)mpany, with intent to defraud —

(a) destroys, alters, mutilates or falsifiea any book, paper, writing or
valuable security belonging to the body corporate or public company ; or

(6) makes, or concurs in making, any false entry, or omits or concurs in
omitting to enter any material particular, in any book of account or other
document. R. S. C. c. 164, s. 68. 24-26 V. c- 96, s. 83 (Imp.).

"Valuable security" defined, s. 3.

Section 197 of the Procedure Act, which applied to the
repealed section, has not been re-enacted.

Sections 97 et seq. of the Banking Act, 53 V. c. 31, pro-
vide for offences by bank officers.

Indictment against a director for destroying or falsify-
ing books, etc. — that C. D., on then being a
director of a certain body corporate, called unlaw-
fully, with intent to defraud, did destroy (alter, or muti-
late, or falsify) a certain book (or paper, or writing, or
valuable security), to wit, belonging to the said body
corporate.

Sees. 366, 366]

FALSE STATEMENT.

419

False Statbment by Promoters, Directors, Etc.

365- Every one iti (iruilty of an indictable o£Fence and liable to five years'
imprisonment who, being a promoter, director, public officer or manager of any
body corporate or public company, either existing or intended to be formed,
makes, circulates or publishes, or concurs in making, circulating or publishing,
any prospeetiu, statement or account which he knows to be false in any material
particular, with intent to induce persons {lehether aieertained or not) to become
Bhareholders or partners, or with intent to deceive or defraud the members,
shareholders or creditors, or any of them {whether aaoertained or not), of such
body corporate or public company, or with intent to induce any person to
intrust or advance any property to such body corporate or public company, or
to enter into any security for the benefit thereof. R. S. C. c. 164, s. 69
(Amndcd). 24-25 V. c. 96, s. 84 (Imp.).

The words in italics are new.

Fine, s. 958 ; " Property " and " public officer " defined,

8.3.

Indictment against a director for publishing fraudu-
lent statements. — that before and at the time of the
committing of the offences hereinafter mentioned, C. D. was
a director of a certain public company, called and
that he, the said C. D., .o being such director as aforesaid,
on did unlawfully circulate and publish a certain
statement and account, which said statement was false in
certain mattrial particulars, that is to say, in this, to wit,
that it was thv^rtin falsely stated that {state the particulars),
he the said C. D., then well knowing the said written state-
ment and account to be false in the several particulars
aforesaid, with intent thereby then to de'^cive and defraud
J. N., then being a shareholder of the saic public company
{(yr with intent ) . {Add counts stating the
intent to he to deceive and defraud " certain persons to the
jwrors aforesaid unknown, being shareholders of the said
pvhlic company," and also varying the allegation of the in-
tent as in the section) : see s. 616, post.

False Accounting by Clerks. (New).

366. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who, being or acting in the capacity of an officer, clerk,
or servant, with intent to defraud —

(a) destroys, alters, mutilates or falsifies any book, paper toriting,
valuable security or document which belongs to or is in the possession of his

m""

420

FRAUD.

[Sec. 360

employer, or has been received by him for or on behalf of his employer, or
concurs in so doing ; or

(h) makes, or concurs in making, any false entry in, or omits or alters, or
concurs in omitting or altering, any matarial particular from, any such book,
paper writing, valuable security or document. 38-39 V. c. 24 (Imp.).

There should be a comma between paper and writing.
" Valuable security " and " writing " defined, s. 3.

Ip.dictment. — that A. B., on, &c., at, &c., beinj^

then clerk (officer, servant, or any person employed or act-
ing in the capacity of a clerk, ojfficer, or ftervant) to C. D., did
then and whilst he was such clerk to the said C. D. as afore-
said, unlawfully, wilfully, and with intent to defraud,
destroy, to wit, by burning the same (destroy, alter, rautil-
ate, or falsify) a certain book (any book, paper, writing,
valuable security, or document), to wit, a cash-book, which
said book then belonged to (which belongs to or is in the
possession of his employer, or has been received by him for
or on behalf of his employer) the said C. D., his employer.

Second Count. — That the said A. B., on the day and in
the year aforesaid, being then clerk to the said C. D., did
then and whilst he was such clerk to the said C. D., as
aforesaid, unlawfully, wilfully, and with intent to defraud,
make (make or concur in making any false entry in, or
omit, or alter, or concur in omitting, or altering any
material particular) a certain false entry in a certain book
(from, or in any such book, paper, writing, valuable secu-
rity, or document), to wit, a cash book w^hich said book
then belonged to the said C. D., his employer, by falsely
entering in such books under the date of a sum of

, as having been paid on that day to one E. F.,
whereas in truth and in fact the said sum of was not

paid on the said day to the said E. F. as he, the said A. B.,
well knew at the time when he made such false entry as
aforesaid, and which said entry was in the words and
figures following (setting it out); see R. v. Butt, 15 Cox,
564.

S«;8. 367-370] FALSE STATEMENT. 421

False Statement by Public Officer. (JVeir).

:|6T. Every one is gr^iilty of an indictable offencf and liable to five years'
iiiiprlMonment, and to a fine not exceeding five hundred dollars, who, being an
offictT, collector or receiver, intrusted with the receipt, custody or management
(if any part of th.i public revenues, knowingly furnishes any false statement or
return of any sum of money collected by him or intrusted to his care, or of any
balance of money in his hands or under his control.

This section is a re-enactment of 50 Geo. III. c. 59, s, 2,
with an increased punishment. It ought to form part of
the preceding section.

AssioNiNo WITH Intent to Defraud.

308. Every one is guilty of an indictable offence and liable to a fine of
eight hundred dollars and to one year's imprisonment who —
((f) with intent to defraud his creditors, or any of them,

(i) makes, or causes to be made, any gift, conveyance, assignment,
sale, transfer or delivery of his property ;

(ii) removes, conceals or disposes of any of his property ; or
(M with the intent that any one shall so defraud his creditors, or any one
of theiTi, receives any such pioperty. R. 3. C. c. 173, s. 28.

This is a re-enactment of c. 26, s. 20, C. S. U. C. See
R. V. Henry, 21 O. R. 113.

Destroying Books with Intent to Defraud.

360. Every one is guilty of an indictable offence and liable to ten years'
imprisonment who, with intent to defraud his creditors, or any of them, de-
stroys, alters, mutilates or falsifies any of hia books, papers, writings or
securities, or makes, or is privy to the making of, any false or fraudulent entry
in any book of account jr other document. R. S. C. c. 173, s. 27.

This is also taken from c. 26, C. S. U. C. Under the
repealed clause the punishment was six months' imprison-
ment.

Concealing Deeds or Inochbranoes.

370- Every one is guilty of an indictabia offence and liable to a fine, or
to two years' imprisonment, or to both, who being a seller or mortgagor of land,
or of any chattel, real or personal, or chose in action, or the solicitor or agent of
any such seller or mortgagor (and having been served with a written demand
of an abstract of title by or on behalf of the purchaser or mortgagee before the
completion of the purchase or mortgage) conceals any settlement, deed, will or
other instrument material to the title, or any encumbrance, from such
purchasrr or mortgagee, or falsifies any pedigree upon which the title
depeP'Is, with intent to defraud and in order to induce such purchaser or
mortgagee to accept the title offered or produced to him. R. S. C. c. 164, s. 91.

422

FRAUD.

[Sees. 371-374

ill

No prosecution without leave of Attorney-General of
the Province ; s. 548.

Fraud in RfloisTBATioN.

37 1 • Every one is guilty of an indictable offence and liablo to three
years' imprisonment who, acting either as principal or agent, in any proceeding
to obtain the regpistration of any title to land or otherwise, or in any transaction
relating to land which is, or is proposed to be, put on the register, knowingly
and with intent to deceive makes or assists or joins m, or is privy to the mak-
ing of, any matenal false statement or representation, or suppresses, conceals
assists or joins in, or is privy to the suppression, withholding or concealing
from, any judge or registrar, or any person employed by or assisting the
registrar, any material document, fact or matter of information. R. S. C.
0. 164, 88. 96 & 97.

This section, by the repealed Act, applied only to British
Columbia.
Fine, s. 958.

Fraudulent Sales, HYPOTHEOATioNa, Seizures, etc.

378. Every one is guilty of an indictable offence and liable to one year's
imprisonment, and to a fine not exceeding two thousand dollars, who, knowing
the existence of any unregistered prior sale, gr&nt, mortgage, hypothec,
privilege or encumbrance of or upon any real property, fraudulently makes
any subsequent sale of the same, or of any part thereof. R. S. C. c. 164, as. 92
&93.

See R. V. Palliser, 4 L. C. J. 276.

873* Eveiy one who pretends to hypothecate, mortgage, or otherwise
charge any real property to which he knows he has no legal or equitable title
is guilty of an indictable offence and liable to one year's imprisonment, and to
a fine not exceeding one hundred dollars.

2. The proof of the ownership of the real estate rests virith the person so
pretending to deal with the same. R. S. C. o. 164, ss. 92 &; 94.

374i Every one is guilty of an indictable offence and liable to one year's
imprisonment who, in the province of Qud)€c, wilfully causes or procures to be
seized and taken in execution any lands and tenements, or other real property,
not being, at the time of such seizure, to the knowledge of the person causing
the same to be taken in execution, the bona fide property of the person or
persons against whom, or whose f^tate, the execution is issued. R. S. C,
c. 164, 88. 92 & 95.

Fine, s. 958. These three sections, by the repealed sta-
tute, applied only to the Province of Quebec. Why s. 374
has also not been either extended to the other Provinces or
repealed, has not been explained.

Sees. 375, 876]

UNLAWFUL DEALINGS.

423

Unlawful Deaunos with Gold.

379* Every one is guilty of an indictable offence and liable to two years'
imprisonment, who —

(a) being the holder of any lease or license issued under the provisions of
any Act relating to gold or silver mining, or by any persons owning land sup-
posed to contain any gold or silver, by fraudulent device or contrivance
defrauds or attempts to defraud Her Majesty, or any person, of any gold,
silver or money payable or reserved by such lease, or, with such intent as
aforesaid, conceals or makes a false statement as to the amount of gold or
silver procured by him ; or

(b) not being the owner or agent of the owners of mining claims then
being worked, and not being thereunto authorized in writing by the proper

' officer on that behalf named in any Act relating to mines in force in any
province of Canada, sells or purchases (except to or from such owner or autho-
rized person) any quartz containing gold, or any smelted gold or silver, at or
within three miles of any gold district or mining district, or gold mining
division ; or

(c) purchases any gold in quartz, or any unsmelted or smelted gold or
silver, or otherwise unmanufactured gold or silver, of the value of one dollar
or upwards (except from such owner or authorized person), and does not, at the
same time, execute in triplicate an instrument in writing, stating the place
and time of purchase, and the quantity, quality and value of gold or silver so
purchased, and the name or names of the person or persons from whom the
same was purchased, and file the same with such proper officer within twenty
days next after the date of such purchase. R. S. C. c. 164, ss. 27, 28 & 29.

Fine, s. 958 ; s. 569 for search warrant, and s. 621 for
indictment.

Warehousbsien Giving False Reobifts.

376- Every one is guilty of an indictable offence and liable to three
years' imprisonment, who —

(a) being the keeper of any warehouse, or a forwarder, miller, master of
a vessel, wharfinger, keeper of a cove, yard, harbour or other place for storing
timber, deals, staves, boards, or lumber, curer or packer of pork, or dealer m
wool, carrier, factor, agent or other person, or a clerk or other person in his
employ, knowingly and wilfully gives to any person a writing purporting to
be a receipt for, or an acknowledgment of, any goods or other property as
having been received into his warehouse, vessel, cove, wharf, or other place,
or in any such place about which he is employed, or in any other manner
received by him, or by the i)erson in or about whose business he is employed,
before the goods or other property named in such receipt, acknowledgment or
writing have been actuaHy delivered to or received by him as aforesaid, with
intent to mislead, deceive, injure or defraud any person, although such
person is then unknown to him ; or

(b) knowingly and wilfully accepts, transmits or uses any such false
receipt or acknowledgment or writing. R. S. C. o. 164, s. 73.

Fine, s. 958 ; see s. 379. This is not in the Imperial Act.

424

FRAUD.

[SeoB. 377-379

Frauds in Trade, Etc.

377* Every one i« guilty of an indictable offence and liable to three
years' imprisonment, who —

(a) having, in his name, shipped or delivered to the keeper of any ware-
house, or to any other factor, agent or carrier, to be shipped or carried, any
merchandise upon which the consignee has advanced any money or given any
valuable security afterwards, with intent to deceive, defraud or injure such
consignee, in violation of good faith, and without the consent of such
consignee, makes any disposition of such merchandise different from and
inconsistent with the agreement made in that behalf between him and such
consignee at the time of or before such money was so advanced or such
negotiable security so g^ven ; or

(&) knowingly and wilfully aids and assists in making such disposition for
the purpose of deceiving, defrauding or injuring such consignee.

2. Xo person commits an offence under this section who, before making
such disposition of such merchandise, pays or tenders to the consignee the full
amount of any advance made thereon. R. S. C. c. 164, s. 74.

Fine, a. 958 ; see s. 379. This is not in the Imperial

Act.

Other Frauds.

SYS* Every person is guilty of &a indictable offence and liable to three
years' imprisonment who —

(a) wilfully makes any false statement in any receipt, certificate or
acknowledgment for grrain, timber or other goods or property which can be
used for any of the purposes mentioned in The Bank Act ; or

(6) having given, or after any clerk or person in his employ has, to his
knowledge, given, as having been received by him in any mill, warehouse,
vessel, cove or other place, any such receipt, certificate or acknowledgment for
any such grain, timber or other goods or property,— or having obtained any
such receipt, certificate or acknowledgment, and after having endorsed or
assigned it to any bank or person, afterwards, and without the consent of the
holder or endorsee in writing, or the production and delivery of the receipt,
certificate or acknowledgment, wilfully alienates or parts with, or does not
deliver to such holder or owner of such receipt, certificate or acknowledgment,
the grain, timber, goods or other property therein mentioned. R. S. G. c. 164,
8. 75.

Fine, s. 958 ; see next section. This is not in the Im-
perial Act.

370* If any offence mentioned in any of the three sections next
preceding is committed by the doing of anything in the name of any Rrm,
company or co-partnership of persons, the person by whom such thing is
actually done, or who connives at the doing thereof, is guilty of the oflfence,
and not any other person. R. S. C. c. 164, s. 76.

Section 197 of c. 174, R. S. C, which applied to the three
preceding sections, has not been re-enacted.

Seci. 380-383]

SELLING WRECKS, ETC.

42&

Selling Wrecks, Etc.

380> Every one'is guilty of an indictable offence and liable to seven years''
imprisonment who, not having lawful title thereto, seUs any vessel or wreck
found within the limits of Canada. R. S. C. c. 81, s. 36 (d).

« Wreck " defined, s. 3.

Other Offences Rkspectiko Wreck.

38l« Every one is guilty of an indictable offence and liable, on convic-
tion on indictment to two years' imprisonment, and on summary conviction
before two justices of the peace to a penalty of four hundred dollars or six
months' imprisonment, with or without hard labour, who —

(a) secretes any wreck, or defaces or obliterates the marks thereon, or uses
means to diagxiise the fact that it is wreck, or in any manner conceals the
character thereof, or the fact that the same is such wreck, from any person
entitled to inquire into the same; or

(b) receives any wreck, knowing the same to be wreck, from any person,.
other than the owner thereof or the receiver of wrecks, and does not within
forty-eight hours inform the receiver thereof ;

(c) offers for sale or r^herwise deals with any wreck, knowing it to be
wreck, not having a lawfil ti"''^ to sell or deal with the same ; or

{d) keeps in his possesi.'' vx wreck, knowing it to be wreck, without a
lawful title so to keep the s k- ''■! any time longer than the time reasonably
necessary for the delivery ot the same to the receiver ; or

(t) boards any vessel which is wrecked, stranded or in distress against the
will of the master, unless the person so boarding is, or acts by command of, the
receiver, R. S. C. c. 81, s. 37.

Offences— Marine Stores— Public Stores, Etc.

38S« Every person who deals in the purchase of old marine stores of any
description, including anchors, cables, sales, junk, iron, copper, brass, lead and
other marine stores, and who, by himself or his agent, purchases any old
marine stores from any person under the age of sixteen years, is guilty of an-
offence and liable, on summary conviction, to a penalty of four dollars for the
first offence and of six dollars for every subsequent offence.

2. Every such person who, by himself or his agent, purchases or receives
any old marine stores into his shop, premises or places of deposit, except in the
day-time between sunrise and sunset, is guilty of an offence and liable, on sum-
mary conviction, to a penalty of five dollars for the first offence and of seven
dollars for every subsequent offence.

3. Every person, purporting to be a dealer in old marine stores, on whose
premises any such stores which were stolen are found secreted is guilty of an
indictable offence and liable to five years' imprisonment. R. S. C. o. 81, s. 35.

U§3« In the next six sections, the following expressions have the mean-
ing assigned tx) them herein :

(a) The expression ''public department" includes the Admiralty and the'
War Department, and also any public department or office of the Government

426

FRAUD.

[Sees. 384, 385

of Canada, or of the public or oivil service thereof, or any branch of guch
department or office; -••

(b) The expression "public stores" includes all stores under the oar«
superintendence or control of any public department as herein defined, or of
any person in the service of such department;

Section 670, as to search-warrant.

The Imperial statute on public stores is 38 & 39 V. c. 25.

384. The following marks may be applied in or on any public stores to
denote Her Majesty's property in such stores, and it shall be lawful for any
public department, and the contractors, officers and workmen of such depart-
ment, to apply such marks, or any of them, in or on any such stores :—

Marks appropriated for Her Majesty's use in or on Naval, Military, Ordnance,
Barrack, Hospital and Victualling Stores.

Stores.
Hempen cordage and wire rope.

Canvas, fearnought, hammocks and

seamen's bags.
Bunting.
Candles.

Timber, metal and other stores not
before enumerated

Marks.
White, black or coloured threads laid

up with the yams and the wire,

respectively.
A blue line in a serpentine form.

A double tape in the warp.

Blue or red cotton threads in each

wick or wicks of red cotton.
The broad arrow, with or without tli"

letters W. D.

Marks appropriated for use on Stores, the property of Her Majesty in tlie right m

Her Government of Canada,

Storbs.

Public stores.

Marks.

The name of any public department,
or the word " Canada," either alone
or in combination with a Crown or
the Royal Arms.

50-51 V. c. 45, 8. 3. 53 V. c. 38.

3S3< Every one is guilty of an indictable offence and liable to tivo yearsi'
imprisonment who, without lawful authority the proof of which shall lie on
him, applies any of the said marks in or on any public stores. 50-51 V. c. 4ii.
A. 4.

Fine, s. 958 ; see s. 709 as to offences under this and the
four next following sections.

Indictment — that A. B., on the day of

, unlawfully and without lawful authority
applied a certain mark, to wit, a double tape in the warp,
in and on certain stores, to wit, five hundred yards of
bunting.

Sees. 386-388] OFFENCES-MARINE STORES, ETC.

427

880* Every one is guilty of an indictable offence and liable to tvn years'
imprisonment who, with intent to conceal Her Majesty's property in any
public stores, takes out, desbroys or obliterates, wholly or in part, any of the
gaid marks. 50-61 V. c. 46, s. 6.

Fine, s. 958.

Indictment. — The jurors for our lady the Queen

present that J. S., on the first day of June, in the year of
our Lord , unl&vv fully, with intent to conceal Her

Majesty's property in the stores hereinafter mentioned,
took out (" takes out, destroys, or obliterates, wholly or in
part ") from 100 yards of canvas, which said canvas was
then stores of and belonging to Her Majesty, and under the
care, superintendence and control of the (as the case may
he), a certain mark, to wit, a blue line in a serpentine form,
which said mark was then applied on the said canvas in
order to denote Her said Majesty's property therein.

387* Every one who, without lawful authority the proof of which lies
on him, receives, possesses, keeps, sells or delivers any public stores bearinfr
any such mark, is guilty of an indictable offence and liable on conviction on
indictment to one year's imprisonment and, if the value thereof does not
exceed twenty-five dollars, on summary conviction, before two justices of the
pvace, to a fine of one hundred dollars or to six months' imprisonment, with or
without hard labour. 50-51 "V. c. 45, ss. 6 & 8.

Fine, s. 958.

IndidTnent. — that T. V., on the day of

, without lawful authority, unlawfully possessed
(" receives, possesses, keeps, sells, or delivers ") five hundred
yards of canvas, which said canvas was then naval stores of
and belonging to Her Majesty, and then bore a certain
raark (" any such mark as aforesaid,"), to wit, a blue line
in a serpentine form, then applied thereon, in order to
denote Her Majesty's property in naval stores so marked,
the said T. V., then well knowing the said canvas to bear
the said mark.

388* Every one, not being in Her Majesty's service, or a dealer in
marine stores or a dealer in old metals, in whose possession any public stores
bearing any such mark are found who, when taken or summoned before two
justices of the peace, does not satisfy such justices that he oame lawfully by
such stores so found, is guilty of an offence and liable, on summary conviction,
to a fine of twenty-five dollars ; and

428

FRAUD.

[Sees. 389-391

2. If any such person satisfies such justices that he came lawfully by th>v
stores so found, the justices, in their discretion, as the evidence given or %
circumstances of the case require, may summon before them every person
through whose hands such stores appear to have passed ; and

3. Every one who has had possession thereof, who does not satisfy such
justices that he came lawfully by the same, is liable, on summary conviotion of
having had possession thereof, to a fine of twenty-five dollars, and in default
of payment to three months' imprisonment with or without hard labour
60-51 V. 0. 45, s. 9.

Having in possession, defined, s. 3.

3N0* Every one who, without permission in writing from the Admiralty
or from some person authorized by the Admiralty in that behalf, creeps
sweeps, dredges, or otherwise searches for stores in the sea, or any tidal or
inland water, within one hundred yards from any vessel belonging to Her
Majesty, or in Her Majesty's service, or from any mooring place or anchorinir
place appropriated to such vessels, or from any mooring belonging to Her
Majesty, or from any of Her Majesty's wharfs or docks, victualling or gteum
factory yards, is guilty of an offence and liable, on summary conviction before
two justices of the peace, to a fine of twenty-five dollars, or to three months'
imprisonment, with or without hard labour. 50-51 V. c. 45, ss. 11 & 12.

Reoeivino Soldiers' or Sailors' Necessaries.
800* Every one is guilty uf an indictable offence and liable on convic-
tion on indictment to five years' imprisonment, and on summary conviction
before two justices of the peace to a penalty not exceeding forty dollars and
not less than twenty dollars and costs, and, in default of payment, to sk
months' imprisonment, with or without hard labour, who—

(a) buys, exchanges or detains, or otherwise receives from any soldier.
militiaman or deserter any arms, clothing or furniture belonging to Her
Majesty, or any such articles belonging to any soldier, militiaman or deserter
as are generally deemed regimental necessaries according to the custom of the
army ; or

(b) causes the colour of such clothing or articles to be changed ; or

(c) exchanges, buys or receives from any soldier or militiaman any pro
visions, without leave in writing from the officer commanding the regiment or
detachmeiut to which such soldier belongs. R. S. C. c. 169, ss. 2 & 4.

301* Every one is guilty of an indictable offence and liable, on convic-
tion on indictment, to five years' imprisonment, and on summary conviction
before two justices of the peace to a penalty not exceeding one hundred and
twenty dollars, and not less than twenty dollars and costs, and in default of
payment to six months' imprisonment, who buys, exchanges or detains, or
otherwise receives, from any seaman or marine, upon any account whatsoever,
or has in his possession, any arms or clothing, or any such articles, belonging
to any seaman, marine or deserter, as are generally deemed necessaries accord-
ing to the custom of the navy. R. S. C. c. 169, ss. 3 & 4.

Fine, s. 958. " Having in possession " defined, s. 3 ; see
next section. These four sections, 390, 391 , 392, 393, should
form only one.

Sees. 392-394]

CONSPIRACY TO DEFRAUD.

429

308* Every one is guilty of an indictable offence who detaini, buys,
exchanges* takes on pawn or receives, from any seaman or any person acting
for a seaman, any seaman's property, or solicits or entices any seaman, or is
employed by -vny seaman to sell, exchange or pawn any seaman's property,
unless he acts in ignorance of the same being seaman's property, or of the
nenon with whom he deals being or acting for a seaman, or unless the same
vas sold by the order of the Admiralty or Commander-in-Chief. ,

2. The offender is liable, on conviction on indictment to five years'
imprisonment, and on summary conviction to a penalty not exceeding one
hundred dollars ; and for a second offence, to tl. ee ^nalty, or, in the
discretion of the justice, to six months' imprisf • -^nt, * )r without hard

labour.

3. The expression " seaman " means every person, not being % commis-
sioned, warrant or subordinate officer, who is in or belongs to Her Majest}''s
gavy, and is borpe on the books of any one of Her Majesty's ships in commis-
sion, and every person, not being an officer as aforesaid, who, being borne on
llie books of any hired vessel in Her Majesty's service, is, by virtue of any Act
of Parliament of the United Kingdom for the tim6 being in force for the dis-
cipline of the navy, subject to the provisions of such Act.

4. The expression " seaman's property " means any clothes, slops, medals,
necessaries or articles usually deemed to be necessaries for sailors on board
sliip, which belong to any seaman.

5. The expression " Admiralty " means the Lord High Admiral of the
United Kingdom, or the Commissioners for executing the office of Lord High
Admiral. R. S. C. c. 171, ss. 1 & 2.

393* Every dhe in whose possession any seaman's property is found who
does not satisfy the justice of the peace before whom he is taken or summoned
that he came by such property lawfully is liable, on summary conviction, to a
3 of twenty -five dollars. R. S. C. o. 171, s. 3.

" Having in possession " defined, s. 3.

Conspiracy to Defraud. (New).

394* Every one is guilty of an indictable offence and liable to seven

I years' imprisonment who conspires with any other person, by deceit or false-

I hood or other fraudulent means, to defraud the public or any person, ascertained

01 unascertained, or to affect the public market price of stocks, shares,

merchandise or anything else publicly sold, whether such deceit or falsehood

(II other fraudulent means would or would not amount to a false pretense as

1 hereinbefore defined.

Sections 613, 616, as to indictment.

This is a common law misdemeanour;

IndidTnent. — that A. B. and C. D., on un-

I lawfully, fraudulently and deceitfully did conspire and

agree together to defraud the public by falsely : 3
Chit. 1139, 1164.

430

FRAUD.

[Sec. 395

A conspiracy for concealing treasure trove might, per-
haps, be indictable under this section. By s. 3, the word
person includes Her Majesty. As to the offence of conceal-
ing treasure trove, see R. v. Thomas, Warb. Lead. Cas. 79.

t Chkatino at Play, Etc.

395* Every one is guilty of an indictable offence and liable to three year«'
imprisonment who, with intent to defraud any person, cheats in playing at
any game, or in holding the stakes, or in betting on any event. R. S. G. c. 164
8. 80. (Amended). 8-9 V. c. 109, s. 17 (Imp.). '

Fine, s. 958 ; ss. 613, 616, as to indictment.

Indictment. — that A. B., on in playing at

and with cards (any game) unlawfully did, with intent to
defraud C. D., and others, cheat, (or unlawfully did hi
fraud and cheating win from the said G. D. a sum of one
hundred dollars.)

See R. V. Moss, Dears. &; B. 104 ; R. v. Hudson, Bell,
263 ; R. V. Rogier, 2 D. & R. 431 ; R. v. Bailey, 4 Cox, 392;
R. V. O'Connor, 15 Cox, 3.

The Imperial Act, 14 & 15 V. c. 100, s. 29 {Lord Camp-
hell's Act,) also provides for the punishment of cheats,
frauds and conspiracies, not otherwise specially provided
for.

In R. v, Roy, 11 L. C. J. 89, Mr. Justice Drummond
said : " The only cheats or frauds punishable at common
law are the fraudulent obtaining of the property of another
by any deceitful and illegal practice, or token, which affects
or may affect the public, or such frauds a^ are levelled
against the public justice of the realm."

It is not every species of fraud or dishonesty in trans-
actions between individuals which is the subject matter of
a criminal charge at common law : 2 East, P. C. 816.

Fraud, to be the object of criminal prosecution, must be
of that kind which in its nature is calculated to defraud
numbers, as false weights or measures, false tokens, or
where there is a conspiracy; per Lord Mansfield: R v-
Wheatly, 2 Burr. 1125.

Sec. 395]

CHEATING AT PLAY, ETC.

431

[

ft-

So cheats, by means of a bare lie, or false affirmation in
a private transaction, as if a man selling a sack of coin
falsely affinns it to be a bushel, where it is greatly defi-
cient, has been holden not to be indictable : R. v. Pinkney,
2 East, P. C. 818.

So, in R. V. Channell, 2 East, P. C. 818, it was held that
a miller charged with illegally taking and keeping corn
could not be criminally prosecuted.

And in R. v. Lara, cited in 2 East, P. C. 819, it was held
that selling sixteen gallons of liquor for and as eighteen
gallons, and getting paid for the eighteen gallons, was an
unfair dealing and an imposition, but not an indictable
offence.

The result of the cases appears to be, that if a man sell
hy false weights, though only to one person, it is an indict-
able offence, but if, without false weights, he sell, even to
many persons, a less qvuntity than he pretends to do, it is
not indictable : 2 Russ. 610 ; R. v. Eagleton, Dears. 376,
515.

If a man, in the coui-se of his trade, openly and publicly
carried on, were to put a false mark or token upon an
article, so as to pass it oflT as a genuine one, when in fact it
was only a spurious one, and the article was sold and
money obtained by means of that false token or mark, that
would be a cheat at common law, but the indictment, in
such a case, must show clearly that it was by means of
such false token that the defendant obtained the money :
by Chief Justice Cockbum, in R. v. Closs, Dears. & B. 460.

Offences of this kind would now generally fall under the
" TniiU Marks Offences" s. 443, 'post

Frauds and cheats by forgeries or false pretenses are
also regulated by statute.

All frauds affecting the crown or the public at large are
indictable, though arising out of a particular transaction or
contract with a private party. So the giving to any person

432

FRAUD.

[Sec 395

unwholesome victuals, not fit for a man to eat, lucri causa
or from malice and deceit is an indictable misdemeanour;
2 East, P. C. 821, 822. And if a baker sell bread contain-
in;]r alum in a shape which renders it noxious, although he
^ave directions to his servants to mix it up in a manner
which would have rendered it harmless, he commits an
indictable offence ; he who deals in a perilous article must
be wary how he deals ; otherwise, if lie observe not proper
-caution, he will be responsible. The intent to injure in
such cases is presumed, npon the univei'sal principle that
•when a man does an act of which the probable consequence
may be highly injurious, the intention is an inference of
law resulting from doing the act: R. v. Dixon, 3 M. & S. 11.

If a person maim himself in order to have a more spe-
cious pretense for asking charity, or to prevent his being
-enlisted as a soldier, he may be indicted : 1 Hawk. 108.

In indictments for a cheat or fraud at common law it is
not sufficient to allege generally that the cheat or fraud
was efiected by means of certain false tokens or false pre-
iienses, but it is necessary to set forth what the false tokens
or pretenses were, so that the court may see if the false
tokens or pretenses are such within the law : 2 East, P. C
837. But the indictment will be sufficient if upon the
whole it appears that the money has been obtained by
means of the pretense set forth, and that such pretense
was false : 2 East, P. C. 838 ; see s. 616, post

It would seem that s. 838, post, does not apply to cheats
And frauds at common law, and that, therefore, the court
has no power of awarding restitution of the property
fraudulently obtained, upon convictions on indictments
>other than those brought for stealing or receiving stolen
property : 2 East, P. C. 839.

Upon an indictment for any offence, if it appeal's to the
jury upon the evidence that the defendant did not complete
the offence charged, but that he was guilty only of an

Sec. 396]

PRACTISING WITCHCRAFT, ETC.

433

attempt to commit the same, the jury may convict of the
attempt : b. 711, post.

Praotisinq Witchcraft, Etc. {New).

396> Every one is firuilt^ of an indictable ofifenoe and liable t« one year's>
imprisonment who pretends to exercise or use any kind of witchcraft, sorcery,,
enchantment or conjuration, or undertakes to tell fortunes, or pretends fronb
his skill or knowledge in any occult or crafty science, to discover where or in.
what manner any goods or chattels supposed to have been stolen or lost may he-
found.

Fine, s. 958. — This section is a re-enactment of 9 Geo. II.
c. 5, s. 4 : see R. v. Milford, 20 O. R. 306 ; 2 Stephen'*
Hist. 430.

ROBBERY.

The crime of robbery is a species of theft, aggravated by^
the circumstances of a taking of the property from the-
person or whilst it is under the protection of the person
hy means either of violence " or " putting in fear : 4th Rep.
Cr. L. Commrs. LXVII.

Robbery is larceny committed by violence from the
person of one put in fear : 2 Bishop, Cr. L. 1156.

To constitute this offence there must be : 1. A larceny
embracing the same elements as a simple larceny ; 2. vio-
lence, but it need only be slight for anything which calls-.
out resistance is sufficient, or, what will answer in place of"
actual violence, there must be such demonstrations as put
the person robbed in fear. The demonstrations of fear
must be of a physical nature ; and 3. the taking must be >
from what is technically called the "person," the meaning
of which expression is, not that it must necessarily be fromi
the actual contact of the person, but it is sufficient if it is;
from the personal protection and presence : Bishop, Stat.

Cr. 517.

1. Larceny. — Robbery is a compound larceny, that is, it,
is larceny aggravated by particular circumstances. ThuSy
the indictment for robbery must contain the description of
the property stolen as in an indictment for larceny ; the
ownership must be in the same way set out, and so of the
Crim. Law— 28

434

ROBBERY.

rest. Then if the aggravating matter is not proved at the
trial the defendant may be convicted of the simple larceny.
If a statute makes it a larceny to steal a thing of which
there could be no larceny at common law then it becomes
by construction of law, a robbery to take this thing forci-
bly and feloniously from the person of one put in fear : 2
Bishop, Cr. L. 1168, 1159, 1160. An actual taking either
by force or upon delivery must be proved, that is, it must
appear that the robber actually got possession of the goods.
Therefore if a robber cut a man's girdle in order to get his
purse, and the purse thereby fall to the ground, and the
robber run off or be apprehended before he can take it up,
this would not be robbery, because the purse was never in
the possession of the robber : 1 Hale, P. C. 553.

But it is immaterial whether the taking were by force
or upon delivery, and if by delivery it is also immaterial
whether the robber have compelled the prosecutor to it by
a direct demand in the ordinary way, or upon any colourable
pretense.

A carrying away ; lUst also be proved as in other cases
of larceny. And therefore where the defendant, upon
meeting a man carrying a bed, told him to lay it down or
he would shoot him, and the man accordingly laid down
the bed, but the robber, before he could take it up so as to
remove it from the place where it lay, was apprehended,
the judges held that the robbery was not complete : R. v.
Farrell, 1 Leach, 322.

But a momentary possession, though lost again in the
same instant, is sufficient. James Lapier was convicted of
robbing a lady, and taking from her person a diamond
earring. The fact was that as the lady was coming out of
the Opera house she felt the prisoner snatch at her earring
and tear it from her ear. which bled, and she was much
hurt, but the earring fell into her hair where it was found
after she returned home. The judges were all of opinion
that the earring being in the possession of the prisoner for

ROBBERY.

435

ft
I'

a moment, separate from the lady's person, was sufficient
to constitute robbery, although he could not retain it but
probjibly lost it again the same instant : 2 East, P. C. 557.

If the thief once takes possession of the thing the
offence is complete, though he afterwards return it ; as if
a robber, finding little in a purse which he had taken from
the owner, restored it to him again, or let it fall in strug-
n-ling, and never take it up again, having once had posses-
sion of it : 2 East, loc. cit; 1 Hale, 533 ; R. v. Peat, 1 Leach,
228.

The taking must have been done animo furandi, as in
larceny, and against the will of the party robbed, that is,
that they were either taken from him by force and vio-
lence, or delivered up by him to the defendant, under the
impression of that degree of fear and apprehension which
is necessary to constitute robbery.

Where, on an indictment for robbery, it appeared that
the prosecutor owed the prisoner money, and had pro-
mised to pay him five pounds, and the prisoner violently
assaulted the prosecutor and so forced him then and there
to pay him his debt, Erie, C.J., said that it was no rob-
bery, there being no felonious intent : R. v. Hemmings, 4
F. & F. 50.

2. Violence. — The prosecutor must either prove that
he was actually in bodily fear from the defendant's
actions, at the time of the robbery, or he must prove cir
cumstances from which the court and jury may presuni;;
such a degree of apprehension of danger as would induce
the prosecutor to part with his property; and in this letter
case, if the circumstances thus proved be audi an are
calculated to create such a fear, the court will not pursue
the inquiry further, and examine whether the fear actually
erdsted. Therefore, if a man knock another down, and
steal from him his property whilst he is insensible on the
ground, that is robbery. Or suppose a man makes a man-
ful resistance, but is overpowered, and his property taken

«P

436

ROBBERY.

from him by the mere dint of superior strength, this is a
robbery : Fost. 128 ; R v. Davies, 2 East, P. C. 709.

One Mrs. Jeffries, coming out of a ball, at St. James'
Palace, where she had been as one of the maids of honour,
the prisoner snatched a diamond pin from her head-dress
with such force as to remove it with part of the hair from
the place in which it was fixed, and ran away with it:
Held, to be a robbery : R. v. Moore, 1 Leach, 335. See
Lapier's Case, 1 Leach, 320.

Where the defendant laid hold of the seals and chain of
the prosecutor's watch, and pulled the watch out of his fob,
but the watch, being secured by a steel chain which went
round the prosecutor's neck, the defendant could not take
it until, by pulling and two or three jerks, he broke the
chain, and then ran off with the watch ; this was holden
to be robbery : R. v. Mason, R. & R. 419. But merely
snatching property from a person unawares, and running
away with it, will not be robbery : R. v. Steward, 2 East,
P. C. 702 ; R. V. Homer, Id. 703 ; R. v. Baker, 1 Leach, 290;
R. V. Robins, do. do.; R. v. Macauley, 1 Leach, 287; because
fear cannot, in fact, be presumed in such a case. When the
prison i.' caught hold of the prosecutor's watch-chain, and
jerked his watch from his pocket with considerable force,
upon which a scuffle ensued and the prisoner was secured,
Garrow, B., held that the force used to obtain the watch
did not make the offence amount to robbery, nor did the
force used afterwards in the scuffle ; for the force necessary
to constitute robbery must be either immediately before or
at the time of the larceny, and not after it : R. v. Gnosil, 1
C & P. 304. The rule, therefore, appears to be well estab-
lished, that no sudden taking or snatching of property
unawares from a person is sufflcient to constitute robbery,
unless some injury be done to the person, or there be a
previous struggle for the possession of the property, or
some force used to obtain it : 2 Russ. 104.

ROBBERY.

437

If a man take another's child, and threaten to destroy
him unless the other give him money, this is robbery : R.
V. Reane, 2 East, P. C. 734; R. v. Donally, Id. 713. So
where the defendant, at the head of a mob, came to the
prosecutor's house and demanded money, threatening to
destroy the house unless the money were given, the prose-
cutor therefore gave him five shillings, but he insisted on
more, and the prosecutor, being terrified, gave him five
shillings more ; the defendant and the mob then took bread,
cheese and cider from the prosecutor's house, without his
permission, and departed, this was holden to be a robbery
as well of the money as of the bread, cheese and cider: R. v.
Simons, 2 East, P. C. 731; R. v. Brown, Id. So where, during
some riots at Birmingham, the defendant threatened the
prosecutor that unless he would give a certain sum of money
he should return with the mob and destroy his house, and
the prosecutor, under the impression of this threat, gave
him the money, this was holden by the judges to be rob-
bery: R. V. Astley, 2 East, P. C. 729. So where, during the
riots of 1780, a mob headed by the defendant came to the
prosecutor's house, and demanded half a crown, which the
prosecutor, from terror of the mob, gave, this was holden to
be robbery, although no threats were uttered: R. v. Taplin,
2 East, P. C. 712. Upon an indictment for robbery it ap-
peared that a mob came to the house of the prosecutor, and
with the mob the prisoner, who advised the prosecutor to
give them something to get rid of them, and prevent mischief,
by which means they obtained money from the prosecutor ;
and Parke, J., after consulting Vaughan and Anderson, JJ.,
admitted evidence of the acts of the mob at other places
before and after on the same day, to show that the advice
of the prisoner was not honajide, but in reality a mere
mode of robbing the prosecutor : R. v. Winkworth, 4 C. &
P. 444. Where the prosecutrix was threatened by some
person at a mock auction to be sent to prison, unless she
paid for some article they pretended was knocked down to
her, although she never bid for it ; and they accordingly

438

ROBBERY.

called in a pretended constable, who told her that unless she
gave him a shilling she must go with him, and she gave him
a shilling accordingly, not from any apprehension of per-
sonal danger but from a fear of being taken to prison, the
judges held that the circumstances of the case were not
sufficient to constitute the offence of robbery ; it was
nothing more than a simple duress, or a conspiracy to
defraud: R. v. Knewland, 2 Leach, 721; 2 Russ. 118; see
s. 404, posf. In R. v. MacGrath, 11 Cox, 347, a woman
went Into a mock auction room, where the prisoner professed
to act as auctioneer. Some cloth was put up by auction, for
which a person in the room bid 25 shillings. A man stand-
ing between the woman and the door said to the prisoner
that she had bid 26 shillings for it, upon which the prisoner
knocked it down to the Woman. She said she had not bid for
it, and would not pay for it, and turned to go out. The pri-
soner said she must pay for it before she would be allowed
to go out, and she was prevented from going out. She then
paid 26 shillings to the prisoner, because she was afraid,
and left with the cloth ; the prisoner was indicted for lar-
ceny, and having been found guilty the conviction was
affirmed; but Martin, B., was of opinion that the facts
proved also a robbery. Where the defendant, with an
intent to take money from a prisoner who was under his
charge for an assault, handcuffed her to another prisoner,
kicked and beat her whilst thus handcuffed, put her into a
hackney coach for the purpose of carrying her to prison,
and then took four shillings from her pocket for the pur-
pose of paying the coach hire, the jury finding that the
defendant had previously the intent of getting from the
prosecutrix whatever money she had, and that he used all
this violence for the purpose of carrying his intent into
execution, the judges held clearly that this was robbery :
R. V. Gascoigne, 2 East, P. C. 709. Even in a case where
it appeared that the defendant attempted to commit a rape
upon the prosecutrix, and she, without any demand from
him, gave him some money to desist, which he put into his

ROBBERY,

489

pocket, and then continued his attempt until he was inter-
rupted ; this was holden by the judges to be robbery, for the
woman from violence and terror occasioned by the prisoner's
behaviour and to redeem her chastity, offered the money
which it is clear she would not have given voluntarily, and
the prisoner, by taking it, derived that advantage to himself
from his felonious conduct, though his original intent was
to commit a rape : R. v. Blackham, 2 East, P. C. 711.

And it is of no importance under what pretense the
robber obtains the money if the proseicutor be forced to
deliver it from actual fear, or under circumstances from
which the court can presume it. As, for instance, if a man
with a sword drawn ask alms of me, and I give it him
through mistrust and apprehension of violence, this is
felonious robbery. Thieves come to rob A., and finding
little about him force him by menace of death to swear
to bring them a greater sum, which he does accordingly,
this is robbery ; not for the reason assigned by Hawkins,,
because the money was delivered while the party thought
himself bound in conscience to give it by virtue of the
oath, which in his fear he was compelled to take ; which
manner of stating the case affords an inference that the fear
had ceased at the time of the delivery, and that the owner
then acted solely under the mistaken compulsion of his
oath. But the true reason is given by Lord Hale and
others; because the fear of that menace still continued
upon liim at the time he delivered the money: 2 East, P. C.
TU. Where the defendant, at the head of a riotous mob,
stopped a cart laden with cheeses, insisting upon seizing
them for want of a permit ; after some altercation he went
with the driver, under pretense of going before a ujagistrate>
and during their absence the mob pillaged the cart ; this
was holden to be a robbery: Merriman v. Hundred of
Chippenham, 2 East, P. C. 709. On this case, it is well
observed that the opinion tliat it amounted to a robbery
must have been grounded upon the consideration that the

Hi'

ll >;

11 !il!I':'

440

ROBBERY.

first seizure of the cart and goods by the defendant, being
by violence and while the owner was present, constituted
the offence of a robbery: 2 Russ. 111.

So where the defendant took goods from the prosecutrix
to the value of eight shillings, and by force and threats com-
pelled her to take one shilling under pretense of payment
for them, this was holden to be a robbery : Simon's Case
and Spencer's Case, 2 East, P. C. 712. .The fear must pre-
cede the taking. For if a man privately steal money from
the person of another, and afterwards keep it by putting
him in fear, this is no robbery, for the fear is subsequent
to the taking: R, v. Harman, 1 Hale, 534; and R. v. Gnosil,
1 C. & P. Z'^4>.

" It remains further to be considered of what nature
this fear may be. This is an inquiry the more difficult,
because it is nowhere defined in any of the acknowledged
treatises upon the subject. Lord Hale proposes to consider
what shall be said a putting in fear, but he leaves this part
of the question untouched. Lord Coke and Hawkins do
the same. Mr. Justice Foster seems to laj'- the greatest
stress upon the necessity of the property's being taken
againi^t the will of the party, and he leaves the circum-
stance of fear out of the question; or that at any rate, when
the fact is attended with circumstances of evidence or
terror, the law, in odium spoliatoris, will presume fear if
it be necessary, where there appear to be so just a ground
for it. Mr. Justice Blackstone leans to the same opinion.
But neither of them afford any precise idea of the nature
of the fear or apprehension supposed to exist. Stauud-
ford defines robbery to be a felonious taking of anything
from the person or in the presence of another, openly ami
against his will ; and Bracton also rests it upon the latter
circumstance. I have the authority of the judges, as men-
tioned by Willes, J., in delivering their opinion in Donally's
Case, in 1779, to justify me in not attempting to draw the
exact line in this case ; but thus much, I may venture to

ROBBERY.

441

state, that on the one hand the fear is not confined to an
apprehension of bodily injury, and, on the other hand, it
must be of such a nature as in reason and common experi-
ence is likely to induce a person to part with his property
against his will, and to put him, as it were, under a tem-
porary suspension of the power of exercising it through the
influence of the terror impressed; in which case fear
supplies, as well in sound reason as in legal construction,
the place of force, or an actual taking by violence, or
assault upon the person": 2 East, P. C. 713.

It has been seen, ante, R. v. Astley, 2 East, P. C. 729,
that a threat to destroy the prosecutor's house is deemed
sufficient by law to constitute robbery, if money is obtained
by the prisoner in consequence of it. This is no exception
to the law which requires violence or fear of bodily injury,
because one without a house is exposed to the inclement
elements ; so that to deprive a man of his house is equiva-
lent to inflicting persoital injury upon him. In general
terms, the person robbed must be, in legal phrase, put in
fear. But if force is used there need be no other fear than
the law will imply from it ; there need be no fear in fact.
The proposition is sometimes stated to be that there must
be either force or fear, while there need not be both. The
true distinction is doubtless that, where there is no actual
force, there must be actual fear, but where there is actual
force the fear is conclusively inferred by the law. And
within this distinction, assaults where there is no actual
battery, are probably to be deemed actual force. Where
neither this force is employed,nor any fear is excited, there
is no robbery, though there be reasonable grounds for fear :
2 Bishop, Cr. L. 1174; see s. 404, ^^os^.

From the person. — The goods must be proved to have
been taken from the person of the prosecutor. The legal
meaning of the word person, however, is not here, that the ^
taking must necessarily be from the actual contact of the
body, but if it is from under the peraonal protection that

it 'if^-

442

ROBBERY.

will suffice. Within this doctrine the person may be
deemed to protect all things belonging to the individual
within a distance, not easily defined, over which the influ-
ence of the personal presence extends. If a thief, say&
Lord Hale, come into the presence of A., and, with violence
and putting A. in fear, drive away his horse, cattle or
sheep, he commits robbery. But if the taking be not
either directly from his person or in his presence it is
not robbery. In robbery, says East, 2 P. C. 707, it is
sufficient if the property be taken in the presence of the
owner ; it may not be taken immediately from his person
so that there be violence to his person, or putting him
in fear. As where one, having first assaulted another,
takes away his horse standing by him ; or, having put him
in fear, drives his cattle out of his pasture in his presence,
or takes up his purse which the other in his fright had
thrown into a bush. Or, adds Hawkins, rob my servant of
my mone^- before my face, after having first assaulted me:
1 Hawk. 214. Where, on an indictment for robbery, it
appeared that the prosecutor gave his bundle to his brother
to carry for him, and while they were going along the road
the prisoners assaulted the prosecutor, upon which his
brother laid down his bundle in the road, and ran to his
assistance, and one of the prisoners then ran away with the
bundle; Vaughan, B., intimated an opinion that under these
circumstances the indictment was not sustainable, as the
bundle was in the possession of another person at the time
when the assault was committed. Highway robbery was
a felonious taking of tiie property of another by violence
against his will, either from his person or in his presence:
the bundle in this case was not in the prosecutor's posses-
sion. If these prisoners intended to take the bundle, why
did they assault the prosecutor, and not the person who
had it : R. v. Fallows, 2 Russ. 107. The prisonera were
convicted of a simple larceny. Qucere, whether if the
indictment had been for robbinjr the brother, wlio was
carrying the bundle, it might not have been sustained, as

ROBBERY.

44'^

it was the violence of the prisoners that made him put it-
jown and it was taken in his presence. In R. v. Wright.
Styles, 156, it was holden that if a man's servant be robbed
of his master's goods in the sight of his master, this ia
robbery of the master : note by Greaves.

Where, on an indictment for robbery and stealing from
the person, it was proved that the prosecutor, who was.
paralyzed, received, whilst sitting on a sofa in a room, a
violent blow on the head from one prisoner, whilst the
other prisoner went and stole a cash-box from a cupboard
in the same room ; it was held that the cash-box being in
the room in which the prosecutor was sitting, and he being^
aware of that fact, it was virtually under his protection r
and it ^^'as left to the jury to say whether the cash-box waa
under the protection of the prosecutor at the time i^ was
stolen : R. v. Selway, 8 Cox, 235.

The taking must be charged to be with violence from
the person, and against the will of the party ; but it does
not appear certain that the indictment should also charge
that he was put in fear, though this is usual, and, therefore^
safest to be done.

But in the conference on Donally's case, where the sub-
ject \vas much considered, it was observed by Eyre, B., that.
the more ancient precedents did not state the putting in
fear.and that, though others stf'-ted the putting in corporeal
fear, yet the putting in fear of life was of modern intro-
duction. Other judges considered that the gist of the
offence was the taking by violence, and that the putting in
fear was only a constructive violence, supplying the place
of actual force. In general,however,as was before observed,.
no technical description of the fact is necessary, if upon the
whole it plainly appears to have been committed with
violence against the will of the party : 2 East, P. C. 783,

The ownership of the property must be alleged the same
as in an indictment for larceny. The value of the article*
stolen need not necessarily be stated. In R. v. Binglej', 5

1, :'; ^ ^

444

ROBBERY AND EXTORTION.

[Sees. 397, 398

C. & p. 602, the prisoner robbed the prosecutor of a piece
of paper, containing a memorandum of money that a person
owed him, and it was held sufficient to constitute a robbery,

PART XXIX.
ROBBERY AND EXTORTION.

Definition.

897. Robbery is theft accompanied with violence or threats of violence
to any person or property us(ed to extort the property stolen, or to prevent or
overcome resistance to its being stolen.

Agobavated Robbery.

308« Every one is guil ty of an indictable offence and liable to imprison-
ment for life and to he whipped who —

(a) robs any person and at the time of, or immediately before or imme-
diately after, such robbery wounds, beats, strikes, or uses any i^ersonal violence
to, such person ; or

{b) being together with any other person or persona robs, or assaults witii
intent to rob, any person ; or

(c) being armed with an offensive weapon or instrument robs, or assaults
■with intent to rob any person. R. S. C. c. 164, s. 34. 24-25 V. c. 96, s. 43
(Imp.).

This clause provides for five offences : 1. Being armed
with any offensive weapon or instrument, robbing any
person.

2. Being so armed, assaulting any person with intent to
rob this person.

3. Together with one or more person or persons, robbing
any other person.

4. Together with one or more person or persons, assault-
ing any person with intent to rob this peraon.

5. Robbing any person, and at the time of or imme-
diately before, or immediately after such robbery, wound-

fissaults with

S€C.398]

AGGRAVATED ROBBERY.

445

ing, beating, striking, or using any other personal violence
to any person.

1. Indictment for a robbery by a person armed thai

J S., on at being then armed with a certain

offensive weapon and instrument, to wit, a bludgeon, in and
upon one D. unlawfully did make an assault, and him the
said D. in bodily fear and danger of his life then unlaw-
fully did put, and a sum of money, to wit, the sum of ten
dollars, of the moneys of the said D., then unlawfully and
violently did steal

2. Indictment for an assault by a person armed with

Yflient to commit robbery that J. S. on at

beinf? then armed with a certain offensive weapon and
instrument, called a bludgeon, in and upon one D. unlaw-
fully did make an assault, with intent the moneys, good*
and chattels of the said D. from the person and against the
will of him the said D., then unlawfully and violently tO'
steal

3. Indictment for robbery by two or more persons in

company that A. B. and D. H. together, in and upon

one J. N. unlawfully did make an assault, and him the said
J. N. in bodily fear and danger of his life then and there
together unlawfully did put, and the moneys of the said

J. N. to the amount of from the person and against

the will of the said J. M. then unlawfully and violently
together did steal. (// one only of them be apprehended it
will charge him by name together with a certain other
person, or certain other persons, to the jurors aforesaid
unknown).

4. Indictment for, together with one or more person
w persons, assaulting with intent to rob. — Can be drawn
on forms 2 and 3.

5. Robbery accompanied by wounding, etc. — that J.
N. at on in and upon one A. M. unlawfully
did make an assault, and him the said A. M. in bodily fear

{l-

446

ROBBERY AND EXTORTION.

[Sec. 399

and danger of his life then unlawfully did put, and the
moneys of the said A. M. to the amount of ten dollars and
one gold watch, of the goods and chattels of the said
A. M. from tlie person and against the will of the said
A. M. then unlawfully and violently did steal, and that the
said J. N. immediately before he so robbed the said A. II.
as aforesaid, the said A. M. did unlawfully wound.
{It ivill he iTnmaterial, in any of these indictments, if the
place where the robbery was committed be stated incorrectly.)

The observations ante, applicable to robbery generally
apply to these offences.

Under indictment No. 1 the defendant may be con-
victed of the robbery only, or of an assault with intent to
rob. The same, under indictments numbers 3 and 5.
And wherever a robbery, Yith aggravating circumstances,
that is to say, either by a person armed, or by several
persons together, or accompanied with wounding, is charged
in the indictment, the jury may convict of an assault with
intend to rob, attended with the like aggravation, the
assault following the nature of the robbery: R. v Mitchell,
2 Den. 468, and remarks upon it, in Dears. 19.

By 8. 713 a verdict of common assault may be returned
if the evidence warrants it. And by s. 711, if the offence
has not been completed, a verdict of guilty of the attempt to
commit the oifence charged may be given, if the evidence
warrants it.

Upon an indictment for robbery charging a wounding
the jury may convict of unlawful wounding under s. 242,
or of an assault causing actual bodily harm under s. 262.

See remarks under next section.

Punishment op Robbery.

300« Every one who commits i-obbery is guilty of an indictable offence
and liable to fourteen years' imprisonment. R. S, C. c. 164, s. 32.

Indictment for robbery. — in and upon one

J. N. unlawfully did make an assault, and him, the said

J. N., in bodily fear and danger of his life then did put, and

Sees. 400, 401]

ASSATTLT WITH INTENT.

447

the moneys of the said J. N., to the amount of ten dollars,
from the person and against the will of the said J. N. then
unlawfully and violently did steal.

The indictment may charge the defendant with having
assaulted several persons and stolen different sums from
them, if the whole was one transaction.

If the robbery be not proved the jury may return a
verdict of an assault with intent to rob, if the evidence
warrants it, and then the defendant is punishable as under
s. 400. By 8. 713, if the intent be not proved a verdict of
common assault may be given : R. v. Archer, 2 Moo 283 ;
R. V. Hagan, 8 C. & P. 167; R. v. Ellis, 8 C. & P. 654 ; R. v.
Nicholls, 9 C. & P. 267 ; R. v. Woodhall, 12 Cox, 240, is
not to be followed here, as the enactment to the same effect
is now, in England, repealed,

The word " together " is not essential in an indictment
for robbery against two persons to show that the offence
was a joint one : R. v. Provost, M. L. R, 1 Q. B. 477.

Assault with Intent to Rob.

400« Every one who assaults any person with intent to rob him is guilty
of an indictable oifenoe and liable to three years' imprisonment. K. S. C.
0. 164,8. 33 ; 24-25 V. c. 96 s. 42 (Imp.).

Fine, s. 958 : see annotation under the three next pre-
ceding sections.

Indictment. — in and upon one C. D., unlaw-

fully did make an assault with intent the moneys, goods
and chattels of the said C. D., from the person and against
the will of the said C. D. unlawfully and violently to steal :
R. V. Huxley, Car. 2 M. 596 ; R. v. O'Neil, 11 R. L. 334.

Stopping the Mail with Intent to Rob.

401* Every one is guilty of an indictable offence and liable to imprison-
ment for life, or to any term not less than five years, who stops a mail with
intent to rob or search the same. R. S. C. c. 35, s. 81. 7 Wm. IV. and 1 V.

c 36 (Imp.).

Section 4, ante, as to definitions, and s. 624, post, as to
indictment.

I! 111!

1^1

448

ROBBERY AND EXTORTION.

[8«a <o

Indictment. —

_ a certain mail for the conveyance

of post letters, unlawfully did stop with intent to rob the
same.

A verdict of attempt may be given, if the evidence
warrants it, s. 711.

CoHPSLLINO EXBOUnON OF DOOUHINTS.

40*2* Every one is guilty of an indictable offeree and liable to imprison-
ment for life who, with intent to defraud, or injure, by unlawful violence to
or restraint of the person of another, or by the threat that either the offender
or any other person will employ such violence or restraint, unlawfully compela
any person to execute, make, accept, endorse, alter or destroy the whole or
any part of any valuable security, or to write, impress or affix any name or
seal upon any paper or parchment, in order that it may be afterwards made or
converted into or used or dealt with as a valuable security. R. S. G. c. 173,
ss. 5 & C (Avwnded). 24-25 V. o. 96, s. 48 (Imp.).

The obtaining money by accusing or threatening to
accuse of any treason, felony or any crime, now falls under
ss. 405-406, post.

" Valuable security " defined, s. 3.

On this clause, Greaves says : " This clause is new. It
will meet all such cases as R. v. Phipoe, 2 Leach, 673, and
R. V. Edwards, 6 C. & P. 521, where persons by violence to
the person or by threats induce others to execute deeds
bills of exchange or other securities.

The defendants, husband and wife, were indicted under
this clause, for having by threats of violence and restraint
induced the prosecutor to write and affix his name to the
following document : " London, July 19th, 1875. I hereby
agree to pay you JEIOO on the 27th inst, to prevent any
action against me."

Held, that this document was not a promissory note, but
was an agreement to pay money for a valid consideration
which could be sued upon and was therefore a valuable
security. To constitute a valuable security within the
meaning of the statute an instrument need not be negoti-
able. A wife who takes an independent part in the com-
mission of a crime when her husband is not present is not

•I'C]

EXTORTION BY LETTER.

449

|v. otected by her coverture : R. v. John, 13 Cox, 100 ; see
oiseH under 8. 405, pout.

See that case of R. v. John as to form of indictment.

Extortion bv Letter.

403- Every one in guilty of un indictable offence and liable to/ourteen
iiMfs' imprisonment wlio aenda, delivera or utters, or directly or indirectly
causes to be received, knowing the contents thereof, any letter or writing
demanding of any jierson with menaces, and without any reasonable or pro-
bable caiiHe, any property, chattel, money, vuluable Ht-curity or other valuable
thing. R. S. C. c. 173, i. 1. 24-25 V. c. 9C, a. 44 (Imp. ).

" Valuable security " and " writing " defined, s. 3.

An indictment on this clause should always contain a
count for uttering without stating the pei*son to whom the
letter or writing is uttered : Greaves, Cons. Acts, 135.

Indictment for 8enJ,ing a letter, demanding money
with menaces. — that J. S., on unlawfully did send
to one J. N. a certain letter, directed to the said J. N. by
the name and description of Mr. J. N., of demanding

money from the said J. N. with menaces, and without
reasonable or probable cause, he the said J. S. then well
knowing the contents of the said letter ; and which said
letter is as follows, that is to say, (here set out the letter
verbatim). And the jurors aforesaid, do further present,
that the said J. S. on the day and in the year aforesaid,
unlawfully did utter a certain writing demanding money
from the said J. N. with menaces and without any reason-
able or probable cause, he the said J. S. then well knowing
the contents of the said writing and which said writing is
as follows, that is to say (here set out the writing vei'hatini).
iiee 8. 613.

Where the letter contained a request only, but intimated
that, if it were not complied with, the writer would publish
a certain libel then in his possession accusing the prosecutor
of murder, this was holden to amount to a demand : R. v.
Robinson, 2 Leach, 749. The demand nmst be with
menaces, and without any reasonable or probable cause, and
it will be for the jury to consider whether the letter does
Ckim. Law— 29

450

ROBBERY AND EXTORTION.

[Sec. 404

expressly or impliedly contain a demand of this description.
The words " without any reasonable or probable cause "
apply to the demand of money, and not to the accusation
threatened by the defendant to be made against the prose-
cutor ; and it is, therefore, immaterial in point of law,
whether the accusation be true or not : R. v. Hamilton, 1
C. & K. 212 ; R. v. Gardner, 1 C. & P. 479. A letter
written to a banker, stating that it was intended by some
one to burn his books and cause his bank to stop, and that
if 250 pounds were put in a certain place the writer of the
letter would prevent the mischief, but if the money were
not put there it would happen, was held to be a letter
demanding money with menaces : R. v. Smith, 1 Den. 510.
The judges seemed to think that this decision did not inter-
fere with R. V. Pickford, 4 C. & P. 227. In R. v. Piekford
the injury threatened was to be done by a third person. It
is immaterial whether the menaces or threats hereinbefore
mentioned be of violence, injury or accusation to be caused
or made by the offender, or by any other person. See R. v.
Tranchant, 9 L. N. 333 and R. v. Grimwade, 1 Den. 30.

32 & 33 V.C.21, s. 43 made it a felony to send "any letter
demanding of any person with menaces, and without any
reasonable or probable cause, any money, etc." Held, that
the words " without reasonable or probable cause " apply
to the money demanded.and not to the accusation threatened
to be made : R v. Mason, 24 U. C. C. P. 58.

Demanding with intent to Steal.

404> Every one is guilty of an indictable offence and liable to two yean'
imprisonment who, with menaces, demands from any person, eilher for hiiimlj
or for any other person, anything capable of being stolen with intent to steal it,
R, S. C. c. 173, 8. 2. 24-25 V. c. 90, s. 15 (Imp.).

The repealed clause had the words " or by force " after
menaces. The words in italics are new.

Indictment. — unlawfully with menaces did de-

mand of A. B. the money of him the said A. B. with intent
the said money from the said A. B. unlawfully to steal.

Sec. 405]

EX-IORTION BY THREATS.

451

The prosecutor must prove a demand by the defendant
of the money or other thing stated in the indictment " by
menaces " with intent to steal it. It is not necessary to
prove an express demand in words ; the statute says " with
menaces." " Demands," and menaces are of two kinds, by
words or by gestures ; so that, if the words or gestures of
the defendant at the time were plainly indicative of what
he required, and tantamount in fact to a demand, it should
seem to be sufficient proof of the allegation of demand in
the indictment : R. v. Jackson, 1 Leach, 267. If a person,
with menaces, demand money of another, who does not give
it him, because he has it not with him, this is a felony
within the statute ; but if the party demanding the money
knows that it is not then in the prosecutor's possession, andi
only intends to obtain an order for the payment of it, it is
otherwise : R. v. Edwards, 6 C. & P. 515. That would now
fall under this section.

See Ji. V. Walton, L. & C. 288 ; R. v. Robertson, L. & C.
483 ; 3 Russ. 203, note by Greaves.

Why is the punishment only two years under this section ^
and fourteen under the next preceding one ?

Extortion by Certain Threats.

405. Every one is guilty of an indictable offence and liable to fourteenr
years' imprisonment who, with intent to extort or gain anything from any

person-
Id) accases or threatens to accuse either that person or any other person,
whether the ptrwii. accused or threatened loith accusation is guilty or not, of

(i) any oilcnce punishable by law with death or imprisonment for

seven years or more ;

(ii) any assault with intent to commit a rape, or any attempt or
end«avour to commit a rape, w any indecent assault ;

(iii) carnally knowing or attempting to know any child so as to be pun- .
ishablc under this Act ;

(iv) any infamous offence, that is to say, buggery, an attempt or
assault with intent to commit buggery, or any unnatural practice, or

iiicest ;

(v) counselling or procuring any person to commit any such infamous ;
offence ; or

(6) threatens that any person shall be so accused by any other person ; or •

■M%'

452

ROBBERY AND EXTORTION.

[Sec, 405

(o) causes any person to receive a document containing such accusation
or threat, knowing the contents thereof ;

(d) by any of the means aforesaid compels or attempts to compel any
person to execute, make, accept, endorse, alter or destroy the whole or any
part of any valuable security, or to write, impress or aflBx any name or seal
upon or to any paper or parchment, in order that it may be afterwards made
or converted into or used or dealt with as a valuable security. R. S. C. c. I73
sa. 3, 4, 1, 5, &, G (Amended). 24-25 V. c. 96, as. 46, 47, 48 (Imp.).

The words in italics are new.

*' Valuable security," defined, s. 3.

Extortion at common law : see R. v. Tisdale, 20 U. C.
Q. B. 272.

Indictmient . — that J. S., on unlawfully

did send to one J. N., a certain letter, directed to the said
J. N., by the name and description of Mr. J. N., threatenino-
to accuse him, the said J. N., of having attempted and
endeavoured to commit the abominable crime of bugo-ery
with him the said J. S., with a view and intent thereby
then to extort and gain money from the said J. N., he the
said J. S., then well knowing the contents of said letter,
and which said letter is as follows, to wit (here set ov ' flie
letter verbatim) : see s. 613.

An indictment for sending a letter threatening to accuse
a man of an infamous crime need not specify such crime
for the specific crime the defendant threatened to cliaroe
might intentionally by him be left in doubt : R. v. Tucker,
1 Moo. 134. The threat may be to accuse another person
than the one to whom the letter was sent. It is imma-
terial whether the prosecutor be innocent or guilty of the
offence threatened to be imputed to him; s-s. (a): R, v,
Gardner, 1 C. & P. 479; R. v. Richards, 11 Cox, 43.

Where it was doubtful from the letter what charae wiis
intended parol evidence was admitted to explain it, and
the prosecutor proved that having asked the prisoner what
he meant by certain expressions in the lettei*, the prisoner
said that he meant ttiat the prosecutor had taken indecent
liberties with his person ; the judges held tlie conviction to
be right : R. v. Tucker, 1 Moo. 134.

Sec. 405]

EXTORTION BY THREATS.

453

The court will, after the bill is found, upon the appli-
cation of the prisoner, order the letter to be deposited with
an officer, in order that the prisoner's witnesses may
inspect it : R. v. Harrie, 6 C. & P. 105.

In R. V. Ward, 10 Cox, 42, on an indictment containing
three counts for sending three separate letters, evidence of
the sending of one only was declared admissible. The
threat need not be by letter under s. 405.

It is immaterial whether the menaces or threats herein-
before mentioned be of accusation to be caused or made by
the offender or by any other person ; " s-s. (6).

Indictment. — unlawfully did threaten one J. N.,

to accuse him the said J. N., of having attempted and
endeavoured to commit the abominable crime of buggery
with the said J. S., with a view and intent thereby then to
extort and gain money from the said J. N.

It must be a threat to accuse, or an accusation ; if J. N.
be indicted or in custody of an offence, and the defendant
threaten to procure witnesses to prove the charge, this
will not be a threat to accuse within the meaning of the
statute. But it need not be a threat to accuse before a
judicial tribunal ; a threat to charge before any third pei-son
is sufficient : R. v. Robinson, 2 M. & Rob. 14. It is
immaterial whether the prosecutor be innocent or guilty of
the offence charged, and therefore, although the prosecutor
may be cross-examined as to his guilt of the offence im-
puted to him, with a view to shake his credit, yts uo
evidence will be allowed to be given, even in cross-exam-
ination of another witness, to prove tliat the prosecutor
was guilty of such offence: R. v. Gardner, 1 C. & P. 479 ;
R. V. Cracknell, 10 Cox, 408. Whether the crime of which
the prosecutor was accused by the prisoner was actually
committed is not material in this, that the prisoner is
equally guilty if he intended by such accusation to extort
money; but it ia material in considering the (question
whether, under the circumstances of the case, the intention

€P

454

ROBBERY AND EXTORTION.

[Sec. 406

of the prisoner was to extort money or merely to compound
a felony : E. v. Richards, 11 Cox, 43. In Archbold, 482,
this last decision seems not to be approved of. — A person
. threatening A's father that he would accuse A. of having
committed an abominable offence upon a mare for the pur-
pose of putting off the mare, and forcing the father, under
terror of the threatened charge to buy and pay for her at
the prisoner's price, is guilty of threatening to accuse
within this section: R. v. Redman, 10 Cox, 159, Warb.
Lead. Cas. 142. On the trial of an indictment for threaten-
ing to accuse a person of an abominable crime, with intent
to extort money, and by intimidating the party by the
threat, in fact obtaining the money, the jury need not confine
themselves to the consideration of the expression used
before the money was, given, but may, if those expressions
are equivocal, connect with them what was afterwards said
by the prisoner when he was taken into custody : R. v.
Kain, 8 C. & P. 187.

See R. V. Popplewell, 20 O. R. 303.

As to what is a " valuable security," see cases under ss.
353 and 402.

A letter sent to a tavern keeper demanding a sum of
money and threatening, in default of payment, to bring a
prosecution under the Liquor License Act, is not a menace
within the meaning of c. 173, s. 1.

The test is whether or not the menace is such as a fiim
and prudent man might and ought to have resisted : R. v.
McDonald, 8 Man. L. R. 491.

Extortion by Other Threats. (New).

400. Every one is guilty of an indictable offence, and liable to imprison-
ment for seven years' who —

(ii) with intent to extort or gain anything from any person accuses or
threatens to accuse either that (jerson or any other person of any offence other
than those 8i)ecified in the last section whether the ijerson accused or threatened
wich acounation is guilty or not of that offence; or

(h) wi*^h such intent as aforesaid, threatens that any person shall be ao
Accused by any person ; or

Sec. 406]

EXTORTION BY THREATS.

455

(e) causes any person to receive a document containing such accusation or
threat knowing the conten<;s thereof ; or

{d) by any of the means aforesaid, compels or attempts to compel any
person to execute, make, accept, endorse, alter or destroy the whole or any
part of any valuable Hecurity, or to write, impress or affix any name or seal
upon or to any pajier or parchment, in order that it may be afterwards made
or converted into, or used or dealt with at a valuable security.

" At present a policeman or gamekeeper who levies black-
mail under threats of larceny or poaching, if crimini y respon-
sible at all, is only punishable with imprisonment and fine." —
Imp. Comm. Rep.

This section extends the provisions of the preceding
section to threats of every accusation whatever.

i.«:|

SB.'! 'IH

456

BURGLARY.

GENERAL REMARKS.

See R. V. Hughes, Warb. Lead. Cas. 190, and cases there
cited. *

Burglary, or nocturnal housebreaking, hurgi latrocl-
nium, which, by our ancient law, was called hamesecken,
has always been looked upon as a very heinous offence
for it always tends to occasion a frightful alarm, and often
i3ads by natural consequence to the crime of murder itself,
its malignity also is strongly illustrated by considering
how particular and tender a regard is paid by the law of
F/dgland to the immunity of a man's house, which it styles
n^H castle, and will never suffer to be violated with impunity;
agreeing herein with the sentiments of Ancient Rome, as
expressed in the words of Tully {Pro Domo. 41) "quid
enim sand his, quid omni religione 7nunitiu8,quam domm
uni iiscujusque civium ? " For this reason no outward doora
can, in general, be broken open to execute any civil pro-
cess, though, in criminal cases, the public safety supersedes
the private. Hence, also, in part arises the animadversion
of the law upon eavesdroppers, nuisancers, and incendiaries;
and to this principle it nmst be assigned, that a man may
assemble people [together lawfully (at least if they do not
exceed eleven), without danger of raising a riot, rout or
unlawful assembly, in order to protect and defend his
house, which he is nof ;>err.' iited to do in any other case:
4 Stephens' Black.s. 104 s. 79, s-s. 3 anf>>.

Burglary! is ^ break ;,'?.g and entering the man,sion-liouse
of another in the night, with intent to commit some felony
within the same, whether .such felonious intent be executed
o.* not : now any indictable offence, s. 410, j)Ost. In wliich
definition there are four things to be considered, the tvne,
the pl((ce, ihe manner, and the intent.

GENERAL REMARKS.

457

The time. — The time must be by night and not by day,
for in the day time there is no burglary. As to what is
reckoned night and what day for this purpose, anciently
tlie day was accounted to begin only at sunrising, and to end
immediately upon sunset; but the better opinion afterwards
was that if there were daj^light or crepusculuvi enough>
bef'un or left, to discern a man's face withal, it was no
burglary. But this did not extend to moonlight, for then
many midnight burglaries would have gone unpunished^
and besides, the malignity of the offence does not so properly
arise from its being done in the dark, as at the dead of
nit'ht, when all creation is at rest. But the doctrines of the
common law on this subject are no longer of practical
importance, as it is enacted by s. 3, ante, that the night
commences at nine of the clock in the afternoon of each day,
and concludes at six of the clock in the forenoon of the next
succ'isding day, and the day includes the remainder of the
twenty-four hours. The breaking and entering must both
be committed in the night-time; if the breaking be in the
day, and the entering in the night, or vice versa, it is no
burglary: see s. 410, post; 1 Hale, 551. But the breaking
and entering need not be both done in the same night ; for
if thieves break a hole in a house one night, with intent to
enter another night and commit felony and come accord-
ingly another night and commit a felony, this seems to be
burglary.for the breaking and entering were both noctanter,
though not the same night: 2 Russ. 39. The breaking on
Friday night with intent to enter at a future time, and the
entering on the Sunday night constitute burglary: R. v.
Smith, R. & R. 417. And then, the burglary is supposed
to have taken place on the night of the entry, and is to be
charged as such: 1 Hale, 551. In Jordan's Case, 7 C. & P.
432, it was lield that whero the breaking is on one night
and the entry on ano^-her, a party present at the breaking,
but absent at the entry, is a principal.

The place. — The breaking and entering must take place
in a mansion or dwelling-house to constitute burglary.

(Hk ^"'^^

IS-)

iiy M

:i:

\'ih hi

- *i

458

BURGLARY.

At common law, Lord Hale says that a church may be the
subject of burglary, 1 Hale, 559, on the ground, according
to Lord Coke, that a church is the mansion house of God,
though Hawkins, 1 vol. 133, does not approve of that
nicety, as he calls it, and thinks that burglary in a church
^eems to be taken as a distinct burglary from that in a
house. However, this offence is now provided for : ss. 408
and 409, peat.

What is a dwelling house ? — See s. 407, post. From all
the cases it appears that it must be a place of actual
residence. Thus a house under repaira, in which no one
lives though the owner's property is deposited there, h not
Sk place in which burglary can be committed : R. v. L^ us,
1 Leach, 185 ; in this case neither the proprietor of the
house, nor any of his family, nor any person whatever had
yet occupied the house.

In Fuller's Case, 1 Leach, 186, note, the defendant
was charged of a burglary in the dwelling-house of Henry
Holland. The house was new built, and nearly finished;
a workman who was constantly employed hy Hollaiid slept
in it for the purpose of protecting it, but none of Holland's
family had yet taken possession of the house, and the
Court held that it was not the dwelling-house of Holland,
and that where the owner has never by himself or by any of
his family slept in the house, it is not his dwelling house,
so as to make the breaking thereof burglary, though hehaa
used it for his meals, and all the purposes of his business :
see R. V. Martin. R. & R. 108

If a porter lie in a warehouse for the purpose of pritect-
ing goods, R. v. Smith, 2 East, P. C. 497, or a servant lit in a
barn in order to watch thieves, R. v. Brown, 2 East, P. C. 501,
this does not make the warehouse or barn a dwelling-house in
which burglary can be committed. But if the agent of a
public company reside at a warehouse belonging to his
•employers this crime may be committed by breaking it, and
he may be stated to be the owner : R. v. Margetts, 2 Leach,

GENERAL REMARKS.

459

slept

tusiness :

pri'tect-

t lit in a
P.C.501,

house in
rent of a
o- to his
\g it, anil

2 Leach,

930. Where the landlord of a dwelling-house, after the
tenant, whose furniture he had bought, had quitted it, put a
gervant into it to sleep there at night, until he should re-let it
to another tenant, but had no intention to reside in it him-
self, the judges held that it could not be deemed the
dwelling-house of the landlord : R, v. Davies, 2 Leach, 876.
So where the tenant had put all his goods and furniture
into the house, preparatory to his removing to it with his
family, but neither he nor any of his family had as yet
slept in it, it was holden not to be a dwelling-house in w^hich
bui'^lary can be committed : R. v. Hallard, 2 East, P. C. 498 1
R. V. Thompson, 2 Leach, 771. And the same has been ruled
when under such circumstances the tenant had put a
person, not being one of the family, into the house for the
protection of the goods and furniture in it, until it should
be ready for his residence : R. v, Harris, 2 Leach, 701 ; R. v.
Fuller, 1 Leach, 186. A house will not cease to be the
house of its owner, on account of his occasional or temporary
absence, even if no one sleep in it provided the owner has
an animus revertendi: R. v. Murry, 2 East, P. C. 496; and in
3. V. Kirkham, 2 Starkie, Ev. 279, Wood, B., held that the
offence of stealing in a dwelling-house had been committed,
although the owner and his family had left six months
before, having left the furniture and intending to return :
III, Nutbrown's Case, 2 East, P. C. 496. And though a man
leaves hia house and never means to live in it again, yet if
he uses part of it as a shop, and lets his servant and his
family live and sleep in another part of it for fear the
place should be robbed, and lets the rest to lodgers, the
:abitation by his servant and family will be a habitation
by him, and the shop may still be considered as part of his
dwelling-house : R. v. Gibbons, R. & R. 442. But where
the prosecutor and upholsterer left the house in which he
had resided with his fan.ily, without any intent of return-
ing to live in it, and took a ilwelling-house elsewhere, but
still retained the former house as a warehouse and work-
shop; two women emplo^'^ed by him as workwomen in his

460

BURGLARY.

business, and not as domestic servants, slept there to take
care of the house, but did not have their meals tlc^re, or
use the house for any other purpose than sleepinjT iu jt j^g
a security to the house ; the judges held that this was not
properly described as the dwelling-house of the prosecutor:
R. V. Flannagan, R. & R. 187. The occupation of a servant
in that capacity, and not as tenant, is in many cases the
occupatljn ot a master, and will be a sufficient residence to
render it the dwelling-house of the master : R. v. Stock,
R. & R. l.So ; R. V. Wilson, R. & R. 115. Where the pri-
sonei' was indicted for burglary in the dwelling-house of
J. B., J. B. worked for one W., who did carpenter's work for
a public company, and put J. B. into the house in question,
which belonged to the company, to take care of it, and
some mills adjoining. J. ii. received no more wages after
than before he went to live in the house. It was held not
rightly laid : R. v. Rawlins, 7 C. & P. 150. If a servant
live in a house of his master's at a yearly rent the house
cannot be des'^rlbed as the master's house: R. v. Jarvis, 1
Moo. 7. Every permanent building, in which the renter
or o\»'ner and ids family dwell and lie, is deemed a dwell-
ing-liou.se, and burglary may be committed in it. Even a
set of chaTiibers in an inn of court or college is deemed a
distinct dwelling-house for this purpose. And it will be
sufficient if any part of his family reside in the house.
Thus where a servant boy of the prosecutor always slept
over his brew-house, which was separated from his dwell-
ing-house by a public passage, but occupied therewith, it was
holden, upon an indictment for burglary, that the brew-
house was the dwelling-house of the prosecutor, although,
being separated by the passage, it could not be deemed to be
part of the house in which he himself actually dwelt : K v.
Westwood, R. & R. 495. Burglary cannot be committed in
a tent or booth in a market or fair, even although the owner
lodge in it, because it is a temporary not a permanent edifice;
1 Hale, 557 ; but if it be a permanent building, though used
only for the purpose of a fair, it is a dwelling-house : R, v.

GENERAL REMARKS.

4G1

,o take
!'^ve, or
\v it aa
vas not
aecutor;
servant
ases the
dence to
V. Stock,
the pri-
■house of
work for
question,
)f it, and
iges after
3 held not
a servant
the house
Jarvis, 1
ihe renter
Id a dwell-
Even a
deemed a
it will be
)he house,
■ays slept
Ihis dwell-
lith.itwas
ihe hrew-
althougli,
smedtobe
•elt: R.V.
iinitted in
the owner
snt edifice;
toughused

luse : ^- 'V-

Smith, 1 I^t- & Kob. 256. So even a loft, ovei* a stable, used
for the abode of a coachman, which he rents for his own use
and that of his family, is a place wKich may be burglar-
iously broken : R. v. Turner, 1 Leach, 305. If a house be
divided, so as to form two or more dwelling-houses within
the meaning of the word in the definition of burglary, and
all internal communication be cut off, the partitions come
distinct houses and each part will be regarded as i niau-
sion : R. v. Joncs, 1 Leach, 537. But a house tit ioint
property of partnera in trade in which their bu is

carried on may be described as the dwelling-li >\iim of all
the partners, though only one of the partners reside in it :
R. V. Athea, 1 Moo. 329. If the owner, who lets out
apartments in his house to other persons, sleep under the
same I'oof and have but one outer door common to him and
his lodo-era, such lodgers are only inmates and all their
apartments are parcel of the one dwelling-house of the
owner. But if the owner do not lodge in the same house,
or if he and the lodgers enter by different outer-doors, the
apartments so let out are the mansion for the time being of
each lodger respectively, even though the rooms are let by
the year : 2 East, P. C. 505. If the owner let off a part, but
do not dwell in the part he reserves for himself, then the part
let off is deemed in law the dwelling-house of the party
who dwells in it, whether it communicates internally with
the other part or not ; but the part he has reserved for
himself is not the subject of burglary; it is not his dwelling-
house for he does not dwell in it, nor can it be deemed the
dwelling-house of the tenant for it forms no part of his
lodging: R. v. Rogers, R. v. Carrell, R. v. Trapshaw, 1
Leach, 80, 237, 427. If the owner let the whole of a dwell-
ing-house, retaining no part of it for his or his family's
dwelling, the part each tenant occupies and dwells in is
deemed in law to be the dwelling-house of such tenant,
whether the parts holden by the respective tenants com-
municate with each other internally or not : R. v. Bailey,

^ \'^ ^

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

I^M2.8

■30 ^^"

lU ... I

2.5
2.2

1.8

1 1.25 1.4

6" —

►

Hiotographic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 872-4S03

462

BURGLARY.

1 Moo. 23 ; R. v. Jenkins, R. & R. 244 ; R. v. Carrell, 1
Leach, 237.

The term chvelling-hotLse includes in its legal significa-
tion all out-houses occupied with and imn.3diately commu-
nicating with the dwelling-house. But by s. 407, po8t, no
building," although within the same curtilage with any
dwelling-house, and occupied therewith, shell be deemed to
be part of such dwelling-house for any of the purposes of
this Act, unless there shall be a communication between
such building and dwelling-house, either immediate or by
means of a covered and enclosed passage leading from the
one to the other. Where the prosecutor's house consisted
of two living-rooms, another room used as a cellar, and a
wash-house on the ground floor, and of three bed-rooms up-
stairs, one of them! over the wash-house and the bedroom
over the house-place communicated with that over the
wash-house, but there was no internal communication
between the wash-house and any of the rooms of the house,
but the whole was under the same roof, and the defendant
broke into the wash-house, and was breaking through the
partition-wall between the wash-house and the house-place,
it was holden that the defendant was properly convicted of
burglary in breaking the house : R. v. Burrowes, 1 Moo.,
274. But where adjoining to the house was a kiln, one end
of which was supported by the wall of the house, and
adjoining to the kiln a dairy, one end of which was sup-
ported by the wall of the kiln, the roofs of all three being
of different heights, and there being no internal communi-
cation from the house to the dairy, it wAs held that
burglary was not committed by breaking into the dairy :
R. V. Higgs, 2 C. & K. 322. To be within the meaning of
this section the building must be occupied with the house
in the same right ; and therefore where a house let to and
occupied by A. adjoined and communicated with a building
let to and occupied by A. and B., it was holden that the
building could not be considered a part of the dwelling-

GENERAL REMARKS.

463:

''"(it- 11

house of A.: R. v. Jenkins, R. & R. 244. If there be any
doubt as to the nature of the building broken and entered
a count may be inserted for breaking and entering a
building within the curtilage, under s. 413, post.

It has always been held necessary to state with accuracy
in the indictment to whom the dwelling-house belongs : see
now, 8. 613, post. But in all cases of doubt the pleader
should vary in different counts the name of the owner,
although thero can be little doubt that a variance in this
respect would be amended at the trial : Archbold, 496. As
to the local description of the house it must be proved as-
laid; if there is a variance between the indictment and
evidence in the parish, etc., where the house is alleged to be
situate, the defendant must be acquitted of the burglary
unless an amendment be made. To avoid difficulty differ-
ent counts should be inserted, varying the local description.
If the house be not proved to be a dwelling-house the
defendant must be acquitted of the burglary but found
guilty of the simple larceny, if larceny is proved : Arch-
bold, 489, 496.

The manner. — There must be both a breaking and an
entering of the house: see s. 4:07 , post The breaking is
either actual or constructive. Every entrance into the
house by a trespasser is not a breaking in this case. As if
the door of a mansion-house stand open and the thief enter,
this is not breaking ; so if the window of the house be
open, and a thief with a hook or other engine draweth out
some of the goods of the owner, this is no burglary because
there is no actual breaking of the house. But if the thief
breaketh the glass of a window, and, with a hook or other
engine draweth out some of the goods of the owner, this
is burglary for there was an actual breaking of the house ::
1 Hale, 551. Where a window was a little open, and not
sufficieutly so to admit a person, and the prisoner pushed
it wide open and got in, this was held to be sufficient-
breaking: R. V. Smith, 1 Moo. 178 ; s. 407, post.

464

BURGLARY.

If there be an aperture in a cellar window to admit
light, through which a thief enter inTthe night, this is not
burglary : R. v. Lewis, 2 C. & P. 628 ; R. v. Spriggs, i
M. & Rob. 357. There is no need of any demolition of
the walls or any manual violence to^constitute a breakirio-.
Lord Hale says: "and these acts amount to an actual
breaking, viz., opening the casement, or breaking the glass
window, picking open a lock of a door with a false key, or
putting back the lock with a knife or dagger, unlatching
the door that is only latched, to put back the leaf of a
window with a dagger." In Roberts' case, 2 East, P. C. 487,
where a glass window was broken, and the window opened
wath the hand, but the shutters on the inside were not
broken, this was ruled to be burglary by Ward, Powis and
Tracy, JJ. ; but they thought this the extremity of
the law ; and, on a subse>iuent conference. Holt, C.J., and
Powell, C.J., doubting and inclining to another opinion, no
judgment was given. In Bailey's Case, R. & R. 341, it was
held by nine judges that introducing the hand between the
glass of an outer window and an inner shutter is a sufficient
entry to constitute burglary. If a thief enter by the
chimney it is a breaking, for that is as much closed as the
nature of things will permit. And it is burglarious break-
ing though none of the rooms of the house are entered.
Thus, in R. v. Brice, R. & R. 450, the prisoner got in at a
chimney and lowered himself a considerable way down,
just above the mantel piece of a room on the ground floor.
Two of the Judges thought he was not in the dwelling-
house till he was below the chimney-piece. The rest of
the judges, however, held otherwise, that tL inmey was
part of the dwelling-house, that the getting ..i at the top
was breaking of the dwelling-house, and that the lowering
himself was an entry therein.

Where the prisoner effected an entry by pulling down
the upper sash of a window, which had not been fastened
but merely kept in its place by the pulley weight, the

GENERAL REMARKS.

465

admit
) is not

iggs, 1
tion of
eakirig.
actual
lie glass
key, or
latching
3af of a
^C.487,
/ opened
vere not
owis and
jmity of
C.J., and
union, no
tl, it was
,ween the
sufficient
by the
led as the
13 break-
entered.
It in at a
ay down,
lund floor.
Idwelling-
.6 rest of
vmey was
,t the top
lowering

ling

down
fastened
■ht, tlie

iig

judges held this to be a sufficient breaking to constitute
burglary, even although it also appeared that an outside
shutter, by which the window was usually secured, was not
closed or fastened at the time : R. v. Haines, R. &; R. 451.
Where an entry was effected, first into an outer cellar by
lifting up a heavy iron grating that led into it, and then
into the house by a window, and it appeared, that the
window, which opened by hinges, had been fastened by
means of two nails as wedges, but could, notwithstanding,
easily be opened by pushing, the judges held that opening
the window so secured was a breaking sufficient to consti-
tute burglary : R. v. Hall, R. &. R. 355. So where a party
thrust his arm through the broken pane of a window, and
in so doing broke some more of the pane, and removed the
fastenings of the window and opened it : R. v. Robinson,
1 Moo. 327.

But if a window thus opening on hinges, or a door, be
not fastened at all opening them would not be a breaking
within the definition of burglary. Even where the heavy
flat door of a cellar, which would keep closed by its ownr
weight, and would require some degree of force to raise it,
was opened; it had bolts by which it might have been
fastened on the inside, but it did not appear that it was sa
fastened at the time, the judges were divided in opinion^
whether the opening of this door was such a breaking of
the house as constituted burglary : R. v. Callan, R. &. R. 157.
It was holden in Brown's Case that it was : 2 East, P.O. 487.
In R. v. Lawrence, 4 C. & P. 231, it was holden that it was
not In R. V. Russell, 1 Moo. 377, it vvas holden that it was..
See s. 407, j50si.

Where the offender, with intent to commit a felony,
obtains admission by some artifice or trick for the purpose
of effecting it he will be guilty of burglary, for this is a
constructive breaking. Thus, where thieves, having an
intent to rob, raised the hue-and-cry, and brought the
constable, to whom the owner opened the door ; and when
Grim. Law— 30

'T 1

'&-|r

466

BURGLARY.

they came in they bound the constable and robbed the
owner, this was held a burglary. So if admission be
gained under pretense of business, or if one take lodging
with a like felonious intent and afterwards rob the land-
lord, or get possession of a dwelling-house by false affidavits
without any colour of title, and then rifle the house, such
•entrance being gained by fraud, it will be burglarious. In
Hawkins' Case she was indicted for burglary ; upon evi-
<dence it appeared that she was acquainted with the house
and knew that the family were in the country, and meetino-
with the boy who kept the key she prevailed upon him to
go with her to the house by the promise of a pot of ale ;
the boy accordingly went with her, opened the door and let
her in, whereupon she sent the boy for the pot of ale,
robbed the house and went off, and this being in the night
time it Vv'as adjudged that the prisoner was clearly guilty
of burglary : 2 East, P. C. 485. If a servant conspire with
a robber, and let him into the house by night, this is
burglary in both : 1 Hale, 553 ; for the servant is doing an
unlawful act, and the opportunity afforded him of doing
i'-. with greater ease rather aggravates than extenuates the
guilt. But if a servant, pretending to agree with a robber
open the door and let him in for the purpose of detecting
and apprehending him, this is no burglary for the door is
lawfully open : R. v. Johnson, Car. & M. 218.

And the breaking necessary to constitute burglary is not
restricted to the breaking of the outer wall or doors or
windows of a house ; if the thief got admission into tlie
house by the outer door or windows being open, and after-
wards breaks or unlocks an inner door for the purpose of
entering one of the rooms in the house, this is burglary:
1 Hale, 553 ; 2 East, P. C. 488. So if a servant open his
master's chamber door, or the door of any other chamber
not immediately within his trust, with a felonious design,
or if any other person lodging in the same house, or ui a
public mn, open and enter another's door with such evil
intent, it is burglary; '2 East, P. C. 491 ; 1 Hale, 553; R.

GENERAL REMARKS.

467

Ml •■

V. Wenmouth, 8 Cox, 848. The breaking open chests is not
burglary : 1 Hale, 554. The breaking must be of some
part of the house ; and therefore, where the defendant
opened an area gate with a skeleton key, and then passed
through an open door into the kitchen, it was holden not
to be a breaking, there being no free passage from the area
to the house in the hours of sleep : R. v. Davis, R. & R. 322 ;
R. V. Bennett, R. & R. 289 ; R. v. Paine, 7 C. & P. 135. It
is essential that there should be an entry as well as a
breaking, and the entry must be connected with the break-
ing : 1 Hale. 555 ; R. v. Davis, 6 Cox, 369 ; R. v. Smith,
R. & R. 417. It is deemed an entry when the thief breaketh
the house, and his body or any part thereof, as his foot or
his arm, is within any part of the house; or when he
putteth a gun into a window which he hath broken, though
the hand be not in, or into a hole of the house which he
hath made, with intent to murder or kill, this is an entry
and breaking of the house ; but if he doth barely break
the house, without any such entry at all, this is no burg-
lary : 3 Inst. 64 ; 2 East, P. C. 490. Thieves came by night
to rob a house; the owner went out and struck one of
them ; another made a pass with a sword at persons he saw
in the entry, and, in so doing, his hand was over the
threshold : this was adjudged burglary by great advice :
2 East, P. C. 490.

In Gibbon's Case evidence that the prisoner in the night
time cut a hole in the window-shutters of a shop, part of
a dwelling-house, and putting his hand through the hole
took out watches, etc. was holden to be burglary although
no other entry was proved: 2 East, P. C. 490. Introducing
the hand through a pane of glass, broken by the prisoner,
between the outer window and the inner shutter, for the
purpose of undoing the window latch, is a sufficient entry :
R. v. Bailey, R. »fe R. 341. So would the mere introduction
of the offender's finger: R. v. Davis, R. & R. 499. So an
entry down a chimney is a sufficient entry in the house for

m<J . it

5" '

^ii

468

BURGLARY.

a chimney ia part of the house: R. v. Brice, R. & R. 450;
8. 407, post

It is even said that discharging a loaded gun into a
house is a sufficient entry: 1 Hawk. 132. Lord Hale,
1 vol. 155, is of a contrary opinion, but adds qucurel 2 East,
P. C. 490, seems to incline towards Hawkins' opinion.
Where thieves bored a hole through the door with a centre-
bit, and parts of the chips were found in the inside of the
house, this was holden not a sufficient entry to constitute
burglary: R. v. Hughes, 2 East, P. C. 491. If divers come
in the night to do a burglary, and one of them break and
enter, the rest of them standing to watch at a distance, this
is burglary in all: 1 Bum, 550.

In R. v. Spanner, 12 Cox, 155, Bramwell, B., held, that
an attempt to commit a burglary may be established on
proof of a breaking with intent to rob the house, although
there be no proof of an actual entry. The prisoner Avas
indicted for burglary, but no entry having been proved a
verdict for an attempt to commit a burglary was given.

The intent, — There can be no burglary but where the
indictment both expressly alleges, and the verdict also finds,
an intention to commit sonie felony (now any indictable
offence); for if it appear that the offender meant only to
commit a trespass, as to beat the party or the like, he is not
guilty of burglary: 1 Hale, 561. The intent must be proved
as laid. Where the intent laid was to kill a horse, and the
intent proved was merely to lame him in order to prevent
him, from running a race, the variance was holden fatal: R.
V. Dobbs, 2 East, P. C. 513. It is immaterial whether the
felonious intent be executed or not; thus, they are burglars
who, with a felonious intent, break any house or church in
the night, although they take nothing away. And herein
this offence differs from robbery, which requires that some-
thing be taken though it be not material of what value.
The felonious intent with which the prisoner broke and
entered the house cann'^>t be proved by positive testimony;

Sec. 407]

DEFINITIONS.

469

it can only be proved by the admission of the party, or by
circumstances from which the jury may presume it. Where
it appears that the prisoner actually committed a felony
after he entered the house this is satisfactory evidence and
almost conclusive that the intent with which he broke and
entered the house was to commit that felony. Indeed, the
very fact of a man's breaking and entering a dwelling-house
in the night time is strong presumptive evidence that he
did 80 with intent to steal, and the jury will be warranted
in finding him guilty upon this evidence merely: R. v. Brice,
R. & R. 450; R. v. Spanner, 12 Cox, 155. If the intent be
at all doubtful it may be laid in different ways in different
counts: R. v. Thompson, 2 East, P. C. 515; 2 Russ. 45. It
seems sufficient, in all cases where a felony has actually
been committed, to allege the commissi., i of it, as that is
sufficient evidence of the intention. But the intent to com-
mit a felony (now any indictable offence), and the actual
commission of it, may both be alleged; and in general this
is the better mode of statement: R. v. Furnival, R. & R. 445.

As to punishment see post, s. 410.

nil ' i

PART XXX.

BURGLARY AND HOUSEBREAKING.

Definitions.

40T» In thia part the following^ words are used in the following senses :

(a) " Dwelling-house " means a i^ennanant building the v/hole or any part

of which is kept by the owner or occupier for the residence therein of himself,

his family or servants, or any of them, although it may at intervals be

unoccupied ;

(i) A building occupied with, and within the same curtilage with, any
dwelling-house shall be deemed to be part of the said dwellinv-house if
there is between such building and dwelling-house a communication, either
immediate or by means of a covered and inclosed passage, leading from the

i in

470

BURGLARY AND HOUSEBREAKING.

tSeo. 408

one to the other, but not otherwise. R. S. C. o. 164, 8. 36. 24-2S V. o. t)6
8. fi3(Imp.).

(b) To " break " means to break any part, internal or external, of a build-
ing, or to open by any means whatever (including lifting, in the oase of things
kept in their places by their own weight), any door, window, shutter, cellar-
flap or other thing intended to cover openings to the building, or to give
passage from one part of it to another;

(i) An entrance into a building is made as soon as any part of the body
of the person making the entrance, or any part of any instrument used by
him, is within the building ;

(ii) Every one who obtains entrance into any building by any threat
or artifice used for that purpose, or by collusion with any person in the
building, or who enters any chimney or other aperture of the building per-
manently left open for any necessary purpose, shall be deemed to have
broken and entered that building.

These definitions are taken from the English draft
where they are given as existing law.

Breaking Places of Wokbhip.
I
408* Every one is guilty of an indictable oifence and liable to fourteen
years' imprisonment who breaks and enters any place of public Korthip and
commits any indictable offence therein, or who hMving committed any indictable
offence therein, breaks out of such place. R. S. C. c. 164, s. 35. {Aviended).
24-25V. c. 96, 8. 60(Imp.).

A tower of a parish church is a part of the church ; so
is the vestry : R. v. Wheeler, 3 C. & P. 585 ; R. v. Evans,
Car. & M. 298.

The goods of a dissenting chapel, vested in trustees,
cannot be described as the goods of a servant put in charge
of the chapel and the things in it : R. v. Hutchinson, R. &
R. 412. Where the goods belonging to a church are stolen
they may be laid in the indictment to be the goods of the
parishioners : 2 Russ. 73.

Indictment for breaking and entering a church and
stealing therein. — a place of public worship, to wit,

the church of the parish of in the county of

unlawfully did break and enter, and there, in the said
church, one silver cup of the goods and chattels of
unlawfully did steal : see ss. 619-620.

Indictment for stealing in and breaking out of a
church. — that at A. B., one silver cup,

Sees. 409, 410]

PLACE OF WORSHIP.

471

rch and

), to wit,

ihe said

nd of a
vev cup,

of the goods and chattels of in a place of public

worship, to wit, the church of the said parish there situate,
unlawfully did steal, and that the said (defendant) so being
in the said church as aforesaid, afterwards, and after he
had so coipmitted the said offence in the said church, as
aforesaid, on the day and year aforesaid, unlawfully did
break out of the said church : see ss. 619-620.

If a chapel which is private property be broken and
entered lay the property as in other cases of larceny. If
the evidence fails to prove the breaking and entering a
church, etc., the defendant may be convicted of simple
larceny. Upon the trial of any offence under this section
the jury may, under s. 711, convict of an attempt to com-
mit such offence.

Breakino Place of Worship with Intent.

409* Every one is guilty of an indictable offence and liable, to seven
years' imprisonment who breaks and enters any place of public worship with
intent to commit any indictable offence therein. R. S. 0. c. 164, s. 42 {amended),
24-25 V. c 96, s. 57 (Imp.)

/S'ee form under s. 412, j^ost.

BlTRGLARY— PONISHMBNT.

410> Every one is guilty of the indictable offence called burglary, and
liable to imprisonment for life, who —

((() breaks and enters a dwelling-house by night with intent to commit any
indictable offence therein ; or

{b) breaks out of any dwelling-house by night, either after committing an
indictable offence therein, or after having entered such dwelling-house, either
by (lay or by night, with intent to commit an indictable offence therein.
R. S. C. c. 164, s. 37 (Amended). 24-25 V. c. 96, ss. 51, 52 (Imp.).

Section 3, ante, declares what is " night."

If a peraon commits a felony in a house, and afterwards
breaks out of it in the night-time, this is burglary, although
he might have been lawfully in the house ; if, therefore, a
lodger has committed a larceny in the house and in the
night-time even lifts a latch to get out of the house with
the stolen property, this is a burglarious breaking out of
the house : R. v. Wheeldon, 8 C. & P. 747.

472

BURGLARY AND HOUSEBREAKING.

[Sec. 410

It has been held that getting out of a house by pushing
up a new trap-door, which was merely kept down by its
own weight, and on which fastenings had not yet been put,
but the old trap-door, for which this new one was substi-
tuted, had been secured by fastenings, was not a sufficient
breaking out of the house : R. v. Lawrence, 4 C. & P. 231.
On this case Greaves says : " unless a breaking out of a
house can be distinguished from the breaking into a
house, this case seems overruled by R. v. Russell, 1 Moo.
377."

If the felon, to get out of the dwelling-house, should
break an inside door the case would plainly enough be
within the statute. But the facts of the cases seem not to
have raised the question, absolutely to settle it, whether
where the intent is not to get out the breach of an inner
door by a person already within, having made w'hat is
tantam6unt to a felonious entry, but not by breaking, is
sufficient to constitute burglary, if there is no entry through
;the inner door thus broken. There are indications that
the breaking alone in such circumstances may be deemed
enough : R. v. Wheeldon, supra. On the other hand, it
was held that burglary is not committed by an entry, with
felonious intent, into a dwelling-house, without breaking,
followed by a mere breaking, without entry, of an inside
door : R. v. Davis, 6 Cox, 369 ; 2 Bishop Cr. L. 100. But
in Kelyng's Cr. C. 104, it is said that if a servant in the
house, lodging in a room remote from his master in the
night-time, draweth the latch of a door to come into his
master's chamber, with an intent to kill him, this is burg-
lary.

On any indictment for burglary the prisoner may be
convicted of the offence of breaking the dwelling-house
under s. 412, post *

On an indictment for burglary the prisoner cannot be
found guilty of felonious receiving : St. Laurent v. R., 7
Q. L. R. 47!

Sec. 410

by its
m put,
substi-
fficient
P. 231.
i of a
into a
1 Moo.

, should
)ugh be
n not to
whether
Hi mner
what is
aking, is
through
ons that
deemed
hand, it
iry, with
ireaking,
,n inside
|0. But
it in the
)V in the
into his
is burg-

[may be
ag-house

annot be
V. R, 7

Sec. 410]

BURGLARY AND HOUSEBREAKING.

473

Indictment for burglary and larceny to the value of
twenty-five dollars. — that J. S., on about

the hour of eleven of the clock, of the night of the same
<lay, the dwelling-house of J. N., situate unlawfully

and burglariously did break and enter, with intent the
(roods and chattels of one K. O. in the said dwelling-house
then being, unlawfully and burglariously to steal ; and then
in the said dwelling-house, one silver sugar basin, of the
value of ten dollars, six silver table-spoons of the value, of
ten dollars, and twelve silver tea-spoons of the value of ten
dollars, of the goods and chattels of the said K. O. in the
said dwelling-house then being found, unlawfully and bur-
glariously did steal.

Upon this indictment the defendant, if all the facts
are proved as alleged, may be convicted of burglary ; if
they are all proved, with the exception that the breaking
was by night, the defendant may be convicted of house-
breaking, under S.411 ; if no breaking be proved, but the value
of the property stolen proved to be, as alleged, over twenty-
five dollars, the verdict may be of stealing in a dwelling-
house to that amount, under s. 345, ante ; if no satisfactory
evidence be offered to show, either that the house was a
dwelling-house or some building communicating therewitli,
or that it was the dwelling-house of the party named in
the indictment, or that it was locally situated as therein
alleged, or that the stolen property was of the value of
twenty-five dollars, still the defendant may be convicted of
a simple larceny; s. 713: 1 Taylor, Ev. 216; R. v. Comer,
1 Leach, 36 ; R. v. Hungerford, 2 East, P. C. 518. Where
several persons are indicted together for burglary and
larceny the offence of some may be burglary and of the
others only larceny : R. v. Butterworth R. & R. 520. See
post, remarks under s. 415.

If no indictable offence was committed in the house the
indictment should be as follows : — .

474

BURGLARY AND HOUSEBREAKING.

[Sec. 410

that A B., on about the hour of eleven in the

night of the same day, at the dwelling-house of J.

N. there situate, unlawfully and burglariously did break
and enter, with intent the goods and chattels of the said
J. N. in the said dwelling-house then and there being
found, then and there unlawfully and burglariously to
steal.

The terms of art usually expressed by the averment
" burglariously did break and enter " are essentially neces-
sary to the indictment. The word burglar iottsly cannot
be expressed by any other word or circumlocution ; and
the averment that the prisoner broke and entered is neces-
sary, because a breaking without an entering, or an enter-
ing without a breaking, will not make burglary : 2 Russ.
50 : see s. 611, 2>ost. The offence must be laid to have been
committed in a mansion-house or dwelling-house, the term
dwelling-house being that more usually adopted in modern
practice. It will not be sufficient to say a house : 2 Russ.
46; 1 Hale, 550. It has been said that the indictment
need not state whose goods were intended to be stolen, or
were stolen : R. v. Clarke, 1 C. & K. 42 1 ; R. v. Nicholas, 1
Cox, 218; R. V. Lawee, 1 C. & K. 62; nor specify which
goods, if an attempt or an intent to steal only is charged :
R. V. Johnson, L. & C. 489 : see s. 613, 2^ost.

It is better to state at what hour of the night tie acts
complained of took place, though it is not necessi« } that
the evidence should correspond with the allegation as to
the exact hour ; it will be sufficient if it shows the acts to
have been committed in the night as this word is inter-
preted by the statute. However, in R. v. Thompson, 2
Cox, 377, it was held that the hour need not be specified,
and that it will be sufficient if the indictment alleges in
the night

Indictment for burglary by breaking out. — that

J. S., on about the hour of eleven in the night of the

same day, being in the dwelling-house of K. 0., situate

Sec. 411]

BURGLARY AND HOUSEBREAKING.

475

one silver sugar-basin of the value of ten dollars,
six silver table-spoons of the value of ten dollars, and
twelve silver tea-spoons of the value of ten dollars, of the
goods and chattels of the said K. O., in the said dwelling-
house of the said K. O., then being in the said dwelling-
house, unlawfully did steal, and that he, the said J. S.,
being so as aforesaid in the said dwelling-house, and hav-
ing committed the offence aforesaid, in manner and form
aforesaid, afterwards, to wit, on the same day and year
aforesaid, about the hour of eleven in the night of the same
day, unlawfully and burglariously did break out of the
said dwelling-house of the said K. O.

An indictment alleging " did break to get out " or " did
break and get out " is bad ; the words of the statute are
"break out :" R. v. Compton, 7 C. & P. 139. See pages 4 71 et
seq. ante; R. v. Lawrence, 4 C. & P. 231; R. v. Wheeldon,
8 C. & P. 747, and remarks on burglary. If it be doubtful
whether an indictable offence can be proved, but there be
sufficient evidence of an intent to commit such an offence,
a count may be added stating the intent. To prove this
count the prosecutor must prove the entry, the intent as
in other cases, and the breaking out.

Upon the trial of any offence hereinbefore mentioned
the jury may convict of an attempt to commit such offence,
if the evidence warrants it, under s. 711, ^jos^.

Housebreaking and Committing an Offence.

411. Every one is guilty of the indictable offence called housebreaking,
and liable to fourteen years' imprisonment, who —

(rt) brea'' and enters any dwelling-house by day and commits any iiulict-
(iWe (fence therein ; or

[l] breaks out of any dwelling-house by day after having committed any
miktahh offence therein. R. S. C. c 104, s. 41 (Ametided). 24-25 V. c. 90,

See cases cited in R. v. Hughes, Warb. Lead. Cas. 190.

The words " schoolhouse, shop, warehouse or counting-

I house," in the repealed section have been omitted : see post,
8, 413.

476

BURGLARY AND HOUSEBREAKING.

[Sec. 411

The breaking and entering must be proved in the same
manner as in burglary, except that it need not be proved
to have been done in the night-time. But if it be proved
to have been done in the night-time, so as to amount to
burglary, the defendant may, notwithstanding, be convicted
upon this indictment: R. v. Pearce, R. & R. 174; R. v.
Robinson, R. &; R. 321 ; Archbold, 399. And so, also, any
breaking and entering which would be sufficient in a case
of burglary would be sufficient under this section. Thus,
where the prisoner burst open an inner door in the inside
of a house, and so entered a shop, in order to steal money
from the till, it was held that this was a sufficient breaking
to support an indictment for housebreaking : R. v. Wen-
mouth, 8 Cox, 348. The value of the goods is immaterial
if a breaking and entry be proved; but if proved and
alleged to be of the value of twenty-five dollars, the
prisoner may be convicted of the offence described in s. 345,
ante ; if the prosecutor succeed in proving the larceny, but
fail in proving any of the other aggravating circumstances,
the defendant may be convicted of simple larceny. The
same accuracy in the statement of the ownership and situ-
ation of the dwelling-house is necessary in an indictment
for this offence as in burglary. But it must be remembered
that any error in these matters may now be amended.

As in simple larceny, the least removal of the goods
from the place where the thief found them, though they
are not carried out of the house, is sufficient upon an indict-
ment for house-breaking. It appeared that the prisoner,
after having broken into the house, took two half-sovereigns
out of a bureau in one of the rooms, but being detected he
threw them under the grate in that room ; it was held thit
if they were taken with a felonious intent this was a suffi-
cient removal of them to constitute the offence: R. v,
Amier, 6 C. & P. 344.

As to what was a shop under the repealed section {m^
post, 8. 413), it was once said that it must be a shop for the

Sec. 411]

BURGLARY AND HOUSEF^

ING.

477

sale of goods, and that a mere worksn';;^^ was not within
the clause : R. v. Sanders, 9 C. & P. 79 ; but in R. v. Carter,
1 C. & K, 173, Lord Denman, C.J., declined to be governed
by the preceding case, and held that a blacksmith's shop,
used as a workshop only, was within the statute. A ware-
house means a place where a man stores or keeps his goods
which are not immediately wanted for sale ; R. v. Hill, 2
Russ. 95. Upon an indictment for breaking and entering
a counting-house, owned by Gamble, and stealing therein,
it appeared that Gamble was the proprietor of extensive
chemical works, and that the prisoner broke and entered a
building, part of the premises, which was commonly called
the machine-house, and stole therein a large quantity of
money. In this building, there was a weighing machine*
at which all goods sent out were weighed, and one of
Gamble's servants kept in that building a book in which
he entered all goods weighed and sent out. The account of
the time of the men employed in different departments was
taken in that building and their wages were paid there ;
the books in which their time was entered were brought to
that building for the purpose of making the entries and
paying the wages. At other times they were kept in an-
other building called the office, where the general books and
accounts of the concern were kept. It was objected that
this was not a counting-house ; but, upon a case reserved,
the judges held that it was a counting-house within the
statute : R. v. Potter, 2 Den. 235.

An indictment for house-breaking is good if it alleges
that the prisoner broke and entered the dwelling-house,
and the goods of in the said dwelling-house then

and there being found, then and there (omitting " in the
said dwelling-house ") unlawfully did steal : R. v. Andrews,
Car. & M. ]21, overruling R. v. Smith, 2 M. & Rob 115,
which Coleridge, J., [said Patteson, J., was himself since
satisfied had been ^wrongly decided : 2 Russ. 76, note by
Greaves.

■'" ^

I 5-1^.' . (■

478

BURGLARY AND HOUSEBREAKING.

[Sec. 412

Indxcttnent — the dwelling-house of J. N., situate

unlawfully did break and enter, by day, with intent
the goods and chattels of the said J. N., in the said dwelling-
house then being, unlawfully to steal, and one dressing-case
of the value of twenty-five dollars, of the goods and chattels
of the said J. N,, then in the said dwelling-house, then un-
lawfully did steal.

Upon the trial of an indictment for an offence under
this section the jury may, under s. 711, convict the defend-
ant of an attempt to commit the same, if the evidence
warrants it. But they can only convict of the attempt to
commit the identical offence charged in the indictment ; the
prisoner was indicted for breaking and entering a dwelling-
house, and stealing therein certain goods specified in the
indictment, the pitoperty of the prosecutor. It was proved
at the trial that at the time of the breaking the goods
specified were not in the house, but there were other goods
there, the property of the prosecutor ; the prisoner had not
had time to steal anything, having been caught immediately
after his entering the house. The jury acquitted the
prisoner of the felony charged, but found him guilty
of breaking and entering the dwelling-house of the pro-
secutor, and attempting to steal his goods therein. HeW,,
that the conviction was wrong, and that an attempt must
be to do that which, if successful, would amount to the
felony charged : R. v. McPherson, Dears. & B. 197. The
prisoner, under such circumstances, may be convicted of
breaking and entering with intent to commit an indictable
offence, under s. 412, post. But only if, as in the form above
given, the intent is alleged, which was not the case in R. v,
McPherson. See s. 64, p. 42, ante.

HOUSBBRRAKINO WiTH INTENT.

412. Every one is pruilty of an indictable offence and liable to seven
years' imprisonment who, by day, breaks and enters any dwelling-house with
intent to commit any indictable offence therein. R. S. C. c. 164, s. 42
(Amended). 24-25 V. c. 96. s. 57 (Imp. ).

Spo. 412]

BURGLARY AND HOUSEBREAKING.

479

The words " schoolhouse, shop, warehouse and counting
house " were in the repealed clause.

Indictment. — on the dwelling-house of

J. N., situate unlawfully did break and enter by day

with intent to commit an indictable offence therein, to wit,
the goods and chattels of the said J. N., in the said dwell-
ing-house there being, then to steal.

Where there is only an attempt it is not always possible
to say what goods the would-be thief meant to steal, and
an indictment for an attempt to commit larceny need not
specify the goods intended to be stolen : R. v. Johnson,
L & C. 489.

Upon an indictment under this section the prisoner
may be convicted, under s. 711, of attempting to commit
the offence charged : R. v. Bain, L. & C. 129.

Greaves says : " This clause is new, and contains a very

important improvement in the law. Formerly the offence

here provided was only a misdemeanour at common law.

Now it often happened that such an offence was very

inadequately punished as a misdemeanour, especially since

the night was made to commence at nine in the evening;

for at that time, in the winter, in rural districts, the poor

were often in bed. Nor could anything be much more

unreasonable than that the same acts done just after nine

o'clock at night should be liable to penal servitude for life,

but if done just before nine they should only be punishable

as a misdemeanour. It is clear that if, on the trial of an

indictment for burglary with intent to commit a felony, it

should appear that the breaking and entry were before

nine o'clock the prisoner might be convicted under this

clause. But upon an indictment in the ordinary form

for house-breaking, the prisoner could not be convicted

under this clause, because it does not allege an intent to

commit a felony (as in McPherson's Case, ante, under last

preceding section). It will be well, however, to alter the

form of these indictments, and to allege a breaking and

-I- \

md <

480

BURGLARY AND HOUSEBREAKING.

[Sec. 4ia

entry with intent to commit some felony (any indictable
offence), in the same manner as in an indictment for bur-
glary with intent to commit felony, an.d then to allege the
felony that is supposed to have been committed in the
house. If this be done, then, if the evidence fail to prove
the commission of that felony, but prove that the prisoner
broke and entered with intent to commit it, he may be
convicted under this clause."

Breaking Shop, Sohool-housb, Etc., and Committino an Offence.

413. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who, either by day or night, breaks and enters and com-
mits any indictable offence in a school-house, shop, warehouse or counting
house, or any building within the curtilage of a dwelling house, but not so con-
nected therewith as to form iiart of it under the provisions hereinbefore
contained. R. S. C. o. 164, s. 40 (Amended). 24-25 V. o. 96, ss. 55-56 (Imp.).

Section 407 defines what is within the curtilage.

See ante, under s. 411 what is a shop, or warehouse, or
counting-house : also as to indictment.

" Curtilage " is a court-yard, enclosure or piece of land
near and belonging to a dwelling-house. — Toml. Law Bid

The breaking and entering must be proved in the same
manner as in burglary, except that it is immaterial whether
it was done in the day or night. If this proof fail the
defendant may be convicted of simple larceny.

The building described in the statute is " any building
within the curtilage of a dwelling-house, but not so con-
nected therewith as to form part of it under the provisions
hereinbefore contained," that is, not communicating with the
dwelling-house, either immediately or by means of a covered
and enclosed passage leading from the one to other as de-
scribed in s. 407. To break and enter such a building was,
before the present statute, burglary, or house-breaking, and
although this enactment, which expressly defines the build-
ing meant thereby to be a building within the curtilage,
appears to exclude many of those buildings which were
formerly deemed parcel of the dwelling-house, from their
adjoining the dwelling-house, and being occupied there-

Sec. 413]

HOUSEBREAKING WITH INTENT.

481

with, although not within any common enclosure or
curtilage, yet some of the cases decided upon these subjects
may afford some guide to the construction of the present
section. Where the defendant broke into a goose-house,
which opened into the prosecutor's yard, into which yard
the prosecutor's house also opened, and the yard was sur-
rounded, partly by other buildings of the homestead, and
partly by a wall in which there was a gate leading to the
road, and some of the buildings had doors opening into the
lane, as well as into the yard, the goose-house was holden
to be part of the dwelling-house : R. v. Clayburn, R. & R.
360. Where the prosecutor's house was at the corner of
the street, and adjoining thereto was a workshop, beyond
which a coach-house and stable adjoined, all of which were
used with the house and had doors opening into a yard
belonging to the house, which yard was surrounded by
adjoining buildings and was altogether enclosed, but the
shop had no internal communication with the house, had a
door opening into the street, and its roof was higher than
that of the house, the workshop was holden to be a parcel
of the dwelling-house : R. v. Chalking, R. &. R. 334. So, a
warehouse which had a separate entrance from the street^
and had no internal communication with the dwelling-house
with which it was occupied but was under the same roof,
and had a back door opening into the yard into which the
house also opened and which enclosed both, was holden to
be part of the dwelling-house : R. v. Lithgo, R. & R. 357.
So, where in one range of buildings the prosecutor had a
warehouse and two dwelling-houses, formerly one house,
all of which had entrances into the street, but had also doors
opening into an enclosed yard belonging to the prosecutor,
and the prosecutor let one of the houses between his house
and the warehouse together with certain easements in the
yard, it was holden that the warehouse was parcel of the
dwelling-house of the' prosecutor; it was so before the
division of the house and remained so afterwards: R. v,
Crim. Law— 31

silMil:

llrlM

482

BURGLARY AND HOUSEBREAKING.

[See. 41»

Walters, 1 Moo. 13. And where the dwelling-house of the
prosecutor was in the centre of a space of about an acre of
land, surrounded by a garden wall, the front wall of a
factory, and the wall of the stable-yard, the whole being
the property of the prosecutor who used the factory, partlv
for his own business and partly in a business in which he
had a partner, and the factory opened into an open passage
into which the outer door of the dwelling-house also opened,
it was holden that the factory was properly described as
the dwelling-house of the prosecutor : R. v. Hancock, R. (Sj
R. 170. But a building separated from the dwelling-house
by a public thoroughfare cannot be deemed to be part of
the dwelling-house : R. v. Westwood, R. & R. 495. So
neither is a wall, gate or other fence, being part of the out-
ward fence of thp Curtilage, and opening into no building
but into the yard only, part of the dwelling-house : R. v.
Bennett, R. & R. 289. Nor is the gate of an area, which
opens into the area only, if there be a door or fastening to
prevent persons from passing from the area into the house
although that door or other fastening may not be secured
at that time : R. v. Davis, R. & R. 322.

Where the building broken into was in the iold-yard of
the prosecutor's farm, to get to which from the house it
was necessary to pass through another yard called the
pump-yard into which the back door of the house opened,
the pump-yard being divided from the fold-yard by a wall
four feet high in which there was a gate, and the fold-yard
being bounded on all sides by the farm buildings, a wall
from the house, a hedge and gates, it was held that the
building was within the curtilage : R. v. Gilbert, 1 C. & E.
84. See R. v. Egginton, 2 Leach, 913.

Indictment. — a certain building of one J. N.,

situate unlawfully did break and enter, the said

building then being within the curtilage of the d'^velling-
house of the said J. N. there situate, and by the said J. N.
then and there occupied therewith, and there being then

8ac3. 414, 415]

BREAKING SHOP, ETa

488

and there no communication between the said building and
the said dwelling-house, either immediate or by means of
any covered and enclosed passage leading from the one to
the other, with intent the goods and chattels of the said
J. N. in the said building then being to steal, and that the
said J. S. then and there, in the said building, one silver
watch of the goods and chattels of the said J. N. did steal.

This count may be added to an indictment for burglary^
house-breaking or stealing in a dwelling-house to the amount
of twenty-five dollars, and should be added whenever it
is doubtful whether the building is in strictness a dwelling-
house. If the evidence fail to prove the actual stealing,
but the breaking, entry and intent to steal be proved, the
prisoner may be convicted, under this indictment, of the
offence described in s. 414, as this indictment alleges the
intent as well as the act.

Under s. 711 a verdict of guilty of an attempt to com-
mit the offence charged may be given upon an indictment.
on this section, if the evidence warrants it.

Breakinq Shop, School-house, Etc., With Intent,

414« Every one la guilty of an indictable offence and liable to seven'' 1
years' imprisonment who, either by day or night, breaks and enters any of thg
buildings mentioned in the last preceding section with intent to commit any
MictaUe offence therein. R. S. C. a 164, s. 42 (Amended). 24-26 V. o. 96,

8, 57 (Imp.).

See remarks under sa. 412 & 413 ante. Iva.. ^ f ) \

Being Found in Dwellinq-hoube by Night.

415. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who unlawfully enters, or is in, any dwelling-house by
night with intent to commit any indictable offence therein. R. S. C. c. 164
8. 39. 24-25 V. c. 96, s. 54 (Imp.).

Greaves says : " This clause is new and contains a great
improvement of the law. It frequently happened on the
trial of an indictment for burglary where no property had
been stolen that the prisoner escaped altogether for want
of sufficient proof of the house having been broken into,
though there was no moral doubt that it had been so. This

';t. ;

484

BURGLARY AND HOUSEBREAKING.

[Sec. 416

clause will meet all such cases. It will also meet all cases
where any door or window has been left open, and the
prisoner has entered by it in the night. It is clear that if
on the trial of an indictment for burglary with intent to
commit a felony, the proof of a breaking should fail, the
prisoner might nevertheless be convicted of the offence
created by this clause for such an indictment contains
everything that is required to constitute an offence under
this clause, in addition to the allegation of the breaking
and the prisoner may be acquitted of the breakino- and
convicted of the entering with intent to commit felony, in
the same way as on an indictment for burglary and steal-
ing he may be acquitted of the breaking and convicted of
the stealing. And this affords an additional reason why, in
an indictment for burglary and committing a felonj'^, there
should always be introduced an averment of an intent to
commit a felony, so that if the proof of the commission of
the felony and of the breaking fail the prisoner may
nevertheless be convicted of entering by night with intent
to commit it."

Indictment. — that J. S., on about the hour

X)i eleven in the night of that same day, the dwelling of
K. O., situate unlawfully did enter, with intent the

goods and chattels of the said K. O., in the said dwelling-
house then being, to steal.

As to what is night, and what is a dwelling-house, in
the interpretation of this clause the same rules as for bur-
glary must be followed. Under s. 711 the jury may, if the
evidence warrants it, convict of an attempt to commit the
offence charged upon an indictment under this section.

Beino Found Armed With Intent.

416* Every one is guilty of an indictable offence and liable to «ctrn
years' imprisonment who is found —

(a) armed with any dangerous or offensive weapon or instrument by day,
with intent to break or enter into any dwelling-house, and to commit ani/
indictable offence therein ; or

liable to tern

S«c. 417]

BEING DISGUISED, ETC.

485

((,) armed aa aforeuid by night, with intent to break into any buildingr
tnd to eomnnit any indietabit offence therein. R. S. C. o. 164, s. 43 {Amended).
J4.25 V. 0. 96, 8. 68 (Imp.).

" Offensive weapon " defined, s. 3.

The punishment' was three years under the repealed
clause.

The word " by day " is new. By day the offence is as
to a dwelling-house only. By night it is as to any building : .
see form of indictment under next section.

Beino DiaauisED or in Possession of Houbb-brearino Instruments.

4 IT* Every one w guilty of an indictable offence and liable to Jive yeara*
impriBonment who is found —

(a) having in his possession by night, without lawful excuse (the proof of
which shall lie upon him) any instrument of housebreaking ; or

(6) having in his possession by day any such instrument with intent to
commit any indictable offence ; or

(c) having his face masked or Uackened, or being otherwise disguised, by
nijW, without lawful excuse (the proof whereof shall lie on him) ; or

(({) having his face masked or blackened, or being otherwise disguised, by
iiaij, with intent to commit any indictable offence. R. S. C. c. 164, s. 43
{Amended). 24-25 V. c. 100, s. 58 (Imp.).

" Having in possession," defined, s. 3.

The words in italics are new.

Sub-sections (6), (c), (d) are also new or extensions of the
repealed statute.

" It is thought that being disguised by night affords sufficient
^limajavie evidence of a criminal intent." — Imp. Comm. Rep.

The punishment was three years under the repealed
clause.

Indictment under 8. 4^6 for being found by night .
armed. — that A. B. on about the hour

of eleven of the night of the same day at was

found unlawfully armed with a certain dangerous and
offensive weapon (or instrument), with intent to break and
enter into a dwelling-house {or any other building) of C.
D. there situate, and the goods and chattels in the said
dwelling-house (or any other building), then being, unlaw-
fully to steal.

486

BURGLARY AND HOUSKBREAKING.

[Hec. 417

It is not necessary to aver that the goods and chattels
were the property of any particular person : R. v. Lawes,
R. V. Clarke, 1 C. & K. 62, 421 ; R. v. Nicholas, 1 Cox, 218.

See, ante, s. 3, as to the interpretation of the woi'l
"night."

In R. V. Jarrald, L, & C. 301, it was held, upon a case
reserved, that an indictment under the repealed section, for
being found by night anued with a dangerous and oflensive
weapon and instrument, with intent to break and enter
into a building and commit a felony therein, must specify,
as in burglary, the building to be broken into. Cronipton,
J., was of opinion that the particular felony intended must
also be specified.

On this case Greaves, 2 Russ. 70, note g, says : " With
all deference it is submitted that this decision is clearly
erroneous. Tlie ground on which Cockburn, C.J., rests the
decision of the first point (as to a particular house to be
specified, now s. 417) is answered by the second clause of
the same section ; for, under it, the mere possession, with-
out lawful excuse, of any instrument of housebreaking in
the night constitutes the offence without any intent to
commit felony vX all ; and this offence is plainly one step
further from the attempt to commit a felony than where
the intent to commit some felony exists, though the par-
ticular felony is not yet fixed . . . As to the rules of
criminal pleading these seem, in this case, to have been
misconceived. It is quite a. mistake to suppose that these
rules require the specification of particulars where it is
impracticable to specify them. Wherever this is the case
the rules allow general or other statements instead. . . ,
It cannot be doubted that ins decision, instead of promot-
ing the object of the Act in this respect, is substantially a
repeal of it, for it is hardly conceivable that, in the majority
of cases, it will be possible to prove an intent to commit
any particular felony."

St^c. 417]

DEINO DISOUISKI), ETC.

487

To this Cave anHWCfs, (3 Burn, 252, note a) : " . . . .
But a close conHideration of the statute appears to contiriu
it (tlio decision in JarrcUd'a Case) : it may woll be that in
all the other cases except ' having implements )f house-
breaking ' an intent must be clearly proved ; for the
' k'inj,' armed with a dangerous weapon ' or ' having the
face blacked ' or ' being by night in a dwelling-house '
are clearly no offences unless done for a felonious purpose.
AjkI the very essence of the offence is such felonious purpose.
But, with regard to ' having instruments of house-breaking,'
the statute implies the intent from the nature of the instru-
ment, and throws the proof of innocence upon the prisoner,
The general intention of the statute is thus well carried out;
for if a man be found by night anywhere with house-
breaking implements, or such as the jury shall think he
intended to use as such, he may be indicted for that
offence. But if ho has not any house-breaking implements,
but is ' armed with a dangerous weapon ' not usable for
house-breaking, then the particular intent under s. 416
must be laid and proved as laid."

Indictment under a. 4-^7 (a) for having in poHseaaion,
by night, implements of house-breaking. — on

about the hour of eleven in the night of the same (Jay,
at was found, he the said (defendant) then and there,

by night as aforesaid, unlawfully having in his possession,
without lawful excuse, certain implements of house-break-
ing (to wit ).

An instrument capable of being used for lawful purposes
is within the statute if the jury find that such instrument
may also be used for the purposes of house-breaking, and
that the prisoner intended to use it as an implement of
house-breaking when found at night in possession of it:
R. v. Oldham, 2 Den. 472.

Where an indictment for having in possession without
lawful excuse certain implements of house-breaking by night
the jury found the prisoners guilty of the possession without

488

BURGLARY AND HOUSEBREAKING.

[Sec. 418

lawful excuse, but that there was no evidence of an intent to
commit a felony, and the indictment omitted the words
" with intent to commit a felony," it was held that the
omission did not render the indictment bad, and that it
was not necessary to prove an intent to commit a felony:
R. V. Bailey, Dears. 244.

iTidictment uvder s. ^17 (d) for being found by day with
a disguised face with intent to commit an indictable offence.
that at on A. B. was found by day, then and

there having his face blackened (Trmsked, blackened or other-
wise disguised) with intent then and there to kill and
murder one C. D.

In R. V. Thompson, 11 Cox, 362, held, that where several
persons are found out together by night for the common
purpose of house-breaking and one only is in possession of
house-breaking implements all may be found guilty of the
misdemeanour created by this section, for the possession of
one is in such case the possession of all. See s. 3 for defini-
tion of " having in possession."

Punishment After Previous Conviction.

418« Every one who, after a previous conviction for any indictable
ofencCf is convicted of an indictable offence specified in this part for which the
punishment oa a first conviction is less than fourteen years' imprisontnont h
liable to fourteen years' imprisonment. R. S. 0. c. Ifri, s. 44 (Amended).
24-25 V. c. 96, s. 69 (Imp.).

The imprisonment was for ten years under the repealed
clause. As to trial of an offence after a previous convic-
tion see post, ss. 628 and 676.

GENERAL REMARKS.

4S9

FORGERY.

( - /

GENERAL REMARKS.

" To forge is metaphorically taken from the smith who
beateth upon his anvil, and f orgeth what fashion and shape
he will ; the offence is called crimen falsi, and the offender
falsariiis, and the Latin word, to forge, is falsare or/a6-
ricare": Coke, 3 Inst. 169.

" Forgery is the fraudulent making or alteration of a
writing, to the prejudice of another's right": 4 Blacks. 247.

" Forgery is the false making of an instrument with
intent to prejudice any public or private right " : 3rd Rep.
Crim. Law Comm. 10th June, 1847, p. 34 ; ss. 421, 422,
-post.

" Forgery is the fraudulent making of a false writing
which, if genuine, would be apparently of some legal effi-
cacy": Bishop, 2Cr. L. 523.

" The characteristic of the crime of forgery is the false
making of some written or other instniment for the pur-
pose of obtaining credit by deception. The relation this
offence bears to the general system may be thus briefly
established. In most affaire of importance the intentions,
assurances, or directions of men are notified and authenti-
cated by means of written instruments. Upon the authen-
ticity of such instruments the security of many civil rights,
especially the right of property, frequently depends ; it is,
therefore, of the highest importance to society to exclude
the numerous frauds and injuries which may obviously be
perpetrated by procuring a false and counterfeited written
instrument, to be taken and acted on as genuine. In refer-
ence to frauds of this description it is by no means essen-
tial that punishment should be confined to cases of actually
accomplished fraud ; the very act of falsely making and

490

FORGERY.

constructing such an instrument with the intention to
defraud is sufficient, according to the acknowledged prin-
ciples of criminal jurisprudence, to constitute a crime,—
being in itself part of the endeavour to defraud, and the
existence of the criminal intent is clearly manifested by an
act done in furtherance and in part execution of that inten-
tion. The limits of the offence are immediately deducible
fpom the general principle already adverted to. As regards
the subject matter, the offence extends to every writing
used for the purpose of authentication.

"The crime is not confined to the falsification of
mere writings ; it plainly extends to seals, stamps, and all
other visible marks of distinction by which the truth of any
fact is authenticated, or the quality or genuineness of any
article is warranted, and, consequently, where a party may
be deceived and defrauded, from having been by false signs
induced to give credit where none was due. With respect
to the false making of any such instrument the offence
extends to every instance where the instrument is, under
the circumstances, so constructed as to induce a party to
give credit to it as genuine and authentic in a point where
it is false and deceptive. And in this respect a forged in-
strument differs from one which is merely false and untrue
ia stating facts which are false. Where the instrument is
forged, as where a certificate purporting to be signed by an
authorized officer was not, in truth, signed by him, a party
to whom it is shown is deceived in being induced to sup-
pose that the fact certified is accredited by the officer whose
cei'tificate it purports to be, and he is deceived in that re-
spect whether the fact certified be true or false. If, on the
other hand, such a certificate be in truth signed by the
offioer whose name it bears, the instrument is not forged
aJthough the fact certified be falsely certified, for here the
party receiving the certificate is deceived, not by being
falsely induced to believe that the officer had accredited
the instrumint by liis sigtiature, but from the oScer having

GENEBAi:^ REMARKS.

491

falsely certified the fact. The instrument may, therefore,
be forged although the fact authenticated be true. The in-
strument may be genuine although the fact stated be false.
Where money or other property is obtained by an instru-
ment of the latter description, that is, where it is false
merely as containing a false statement or representation,
the offence belongs to the class of obtaining money or other
property b}'^ false pretenses " : 5th Rep. Criin. Law Comm.
22nd of April, 1840.

"Consistently with the principles which govern the
offence of forgery an instrument may be falsely made
although it be signed or executed by the party by whom it
purports to be signed or executed. This happens where a
party is fraudulently induced to execute a will, a material
alteration having been made, without his knowledge, in the
writing; for, in such a case, although the signature be
genuine the instrument is false, because it does not truly
indicate the testator's intentions, and it is the forgery of
him who so fraudulently caused such will to be signed, for
he made it to be the false instrument which it really is :"
Cr. Law Comm. Rep. loc. cit.

This passage of the Criminal Law Commissioners seems
to be based on a very old case, cited in Noy's Reports, 101,
Combes's Case ; but in a more recent case, R. v. Collins, 2
M. & Rob. 40 1, it was held that fraudulently to induce a
person to execute an instrument, on a misrepresentation of
its contents, is not a forgery ; and, in a case of R. v. Chad-
wick, 2 M. & Rob. 545, that to procure the signature of a
person to a document, the contents of which have been
altered without his knowledge, is not a forgery : see
Stephen's Cr. L. Art. 356, illustrations, 10, 11.

The report {loc. cit.) of the 3riniiual law commissioners
continues as follows : " Upon similar grounds, an offender
rmy be guilty of a false making of an instrument although
he sign or exedute it in his own name, in case it be false in
amy material part, and calculated to induce another to give

492

FORGERY.

credit to it as genuine and authentic where it is false and
deceptive. This happens where one, having conveyed
land, afterwards, for the purpose of fraud, executes an in-
strument purporting to be a prior conveyance of the same
land ; here, again, the instrument is designed to obtain
credit by deception, as purporting to have been made at a
time earlier than the true time of its execution."

This doctrine was approved of in a case, in England, of
R. V. Ritson, 11 Cox, 352, and it was there held, upon a case
reserved, that a man may be guilty of forgery by making
a false deed in his own name. Kelly, C.B., delivering the
judgment of the court, said : " I certainly entertained some
doubt at one time upon this case, because most of the
authorities are of an ancient date, and long before the
passing of the statutes of 11 Geo. IV. and 1 Will. IV., and
24 & 25 V. However, looking at the ancient authorities and
the text books of the highest repute, such as Com, Dig.,
Bacon's Abr., 3 Co. Inst., and Foster's C. L. 117, they
are all uniformly to the effect, not that every instrument
containing a false statement is a forgery, but that every
instrument which is false in a material part, and which
purports to be that which it is not, or to be executed by a
person who is not the real person, or which purports to be
dated on a day which is not the real day whereby a false
operation is given to it, is forgery."

" Forgery, at common law, was an offence in falsely and
fraudulently making and altering any matter of record or
any other authentic matter of a public nature, as a parish
register or any deed or will, and punishable by tine and
imprisonment. But the mischiefs of this kind increasing
it was found necessary to guard against them by more
sanguinary laws. Hence we have several Acts of Parlia-
ment declaring what offences amount to forgery, and which
inflict severer punishments than there were at the common
law": Bacon's Abr. vol. 3, 277. Curwood, 1 Hawk. 263,
is of opinion that this last definition is wholly inapplicable

GENERAL REMARKS.

493 .,

to the crime of forgery at common law, as, even at common
law, it was forgery to make false "private" writings.

"The notion of forgery does not seem so much to con-
sist in the counterfeiting a man's hand and seal, which may
often be done innocently, but in the endeavouring to give
an appearance of truth to a mere deceit and falsity, and
either to impose that upon the world as the solemn act of
another, which he is in no way privy to, or at least to make a
man's own act appear to have been done at a time when it
was not done, and by force of such a falsity to give it an
operation which in truth and justice it ought not to have":

1 Hawk. 264.

The definitions containing only the words " with intent
to defraud " without the words " with intent to deceive "
seem defective. In fact, there are many acts held to be
forgery where no intent to defraud, as this expression is
commonly understood, exists in the mind of the person
committing the act; as, for instance, if the person, forging a
note, means to take it up, and even has taken it up, so as
not to defraud any one, this is clearly forgery if he issued
it, and got money or credit or anything upon it: R. v. Hill,

2 Moo. 30; R. v. Geach, 9 C. & P. 499; or forging a bill
payable to the prisoner's own order, and uttering it without
indorsement: R. v. Birkett, R. & R. 86; or if one, while
knowingly passing a forged bank note, agrees to receive it
again should it prove not to be genuine, or if a creditor
executes a forgery of the debtor's name to get from the
proceeds payment of a sum of money due him: R. v. Wilson,
1 Den. 284; or if a party forges a deposition to be used in
court, stating merely what is true, to enforce a just claim.
All these acts are forgery; yet where is the intent to
defraud in these cases ? It may be said that the law infers
it. But why make the law infer the existence of what does
not exist? Why not say that " forgery is the false making
of an instrument with intent to defraud or deceive." See
now 8. 422,po8<. The word "deceive" would cover all the

494

FORGERY.

cases above cited; in each of these cases, the intent of the
forger is that the instrument forged should be used as good,
should be taken and received as signed and made by the
person whose name is forged, in consequence, to deceive
qvxyad hoc, and for this, though he did not intend to defraud,
though no one could possibly be defrauded by his act, he is
iii law guilty of forgery: see 2 Buss. 774.

It is true that the court of Crown cases reserved, in
England, held in R. v. Hodgson, Dears. & B. 3, that, upon
an indictment for forgery at common law, it is necessary to
prove, not only an intent to defraud, but also an intent to
defraud a particular person, though, w^hen this case was
decided, the statute in England (14 & 15 V. c. 100, s. 8,)
enacted that it was not necessary in indictments for
forgery to allege an intent to defraud any particular
persoja : s. 613, po8t. In this Hodgson's case the prisoner
had forged and uttered a diploma of the college of sur-
geons ; the jury found that the prisoner forged the docu-
ment with the general intent to induce the belief that it
was genuine, and that he was a member of the college, and
that he showed it to certain persons with intent to induce
such belief in them, but that he had no intent, in forging
or uttering it, to commit any particular fraud or specific
wrong to any individual.

Though the offence charged in this case was under the
common law, it must be remembered that s. 8, of 14 & 15 V.
c. 100, applied to indictments under the common law as
well as to indictments under the statutes, as now also do
s. 44 of the English Forgery Act and ss. 422, s-s. 3 and 613,
po8t.

Greaves remarks on the decision in this case : —
" As the clause of which this is a re-enactment, 44 of the
English Act, was considered in R. v. Hodgson, and as that
case appears to me to have been erroneously decided, it may
be right to notice it here. The prisoner was indicted at
common law for forging and uttering a diploma of the

GENERAL REMARKS.

465

14 of the

as that
I, it may
licted at

of the

college of surgeons, and the indictment was in the common
form. The college of surgeons has no power of conferring
any degree or qualification, but before admitting persons to
its membership it examines them as to their surgical know-
ledge, and, if satisfied therewith, admits them, and issues a
document called a diploma, which states the membership.
The prisoner had forged one of these diplomas. He pro-
cured one actually issued by the college of surgeons, erased
the name of the person mentioned in it, and substituted his
own. He hung it up in his sitting-room, and, on being
asked by two medical practitioners whether he was qualified,
he said he was, and produced this document to prove his
assertion. When a candidate for an appointment as vaccin-
ating officer he stated he had his qualification, and would
show it if the clerk of the guardians, who were to appoint
to the office, would go to his gig; he did not, however,
then produce or show it. The prisoner was found guilty,
the fact to be taken to be, that he forged the document
with the general intent to induce a belief that it was
genuine, and that he was a member of the college of
surgeons, and that he showed it to two persons with the
particular intent to induce such belief in these two persons,
but that he had no intent in forging or in altering, to
commit any particular fraud, or any specific wrong to any
individual. And upon a case reserved it was held that the
14 & 15 V. c. 100, s. 8, altered the form of pleading only, nd
did not alter the character of the offence charged, and that
the law as to that is the same as if the statute had not been
passed ; and that, in order to make out the offence of
forgery at common law, there must have been, at the time
the instrument was forged, an intention to defraud some
particular person. Now, this judgment is clearly erroneous.
The 14 & 15 V. c. 100, s. 8, does, in express terms, alter the
low as well as the form of the indictment, for it expressly
enacts, 'that on the trial of any of the oft'ences in this section
mentioned (forging, uttering, disposing cf or putting off any
instrument ivhatsoever) it shall not be necessary to prove that

'^^m v'

496

FORGERY.

the defendant did the act charged with an intent to
defraud.' The judgment, therefore, and the clause in the
Act are directly in contradiction to each other, and, conse-
quently, the former cannot be right. The clause was
introduced advisedly for the very purpose of altering the
law. See my note to Lord Campbell's Acts, page 13. It is
a fallacy to suppose that there must have been an intent to
defraud any particular person at the time of forging the
document. In Tatlock v. Harris, 3 T. R. 176, that great
lawyer, Shepherd, said in argument, ' it is no answer to a
charge of forgery to say that there was no special intent to
defraud any particular person, because a general intent to
defraud is sufficient to constitute the cnme;' and this
position was not denied by that great lawyer, Wood, who
argued on the other side, and was apjiarently adopted by
the court. It is cited in 1 Leach, 216, note (a); 3 Chit.
Cr. L. 1036; and, as far as we are aware, was never doubted
before this case. Indeed, in R. v. Tylney, 1 Den. 319, it
«eem8 to have been assumed on all hands to be the law.
There the prisoners forged a will, but there was no evidence
to show that any one existed who could have been defrauded
by it, and the judges were equally divided whether a count
for forgery with intent to defraud some person unknown
could, under such circumstances, be supported. It is obvious
that this assumed that if there had been evidence that
there was any one who might have been defrauded, though
there was no evidence that the prisonera even knew of the
existence of any such person, the offence would have been
forgery. Indeed it would be very startling to suppose that
a man who forged a will, intending to defraud the next of
kin, whoever they might happen to be, was not guilty of
forgery because he had only that general intent."

"The point is too obvious to have escaped that able
criminal lawyer, Mr. Prendergast, and, as he did not take
it, he clearly thought it wholly untenable, and so, also, must
the judges who heard the case. See also the observations

GENERAL REMARKS.

497

of Creaswell, J., in R. v. Marcus, 2 C. & K 356. In R. v.
Ntish, 2 Den. 493, Maule, J., expressed a very strong
opinion that it was not necessary, in order to prove an
intent to defraud, that there should be any person who
could be defrauded, and this opinion was not dissented
t'loin by any of the other judges."

" It has long been settled that making any instrument,
which is the subject of forgery, in the name of a non-exist-
incr person is forgery, and in Wilks' Case, 2 East, P. C.
957, all the judges were of opinion that a bill of exchange
drawn in fictitious names was a forged bill. Now, every
one knows that, at the time when such documents are
forged, the forger has no intent to defraud any particular
peraon, but only an intent to defraud any person whom he
may afterwards meet with, and induce to cash the bill ; and
no suggestion has ever been made in any of these cases that
that otfence was not forgery. The ground of the present
judgment seems to have been that formerly the particular
person who was intended to be defrauded must have been
named in the indictment ; no doubt it is a general rule of
criminal pleading that the names of persons should be
stated, but this rule is subject to the exception that, wher-
ever the stating the name of any person in an indictment
is highly inconvenient or impracticable, the name need not
be stated, for lex neminem cogit ad vana sen impossihilia.
Therefore, the names of inhabitants of counties, hundreds
and parishes need never be stated ; so, too, where there is
a conspiracy to defraud tradesmen in general the names
need not be stated. So, where there is a conspiracy to
raise the funds, it is not necessary to state the names of the
persons who shall afterwards become purchasers of stock,
' for the defendants could not, except by a spirit of pro-
phecy, divine who would be the purchasers on a subsequent
day'; |>er Lord Ellenborough, C.J., in R. v. De Berenger, 3 M.
i» S. 73; which reason is equally applicable to the case
where, at the time of forging an instrument, there is no

Crim. Law— 32

fr^

I'. ■,;!

498

FORGERY.

£!i«'*'

intent to defraud any particular person. Indeed, it is now
clearly settled that, where a conspiracy is to defraud imleti-
nite individuals, it is unnecessary to name any individuals :
R. V. Peck, 9 A. & E. 686 ; R. v. King, 7 Q. B. 782. This
may be taken to be a general rule of criminal pleading, and
it has long been applied to forgery. In R. v. Birch, 1 Leach,
79, the prisonera were convicted of forging a will, and one
count alleged the intent to be ' to defraud the person or
persons who would by law be entitled to the messuages'
whereof the testator died seized. And it has been the
regular course in indictments for forging wills, at least
ever since that case, to insert counts with intent to defraud
the heir-at-law and the next of kin, generally : 3 Chit.
Cr. L. 1069. It is true that in general there have also been
counts specifying the heir-at-law or the next of kin by
name. But in R. v. Tylney, 1 Den. 319, there was no such
count. No objection seems ever to have been taken to any
such general count. So, also, in any forgery with intent
to defraud the inhabitants of a county, hundred or parish
the inhabitants may be generally described. These instao'-es
clearly show that it is not necessary in forgery any more
than in other cases to name individuals where there is either
great inconvenience or impracticability in doing so. A con-
viction for conspiracy to negotiate a bill of exchange, the
drawera of which were a fictitious firm, and thereby fraud-
ulently to obtain goods from the King's subjects, although
it did not appear that any particular person to be defrauded
was contemplated at the time of the conspiracy, has been
held good : R. v. Hevey, 2 East, P. C. 858, note (a) ; and
this case bears considerably on the present question. If
a person forged a bill of exchange with intent to defraud
any one whom he might afterwards induce to cash it,
and he uttered it to A. B., it cannot be doubted that he
would be guilty of uttering with intent to defraud A. B.,
and it would indeed be strange to hold that he was guilty
of uttering, but not of forging, the bill. No doubt tiie
otTence of forgery consists in the intent to deceive or de-

GENERAL REMARKS.

499

fraud ; but a general intent to defraud is just as criminal
as to defraud any particular individual. In each case
there is a wrongful act done with a criminal intent,
which, according to R. v. Higgins, 2 East, 5, is suffi-
cient to constitute an indictable offence. In the course of
the argument Erie, J., said : " Would it not have been
enough to alle^^e an intent to deceive divers persons to
the jurors unknown, to wit, all the patients of his late
master?" This approaches very nearly to the correct
view, viz., that it would have been enough before the
14 & 15 V. c. 100, s. 8, to have alleged and proved an intent
to deceive any persons who should afterwards become his
. tfcients. Wightman, J., during the argument said : " The
question is, whom did he intend to deceive when the forgery
\vas committed?" And Jervis, C.J., said: " The intent must
not be a roving intent but a specific intent." Now, if these
remarks are confined to a count for forging they are correct,
though, in Bolland's Case, 1 Leach, 83, the prisoner was
executed for forging an indorsement in the name of a non-
existing person, with intent to defraud a person whom he
does not even seem to have known when he forged the in-
dorsement."

" But it cannot be doubted that a man may be guilty
of intending to defraud divers persons at different times
by the same instrument, as where he tries to utter a forged
note to several persons one after another, in which case he
may be convicted of uttering with intent to defraud each of
them. Thus much has been said, because it is very import-
ant that the law on the subjects discussed in this note
should not be left in uncertainty, and it is much to be re-
gretted that R. V. Hodgson, Dears. & B. 3, was ever decided
as it was, as it may encourage ignorant pretenders to
fabricate diplomas, and thereby not only to defraud the
poor of their money, but to injure their health": Greaves,
Cons. Acts, 303.

In R. V. Nash, 2 Den. 493, Maule, J., said : " The re-
coTdar seems to have thought, that in order to prove an

500

FORGERY.

intent to defraud there slioulJ have been some person
defrauded or who might possibly have been defrauded.
But I do not think that at all necessary. A man may have
an intent to defraud, and yet there may not be any person
who could be defrauded by his act. Suppose a person with
a good account at his bankers, and a friend, with his know-
ledge, forges his name to a cheque, either to try his credit,
or to imitate his handwriting, there would be no intent to
defraud though there would be parties who might be
defrauded. But where another person has no account at
his bankers, but a man supposes that he has, and on that
supposition forges his name, there would be an intent to
defraud in that case although no person could be de-
frauded."

And in E. v. Mazagora, R. & R. 291, it has been holden
that the jury ought to infer an intent to defraud the person
who would have to pay the instrument if it were genuine,
although from the manner of executing the forgery, or
from that person's ordinary caution, it would not be likely
to impose upon him; and although the object was general
to defraud whoever might take the instiniment, and the
intention of defrauding, in particular, the person who would
have to pay the instrument, if genuine, did not enter into
the prisoner's contemplation. See R. v. Crooke, 2 Str. 901;
R. V. Goate, 1 Ld. Raym. 737 ; R. v. Holden, R. & R. 154.
And even if the party to whom the forged instrument is
uttered believes that the defendant did not intend to
defraud him, and sweara it, this will not repel the presump-
tion of an intention to defraud: R. v. Shepp vd, R. & E.
169 ; R. V. Trentield, 1 F. & F. 43, is wretchedly reported,
and cannot be relied upon: 2 Russ. 790, note by Greaves;
see also R. v. Crowther, 5 C. & P. 316, and R. v. James, 7
C. & P. 553, on the question of the necessary intent to
defraud, in forgery ; and R. v. Boardman, 2 M. &; Rob. 147;
R. v. Todd, 1 Cox. 57. It has been held, in R. v. Powner,
12 Cox, 235, that, in all cases, an intent to defraud must be
alleged. This doctrine seems to have been since repudiated

GENERAL REMARKS.

601

by Martin, B., in R. v. Asplin, 12 Cox, 391 ; see R. v.
Cronin, 36 U. C. Q. B. 342.

It should be observed that the ofTence of forgery may be
complete though there be no publication or uttering of the
forged instrument, for the very making with a fraudulent
intention, and without lawful authority, of any instrument
which, at common law or by statute, is the subject of for-
gery, is of itself a sufficient completion of the offence before
publication, and though the publication of the instrument
be the medium by which the intent is usually made mani-
fest yet it may be proved as plainly by other evidence : 2
East, P. C. 855. Thus in a case where the note which the
prisoner was charged with having forged was never
published, but was found in his possession at the time he
was apprehended, the prisoner was found guilty, and no
one even thought of raising the objection that the note had
never been published : R. v. Elliot, 1 Leach, 175. At the
present time most of the statutes which relate to forgery
make the publication of the forged instrument, with know-
ledge of the fact, a substantive felony.

Not only the fabrication and false making of the whole
of a written instrument, but a fraudulent insertion, altera-
tion, or erasure, even of a letter, in any material part of a
true instrument, and even if it be afterwards executed by
another person, he not knowing of the deceit, or the frau-
dulent application of a true signature to a false instrument
for which it was not intended, or vice versa, are as much
forgeries as if the whole instrument had been fabricated.
As by altering the date of a bill of exchange after accept-
ance whereby the payment was accelerated : 2 East, P. C.
855.

Even where a man, upon obtaining discount of a i)ill,
indorsed it in a fictitious name,when he might have obtained
the money as readily by indorsing it in his own name, it
was holden to be a forgery : R. v. Taft, 1 Leach, 172 ; R. v.

502

FORGERY.

Taylor, 1 Leach, 214 ; R. v. Marshall, R. & R. 75 ; R. v.
Whiley, R. & R. 90 ; R. v. Francis, R. & R. 209.

It is a forgery for a person having authority to fill up a
blank acceptance or a cheque for a certain sum, to fill up
the bill or cheque for a larger sum : R. v. Hart, 1 Moo.
486 ; In re Hoke, 15 R. L. 92 ; (ss. 421, 422, post) ; and the
circumstance of the prisoner alleging a claim on his master
for the greater sum, as salary then due, is immaterial even if
true: R. v. Wilson, 1 Den. 284.

A forgery must be of some document or writing; there-
fore the putting an artist's name in the comer of a picture,
in order falsely to pass it off as an original picture by that
artist, is not a forgery; R. v. Closs, Dears. & B. 460; though
it may be a cheat at common law, s. 419, jpost.

The false signature hy a mark is forgery : R. v. Dunn,
1 Leach, 57.

When the writing is invalid on its face it cannot be the
subject of forgery, because it has no legal tendency to efFeci
a fraud. It is not indictable, for example, to forge a will
attested by a less number of witnesses than the law requires:
R. V. Wall, 2 East, P.C. 953; R. v. Martin, 14 Cox, 375, Warb.
Lead. Cas. 188 ; R. v. Harper, 14 Cox, 574 ; R. v. Moffat, 1
Leach, 431.

But a man may be indicted for forging an instrument
which, if genuine, could not be made available by reason of
some circumstance not appearing upon the face of the
instrument, but to be made out by extrinsic evidence: R.v.
Macintosh, 2 Leach, 883. So, a man may be indicted for
forging a deed, though not made in pursuance of the
provisions of particular statutes requiring it to be in a
particular form: R. v. Lyon, R. & R. 255. Signing a name
of a non-existing person is a forgery: R. v. White, cited in
R. v. Martin, Waib. Lead. Cas. 188.

And a man may be convicted of forging an unstamped
instrument though such instrument can have no operation
in law : R. v. Hawkeswood, 1 Leach, 257 ; Bee s. 422,

GENERAL REMARKS.

503

8-s. 4, post. This question, a few years afterwards, again
underwent considerable discussion, and was decided the
same way, though, in the meantime, the law with regard
to the procuring of bills and notes to be subsequently
stamped, upon which in B. v. Hawkeswood the judges
appear in some degree to have relied, had been repealed.
The prisoner was indicted for knowingly uttering a forged
promissory note. Being convicted the case was argued
laefore the judges, and for the prisoner it was urged that
the 81 Geo. III. c. 25, s. 19, which prohibits the stamps
from being afterwards affixed, distinguished the case from
E. V. Hawkeswood. Though two or three of the judges
doubted at first the propriety of the latter case if the
matter were res Integra, yet they all agreed that, being an
authority in point, they must be governed by it ; and they
held that the statute 31 Geo. III. made no difference in the
question. Most of them maintained the principle in B. v.
Hawkeswood to be well founded, for the Acts of Parliament
referred to were mere revenue laws, meant to make no
alteration in the crime of forgery but only to provide that
the instrument should not be available for recovering upon
it in a court of justice, though it might be evidence for a
collateral purpose ; that it was not necessary to constitute
forgery that the instrument should be available ; that the
stamp itself might be forged, and it would be a strange
defence to admit, in a court of justice, that because the
man had forged the stamp he ought to be excused for having
forged the note itself, which would be setting up one fraud
in order to protect him from the punishment due to
another: B. v. Morton, 2 East, P. C. 966. The same
principle was again recognized in B. v. Boberts and B. v.
Davies, 2 East, P. C. 956, and in B. v. Teague, 2 East,
P. G. 979, where it was holden that, supposing the instru-
ment forged to be such on the face of it as would be valid,
provided it had a proper stamp, the offence was complete.
, As TO THE UTTERING. — These words, lUter, uttering, occur
frequently in the law of forgery, counterfeiting and the like ;

504

FORGERY.

meaning, substantially, to offer. See s. 424 post, where the
word utter is dropped. In ss. 431, 485, 437, 438 however
it is used. If one offers another a thing, as, for instance,
a forged instrument oi: a piece of counterfeit coin, intend-
ing it shall be received as good, he utters it, whether the
thing offered be accepted or not. It is said that the offer
need not go so far as a tender: E. v. Welch, 2 Den. 78-
R. V. Ion., 2 Den. 475. But, to constitute an uttering
there must be a complete attempt to do the particular act
the law forbids, though there may be a complete conditional
uttering, as well as any other, which will be criminal. The
words " pay," " put off," in a statute are not satisfied by a
mere uttering or by a tender; there must be an acceptance
also : Bishop, Stat. Cr. 806.

Showing a man an instrument, the uttering of which
would be criminal, though with an intent of raising a false
idea in him of the party's substance, is not an uttering.
Nor will the leaving it, afterwards, sealed up, with the
person to whom it was shown, under cover, that he may
take charge of it as being too valuable to be carried about,
be an uttering : R. v. Shukard, R. & R. 200. But the
showing of a forged receipt to a person with whom the
defendant is claiming credit for it was held to be an offer-
ing or uttering, though the defendant refused to part with
the possession of it : R. v. Radford, 1 Den. 59.

Giving a forged note to an innocent agent or an accom-
plice that he may pass it is a disposing of and putting it
away : R. v. Giles, 1 Moo. 166. So, if a person knowingly
deliver a forced bank note to another, who knowingly utters
it accordingly, the prisoner who delivered such note to be
put off may be convicted of having disposed of and put
away the same : R. v. Palmer, R. & R. 72.

On the charge of uttering the guilty knowledge is a
tiaterial part of the evidence. Actios non facit reum nid
Tiiens sit rea. If there is no guilty knowledge, if the
person who utters a forged instrument really thinks it

GENERAL REMARKS.

505

genuine, there is no tnens rea with him ; he commits no
offence. Therefore the prosecutor must prove this guilty
knowledge by the defendant to obtain a conviction. S. 424,

post.

This is not capable of direct proof. It is in nearly all
cases proved by evidence of facts from which the jury may
presume it : Archbold, 570 And by a laxity of the general
rules of evidence, which has long prevailed in the English
Courts, the proof of collateral facts is admitted to prove the
guilty knowledge of the defendant. Thus, on an indict-
ment for knowingly uttering a forged instrument, or a
counterfeit bank note, or counterfeit coin, proof of the
possession, or of the prior or subsequent utterance, either
to the prosecutor himself or to other persons, of other false
documents or notes, or bad money, though of a dif event
description, and though themselves the subjects of separate
indictments, is admissible as material to the question of
guilty knowledge or intent: Taylor, Evid., 1 vol. par. 322;
R. V. Aston, 2 Russ. 841 ; R. v. Lewis, 2 Russ. 841 ; R. v.
Oddy, 2 Den. 264. But in these cases it is essential to
prove distinctly that the instruments offered in evidence of
guilty knowledge were themselves forged : Taylor, loc. citi
R. V. Bent, 10 0. R. 557.

It seems also, that though the prosecutor may prove
tbe uttering of other forged notes by the prisoner, and his
conduct at the time of uttering them, he cannot proceed to
show what the prisoner said or did at another time with
respect to such uttering ; for these are collateral facts, too
remote for any reasonable presumption of guilt to be
founded upon them, and such as the prisoner cannot by
any possibility be prepared to contradict : Taylor, loc. cit.;
R. v. Phillips, 1 Lewin, 105 ; R. v. Cooke, 8 C. & P. 586.
In Phillips' case the judge said : " That the prosecutor
could not give in evidence anything that was said by the
priEoner at a time collateral to a former uttering in order
to show that what he said at the time of such former

tl^

506

FORGERY.

uttering was false, because the prisoner could not be pre-
pared to answer or explain evidence of that description;
that the prisoner is called upon to answer all the circum-
stances of a case under consideration, but not the
circumstances of a case which is not under consideration ;
that the prosecutor is at liberty to show other cases of the
prisoner having uttered forged notes, and likewise his
conduct at the time of uttering them ; but that what he
said or did at another time collateral to such other utter-
ings could not be given in evidence, as it was impossible
that the prisoner could be prepared to combat it." See R.
V. Brown, 2 F. & F. 559, and remarks of Cromptou, J.,
therein on R. v. Cooke, cited ante, and R. v. Forbes 7 C.
& P. 224. The rule, in such cases, seems to be that you
cannot bring collateral evidence of a collateral fact, or that
you cannot bring evidence of a collateral circumstance of a
collateral fact.

The prosecutor must also prove that the uttering was
accompanied by an intent to defraud, as to which see
remarks, ante, on the necessity of this intent in forgery.
generally. Baron Alderson told the jury, in R. v. Hill 2
Moo. 30, that if they were satisfied that the prisoner uttered
the bill as. true, knowing at the time that it was forged, and
meaning that the person to whom he offered it should
believe it to be genuine, they were bound to infer that he
intended to defraud this person, and this ruling was held
right by all the judges. And in R. v. Todd, 1 Cox, 57,
Coleridge, J., after consulting Cresswell, J., said: "If a
person forge another person's name, and utter any bill, note,
or other instrument with such signature, knowing it not to
be the signature of the person whose signature he represents
it to be, but intending it to be taken to be such by the
party to whom it is given, the inference, as well in point of
fact as of law, is strong enough to establish the intent to
<lefraud, and the party so acting becomes responsible for
the legal consequences of his act, whatever may have been

GENERAL REMARKS.

607

his motives. The natural, as well as the legal, consequence
is that this money is obtained, for which the party obtain-
ing it professes f,o give but cannot give a discharge to the
party giving up the money on the faith of it. Supposing a
person in temporary distress puts another's name to a bill,
intending to take it up when it becomes due but cannot
perform it, the consequence is that he has put another
under the legal liability of his own act, supposing the signa-
ture to pass for genuine " : see R. v. Vaughan, 8 C. & P.
276; R. V. Cooke, 8 C. & P. 682; R. v. Geach, 9 C. & P.
499.

At common law any one convicted of forgery was
incompetent as a witness, but now no one is incompetent
by reason of interest or crime : The Canada Evidence Act,
1893, s. 3.

Indictment. — that A. B. on unlawfully

did forge, knowing it to be false, a certain (here name

the document) which paid forged document is as follows that
is to say {here set out the document verbatim) with

intent thereby to defraud, and with intent that the said
document should be used as genuine {or acted upon as
genuine) to the prejudice of {name, as the case may

he) or of any one who would accept, take, or deal with the
said forged document.

And the jurors aforesaid do further present, that the
said J. S. afterwards, to wit, on the day and year aforesaid,
unlawfully and knowingly did forge a certain other {state
the instrument forged by any name or designation by which it
ts usually knoivn), with intent thereby then to defraud ; and
that the said document should be used as genuine {or
octed upon as genuine) to the prejudice of any one who
thereafter would accept, take or deal with or come by the
said forged document.

And the jurors aforesaid do further present, that the
said J. S. afterwards, to wit, on the day and year aforesaid,
unlawfully did utter, offer, dispose of, and put off, as if it

¥P

508

FORGERY.

V it."'

were genuine (use, deal with, or attempt to use, etc., s. 424),
a certain forged document, which said forged document is
as follows, that is to say {here set out the instrument ver-
batim), with intent thereby then to defraud, he, the said J.
S., at the time he so uttered, offered, disposed of, and put
off the said last-mentioned forged document as aforesaid,
well knowing the same to be forged.

See E. V. Brewer, 6 C. & P. 363, and s. 613, post, as to
indictments, and s. 569 as to search warrant.

The evidence of a single witness is not sufficient if not
corroborated ; s. 684, post. The repealed s. 218, c. 174,
B. S. G. applied only to an interested witness : B. v. Selby,
16 0. E. 255 ; E. v. Bhodes, 22 0. E. 480 ; 10 & 11 V. c. 9,
s. 21 ; Bank Prosecutions, E. & B. 378.

At common law forger}' is a misdemeanour, punishable
by fine or imprisonment, or both, at the discretion of the
court. The court of Quarter Sessions now has jurisdictiou
in cases of forgery, s. 539, post.

jjut a provincial Act authorizing police magistrates to
try cases of forgery is unconstitutional : E. v. Toland, 22
0. E. 505 ; see E. v. Levinger, 22 0. E. 690. A prisoner
extradited from the United States on a charge of forgery
may, upon an indictment for forgery, be found guilty of a
criminal uttering : E. v. Paxton, 3 L. C. L. J. 117.
Making false entries in a book does not constitute the
crime of forgery: Ex parte Lamirande, 10 L. C. J. 280; see
P. V. Blackstone, 4 Man. L. E. 296, and Ex parte Eno, 10
Q. L. E. 194. Definition of the term forgery considered,
Ee Smith, 4 P. E. (Ont.) 215 ; E. v. Gould, 20 U. C. C. P.
154.

Where the prisoner was indicted for forging a note for
$500, having changed a note of which he was the maker
from $500 to $2,500 : Held, a forgery of a note for $500,
though the only fraud committed was on the endorser:
E. v. McNevin, 2 B. L. 711.

Sees. 419, 420]

DOCUMENT DEFINED.

509

In consideration of law, every alteration of an instru-
ment amounts to a forgery of the whole, and an indictment
for forgery will be supported by proof of a fraudulent
alteration, though, in cases where a genuine instrument
has been altered, it is perhaps better to allege the altera-
tion in one count of the indictment : s. 422, s-s. 2. post.

If several concur in employing another to make a
forged instrument, knowing its nature, they are all guilty
of the forgery : B. v. Mazeau, 9 G. & P. 676 ; B. v. Dade,
1 Moo. 307. All are now principals in forgery, as in all
other offences, by s. 61.

A joint and several bond was executed by prisoner
under an assumed name for a fraudulent purpose. There
was no proof whether the other signatures were forged or
not. An indictment that prisoner had forged the bond
was sustained : B. v. Deegan, 6 Man. L. B. 81 ; see s. 459.

!i/

PART XXXI.

FORGERY.

Document Defined.

419. A document means in this part any paper, parchment, or other
material used for writing or printing, marked with matter capable of being
read, but does not include trade marks on articles of commerce, or inscriptions
on stone or metal or other like material.

Bank Note, Etc., Defined.

430. "Banknote" includes all negotiable instruments issued by or on
behalf of any person, body corporate, or company carrying on the business of
banking in any part of the world, or issued by the authority of the Parliament
of Canada or of any foreign prince, or state, or government, or any governor
or other authority lawfully authorized thereto in any of Her Majesty's
dominions, and intended to be used as equivalent to money,either immediately
upon their issue or at some time subsequent thereto, and all bank bills and bank
post bills ;

510

FORGERY.

[Sees. 421, 422

(a) *' Exchequer bill " includes exchequer bonds, notes^ debentures and
other securities issued under the authority of the Parliament of Canada or
under the authority of any legislature of any province forming part of Canada
whether before or after such province so became a part of Canada.

Section 129 of c. 174, R. S. C., as to description of bank
notes in indictments, has not been re-enacted.

False Document, Etc. Defined.
431* ..'he expression " false document " means —

(a) a document the whole or some material part of which purports to be
made by or on behalf of any person who did not make or authorize the making
thereof, or which, though made by, or by the authority of, the person
who purports to make it is falsely dated as to time or place of making, where
either is material ; or

(b) a document the whole or some material part of which purports to be
made by or on behalf of some person who did not in fact exist ; or

(c) a document which is made in the name of an existing person, either by
that person or by his authority, with the fraudulent intention that the docu-
ment should pass as being made by some person, real or fictitious, other than
the person who makes or authorizes it.

2. It is not necessary that the fraudulent intention should appear on the
face of the document, but it may be proved by external evidence.

Forgery Dekined.
432. Forgery is the makinsf of a false document, knowing it to be false
with the intention that it shall in any way be used or acted upon as genainp, to
the prejudice of any one, whether within Canada or not, or that some person
should be induced, by the belief that it is genuine, to do or refrain from doinpf
anything, whether within Canada or not.

2. Making a false document includes altering a genuine document in any
material part, and making any material addition to it or adding to it any false
date, attestation, seal or other thing which is material, or by making any
material alteration in it, either by erasure, obliteration, removal or otherwise.

3. Forgery is complete as soon as the document is made with such know-
ledge and intent as aforesaid, though the offender may not have intended that
any parti<nilar person should use or act upon it as genuine, or be induced, by
the belief that it is genuine, to do or refrain from doing anything.

4. Forgery is complete although the false document may be incomplete,
or may not purport to be nuch a document as would be binding in law, if it be
so made as, and is such as to indicate that it was intended, to be acted on as
genuine.

*• The crime of forgery was an offence at common law, the
punishment of which was only fine and imprisonment. It is
not possible to say precisely what are the documents the false
making of which is forgery at common law. But by a great
many different enactments, passed at different times, a great

Sec. 428]

PUNISHMENT.

511

many forgeries have been made felonies, and as such, punishable
mth great severity. The statute law was, for the j-it part,
consolidated by the 24 & 25 V. c. 98. Like the other consolidation
Acts the Forgery Act assumes that the common law definition of
forgery is known. This definition, however, is a somewhat in-
tricate matter, involving various questions aa to the extent of
falsification implied in forgery, the character of the intent to
defraud essential to it, and the circumstances essential to the
completion of the crime. These matters are dealt with in ss.
313 to 817 {ss. 419 to 422, ante), both inclusive. — Imp. Comm.

Rep.

Punishment

4S3> Every one who commits forgery of the documents hereinafter
mentioned is guilty of an indictable oilence and liable to the following
punishment : —

{A) To imprisonment for life if the document forged purports to be, or was
intended by the offender to be understood to be or to be used as —

(a) any document having impressed thereon or affixed thereto any public
seal of the United Kingdom or any part thereof, or of Canada or any part
thereof, or of any dominion, possession or colony of Her Majesty : R. S. C.
c. 165, 8. 4 ; or

{b) any document bearing the signature of the Governor-General, or of
any administrator, or of any deputy of the Governor, or of any Lieutenant-
Governor, or any one at any time administering the government of any
province of Canada : R. S. C. c. 165, a. 5 ; or

(c) any document containing evidence of, or forming the title or any part
of the title to, any land or hereditament, or to any interest in or to any
charge upon any land or hereditament, or evidence of the creation, transfer or
extinction of any such interest or charge ; or

(d) any entry in any register or book, or any memorial or other document
made, issued, kept or lodged under any Act for or relating to the registering
of deeds or other instruments respecting or concerning the title to or any
claim uix)n any land or the recording or declaring of titles to land : R. S. C.

c. 165, 8, 38 ; or

(«) any document required for the purpose of procuring the registering of
any such deed or instrument or the recording or declaring of any such title :
R. S. C. a. 165, 8. 38 ; or

(/) any document which is made, under any Act, evidence of the
registering or recording or declaring of any such deed, instrument or title :
R. S. C. c. 165, s. 38 ; or

{g) any document which is nmde hy any Act evidence affecting the title to
land ; or

[h) any notarial act or document or authenticated copy, or any proeh-
xtrhal of a surveyor or authenticated copy thereof : R. S. C. c. 165, s. 38 ; cr

512

FORGERY.

[Sec. 423

(i) any register of births, baptisms, marriages, deaths or burials author-
ized or required by law to be kept, or any certified copy of any entry in or
•extract from any such register : R. S. C. o. 165, s. 43 ; {lee post, s. 436) ; or

ij) any copy of any such register required by law to be transmitted by or
to any registrar or other officer : R. S. C. c. 165, s. 44 ; or

{k) any will, codicil or other testamentary document, either of a dead
or living person, or any probate or letters of administration, whether with or
•without the will annexed : R. S. C. c. 165, s. 27 ; or

(I) any transfer or assignment of any share or interest in any stock
annuity or public fund of the United Kingdom or any part thereof, or of
Canada or any part thereof, or of any dominion, possession or colony of Her
Majesty, or of any foreign state or country, or receipt or certificate for interest
accruing thereon : R. S. C. c. 165, ss. 8 & 25 ; or

(m) any transfer or assignment of any share or interest in the debt of any
public body, company or society, British, Canadian or foreign, or of any share
or interest in the capital stock of any such company or society, or receipt or
certificate for interest accruing thereon : R. S. C. c. 165, s. 8 ; or

(n) any transfer or assignment of any share or interest in any claim to a
grant of land from the Crown, or to any scrip or other payment or allowance
in lieu of any such grant of land : R. S. C. c. 165, s. 8 ; or

(o) any power of attorney or other authority to transfer any interest or
share hereinbefore mentioned, or to receive any dividend ur money payable in
respect of any such share or interest : R. S. C. c. 1G5, 8. 8 ; or

(p) any entry in any book or register, or any certificate, coupon, share,
warrant or other document which by any law or any recognized practice is
evidence of the title of any person to any such stock, interest or share, or to
any dividend or inteiost payable in respect thereof : R. S. C. o. 165, s. 11 ; or

(q) any exchequer bill or endorsement thereof, or receipt or certificate for
interest accruing thereon : R. S. C c. 165, s. 13 ; or

(r) any bank note or bill of exchange, promissory note or cheque, or any
acceptance, endorsement or assignment thereof : R. S. C. c. 165, sa. 18, 25 &
28; or

(<) any scrip in lieu of land : R. S. C. c. 165, s. 13 ; or

(t) any document which is evidence of title to any portion of the debt of
any dominion, colony, or possession of Her Majesty, or of any foreign stttte, or
any transfer or assignment thereof : or

(«) any deed, bond, debenture, or writing obligatory, or any warrant,
order, or other security for money or i>ayment of money, whether negotiable or
not, or endorsement or assignment thereof : R. 8. C. c. 165, ss. 2(j & 32 ; or

(v) any accountable receipt or acknowledgment of the deposit, receipt, or
delivery of money or goods, or endorsement or assignment thereof : K. S, C.
o. 165, 8. 29 ; or

{iv) any bill of lading, charter-party, policy of insurance, or an y nhipping
document accompanying a bill of lading, or any endorsement or amjiimnt
thereof; or

Sec. 423]

PUNISHMENT.

513

(/) nn,'J warehnme receipt, dock imrrant, dock-keeper's certificate, delivery
order, or warrant for the delivery of gooiU, or of any valuable thing, or any
.(ndirrsement or assignment thereof; or

(y) any other document used in the ordinary course of business as proof of
the pimsession or control of goods, or as authorizing, either on endorsement w
deliver!/, the possessor of such document to transfer or receive any goods.

FOURTKKN YEARa.

(B) To fourteen years' imprisonment if the document forged purports to
be or was intended by the offender to be understood to be, or to be used as —

(a) any entry or document made, issued, kept or lodged under any Act
for or relating to the registry of any instrument respecting or concerning th«
title to, or any claim upon, any personal property : R. S, C. c. 166, s. 38.

(b) any public register or book not hereinbefore mentioned appointed by
law to bo made or kept, or any entry therein : R. S. C. c. 165, 8. 7.

Skvkn Years.

(C) To seven years' imprisonment if the document forged purports to be,
or wa« intended by the offender to be understood to be, or to be used as —

(rt) any record of any court of jus^^ce, or any document whatever belong-
ing to or issuing from any court of justice, or being or forming part of any
prcjceeding therein, (a. b. c. d. e, ar' an extension of the law, b. 34, c. 165,
R. S. C); or

(6) any certificate, office copy, or certified copy or other document which,
by any statute in force for the time being, is admissible in evidence ; or

(c) any document made or issued by any judge, officer or clerk of any
court of justice, or aiy d( cu. .>nt upon which, by the law or usage at the time
in force, any court of ju'itice or any officer might act ; or

((/) any document Mrhich any magistrate is authorized or required by law
to make or issue ; or

(e) any entry in any register or book kept, under the pr ;' isiona of any
law, in or under the authority of any court of justice or magi: rate acting as
euch ; or

(/) any copy of any letters patent, or of the enrolment or enregistration
of letters patent, or of any certificates thereof : R. S. C. c. 165, s. 6 ; or

((j) any license or certificate for or of marriage : R. S. C. c. 165, s. 42 ; or

(h) any contract or document which, either by itself or with others, amounts

■to a contract, or is evidence of a contract ; or

(i) any poicer or letter of attorney or mandate; or

(i) any authority or request for the payment of money, or for the delivery
of goods, or of any note, bill, or valuable security : R. S. C. c. 165, s. 29 ; or

(i) any acquittance or discharge, or any voucher of having received any
goods, money, note, bill or valuable security, or any instrument which is
evidence of any such receipt : R. S. C. c. 165, s. 29 ; or

(/) any document to be given in evidence as a genuine document in any
judicial proceeding ; or

Criu. Law— 33

514

FORGERY.

[Sec. 423

mKh^

{m) any ticket or order for a free or paid passage on any carriage, tram-
way or railway, or on any steam or other vessel : R. S. C. c. 165, s. 33 ; or

(w) any document other than those above mentioned : R. S. C. c. lfir>,

8. 76.

The words in italics are additions to the enumeratiou
contained in the repealed statute. The punishments have
been altered in some cases. Ss. 86 & 87, c. 85, B. S. C,
provide for the forgery of stamps, money orders, etc., and

9. 100, c. 8, for the forgery of ballot papers at elections.
Upon the trial of any forgery the jury m?y, if the evidence
warrants it, convict the prisoner of an attempt to commit
the same ; s. 711. The punishment then, where none is
specially provided, falls under ss. 528 or 529.

Under the above s. 423, by s-s. {A.u.,) forging a warrant
or order for money or payment of money is punishable by
a life imprisonment, whilst, s-s. (C.j.), forging any author-
ity or request for the payment of money is punishable by
seven years. What is the difference between these docu-
ments ? Why that great difference in the punishment ?
Then by s-s. (A.v.) forgingany accountable receiptor acknow-
ledgment of the deposit, receipt or delivery of money or
goods is punishable by a life imprisonment, whilst s-s.
(C.k,,) forging any acquittance or discharge, or any voucher
of having received any goods or money, or any instrument
which is evidence of any such receipt, is punishable by
seven years!

The punishment for forging a railway ticket is seven
years ; for forging a custom house mark or brand, s. 210,
c. 32, R. S. C, two hundred dollars, on summary convic-
tion ; for forging any other custom house document, five
years' penitentiary ; s. 211, c. 32, R. S. C; for forging
election ballot papers, six months; s. 100, c. 8, R. S. C;
for forging a post ofiSce stamp, imprisonment for life ; s. 86,
c. 35, B. S. C; but for forging an inland revenue stamp
only fourteen years ; s. 485, post. It is only five ^e&n,
however, for criminally receiving a stolen post letter, whilst

Sec. 423]

PUNISHMENT.

515

it is fourteen for receiving any other stol^m property;
88. 314, 315, ante.

(A.) (i.)-FORGERY OP MARRIAGE REGISTER.

In K. V. Asplin, 12 Gox, 891, it was held by Martin,
B., that upon an indictment for making a false entry in
a marriage register it is not necessary that the entry
should be made with intent to defraud, and that it is no
defence that the marriage solemnized was null and void,
being bigamous ; also that, if a person knowing his name
to be A„ signs another name without authority, he is guilty,
and it is immaterial that he is a third witness, the Marriage
Act only requiring two.

{A.) (fc.)-FORGERY OP WILLS.

The judges were equally divided upon the question
whether, in the absence of the existence of some person
who could have been defrauded by the forged will, a count
for forging it with intent to defraud a person or persons
unknown could be supported : R. v. Tylney., 1 Den. 319.

Forgery may be committed by the false making of the
will of a living person, or of a non-existing person : B. v.
Murphy, 2 East, P. C. 949 ; Wilks's case, 2 East P. C. 957 ;
P. V. Sterling, 1 Leach, 99 ; R. v. Coogan, 1 Leach 449 ;
R. V. Avery, 8 C. & P- 596. So, though it be signed by
the wrong christian name of the person whose will it pur-
ports to be : R. v. Fitzgerald, 1 Leach 20 ; ss. 421, 422,
ante.

[A.) (r.)-BANK NOTES, BILLS OP EXCHANGE, PROMISSORY

NOTES.

A bill payable ten days after sight, purporting to have
been drawn upon the Commissioners of the Navy by a
lieutenant, for the amount of certain pay due to him, has
been holden to be a bill of exchange : R. v. Chisholm, R. &
R. 297. So a note promising to pay A. & B., " steward-
esses " of a certain benefit society, or their " successors," a
certain bum of money on demand^ has been holden to be a

516

FORGERY.

[Sec. 423

promissory note within the meaning of the Act. It is not
necessary that the note should he negotiable : B. v. Box,
E. & B. 300. An instrument drawn by A. on B., requiring
him to pay to the administrators of G. a certain sum, at a
certain time "without acceptance/' is a bill of exchange:
B. V. Kinnear, 2 M. & Bob. 117. So, though there be no
person named as drawee, the defendant may be indicted
for uttering- a forged acceptance on a bill of exchange : B.
V. Hawkes, 2 Moo. 60. For the act of putting the accept-
ance is a sort of estoppel to say it was not a bill of exchange,
but, without acceptance, this instrument is not a bill of
exchange : B. v. Curry, 2 Moo. 218.

In E. V. Mopsey, 11 Cox, 143, the acceptance to what
purported to be a bill of exchange was forged, but at the
time it was so forged the document had not been signed by
the drawer, and it was held that, in consequence, the
document was not a bill of exchange. And a document in
the ordinary form of a bill of exchange, but requiring the
drawee to pay to his own order, and purporting to be
indorsed by the drawer, and accepted by the drawer, can-
not, in an indictment for forgery or uttering, be treated as
a bill of exchange : B. v. Bartlett, 2 M. & Bob. 362. But
an instrument payable to the order of A., and directed "At
Messrs. F. & Co., bankers," was held to be properly de-
scribed as a bill of exchange : B. v. Smith, 2 Moo. 295. A
nurseryman and seedsman got his foreman to accept two
bills, the acceptance having no addition, description or
address, and afterwards, without the acceptor's knowledge,
he added to the direction a false address but no descrip-
tion, and represented in one case that the acceptance was
that of a customer, and in the other case that it was that
of a seedsman, there being in fact no such person at the
supposed false address: held, that in the one case, the
former, he was not guilty of forgery of the acceptance, but
that, in the other case, he was : B. v. Epps, 4 F. & F. 81.
A bill of exchange was made payable to A, B, C, D, or other

Sec. 423]

51Y

forged executrixes. The indictment charged that the prisoner
forged on the back of the bill a certain indorsement,
which indorsement was as follows (naming one of the execu-
trixes) ; Held, a forged indorsement, and indictment suffi-
cient : R. V. Winterbottom, 1 Den. 41. Putting off a bill of
exchange of A. an existing person, as the bill of exchange of
A. a fictitious person, is a felonious uttering of the bill of a
fictitious drawer : R. v. Nisbett, 6 Cox, 320. f f there are
two persons of the same name, but of different descriptions
or additions, and one signs his name with the description
or addition of the other for the purpose of fraud, it is
forgery : R. v. Webb, cited in Bayley on Bills, 432.

There can be no conviction for forgery of an indorse-
ment of a bill of exchange under the above section if the
bill of exchange itself is not a complete instrument as such :
R. V. Harper, 14 Cox, 574.

\Y. a bailiff had an execution against prisoner and H.
M. and to settle same it was arranged to give a note made
by A. M. and indorsed by A. D. M. A note was drawn up
payable to the order of A. D. M., and prisoner took it
away and brought it back with the name A. D. M. indorsed.
It was then signed by A. M. and given to the bailiff. The
indorsement was a forgery, and prisoner was indicted for
forging an indorsement on a promissory note, and con-
victed. Held, following R. v. Butter wick, 2 M. & Rob. 196 ;
R. V. Mopsey, 11 Cox, 143 ; and R. v. Harper, 7 Q. B. D.
78, that the conviction could not be sustained on the indict-
ment as framed as the instrument, for want of the maker's
name at the time of the forgery, was not a promissory note ;
nor could it stand on the count for uttering as after it was
signed it was never in prisoner's possession : R. v. McFee,
13 0. R. 8.

Held, that the alteration of a $2 Dominion note to one
of the denomination of $20, such alteration consisting in
the addition of a cypher after the figure 2, wherever that
figure occurred in the margin of the note, was forgery, and

§4^

518

FORGERY.

[Sec. 423

the prisoner was rightly convicted therefor : R. v. Bail, 7

0. B. 228.

Where in an instrument, in form of a promissory note,

a blank is left for payee's name it is not a completed note

so as to support a conviction for forgery, or for forging

indorsement, nor is it a document, writing or instrument

within c. 165, ss. 46, 47 or 50.
I

Semhle, it might be forgery at common law : R. v. Cor-
mack, 21 0. R. 213.

An indictment need not state, in the counts for uttering,
to whom the note was disposed of: R. v. Holden, B. & £.
154. The intent to defraud any particular person need
not be alleged or proved.

Under the counts for uttering evidence may be given
that the defendant offered or tendered the note in payment,
or that he actually passed it, or otherwise disposed of it to
.another person. Where it appeared that the defendant
sold a forged note to an agent employed by the bank to
procure it from him the judges held this to be within the
Act, although it was objected that the prisoner had been
solicited to commit the act proved against him by the
bank themselves, by means of their agents : E. v. Holden,
R. & R. 154. So where A. gave B. a forged note to pass for
.him, and upon B.'s tendering it in payment of some goods
it was stopped ; the majority of the judges held that A.,
by giving the note to B., was guilty of disposing of and
putting away the note within the meaning of the Act : B,
v. Palmer, R. & R. 72; B. v. Soares, R. & R. 25; E. v.
Stewart, R. & R. 863 ; and R. v. Giles, 1 Moo. 166, where
it was held that giving a forged note to an innocent agent,
or an accomplice, that he may pass it is a disposing of,
and putting it away, within the meaning of the statute.

(A) («) WARRANT, ORDER FOR PAYMENT, ETC.

A draft upon a banker, although it be post-dated, is a
warrant and order for the payment of money : R. v. Taylor,
1 C. & K. 213 ; R. v. Willoughby, 2 East, P. C. 944. Sols

Sec. 423]

PUNISHMENT.

619

even a bill of exchange : B. v. Sbeppard, 1 Leacb, 226 ;
p. V. Smith, 1 Den. 79. An order by a foreman to his
employer to pay a specific sum falls under the statute : B.
V. Bowen, M. L. B. 7 Q. B. 468. An order need not specify
auy particular sum to fall under the statute : B. v. Mcin-
tosh, 2 East, P. C. 942. A writing in the form of a bill of
exchange, but without any drawee's name, cannot be
charged as an order for the payment of money ; at least,
unless shown by averments to be such : E. v. Curry, 2 Moo.
218. In B. V. Howie, 11 Cox, 320, it was held that a sea-
man's advance note was not an order for payment of
money. It would seem, however, to be an tvTulertaking
for the payment of money within the statute : B. v. Bam-
field, 1 Moo. 416 ; R. v. Anderson, 2 M. & Rob. 469 ; R. v.
Reed, 2 Moo. 62 ; R. v. Joyce, L. & C. 576. The statute
applies as well to a w« 'ten promise for the payment of
money by a third perso :. by the supposed party to the
instrument: R. v. Sto, c. i Den. 181. An instrument,
professing to be a scrip certificate of a railway company, is
not an undertaking within the statute : R. v. West, 1 Den.
258. But perhaps the present section would cover this
case.

In R. V. Rogers, 9 C. & P. 41, it was held that a war-
rant for the payment of money need not be addressed to
HYiy particular person : see R. v. Snelling, Dears. 219.

As to what is a warrant or order for the delivery of
goods the following cases may be cited : A pawnbroker's
ticket is a warrant for the delivery of goods : R. v. Morri-
son, Bell, 158. At the London docks a person bringing a
^'tasting order" from a merchant having wine there is
not allowed to taste until the order has across it the signa-
ture of a clerk of the company ; the defendant uttered a
tasting order with the merchant's name forged to it by
presenting it to the company's clerk for his signature across
it, which the clerk refused ; it was held to be, in this state,
a forged order for the delivery of goods within the statute :
£. V. Illidge, 1 Den. 404. A request for the delivery of

520

FORGERY,

[Sec. 4»

goods need not be addressed to any one ,* s. 423 (C) (j) : R.
V. Carney, 1 Moo. 351 ; R. v. CuUen, 1 Moo. 300 ; R. y.
Pulbrook, 9 G. & P. 37. Nor need it be signed by a persoD
who can compel a performance of it, or who has any
authority over or interest in the goods : B. v. Thomas, 2
Moo. 16 ; R. V. Thorn, 2 Moo. 210. Formerly, if upon an
indictment for the misdemeanour of obtaining goods under
false pretenses a felonious forgery were proved, the judge
had to direct an acquittal : R. v. Evans, 5 C. & P. 553,
But, by the abolition of the distinction between felonies
and misdemeanours, it would seem that the judge may,
under the same circumstances, take a verdict for the offence
charged. .

As to what is a receipt under this section 423, (A) (v),.
the additions in the present clause render many of the
cases on the subject of no practical importance. A turn-
pike toll-gate ticket is a receipt for money within this
section: B. v. Fitch, B. v. Howley, L. & C. 159. If a
person with intent to defraud, and to cause it to be supposed,
contrary to the fact, that he has paid a certain sum into a
bank, make in a book, purporting to be a pass-book of the
bank, a false entry which denotes that the bank has
received the sum, he is guilty of forging an accountable
receipt for money: B. v. Moody, L. & C. 173; R. v. Smith,
L. & C. 168. A document called a " clearance " issued to
members of the Ancient Order of Foresters' Friendly Society
certified that the member had paid all his dues and
demands, and authorized any Court of the Order to accept
the bearer as a clearance member: Held, that this was not
a receipt for money under this section: R. v. French, 11
Cox, 47 2. An ordinary railway ticket is not an acquittance,
or receipt, within this section : R. v. Gooden, 11 Cox, 672;
but now, by s. 423, (C) (m), forging a railway ticket is a dis-
tinct offence. The prisoner being pressed by a creditor for
the payment of £35 obtained further time by giving an
I. 0. U. for £35 signed by himself, and also purporting to
be signed by W.; W.'s name was a forgery: Held, that the

Sees. 434, 426]

UTTERING, ETC.

521

instrument was a security for the payment of money by W:
jj. V. Chambers, 12 Cox, 109. , .

An indictment for forging a receipt 423, (A) (v), must
allege a receipt either of money or of goodp : B. v. McCorkill^
8 L. C. J. 283. But the intent to defraud any particular
person need not be alleged : R. v. Hathaway, 8 L. C. J.
285; see In re Debaun, 11 L. N. 323.

The evidence of the uttering of a forged indorsement of
a negotiable check or order is insufficient to sustain a
conviction for uttering a forged order or check : R, v. Cun-
ningham, Cassel's Dig. 107.

The prisoner was indicted for forging a request for the
payment of money, s. 423 (C) (;) the said request consisting
of a forged telegram upon which he obtained $85 : Held^
a forgery as charged: R. v. Stewart, 25 U. C. C. P. 440.

Uttkrino, Etc.

434. Every one is guilty of an indictable offence who, knowing: a docu-
ment to be forged, uses, deals with, or acts upon it, or attempts to use, deal
with, or act upon it, or causes or attempts to cause any i^erson to use, deal
with, or act upon it, as if it were genuine, and is liable to the same punishment
as if he had forged the document.

2. It is immaterial where the document was forged.

The word " utter " has been left out of this clause,
though retained in ss. 431, 435, 437, 438 and in the sections
relating to the coin, s. 460, et seq.

Counterfeiting Seals.

425> Every one is guilty of an indictable offence and liable to imprison-
ment for life who unlawfully makes or counterfeits any public seal of the
United Kingdom or any part thereof, or of Canada or any part thereof, or of
any dominion, possession or colony of Her Majesty, or the impression of any
such seal, or uses any such seal or impression, knowing the same to be so-
counterfeited. R. S. C. c. 165, s. 4 (Amended). 24-25 V. c. 98, s. 1 (Imp.).

No intent to defraud necessary.

Indictment. — thatA. B., on the seal of the

Dominion of Canada, falsely and unlawfully did counterfeit.
{Add a count for uttering, using, dealing ivith or
. . . knowing the same to he so counterfeit.)

;ii:

522

FORGERY.

[Sees. 426-429

COUNTKRFBITINO SbAL OF CoURT.

496* Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who unlawfully makes or counterfeits any seal of a court
of justice, or any seal of or belonging to any registry office or bui-ial board, or
the impression of any such seal, or uses any such seal or impression knowing
the same to be counterfeited. R. S. C. c. 165, ss. 36, 3d & 43 {Amended).
24-25 V. c. 98, ss. 28, 31 & 36 (Imp.).

See under preceding section.

Unlawfully Printing Proclamation.

4S7« Every one is guilty of an indictable offence and liable to seven
years' imprisonment who prints any proclamation, order, regulation or
appointment, or notice thereof, and causes the same falsely to purport to have
been printed by the Queen'c Printer for Canada, or the Government Prinler
for any province of Canada, as the case may be, or tenders in evidence any
copy of any proclamation, order, regulation or apix)intment whi«h falsely
purports to have been printed as aforesaid, knowing that the same was not so
printed. R. S. C. o. 165, s. 37.

The repealed clause provided also for the forgery of any
certificate of any proclamation, etc.: see a. 423, (C) (l). ante.
The Canada Evidence Act of 1893 provides for the proof
of proclamations, etc.

Sending Telegrams in False Name. (New).
428. Every one is guilty of an indictable offence who, with intent to
defraud, causes or procures any telegram to be sent or delivered as being sent
by the authority of any person, knowing that it is not sent by such authority,
with intent tliat such telegram should be acted on as being sent by that
person's authority, and is liable, upon conviction thereof, to the same punish-
ment as if he had forged a document to the same effect as that of a telegram.

Indictment. — that A. B., at on un-

lawfully, with intent to defraud, did cause a telegram
purporting to be an order for money, to be sent to
as being sent by the authority of one C. D., knowing that
it was not sent by the authority of the said C. D., with
intent that such telegram should be acted on as being sent
by the said C. D.

See R. V. Stewart, p. 521 ante.

Sending False Telegrams or Letters. (New).

420* Every one is guilty of an indictable offence and liable to two years'
imprisonment who, with intent to injure or alarm any person, sends, causes, or
procures to be sent any telegram or letter or other message containing matter
which he knows to be false.

Fine, s. 958.

Sees, 430, 481]

FORGED BANK NOTES.

523

Indictment. — that A. B., on at un-

lawfully did send {cause or 'procure to he sent) a telegram
to one G. D. containing matter which he, the said

A. B., knew to be false, with intent to injure {or alarm) the
said C. D. {Add another count giving the telegram, in
fidl if possible ).

The clause seems to cover the case of •» telegram or
letter sent to one person with intent ^ aj. ^r alarm any
other person, as well as the person to whom iu is sent.

Possession op Fokoed Bank Notes.

430« Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who, without lawful authority or excuse (the proof where-
of shall lie on him), purchases or receives from any person, or has in his
custody or possession, any forged bank note, or forged blank bank note,
whether complete or not, knowing it to be forged. R. S. C. c. 165, a. 19
(Amended). 24-25 V. o. 98, s. 13 (Imp.).

As to what constitutes a criminal possession seea.d.

Indictment. — The Jurors for Our Lady the Queen
present, that A. B. on unlawfully and without lawful

authority or excuse, had in his custody and possession five
forged bank notes for the payment of ten dollars each, the
said A. B. then well knowing the said several bank notes
and each and every of them respectively to be forged.

In R. V. Eowley, R. & R. 110, it was held that every
uttering included having in custody and possession, and,
by some of the judges, that without actual possession, if
the notes had been put in any place under the prisoner's
control, and by his direction, it was a sufficient possession
within the statute.

Upon the trial for an ofifence of purchasing forged notes
under this section the jury may, if the evidence warrants
it, under s. 711, convict the prisoner of an attempt to
<:ommit the same.

Drawing DocuMExxa per Procuration without Authority.

431. Every one is guilty of an indictable offence who, with intent to
defraud and without lawful authority or excuse, makes or executes, draws,
signs, accepts or endorses, in the name or on the account of another person, by
procuration or otherwise, any document, or makes use of or utters any such

1 i

I'V

624

FORGERY,

[Sac. 432

document knowing it to be so made, executed, signed, accepted or endorsed
and is liable to the same punishment as if he had forged such document
R. S. C. c. 165, 8. SO {Amended). 24-25 V. c. 98, s. 24 (Imp.).

Greaves says : " This clause is framed in order to
make persons punishable who, without authority, make,
accept or endorse bills " per procuration."

The words " any document " instead of the enumera-
tion contained in the repealed clause are an extension : see
R. V. Kay, 11 Cox, 529, L. R. 1 C. C. R. 257. "Docu-
ment " defined, s. 419 ; R. v. White, 1 Den. 208 cannot
now be followed.

Demanding Property upon Forged Instrchents.

43S* Every one is gruilty ol an indictable offence and liable to fourteen
years' mprisonment, who—

(a) demands, receives, obtains or causes, or procures to be delivered or
paid to any person, anything under, upon, or by virtue of any forged instru-
ment knowing the same to be forged, or under, upon, or by virtue of any
probate or letters of administration, knowing the will, codicil, or testamentary
writing on which such probate or letters of administration were obtained to be
forged, or knowing the probate or letters of administration to have been
obtained by any false oath, affirmation, or affidavit ; or

(b) attempts to do any such thing as aforesaid. R S. C. c. 165, a. 45.
24-25 V. c. 98, s. 38 (Imp.).

The words "with intent to defraud" were in the repealed
section.

Greaves says: " This clause is new. It is intended to
embrace every case of demanding, etc., any property
whatsoever upon forged instruments, and to include bring-
ing an action on any forged bill of exchange, note, or other
security for money. The words * procures to be delivered
or paid to any person ' were inserted to include cases where
one person by means of a forged instrument causes money
to be paid to another person, and to avoid the difficulty
which had arisen in the cases as to obtaining money by
false pretenses : R. v. Wavell, 1 Moo. 224 ; R. v. Garrett,
Dears. 232."

In R. V. Adams, 1 Den. 88, the prisoner had obtained
goods at a store with a forged order ; this was held not to
be larceny ; it would now fall under this clause.

Sees. 433, 434] INTERPRETATION OF TERMS.

525

The clause covers the attempt to commit the offence, as
^ell as the offence itself, and under s. 711, on anlindict-
ment for the offence, a verdict for the attempt to ^commit
it may be given if the evidence warrants it.

I '4'

III .1,
ill

le to fourteen

PART XXXII.

PREPARATION FOR FORGERY AND OFFENCES RESEMBLING

FORGERY.

Interpretation of Terms.

433. In this part the following expressions are used in the following
senses : —

(a) "Exchequer bill paper" means any paper provided by the proper
authority for the purpose of being used as exchequer bills, exchequer bonds,
notes, debentures, or other securities mentioned in section four hundred and
twenty ;

(b) " Revenue paper" means any paper provided by the proper authority
for the purpose of being used for stamps, licenses, or permits, or for any other
purpose connected with the public revenue.

Instruments of Forgery and Counterfeiting.

434> Every one is guilty of an indictable ofifence and liable to fourteen
years' imprisonment who, without lawful authority or excuse (the proof
whereof shall lie on him) —

(a) makes, begins to make, uses or knowingly has in his possession, any
machinery or Instrument or material for making exchequer bill paper, revenue
paper or paper intended to resemble the bill paper of any firm or body
corporate; or person carrying on the business of banking : R. S. C. o. 165,
ss. 14, 16, 20 & 24 ; or

(b) engraves, or makes upon any plate or material anything purporting
to be, or apparently intended to resemble, the whole or any part of any
exchequer bill or bank note : R. S. C. c. 165, ss. 20, 22 & 24 ; or

(c) uses any such plate or material for printing any part of any such
exchequer bill or bank note : R. S. C. c. 165, ss. 22 & 23 ; or

(d) knowingly has in his possession any such plate or material as afore-
said : R. S. C. c. 165, ss. 22 & 23 ; or

(e) makes, uses or knowingly haa in his possession any exchequer bill
paper, revenue paper, or any paper intended to resemble any bill paper of any
firm, body corporate, company, or person, carrying on the business of banking,

526

PREPARATION FOR FORGERY, ETC.

[S6C. 435

or any paper upon which ia written or printed the whole or any part of any
exchequer bill, or of any bank note : R. S, C. c. 105, bs. 15, 16, 20 &, 24.

(/) engraves or makes uixin any plate or material anything intended tu
resemble the whole or any distinguishing part of any bond or undertaking^ for
the payment of money used by any dominion, colony or possession of Her
Majesty, or by any foreign prince or state, or by any body corporate, or other
body of the like nature, whether within Her Majesty's dominions or without •
R. S. C. 0. 165, 8. 25 ; or

(g) uses any such plate or other material for printing the whole or any
part of such bond or imdertaking : R. S. C. c. 165, s. 25 ; or

(A) knowingly offers, disposes of, or has in his possession any paper ui on
which such bond or undertaking, or any part thereof, has been printt J •
R. S. 0. c, 165, s. 25 {Amended). 24-25 ,V, c. 98, ss. 9 & 10 (Imp.).

"Having in possession" defined, s. 3; see R. v. Bracken-
ridge, 11 Cox, 96 ; R. v. Keith, Dears. 486, and Greaves'
note on it in 2 Russ. 874 ; R. v. Warshaner, 1 Moo. 466 ;
R. V. Rinaldi, L. & C. 330. A verdict of attempt may be
given, if the evidence warrants it, s. 711. .

Counterfeiting Stamps.

435* Every one is guilty of an indictable offence and liable to fourtan
I/cars' imprisonment who —

(«) fraudulently counterfeits any stamp, whether impressed or adhesive,
used for the purposes of revenue by the Government of the United Kingdom
or of Canada, or by the Government of any province of Canada, or of any
possession or colony of Her Majesty, or by any foreign prince or state ; or

(6) knowingly sells or exposes for sale, or utters or uses any such counter-
feit stamp ; or

(c) without lawful excuse (the proof whereof shall lie on him) makes, or
has knowingly in his possession, any die or instrument capable of making the
impression of any such stamp as aforesaid, or any part thereof ; or

((/) fraudulently cuts, tears or in any way removes from any material any
such stamp, with intent that any use should be made of such stamp or of any
part thereof ; or

{e) fraudulently mutilates any such stamp with intent that any use
would be made of any part of such stamp ; or

(/) fraudulently fixes or places upon any material, or upon any such
stamp, as aforesaid, any stamp or part of a stamp which, whether fraudulently
or not, has been cut, torn, or in any other way removed from any other
material or out of or from any other stamp ; or

(g) fraudulently erases, or otherwise, either really rr apparently, removes,
from any stamped material any name, sum, date, oi other matter or thing
thereon written, with the intent that any use should be made of the stamp
upon such material ;

(A) knowingly and without lawful excuse (the proof whereof shall lie
upon him) has in his pos^session any stamp or part of a stamp which has been

li!

Sec. 435]

COUNTERFEITING STAMPS.

527

fraiuUilently out, torn, or otherwise removed from any material, or any stamp
v/hiuli has been frauduk'ntly mutilated, or any stamped material out of which
Any name, sum, date, or other matter or thing has been fraudulently erased or
otlierwise, either really or apparently, removed : R. S. C. o. 166, s. 17
(Amended.) 32-33 V. c. 49. 33-3-t V. c. 58 (Imp.); or

(i) without lawful authority makes or counterfeits any mark or brand
uaecl by the Government of the United Kingdom of Great Britain and
Ireland, the Government of Canada, or the Government of any province of
Canada, or by any department or officer of any such Government for any
purpose in connection with the service or business of such Government, or the
impression of any such mark or brand, or sells or exposes for sale or has in his
possession any goods having thereon a counterfeit of any such mark or brand
knowing the same to be a counterfeit, or affixes any such mark or brand to any
ffoals required by law to be marketl or branded other than those to which
jiich mark or brand was originally afiixed.

Sub-section (h) is an extension of the repealed statute.

Section 210, c. 32, R. S. C, as to counterfeiting custom-
house brands, etc., is unrepealed.

As to indictment see s. 622.

See R. S. C. c. 35, s. 86, as to forgery of postal stamps.

As to what constitutes a criminal possession see ante, a. 3.

See R. V. Collicott, R. & R. 212, and R. v. Field, 1
Leach, 383, and general remarks on forgery. The
words •' with intent to defraud " are not necessary in the
indictment since the statute does not contain them : R. v.
Asplin, 12 Cox, 391.

It was held, in R. v. Ogden, 6 C. & P. 631, under a
similar statute, that a fraudulent intent was not necessary,
but in a case of R. v. Allday, 8 C. »& P. 136, Lord Abinger
ruled the contrary : "The Act of Parliament, he said, does
Dot say that an intent to deceive or defraud is essential to
constitute this offence, but it is a serious question whether
a person doing this thing innocently, and intending to pay
the stamp duty, is liable to be transported. I am of
opinion, and I hope I shall not be found to be wrong, that
to constitute this offence there must be a guilty mind.
It is a maxim older than the law of England that a man
is not guilty unless his mind be guilty."

Lord Abinger, in R. v. Page, 8 C. & P. 122, held, upon
the same principle, that giving counterfeit coin in charity,
knowing it to be such, is not criminal, though in the statute

iiii

528

PREPARATION FOR FORGERY, ETC.

[Sec. 4&5

there are no words with respect to defrauding. But this is
overruled, as stated by Baron Alderson, in B. v. Ion, 2 Den.
476; and Greaves well remarks (on B. v. Page) : "As every
person is taken to intend the probable consequence of bis
act, and as the probable consequence of giving a piece of
bad money to a beggar is that that beggar will pass it to
some one else, and thereby defraud that person, qucere,
whether this case rests upon satisfactory grounds? In any
c&pfi a party may not be defrauded by taking base coin, as
he ^)iay pass it again, but still the probability is that he
vrill be defrauded, and that is sufficient: 1 Buss. 126,
note (z).

And are there not cases where a party, receiving a
■counterfeit coin or a false note, not only may not be
defrauded but will certainly not be defrauded. As for
example, suppose that during an election any one buys an
elector's vote, and pays it with e forged bill, — is the utter-
ing of this bill, with guilty knowlkdge, not criminal? Yet,
the whole bargain is a nullity; the bellor has no right to
sell; the buyer has no ri(,ht to buy; if he buys, and does
not pay, the seller has no legal or equitable claim against
him, though he may have fulfilled his part of the bargain.
If the buyer does not pay he does not defraud the seller ; he
-cannot defraud him, aince he does not owe him anything;
it, then, cannot be said that he defrauds him in giving him
in payment a forged note. Why see in this a fraud, and no
fraud in giving a counterfeit note, in charity, to a beggar ?
Nothing is due to this beggar, and he is not defrauded of
■anything by receiving this forged bill, nor is that elector,
who has sold his vote, defrauded of anything, since nothing
was due to him ; they are both deceived but not defrauded.
In the general remarks on forgery, ante, an opinion was
expressed that forgery would be better described as " a false
making with the intent to defraud or deceive." When the
statute makes no mention of the intention does it not make
the act prohibited a crime in itself, apart from the intention?
Of course, it is a maxim of law that " actus nonfacitreim

Sec. 436]

COUNTERFEITING STAMPS.

529

nisi mens sit rea " or as said in other words, by Starkie, 1
Cr. PI. 17"; that, ** to render a party criminally responsible,
a vicious will must concur with a wrongful act." " But,"
continues Starkie, "though it be universally true, that a man
cannot become a criminal uAless his mind be in fault, it is
not so general a rule that the guilty intention must be
averred upon the face of the indictment." And then, for
example, does not the man who forges a stamp, or, scienter,
utters it, do wilfully an unlawful act? Does not the law say
that this act, by itself, is criminal ? Has parliament not the
right to say : " The forging, false-making a stamp, or know-
ingly uttering it, is a felony, by itself, whether the person
who does it means wrong, or whether he means right, or
whether he means nothing at all?" And this is exactly
what it has said with regard to stamps, the Great Seal,
records of the courts of justice, etc. It has said of these :
" They shall be sacred, inviolable ; you shall not deface
them, imitate them, falsify, or alter them in any way or
manner whatsoever, and if you do, you will be a felon."
And to show that, as regards these documents, the intent.
to defraud was not to be a material element of the offence,
it has expressly, in all the other clauses of the statute,
where it did require this intent to make the act criminal,
inserted the words " with intent to defraud," and left them
out in these clauses. And no one would be prepared to say,
that the maxim, "la Jin jiistijie les vioyena," has found its
introduction into the English criminal law^ and that, for
instance, a clerk of a court of justice is not guilty of a
criminal act, if he alters a record, provided that the alter-
ation is done with a good intent, and to put the record as
k thinks it ought to be, and should, in fact, be. Is it liot
better to say that, in such cases, the guilty mind, the evil
intent, the mens rea, consist in the wilful disobedience to a
positive law, in the infraction of the enactments of the
legislative authority? (From 2nd Edit.).

As to intention and "mens rea," see 2 Steph. Hist. 110,
and cases under s. 14, p. 11 ante.

Cbim. Law— 34

■^*;*^

530

PREPARATION FOR FORGERY, ETC. [Sees. 436, 437

" What the law says shall not be done, it becomes
illegal to do, and is therefore the subject matter of an
indictment, without the addition of any corrupt motives":
R. V. Sainsbury, 4 T. R. 451. «

The definition in s. 422 of this Code does not make an
intent to defraud an ingredient of the oflfence : and, under it,
one who buys a vote with a forged bank bill is undoubtedly
guilty of forgery or of a criminal uttering : see R. v.
1 Cox, 260.

Destroying, Etc , Registers.

436- Every one is guilty of an indictable oflfence and liable to Jourteen
years' imprisonment, who

(a) unlawfully destroys, defaces or injures any register of births, baptisms
marriages, deaths or burials required or authorized by law to he kept in
Canada, or any part thereof, or any copy of such register, or any part thereof
required by law to be transmitted to any registrar or otlier officer ; or

{b) unlawfully inserts in any such register, or any such copy thereof, any
'entry, known by him to be false, of any matter relating to any birth, baptism,
marriage, death or burial, or erases from any such register or document any
material part thereof. R. S. C. c. 165, ss. 43 & 44 {Amended). 24-25 V. c. 98,
88. 36 & 37 (Imp.).

iSee next section.

Indictment. — that A. B., on at un-

lawfully did destroy, deface and injure a certain register of
wliich said register was then and there kept as the
register of marriages of the parish of and as such was

then and there in the lawful custody of : R. v. Bowen,

1 Den. 22 ; see R. v. Asplin, 12 Cox, 391; R. v. Mason, 2
C. & K. 622.

False Extracts from Registers.

4137. Every one is guilty of an indictable offence and liable to ten years
imprisonment, who —

{a) being a person authorized or required by law to give any certified copy
of any entry in any such register as in the laai preceding secticjii mentioned,
certifies any writing to be a true copy or extract, knowing it to be false, or
knowin^ ly utters any such certificate ;

(6) unlawfully and for any fraudulent purpose takes any such register or
certified copy from its place of deposit or conceals it ;

(c) being a person having the custody of any such register or certified copy,
permits it to be so taken or concealed as aforesaid. R. S. C. c. IG5, s. 44
{Amended). 24-25 V. c. 98, s. 37 (Imp.).

i to JouHem

lie to ten years

Sees. 438-440] UTTERING FALSE CERTIFICATES.
Uttering False Ckutificatks.

531

43S. Every one is guilty of an indictable offence and liable to seven
years' imprisonment, who—

(ft) being by law required to certify that any entry has been made in any
such register as in the two last preceding sections mentioned makes such
certificate knowing that such entry has not been made ; or

[h) being by law required to make a certificate or declaration concerning
any particular required for the purjiose of making entries in such register
knowingly makes such certificate or declaration containing a falsehood ; or

(r) being an officer having custody of the records of any court, or being
the deputy of any such officer, wilfully utters a false copy or certificate of any
record ; or

((/) not being such officer or dt']Hity fraudulently signs or certifies any
copy or certificate of any record, or any copy of any certificate, as if he were
such officer or deputy. R. S. C. c. 105, ss. 35 & 43 (Aimmled). 24-25 V. c. 98,
S3, 28 & 36 (Imp.).

See R V. Powner, VA Cox, 235.

The words " wilfully " appears onl}' in s-s. {c), and
"fraudulently" only in s-s. {d).

FouGiNG Certificates.

4!i9. Every one is guilty of an indictable offence and liable to two years'

imprisonment, who

(rt) being an officer required or authorized by law to make or issue any
certified copy of any document or of any extract from any document wilfully
certifies, iis a true copy of any document or of any extract from any such
document, any writing which he knows to be untrue in any material
])articiihir ; or

(h) not being such officer as aforesaid fraudulently signs or certifies any
coi)y of any document, or of any extract from any document, as if he were such
otticur. R. S. C. c. 105, s. 35 (Amended). 24-25 V. c. !)8, ss. 28 & 2!) (Imp.).

False Entries in Public Registers.

440. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who, witii intent to defraud —

(a) makes any untrue entry or any alteration in any book of account kept
by tlie (joveniment of Canada, or of any province of Canada, or by any bank
for any such (Jovernment, in which Ixxjks are kept the accounts of the owners
of any stock, annuity or other public fund transferable for the time being in
any sucli books, or who, in any manner, wilfully falsifies any of the said
books ; or

(')) makes any transfer of any share or interest of or in any stock, annuity
or public fund, transferable for the time being at any of the said banks, in
the name of any person other than the owner of such share or interest.
R. 8. C. c. 10.5, 8. 11 (Amended). 24-25 V. c. fJ8, s. 5 (Imp.).

my^

632

PREPARATION FOR FORGERY, ETC.

[See. 441

Indictment for making false entries of stock. — un-
lawfully did wilfully alter certain words and figures, that
is to say {here set out the words and figures, as they were.
hefore the alteration) in a certain book of account kept by
, in which said book the accounts of the owners of
certain stock, annuities and other public funds, to wit, the
(state the stock) which were then transferable at were

then kept and entered, by (6V'^ out the alteration and the
state of the account or item when so altered) with intent
thereby then to defraud.

Indictment for making a transfer of stock in the navie
of a person not the owner. — unlawfully did wilfully

make a transfer of a certain share and interest of and in
certain stock and annuities, which were then transferable
at the bank of , to wit, the share and interest of

in the (state the amount and nature of the stock), in

the name of one C. D., he the said C. D., not being then
the true and lawful owner of the said share and interest of
and in the said stock and annuities, or any part thereof,
with intent thereby then to defraud.

Where a bank clerk made certain false entries in the
bank books under his control, for the purpose of enabling
him to obtain the money of the bank improperly.

Held, that he was not guilty of forgery : R. v. Black-
stone, 4 Man. L. E. 296.

False Dividend Warrants.

441* Every one is guilty of <an indictable offence and liable to seven
years' imprisonment who, being in the employment of the Government of
Canada, or of any province of C mda, or of any bank in which any books of
account mentioned in the last preceding section are kept, witli intent to
defraud, makes out or delivers any dividend warrant, or any warrant for the
payment of any annuity, interest or money payable at any of the said banks,
for an amount greater or less than that to which the jjerson on whose account
such warrant is made out is entitled. R. S. C. c. 105, s. 12. 24-25 V. c. 98,
B. 6 (Imp.).

Indictment. — then being a clerk of and em-

ployed and intrusted by the said unlawfully did

knowingly make out and deliver to one J. N. a certain

lll"l'

Sees. 442, 443]

TRADE MARKS.

533

dividend warrant for a greater amount than the said J. N.
was then entitled to, to wit, for the sum of five hundred
dollars ; whereas, in truth and in fact, the said J. N. was
then entitled to the sum of one hundred dollars only, with
intent thereby then to defraud.

Circulars in Likeness of Notes.

442- Every one is guilty of an offence and liable, on summary convic-
tion before two justices of the peace, to a fine of one hundred dollars or three
months' imprisonment, or both, who designs, engraves, prints or in any
manner makes, executes, utters, issues, distributes, circulates or uses any
business or professional card, notice, placard, circular, hand-bill or advertise-
ment in the likeness or similitude of any bank note, or any obligation or
security of any Government or any bank. 53 V. c. 31, s. 3.

Summary conviction. — S. 3 of 63 V. c. 31 cited under
this section is the section enacting to what banks the
Banking Act applies. S. 63 is the one that ought to have
been cited.

,t"

'4i

PART XXXIII.

FORGERY OF TRADE MARKS-FRAUDULENT MARKING OF

MERCHANDISE.

443. In this part—

(a) The txpression " trade mark " means a trade mark or mdustrial design
registered in accordance with The Trade Mark and Desiijn Act and the regis-
tration whereof is in force under the provisions of the said Act, and includes
any trade mark which, either with or without registration, is protected by law
in any British possession or foreign state to which the provisions of section one
hundred and three of the Act of the United Kingdom, known as The Patents,
Designs, ami Trade Marks Act, 1883, are, in accordance with the provisions of
the said Act, for the time being applicable ;

(6) The expression "trade description " means any description, statement,
or ether indication, direct or indirect —

(i) as to the number, quantity, measure, gauge or weight of any

goods ;

(ii) as to the place or country in which any goods are made or

produced ;

11 ' -h

■;;1 i

534

FORGERY OF TRADE MARKS, ETC.

[See. 443

(iii) as to the mode of manufacturing or producing any goods ;
(iv) as to the material of which any goods are composed ;

(v) as to any goods being the subject of an existing patent, privilege
or copyright ;

And the use of any figure, word, or mark which, according to the custom
of the trade, is commonly taken to be an indication of any of the above
matters, is a trade description within the meaning of this part ;

(c) The expression "falsa trade description" means a trade description
which is false in a material respect as regards the goods to which it is applied,
and includes every alteration of a trade description, whether by way of
addition, effacement, or otherwise, where that alteration makes the descrip-
tion false in a material respect ; and the fact that a trade description is a trade
mark, or part of a trade mark, shall not prevent such trade description bein^
a false trade description within the meaning of this part ;

{(l) The expression " goods " means anything which is merchandise or the
subject of trade or n«.. •'ufacture ;

(e) The expression "covering" includes any stopper, cask, bottle, vsKsel,
box, cover, capsule, qase, frame or wrapper ; and the expression "label "
includes any band or ticket ;

(/) The expressions "person, manufacturer, dealer, or trader," and
" proprietor" include uuy body of persons corporate or unincorporate ;

{g) The expression "name " includes any abbreviation of a name.

2. The provisions of this part respecting the application of a false trade
description to goods extend to the application to goods of any such figures,
words or marks, or arrangement or combination thereof, wliether including a
trade mark or not, as are reasonably calculated to lead persons to believe that
the goods are the manufacture or merchandise of some person other than the
person whose numufacture or merchandise they really are.

3. The provisions of this part resiwcting the application of a false trade
description to goods, or respecting goods to which a false trade description is
applied, extend to the application to g(X)ds of any false name or initials of a
person, and to goods with the false name or initials of a person applied, in like
manner as if such name or initials wore a trade description, and tlie expression
" false name or initials " means, as applied to any goods, any name or initials
of a person which —

(a) are not a trade mark, or part of a trade mark ;

{h) are identical with, or a colourable imitation of, the name or initials of
a person carrying on business in connection with goods of the same description,
and not having authorized the use of such name or initials ;

(c) are either those of a fictitious person or of some person not bona fide
carrying on business in connection with such goods. 51 V. c. 41, s. 2. 25-20 V_
c, 88 (Imp.). ♦

This part is a re-enactment of 50 & 51 V. c. 28 (Imp.).
See Wood v. Burgess, 16 Cox, 729; Starcy v. The Chilworth
Mfg. Co., 17 Cox, 55 ; Budd v. Lucas, 17 Cox, 248. Ss. lo,

Sees. 444447] FORGERY OF TRADE MARKS, ETC.

535

16. 18, 22, 23 of 51 V. c. 41 (as amended in 1893) are unre-
pealed; sebed. 2. Limitation of 3 years for any offence
under Part XXXIIL, s. 551 : see s. 710 as to evidence.

44'4. Where a watch case has thereon any words or markn which
constitute, or are by common repute considered as constituting, a description
of the country in which the watch was made, and the watch bears no such
description, those words or marks shall prima facie be deemed to be a
description of that country within the meaning of this part, and the provision
of this part with respect to goods to which a false description has been applied,
and with respect to selling or exi)03ing, or having in possession, for sale, or any
purpose of trade or manufacture, goods with a false trade description, shall
apply accordingly; and for the purposes of this section the expression
"watch" means all that portion of a watch which is not the watch case.
51 V. c. 41, s. 11.

445. Every one is deemed to forge a trade mark who either —

(a) without the assent of the proprietor of the trade mark makes that
trade mark or a mark so nearly resembling it as to be calculated to deceive ; or

(b) falsifies any genuine trade mark, whether by alteration, addition,
effacement or otherwise.

2. And any trade mark or mark so made or falsified is, in this part,
referred to as a forged trade mark. 51 V. c. 41, s. 3.

446. Every one is deemed to apply a trade mark, or mark, or trade
description to goods who —

(a) applies it to the goods themselves ; or

[b] applies it to any covering, label, reel, or other thing in or with which
the goods are sold or exposed or had in possession for any purpose of sale,
trade or manufacture ; or

(f) places, incloses or annexes any goods which are sold or exposed or had!
in possession for any purpose of sale, trade or manufacture in, with or to any
covering, label, reel, or other thing to which a trade mark or trade description
hiis been applied ; or

[d] uses a trade mark or mark or trade description in any manner calcu-
lated to lead to the belief that the goods in connection with which it is used are-
designated or described by that trade mark or mark or trade description.

2. A trade mark or mark or tnwle description is deemed to be applied
whether it is woven, impressed or otherwise worked into, or annexed or affixed
to, the goods, or to any covering, label, reel or other thing.

3. Every one is deemed to falsely apply to goods a trade mark or mark
who, without the assent of the proprietor of the trade mark, applies such trade
mark, or a mark so nearly resembling it as to bo calculated to deceive.
51 V. c. 41, s. 4.

447. Every one is guilty of an indictable offence who, with intent to

defraud-
In) forges any trade mark : or

■:S

. ■; f

536

FORGERY OF TRADE MARKS, ETC. [Sees. 448-450

(6) falsely applies to any goods any trade mark, or any mark so nearly
resembling a trade mark as to be calculated to deceive ; or

(c) makes any die, block, machine or other instrument, for the purpose of
orging) or being used for forging, a trade mark ; or

(d) applies any false trade description to goods ; or

(e) disposes of, or has in his possession, any die, block, machine or other
nstrument, for the purpose of forging a trade mark ; or

(/) causes any of such things to be done. 51 V. c. 41, s. 6.

Punishment, under s. 450.

Indictment. — that A. B. on with intent

to defraud unlawfully did forge a certain trade mark, to
wit [or unlawfully did falsely apply to certain goods

to wit) (any goods) a certain trade mark to wit

{or a mark so nearly resembling a certain trade mark, to
wit) as to be calculated to deceive. {Add a count charg-
ing " did cause to he forged or, falsely applied)" [m
the case may he).

44:§« Every one is guilty of an indictable offence who sells or exposes, or
has in his possf'sion, for sale, or any purpose of trade or manufacture, any
goods or things to which any forged trade mark or false trade description is
applied, or to which any trade mark, or mark so nearly resembling a trade
mark as to be calculated to deceive, is falsely applied, as the case may be,
unless he proves—

(a) that having taken all reasonable precaution against committing such
an offence he had, at the time of the commission of the alleged offence, no
reason to suspect the genuineness of the trade mark, mark or trade description ;
and

(b) that on demand made by or on behalf of the prosecutor he gave all the
information in hi» power with respect to the persons from whom he obtained
such goods or things ; and

Punishment under s. 450.

440« Every one is guilty of an indictable offence who sells, or exposes
or offers for sale, or traffics in, bottles marked with a trade mark, blown or
stamped or otherwise permanently affixed thereon, without the assent of the
proprietor of such trade mark. 51 V. c. 41, s. 7.

Punishment under s. 450.

4<S0« Every one guilty of any offence defined in this partis liable-
la) on conviction on indictment to two years' imprisonment, with or with-
out hard labour, or to fine, or to both imprisonment and fine ; and

{b) on summary conviction, to four months' imprisonment, with or
without hard labour, or to a fine not exceeding one hundred dollars ; and in

Sees. 451-454] FORGERY OF TRADE MARKS, ETC.

537

hine or other

case of a second or subsequent conviction to six months' imprisonment, wither

without hard labour, or to a fine not exceeding two hundred and fifty dollars.

2. In any case every chattel, article, instrument or thing, by means of, or

in relation to which, the offence has been committed shall be forfeited. 51 V.

c. 11, s. 8,

451> Every one is guilty of an offence and liable, on summary conviction,
to a penalty not exceeding one hundred dollars who falsely represents that any
goods are made by a person holding a royal warrant, or for the service of Her
Majesty or any of the royal family, or any Government department of the
United Kingdom or of Canada. 51 V. c. 41, s. 21.

45!3« Every one is guilty of an offence and liable, on summary conviction,
to a penalty of not more than five hundred dollars nor less than two hundred
dollars who imports or attempts to import any goods which, if sold, would be
forfeited under the provisions of this part, or any goods manufactured in any
foreign state or country which bear any name or trade mark which is or
purports to be the name or trade mark of any manufacturer, dealer or trader
in the United Kingdom or in Canada, unless such name or trade mark is
accompanied by a definite indication of the foreign state or country in which
the goods were made or produced ; and such goods shall be forfeited. 51 V.
c. 41, s. 22.

453< Any one who is charged with making any die, block, machine or
other instrument for the purpose of forging, or being used for forging, a trade
mark, or with falsely applying to goods any trade mark, or any mark so
nearly resembling a trade mark as to be calculated to deceive, or with apply-
ing to goods any false trade description, or causing any of the things in this
section mentioned to be done, and proves—

(a) that in the ordinary course of his business he is employed, on behalf
of other peisons, to make dies, blocks, machines or other instruments for
making or being used in making trade marks, or, as the case may be, to apply
marks or descriptions to goods, and that in the case which is the subject of
the charge he was so employed by some person resident in Canada, and was
not interested in the goods by way of pr jfit or commission dependent on the
sale of such goods ; and

(b) that he took reasonable precaution against committing the offence
charged ; and

(c) that he had, at the time of the commission of the alleged offence, no
reason to suspect the genuineness of the trade mark, mark or trade descrip-
tion ; and

(d) that he gave to the prosecutor all the information in his power with
respect to the person by or on whose behalf the trade mark, mark or descrip-
tion was applied ; —

Shall be discharged from the prosecution, but is liable to pay the costs
incurred by the prosecutor, unless he has given due notice to him that he will
rely on the above defence. 51 V. c. 41, s. 5.

454. No servant of a master, resident in Canada, who bo.ia fide acts in
obedience to the instructions of such master, and, on demand made by or on

538

PERSONATION.

[Sees. 455-457

behalf of the prosecutor, gives full information as to his master, is liable to any
prosecution or punishment for any offence defined in this part. 61 V. c. 41
8. 20.

49S The provisions of this part with respect to false trade descriptions
do not apply to any trade description which, on the 22nd day of May, 1888
was lawfully and generally applied to goods of a particular class, or manufac-
tured by a particular method, to indicate the particular class or method of
manufacture of such goods : Provided, that where such trade description
includes the name of a place or country, and is calculated to mislead as to the
place or country where 1 he goods to which it is applied were actually made or
produced, and the goody are not actually made or prrniuced in that place or
country, such provisions shall apply unless there is added to the tradu de-
scription, immediately before or after the name of that place or country, in an
equally conspicuous manner with that name, the name of the place or country
in which the goods were actually made or produced, with a statement that
they were made or produced tliere. 51 V. o. 41, s. 19.

PART XXXIV.

PERSONATION. {New).

4S0< Every one is guilty of an indictable offence, and liable to fourteen
years' imprisonment who, with intent fraudulently to obtain any proi)erty,
personates any person, living or liewt, or administrator, wife, widow, next of
kir or relation of any person. 37-38 V. c. 3() (Imp.).

"Property" defined, a. 3.

Indictment. — unlawfully, falsely, and deceitfully

did personate one J. N. with intent fraudulently to obtain

• • • •

See 2 Rush. 1011 : R. v. Martin and R. v. Cramp.
R. & R. 324, 327.

Peksonation at Examinations. {New).

45T. Every one is guilty of an indictable oilcnce, and liable on indict-
ment or summary conviction to one year's imprisonment, or to a fine of diie
hundred dollars, who falnely, with intent to gain some advantage for himself
or some otlier person, jiersonates a candidate at any competitive or fiualifying
examination, held under the authority of any law or statute or in connection
with any university or Wtllege, or who procures himself or any other iR'rson to
be personated at any such examination, or who knowingly avails liiinself of the
results of such personation .

See under next section.

Sec. 458] PERSONATING OWNERS OF STOCK.

Persohatino Ownbrs op Stock.

539

45S« Every one i8 guilty of an indictable offence and liable to fourteen
years' imprisonment who falsely and deceitfully personates —

(a) any owner of any share or interest of or in any stock, annuity, or
other public fund transferable in any book of account kept by the Government
of Canada or of any province thereof, or by any bank for any such Govern-
ment ; or

(b) any owner of any share or interest of or in the debt of any publio
body, or of or in the debt or capital stock of any body corporate, company, or
society ; or

(o) any owner of any dividend, coupon, certificate or money payable in
respect of any such share or interest as aforesaid ; or

(rf) any owner of any share or interest in any claim for a grant of land
from the Crown, or for any scrip or other payment or allowance in lieu of such
grant of land ; or

(() any person duly authorized by any power of attorney to transfer any
such share, or interest, or to receive any dividend, coupon, certificate or money,
on bfhalf of the person entitled thereto —

and thereby transfers or endeavours to transfer any share or interest
belonging to such owner, or thereby obtains or endeavours to obtain, as if ho
were the true and lawful owner or were the person so authorized by such power
of attorney, any money due to any such owner or payable to the person so
authorizwl, or any certificate, couiwn, or share warrant, grant of land, or
scrip, or allowance in lieti thereof, or other document which, by any law in
forte, or any usage existing at the time, is deliverable to the owner of any
such stock or fund, or to the person authorized by any such power of attorney.
R, S. C' c. 1G5, ss. 0 & 10 {Ame^uled). 24-25 V. c. 98, ss. 3 & 4 (Imp. ), and 33-84 V.
c. 58 (Imp.).

Indictment. — unlawfully did, falsely and deceit-

fully personate one J. N., the said J. N. then being the
owner of a certain share and interest in certain stock and
annuities, which were, then transferable at the bank of
, to viit, {state the amount and nature of the stock;)
and that the said A. B. thereby did then transfer the said
share and interest of the said J. N. in the said stock
annuities, as if he, the said A. B., were then the true and
lawful owner thereof.

Upon the trial of any indictment for any oflfence under
this section the jury may, if the evidence warrants it,,
under s. 711, convict the prisoner of an attempt to commit

the same.

,»'.'

:l{

540

ACKNOWLEDGING INSTRUMENT.

[Sec. 459

ACKNOWLEDQINO INSTRUMENT IN FALSE NAME.

4ft0- Every one is guilty of an indictable offence and liable to seven
years' imprisonment w ho, without lawful authority or excuse (the proof of
which shall lie on him) acknowledges, in the name of any other person, befuru
any court, judge or other person lawfully authorized in that behalf, any
recognizance of bail, or any cognovit actionem, or consent for judifiiicnt, or
judgment or any deed or other instrument. R. S. C. c. 165, s. 41 (Avunddl],
24-25 V. c. 98, s. 34 (Imp. ).

Indictment. — on did without lawful authority

or excuse, before {the said then being lawfally

authorized in that behalf) unlawfully acknowledge fraudu-
lently a certain recognizance of bail in the name of
in a certain cause then pending in wherein A. B. was

plaintiff and C. D. defendant.

8ec8. 460, 461] OFFENCES RELATING TO THE COIN.

541

PART XXXV.

OFFENCES RELATING TO THE COIN.

Sections 26, 29, 30, 31, 32, 33 d: 34 ofc. 167, R. S. C, are unrepealed. Sections
092, 718 <fc 721 pott apply to offences against this part,

400- In this part, unless the context otherwise requires, the following
words and expressions are used in the following senses : —

((() "Current gold or silver coin," includes any gold or silver coin coined
in any of Her Majesty's mints, or gold or silver coin of any foreign prince or
state or country, or other coin lawfully current, by virtue of any proclamation
or otherwise, in any part of Her Majesty's dominions.

(li) "Current copixsr coin," includes copper coin coined in any of Her
Majesty's mints, or lawfully current, by virtue of any proclamation or other-
wise, in any part of Her Majesty's dominions.

[d) " Counterfeit " means false, not genume.

(i) Any genuine coin prepared or altered so as to resemble or pass for
any current coin of a higher denomination is a counterfeit coin.

(ii) A coin fraudulently filed or cut at the edges so as to remove the

milling, and on which a new milling has been added to restore the

appearance of the coin, is a counterfeit coin.

[(■) "Gild" and "silver," as applied to coin, include casing with gold or
silver respectively, and washing and colouring by any means whatsoever with
any wash or materials capable of producing the appearance of gold or silver
respectively.

(/) "Utter" includes "tender" and "put off." R. S. C. c. 167, s. 1.
24-25 V. c. 9'J, 8. 1 (Imp.).

When Offence Complete.

461. Every offence of making any counterfeit coin, or of buying,
Relling, receiving, paying, tendering, uttering, or putting off, or of offering to
buy, sell, receive, pay, utter or put off, any counterfeit coin is deemed to be
complete, although the coin so made or counterfeite(^ or bought, sold, received,
paid, tendered, uttered or put off, or offered to be bought, sold, received, paid,
tendered, uttered or put off, was not in a fit state to be uttered, or the counter-
feiting thereof was not finished or perfected. R. S. C. c. 167, 8. 27. 24-25 V.
C.99, 8. 30 (Imp.).

The word in italic is not in the Imperial Act. See R.
V. Bradford 2 C. & D. 41.

542

OFFENCES RELATING TO THE COIN.

[Hec. 4(J2

COUNTRRKKITINO CoiNS, EtC.

469* Every one iu guilty of an indictable offence and liable to iniprisdn.
ment for life who —

(rt) makes or bt^gins to make any counterfeit coin rest'mblinjf, „,.
apparently intended to resemble or pass for, any current gold or NiKer
coin ; or

{b) gilds or silvers any coin resembling or apparently intended to resemUc
or pass for, any current gold or silver coin ; or

(c) gilds or silvers any piece of silver or wjpiier, or of coarse gold or coarse
silver, or of any metal or mixture of metals respectively, being of a fit hIz,* and
figure to be coined, and with intent that the ■lame shall be coined into countir-
feit coin resembling, or apparently intended to resemble or pass for, am
current gold or silver coin ; or

((/) gilds any current silver coin, or files or in any manner alters such coin
with intent to make the same resemble or pass for any current gold coin • or

{e) gilds or silvers any current copper coin, or files or in any manner
alters such coin, with intent to make the same resemble or pass for any current
gold or silver coin. R. S. C. c. 107, ss. 3 & 4. 24-25 V. c. 'M, ss. 2 & 3 (Im|).i.

Indictment. — that J. S., on ten pieces of

false and counterfeit coin, each piece thereof resembliuf
and apparently intended to resemble and pass for a piece
of current gold coin, called a sovereign, falsely and unlaw-
fully did make and counterfeit.

It is rarely the case that the counterfeiting can be proved
directly by positive evidence ; it is usually made out by
circumstantial evidence, such as finding the npcessary
coining tools in the defendant's house, together with some
pieces of the counterfeit money in a finished, some in an
unfinished state, or such other circumstances as may fairly
warrant the jury in presuming thai the defendant either
counterfeited or caused to be counterfeited, or was present
aiding and abetting in counterfeiting the coin in question.
Before the modern statutes which reduced the offence of
coining from treason to felony, if several conspired 'to coun-
terfeit the Queen's <coin, and one of them actually did so in
pursuance of the conspiracy, it was treason in all, and ther
might all have been indicted for counterfeiting the Queen's
coin generally : 1 Hale, 214 ; they may, likewise, now all
foe indicted as principals under s. 61 ante.

sec.

»C2]

COUNTERFEITING COINS, ETC.

543

i to iinprisiin-

2d to resemble

\ variance between the indictment and the evidence iq
the number of the pieces of coin, alleged to be counter-
feited, is immaterial; but a variance as to the denomination
of such coin, as guineas, sovereigns, shillings, would be
fatal, unless amended. By the old law the counterfeit
coin produced in evidence must have appeared to have
that degree of reijemblance to the real coin that it would be
likely to be received as the coin for which it was intended
to pass by persons using the caution customary in taking
money. In R. v. Varley, 1 East, P. C. 164, the defendant
liad counterfeited the semblance of a half-guinea upon a
piece of gold previously hammered, but it was not round,
nor would it pass in the condition in which it then was,
and the judges held that the offence was incomplete. So,
in R. V. Harris, 1 Leach, 135, where the defendants were
taken in the very act of coining shillings, but the shillings
coined by them were taken in an imperfect state, it being
requisite that they should undergo another process, namely
immersion in diluted aqua fortia, before they could pass as
shillings, the judges held that the offence was incomplete ;
but now by s. 461 the offence of counterfeiting shall be
deemed complete although the coin made or counterfeited
shall not be in a fit state to be uttered, or the counterfeit-
ing thereof shall not be finished or perfected.

Any credible witness may prove the coin to be counter-
feit, and it is not necessary for this purpose to produce any
moneyer or other officer from the mint : s. 692. If it
become a question whether the coin, which the counterfeit
money was intended to imitate, be current coin, it is not
necessary to produce the proclamation to prove its legiiima-
tion ; it is a mere question of fact to be left to the jury
upon evidence of usage, reputation, etc. : 1 Hale, 196, 212,
213. It is not necessary to prove that the counterfeit coin
was uttered or attempted to be uttered : R. v. Robinson,
10 Cox, 107 ; R. v. Connell, 1 C. & K. 190 ; R. v. Byrne,
6 Cox, 475.

i'l

■>'.','

544

OFFENCES RELATING TO THE COIN.

[Sec. 463

By s. 711, if upon the trial it appears that the defendant
did not complete the o£fence charged, but was only guilty
of an attempt to commit the same, a verdict may be given
of guilty of the attempt.

Dealing in, Impobtino Counterfeit Coin.

463. Every one is guilty of an indictable offence and liable to imprison-
ment for life who, without lawful authority or excuse the oroof whereof shall
lie on him —

(a) buys, sells, receives, pays or puts ofiF, or offers to buy, sell, receive, pay
or put off, at or for a lower rate or value than the same imports, or was
apparently intended to import, any counterfeit coin resembling or apparently
intended to resemble or pass for any current gold or silver com ; or

(6) imports or receives into Canada any counterfeit coin resembling or
apparently intended to resemble or pass for, any current gold or silver coin
knowing the same to be counterfeit. R. S. C. c. 167, ss. 7 & 8. 24-25 V.
c. 99, ss. 6&7(lmp.).

Indictment under (a). — ten pieces of counterfeit

coin, each piece thereof resembling a piece of the current
gold coin, called a sovereign, falsely, deceitfully and unlaw-
fully, and without lawful authority or excuse did put off to
one J. N. at and for a lower rate and value than the same
did then import.

Prove that the defendant put off the counterfeit coin as
mentioned in the indictment. In E. v. Wooldridge, 1 Leach,
807, it was holden that the putting off must be complete
and accepted. But the words "offer to buy, sell," etc.,
in the above clause would now make the acceptation
immaterial.

If the names of the persons to whom the money was
put off can be ascertained, they ought to be mentioned and
laid severally in the indictment ; but if they cannot be
ascertained the same rule will apply which prevails in the
case of stealing the property of persons unknown : 1 Russ.
136.

Indictment under (h). — ten thousand pieces of

counterfeit coin, each piece thereof resembling a piece of
the current silver coin called a shilling, falsely, deceitfully
and unlawfully, and without lawful authority or excuse, did

Sees. 464-46G]

COPPER COIN.

545

import into Canada, — he the said J. S. at the said time
when he so imported the said pieces of counterfeit coin,
vvell knowing the uame to be counterfeit.

The guilty knowledge of the defendant must be averred
io the indictment and proved.

Copper Coin.

404. Every one who manufactures in Canada any copper coin, or
imports into Canada any copper coin, other than current copper coin, with the
intention of putting the same into circulation as current copper coin, is Ruilty
of an offence and liable, on summary conviction, to a penalty not exceeding
twenty dollars for every pound Troy of the weiprht thereof ; and all such
copi)er com so manufactured or imported shall be forfeited to Her Majesty.
R. S. C. 0. 167, s. 28.

The repealed section said copper " or brass " coin.

Exportation.

M!i, Every one is guilty of an indictable offence and liable to tivo years'
imprisonment who, without lawful authority or excuse the proof whereof shall
lie on him, exports or puts on board any ship, vessel or boat, or on any railway
or mrriaiie or vehicle of any description whatsoever, for the purpose of being
exixirted from Canada, any counterfeit coin resembling or apparently intended
to resemble or pass for any current coin or for any foreign coin of any prince,
countrii or state, knowing the same to be counterfeit. R. S. C. o. 167, s. 9.
24-25 V. 0. m), s. 8 (Imp.),

Fine, s. 958.

The words in italics are not in the Imperial Act.

The clause covers the attempt to export in certain cases.
Sections 529 & 711 would cover other cases of attempts.

Indictment. — one hundred pieces of counter-

feit coin, each piece thereof resembling a piece of the
current coin calitd a sovereign, falsely, deceitfully
and unlawfully, without lawful authority or excuse, did
export from Canada, he the said C. D. at the time when he
so exported the said pieces of counterfeit coin, then well
knowing the same to be counterfeit.

Making Instruments for Coining.

466. Every one is guilty of an indictable offence and liable to imprison-
ment for life who, without lawful authority or excuse the proof whereof shall
lie on him, makes or mends, or bf gins or proceeds to make or mend, or buys or
sells, or has in his custotly or possession —
CiiiM. Law — 35

'%:

,1 , ■

!' i'

546

OFFENCES RELATING TO THE COIN.

[Sec. m

(a) any puncheon, counter puncheon, matrix, stamp, die, pattern or
mould, in or upon which there is made or impressed, or which will make or
impress, or which is adapted and intended to make or impress, the figure
stamp or apparent resemblance of both or either of the sides of any current
gold or silver coin, or of any coin of any foreign prince, state or country, or any
part or parts of both or either of such sides ; or

(6) any edger, edging or other tool, collar, instrument or engine adapted
and intended for the marking of coin round the edges with letters, grainings or
other marks or figures apparently resembling those on the edges of any such
coin, knowing the same to be so adapted and intended ; or

(c) any press for coinage, or any cutting engine for cutting, by force of a
screw or of any other contrivance, round blanks out of gold, silver or other
metal or mixture of metals, or any other machine, knowing such press to be a
press for coinage, or knowing such engine or machine to have been used or to
be intended to be used for or in order to the false making or counterfeiting of
any such coin. R. S. C. c. 1C7, s. 24. 24-25 V. c. 99, s. 24 (Imp.).

Indictment for making a puncheon for coining. —
one puncheon, in and upon which there was then made and
impressed the figure of one of the sides, that is to say, the
head side of a piece of the current silver coin, commonly
called a shilling, knowingly, falsely, deceitfully and unlaw-
fully, and without lawful authority or excuse, did make.

Prove that the defendant made a puncheon, as stated in
the indictment ; and prove that the instrument in question
is a puncheon included in the statute. The words ia the
statute " upon which there is made or impressed " apply to
the puncheon which being convex bears upon it the figure
of the coin ; and the words " which will make or impress"
apply to the counter puncheon, which being concave will
make and impress. However, although it is more accurate
to describe the instruments according to their actual use,
they may be described either way : R. v. Lennard, 1 Leach,
90. It is not necessary that the instrument should be
capable of making an impression of the whole of one side
of the coin, for the words *' or any part or parts " are intro-
duced into this statute, and, consequently the diflBcultyin
R. v. Sutton, 2 Str. 1074, where the instrument was capable
of making the sceptre only cannot now occur : see £. v.
Heath, R. & R. 184.

'H'i

Sec. 466] MAKING INSTRUMENTS FOR COINING.

547

And on an indictment for making a mould " intended
to make and impress the figure and apparent resemblance
of the obverse side " of a shilling, it is sufficient to prove
that the prisoner made the mould and a part of the
impression, though he bad not completed the entire im-
pression : E. V. Foster, 7 G. & F. 495. It is not necessary
to prove under this branch of the statute the intent of the
defendant : the mere similitude is treated by the Legis-
lature as evidence of the intent ; neither is it essential to
show that money was actually made with the instrument
in question : E. v. Eidgeley, 1 East, P. C. 171. The proof
of lawful authority or excuse, if any, lies on the defendant.
Where the defendant employed a die sinker to make, for a
pretended innocent purpose, a die calculated to make
shillings; and the die-sinker, suspecting fraud, informed
the authorities at the mint, and under their directions
made the die for the purpose of detecting prisoner; it was
held that the die-sinker was an innocent agent and the
defendant was rightly convicted as a principal: E. v.
Banuen, 2 Moo. 809.

The making and procunn*; dies and other materials, with
intent to use them in coining Peruvian half-dollars in
England, not in order to utter them here, but by way of
trying whether the apparatus would answer, before sending
it out to Peru, to be there used in making the counterfeit
coin for circulation in that country, was held to be an
indictable misdemeanour at common law: E. v. Eoberts,
Dears. 589; 1 Euss. 100. A galvanic battery is a machine
within the section : E. v. Gover, 9 Cox, 282.

Indictment for having a puncheon in possession. —
one puncheon in and upon which there was then made and
impressed the figure of one of the sides, that is to say, the
bead side of a piece of the current silver coin commonly
called a shilling, knowingly, falsely, deceitfully and unlaw-
fully, and without lawful authority or excuse, had in his
custody and possession.

'i'v

.ill:!.'

548

OFFENCES RELATING TO THE COIN.

[Sec. m;

An indictment which charged that the defendant feloni-
ously had in his possession a mould " upon which said
mould was made and impressed the figure and apparent
resemblance " of the obverse side of a sixpence, was held
bad on demurrer, as not sufficiently showing that the
impression was on the mould at the time when he had it in
his possession : E. v. Bichmond, 1 C. & K. 240.

As to evidence of possession see s. 3, ante; R. v. Rogers
2 Moo. 85. The prisoner had occupied a house for about a
month before the police entered it, and found two men and
two women there, one of whom was the wife of the prisoner.
The men attacked the police, and the women threw some-
thing into the fire. The police succeeded, however, in
preserving part of what the women threw away, which
proved to be fragments of a plaster-of- Paris mould of a half-
crown. The prisoner came in shortly afterwards, and, on
searching the house, a quantity of plaster-of-Paris was
found up-stairs. An iron ladle and some fragments of
plaster-of-Paris moulds were also found. It was proved
that the prisoner, thirteen days before the day in question,
had passed a bad half-crown, but there was no evidence that
it had been made in the mould found by the police. He was
afterwards tried and convicted for uttering the base half-
crown. It was held that there was sufficient evidence to
justify the conviction, and that, on a trial for felony, other
substantive felonies which have a tendency to establish the
scienter of the defendant may be proved for that purpose :
R. V. Weeks, L. & C. 18. In R. v. Harvey, 11 Cox, 662, it
was held: 1. That an indictment under this section is
sufficient if it charges possession without lawful excuse, as
excuse would include authority; 2. That the words "the
proof whereof shall lie on the accused" only shift the
burden of proof, and do not alter the character of the
o£fencti; 8. That the fact that the Mint authorities, upon
informrtion forwarded to them, gave authority to the die
maker to make the die, and that the police gave permission

Sees. 467, 468]

INSTRUMENTS, ETC.

to him to give the die to the prisoner, who ordered him to
make it, did not constitute lawful authority or excuse for
prisoner's possession of the die ; 4. That, to complete the
offence, a felonious intent is not necessary ; and, upon a
case reserved, the conviction was affirmed.

Indictfiient for making a collar. — onf collar

adapted and intended for the marking of coin round the
edges with grainings apparently resembling those on the
edges of a piece of the current gold coin called a sovereign,
falsely, deceitfully and unlawfully, without lawful authority
or excuse, did make, he the said J. S. then well knowing
the same to be so adapted and intended as aforesaid.

It must be proved, upon this indictment that the defend-
ant knew the instrument to be adapted and intended for
the marking of coin round the edges.

It must be remarked that the said clause expressly
applies to tools for marking foreign coin, as well as current

com.

BRIXGINQ iNSTRUSrEXTS INTO CANADA.

467. Every one is guilty of an indictable otfence and liable to imprison-
ment cir life who, without lawful authority or excuse the proof whereiif shall
lie on him, knowingly conveys out of any of Her Majesty's mints into Canada,
any ijuncheon, counter puncheon, matrix, stamp, die, pattern, mould, edger,
i.^dging or other tool, collar, instrument, i)ress or engine, usetl or employed in
ur about the coining of coin, or any "■^eful part of any of the several articles
aforesaid, or any coin, bullion, met..; or mixture of metals. R. S. C. c. 167,
s. 25. 24-25 V. c. 99, s. 25 (Imp. ).

Clipping Current Gold ok Silver Coin.

408. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who impairs, diminishes ur lightens any current gold or
sihercoin with intent that the coin so impaired, diminished, or lightened may
pass for current gold or silver coin. R. S. C. c. 167, s. 5. 24-25 V. c. 99,

s.4(Iiup.).

Indictmetit. — ten pieces of current gold coin,

called sovereignK, falsely, deceitfully and unlawfully did
impair, with intent that each of the ten pieces so impaired
might pass for a piece of current gold coin, called a sove-
reign.

liiii:'

"I',

Ml- .

I I

580

OFFENCES RELATING TO THE COIN. [Sees. 469, 470

The act of impairing must be shown, either by direct
evidence of persons who saw the prisoner engaged in it, or
by presumptive evidence, such as the possession of filings
and of impaired coin, or of instruments for filing, etc. The
intent to pass off the impaired coin must then appear. This
may be done by showing that the prisoner attempted io
pass the coin so impaired, or that he carried it about his
person, which would raise a presumption that be intended
to pass it. And if the coin were not so defaced by the
process by impairing, as apparently to affect its currency,
J would, under the circumstances, without further evidence,
be a question for the jury, whether the diminished coin was
intended to be passed : Roscoe on Coining, 19.

Defacing Current Coin.

'^<ftO« Every one is guilty of an indictable offence and liable to one year's
iii'.ptrisonment who defaces any current gold, silver or copper cuiii by stamping
thereon any names or words, whether such coin is or is not thereby diminislie 1
or lightened, and afterwards tenders the same. R. S. C. c. 167, s. 17,
24-25 V. c. 99, a. 16 (Imp.).

Fine, s. 958.

Indictment for defacing coin. — one piece of

the current silver coin, called a half-crown, unlawfully
did deface, by then stamping thereon certain names and
words, to wit ....

Prove that the defendant defaced the coin in question,

by stamping on it any names or words, or both. It is not

necessary to prove that the coin was thereby diminished or

lightened.

Posse -ss'o C. •pings. Etc.

470. Every one is guilty of an indictable oiTence and liable to seven
years' imprisonment who unl. a fully has in his « .itody or iwssessiou any
filings or clippings, or any golu ^r silver bullion, or any gold or silver in dust,
solution or otherwise, which have b(*en produced or obtained by impairing,
diminishing or lightening any current gold or silver coin, knowing the same
to have been .so produced or obtained. R. S. C. c. 167, s. 6. 24-25 V. c. Hit,
«. 5 (Imp.).

" Hav ng in possession " defined, s. 3.
Greavts remarks: "This clause is new. It has fre-
quently happened that filings and clippings, and gold dust

Sees. 471, 472] POSSESSING COUNTERFEIT COIN.

551

have been found under such circumstances as to leave no

doubt that they were produced by impairing coin but there

has been no evidence to prove that any particular coin had

been impaired. This clause is intended to meet such

cases."

Possessing Counterfeit Coin.

47 i* Every one is guilty of an indictable offence and liable to three
years' imprisonment who has in his custody or possession, knowing the same
to be counterfeit, and with intent to utter the same or any of them —

(a) any counterfeit coin resembling, or apparently intended to resemble
nr pass for, any current gold or silver coin ; or

(h) three or more pieces of counterfeit coin resembling, or apparently
intended to resemble or pass for, any current copper coin. R. S. C. c. 167,
ss. 12 & 10. 24-25 V. c. 99, ss. 11 & 15 (Imp. ).

"Having in possession " defined, s. 3.
Fine, s. 958. Search warrant, s. 569.

The punishment under {h) was only one year by^ the
repealed Act.

Indictment for having in 'possession counterfeit gold or
siker coin with intent, etc. unlawfully, falsely and

deceitfully had in his custody and possession four pieces of
counterfeit coin, resembling the current silver coin calleci
with intent to, utter the said pieces of counterfeit
coiu, he the said J. S. then well knowing the said pieces of
counterfeit coin to be counterfeit.

See R. v. Hermann, 4 Q. B. D. 284, 14 Cox, 279,
Warb. Lead. Cas. 77.

Offences Respectin( Copper Coin.

'ITS* Every one is guilty of an indictable offence and li.able to three
ijfar.i' imprisonment who —

(a) makes, or begins to make, any counterfeit coin resembling, or
.ijiparently intended to resemble or pass for any current copper coin ; or

(h) without lawful authority or excuse, the proof of which shall lie on
him, knowingly —

(i) makes or mends, or Vegins or proceeds to make or mend, or buys
or sells, or has in his custody or iwssession, any instrument, tool or
engine adapted and intended for counterfeiting any current copper coin ;

(ii) buys, sells, receives, pays or puts off, or offers tt) buy, sell, receive,
pay or put off, any counterfeit coin resembling, or apparently intended to
resemble or pass for, any current copi)er coin, at or for a lower rate of value

UM: 'ifm

552

OFFENCES RELATING TO THE COIN. [Sees. 473, 474

than the same imports, or was apparently intended to import. R. S. C
c. 107, 8. 15. 24-25 V. c 99, s. 14 (Imp.).

Fine, s. 958. The punishment was seven years under
the repealed Act. See s. 463 ante.

Foreign Coins.

478* Every one is gfiiilty of an indictable offence and liable to three
years' imprisonment who —

{a) makes, or begins to make, any counterfeit coin or silver com resemb-
ling, or apparently intended to resemble or pass for, any gold or silver coin of
any foreigpn prince, state or country, not being current coin ;

(6) without lawful authority or excuse, the proof of which shall lie on
him —

(i) brings into or receives in Canada any such counterfeit coin, kn ,.
ing the same to be coimterfeit ;

(ii) has in his custody or possession any such counterfeit coin know-
ing the same to be counterfeit, and w 1th intent to put off the same ; or
(c) utters any such counterfeit coin ; or

((/) makes any counterfeit coin resembling, or apparently intended to
resemble or pass for, any copiier coin of any foreign prince, state or country
not being current coin. R. S. C. c. 167, ss. 19, 20, 21, 22 & 23. 24-25 V. c. 99*
8. 18, ct seq. (Imp. ).

Fine, s. 95S. " Having in possession " definfid, s. 3.
See E. V. Tierney, 29 U. C. Q. B. 181.

Utterino Counterfeit Coin.

4T4I. Every one is guilty of an indictable offence and liable to fuurtcai
years' imprisonment who utters any counterfeit coin resembling, or upiiarently
intended to resemble or pass for, .any currt>nt gold or silver coin, knowing the
same to be counterfeit. R. S. C. c. 167, s. 10. 24-25 V. c. 99, s. i) Jmp.).

Under the Imperial Act the imprisonment is one year.

Indictment. — one piece of counterfeit coin

resembling a piece of the current gold coin, called ;
sovereign, unlawfully, falsely and deceitfully did utter i -
one J. N. he the said then well knowing? the same L

be counterfeit.

Prove the tendering, utte,ring or putting off the t;over-
eign in question, and prove it to be a base and counterfeit
sovereign. Where a good shilling was given to a Jew boy
for fruit, and he put it into his mouth under pretense of
trying whether it were good, and then taking a bad shilling;
out of his mouth instead of it, returned it to the prosecutor,

Sec. 474]

UTTERING COUNTERFEIT COIN.

553;

able to three

saying that it was not good ; this (which is called ringing
the changes) was holdeu to be au uttering, indictable as
such : R. V. Franks, 2 Leach, 644. The giving of a piece
of counterfeit money in charity is not an uttering, although
the person may know it to be counterfeit ; as in cases of
this kind, there must be some intention to defraud : R. v.
Page, 8 G. & P. 122. But this case has been overruled :
R. V. Ion, 2 Den. 475; 1 Russ. 126; see R. v.

1 Cox, 250.

A prisoner went into a shop, asked for some coffee and
sugar, and in payment put down on the counter a counterfeit
shilling : the prosecutor said that the shilling was a bad
one, whereupon the prisoner quitted the shop, leaving the
shilling and also the coffee and sugar : held that this waa
an uttering and putting off within the statute : R. v. Welch,

2 Den. 78. The prisoner and J. were indicted for a misde-
meanour in uttering counterfeit coin. The uttering was
effected by J. in the absence of the prisoner, but the jury
found that they were both engaged on the evening on which
the uttering took place in the common purpose of uttering
counterfeit shillings, and that in pursuance of that common
purpose J. uttered the coin in question : Held, that the
prisoner was rightly convicted as a principal, there being no
accessories in a misdemeanour : R. v. Greenwood, 2 Den. 453.
If two jointly prepare counterfeit coin, and utter it in
different shops apart from each other but in concert,
intending to share the proceeds, the utterings of each are
the joint utterings of both, and they may be convicted
jointly : R. v. Hurse, 2 M. & Rob. 360 ; see R. v. Hermann,
4Q.B.D.284, Warb. Lead Gas. 7"^.

Husband and wife were jointly indicted for uttering
counterfeit coin : Held, that the wife was entitled to an
acquittal, as it appeared that she uttered the money in the
presence of her husband : R. v. Price, 8 G. & P. 19 ; see
now 8. 13, ante.

Proof of the guilty knowledge by the defendant must
be given. This of course must be done by circumstantial

•'.'

554

OFFENCES RELATING TO THE COIN.

[Sec. 475

evidence. If, for instance, it be proved that he uttered,
either on the same day or at other times, whether before or
after the uttering charged, base money, either of the samr-
or of a different denomination, to the same or to a differ-
end person, or had other pieces of base money about him
when he uttered the counterfeit money in question ; this
will be evidence from which the jury may presume a guilty
knowledge : 1 Euss. 127.

Uttering Light Coins.

ft79« E\fTy one is guilty of an indictable offence and liable to thrcf
year ' imprisonment who —

{a) vitters, as being currei t, any gold or silver coin of less than its lawful
weight, knowing such coin to have been impaired, diminished or lij^^litencd
otheru-'so than by lawful wear ; or

{h) with intent to defraud utters, as ui for any current gold or silver coin,
any coin not being such curnmt gold or silver coin, or any medal, or piece (if
metal or mixed metals, resembling, in size, figure and colour, the current coin
as or for which the same is so uttered, such coin, medal or piece of metal or
mixed metals so uttered being of less value than the current coin as or for
which the same is so uttered ; or

((') utters any counto'.feit coin resembling or apparently intended to
re semblr- or pass for nnj current copper coin, knowing the same to be counter-
feit. R. S. C. c V'u, dK. ri, 14 & 16. 24-23 V. c. 99, ss. 10, 13 & 15 (Imp.).

Fine, l, 958.

A person was convicted, under the above section, of
putting off, as and for a half sovereign, a medal of the same
size and colour, which had on the obverse side a head
similar to that of the Queen, but surrounded by the inscrip-
tion "Victoria, Queen of Great Britain," instead of "Vic-
toria Dei Gratia," and a '•ound guerling and not square,
and no evidence was givcu. as to the appearance of the
reverse side, nor was the coin produced to the jury ; it was
held that there was sufficient evidence that the medal
resembled, in figure, as well as size and colour, a half
sovereign : R. v. Robinson, L. & C. 604; the medal was
produced, but, in the course of his evidence, one of the
witnesses accidentally dropped it, and it rolled on tbef^oor;
strict search was made for it for more than half au hour,
but it could not be found.

Sees. 4V0-,478]

UTTERING DEFACED COIN.

555

il|.;i l:i,

ible to til ret

intended to

Utterinh Dkkaoki) Coin.

4'y6< Every one who utters any coin defaoed by having stami>e<l
thereon any n.-vraes or words, is guilty of an offence and liable, on summary
conviction before two justices of the iieace, to a i^enalty not exceeding ten
dollars. R. S. C. c. 167, s. 18.

See s. 469, ante.

No prosacution without the consent of the Attorney -
General ; s. 549.

Uttering Uncurrknt Copper Coin.

47'J'. Every one who utters, or offers in payment, any copper coin, << r
than current copper coin, is guilty of an offence and liable, on sui
conviction, to a penalty of double the nominal value thereof, and in 'letauii of
iiayment of such penalty to eight days' imprisonment. R. S. C. c. Hm , s. 33.

Punishment After Previous Conviction.

478« Every one who, after a previous conviction of any offence relating
hike win under this or cuiif other Act, is convicted of any offence specified in
thin part is liable to the following punishment : —

(o) to imprisonment for life, if otherwise fourteen years would have been
the longest term of imprisonment to which he would have oe en liable ;

(b) to fourteen years' imprisonment, if otherwise seven years would have
Ijftn the Icjngest term of imprisonment to which he would have V)een liable ;

(c) to seven years' imprisonment, if otherwise he would not have been
liable to seven years' imprisonment. R. S. C. c. 107, s. 13 (Anmided). 24-25 ^^
c. !i!t,s. 12{Imp.).

The words in italics are new.
The punishments are altered.
See R. V. thomas, 13 Cox, 52.

See ss. 628 and 676 as to procedure when a previous
otfence is charged, corresponding to s. 116 of the Imperial
Larceny Act, and s. 37 of the Imperial Coin Act : R. v.
Martin, 11 Cox, 343.

This enactment is intended to provide for a subsequent
iinlictable offence after a previous conviction for an indict-
able offence. Unfortunately, the section does not say what
it means, and any one convicted, for instance, of uttering
defaced coin under s. 476 and fined ten dollars, is liable to
secen years imprisonment on a subsequent conviction for
any offence spe jified in this part, s. 536.

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

1.1

1*5

■50

1.25 1.4 1.6

'^#

Photographic

Sciences
Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. US80

(716) 872-4503

■'^-1

11 is

656 ADVERTISING COUNTERFEIT MONEY. [Sees. 479, 480

PART XXXVI. ^

ADVERTISING COUNTERFEIT MONEY.

479* In this part the expression "counterfeit token of value" means
any spurious or counterfeit coin, paper money, inland revenue stamp, postage
stamp, or other evidence of value, by whatever technical, trivial or deceptive
designation the same may be described. 51 V. c. 40, s. 1.

4S0« Every one is guilty of an indictable offence and liable to five years'
imprisonment who —

(a) prints, writes, utters, publishes, sells, lends, gives away, circulates or
distributes any letter^ writing, circular, paper, pamphlet, handbill or any
written or printed matter advertising, or offering or puriwrting to advertise or
offer for sale, loan, exchange, gift or distribution, or to furnish, procure or
distribute, any counterfeit token of value, or what purports to be a counterfeit
token of value, or giving or purporting to give, either directly or indirectly,
information where, how, of whom, or by what means any counterfeit token of
value, or what purports to be a counterfeit token of value, may be procured or
had; or

(b) purchases, exchanges, accepts, takes possession of or in any way uses,
or offers to purchase, exchange, accept, take possession of or in any way use,
or negotiates or offers to negotiate with a view of purchasing or obtaining or
using any such counterfeit token of value, or what purports so to be ; or

(c) in executing, operating, promoting or carrying on any scheme or
device to defraud, by the use or by means of any papers, writings, letters,
circulars or written or printed matters concerning the offering for sale, loan,
gift, distribution or exchange of counterfeit tokens of value, uses any ficti-
tious, false or assumed name or address, or any name or address other than his
own right, proper and lawful name ; or

(d) in the execution, operating, promoting or carrying on, of any scheme
or device offering for sale, loan, gift or distribution, or purporting to offer for
sale, loan, gift or distribution, or giving or purporting to give information,
directly or indirectly, where, how, of whom or by what means any counterfeit
token of value may be obtained or had, knowingly receives or takes from the
mails, or from the post office, any letter or package addressed to any such
fictitious, false or assumed name or address, or name other than his own right,
proper or lawful name. 51 V. c. 40, ss. 2 & 3.

See 8. 693 as to evidence.

On indictment for offering to purchase counterfeit
tokens of value prisoner cannot be convicted on evidence
that notes which he offered to purchase were not counter-
feit bat genuine bank notes unsigned, though he offered to
purchase in belief that they were counterfeit: R. v. Attwood,
20 0. R. 674.

Sec. 481]

MISCHIEF.

PART XXXVII.

557

MISCHIEF.

48l« Every one who causes any event by an act which he knew would
probably cause it, beinff reckless whether such event happens or not, is deemed
to have caused it wilfully for the purposes of this part.

2. Nothing shall be an offence under any provision contained in this part
unless it is done without legal justification or excuse, and without colour of
right.

3, Where the offence consists in an injury to anything in which the
offender has an interest, the existence of such interest, if partial, shall not
prevent his act being an offence, and if total, shall not prevent his act being an
offence, if done with intent to defraud. R. S. C. c. 168, ss. 60 & 61 {Ame7ided).
24-25 V. c. 97, ss. 58 & 59 (Imp.).

•• Part xxxiv. (xxxvii. of this code), is founded on the pro-
visions of 24 & 25 V. c. 97 (c. 168, B. S. C), in which the
word ' maliciously ' very frequently occurs. Section 381 (481)
is meant to give what we believe to be the legal effect of
that word. The first portion of the section is intended to meet
such state of facts as that in the case of E. v. Child, L. B. 1
C. C. R. 807, 12 Cox, 64, Warb. Lead. Cas. 193, where a man,
who out of malice to a fellow lodger, made a bonfire of her
furniture on the floor of her room, not meaning that his land-
lord's house should catch fire, escaped punishment.

Under the proviso a tenant for years burning his landlord's
house commits an offence, though in so doing he burns his own
leasehold, and a freeholder burning his own house commits an
offence, if he does so with intent to defraud the insurers. The
rest of this part re-enacts 24 & 25 Y. c. 97, with little
substantial alteration." — Imp. Comm. Bep.

Greaves says on the section corresponding to s-s.S, 8.481 :
" This clause is new and a very important amendment. It
extends every clause of the Act not already so extended to
persons in possession of the property injured, provided they
intend to injure or defraud any other person. It therefore
brings tenants within the provisions of the Act, whenever
they injure the demised premises, or anything growing on
or annexed to them, with intent to injure their landlords."

il*'

558

MISCHIEF.

[Sec. 482

By s. 613, post, in any indictment, it is sufficient to
allege that the person accused did the act with intent to
defraud, as the case may be, without alleging an intent to
defraud any particular person, and no count shall be deemed
objectionable on the ground that it does not contain the
name of the person injured, or attempted, or intended to
be injured.

Arson.

4^2* Every one is guilty of the indictable oifence of arson and liable to
imprisonment for life who wilfully sets fire to any building or structure
whether such building, erection or structure is completed or not, or to any stack
of vegetable produce or of mineral or vegetable fuel, or to any mine or any
well of oil or other combustible substance, or to any ship or vessel, whether
completed or not, or to any timber or materials placed in any shipyard for
building or repairing or fitting out any ship, or to any of Her Majesty's stores
or munitions of war. R. S. C. c. 1G8, ss, 2 to 8, 19, 28, 46 & 47 {Amended).
24-25 V. c. 97, ss. 1 to 6, 17, 26, 42 & 43 (Imp. ).

The words in italics settle a mooted point.

Indictment. — that A. B., on at un-

lawfully and wilfully, without legal justification or excuse,
and without colour of right did set fire to a certain building,
to wit, a dwelling-house of C. D. : see K. v. Turner, 1 Moo.
239 ; R. V. Lewis, 2 Russ. 1067.

The definition of arson at common law is as follows :
arson is the malicious and wilful burning the house of
another, and to constitute the offence there must be m
actual burning of some part of the house, though it is not
necessary that any flames should appear: 3 Burn, 768.
But now the words of the statute are set fire to, merely ;
and, therefore, it is not necessary in an indictment to aver
that the house was burnt, nor neea '>e proved that the
house was actually consumed. But Lxxderthe statute, as
well as at common law, there must be an actual burning of
some part of the house ; a bare intent or attempt to do it is
not sufficient. But the burning or consuming of any part
of the house, however trifling, is sufficient, although the
fire be afterwards extinguished. Where on an indict^
ment it was proved that the floor of a room was scorched;
that it was charred in a trifling way; that it had been at a

Sec. 482]

ARSON.

559

red heat but not in a blaze, this r/as held a sufficient burn-
ing to support the indictment. But where a small faggot
having been set on fire on the boarded floor of a room, the
boards were thereby scorched black but not burnt, and no
part of the wood was consumed, this was held not suffi-
cient.

The time stated in the indictment need not be proved
as laid ; if the offence be proved to have been committed
at any time before or after, provided it be some day before
the finding of the indictment by the grand jury, it is
sufficient. Where the indictment alleged the offence to
have been committed in the night time and it was proved
to have been committed in the day time, the judges held
the difference to be immaterial. The parish is material,
for it is stated as part of the description of the house
burnt. Wherefore, if the house be proved to be situate in
another parish the defendant must be acquitted, unless the
variance be amended : see now ss. 611, 613, post. If a man
intending to commit a felony, by accident set fire 'to an-
other's house, this, it should seem, would be arson. If
intending to set fire to the house of A. he accidentally set
fire to that of B., it is felony. Even if a man by wilfully
setting fire to his own house, burns also the house of one
of bis neighbours it will be felony ; for the law in such a
case implies malice, particularly if the party's house were
so situate that the probable consequence of its taking fire
was that the fire would communicate to the houses in its
neighbourhood. And generally if the act be proved to
have been done wilfully, it may be inferred to have been
done maliciously, unless the contrary be proved : Archbold,
625; R. v. Tivey, 1 C. «fc K. 704 ; R. v. Philp, 1 Moo. 263.

It is seldom that the wilful burning by the defendant
can be made out by direct proof ; the jury, in general,
have to adjudicate on circumstantial evidence. Where a
bouse was robbed and burned, the defendant being found
in possession of some of the goods which were in the house

. i

■V . r J, :.,< .

*':f

560

MISCHIEF.

[Sec. 482

at the time it was burnt, was admitted as evidence tcndins
to prove him guilty of the arson. So where the question
is whether the burning was accidental or wilful, evidence
is admissible to show that on another occasion, the defend-
ant was in such a situation as to render it probable that
he was then engaged in the commission of the like offence
against the same property. But on a charge of arson,
where the question was as to the identity of the prisoner,
evidence that a few days previous to the fire in question,
another building of the prosecutor's was on fire and that
the prisoner was then standing by with a demeanour which
showed indifference or gratification, was rejected.

Upon an indictment for any offence mentioned in this
part the jury may, under s. 711, convict the prisoner of an
attempt to commit the same, and thereupon he may be
punished in the same manner as if he had been convicted
on an indictment for such attempt : ss. 528, 529.

See R. v. Newboult, 12 Cox, 148, and R. v. Farrington,
1 R. & R. 207, as to intent.

It is immaterial whether the building, house, etc., be
that of a third person or of the defendant himself; but in
the latter case, the intent to defraud cannot be inferred
from the act itself, but it must be alleged and proved by
other evidence. In R. v. Kitson, Dears. 187, the prisoner
was indicted for arson, in setting fire to his own house
with intent to defraud an insurance office. Notice to
produce the policy was served too late on the defendant,
and it was held that secondary evidence of the policy was
not admissible. "But it must not, however, be under-
stood, said Jervis, G.J., " that it is absolutely necessary
in all cases to produce the policy, but the intent to defraud
alleged in the indictment must be proved by proper evi-
dence."

Defendant was charged with having set fire to a build-
ing, the property of one J. H., " with intent to defraud."
The case opened by the Crown was that the prisoner in-

[Sec. 482

le tending
I question
, evidence
be defend-
bable that
ike offence
of arson,
3 prisoner,
a question,
:e and that
nonr which
i.

)ned in this

isoner of an

he may he

3n convicted

, Farrington,

luse, etc., he
iself; but in
be inferred
proved hy
Ithe prisoner
own house
Notice to
|e defendant,
le policy was
', be under-
lly necessary
it to defraud
proper evi-

l-e to a huild-

Ito defraud."

prisoner in-

Sec. 482]

ARSON.

561

tended to defraud several insurance companies, but the
legal proof of the policies was wanting, and an amendment
was allowed by striking out the words "with intent ta
defraud." The evidence showed that several persons were
interested as mortgagees of the building, a large hotel, and
J. H. as owner of the equity of redemption. It was left to
the jury to say whether the prisoner intended to injure any
of those interested. They found a verdict of guilty. Held,
that the amendment was authorized and proper, and th&
conviction was warranted by the evidence. The indict-
ment in such a case is sufficient without alleging any
intent, there being no such averment in the statutory
form ; but an intent to injure or defraud must be shown
on the trial : R. v. Cronin, 36 U. C. Q. B. 342.

An indictment for setting fire to a stack of beans, B.

V. Woodward, 1 Moo. 328 ; or barley, R. v. Swatkins, 4

G. & P. 548, is good ; for the court will take notice that

beans are pulse, and barley, corn : s. 487, post. A stack

composed of the flax-plant with the seed or grain in it, the

jury finding that the flax-seed is a grain, was held to be a

stack of grain: R. v. Spencer, Dears. & B. 131. The

prisoner was indicted for setting fire to a stack of wood^

and it appeared that* the wood set fire to consisted of a^

score of faggots heaped on each other in a temporary loft-

over the gateway. Heldt this not to be a stack of wood r

B. v. Aris, 6 G. & P. 348. Where the defendant set fire

to a summer-house in a wood, and the fire was thence

communicated to the wood, he was held to be properly

convicted on an indictment charging him with setting fire

to the wood : R. v. Price, 9 G. & P. 729. An indictment

for setting fire to a cock of hay cannot be sustained under

a statute making it an offence to set fire to a stack of hay :

E. V. McKeever, 5 Ir. R. G. L. 86. A quantity of straw »

packed on a lory, in course of transmission to market, and

left for the night in the yard of an inn, is not a stack of

straw within 24 & 25 V.c.97, s. 17 (Imp.), (19 of our repealed

Crim. Law— 36

I 1

'M;

il^'l

IIIBi

_„,._ll»

£62

MISCHIEF.

[Sec. 482

statute), and the setting fire thereto wilfully and maliciously
is not felony : R. v. Satchwell, 12 Cox, 449 ; s. 487 post.

Section 19 of repealed statute did not apply to manu-
factured lumber ; B. v. Berthd, 16 C. L. J. 251.

It is equally an offence within this section to set fire to
a mine in the possession of the party himself, provided it
is proved to be done with intent to injure or defraud any
other person. The mine may be laid as the property of
the person in possession of or working it, though only as
agent : E. v. Jones, 2 Moo. 293.

As to setting fire to ships. — A pleasure boat, eighteen
feet long, was set fire to and Patteson, J., inclined to think
that it was a vessel within the meaning of the Act, but tbe
iprisoner was acquitted on the merits, and no decided
^opinion was given : R. v. Bowyer, 4 C. & P. 559. Upon an
indictment for firing a barge, Alderson, J., seemed to doubt
if a barge was within the meaning of the statute : B. v.
Smith, 4 C. & P. 569. The burning of a ship of which the
defendant was a part owner is within the statute : B. v.
Wallace, 2 Moo. 200.

In R. V. Philp, 1 Moo. 263, there was no proof of
malice against the owners, and the ship was insured for
more than its value, but the court thought that the defend-
ant must be taken to contemplate the consequences of his
act, and held that, as to this point, the conviction was
Tight : see R. v. Newill, 1 Moo. 458. The destruction of a
vessel by a part-owner shows an intent to prejudice tbe
other part-owners, though he has insured the whole ship
and promised that the other part-owners should have the
benefit thereof : R. v. Philp, 1 Moo. 263. The underwriters
on a policy of goods fraudulently made are within the
statute, though no goods be put on board : Idem. If tbe
intent be laid to prejudice the underwriters then prove
the policy, and that the ship sailed on her voyage : B. v.
Gilson, R. & R. 138.

at, eighteen
led to think
^.ct, but the
no decided
9. Upon an
ned to doubt
atute : B. v.
jf which the

Sec. 483]

ATTEMPT.

I \

663

A sailor goes on a ship to steal rum. While tapping
the casks a lighted match held by him set the rum on fire,
and a conflagration ensued which destroyed the vessel.
HM, that a conviction for arson of the ship could not be
upheld : R. v. Faulkner, 13 Cox, 550.

Attempt.

4§tl. Every one is guilty of an indictable offence and liable to fourteen
vears' imprisonment who wilfully attempts to set fire to anything mentioned in
tlie last preceding section, or who wilfully sets fire to any substance so situated
that he knows that anything mentioned in the last precedmg section is likely
to catch fire therefrom. R. S, C. o. 168, ss. 9, 10, 20, 29 & 43 (Amended).
21-25 V. c. 97, ss. 7, 8, 18, 27 & 44 (Imp.).

See B. v. Child, Warb. Lead. Cas. 193, and cases there
cited.

" Wilfully attempt " in this section is not a happy ex-
pression. Can any one be said to not wilfully attempt ?

Indictment. — at unlawfully and wilfully

did attempt, without legal justification or excuse and with-
out colour of right, to set fire to a certain dwelling-house
(building) of F. N.

Where the prisoners were indicted for setting fire to
letters in a post-office, divers persons being in the house,
it was held that there was no evidence of any intent, but it
was what is vulgarly called a lark, and even if the house
had been burned they would not have been guilty : R. v.
Batstone, 10 Cox, 20. '^ .

A person maliciously sets fire to goods in a house with
intent to injure the owner of the goods, but he had no mali-
cious intention to burn the house, or to injure the owner of
it. The house did not take fire but would have done so if
the fire had not been extinguished : Held^ that if the house
had thereby caught fire, the setting fire to it would not
have been within this section, as, under the circumstances,
it would not have amounted to felony : B. v. Nattrass, 15
Cox, 73; R. v. Harris, 15 Cox, 75. But see now s. 481.

It is not necessary in a count in an indictment laid
under this section to allege an intent to defraud, and it is

-»

■W

564

MISCHIEF.

[Sees. 484, 485

sufficient to follow the words of the section without sub-
stantively setting out the particular circumstances relied
on as constituting the offence. Evidence of experiments
made subsequently to the fire is admissible in order to
show the way in which the building was set fire to : B. v.
Heseltine, 12 Cox, 404.

The words "with intent to injure or defraud" have
been left out of these sections.

Lighting a match by the side of a stack with intent to
set fire to it is an attempt to set fire to it, because it is an
act immediately and directly tending to the execution of
the crime : B. v. Taylor, 1 F. & F. 511. On an indictment
against two prisoners for attempting to set fire, one pri-
soner had not assisted in the attempt, but had counselled
and encouraged the other; both were convicted: B. t.
Clayton, 1 C. & K. 128.

See B. V. Goodman, 22 U. C. C. P. 338.

Settino Fire to Crops, Trees, Lumber.

4§4. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who wilfully sets fire to —

(a) any crop, whether standing or out down, or any wood, forest, coppice
or plantation, or any heath,' gorse, furze or fern ; or

(h) any tree, lumber, timber, logs, or floats, boom, dam or slide, and
thereby injures or destroys the same. R. S. C. c. 168, ss. 18 & 12 (Ameiuied).
24-25V. o. 97, s. 16(Imp.).

Indictment under s. 12 of repealed statute quashed, for
want of the words ** so as to injure or to destroy ": R. v.
Berthe, 16 C. L. J. 251. Such an indictment bad, even
after verdict : B. v. Bleau, 7 B. L. 571.

See form of indictment under s. 482, to which add for
an oflfence under s-s. (6) " and thereby injured [or de-
stroyed) the same," or ** injured and destroyed the same."

Attempt.

48S. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who wilfully attempts to set fire to anything mentioned
in the last preceding section, or who wilfully sets fire to any substance so
situated that he knows that anything mentioned in the last preceding section

Sees. 486-488] SETTING FIRE TO FORESTS, ETC.

565

is likely to catch fire therefrom. R. S. 0. c. 168, b. 20 (Amended). 24-25 V.
c. 97, 8. 18 (Imp.).

See remarks under the last three sections.

Setting Fire to Forksts, Etc.

486. Every one is guilty of an indictable offence and liable to two years'
imprisonment who, by such negligence as shows him to be reckless or wantonly
regardless of consequences, or in violation of a provincial or municipal law of
the locality, sets fire to any forest, tree, manufactured lumber, square timber,
lugs or floats, boom, dam or slide on the Crown domain, or land leased or law-
fully held for the purpose of cutting timber, or on private proiierty, on any
creek or river, or roUway, beach or wharf, so that the same is injured or
destroyed.

2. The magistrate investigating any such charge may, in his discretion, if
the consequences have not been serious, dispose of the matter summarily,
without sending the offender for trial, by imposing a fine not exceeding fifty
dollars, and in default of payment by the committul of the offender to prison
for any term not exceeding six months, with or without hard labour. R. S. C.
c. 168, s. 11.

Fine, s. 958.

Indictment. — that A. B. on at acting

TS'ith reckless negligence and wantonly regardless of con-
sequences (or in violation of a provincial *' or " a municipal
laiv) did unlawfully set fire to a forest then and there
situate on the Grown domain, so that the said forest was
injured {or destroyed.)

Threats to Burn.

4§T» Every one is guilty 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 writing threatening to
bum or destroy any building, or ."iny rick or stack of grain, hay or straw or
other agricultural produce, or any fcrain, hay or straw or other agricultural
produce in or under any building, oi luy ship or vessel. K. S. C. c. 173, s. 8.
24-25V. c. 97, 8. 50{Imp.).

See remarks under ss. 233 & 482, ante.

A threat to burn standing corn is not within the statute :
E. V. Hill, 5 Cox, 233 ; See R. v. Jepson, 2 East, P. C. 1115,
note (a), as to what constitutes a threat. See s. 959 post,
as to articles of the peace.

Attempt to Damage by Explosives.

488. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment who wilfully places or throws any explosive substance

'If

666

MISCHIEF.

[Sea 488

into or near any building or ship with intent to destroy or damage the iiaiiiu
or any machinery, working tools, or chattels whatever, whether or not any
explosion takes Iplace. R. S. C. c. 168, ss. 14 & 40. 24-26 V. o. 07, an. 10-45
(Imp.). »

" Explosives " defined, s. 8.

Indictment for throwing gunpowder into a house with
intent^ etc. — at unla\«rfully and wilfully did

throw into the dwelling-house of J. N., a large

quantity, to wit, two pounds of a certain explosive sub-
stance, that is to say, gunpowder, with intent thereby then
to destroy the said dwelling-house. (Add counts varyithj
the statement of the act, and also stating the intent to be to
damag e the house.)

Indictment under s. 99 for destroying by explosion part
of a dtvelling-house, so as to endanger life. — wilfully

and unlawfully did, by the explosion of a certain explosive
substance, that is to say gunpowder, destroy a certain part
of the dwelling-house of J. N., situate one A. N.,

then being in the said dwelling-house, so as to endanger
the life of the said A. N. (Add counts for throwing down
and damaging part of the dwelling-house,) under s. 488 :
See R. V. McGrath, 14 Cox, 698 ; and ss. 99, 100, 247. 248
& 499, which also provide for offences by explosives.

Prove that the defendant by himself or with others
destroyed or was present aiding and abetting in the de-
struction of some part of the dwelling-house in questioD, by
the explosion of gunpowder or other explosive substance
mentioned in the indictment : R. v. Howell, 9 C. & P. 437-
It has been held that firing a gun loaded with powder
through the keyhole of the door of a house, in which were
several persons, and by which the lock of the door was
blown to pieces, is not within this section : R. v. Brown, 3
F. & F. 821. But Greaves is of opinion that this case
would bear reconsideration : 2 Russ. 1045 note. Prove
that it was the dwelling-house of J. N., and situate as
described in the indictment. Prove that the act was done
maliciously, that is, wilfully and not by accident. Prove also

Sees. 489.491]

MISCHIEF ON RAILWAYS.

567

upon an indictment as ante under b. 99 that A. N. was in the
bouse at the timc> No intent need be laid or proved. Id
B. V. Sheppard, 11 Cox, 802, it was held that, in order ta
support an indictment under this section, it is not enough
to show simply that gunpowder or other explosive sub-
stance was thrown against the house, but it must also be
shown that the substance was in a condition to explode at
the time it was thrown, although no actual explosion did
result.

MiHOHiEK ON Railways.

4§0. Every one is guilty of an indictable offence and liable to five years'
imprisonment who, in manner likely to cause danger to valuable property, with.-
o\it endangering life or person—

(a) places any obstruction upon any railway, or takes up, removes-,.
displaces, breaks or injures any rail, sleeper or other matter or thing belonging^
to any railway ; or

(6) shoots or throws anything at an engine or other ruilway vehicle ; or

(e) interferes without authority with the points, signals or other appliances
upon any railway ; or

((/) makes any false signal on or near any railway ; or

(/) does any other unlawful act.

2. Every one who does any of the acts above mentioned with intent to
cause such danger is liable to imprisonment for life. R. S. C. o. 168, si. 37 &
38 (Avicmled). 24-25 V. c. 97, s. 35.

400« Every one is guilty of an indictable offence and liable to two years*
imprisonment who, by any act or wilful omission obstructs or interrupts, or
causes to be obstructed or interrupted, the construction, maintenance or free
use of any railway or any part thereof, or any matter or thing apjiertaiuin^
thereto or connected therewith. R. S. C. o. 168, ss. 38 & 39 (Amended).
24-25 V. 0. 97, H. 30 (Imp.).

491* Every one is guilty of an offence and liable, on summary convic-
tion, to II penalty not exceeding twenty dollars over and above the value of the
g(xxls or liquors so destroyed or damaged, or to one month's imprisonment,
with or without hard labour, or to both, who —

((() wilfully destroys or damages anything containing any goods or
liquors in or about any railway station or building or any vehicle of any kind
on any railway, or in any warehouse, ship or vessel, with intent to steal or
otherwise unlawfully to obtain or to injure the contents, or any part thereof ;
or

(b) unlawfully drinks or wilfully spills or allows to run to waste any such
liquors, or any part thereof. R. S. C. c. 38, s. 62. 51 V. o. 29, s. 297.

Section 489 is clumsily worded.

W I

"Hi

■I

i
i

568

MISCHIEF.

[Sec. 491

See s. 71L as to a verdict of attempt to commit the
offence charged in certain cases.

The prisoners were indicted in several counts for wil-
fully and maliciously placing a stone upon the North
Woolwich Bailway, with intent to damage, injure, and
obstruct the carriages travelling upon it.

It appeared that the prisoners, who were respectively
aged thirteen and fourteen, had placed a stone on the rail-
way in such a way as to interfere with the machinery of the
points, and prevent them from acting properly, so that if
a train had come up while the stone remained as placed
by the prisoners it would have been thrown off the line,
and a serious accident must have been the consequence.
Gutteridge held up the points whilst Upton dropped in the
stone.

Wightman, J., told the jury that in order to convict the
prisoners it was necessary, in the first place, to prove that
they had wilfully placed the stone in the position stated
upon the railway : and secondly, that it was done mali-
ciously, and with the purpose of causing mischief. It was
bis duty to inform them that it was not necessary that the
prisoners should have entertained any feelings of malice
against the railway company, or against any person travel-
ling upon it ; it was quite enough to support the charge if
the act was done with a view to some mij^bievous conse-
quence or other, and if that fact was made out the jury
would be justified in finding the prisoners guilty, notwith-
standing their youth. They were undoubtedly very young,
but persons of their age were just as well competent to form
au opinion of the consequences of an act of this description
as an adult person. Verdict, guilty upon the counts
charging an intent to obstruct the engine: E. v. Upton
(Greaves Lord CamphelVs Acta, Apjiendix).

Indictment under «-«. 1. — unlawfully did put and

place a piece of wood upon a certain railway called
in with intent thereby then to obstruct, upset, over-

Sec. 492]

INJURIES TO TELEGRAPHS.

569

throw, and injure a certain engine and certain carriages
using the said railway, and in manner likely to cause dan-
ger to such engine and carriages. {The intent may be laid
ill different icays^ in different counts, if necessary).

Prove that the defendant placed the piece of wood upon
or across the railroad as described in the indictment, or
was present aiding and assisting in doing so. The intent
may be inferred from circumstances from which the jury
may presume it. In general, the act being done wilfully,
and its being likely to obstruct or upset the railway train,
would be sufficient prima facie evidence of an intent to
do so.

Upon an indictment under s. 489 the defendant may
be convicted of the offence under s. 490, if the evidence
warrants it : R. v. Bradford, Bell, 268. A line of railway
constructed under an Act of Parliament, but not yet opened
for public traffic, and used only for the carriage of materials
and workmen, is within the statute : Idem. A drunken
man got upon tbe railway and altered the signals and
thereby caused a luggage train to pull up and proceed at a
very slow pace : Held, upon a case reserved, that this was
a causing of an engine and a carriage using a railway to
be obstructed : R. v. Hadfield, 11 Cox, 574, Warb. Lead.
Cas. 87. A person improperly went upon a line of railway
and purposely attempted to stop a train approaching by
placing himself on the space between two lines of rails, and
holding up his arms in the mode adopted by inspectors of
the line when desirous of stopping a train : Held, that this
amounted to the offence of unlawfully obstructing an en-
gine or carriage using a railway : R. v. Hardy, 11 Cox, 656.

Injuries to Tklkorai'hs.

493. Every one is guilty of an indictable offence and liable to tivo years'
imprisonnif^nt who wilfully — '

(a) destroys, removes or damages anything which forms part of, or is used
or employed in or about any electric or magnetic telegraph, electric light,
telephone or fire-alarm, or in the working thereof, or for the transmission f>f
electricity for other lawful purposes ; or

%t4

'S'*

570

MISCHIEF.

[Sees. 493-495

(6) prevents or obstructs the sendini?, conveyance or delivery of any com-
munication by any such telegraph, telephone or fire-alarm, or the transmission
of electricity for any such electric light or for any such purpose as ^.foresaid.

2. Every one who wilfully, by any overt act, attempts to commit any such
offence is guilty of an offence and liable, on summary conviction, to a penalty
not exceeding fifty dollars, or to three months' imprisonment, with or without
hard labour. R. S. 0. c. 168, ss. 40 & 41 {Amended). 24-25 V. o. 97, ss. 37 &
38 (Imp.).

Fine, s. 958. A verdict for attempt to commit the

offence charged may be given upon an indictment under

(a) & (6) ; s. 711.

Wbeokino.

493. Every one is guilty of an indictable offence and liable to imprison-
ment for life who wilfully —

(a) casts away or destroys any ship, whether complete or unfinished ; or

(b) does any act tending to the immediate loss or destruction of any
ship in distresi^ ; or

(c) interferes with any marine signal, or exhibits any false signal, with
intent to bring a ship or boat into danger. R. S. 0. c. 168, ss, 46 & 51
(Amended). 24-25 V. c. 97, ss. 42 & 47 (Imp.).

404. Every one is guilty of an indictable offence and liable to fourteen
years' imprisonment, who attempts to cast away or destroy any ship, whether
complete or unfinished. R. S. C c. 168, s. 48 (Amended).

Upon an indictment under s. 493 (a) a verdict may be
given for the offence covered by s. 494 ; s. 711.
See R. V. Tower, 4 P. & B. (N. B.) 168.

Indictment for exhibiting false signals. — that

before and at the time of committing the offence herein-
after mentioned, a certain ship, the property of some
person or persons to the jurors aforesaid unknown, was
sailing on a certain river called near unto

and that J. S. on well knowing the premises, whilst

the said ship was so sailing on near unto the said

parish as aforesaid, wilfully and unlawfully did exhibit a
false light, with intent thereby to bring the said ship into
danger.

Marine Signals, Buoys.

409. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who wilfully alters, removes or conceals, or attempts to
alter, remove or conceal, any signal, buoy or other sea mark used for the
inirposes of navigation.

Sees. 496, 497] PREVENTING SA

OF WRECK.

571

2. Every one who makes fast any vessel or boat to any such signal, buoy,
or sea mark is liable, on summary conviction, to a penalty not exceeding ten
dollars, and in default of payment to one month's imprisonment. R. S. C.
c. 168, S8. 52 & 53 (Amended). 24-25 V. o. 97, s. 48.

No intent need be charged in the indictment. This
section includes the offence and the attempt to commit the
offence.

Indictment. — that J. S., on upon the

river called. unlawfully did wilfully remove a certain

buoy then used for the purposes of navigation.

Verdict of attempt may be given if the evidence war-
rants it ; s. 711.

Fbeventino Saving of Wreck.

496. Every one is guilty gf an indictable offence and liable to seven
years' imprisonment who wilfully prevents or impedes, or endeavours to pre-
vent or impede —

(a) the saving of any vessel that is wrecked, stranded, abandoned or in
distress ; or

(b) any person in his endeavour to save such vessel.

2. Every one who wilfully prevents or impedes, or endeavours to prevent
or imi)ede, the saving of any wreck is guilty of an indictable oiTence and liable,
on conviction on indictment, to two years' imprisonment, and on summary
conviction before two justices of the peace, to a fine of four hundred dollars or
six months' imprisonment, with or without hard labour. R, S. C. c. 81,
ss. 3(i (b) & 37 (c).

" Wreck " defined, s. 3.

Injuries to Rafts, Etc.

497. Every one is guilty of an indictable oflfence and liable to two years'
imprisonment who wilfully —

(a) breaks, injures, outs, loosens, removes or destroys, in whole or in part,
any dam, pier, slide, boom or other such work, or any chain or other fastening
attached thereto, or .any raft, crib of timber or saw-logs ; or

(b) impedes or blocks up any channel or passage intended for the trans-
mission of timber. R. S. C. c. 1U8, s. 54.

Fine, s. 958.

Indictment. — that A. B. on in

unlawfully and wilfully, without legal justification or excuse
and without colour of right, did cut a certain boom then
and there lying on the river called the said boom

being then and there the property of J. S., of

572

MISCHIEF.

[Sec. 498

, Mischief to Mines.

408. Every one is ^Ity of an indictable offence and liable to seven
years' imprisonment who, with intent to injure a mine or oil well, or obstruct
the working thereof—

(a) causes any water, earth, rubbish or other substance to be conveyed
into the mine or oil well or any subterranean channel communicating with
such mine or well ; or

{b) damages any shaft or any passage of the mine or well ; or

(c) damages, with intent to render useless, any apparatus, building,
erection, bridge or road belonging to the mine or well, whether the object
damaged be complete or not ; or

{d) hinders the working of any such apparatus ; or

(e) damages or unfastens, with intent to render useless, any rope, chain or
tackle used in any mine or well or upon any way or work connected therewth.
R. S. C. c. 168, ss. 30 & 31 [Amended). 24-25 V. c. 97, ss. 28 & 29 (Imp.).

Indictment under (a). — unlawfully and without

legal justification or excuse and without colour of right,
did cause a quantity of water to be conveyed into a certain
mine of J. N., situate with intent thereby then to

injure the 8S;,id mine and obstruct the working thereof.

Acts causing the damages mentioned in this section
done in the bona fide exercise of a supposed right and
without a wicked mind are not indictable : E. v. Matthews,
14 Cox, 5 ; K. V. Jones, 2 Moo. 293 ; R. v. Fisher, Warb.
Lead. Gas. 195.

Indictment under (e). a certain steam engine, the

property of J. N. for the draining and working of a certain
mine of the said J. N. and belonging to the said mine,
unlawfully did, without legal justification or excuse, and
without colour of right, damage with intent to render it
useless and to injure the said mine and obstruct the work-
ing thereof.

See 8. 711 as to a verdict for attempt to commit the
offence charged in certain cases.

Prove that the defendant pulled down or destroyed the
engine, as alleged. A scaffold erected at some distance
above the bottom of a mine for the purpose of working a
vein of coal on a level with the scaffold was holden to be
an erection used in conducting the business of the mine,

Sec. 499]

MISCHIEF.

573

withm the meaning of the statute : B. v. Whittingham, 9
G.& P. 234. Wrongfully setting a steam-engine in motion,
without its proper machinery attached to it, and thereby
damaging it and rendering it useless, is within the section :
R. V. Norris, 9 C. & P. 241. A trunk of wood used to
convey water to wash the earth from the ore was held to
be an erection used in conducting the business of a mine
within the meaning of the statute : Barwell v. Winterstoke,
14Q. B. 704.

The intent must be alleged in the indictment : B. v.
Smith, 4 C. & P. 569.

Mischief.

499> Every one is guilty of the indictable offence of mischief who wil-
fully destroys or damages any of the property hereinafter mentioned, and is
liable to the punishments hereinafter specified : —

(A) to imprisonment for life if the object damaged be —

(a) a dwelling-house, ship or boat, and the damage be caused by an
explosion, and any person be in such dwelling-house, ship or boat, and the
damage causes actual danger to life ; or

(6) a bank, dyke or wall of the sea, or of any inland water, natural or
artificial, or any work in, on, or belonging to any port, harbour, dock or
inland water, natural or artifioial, and the damage causes actual danger or
inundation; or

(c) any bridge (whether over any stream of water or not) or any viaduct,
or aqueduct, over or under which bridge, viaduct or aqueduct p.ny highway,
railway or canal passes, and the damage is done with intent and so as to
render such bridge, viaduct or aqueduct, or the highway, railway or canal
passing over or under the same, or any part thereof, dangerous and impass-
able ; or

(d) a railway damaged with the intent of rendering and so as to render
such railway dangerous or impassable. R. S. C. c. 168, ss. 13, 32 & 49 ; o. 32,
8.213.

(JB) to fourteen years' imprisonment if the object damaged be —

(a) a ship in distress or wrecked, or any goods, merchandise or articles
belonging thereto ; or

(6) any cattle or the young thereof, and the damage be caused by killing,
maiming, poisoning or wounding.

(CO to seven years' imprisonment if the object damaged be —

(a) a ship damaged with intent to destroy or render useless such ship ; or

(h) a signal or mark used for purposes of navigation ; or

materials fixed in the ground for securing the same, or any work belonging to

any port, harbour, dock, or inland water or canal ; or

.tf'l'j

574

MISCHIEF.

[Sec. 499

{d) a navigable river or canal damaged by interference with the flood
gates or sluices thereof or otherwise, with intent and so as to obstruct the
navigation thereof ; or

(e) the flood gate or sluice of any private water with intent to take or
destroy, or so as to cause the loss or destruction of, the fish therein ; or

(/) a private fishery or salmon river damaged by lime or other noxious
material put into the water with intent to destroy fish then being or to be put
therein ; or

{(f) the flood gate of any mill-pond, reservoir or pool out through or
destroyed ; or

(h) goods in process of manufacture damaged with intent to render them
useless ; or

(i) agricultural or manufacturing macliines, or manufacturing imple-
ments, damaged with intent to render them useless ; or

(j) a. hop bind growing in a plantation of hops, or a grape vine growini?
ill a vineyard. R. S. C. c. 168, ss. 10, 17, 21, 33, 34, 50 & 52.

(D) to five years' imprisonment if the object damaged be —

(a) a tree, shrub or underwood growing in a park, pleasure ground or
garden, or in any land adjoining or belonging to a dwelling-house, injured to
an extent exceeding in value five, dollars ; or

(6) a post letter bag or post letter ; or

(c) any street letter box, pillar box or other receptacle established by
authority of the Postmaster-General for the deposit of letters or other niailaWe
matter ; or

(d) any parcel sent by parcel ix)st, any packet or package of patterns or
samples of merchandise or goods, or of seeds, cuttings, bulbs, roots, scions or
grafts, or any printed vote or proceeding, newspaper, printed i^aiier or book or
other mailable matter, not being a |}ost letter, sent by mail ; or

(c) any property, real or personal, corporeal or incorporeal, for damage to
which no special punishment is by law prescribed, damaged b>/ night to the
value of twenty dollars. R. S. C. c. 168, ss. 22, 23, S8 & 58 ; c. 35, ss. 79, 91,
96 & 107. 53 V. c. 37, s. 17.

(E) To two years' imprisonment if the object damaged be —

(a) any property, real or personal, corporeal or incorporeal, for damage to
which no si^ecial punishment is by law prescribed, damaged to the value of
twenty dollars. R. S. C. c. 168, ss. 36, 42 & 58. 53 V. c. 37, s. 17 (Animdtd).

The punishments are altered in some of these cases.
"Night" and "cattle" defined, s. 3. The words "by
night " in (Z)) (e) are new.

The Imperial Act on malicious injuries is 24 & 25 y.c.97;
also, 39 v. c. 13, as to poisoning cattle.

1 ndictment for damaging a river bank {A) {h). —
a certain part of the bank of a certain river, called the
river situate unlawfully][and wilfully,

Sec. 4i)9]

MISCHIEF.

575

without legal justification or excuse, and without colour of
right, did cut down and break down, by means whereof
certain lands were then overflowed and damaged (or were
in actual danger of being inundated). As to verdict for an
attempt to commit the offenco charged upon an indictment
lor the offence itself, in certain cases, see s. 711.

INJURIES TO BRIDGES, ETC. {A) (o).

This clause by the words whether over any stream of
icater or not does away with the difficulties raised in R. v.
Oxfordshire, 1 B. & Ad. 289, and R. v. Derbyshire, 2
Q. B. 745.

Indictment for destroying a bridge. — a certain

bridge, situate unlawfully and wilfully, without legal

justification or excuse, and without colour of right, did
destroy, with intent, and so as to render the said bridge
impassable.

Indictment for damaging a bridge. — unlawfully

and wilfully, without legal justification or excuse, and
without colour of right, did damage a certain bridge, situ-
ate with intent, and so as to thereby render the said
bridge dangerous and impassable.

KILLING OR WOUNDING CATTLE. {B) (6).

Indictment for killing, or wounding, a horse. — one

horse of the goods and chattels of J. N. unlawfully and
wilfully, without legal justification or excuse, and without
colour of right, did kill {or wound).

A verdict for the attempt, punishable under next sec-
tion, may be given if the evidence warrants it, s. 711.

The particular species of cattle killed, maimed,
wounded or poisoned must be specified; an allegation that
the prisoner maimed certain cattle is not sufficient : R. v.
Chalkley, R. & R. 258. " Cattle " defined, s. 3 ante.

No malice against the owner is necessary. The words
" or injured " as to cattle were in the repealed clause.
Other acts of administering poison to cattle are admissible

676

MISCHIEF.

[Sec. 499

in evidence to show the intent with which the drug is
administered : B. v. Mogg, 4 G. & P. 864. The word loound
is contradistinguished from a permanent injury, such as
maiming, and a wounding need not be of a permanent
nature : R. v. Haywood, 2 East, P. C. 1076, R. & R. 16.

In R. V. Jeans, 1 G. & E. 539, it was held that where
part of the tongue of a horse was torn off there was no
offence against the statute, because no instrument was
used. But, under the present statute, the same act was
held to be a wounding within this section : R. v. Bullock,
11 Cox, 126. Upon a case reserved, in R. v. Owens, 1 Moo.
206, it was held that pouring acid into the eye of a mare,
and thereby blinding her, is a maiming ; setting fire to a
building with a cow in it, and thereby burning the cow to
death, is a killing within the statute : R. v. Haughton, 5
G. & P. 655.

The prisoner by a reckless and cruel act caused the
death of a mare. The jury found that he did not intend
to kill, maim or wound the mare, but that he knew that
what he did would or might kill, maim or wound the mare,
and that he nevertheless did the act recklessly, and not
caring whether the mare was injured or not. Heldy that
there was sufficient malice to support the conviction : B. v.
Welch, 13 Cox, 121.

Indictment for breaking down the flood-gate of a fish
pond (B) (e). — the flood-gate of a certain private

fish-pond of one J. N., situate unlawfully and wil-

fully, without legal justification or excuse, and without
colour of right, did break down, damage and destroy with
intent thereby then to take and destroy the fish in the said
pond then being.

Indictment for putting lime into a salmon river {B) (/).—
unlawfully and wilfully, without legal justification or excuse
and without colour of right, did by putting a large quantity,
to wit, ten bushels of lime into it, damage a certain salmon
river, situate with intent thereby then to destroy the

fish in the said river then being.

[Sec. 499

Sec. 4091

MISCHIEF.

577

\Wi

e drug is
ord ivound
y, such as
permanent
& R. 16.

that where
)re was no
iment was
ue act was
V. Bullock,
ens, 1 Moo.
) of a mare,
ng fire to a
g the coiv to
Saughton, 5

; caused the
d not intend
e knew that

d the mare,

ply, and not

Held, that

ction : R. v.

Ue of a fish

}tain private

illy and wil-

i,nd without

lestroy with

in the said

\er {B) (/).-

Ion or excuse
Ige quantity,
Itain salmon
1 destroy the

INJURIES TO MANUFACTURING MACHINES, ETC. CO) (i).

Taking away part of a frame and thereby rendering it

useless, E. v. Tacey, B. & B. 452, and screwing up parts of

an engine and reversing the plug of the pump, thereby

rendering it useless and liable to burst : B. v. Fisher, 10

Cox, 146, Warb. Lead Cas. 195, are damaging within the

Act, although no actual permanent injury be done. If a

threshing machine be taken to pieces and separated by the

owner the destruction of any part of it is within the

statute : B. v. Mackerel, 4 G. & P. 448. So is the destruction

of a water-wheel by which a threshing machine is worked:

B. T. Fidler, 4 0. & P. 449. So though the sideboards of

the machine be wanting, without which it will act but not

perfectly, it is within the statute. But if the machine be

taken to pieces, and in part destroyed by the owner from

fear, the remaining parts do not constitute a machine

within the statute : B. v. West, 2 Buss. 1087. It is not

necessary that any part of the machine should be broken ;

a dislocation or disarrangement is sufficient : B. v. Foster,

6 Cox, 26.

Indictment under (D) (a). two elm trees, the pro-

perty of J. N., then growing in a certain park of the saidi
J. N., situate in unlawfully and wilfully, without-

legal justification or excuse and without colour of right, did
cut and damage, thereby then doing injury to the said:
J.N. to an amount exceeding the sum of five dollars, to
wit, the amount of ten dollars. {A count may be added for
cutting icith intent to steal the treeSf under «. 336.

Indictment under (D) (e). ten elm trees, the pro-

perty of J. N., then growing in a certain close of the said
J. N., situate unlawfully and wilfully, without

legal justification or excuse and without colour of right,
did cut and damage by night, thereby then doing injury ta
the said J. N. to an amount exceeding the sum of twenty
dollars, to wit, the sum of twenty-five dollars. (Add a
count under 8. 336.)
Crim. Law— 37

hdh

■i

!.;M9

578

MISCHIEF.

[Sec. 499

See 8. 711, as to a verdict for an attempt to commit the
offence charged upon an indictment for the offence, in
certain cases. A variance in the number of trees is not
material. It must be proved, under (D) (a), that the tree
was growing in a park, and that the damage done exceeds
five dollars.

Under (D) (e) the damage must not be less than twenty
dollars and must have been done b}' night. The
amount of injury done means the actual injury done
to the trees by the defendant's act ; it is not sufficient to
bring the case within the statute that, although the amount
of such actual injury is less than twenty dollars, the amount
of consequential damage would exceed twenty dollars : £.
V. Whiteman Dears. 853 ; see E. v. Lewis, 2 Russ. 1067,
as to indictment ; B. v. Williams, 9 Cox, 338 ; B. v.
Tboman, 12 Cox, 54.

Defendant was indicted for unlawfully and maliciously
tommitting damage upon a window in the house of the
prosecutor. Defendant, who had been fighting with other
persons in the street after being turned out of a public
house, went across the street, and picked up a stone which
he threw at them. The stone missed them, passed over
their heads, and broke a window in the house. The jury
found that he intended to hit one or more of the persons he
bad been fighting with, and did not intend to break the
window : Held, that upon this finding the prisoner was
not guilty of the charge within this section ; to support a
conviction of this nature there must be a wilful and inten-
tional doing of an unlawful act in relation to the property ]
damaged : B. v. Pembliton, 12 Cox, 607 ; see on this last
case B. v. Welsh, 13 Cox, 121; B. v. Faulkner, 13 Cox, 550,
and B. v. Latimer, 16 Cox, 70.

The words " real or personal property " mean actual,
tangible property, not a mere legal right: Laws v. Eltring-
ham, 15 Cox, 22, 8 Q. B. D. 283.

[Sec. 499

ommit the
)ffence, in
rees is not
at the tree
ne exceeds

ban twenty
ght. The
njury done
sufficient to

the amount
, the amount

dollars : B.

Buss. 1067,
338; R. V.

i maliciously
house of the
ig with other
of a public
stone which
L passed over
e. The jury
he persons he
to break the
[prisoner was
to support a
ful and inten-
the property
on this last
1, 13 Cox, 550,

I mean actual,
?8 V. Eltring-

Sees. 600, 601]

INJURIES TO ANIMALS.

579

Two indictments were preferred against defendants for
feloniously destroying the fruit trees respectively of M. and
0. The offences charged were proved to have been com-
mitted on the same night, and the injury complained of
was done in the same manner in both cases. Defendants
were put on trial on the charge of destroying the trees of
M. and evidence relative to the offence charged in the other
indictment was admitted as showing that the offences had
been committed by the same persons.

Held, that such evidence was properly received : R. v.
McDonald, 10 0. R. 563.

Attempts to Kiit, Etc., Cattle.

500. Every one is guilty of an indictable o£Fence and liable to tioo years'
impnsonment who wilfully—

(a) attempts to kill, maim, wound, poison or injure any cattle, or the
younpf thereof ; or

(b) places poison in such a position as to be easily partaken of by any such
animal. R. S. C. c. 168, s. 44.

" Cattle " defined, s. 3 ; fine, s. 958. See remarks under
preceding section. The punishment was not defined in the
repealed clause.

As to attempts generally see remarks under s. 64. This
8. 600 has no other effect than to reduce the punishment,
which, without it, would be seven years under ss. 499-528.

Injuries to Other Animals.

901. Every one is guilty of an offence and liable, on summary convic-
tion, to a penalty not exceeding one hundred dollars over and above the
amount of injury done, or to three months' imprisonment with or without hard
labour, who wilfully kills, maims, wounds, poisons or injures any dog, bird,
beast, or other animal, not being cattle, but being either the subject of larceny
at common law, or being ordinarily kept in a state of confinement, or kept for
any lawful purpose.

2. Every one who, having been convicted of any suoh offence, afterwards
commits any offence under this section, is guilty of an indictable offence, and
liable to a fine or imprisonment, or both, in the discretion of the court.
53 V. 0. 37, 8. 16. R. S. C. c. 168, s. 46 (Amended).

The punishment under s-s. 2 is provided for by s. 951.

Greaves says : " This clause is new, and is a great im-
provement of the law, as it will protect domestic animals

•ill" «

580

MISCHIEF.

[Sees. S02, 603

from malioiouB injuries. It includes any beast or animal,
not being cattle, which is the subject of larceny at common
law. It also includes birds which are the subject of larceny
at common law, such as all kinds of poultry and, under
certain circumstances, swans and pigeons. So also it
includes any bird, beast or other animal ordinarily kept
in a state of confinement, though not the subject of larceny,
such as parrots and ferrets ; and it is to be observed that
the words ordinarily kept in a state of confinement, are a
description of the mode in which the animals are usually
kept, and do not render it necessary to prove that the bird
or animal was confined at the time when it was injured.
Lastly the clause includes any bird or animal kept for any
domestic purpose, which clearly embraces cats."

As to a verdict of attempt to commit the offence charged
in certain cases see s. 711.

The words or kept for any lawful purpose cover all animals
kept in a circus, menagerie, etc.

Threats to Injure Cattle.

50%> Every one is guilty of an indictable offence and liable to two years'
imprisonment who sends, delivers or utters, or directly or indirectly caiises to
be received: knowing the contents thereof, any letter or writing threatening to
kill, maim, wound, poison, or injure any cattle. R. S. C. o. 173, s. 8. 24-25 V.
c. 97, 8. 50 (Imp.).

See ante, under s. 487.

Fine, s. 968. " Cattle " defined, s. 3.

The punishment was ten years by the repealed clause.
It is still ten years, under s. 487, for sending a letter
threatening to burn any building, stack of grain, etc.
Why it should be two years under this section and ten
under s. 487 is not clear.

Injuries to Poll-Books, Etc.

808. Every one is guilty of an indictable offence and liable to mtn
yean' imprisonment who wilfully —

(a) destroys, injures or obliterates, or causes to be destroyed, injured or
obliterated ; or

(b) makes or causes to be made any erasure, addition of names or inter-
lineation of names in or upon —

Seo8. 602, 003

Sec. 604]

INJURIES BY TENANTS.

681

any writ of election, or any return to a writ of eliotion, or any indenture,
jK)ll-book, voters' list, certificate, affidavit or rcjxirt, or any tlcxjiiinent, ballot or
j)ftl)er made, prepared or drawn out according to an> law in regard to Doviinion,
provincial, municipal or civic elections. R. S. c. IGW, h. 65 {Amended),

The words " Dominion" and " ballot" are new. They
were not required ; s, 102 of c. 8, B. S. G. fully covers them.

See under s. 551, post, a reference to the above section.

Indictment. — that A. B. at on

unlawfully and wilfully, without legal justification or excuse,
and without colour of right, did destroy {injure or obliterate)
a certain writ of election {describe) prepared and drawn
out according to a law of the Dominion of Canada, to wit,
the Act (<J« the case may be).

To destroy any ballot or paper is by the above section
punishable by seven years. To destroy any ballot paper, or
a ballot box, or a packet of ballot papers is, by s. 100, c. 8,
B. S. C, punishable by any term not exceeding six months !

Injuries by Tenants.

S04. Every one is guilty of an indictable offence and liable to^ve yeart'
imprisonment who, being possessed of any dwelling-house or other building,
or part of any dwelling-house or other building which is built on lands subject
to a mortriage or which is held for any term of years or other less term, or at
will, or held over after the termination of any tenancy, wilfully and to the pre.
judice of the mortgagee or owner —

(a) pulls down or demolishes, or begins to pull down or demolish the same
or any part thereof, or removes or begins to remove the same or any part
thereof from the premises on which it is erected ; or

(b) pulls down or severs from the freehold any fixture fixed in or to such
dwelling-house or building, or part of such dwelling-house or building.
R. S. C. c. 168, 8. 15 (Extended). 24-25 V. c. 97, s. 13 (Imp.).

The words in italics are new.

Fine, s. 958.

Indictment. — that on

of a certain dwelling-house, situate
as tenant for a term of years then unexpired; and that the
said A. B., being so possessed as aforesaid, on the day and
year aforesaid, did wilfully, to the prejudice of C. D., the
owner, without legal justification or excuse, and without
colour of right, pull, down and demolish the said dwelling-

A. B. was possessed
then held by him

'■; 'f

582

MISCHIEF.

[Sees. 505-507

house {or begin to pull down "or" demolish the said dwelling'
house or any part thereof.)

Injuries to Land Marks.

505. Every one is guilty of an indictable oifence and liable to seven
years' imprisonment who wilfully pulls down, defaces, alters or removes any
mound, land mark, post or monument lawfully erected, planted or placed to
mark or determine the boundaries of any province, county, city, town, town-
ship, parish or other municipal division. R. S. C. c. 168, s. 56.

506. Every one is guilty of an indictable offence and liable to five years*
imprisonment who wilfully defaces, alters or removes any mound, land mark,
post or monument lawfully placed by any land surveyor to mark any limit,
boundary or angle of any concession, range, lot or parcel of land.

2. It is not an offence for any land surveyor in his operations to take up
such posts or other boundary marks when necessary, if he carefully replace*
them as they were before. R. S. C. c. 168, s. 57.

The words "pulls down" in s. 605 are omitted from
s. 506. " So are the words erected or planted."

The words " by any land surveyors " in s. 506 are not
in s. 505.

The offence mentioned in s. 506 can only be committed
in relation to boundaries or land marks which have been
Ze^a% placed by a land surveyor: B. v. Austin, 11 Q. L. B.
76.

The punishment for the offence covered by s. 506 was
three months' imprisonment, or a fine of one hundred
dollars, or both, by the repealed clause.

Injuries to Fences, Stiles, Etc.

507. Every one is guilty of an offence and liable, on summary convic-
tion, to a penalty not exceeding twenty dollars over and above the amount of
the injury done, who wilfully destroys or damages any fence, or any wall,
stile or gate, or any part thereof respectively, or any post or stake planted or set
upon any land, mamh, swamp or land covered by water, on or as the boundary
or part of the boundary line thereof, or in lieu of a fence thereto.

2, Every one who, having been convicted of any such offence, afterwards
commits any such offence is liable, on summary conviction, to three months'
imprisonment with hard labour. R. S. C. c. 168, s. 27. 53 V. o. 38, s. 15.
24-25V. c. 97, s. 25(lmp.).

The words in italics are not in the English Act.

The act must have been done maliciously (wilfully) to
be punishable under this clause : E. v. Bradshaw, 88 U. C.
Q. B. 564 ; see s. 481, ante.

[Sees. 505-507

506 are not

Sees. 507a, 508]

INJURIES TO HARBOURS.

Injcries to Harbodbs.

583

((07a* Every one is guilty of an offence, and liable, on summary con*
viction, to a penalty not exceeding fifty dollars, who wilfully and without the
permisnion of the Minister of Marine and Fisheries (the burden of proving
which permission shall lie on the accused) removes any stone, wood, earth or
other material, forming a natural bar necessary to the existence of a public
harbour, or forming a natural protection to such bar. (Amendment of 1893).

Injuries to Trees, 25 cents.

90§* Every one is guilty of an offence and liable, on summary convio^
tion, to a penalty not exceeding twenty-five dollars over and above the amount
of injury done, or to ttoo months' imprisonment with or without hard labour^
who wilfully destroys or damages the whole or any part of any tree, sapling or
shrub, or any underwood, wheresoever the same is growing, the injury done
being to the amount of twenty-five cents, at the least.

2. Every one who, having been convicted of any such offence, afterwards.
commits any such offence is liable, on summary conviction, to a penalty not
exceeding fifty dollars over and above the amount of the injury done, or t*
four months' imprisonment with hard labour.

3. Every one who, having been twice convicted of any such offence, after-
wards commits any such offence, is guilty of an indictable offence and liable to
two years' imprisonment. R. S. 0. o. 168, s. 24. 24-25 V. c. 97, s. 22 (Imp.).

The punishments are altered.

If the injury does not amount to twenty-five cents the
defendant may be punished under s. 511, post.

See 8. 907, post, where it has been forgotten that the
words " cut, break, root up " of the repealed clause have
been left out in s. 508.

Indictment after two previous convictions for cutting or
damaging trees to the value of tiventy-five cents wheresoever
groiving. — that J. S., on one elm tree, the pro-

perty of J. N., then growing on a certain land of the said
J. N. in the unlawfully and wilfully, without legal

justification or excuse, and without colour of right, did
destroy and damage, thereby then doing injury to the said
J. N., to the amount of forty cents. And the jurors afore-
said do say, that heretofore and before the committing of
the offence hereinbefore mentioned {stating the two previous
convictions and concluding as in form p. 379, ante). See
88. 628 and 676 as to indictments and procedure in indict-
able offences committed after previous convictions, and for

I ■

■5-.S

'M'

■li

ii|

i'i

<if'

'|1

jiil

.'''

^'l;

/('

m..

584

MISCHIEF.

[Sees. 509, 510

which a greater punishment may be inflicted on that
account.

If, in answer to a charge under this section, the defend-
ant sets up a bona fide claim of right the justices of the
peace have no jurisdiction : E. v. O'Brien, 5 Q. L. E. 161.

Destroying Vegetables.

909* Every one is guilty of an offence and liable, on summary conviction,
to a penalty not exceeding twenty dollars over and above the amount of the
injury done, or to three months' imprisonment with or without hard labour,
who wilfully destroys, or damages with intent to destroy, any vegetable pro-
duction growing in any garden, orchard, nursery ground, house, hot-house,
green-house or conservatory.

2. Every one who, having been convicted of any such offence, afterwards
commits any such offence is guilty of an indictable offence, and liable to two
years' imprisonment. R. S. C. c. 1G8, s. 25. 24-25 V. c. 97, s. 23 (Imp.).

SIO* Every one is guilty of an offence and liable, on summary convic-
tion, to a penalty not exceeding five dollars over and above the amount of the
injury done, or to one month's imprisonment with or without hard labour, who
wilfully destroys, or damages with intent to destroy, any cultivated root or
plant used for the food of man or beast, or for medicine, or for distilling, or
for dyeing, or for or in the course of any manufacture, and growing in any
land, open or inclosed, not being a garden, orchard or nursery ground.

2. Every one who, having been convicted of any such offence, afterwards
commits any such offence is liable, on summary conviction, to three months'
imprisonment with hard labour. R. S. C. c. 168, s. 26. 24-25 V. c. 97, s. 24
(Imp.).

Indictment under 8. 509 for destroying plants after a
previous conviction. — that J. 8., on one

dozen heads of celery, the property of J. N., in a certain
garden of the said J. N., situate then grow-

ing, unlawfully and wilfully, without legal justification or
excuse, and without colour of right, did destroy. And the
jurors aforesaid do say that heretofore and before the
committing of the ofifence hereinbefore mentioned {state
the previous conviction). And so, the jurors aforesaid, do
say that the said J. S. on the day and year first aforesaid,
one dozen heads of celery, the property of J. N., in a certain
garden of the said J. N., situate then growing,

unlawfully and wilfully, without legal justification or
excuse, and without colour of right, did destroy.

Sec. 511]

OTHER INJURIES.

585

Other Injuries.

5U> Every one who wilfully commits any damajjfe, injury or spoil to or
upon any real or jjersonal property cither corporeal or incorporeal, and either of
a public or private nature, for yrhich no punishment is hereinbefore provided, l
is guilty of an offence and liable, on summary conviction, to a i)enalty not
exceeding twenty dollars, and such further sum, not exceeding t'.venty dollars, '
as appears to the justice to be a reasonable compensation for the damage,
injury or spoil so committed, — which last mentioned sum of money shall, in
the case of private property, be paid to the person aggrieved ; and if such
sums of money, together with the costs, if ordered, are not paid, either
immediately after the conviction, or within such period as the justice at the
time of the conviction appoints, the justice may cause the offender to be
imprisoned for any term not exceeding two months, with or without hard
labour.

2. Nothing herein extends to —

(a) any case where the person acted under a fair and reasonable supposi-
tion that he had a right to do the act complained of ; or

(6) any trespass, not being wilful and malicious, committed in hunting or
fishing or in the pursuit of game. R. S. C. c. 168, s. 59. 53 V. c. 37, s. 18.
24-25 V. c. 97, 8. 52 (Imp.).

The words in italics were introduced by the Act of 1890.

The proviso in s-s. 3 of the repealed clause extending
this enactment in express terms to trees, etc., where the
damage is less than twenty-five cents has not been re-en-
acted : see R. v. Dodson, 9 A. & E. 704, and Charter v.
Greame, 13 Q. B. 216.

The word " herein " is s-s. 2, would apply to the whole
Act, and not merely to this section by B. S. C. c. 1, s. 7, s-s
5. It is clear, however, that here it applies only to this

section.

W. was summoned before the justices under this clause.
He was in the employment of D., and by his order he
forcibly entered a garden belonging to and in the occupation
of F. accompanied by thirteen other men, and cut a small
ditch, from forty to fifty yards in length, through the soil.
F. and bis predecessors in title had occupied the garden
for thirty-six years, and during the whole time there had
been no ditch upon the site of part of that cut by D. For
the defence D. was called, who stated that, fifteen years
before, there had been an open ditch in the land which

■ff»

III, ';];'■

■mm.

'li-

I '] ' 1.

586

MISCHIEF.

[Sec. 611

received tbe][tlrainage from the highway, and that he gave
directions for the ditch to be cut by W. in the exercise of
what be considered to be a public right. The justices found
that W. had no fair and reasonable supposition that he had a
right to do the act complained of, and accordingly convicted
him: Held, that by the express words of the section and
proviso the jurisdiction of the justices was not ousted by
the mere bona fide belief of W. that bis act was legal, and
that there was evidence on which they might properly find
that he did not act under the fair and reasonable supposi-
tion required by the statute : White v. Feast, L. B. 7 Q. B.
353.

A conviction by justices under s. 52, c. 97, 24 & 25 V.
(s. 511, ante), cannot be brought up by certiorari, on the
ground that they had no jurisdiction inasmuch as the
defendant had set up a bona fide claim of right, but the
exemption is impliedly restricted to cases where the justices
are reasonably satisfied of the fair and reasonable character
of the claim : E. v. Mussett, 26 L. T. 429.

See R. v. Prestney, 3 Cox, 505 ; Butler v. Turley, 2
C. & P. 585 ; Gardner v. Mansbridge, 16 Cox, 281, 19
Q. B. D. 217.

Sees. 612-514]

CRUELTY TO ANIMALS.

I I

587

PART XXXVIII.

CRUELTY TO ANIMALS.

Section 7o/c. 172 R. S. C. i» unrepealed. All proseciUions under this part
are subject to three months limitation; s. 551. See remarks under next section.

SIS- Every one is guilty of an offence and liable, on summary conviction
before two justices of the peace, to a penalty not exceeding fifty dollars, or to
three months' imprisonment with or without hard labour, or to both, who —

(a) w.antonly, cruelly or unnecessarily beats, binds, ill-treats, abuses,
overdrives or tortures any cattle, poultry, dog, domestic animal or bird ; or

(i) while driving any cattle or other animal is, by negligence or ill-usage
in the driving thereof, the means whereby any mischief, damage or injury is
done by any cattle or other animal ; or

(c) in any manner encourages, aids or assists at the fighting or baiting of
any bull, bear, badger, dog, cock, or other kind of animal, whether of domestic
or wild nature. R. S. C. o. 172, s. 2.

The Imperial Act on cruelty to animals is 12 & 13 V. c. 92,
amended by 17 & 18 V. c, 60, and 39 «& 40 V. c. 77 : see Elliott
V. Osborn, 17 Cox, 346. As to dishorning cattle see Ford
V. Wiley, 16 Cox, 683, 23 Q. B. D. 203 ; Callaghan v. The
Society, 16 Cox, 101; and R. v. McDonagh, 28 L. R. Ir. 204.

«(13« Every one is guilty of an offence and liable, on summary conviction
before two justices of the peace, to a penalty not exceeding fifty dollars, or to
three months' imprisonment, with or without hard labour, or to both, who
builds, makes, maintains or keeps a cock-pit on premises belonging to or
occupied by him, or allows a cock-pit to be built, made, maintained or kept on
premises belonging to or occupied by him.

2. All cocks found in any such cock-pit, or on the premises wherein such
cock-pit is, shall be confiscated and sold for the benefit of the municipality in
which such cock-pit is situated. R. S. C. c. 172, s. 3.

Sections 4 & 5 of c. 172. R. S. C. have not been re-
enacted. See s. 552, s-s. 2, as to arrest without warrant
for offences against this and the preceding section.

414. No railway company within Canada whose railway forms any part
of a line of road over which cattle are conveyed from one province to another
province, or from the United States to or through any province, or from any
part of a province to another part of the same, and no owner or master of any
vessel carrying or transix>rting cattle from one province to another province,
or within any province, or from the United States thiough or to any province.

lii r

I'. !'

''V'.

588

CRUELTY TO ANIMALS.

[Sec. 515

shall confine the same in any car, or vessel of any description, for a longer
period than twenty-eight hours without unlading the same for rest, water and
feeding for a period of at least tive consecutive hours, unless prevented from
so unlading and furnishing water and food by storm or other unavoidable
cause, or by necessary delay or detention in the crossing of trams.

2. In reckoning the period of confinement the time during which the
cattle have been confined without such rest, and without the furnishing of
food and water, on any connecting railways or vessels from which they are
received, whether in the United States or in Canada, shall be included.

3. The foregoing provisions as to cattle being unladen shall not apply
when cattle are carried in any car or vessel in which they have proper space
and opportunity for rest, and proper food and water.

4. Cattle so unloaded shall be properly fed and watered during such rest
by the owner or person having the custody thereof or, in case of his default in
so doing, by the railway company, or owner or master of the vessel transport-
ing the same, at the expense of the owner or person in custody thereof ; and
such company, owner or master shall in such case have a lien upon such cattle
for food, care and custody furnished and shall not be liable for any detention
of such cattle.

5. Where cattle are unladen from cars for the purpose of receiving food,
water and rest, the railway company then having charge of the cars in which
they have been transported shall, except during a period of frost, clear the
floors of such cars, and litter the same proi^erly with clean saw-dust or sand
before reloading them with live stock.

6. Every railway company, or owner or master of a vessel, having cattle
in transit, or the owner or person having the custody of such cattle, as afore-
said, who knowingly and wilfully fails to comply with the foregoing provisions
of this section, is liable for every such failure on summary conviction to a pen-
alty not exceeding one hundred dollars. R. S. C. c. 172, ss. 8, 9, 10 & 11.

515. Any (leace officer or constable may, at all times, enter any premises
where he has reasonable grounds for su])ix)sing that any car, truck or vehicle,
in resjiect whereof any company or person has failed to comply with the pro-
visions of the next preceding section, is to be found, or enter on board any
vessel in respect whet^eof he has reasonable grounds for supposing that any
company or person has, on any occasion, so failed.

2. Every one who refuses admission to such peace officer or constable is
guilty of an offence and liable, on summary conviction, to a iienalty not ex-
ceeding twenty dollars and not less than five dollars, and costs, and in default
of payment to thirty day's imprisonment. R. S. C. c. 171, s. 12.

Ch. 171 cited under this section is an Act resjiecting Seamen.

Sees. 516-C20]

CONSPIRAC Y-COMBIN ATIONS.

589

PART XXXIX.

OFFENCES CONNECTED WITH TRADE AND BREACHES OF

CONTRACT.

Conspiracy— Combinations.
A 16. A conspiracy in restraint of trade is an agreement between two or
more persons to do or procure to be done any unlawful act in restraint of

trade.

The "Trade Unions' Act" is c. 131, R. S. C. S. 12, s-s. 5
of c. 173, R. S. C, and ss. 4 & 5 of 52 V. c. 41 remain unre- .
pealed. As to conspiracies generally see post, under s. 527.

517. The purposes of a trade union are not, by reason merely that they
are in restraint of trade, unlawful within the meaning of the next preceding
section. R. S. C. c. 131, s. 22.

For the Imperial Statutes 8ee Archbold, 20th edition,
p. 1006. See also R. v. Gibson, 16 0. R. 704.

518. No prosecution shall be maintainable against any person for con-
spiracy in refusing to work with or for any employer or workman, or for doing
any act or causing any act to be done for the purpose of a trade combination,
unless such act is an offence punishable by statute. 53 V. c. 37, s. 19.

510. The expression "trade combination" means any combination
between masters or workmen or other loersons for regulating or altering the
relations between any persons being masters or workmen, or the conduct of any
master or workman in or in respect of his business or employment, or contract
of employment or service ; and the expression "act " include a default, breach
nr omission. R. S. C. c. 173, s. 13.

320. Every one is guilty of an indictable offence and liable to a penalty
not exceeding four thousand dollars and not less than two hundred dollars, or
to two years' imprisonment, and if a corporation is liable to a jjenalty not
exceeding ten thousand dollars and not less than one thousand dollars, who
conspires, combines, agrees or arranges with any other person, or with any rail-
way, steamship, steamboat or transiwrtation company, unlawfully—

(fl) to unduly limit the facilities for transijorting, producing, manufactur-
ing, supplying, storing or dealing in any article or commodity which may be
a subject of trade or commerce ; or

(h) to restrain or injure trade or commerce in relation to any such article
or commodity ; or

(c) to unduly prevent, limit or lessen the manufacture or production of
any such article or commodity, or to unreasonably enhance the price thereof ;
or

590

OFFENCES CONNECTED WITH TRADE. [Sec. 521

{d) to unduly prevent or lessen competition in the production, manufacture,
purchase, barter, sale, transportation or supi)ly of any such article or commodity
or in the price of insurance upon person or property. 52 V. c. 41, 8. 1.

Not triable at quarter sessions; s. 540.

Criminal Breach op Contract.

931- Every one is guilty of an indictable offence and liable on indictment,
or on summary conviction before two justices of the peace, to a jjenaity not
exceeding one hundred dollars or to three months' imprisonment, with or
without hard labour, who —

(a) wilfully breaks any contract made by him knowing, or having
reasonable cause to believe, that the probable consequences of his so doing,
either alone or in combination with others, will be to endanger human life, or
to cause serious bodily injury, or to e.xjxjse valuable property, whether real or
j)ersonal, to destruction or serious injury ; or

(h) being, under any contract ii ade by him with any municipal coriwra-
tion or authority, or with any company, bound, agreeing or assuming to supply
any city or any other place, or any part thereof, with electric light or power, gas
or water, wilfully breaks such contract knowing, or having reasonable cause to
believe, that the probable consequences of his so doing, either alone or in
combination with others, will be to deprive the inhabitants of that city or
I>lace, or part thereof, wholly or to a great extent, of their supply of power,
light, gas or water ; or

(c) being, under any contract made by him with a railway company, bound,
agreeing or as.suming to carry Her Majesty's mails, or to carry passengers or
freight, or with Her Majestj', or any one on behalf of Her Majesty, in connec-
tion with a Government railway on which Her Majesty's mails, or passengers
or freight are carried, wilfully breaks such contract knowing, or having reason
to believe, that the probable consequences of his so doing, either alone or in
combination with others, will be to delay or jirevent the running of any locomo-
tive engine, or tender, or freight or passenger train or car, on the railway,

2. Every municipal corporation or authority or company which, being
bound, agreeing or assuming to supply any city, or any other place, or any
part thereof, with electric light or power, gas or water, wilfully breaks any
contract made by such municipal corporation, authority, or company, knowing
or having reason to believe that the probable consequences of its so doing will
be to deprive the inhabitants of that city or place or part thereof wholly, or to
a great extent, of their supply of electric light or power, gas or water, is liable to
a penalty not exceeding one thousand dollars.

.3. Every railway company which, being bound, agreeing or assuming to
carry Her Majesty's mails, or to carry passengers or freight, wilfully breaks
any contract made by such railway company, knowing or having reason to
believe that the probable consequences of its so doing will be to delay or prevent
the running of any locomotive engine or tender, or freight or passenger train
or car on the railway is liable to a penalty not exceeding one hundred dollars.

4. It is not material whether any offence defined in this section is com-
mitted from malice conceived against the person, ooriroration, authority or

[Sec. 521

manufacture,
)r commodity,

L, 8. 1.

on indictment,
I a i)enalty not
ment, with or

ng, or having
f his so doing,
' human hfe, or
whether real or

nicipal corpora-
iming to supply
iht or power, gas
sonable cause to
;her alone or in
of that city or
lupplyof power,

iompany, bound,
•y passengers or

^esty, in connec-
la, or passengers
ir having reason
ither alone or in
igof anylocomo-
|the railway.

ly which, being
ler place, or any
|ully breaks any
pany, knowing
its so doing will
•eof wholly, or to
k-ater, is liable to

■ or assuming to
[ wilfully breaks
laving reason to
[delay or prevent
1 passenger train
liundred dollars,
section is com-
L, authority or

Sees. 522, 523]

INTIMIDATION.

591

company with which the conlVact is made or otherwise. R. S. C. c. 173,
88. 15. 16, 17 & 18. 38-39 V. c. 80 (Imp.).

The words in italics are new.

582. Every such municipal carporation, authority, or company, shall
cause to be posted up at the electrical works, gas works, or water-works, or
railway stations, as the case may be, belonging to such corporation, authority
or company, a printed copy of this and the preceding section in some
conspicuous place, where the same may be conveniently read by the public ;
and as often as such copy becomes defaced, obliterated or destroyed shall
cause it to be renewed with all reasonable despatch.

2. Every such municipal corporation, authority or company which makes
default in complying with such duty is liable to a penalty not exceeding
twenty dollars for every day during which such default continues.

3. Every ijerson unlawfully injuring, defacing or covering up any such
copy BO posted up is liable, on summary conviction, to a penalty not exceeding
ten dollars. R. S. C. o. 173, s. 19.

Intimidation.

SS8. Every one is guilty of an mdictable offence and liable, on indict-
ment or on summary conviction before two justices of the peace, to a fine not
exceeding one hundred dollars or to three months' imprisonment with or with-
out hard labour who, wrongfully and without lawful authority, with a view to
compel any other person to abstain from doing anything which he has a lawful
right to do, or to do anything from which he has a lawful right to abstain —

(a) uses violence to such other person, or his wife or children, or injures
his property ; or

(b) intimidates such other person, or his wife or children, by threats of
using violence to him, her or any of them, or of injuring his property ; or

(e) persi^ . ntly follows such other person about from place to place ; or
(d) hides any tools, clothes or other property owned or used by such
other person, or deprives him of, or hinders him in, the use thereof ; or

(c) with one or more other persons follows such other person, in a
disorderly manner, in or through any street or road ; or

(/) besets or watches the house or other place where such other person
resides or works, or carries on business or hapi)ens to be. R. S. C. c. 173, s. 12.

Sub-section 5 of a. 12, c. 173, E. S. C. is unrepealed,

This is a re-enactment of 88 & 39 V. c. 86, s. 7, (Imp.).
See Smith v. Thomasson, 16 Cox, 740, Warb. Lead. Cas.
205, and cases there cited, and Connor v. Kent, 17 Cox,
854.

Indictment for picketting. — that A. B., C. D., and

E. F., unlawfully and wickedly, and unjustly devising,
contriving, and intending to injure and aggrieve one G. H.

I.;

^ "■'!

•■«',n

!f , ^1

■i ir

^:-i. ;

^; !

Ill

592

OFFENCES CONNECTED WITH TRADE.

[Sec. 523

and I. J., carrying on business as (stating the busineaa) and
obstruct them in the business of their lawful calling and
business, did on the day of conspire to molest

and obstruct the said G. H. and I. J., then being such
(8tating the biiainesa), in their lawful calling, by watching
and besetting the house where the said G. H. and I. J. car-
ried on their said business, situate as aforesaid, with a view
to cause them to dismiss and cease to employ divers work-
men, to wit {naming them).

Second count. . . that the said A. B., C. D., and E. R,
unlawfully contriving and intending to injure and aggrieve
the workmen then being employed by the said G. H. an.'
I. J., and obstruct them in the pursuit of their lawful cal-
ling, unlawfully did on the day and at the place aforesaid
conspire to molest and obstruct K. L. and other workmen
in their lawful calling, by watching and besetting the
house and place of business situate as aforesaid wherein
the said G. H. and I. J. then carried on their said business,
wherein the said K. L. and other workmen hi>.npened to be,
with a view to coerce the said K. L. and other workmen,
and induce them to quit their said employment.

INTIMIDATION OF WORKMEN.

Indictment. — that heretofore, before and at the

time of committing the offence hereinafter in this count
mentioned, A. B. carried on trade and business as a {stating
his trade) at in the county of , and that C. D.

and E. F. were workmen, and were hired and employed by
and worked as workmen for the said A. B. in his said trade
and business. And the jurors aforesaid do further present
that {naming all the defendants) on the day of

did unlawfully by threats and intimidation endeavour to
force one C. D. and E. F., then being workmen hired and
employed by and working for the said A. B. in his said
trade and business as aforesaid, to depart from their
hiring, employment and work.

Sec. 624]

INTIMIDATION-ASSAULT.

593

leas) and
lling and
to molest
iing such
watching
, I. J. car-
ith a vievr
i^ers work-

andE.F.,
,d aggrieve
G. H. anJ
lawful cal-
e aforesaid
ir workmen
setting the
lid wherein
id business,
)ened to be,
workmen,

Second count. . . and the jurors aforesaid, do further
present that heretofore and at the time of the commit-
ting the offence hereinafter in this count mentioned the
8aid A. B. carried on bis said trade and business {state hi»
trade) aforesaid, in the county aforesaid, and that the said
C. P. and E. F. were workmen, and were hired and em-
ployed by and worked as workmen for the said A. B. in his.
said trade and business as aforesaid. And the jurors afore-
said, do further present that the said {natning the defend-^
ants) on the day and year aforesaid, did by unlawfully
molesting and obstructing the said C. D. and E. F., endea-
vour to force the said C. D. and E. F., so being such work-
men hired and employed by and working for the said A. B.>
in his said trade and business as aforesaid, to depart from
their said hiring, employment, and work.

In a conviction for following in a disorderly manner
with a view to compel any other person to abstain from
doing any act which he has a legal right to do, the acts
which the defendant attempted to obstruct must be specified :.
E. V. McKenzie, [1892] 2 Q. B. 519, 17 Cox, 542.

Intimidation— Assault.

534. Every one is guilty of an indictable offence and liable to tico years
imprisonment who, in pursuance of any unlawful combination or conspiracy to
raise the rate of wages, or of any unlawful combination or conspiracy respect-
ing any trade, business or manufacture, or respecting any person concerned or
employed therein, unlawfully assaults any jjerson, or, in pursuance of any suck
combination or conspiracy, uses any violence or threat of violence to any person,
xcith a vieto to hinder him from working or being employed at such trade, business
orvmnufacture. R. S. C. c. 173, s. 9.

Fine, s. 958.

The words in italics are not in the English Act, 24 & 26 V.
c. 100, s. 41, from which the enactment was first re-produced
in Canada. They cover any violence or threat of violence
with a view to hinder any person from working or being
employed at a trade, business or manufacture, in pursu-
ance of a combination or conspiracy respecting such trade,
business or manufacture.

Ckim. Law— 38

I it

694

OFFENCES CONNECTED WITH TRADE.

[Sec. 524

Indictment for an assault in pursuance of a conspiract/ to
raise ivages. — that J. S., J. W., and E. W., on

did amongst themselves conspire, combine, confederate,
and agree together to raise the rate of wages then usually
paid to workmen and labourers in the art, mystery and
business of cotton spinners ; and that the said
{defendants) in pursuance of the said conspiracy, on the
day and year aforesaid, in and upon one J. N., unlawfully
did make an assault, and him the said J. N., did then beat
wound and ill-treat, and other wrongs to the said J. N.,
did, to the great damage of the said J. N. {Add a count
■stating that the defendants assaulted J. N., "in pursuance of
a certain conspiracy before then entered into by the said
(defendants) to raise the rate of wages of workmen and
labourers in the art, mystery and business of cotton-spinners ;"
^Iso a count for a common assault.)

For a number of workmen to combine to go in a body
lo a master and say that they will leave the works, if he
does not discharge two fellow workmen in his employ, was
an unlawful combination by threats to force the prosecutor
to limit the description of his workmen : Walsby v. Anley,
8 E. & E. 516. And a combination to endeavour to force
workmen to depart from their work by such a threat as
that they would be considered as blacks, and that other
workmen would strike against them all over London, was
unlawful : In re Perham, 5 H. & N. 30. So also was a
combination with a similar object to threaten a workman
by saying to him that he must either leave his . master's
employ, or lose the benefit of belonging to a particular
club and have his name sent round all over the countrj:
O'Neill V. Longman, 4 B. & S. 376. But those cases are uot
now law. An indictment or commitment allegiog the
offence to be a conspiracy to force )^orkmen to depart from
their work by threats need not set out the threats : In re
Perham, supra', see ss. 611, 613, post.

See R. V. Rowlands, 2 Den. 364.

S»C8. 526, B26]

INTIMIDATION. ETC.

595

racy to
1

derate,
usually
try and
I

on the
lawfully
len beat,
id J. N.,
, a count

:men and
pinners;"

in a body
prks, if be
iploy, was
prosecutor
f V. Anley,
ir to force
threat as
ihat otber
>ndou, was
blso \va8 a
workman
^8. master's
particular
country.
Lses are not
[leging the
iepart from
;at8 : In '"«

Intimidation, Etc., Othkr Casks.

•ISS. Every one is Ruilty of an indictable offence and liable, on indictment
or on summary conviction b»»f()re two justices of the iM-ace, to a fine not exceed-
itifi one hundred dollars, or to thi e months' imprisonment with or without hard
labour, who—

(a) beats or uses any violence or threat of violence to any person with
intent to deter or hinder him from buying, selling or otherwise disptising of
any wheat or other grain, flour, moal, malt or potatoes or other produce or
good'*, in any market or other place ; or

(h) beats or uses any such violence or threat to any jierson having the
charge or care of any wheat or other grain, flour, meal, malt or potatoes, while
on the way to or from any city, market, town or other place with intent to
stop the conveyance of the same ; or

(c) by force or threats of violence, or by any form of intimidation whatio-
ti'er, hinders or prevents or attempts to hinder or prevent any seaman, stevedore,
ship carpenter, ship labourer or other ixsrson e»nployed to work at or on board
my Mp or vessel or to do any work connected with the leading or unloading there-
of, from working at or exercising any lawful trade, business, calling or
occupation in or for which he is so employed ; or tvith intent so to hinder or
prevent, besets or watches such ship, vessel or emjdoyee ; or

(({) beats or uses any violence to, or makes any threat of violence against,
any such person with intent to hinder or prevent him from working at or exer-
cising the same, or on account of his having worked at or exercised the savu.
R. S. 0. c. 173, 8. 10. 50-51 V. c. 49.

526. Every person is guilty of an indictable offence and liable to a fine
not exceeding four hundred dollars, or to two years' imprisonment, or to both,
who, before or at the time of the public sale of any Indian lands, or public
lands of Canada, or of any province of Canada, by intimidation, or illegal
combination, hinders or prevents, or attempts to hinder or prevent, any person
from bidding upon or purchasing any lands so offered for sale. R. S. C.
c.l73,s.l4.

The words in italics in s. 525 are partly additions made
to the Revised Statute c. 173, s. 11 by the Act, 50 & 51 V.
0.49. The words "or unfair management " were in the sec-
I tioD for which s. 526 is substituted.

«-;;',^*l

Ivlif

596

ATTEMPTS-CONSPIRACIES- ACCESSORIES. [Sec. 527

PART XL.

ATTEMPTS-CONSPIRACIES-ACCESSORIES.

Conspiracies. (Ifeto).

537. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who, in any case not hereinbefore provided for, conspires
with any person to commit any indictable offence.

See E. V. Eowlands, 3 Den. 364, and R. v. Whitchurch,
16 Cox, 743, for forms of indictment.

Treasonable conspiracies are provided for by as. 66 &
69; conspiracies to intimidate a legislature, by s. 70;
seditious conspiracies, by s. 123; conspiracies to bring
false accusations, by s. 152 ; conspiracies to defile women,
by s. 188 ; conspiracies to murder, by s. 234 ; conspiracies
tu defraud, by s. 394 ; conspiracies in restraint of trade
with assault or threats of violence, by s. 524.

Conspiracies to commit any of the offences which are
not triable at quarter sessions are themselves not triable
at quarter sessions ; s. 540.

The result of this enactment of s. 527 is that, in a
number of instances, the conspiracy to commit an offence,
whether that offence was committed or not, is more severely
punished than the offence itself would be. To obtain
passage on a railway by a false ticket for instance, is pun-
ishable by six months' (s. 362), but the conspiracy by two
or more persons to do so is punishable by seve^i yem'
imprisonment.

Conspiracy is a combination of two or more persons to
accomplish some unlawful purpose, or a lawful purpose by
unlav.rul means. This is the definition of conspiracy as
given by Lord Denman in R. v. Seward, 1 A. & E. 706;
and though questioned by the learned judge himself in
R. V. Peck, 9 A. & E. 686, as an antithetical definition,
and in R. v. King, 7 Q. B. 782, as not sufficiently compre-

Sec 627]

CONSPIRACIES.

597

hensive, it seems to be so far adopted as the most correct
definition of this offence : R. v. Jones, 4 B. & Ad. 345 ; 3
Russ. 116. Bishop 2 Cr. L. 171, has in clear and con-
cise terms said " Conspiracy is the corrupt agreeing
together of two or more persons to do, by concerted action,
something unlawful, either as a means or an end." See also
B. V. Bunn, 12 Cox, 316 ; E. v. Fellowes, 19 U. C. Q. B.
48; Mogul S. S. Co. v. McGregor, 23 Q. B. D. 598;
Connor v. Kent, 17 Cox, 354, and R. v. de Kromme, 17
Cox, 492 ; R. v. McGreevy, 17 Q. L. R. 196.

But the word " unlawful " used in these definitions of
conspiracy does not mean " indictable " or " criminal "
only. The combining to injure another by fraud, or to do
a civil wrong or injury to another, is an indictable con-
spiracy. So in a case where the prisoner and L. were in
partnership, and there being notice of dissolution prisoner
conspired with W. & P. in order to cheat L. on a division
of assets at the dissolution, by making it appear by entries
in the books that P. was a creditor of the firm, and by
reason thereof partnership property was to be abstracted
for the alleged object of satisfying P., it was held that
this was an indictable conspiracy : R. v. Warburtou, 11 Cox,
584 ; see R. v. Aspinall, 13 Cox, 231 and 563 ; R. v. Orman,
U Cox, 381, Warb. Lead. Cas. 81.

Mr. Justice Drummond, in R. v. Roy, 11 L. C. J. 89,
bas given the following definition of conspiracy : " A con-
spiracy is an agreement by two persons (not being husband
and wife), or more, to do or cause to be done an act
prohibited by penal law, or to prevent the doing of an act
ordered under legal sanction by any means whatsoever, or
to do or cause to be done an act whether lawful or not by
means prohibited by penal law:" R. v. Boulton, 12 Cox,
87 ; R. V. Parnell, 14 Cox, 508 ; R. v. Taylor, 15 Cox, 265,
268.

On an indictment for conspiracy to defraud by obtain-
ing goods on false pretenses the false pretenses need not

Mill

in
"H

I t^J...

\fii

598

ATTEMPTS-CONSPIRACIES, ETC. [Sees. 528-530

be set up : K. v. Gill, 2 B. & Aid. 204 ; Thayer v. R.,
5L. N. 162; see s. 616.

An indictment for conspiracy with intent to defraud, —
declared insufficient : E. v. Sternberg, 8 L. N. 122.

What are the necessary allegations in an indictment for
conspiracy : R. v. Downie, 13 R. L. 429 ; see also Defoy v.
E., Ramsay's App. Cas. 193.

Acts done to coerce others to quit their employment in
pursuance of a conspiracy are indictable : R. v. Hibbert,
13 Cox, 82 ; R. v. Bauld, 13 Cox, 282.

Where two persons are indicted for conspiring together,
and they are tried together, both must be iacquitted or both
convicted : R. v. Manning, 12 Q. B. D. 241, Warb. Lead.
Cas. 84.

Attempts to Commit Oppkncks. {New).

98S. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who attempts, in any case not hereinbefore provider! for,
to commit any indictable offence for which the punishment is imprisonment for
life, or for fourteen years, or for any term longer than fourteen years.

S20. Every one who attempts to commit any indictable offence for com-
mitting which the longest term to which the offender can be sentenced is less
than fourteen years, and no express provision is made by law for the punish-
ment of such attempt, is guilty of an indictable offence and liable to imprison-
ment for a term equal to one-half of the longest term to which a person com-
mitting the indictable offence attempted to be committed may be sentenced.

S30. Every one is guilty of an indictable offence and liable to one year's
imprisonment who attempts to commit any offence under any statute for the
time being in force and not inconsistent with this Act, or incites or attempts to
incite any person to commit any such offence, and for the punishment of which
no express provision is made by such statute.

See 8. 64, ante, and ss. 711 and 712, post, and notes there-
under.

As to a fine in certain cases see a. 958.

Attempts to commit offences punishable under the code
by summary convictions are not covered by these sections.
Neither is the inciting to commit any indictable offeace.
Section 530 makes it an indictable offence to attem^!: to
commit, or to incite, or attempt to incite any one to com-

Sec. 530]

ATTEMPTS TO COMMIT OFFENCES.

599

mit an ofifence punishable under summary conviction under
any other statute: s. 536. i

When an o£fence is not triable at quarter sessions the
attempt to commit that o£fence is likewise not triable at
quarter sessions : s. 540.

Indictment at common law for inciting to commit an
offence. — that A. B. on falsely, wickedly

and unlawfully did solicit and incite one C. D. unlawfully
to steal of the goods and chattels of E. F.

See R. V. Gregory, 10 Cox, 459, and R, v. itfansford, IS
Cox, 9, and cases there cited. The punishment falls under
s. 951, post.

Inciting to murder is covered by s. 234, and inciting to
mutiny by s. 72.

" What is an attempt to commit an oifence ? This is a
question much easier to ask than to answer, and, as far as 1 am
competent to judge, no general rule can be laid down upon the
subject, but each case muse depend upon its own particular
circumstances. As the means by which, and the modes in
which crimes may be committed are innumerable, so the modes
in which attempts to commit crimes may be made must be
innumerable also; and not only so, but the nature of one attempt
to commit a crime may totally vary from the nature of another
attempt to commit the same crime. Thus, a murder may be
committed by a single stab, and so an attempt to murder may
be made by a single stab ; whilst, on the other hand, a murder
may be committed by administering small doses of poison at
intervals during a considerable space of time, in such a manner
that the death is the result of the combined effects of all the
poisonings, and would not have been caused by one or even the
greater part of them. In such a case, if death has not ensued »
although the poisoner might well be convicted of an administra-
tion of poison with intent to murder, by proof even of one
administration of poison, yet a single administration could not>
perhaps, be considered a proof of an attempt to murder, both
because the murder was not intended to be committed by it, and
because it could not be committed by it.

•>"

pi,
It.

'X:

i/i

lis

ii? i*

600

ATTEMPTS, CONSPIRACIES, ETC. [Sees. 531, 5.32

** These supposed cases may serve to show under what varied
circumstances attempts to commit o£fences may have to be
considered, and yet these cases are confined to acts which would
have actually been the means of committing the crime if it bad
been effected. It seems, however, to be clear that whenever tbe
act, or acts, done are such that, if they produced their intended
effect, the crime would have been completed, an attempt to
commit that crime is proved ; and consequently, upon every
charge of an attempt to commit an offence, the primary consider-
ation would seem to be, whether the acts done by the prisoner
could have effected the crime intended." Greaves' attempts to
commit crimes.

Accessories Abter the Fact. (New).

931. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who, in any case where no express provision is made by
this Act for the punishment of an accessory, is accessory after the fact to any
indictable offence for which the punishment is, on a first conviction, imprison-
ment for life, or for fourteen years, or for any term longer than fourteen years.

S32. Every one who is accessory after the fact to any indictable offence
for committing which the longest term to which the offender can be sentenced
is less than fourteen years, and no express provision is made for the punishment
of such accessory, is guilty of an indictable offence and liable to imprisonment
for a term equal to one-half of the longest term to which a person committing
the indictable offence to which he is accessory may be sentenced.

As to a fine in certain eases : s. 958.

When a^ offence is not triable at quarter sessions the
offence of being an accessory after the fact to that offence
is likewise not triable at quarter sessions : s. 540. See s. 63,
ante, for definition: as to indictments, s. 627, post.

Indictment against an accessory after the fact with the
principal. After stating the offence of the principal. —
And the jurors aforesaid do further present that C. D. well
knowing the said A. B. to have done and committed the said
offence in form aforesaid, afterwards to wit, on the day and
year aforesaid, him the said A. B. unlawfully did receive,
harbour, comfort and assist in order to enable him tbe said
A. B. to escape.

Indictment against an accessory after the fact, the jninci-
pal being convicted. After stating the offence of the principal

[Sees. 531, 532

Sec. 532]

ACCESSORIES AFTER THE FACT.

601

and the conviction, charge the accessory thus. — And

the iuiors aforesaid do further present that C. D. well
knowing the said A. B. to have done and committed the said
oti'ence after the same was committed as aforesaid, to
wit, on the day and year aforesaid, him the said A. B. did
unlawfully receive, harbour, comfort and assist in order to
enable him the said A. B. to escape.

Against an accessory after the fact ichen the principal is
unknown.

The jurors present that some person or persons to
the jurors aforesaid unknown, on unlawfully did

steal of the goods and chattels of E. F. And the

jurors aforesaid do further present that C. D. well knowing
the said person to have done and committed the said
offence, afterwards did unlawfully receive, harbour, com-
fort and assist the said person in order to enable him to
escape.

See E. V. Blackson, 8 C. & P. 48 ; E. v. Pulham, 9 C.
& P. 280.

When the principal is, as allowed by ss. 711 & 713,
found guilty of another offence than the one directly
charged, the accessories after the fact jointly tried with him
may also be found guilty of being accessories to the offence
80 found against the principal : E. v. Eichards, 13 Cox, 611.
On an indictment charging a man as a principal offender
only he cannot be convicted of being an accessory after the
fact: E. V. Fallon, L. & C. 217 ; the two offences are sepa-
rate and distinct : E. v. Brannon, 14 Cox, 394.

The accessory may always controvert the guilt of the
principal : 1 Euss. 75. But when the principal has been
convicted the record of the conviction throws upon the
defendant the burden of proving the principal's innocence :
1 Chit. Cr. L. 273 ; 2 Bish. Cr. Proc. c. 12 ; B. v. Turner
1 Moo. 847.

\:r A

'm^i

602

PROCEDURE.

[Sees. 533, 534'

' ;^'i

TITLE VH.
PROCEDURE.

PART XLI.

GENERAL PROVISIONS.

PowBR TO Make Rulbs.

833. Every superior court of criminal jurisdict/ion may at any time,
with the concurrence of a majority of the judges thereof present at any meet-
ing held for the purpose, make rules of court, not inconsistent with any
statute of Canada, which shall apply to all proceedings relating to any prose-
cution, proceeding or action instituted in relation to any matter of a criminat
nature, or resulting from or incidental to any such matter, and in particular
for all or any of the purposes following : —

(rt) For regulating the sittings ot the court or of any division thereof, or
of any judge of the court sitting in chambers, except in so far as the same aro
already regulated by law.

{b) For regulating in criminal matters the pleading, practice and procedure
in the court, including the subjects of mandamus, certiorari, habeas corpus,
prohibition, quo tvarranto, bail and costs, and the proceedings under section
nine hundred of this Act.

(c) Generally for regulating the duties of the officers of the court and
every other matter deemed expedient for better attaining the ends of justice
and carrying the provisions of the law into effect.

2. Copies of all rules made under the authority of this section shall be laid
before both houses of Parliament at the session next after the making thereof,
and shall also be published in the Canada Gazette. 52 V. c. 40.

Civil Rkmkdy— Effect of Criminal Offence on.

334. After the commencement of this Act no civil remedy for any act or
omission shall be susjiended or affected by reason that such act or omission
amounts to a criminal offence.

'* This seems to be the existing law." — Imp. Comm. Rep.

See Wells v. Abrahams, L. K. 7 Q. B. 554, Warb. Lead.
Cas. 261 ; Osborn v. Gillett, L. R. 8 Ex. 88 ; S. v. S. 16
Cox, 566 ; Schohl v. Kay, 5 Allen (N.B.), 244 ; Livingstone
V. Massey, 23 U. C. Q. B. 156 ; Appleby v. Franklin, 17 Q.B.D.
93 ; Taylor v. McCullough, 8 0. R. 300 ; Tremblay v. Der-
nier, 21 S. C. R. 309.

Sees. 335-537]

PROCEDURE.

603

;ice and procedure
;n, habeas corpus,
igs under section

Abolition of Distinction Between Felony and Misdemeanour. {New).

93S. After the commencement of this Act the distinction between
felony and misdemeanipur shall be abolished, and proceedings in respect of all
indictable offences (except so far as they are herein varied) shall be conducted
in the Hame manner.

" The distinction between felony and misdemeanour was, in
early times, nearly though not absolutely identical with the
distinction between crimes punishable with death and crimes
uot so punishable.

" For a long time past this has ceased to be the case. Most
felonies are no longer punishable with death ; and many mis-
demeanours are now punished more severely than many felonies.
The great changes which have taken place in our criminal law
have made the distmction nearly, if not altogether, unmeaning.
> It is impossible to say on what principle embezzlement should
be a felony, and the fraudulent appropriation of money by an
agent, or the obtaining of goods by false pretenses, a misdemean-
our; why bigamy should be a felony, and perjury a misdemean-
our; why child-stealing should be a felony, and abduction a
misdemeanour. The result of this arbitrary classification is, that
the right to be bailed, the liability to be arrested without
warrant, and, to a certain extent, the right of the court to order
the payment of the costs of prosecutions, vary in a manner
equally arbitrary and unreasonable." — Imp. Comm. Rep.

Construction op Acts. (Xew).

53C>' Every Act shall l)e hereafter read and construed as if any offence
for which the offender may be prosecuted by indictment (howsoever such
offence may bo therein described or referred to), were described or referred to
as ivn "indictable offence"; and as if any offence punishable on summary
conviction were described or referred to as an "offence " ; and all provisions of
this Act relating to " indictable offences " or "offences " (as the case may be)
shall apply to every such offence.

2. Every commission, proclamation, warrant or other document relating
to criminal procedure, in which offences which are indictable offences or
offences (as the case may be) as defined by this Act are described or referred to
by any names whatsoever, shall be hereafter read and construed as if such
offences were therein described and referred to as indictable offences or
offences (as the case may be).

Construction op Certain Other Acts. (A'eio),

53T. In any Act in which reference is made to The Speedy Trials Act the
same shall be construed, unless the context requires otherwise, as if such

*»

604

PROCEDURE.

[Sees. B38-540

reference were to Part LIV. of this Act ; any Act referrinf? to The Summary
Trials Act shall be construed, unless the context forbids it, as if such reference
were to Part LV. of this Act ; and every Act referrinff to The Suinmnri/ Om.
victkmn Act shall be construed, unless the context forbids it, as if such refer-
ence were to Part LVIII. of this Act.

PART XLII.

JURISDICTION.

Superior Courts.

339. Every Superior Court of criminal jurisdiction and every judge of
such court sitting as a court for the trial of criminal causes, and every Court
of Oyer and Terminer and General Gaol Delivery has power to try any
indictable offence. R. S. C. c. 174, s, 3.

" Superior Courts " defined, s. 3.

Sessions op the Peace and Other Courts.

939. Every Court of General or Quarter Sessions of the Peace, when
presided over by a 3ui)erior Court judge, or a County or District Court judge,
or in the cities of Montreal and Quebec by a recorder or judcre of the Sessions
of the Peace ; and in the province of New Brunswick every County Court
judge has power to try any indictable offence except as hereinafter provided.
R. S. C. c. 174, 8. 4 {Amendei:l).

See remarks under next section.

Offences in the Exclusive Jurisdiction op Superior Courts.

(Amended)
540. No such court as mentioned in the next preceding section has
power to try any offence urtder the following sections, that is to say :

Part IV. — sections sixty-five, treason ; sixty-seven, accessories after thp
fact to treason ; sixty-eight, sixty-nine and seventy, treasonable offences;
seventy-cne, assault on the Queen ; seventy-two, inciting to mutiny ; seventy-
seven, unlawfully obtaining and communicating official information ; seventy-
eight, communicating information acquired by holding office.

Part VII. — Sections one hundred and twenty, administering, taking or
procuring the taking of oaths to commit certain crimes ; one hundred and
twenty-one, administering, taking or procuring the taking of other unlawful
oaths ; one hundred and twenty-four, seditious offences ; one hundred and
twenty-five, libels on foreign sovereigns ; one hundred and twenty-si.v, spread-
ing false news.

Part VIII.— Piracy ; any of the sections in this part.

RioR Courts.

Sec. 541]

POWERS OF TWO JUSTICES.

605

Part IX.— Sections one hundred and thirty-one. indicial corruption ; one
hundred and thirty-two, corruption of oflBcer'- .aployed in prosecuting
offenders ; one hundred and thirty-three, frauds upon the Government ; one
hundred and thirty-five, breach of trust by a public officer ; one hundred and
thirty-six, corrupt practices in municipal affairs; one hundred and thirty-seven
((t), selling and purchasing offices.

Part XI. — Escapes and rescues ; any of the sections in this part.

Part XVIII.— Sections two hundred and thirty -one, murder ; two hundred
and thirty-two, attempts to murder ; two hundred and thirty-three, threats to
murder ; two hundred and thirty-four, conspiracy to murder ; two hundred
and thirty -five, accessory after the fact to murder.

Part XXI.— Sections two hundred and sixty-seven, rape ; two hundred
and sixty-eight, attempt to commit rape.

Part XXIII. — Defamatory libel ; any of the sections in this part.

Part XXXIX.— Section five hundred and twenty, combinations in re-
straint of trade.

Piirt XL.— Conspiring or attempting to commit, or being accessory after
the fact to any of the foregoing offences.

Are not triable at quarter sessions, the offences under
38. 65, 67, 68, 69, 70, 71, 72, 77, 78, 120, 121, 124,
125, 126, 127, 128, 129, 130, 131,132, 133, 185, 136, 137a,
159 to 169, both inclusive, 231, 232, 233, 234, 235, 267,
268, 285, to 302, both inclusive, 520, and conspiracies,
attempts or being accessory after the. fact to any of the
foregoing offences. The principal change in this section,
coupled with s. 539, are the additions to the courts of
quarter sessions' jurisdiction of manslaughter, perjury,
subornation of perjury, forgery, counterfeiting coin, offen-
ces under ss. 247, 248, and of blasphemous libel.

The terms of s. 589 are so wide that s. il6 of c. 8, R'
S. C, stands virtually repealed, and that consequently brib-
ery at elections is now triable at quart2r sessions. Every
offence whatever is now so triable, except those specially
mentioned in s. 540. This may have been an oversight
of the law-giver, but in the law-giver alone lies the right to
remedy its consequences : Lane v. Bennett, 1 M. & W. 70.

Exercising Powers of two Justices.

541. The judge of the Sessions of the Peace for the city of Quebec, the
judge of the Sessions of the Peace for the city of Montreal, and every recorder,
police magistra,te, district magist/ate or stipendiary magistrate appointed for

606

PROCEDURE.

[Sec. 542

any territorial division, and every magistrate authorized by the law of the
province in which he acts to perform acts usually required to be done by two
or more justices of the peace, may do alone whatever is authorized by this
Act to be done by any two or more justices of the peace, and the several fonns
in this Act contained may bo varied so far as necessary to lender them appli-
cable to such case. R. S. C. c. 174, s. 7.

The word recorder is new.

PART XLIII.

PROCEDURE IN PARTICULAR CASES.

Okkexces Within the Juhisuiction op the Admiralty, {yew).
543. Proceedings for the trial and punishment of a person who is not a
mbject of Her Majesty, and who is charged with any offence committed within
the jurisdiction of the Admiralty of England shall not be instituted in any
court in Canada except with the leave of the Governor General and on his
certificate that it is expedient that such proceedings should be instituted.

See 8. 560 as to warrant of arrest.

The courts of. Canada have no jurisdiction over a
foreigner who commits an offence on a foreign ship on the
high seas outside of one marine league from the coast : E.
V. Serva, 1 Den. 104 , R. v. Lewis, Dears. & B. 182 ; E. v.
Keyn, 13 Cox, 403 ; R. v. Kinsman, James (N.S.), 62. But if
such an offence is committed within one marine league of
the coast then they have jurisdiction in virtue of the
Territorial Waters Jurisdiction Act of 1878, 41 & 42 V.c.73
(Imp.), by which it is enacted that an offence committed by a
person, whether he is or is not a subject of Her Majesty, on
the open sea, within the territorial waters of Her Majesty's
dominions, that is within one marine league from the
shore, is an offence within the jurisdiction of the admiral,
although it may have been committed on board or by
means of a foreign ship, and the person who committed
such offence may be arrested, tried and punished accord-
ingly.

tiee. 542]

JURISDICTION OF THE ADMIRALTY.

607

It is further enacted by that Act that, in Canada, (in
any of Her Majesty's dominions) proceedings for the trial
of a foreigner for a crime committed on board a foreign
ship, within one marine league of the coast shall not be
instituted except with thti leave of the Governor-General
(or officer for the time being administering the government,
'52 & 63 V. c. 63 Imp.) in which such proceedings are to be
instituted, and on his certificate that it is expedient that
such proceedings should be instituted, and that, on the
trial, it shall not be necessary to aver, in any indictment
or information, that such consent or certificate of the
Governor-General has been given, and the fact of the same
having been given shall be presumed unless disputed by
the defendant at the trial, and the certificate of the Gover-
nor shall be sufficient evidence of such consent, as required
by the said Act. It is also enacted that proceedings before
the magistrate to bring the offender to trial may be had
before the consent of the Governor-General is given.

The 12 & 13 V. c. 96, s. 1 (Imp.), enacts that all offences
commi'tted upon the sea, or within the jurisdiction of the
Admiralty shall, in any colony where the prisoner is
charged with the offence or brought there for trial, be dealt
with as if the offence had been committed upon any water
situate within the limits of the colon^ and within the limits
of the local jurisdiction of the courts of criminal jurisdic-
tion of such colony.

And 8. 3 of the same Act enacts that : when any person
shall die in any colony of any stroke, poisoning or hurt,
such person having been feloniously stricken, poisoned or
hurt upon the sea or within the limits of the admiralty,
€r at any place out of the colony, every offence committed in
respect of any such case may be dealt with, inquired of
tried, determined and punished in such colony in the same
manner in all respects as if such offence had been wholly
committed in that colony, and if any person in any colony,
ehall be charged with any such offence as aforesaid in

1 .

■■„■.«'.'

m^ -v-

Iiliii

608

PROCEDURE.

[Sec. 542

respect of the death of any person who having been feloni-
ously stricken, poisoned or hurt, shall have died of such
stroke, poisoning or hurt upon the sea, or any where within
the limits of the Admiralty, such offence shall be held for
the purposes of the Act to have been wholly committed upon
the sea.

The 17 & 18 V. c. 104, s. 267, Imp., enacts that all
offences against property or person committed in, or at any
place, either achore or afloat, out of Her Majesty's domin-
ions by any master, seaman, or apprentice who at the time
when the offence is committed is or within three months
previously has been, employed in any British ship are
deemed to be offences of the same nature respectively, and
are liable to the same punishments respectively, and may
be inquired of, heard, tried, and determined and adjudged
in the same manner, and by the same courts in the same
places, as if such offences had been committed within the
jurisdiction of the Admiralty of England; see E. v. Dudley,
14 Q. B. D. 273.

The 18 & 19 V. c. 91, s. 21, Imp., enacts that if any per-
son, being a British subject, charged with having committed
any crime or offence on board any British ship on the high
seas, or in any foreign port or harbour, or, if any person,
not being a British subject, charged with having committed
any crime or offence on board any British ship on the high
seas, is found within the jurisdiction of any court of justice
in Her Majesty's dominions which would have had cog-
nizance of such crime or offence if committed within the
limits of its ordinary jurisdiction, such court shall have
jurisdiction to hear and try the case as if such crime or
offence had been committed within such limits. Then, it
is enacted that nothing contained in that section shall
affect the 12 & 13 V. c. 96, {ubi supra).

By the Imperial Merchant Shippiyig Amendment Act,
30 & 31 V. c. 124, 8. 11, it is enacted that:

[Sec. 542

Sec. 542]

JURISDICTION OF THE ADMIRALTY.

60»

been feloni-
ied of Buch
here within
be held for
mitted upon

bCts that all
in, or at any
sty's domin-
) at the time
bree months
ish ship are
actively, and
sly, and may
md adjudged
I in the same
id within the
R. V. Dudley,

it if any per-
ig committed
on the high
any person,
ig committed
on the high
part of justice
ive had cog-
Id within the
[i shall have
ich crime or
Its. Then, it
Isection shall

indment Act,

" If any British subject commits any crime or o£fence od
board any British ship, or on board any foreign ship to
which he does not belong, any court of justice in Her
Majesty's Dominions, which would have had cognizance of
such crime or offence if committed on board a British ship
within the limits of the ordinary jurisdiction of such court
shall have jurisdiction to hear and determine the case as if
the said crime or offence had been committed as last
aforesaid."

See R. v. Armstrong, 18 Cox, 184.

A crime committed by a British subject on board a
foreign ship to which he belongs, does not fall under this
clause.

By 28 & 29 V. c. 63 (Imp.), any colonial law repugnant to
an Act of the Imperial Parliament is, to the extent of such
repugnancy, void. And by the Courts {Colonial) Jurisdic-
tion Act, 1874, 37 V. c. 27 (Imp.), it is provided for the
punishment of offences tried in a colony but committed.
elsewhere.

The words used in statutes " dealt with " apply tcr
justices of the peace; "inquired of" to the grand jury;
"tried " to the petit jury and " determined and punished "
to the court ; by Lord Wensleydale in R. v. Ruck, note {y)y
1 Rass. 757.

A prisoner is "found," within the meaning of s. 21, of
18& 19 V. c. 91, iihi supra, wherever he is actually present,.
and the court, where he is present, under that Act, has^
jurisdiction to try him, even if he has been brought there
by force as a prisoner: R. v. Lopez, R. v. Sattler, Dears.
& B. 525.

On jurisdiction as to offences committed within the
limits of the Admiralty see Archbold, 33; 1 Russ. 762;
1 Burn, 42, and R. v. Keyn, 13 Cox, 403 ; R. v. Carr, 15 Cox»
129; R. V. Anderson, 11 Cox, 198.

'^'if^

lit , .'
I

>i, . k

CwM. Law— 39

•i" ■'

'^ J3£MV?!3XSB*'€F%:i

.^-

610

PROCEDURE.

[Sec. 542

By 41 & 42 V. c. 7S (Imp.), The Territorud Waters Juris-
diction Act of 1878, above mentioned, the decision in E. v.
Keyn, uhi supra, is not now to be followed. The large
inland lakes of Ontario are within the jurisdiction of the
Admiralty: E. v. Sharp, 6 P. R. Ont. 135.

Where a person dies in this Province from ill-treatment
received on board a British ship at sea, the trial for man-
alaughter against the person who ill-treated him must take
place in the district where the man died, not where he was
a,pprehended : R. v. Moore, 2 Dor. Q. B. R. 52 ; but see now
€. 640, post. On an indictment for an offence committed on
board a British ship upon the high seas, it is not necessary
in order to prove the nationality of the ship to produce its
register, but the fact that she sailed under the British flag
is sufficient : R. v. Moore, 2 Dor. Q. B. R. 52 ; see R. v.
Bjornsen, 10 Cox, 74, and R. v. Sven Seberg, 11 Cox, 520.

In an indictment for a larceny committed on board a
British vessel, it is sufficient to say upon the sea, without
saying upon the high seas : R. v. Sprungli, 4 Q. L. R. 110.

As to offences committed by British subjects in foreign
countries, " the laws of Great Britain affect her own sub-
jects everywhere," says Dr. Lushington, in the Zollverein,
1 Sw. Adm. Rep, 96 ; and " an offence may be cognizable
triable and justiciable in two places, e.g., a murder by a
British subject in a foreign country. A British subject
^ho commits a murder in the United States of America
may be tried and punished here by our municipal law,
which is made to extend to its citizens in every part of the
world." Per Cuckburn, C.J., Re Tivnan, 5 B. & S. 679.

Special statutory authority, however, is required to
empower any court to exercise jurisdiction over such
offences as; without such special authority, a court baa
jurifidiotion only over offences committed within the limits
of its territorial jurisdiction. By s. 9, 24 & 45 Y. c. 100,
for instance, it is expressly enacted that any murder or

Sec. 542]

OFFENCES COMMITTED ABROAD.

611

manslaughter committed any cohere on land out of the
kingdom, whether within the Queen's dominions or not,
and whether the person killed were a subject of Her
Majesty or not, may be tried in any county in England in
which the offender shall be apprehended. It would conse-
quently appear, singular though it be, that a murder com-
mitted in the United States by a Canadian is triable in
England if the offender can be apprehended there, but
that it is not triable in Canada. It follows probably from
the decision of the Privy Council in the case of Macleod v.
Attorney-General, 17 Cox, 341 [1891] , A. C. 455, that a
colonial legislature has not the same right in this respect
as the Imperial Parliament has. "For," said Turner,
L.J., in Low V. Eoutledge, 1 Ch. App. 47, L. R. 3 H. L.
100, the law of a colony cannot extend beyond its
territorial limits." However, the Parliament of Canada
has never, it would seem, without special authority from
the Imperial Parliament, legislated over crimes committed
abroad ; (see, however, ss. 127, 128, ante). On the contrary,
apparently to keep within its territorial limits, it has
restricted the exercise of its jurisdiction over bigamy, com-
mitted out of Canada, by s-s. 4, of s. 275 of this Code, as it
had by its previous legislation, over British subjects resident
in Canada leaving Canada with intent to commit bigamy: B.
V. Brierly, 14 0. R. 525. And the Imperial Act, 23 & 24 V.
c. 122, which empowers the colonial legislatures to pass an
enactment similar to the one that was contained in s. 9 of
the Procedure Act c. 174, R. S. C. {now repealed) for the
trial in the colony of a murder committed abroad, when the
person murdered died in the colony, and vice versa^ was
passed, as said in the preamble, because doubts had been
entertained of the power of a colonial legislature to pass
such a law.

For statutes, commentaries and cases on the question,
m R. V. Sawyer, R. & R. 294 ; R. v. Azzopardi, 2 Moo.
288 ; 5 Geo. IV. c. 114, s. 10 ; 6 «& 7 V. c. 94 (Imp.) ; 24 & 25 V.

^:-*>

!Hi

612

PROCEDURE.

[Sees. 543-54»

c. 100, SB. 9, 67 (Imp.) ; 33 & 84 V. c. 90, s. 4 ; The Apollon,
9 Wheat. 360; 1 Bishop's Cr. L. 109, 115, 123, Stat. Cr!
141, 687 ; Hutchinson's Case, note, 1 Leach, 136 ; "Wheaton
Intern. Law, 3rd English Edit., page 178 ; R. v. Zulueta,
1 C. & K. 216 ; 22 American Jur. 381, " on the extent of the
Criminal Law " ; Jefferys v. Boosey, 4 H. L. Cas. 816 ; Story,
Conflict of Laws, par. 620; Fcelix, dr. intern, priv/, par. 548.

Pekviocs consent op Attorney-Gknehal or Minister of Marine
required for prosecutions under certain sections.

543* Xo person shall be prosecuted for the offence of unlawfully obtain-
ing and communicating official information, as defined in sections seventy-
seven and seventy-eight, without the consent of the Attorney-General or of
the Attorney-General of Canada. 23 V. c. 10, s, 4.

15441. No one holding any judicial office shall be prosecuted for the offence
of judicial corruption, as defined in section one hundred and thirty-one, with-
out the leave of the Attorney -General of Canada.

54 c(. If any person is charged before a justice of the peace with the
offence of making or having explosive substances, as defined in section one
hundred, no further proceeding shall be taken against such person without the
consent of the Attorney-General except such as the justice of the peace thinks
necessary, by remand or otherwise, to secure the safe custody of such person.
R. S. C. c. 150, 8. 5.

546. No person shall be prosecuted for any offence under section two
hundred and fifty six or two hundred and fifty-seven, without the consent of
the Minister of Marine and Fisheries. 52 V. c. 22 s. 3, {as amoided in 1893),

547". No proceeding or prosecution against a trustee for a criminal
breach of trust, as defined in section three hundred and sixty-three, shall be
commenced without the sanction of the Attorney -General. R. S. C. c. lt)4,
8.65.

548. No prosecution for concealing deeds and encumbrances, as defined
m section three hundred and seventy, shall be commenced without the consent
of the Attorney General, given after previous notice to the person intended to
be prosecuted of the application to the Attorney-General for leave to prosecute.
R. S. C. c. 164, 8. 91.

940. No proceeding or prosecution for the offence of uttering defaced
com, as defined in section four hundred and seventy-six, shall be taken without
the consent of the Attorney-General. R. S. C. c. 167, s. 18.

The words "Attorney-General" mean the Attorney-
General or the Solicitor-General of the Province, s. 8.

Where the previous consent of the Attorney-General
or some other officer is required for a prosecution, that

Sees. 550-551] TRIALS OF OFFENDERS UNDER 16.

613

applies to the preliminary proceedings before the magis-
trate. , '

See R. V. Allison, 16 Cox, 559 ; Knowlden v. R., 9 Cox,
483 ; Boaler v. R., 16 Cox, 488 ; R. v. Barnett, 17 0. R. 649.
By s. 613, as amended in 1893, it is not necessary to aver
such consent in the indictment.

Section 549 requires the consent of the Attorney-Gen-
eral for a prosecution under the summary convictions
clauses.

The power to give the consent in question in these
sections cannot be delegated : Abrahams v. The Queen, 6
S. C. R. 10.

Trials of Offenders under 16. {yeio).

SliO. The tr"" • of all persons apparently under the age of sixteen years
shall, so far as it . • " expedient and practicable, take place without publi-
city, and separatt ■..6 apart from that of other accused persons and at
suitable times to ht, aesiu^ated and appointed for that purpose.

This is a directory enactment, and entirely left to the
discretion of the court. It is not to be found in the Imperial
draft Code of 1879.

Limitation op Time. {Aviended).

85 1- No prosecution for an offence agamst this Act, or action for
penalties or forfeiture, shall be commenced —

(a) After the expiration of three years from the time of its commission if
such offence be —

(i) treason, except treason by killing Her Majesty or where the
overt act alleged is an attempt to injure the person of Her Majesty
(Part IV., section sixty-five) ;

(ii) treasonable offences (Part IV., section sixty -nine) ;

(iii) any offence against Part XXXIII., relating to the fraudulent
marking of merchandise ; nor

(b) After the expiration of two years from its commission if such offence

be-

(i) a fraud upon the Government (Part IX., section one hundred and
tliirty-three) ;

(ii) a corrupt practice in municipal affairs (Part IX., section one
hundrtd and thirty -six) ;

(iii) unlawfully solemnizing marriage (Part XXIL, section two
hundred and seventy-nine) ; nor

be-

Fr-'

''^'-. ' ■ .i^

614

PROCEDURE.

[Sec. 551

i <

(i) opposing reading of Riot Act and assembling after proclamation
(Part v., section eighty-three) ;

(ii) refusing to deliver weapon to justice (Part VI., section one
hundred and thirteen) ;

(iii) coming armed near public meeting (section one hundred and
fourteen) j

(iv) lying in wait near public meeting (section one hundred and
fifteen) ;

(v) seduction of girl under sixteen (Part XIII,, section one hundred
and eighty-one) ;

(vi) seduction under promise of marriage (section one hundred and
eighty-two) ;

(vii) seduction of a ward, etc. (section one hundred and eighty,
three) ;

(viii) unlawfully defiling women (section one hundred and eighty-
five) ;

(ix) parent or guardian procuring defilement of girl (section one
hundred and eighty-six) ;

(x) householders permitting defilement of girla on their premises
(section one hundred and eighty -seven) ; nor

{d) After the expiration of six months from its commission if the offence
be—

(i) unlawful drilling (Part V., section eighty-seven) ;

(ii) being unlawfully drilled (section eighty-eight) ;

(iii) having possession of arms for purposes dangerous to the public
peace (Part VI., section one hundred and two) ;

(iv) proprietor of newspaper publishing advertisement offering reward
for recovery of stolen property (Part X., section one hundred and fifty-
seven, paragraph d) ; nor

(e) After the expiration of three months from its commission if the offence
be cruelty to animals under sections five hundred and twelve and five hundred
and thirteen, Part XXXVIII. ; nor

(ii) railways violating provisions relating to conveyance of cattle
(Part XXXIX., section five hundred and fourteen) ;

(iii) refusing peace officer admission to car, etc. (section five hundred
and fifteen) :

( /) After the expiration of one month from its commission if the offence
be-

(i) improper use of offensive weapons (Part VI., sections one hundred
and three, and one hundred and five to one hundred and eleven inclusive).

2. No person shall be prosecuted, under the provisions of section sixty-five
or section sixty-nine of this Act, for any overt act of treason expressed or
declared by open and advised speaking unless information of such overt act,
and of the words by which the same was expressed or declared, is given upon
oath to a justice within six days after the words are spoken and a warrant for
the apprehension of the offender is issued within ten days after such informa-
tion is given.

[Sec. 551
proclamation

aeotion one

[lundred and

liundred and

1 one hundred

hundred and

and eighty-

1 and eighty-

I (section one

bheir premises

1 if the oSence

|s to the public

)flfering reward
[dred and fif ty-

|n if the offence
id five hundred

[vnce of cattle

five hundred

if the offence

L one hundred
tven inclusive),
ction sixty-live
expressed or
Isuoh overt act,
is given upon
, a warrant for
■ such informa-

Sec. 561]

LIMITATION OP TIME.

615

The laying of the information and snbsequent proceed-
ings are the commencement of the prosecution. So, if a
statute enacts that an offence must be prosecuted within a
certain time, the information must be within that time,.
but not necessarily the indictment : B. v. Barret, 1 Salk.
383 ; B. V. Austin, 1 C. & K. 621 ; B. v. Kerr, 26 U. C. C.
P. 214, and casas there cited : B. v. Gasbolt, 11 Cox, 885 ;
B. V. Brooks, 1 Den. 217 ; B. v. Smith, L. & C. 131 ; see
R. V. Carbray, 14 Q. L. B. 223.

In criminal cases it is not necessary for a defendant
relying on a statute of limitation to plead it in bar : sec. 681
It devolves upon the prosecuting power to show by legal
evidence that the prosecution was commenced within the
statutory period, if the indictment appears to have beea
found after the expiration of that period ; Bish. Stat. Cr»
par. 264; B. v. Phillips, B. & B. 369; 1 Chit. 283, 885; even
where the enactment limiting the time is contained in a
clause separate from the clause creating the offence.

In a case of The People v. Santvoord, 9 Co wen 655, the
Supreme Court of New York held that though the crime
appears by the indictment itself to be barred by the statute
of limitation, this is no ground for arresting judgment.
That decision cannot be supported where the statute is
absolute and without restrictions.

Section 117 of c. 8 B. S. C. which limits to one year the
time to prosecute any ijidictablc offence under that Act
does not affect prosecutions under sa. 829 «fe 603 ante,
though they are mere re-enactments of s. 102 of said c. 8.
Under s. 933 jwst, the prosecution may be brought under
either of these Acts. So that if brought under c. 8, the
limitation is one year. If under the Code, there is no
limitation. The punishment is also not the same in s. 329
as it is 8. 102 of c. 8. See remarks under s. 503.

The same for battery committed on a polling day, s-s (e),
s. 263, ante, and s. 77 of c. 8, B. S. C. If indicted under
the latter the punishment is five years, s. 951, post, and

tm'

!i|.

■ r
■J •

616

PROCEDURE.

[See. 652

limitation of time, one year ; if under the former, the pun-
ishment is two years, and there is no limitation of time.

Arrbst Without Warrant. {Ajnended).

SS8. Any one found committing any of the offences mentioned in the
following sections, may be arrested without warrant by any one, that is to
say :

Part IV. — Sections sixty-five, treason ; sixty-seven, accessories after the
Ljit to treason ; sixty -eight, sixty -nine and seventy, treasonable offences •
seventy-one, assaults on the Queen ; seventy-two, inciting to mutiny.

Part V. — Sections eighty-three, offences respecting the reading of the Riot
Act ; eighty-five, riotous destruction of buildings ; eighty-six, riotous damage
to buildings.

Part VII. — Sections one hundred and twenty, administering, takmg or
procuring the taking of oaths to commit certain crimes ; one hundred and
twenty-one, administering, taking or procuring the taking of other unlawful
oaths.

Part VIII.— Sections one hundred and twenty-seven, piracy ; one hundred
and twenty-eight, piratical acts ; one hundred and twenty-nine, piracy with
violence.

Part XI. — Sections one hundred and fifty-nine, being at large while under
sentence of imprisonment ; one hundred and sixty -one, break'.ng prison ; one
hundred and sixty-three, escape from custody or from prison ; one hundred
and sixty-four, escape from lawful custody.

Part XIII, — Section one hundred and seventy-four, unnatural offence.

Part XVIII. — Sections two hundred and thirty -one, murder ; two hundred
and thirty-two; attempt to murder ; two hundred and thirty-five, beinj? acces-
sory after the fact to murder ; two hundred and thirty-six, manslaughter ; two
hundred and thirty-eight, attempt to commit suicide.

Part XIX. — Sections two hundred and forty one, wounding with intent to
■do bodily harm ; two hundred and forty-two, wounding ; two hundred and
forty-four, stupefying in order to commit an indictable offence ; two hundred
and forty-seven and two hundred and .forty-eight, injuring or attempting to
injure by explosive substances ; two hundred and fifty, intentionally endanger-
ing persons on railways ; two hundred and fifty-one, wantonly endangering
persons on railways ; two hundred and fifty-four, preventing escape from
wreck.

Part XXI. — Sections two hundred and sixty-seven, rape ; two hundred
and sixty-eight, attempt to commit rape ; two hundred and sixty -nine, defilifig
children under fourteen.

Part XXII. — Section two hundred and eighty-one, abduction of a woman.
Part XXV. — Section three hundred and fourteen, receiving proi^rty
dishonestly obtained.

Part XXVI. — Sections three hundred and twenty, theft by agent, etc. ;
ithree hundred and fifty-five, bringing into Canada things stolen.

Part XXIX.— Sections three hundred and ninety-eight, aggravated rob-
fcery ; three hundred and ninety-nine, robbery ; four hundred, assault with
intent to rob ; four hundred and one, stopping the mail ; four hundn^l and

[Seo. 552

Sec. 552]

ARREST WITHOUT WARRANT.

617

r, the pun-
L of time.

entioned in the
one, that is to

3ories after the
lable offences ;
nutiny.

ding of the Riot
riotous damage

sring, taking or

le hundred and

other unlawful

)y ; one hundred
ine, piracy with

arge while under
k'.ng prison ; one
jn ; one hundred

tural offence.

er ; two hundred

ve, being acces-

.nslaughter ; two

ig with intent to

70 hundred and
{e ; two hundred
^r attempting to

jnally endanger-
jily endangering

ig escape from

; two hundred
Ity-nine, defiliftg

lion of a woman.
Living proiwrty

I by agent, etc. j
In.

Aggravated rob-

, assault with

Ur hundred and

two, compelling execution of documents by force ; four hundred and three,
sending letter demanding with menaces ; four hundred and four, demanding
with intent to steal ; four hundred and five, extortion by certain threats.

Part XXX. — Sections four hundred and eight, breaking place of worship
and committing an indictable offence ; four hundred and nine, breaking place
of worship with intent to commit an indictable offence ; four hundred and
ten, burglary ; four hundred and eleven, housebreaking and committing ai
indictable offence ; four hundred and twelve, housebreaking with intent to
commit an indictable offence : four >'md' nd thirteen, breaking at" "i
<;ommitting an indictable offence . ir h^l d and fourteen, breakiii, ..op
with intent to commit an indictable oifence ; .o jr hundred and fifteen, being
found in a dwelling house by night ; four hundred and sixteen, being armed,
with intent to break a dwelling house ; four hundred and seventeen, being
disguised or in possession of housebreaking instruments.

Part XXXI. — Sections four hundred and twenty-three, forgery ; four
hundred and twenty-four, uttering forged documents ; four hundred and
twenty-five, counterfeiting seals ; four hundred and thirty, possessing forged
bank notes ; four hundred and thirty-two, using probate obtained by forgery
or perjury.

Part XXXII. — Sections four hundred and thirty -four, making, having or
using instrument for forgery or uttering forged bond or undertakmg ; four
hundred and thirty-five, counterfeiting stamps ; four hundred and thirty-six,
falsifying registers.

Part XXXIV.— Section four hundred and fifty-eight, personation of
certain persons.

Part XXXV. — Sections four hundred and sixty-two, counterfeiting gold
and silver coin ; four hundred and sixty-six, making instruments for coining ;
four hundred and sixty -eight, clipping current coin; four hundred and
seventy, possessing clipping of current coin ; four hundred and seventy-two,
counterfeiting copper coin ; four hundred and seventy-three, counterfeiting
foreign gold and silver coin; four hundred and seventy-seven, uttering counter-
feit current coin.

Part XXXVII. — Sections four hundred and eighty -two, arson ; four
hundred and eighty-three, attempt to commit arson ; four hundred and eighty-
four, setting fire to crops ; four hundred and eighty-five, attempting to set fire
to crops : four hundred and eighty-eight, attempt to damage by explosives ;
four hundred and eighty-nine, mischief on railways ; four hundred and
ninety-two, injuries to electric telegraphs, etc. , four hundred and ninety-
three, wrecking ; four hundred and ninety-four, attempting to wreck ; four
hundred and ninety-five, interfering with marine signals ; four hundred and
ninety-eight, mischief to mines ; four hundred and ninety -nine, mischief.

2. Any one found committing any of the offences mentioned in the follow-
ing sections, may be arrested without warrant by a i)eace oflicer :

Part XXVII. — Sections three hundred and fifty-nine, obtaining by false
pretense ; three hundred and sixty, obtaining execution of valuable securities
by false pretense.

Part XXXV.— Sections four hundred and sixty -five, exporting counterfeit
coin ; four hundred and seventy-one, possessing counterfeit current coin ; four

! '(■;

f i

618

PROCEDURE.

[Sec. 552-

hundred and seventy-three, paragraph (6), possessing counterfeit foreign gold
or silver coin ; four hundred and seventy-three, paragraph (d), counterfeiting
foreign copper coin.

Part XXXVII. — Sections four hundred and ninety-seven, cutting booms,
or breaking loose rafts or cribs of timber or saw- logs ; five hundred, attempt-
ing to injure or poison cattle.

Part XXXVIII. — Sections five hundred and twelve, cruelty to animals ;
five hundred and thirteen, keeping cock-pit.

3. A peace officer may arrest, without warrant, any one whom he iinds
committing any offence against this Act, and any person may arrest, without
wanant, any one whom he finds by night committing any ofiFence against this
Act. R. S. C. c. 174, 8. 27.

4. Any one may arrest, without warrant, a person whom he, on reasonable
and probable grounds, believes to have committed an offence and to be escap-
ing from, and to be freshly pursued by, those whom the person arresting, on
reasonable and probable grounds, believes to have lawful authority to arrest
such person.

5. The owner of any property on or in respect to which any person is
found committing an offence against this Act, or any person authorized by
such owner, may arrest without warrant the person so found, who shall forth-
with be taken before a justice of the peace to be dealt with according to law,
R. S. C. 0. 174, 8. 24.

6. Any officer in Her Majesty's service, any warrant or petty officer in.the
navy, and any non-commissioned officer of marines may arrest without wamnt
any person found committing any of the offences mentioned in section one
hundred and nineteen of this Act.

7. Any peace officer may, without a warrant, take into custody any person
whom he finds lying or loitering in any highway, yard or other place during
the night, and whom he has good cause to suspect of having committed, or
being about to commit, any indictable offence, and may detain such person
until he can be brought before a justice of the peace, to be dealt with accord-
ing to law ;

(a) No person who has been so apprehended shall be detained after noon
of the following day without being brought before a justice of the peace.
R. S. C. c. 174. s. 28.

Section 26, K. S. C. c. 174, has not been re-enacted. It
authorized any one to arrest any person offering stolen pro-
perty for sale. The insertion of the words '* against this
Act " in s-ss. 3 & 5 is a gross error. S-s. 2 is a redundant
enactment ; it is covered by s-s. 3. This Code is silent as
to the cases where a peace officer, or any one, is bound to
arrest an offender.

Sections 16 to 4i,ante, are enactments concerning arrests
generally. " Night " and " peace officer " defined, s. 3.

[Sec. 55?

it foreign gold
, counterfeiting

cutting booms,
ndred, attempt-

elty to animals ;

e •whom he finds
y arreat, without
fence against this

he, on reasonable
e and to be escap-
irson arresting, on
authority to arrest

nich any person is
rson authorized by
id, who shall forth-
h according to law.

r petty officer in, the
«st without warrant
med in section one

custody any person
other place during
iving committed, or
detain such person
dealt with accord-
detained after noon
astice of the peace.

Ire-enacted. It
Jring stolen pio-
•* against this
is a redundant
tode is silent as
)ne, is hound to

icerning arrests
lefined, s. 3.

ARREST WITHOUT WARRANT.

Prisoner arrested and detained upon a telegram from
persons in France and England: Kolliga, in re, 6 E. L. 213;
see R. V. McHolme, 8 P. E. (Ont.) 452.

" At common law, if a constable or peace o£Scer sees any
person committing a felony, he not only may, but he must
and is hound to apprehend the offender. And not only &
constable or peace officer, but " all persona who are present
when a felony is committed, or a dangerous wound given,
are bound to apprehend the offender, on pain of being fined
and imprisoned for their neglect, unless they were under
age at the time: (2 Hawk. 115) ; and it is the duty of all
persons to arrest without warrant any person attempting to
comiuit a felony; (E. v. Hunt, 1 Moo. 93; R. v. Howarth,
1 Moo. 207). So any person may arrest another for the
purpose of putting a stop to a breach of the peace com-
mitted in his presence : 2 Hawk. P. C. 115 ; 1 Burn, 295,
299). A peace officer may arrest any person without
warrant, on a reasonable suspicion of felony, though that
doctrine does not extend to misdemeanours. And even a
private person has that right. But there is a distinction
between a private person and a constable as to the power
to arrest any one upon suspicion of having committed a
felony, which is thus stated by Lord Tenterden, C.J., in
Beckwith v. Philby, 6 B. & C. 635."

"lu order to justify a private person in causing the
imprisonment of a person, he must not only make out a
reasonable ground of suspicion, but he must prove that a
felony has been actually committed : {see Ashley v. Dundas,
5 0. S. (Ont.) 749) ; whereas a constable, having reasonable
ground to suspect that a felony has been committed, i»
I authorized to detain the party suspected until inquiry can
be made by the proper authorities : {see McKenzie v. Gibson,
8U. G. Q. B. 100.) This distinction is perfectly settled.
The rule as to private persons was so stated by Genney, in
the Year Book, 9 Edw. IV. already mentioned, and has been
fully settled ever since the case of Led with v. Gatchpole,,

£■

'^p

iu I

'I-,

: (

i. t

■■';-i

■y

:if

1^^'

620

PROCEDURE.

(Cald. 291, A. D. 1783);" Greaves, on arrest without war-
rant : see Murphy v. Eills, 2 Han. (N. B.) 347.

It has been contended that at contimon law any private
person may also arrest a person found committing a misde-
meanour. This doctrine having been denied, in England, by
a correspondent of the Times, Mr. Greaves published, on the
question, an article, {Appendix to Greaves* Crim. Acts) too
long for insertion here, but from which the following
extracts give fully the author's views on the question : —

'* On these authorities it seems to be perfectly clear that
any private person may lawfully apprehend any person
whom he may catch in the attempt to commit any felony,
and take him before a justice to be dealt with according to
law."

" I have now adduced abundantly sufficient authorities
to prove that the general assertion in the paper (in the
Times), that ' a private individual is not justified in arrest-
ing without a warrant a person found committing a misde-
meanour' cannot be supported. On the contrary, those
authorities very strongly tend to show that any private
individual may arrest any person whom he catches com-
mitting any misdemeanour. It is quite true that I have
been unable to find any express authority which goes to
that extent ; but it must be remembered that where the
question turns on some common law rule, there never can
have been any authority to lay down any general rule;
each case must necessarily be a single instance of a par*
ticular class ; and, as in larceny, notwithstanding the vast
-number of cases which have been decided, no complete
definition of the offence has ever yet been given by ?.ay
binding authority, so in the pr 3sent case we must not be
surprised if we find no general rule established."

" But when we find that all misdemeanours are of the
same class; that it is impossible to distinguish in any
satisfactory way between one and another, and that in the
only case (Fox v. Gaunt) where such a distinction was

'^.'

ARREST WITHOUT WARRANT.

621

attempted, the court at once repudiated it ; and when, on
the question whether a party indicted for a misdemeanour
was entitled to be discharged on habeas corpus, Lord Tent-
erden, C.J., said, in delivering the judgment of the court,
<I do not know how for this purpose, to distinguish between
one class of crimes and another. It has been urged that the
same principle will warrant an arrest in the case of a com-
mon assault. That certainly will follow: Ex parte Scott,
9 B. & G. 446. And when, above all, the same broad prin-
ciple that it is for the common good that all offenders should
be arrested, applies to every misdemeanour, and that prin-
ciple has been the foundation of the decision from the
earliest times, and was the ground on which Timothy y.
Simpson was decided ; the only reasonable conclusion
seems to be that the power to arrest applies to all luisde-
meanours alike, wherever the defendant is caught in the
act."

It has been held that where a statute gives a power to
arrest a person found committing an offence, he must be
taken in the act, or in such continuous pursuit that from
the finding until the apprehension, the circumstances con-
stitute one transaction : B. v. Howarth, 1 Moo. 207 ; Roberts
V. Orchard, 2 H. & C. 769 ; and therefore, if he was found
in the next field with property in his possession suspected
to be stolen out of the adjoining one, it is not sufficient :
B. v. Curran, 3 C. & P. 397 ; but if seen committing the
offence it is enough, if the apprehension is on quick pur-
suit: Hanway v. Boultbee, 4 0. & P. 350. The person
must be immediately apprehended; therefore, probably, the
next day would not be soon enough, though the lapse of
time necessary to send for assistance would be allowable :
Morris v. Wise, 2 F. & F. 61 ; but an interval of three
hours between the commission of the offence and the dis-
covery and commencement of pursuit is too long to justify
an arrest without warrant under these statutes : Downing
V. Capel, 36 L. J. M. C. 97.

622

PROCEDURE.

The person must be forthwith taken before a neigh-
bouring justice, and, therefore, it is not complying with the
statute to take him to the prosecutor's house first, though
only half a mile out of the way : Morris v. Wise, 2 F. &
F. 51 ; unless, indeed, it were in the night time, and then
he might probably be kept in such a place until the morn-
ing : R. V. Hunt, 1 Moo. 93.

But no person can, in general, be apprehended without
warrant for a mere misdemeanour not attended with a
breach of the peace, as perjury or libel : King v. Poe, 30
J. P. 178 ; and a private individual cannot arrest another,
without warrant, on the ground of suspicion of his having
been guilty of a misdemeanour ; nor can, in this case, con-
stables and peace officers : Mathews v. Biddulph, 4 Scott,
N. R. 64 ; Fox v. Gaunt, 3 B. & Ad. 798 ; Griffin v. Cole-
man, 4 H. & N. 265. Neither can any person, not even a
constable, arrest a persvon without a warrant on a charge of
misdemeanour ; R. v. Curvan, 1 Moo. 132 ; R. v. Phelps,
Car. & M. 180 • R. v. Chapman, 12 Cox, 4 ; Codd v. Cabe,
13 Cox, 202 ; except when such person is found committing
the offence by the person making the arrest in the cases,
as antey where the statute specially authorizes him to do
BO. And .though any person can make an arrest to prevent
a brerich of the peace, or put down a riot or an affray, yet,
after the offence is over, even a constable cannot apprehend
any person guilty of it, unless there is danger of its renew-
al : Price v. Seeley, 10 C. & F. 28 ; Baynes v. Brewster, 2
Q. B. 375 ; Derecourt v. Corbishley, 5 E. & B. 188; Tim-
othy V. Simpson, 1 C. M. & R. 757 : R. v. Walker, Dears.
358. In R. V. Light, Dears. & B. 332, it appeared that the
constable, while standing outside the defendant's house,
saw him take up a shovel and hold it in a threatening
attitude over his wife's head, and heard him at the time
gay, "If it was not for the policeman outside I would split
your head open ; " that in about twenty minutes afterwards
the defendant left his house, after saying that he would

ARREST WITHOUT WARRANT.

C23

leave bis wife altogether, and was taken into custody by
the constable, who had no warrant, when he had proceeded
a short distance in the direction of his father's residence ;
the prisoner resisted and assaulted the constable, for which
be was tried and found guilty, and, upon a case reserved,
the judges held that the conviction was right, and that the
constable had the right to apprehend the defendant. " A
constable, as conservator of the peace," said Williams, J.,
«' has authority, equally with all the rest of Her Majnty's
subjects, to apprehend a man where there is reasonable
ground to believe that a breach of the peace will be com-
mitted ; and it is quite settled that where he has witnes<^ed
an assault he may apprehend as soon after as he conve-
niently can. He had a right to apprehend the prisoner
and detain him until he was taken before justices, to be
dealt with according to law. He had a right to take him,
not only to prevent a further breach of the peace, but also
that he might be dealt with according to law in respect of
the assault which he had so recently seen him commit."

Arrest, without warrant, for contempt of court. — Judges
of courts of record have power to commit to the custody of
their officer, aedentc curia, by oral command, without any
warrant made at the time : Kemp v. Neville, 10 C. B. N. S.
528. This proceeds upon the ground that there is in con-
templation of law a record of such commitment which
record may be drawn up when necessary : Watson v. i* >;lell,
14 M. & W. 57 ; 1 Burn, 293 ; for the like reason no war-
rant is required for the execution of sentence of death : 2
Hale, 408. If a contempt be committed in the face of a
court, as by rude and contumelious behaviour, by obstinacy,
perverseness, or prevarication, by breach of the peace or
any \rilful disturbance whatever, the judge may order the
ofifender to be instantly, without any warrant, apprehended
and imprisoned, at his, the judge's, discretion, without any
further proof or examination : 2 Hawk. 221 ; Cropper v.
Horton, 8 D. & E. 166 ; R. v. James, 1 D. & B. 559 ;

%'!,*f

I'l'

I ■• '■•:,

624

PROCEDURE.

but the commitment must be for a time certain, and if
by a justice of the peace, for a contempt of himself in
his office, it must be by warrant in writing : Mayhew v.
Locke, 2 Marsh. 377, 7 Taun. 63; and the jurisdiction
with regard to contempt, which belongs to inferior courts,
and in particular to the county court, is confined to con-
tempts committed in the court itself : Ex parte Jolifife, 42
L. J. Q. B. 121. This last case rests principally on the
9 & 10 V. c. 96 (Imp.), which gives to county courts power to
comrait for contempt committed in face of the court, but
is silent as to contempt committed out of court : see 4
Stephens' Com. 341 ; R. v. Lefroy, L. R. 8 Q. B. 134.

Time, place and manner of arrest. — A person charged
on a criminal account may be apprehended at any time
in the day or night. The 29 Car. 2, c. 7, s. 6, prohibited
arrests on Sundays, except in cases of treasons, felonies and
breaches of the peace, but now warrant of arrest for any in-
dictable offence may be executed on a Sunday : see s. 564,
post. No place affords protection to offenders against the
criminal law, and they may be arrested anywhere, and
wherever they may be : Bacon's Abr. Verb. Trespass.

As to the manner of arresting without warrant by a
private person, he is bound, previously to the arrest, to
notify to the party the cause for which he arrests, and to
require him to submit ; but such notification is not neces-
sary where the party is in the actual comtnibsion of the
offence, or where fresh pursuit is made after any such
offender, who, being disturbed, makes his escape ; so a
constable arresting without warrant is bound to notify his
authority for such arrest, unless the offender be otherwise
acquainted with it, except, as in the case of private
individuals, where the offender is arrested in the actual
commission of the offence, or on fresh pursuit: E. v.
Howarth, 1 Moo. 207.

If a felony be committed, or a felon fly from justice, or
a dangerous wound be given, it is the duty of every man

GENERAL REMARKS. ggS

9tteWM« overtaken, the homioL • • T-l*''^ *" '""^t >•«
is not confined to thoseX t ' ' f""'' ^'''' ""''
ocular proof of the fact or L .u '"T"' '° »» '» We
knowledge of it, for ifta tL """"^ '""' «"' «ome to the
the persons wh^ jl i "ai^orthr Tl ^"™" "» -«'^
.re under the same prote^fen „f ,t''?° ""«*" *« P"™''
be taken in any cJr^T , '"' '"''• ^ut if he mav
".-daughter i^ 'ZT^Z^Zt!-'' ''' *' '^^
inquure whether it were done of 1^ •. ^"^ °"8ht to
P- C. 298; bat this is norexLnde/f ^ " ""' = ' ^O'*'
meanour or arrest in civil n,ll?- '? "*'«« »' '»«de-
riot or affray, if a person inter:!''"^':""'"^'' » " «»« of
i">ts, giving noticel then, of rr^'l* '^ '^' "o""-"-
be assaulted by them or eTthi 'f ^^^ ^ '""""°°' *''°'<»
-bould happen to kill thif w;n 1 "" ""^ ''" ""« ''™«gle
F»»'- 272. However „L "" •'"'"*'"''« ''<«»icide :

actually committed,;,;. nX'The" '''"'" '» ""^ "»«»
pursued, the law does not afford f.."'""" ""'^"'^^ »■>«
snch as of their own accnM ^* '»""' indemnity to-

that a felony had Tercorn'm^tT" "'''""'^" '"'"""'"o-
bow probable soever the sSl„ T " ""^ P^^ity
«ti"« on reasonable suspS of .^ ' "»' """''ables
P'oraeding to such extreSe„ „1? '""^ ^'^ J"««fi'<l io
"«' he; but the constable must 1" ''"™"' ^^""'""''y
reasonable ground for suspeoUnT ,K 7' "'' "' '™»' ha™
'"fitted; foraconstabi?was tn "I '''""^ "■" ''»''°
"», with intent to do h m som? " "' '""^""K "' »
*m he saw carrying woo^our^,^"™"" '""'''yha™.
keen employed to watch,7nd who > * """f ''"'='' •"« had
ave escaped if he had no. fitd f"^ '"T « "'"y- ^°"'''
k*™ f "'""Sly summarily onvir,rr' '"' """" •""»
•had not committed a felonv ' 'hM ^u' '*"^ »ff«°«»
"previously convicted the c».ru ""«'' *•' ''"^ been
'^■"1 the conviction was affi?^ ^J' """ "<" ^''a'-e of it
««e. reserved. "We ', t^7lt ^^ ""^ ■=<"•" <" orown
o.«. L„-^ "'^ »" "unl lie conviction right " sa^d

:•!

i; I :

.V I !

I -u

.V;

r? '■ '!.

626

PROCEDURE.

Pollock, C.B., " the prisoner was not justified in firing at
Waters, because the fact that Waters was committing a
felony was not known to the prisoner at the time : E. v.
Dadson, 2 Den. 35.

What was an " immediate arrest " under ss. 24 & 25
of the repealed statute, was a question for the jury : Griffith
V. Taylor, 2 C. P. D. 194.

On the clause corresponding to s. 26, of the repealed
statute. Greaves says :

" As to what constitutes a reasonable cause, in such
oases, depends very much on the particular facts and cir-
cumstances in each instance ; the general rule being that
(the grounds must be such that any reasonable person,
acting without passion or prejudice, would fairly have sus-
pected the party arrested of being the person who com-
mitted the offence, though the words of the statute seem to
authorize the apprehension of the person offering, whether
he be suspected or not : Allen v. Wright, 8 C. & P. 522.
A bare surmise or suspicion is plainly insufficient : Leete
V. Hart, 37 L. J. C. P. 157 ; Davis v. Eussell, 6 Bing.
354."

These cases apply to s-s. 4 of s. 552.

Sec. 553J

ed in firing at

committing a

ae time : E. v.

er ss. 24 & 25
jury: Griffith

F the repealed

jause, in such
facts and cir-
ule being that
inable person,
lirly have sus-
son who com-
itatute seem to
ering, whether
C. & P. 522.
fficient : Leete
iBsell, 6 Bing.

PRELIMINARY INQUIRY

627

PART XLIV.
<?««« T^ -ficcLSED Before Justior t a

magisterial Juri^dictioIroVlirn";"^"! -^ *^« boundary of two "„
any such boundary, or is C^ *'^^'«*^"^« -^ five kundredZrlTZ
completed within another sS 7 " °"^ magisterial jurisdfoH ^
— t. in any one .2^^^^^ ^| Tltf"^^^^^^^^^^^ ^^

convSi:^':^ i^^i—t^ --"^-;::t:^;..^„

person, or in respect of any pro^r""'" °'' ^^^'^ing sent by post or o^"°°
journey, or on board any vessef^Jf'/" °f "P°° ^^^ vehicfe e^wT '""^
other inland naviiratirm "^ '^®^^®' employed on any nav.VaK "^^*"* '" *
mitted such oS la'nv :,P^T -^""^^^ «^^» ^ oZlt^ 'T' ."^^^^ -
or vessel passed i^^hr^ '^'"'^"^^ ^""^diction through lu 7^^
offence wa^ dm L. ^^'''l °^ *''" -""""^"^y ^^ vovaL H '"'^ ""'^^^^^

navigable riverTranlfc^r'fK^'''''^''^^'^"*'-- or olhl^^^^^^ ^^'^^ *he

->-l passed in' t'lllf ^ 'f "' "^^^^^*-« ''onrwhich t^^^^^

-H.jc.:-?r^--e^t^itin^^r^:s:-^^

buate,3,^,d, J^^^^.J[«' with the.substitutionof five
That distance is fn k^

'b' border, aud Vt t ti'^Z^f '" " '"^"^ «- from
Jur. 235. ^ "" "™'^«8« road : B. v. Wood, 5

IV««rf iry it in either K V if Vt' °"'"' ■"" ""'y '»
«i»o on this clause • R v T .'°^"' ^ «• B- 686. See

Bears. 642. ' ^^ '• "'<"'^«' ^ »«"• 551 ; R. v. Leech

628

PROCEDURE.

[Sec. 553

which it was committed. It appears, however, to have
been a matter of doubt at the common law whether, when
a man died in one county of a stroke received in another,
the offence could be considered as having been completely
committed in either county; but by the 2 & 3 Edw. YI. c. 24,
8. 2, it was enacted that the trial should be in the county
where the death happened.

Under the said s-s. (6), where the blow is given in one
county, and the death takes place in another, the trial may
be in either of these counties : 1 Euss. 753. This applies
to coroners, when a felony has been committed, but not
wL-'u the death is the result of an accident : B. v. Great
Western Kailway Company, 3 Q. B. 333 and note by
Greaves^ 1 Russ. 754 ; R. v. Grand Junction E. Co., 11
A. & E. 128.

Sab-section (c) is taken from the 7 Geo. IV. c. 64,
8. 13, of the Imperial Statutes.

This enactment is not confined in its operation to the
carriages of common carriers or to public conveyances, but
if property is stolen from any carriage employed on any
journey the offendei' may, by virtue of the above section,
be tried in any county through any part whereof such car-
riage shall have passed in the course of the journey during
which such offence shall have been committed: R. v. Sharps,
Dears. 415.

As to the effect of the words " in or upon " in this sec-
tion, see E. V. Sharpe, 2 Lewin 233.

Where the evidence is consistent with the fact of an
article having been abstracted from a railway carriage,
either in the course of the journey through the county of
A., or after its arrival at its ultimate destination in the
county of B., and the prisoner is indicted under the above
flection, the case must go to the jury, who are to say whe*;her
they are satisfied that the larceny was committed in the
course of the journey or afterwards : R. v. Pierce, 6 Cox,
117.

[Sec. 553

, to have
iher, when
a another,
completely
r.VI.c.24,
the county

iven in one
,e trial may
Phis applies
ted, but not
R. V. Great
knd note by
. R. Co., 11

. IV. c. 64,

^ration to the
reyances, but
loyed on any

>ove section,
[eof such car-
|urney during

R. V. Sharps,

I" in thissec-

^e fact of an
jvay carriage,

the county of
riation in the

ber the above

lo say whether
nitted in the
Pierce, 6 Cox,

Sees. 554, 565] PRELIMINARY INQUIRY.

When Justice Mat Compel Appearance.

629

954. Every justice may issue a warrant or summons as hereinafter
mentioned to compel the attendance of an accused person before him, for the
purpose of preliminary inquiry in any of the following cases :

(a) If such person is accused of having committed in any ]ilace whatever an
indictable offence triable in the province in which such justice resides, and is,
or is suspected to be, within the limits over which such justice has jurisdiction,
or resides or is suspected to reside within such limits ;

(h) If such person, wherever he may be, is accused of having committed an
indictable offence within such limits ;

(c) If such person is alleged to have anywhere unlawfully received property
which was unlawfully obtained within such limits ;

(d) If such person has in his possession, within such limits, any stolen projyerty.

What are the offences committed out of a province that
are triable in that province ? This Code does not say.

Offences in Certain Parts of Ontario.

955. All offences committed in any of the unorganized tracts of country
in the province of Ontario, including lakes, rivers and other waters therein,
not embraced within the limits of any organized county, or within any provi-
sional judicial distiict, may be laid and charged to have been committed and
may be inquired of, tried and punished within any county of such province ;
and such offences shall be within the jurisdiction of any court having jurisdic-
tion over offences of the like nature committed within the limits of such
county, before which court such offences may be prosecuted ; and such court
shall proceed therein to trial, judgment and execution or other punishment
for such offence, in the same manner as if such offence had been committed
within the county where such trial is had.

2. When any provisional judicial district or new county is formed and
established in any of such unorganized tracts, all offences committed within
the limits of such provisional judicial district or new county, shall be inquired
of, tried and punished within the same, in like manner as such offences would
have been inquired of, tried and punished if this section had not been passed.

3. Any person accused or convicted of any offence in any such provisional
district may be committed to any common gaol in the province of Ontario ;
and the constable or other officer having charge of such person and intrusted
with his conveyance to any such common gaol, may pass through any county
in such province with such person in his custody ; and the keeper of the
common gaol of any county in such province in which it is found necessary to
lodge for safe keeping any such person so being conveyed through such county
in custody, shall receive such (lerson and safely keep and detain him in such
common gaol for such period as is reasonable or necessary ; and the keeper of
any common gaol in such province, to which any such person is committed as
aforesaid, shall receive such person and safely keep and detain him in such
common gaol under his custody until discharged indue course of law, or bailed
in cases in which bail may by law be taken. R. S. C. c. 174, s. 14.

:ta

630

PROCEDURE.

[Sees. 550, 557

it' m-W>

. 1^'

Offences in Gaspe.

SiSO. Whenever any offence is committed in the district of Gaspe, the
offender, if committed to gaol before trial, may be committed to the common
gaol of the county in which the offence was committed, or may, in law, be
deemed to have been committed, and if tried before the Court of Queen's
Bench, he shall be so tried at the sitting of such court held in the county to the
gaol of which he has been committed, and if imprisoned in the common gaol
after trial he shall be so imprisoned in the common gaol of the county in which
he has been tried. R. S. C. o. 174, s. 15.

Offences Committed out of Jurisdiction. [Amended).

cS«S7« The preliminary inquiry may be held either by one justice or by
more justices than one ; Provided that if the accused person is brought before
any justice charged with an offence committed out of the limits of the juris.
diction of such justice, such justice may, after hearing both sides, order the
accused at any stage of the inquiry to ba taken by a constable before some
justice having jurisdiction in the place where the offence was committed. The
justice so ordering shall give a warrant for that purpose to a constable, which
may be in the form A in schedule one hereto, or to the like effect, and
shall deliver to such constable the information, depositions and recognizances
if any taken under the provisions of this Act, to be delivered to the justice
before whom the accused person is to be taken, and such depositions and
. :;cognizance8 shall be treated to all intents as if they had been taken by the
last-mentioned justice.

2. Upon the constable delivering to the justice the warrant, information,
if any, depositions and recognizances, and proving on oath or affirmation, the
handwriting of the justice who has subscribed the same, such justice, before
whom the accused is produced, shall thereupon furnish such constable witii a
receipt or certificate in the form B in schedule one hereto, of his having
received from him the body of the accused, together with the warrant, infur-
mation, if any, depositions and recognizances, and of his havmg proved to
him, upon oath or affirmation, the handwriting of the justice who issued the
warrant.

4. If such justice does not commit the accused for trial, or hold him to
bail, the recognizances taken before the first mentioned justice shall be void.

A. {Section 557.)

WARRANT TO CONVEY BEFORE A JUSTICE OF ANOTHER

COUNTY.

Canada, ]

Province of , r

County of .)

Whereas information upon oath was this day made before

the undersigned that A. B. of , on the day of

, in the year , at , in the county of
{state the chmuje.)

Sec. 657]

PRELIMINARY INQUIRY.

631

OF ANOTHER

And whereas I have taken the deposition of X. Y. as to the
said offence. i,

And whereas the charge is of an offence committed in the
county of

This is to command you to convey the said {name of accused),
of , hefore some justice of the last-mentioned county^

near the ahove place, and to deliver to him this warrant and the
said deposition.

Dated at , in the said county of , this

day of , in the year

J. S.,

J. P., {Name of county,)
To of

B,— (Section 557.)

RECEIPT TO BE GIVEN TO THE CONSTABLE BY THE JUSTICE
FOR THE COUNTY IN WHICH THE OFFENCE WAS
COMMITTED.
Canada,
Province of
County of

I, J. L., a justice of the peace in and for the county of
, hereby certify that W. T., peace officer of the county
of , has, on this day of , in the year

, by virtue of and in obedience to a warrant of J. S.,
Esquire, a justice of the peace in and for the county of y

produced before me one A. B., charged before the said J. S. with
having {etc., stating shortly theofence), and delivered him into the
custody of . by my direction, to answer to the said

charge, and further to be dealt with according to law, and has
also delivered unto me the said warrant, together with the infor-
mation [if any) in that behalf, and the deposition (s) of C. D.
[and of ), in said warrant mentioned, and that he has

also proved to me, upon oath, the handwritiug of the said J. S.
subscribed to the same.

Dated the day and year first above mentioned, at ,

in the said county of

J. L.,

J. P., {Xame of county.)

632

PROCEDURE.

[Sees. 558-560

Information.

558 • Any one who, upon reasonable or probable grounds, believes that
any person has committed an indictable offence against this Act may make a
complaint or lay an information in writinpf and under oath before any magis-
trate or justice of the peace having jurisdiction to issue a warrant or summons
against such accused person in respect of such offence.

2. Such complaint or information may be in the form C. in schedule one
hereto, or to the like effect.

The words " against this Act " are a grave iiiistake.
As to a warrant see s. 563.

C— {Section 558.)

INFORMATION AND COMPLAINT FOR AN INDICTABLE

OFFENCE.

Canada, |

Province of , >

County of . )

The information and complaint of C. D. of , [i.eo-

man), taken this day of , in the year

before the undersigned {one) of Her Majesty's justices of
the peace in and for the said county of , who saitb that

(etc., stating the offence).

Sworn before {me), the day and year first above men-
tioned, at

J. S.,

J. P., {Name of coiintij).

Hearing on Information.
550. Upon receiving any such complaint or information the justice
shall hear and consider the allegations of the complainant, and if of opinion
that a case for so doing is made out he shall issue i summons, or warrant, as
the case may be, in manner hereinafter mentioned ; and suck justice shall not
reifmt to issue such summons or warrant only because the alleged offence is one
for which an offender may he arrested without warrant. R. S. C. c. 174, s. 30.

Offbncbs Committed on the Hioh Seas.

SOO* Whenever any indictable offence is committed on the high seas, or
in any creek, harbour, haven or other place in which the Admiralty of Engf-
land have or claim to have jurisdiction, and whenever any offence is committed
on land beyond the seas for which an indictment may be preferred or the
offender may be arrested in Canada, any justice for any territorial division in
which any person charged with, or suspected of, having committed any such
offenoe is or is suspected to be, may issue his warrant, in the form D in
schedule one hereto, or to the like effect to apprehend such person, to be dealt
with as herein and hereby directed. R. S. C. o. 174, s. 32.

[Sees. 668-560

ids, believes that
Act may make a
?fore any magis-
Tant or summons

/. in schedule one

rave iiiistake.

[NDICTABLE

Sec. 561]

PRELIMINARY INQUIRY,

633

I the year
isty's justices of
, who saitb that

it above men-

ne of county).

aation the justice
I, and if of opinion
pns, or warrant, as
tch justice shall not
\lleged offence is one
C. 0. 174, 8. 30.

|n the high seas, or
admiralty of Eng-
fence is committed
preferred or the
ktorial division in
imitted any such
\n the form D in
person, to be dealt

" Beyond the seas " in England, means outside of the
realm. The words have been recopied here from the Eng-
lish Act to mean outside of Canada, it must be assumed.
It may be that the United States are beyond the seas in
the construction of this enactment : Lane v. Bennet, 1 M.
& W. 70; Kuckmaboye v. LuUoobhoy Mottichund, 8 Moo.
P. C. 4 ; Davie v. Briggs, 97 U. S. 628. But it would have
been better to say " outside of Canada."

This enactment assumes that there are offences com-
mitted on land beyond the seas that are indictable in Canada.
What these offences are, and under what circumstances
they are indictable in Canada, is not to be found in the
Code. Likewise for offences committed within the jurisdic-
tion of the Admiralty, the Code is silent as to Canada's
jurisdiction. Sections 8 & 9 of c. 174, R. S. C. are re-
pealed, and probably intended to be covered by s. 640 : sed
quare ?

J).— {Section 560.)

WARRANT TO APPREHEND A PERSON CHARGED WITH AN
INDICTABLE OFFENCE ON THE HIGH SEAS
OR ABROAD.

For offences committed on the high seas the tcarrant may be the
same as in ordinary cases, but describiny the offence to have been com-
mitted "on the high seas, out of the body of any district or
county of Canada and within the jurisdiction of the Admiralty
of England."

For offences committed abroad, for which the parties may be
indicted in Canada, the warrant also matj be the same as in ordinary
cases, but describing theoff'ence to have been committed •* on land out
of Canada, to wit : at in the Kingdom of , or,

at , in the Island of , in the West Indies, or

at , ill the East Indies," or as the case may be.

Arukst op SuspKCTKn Deserters.
501* Every one who is reasonably suspected of being a deserter from
Her Majesty's service may be apprehended and brought for examination
before any justice of the peace, and if it api)ear3 that he is a deserter he shall
be confined in gaol until claimed by the military or naval authorities, or pro-
ceeded against according to law. R. S. C. c. IG'J, s. 0.

•t*

i^y;

'^''

;:*";

634

PROCEDURE.

[Sec. 562

2. No one shall break open any building to search for a destrter unless he
has obtained a warrant for that purpose from a justice of the peace,— such
warrai't to be founded on affidavit that there is reason to believe that the
deserter is concealed in such building, and that admittance has been demanded
and refused ; and every one who resists the execution of any such warrant
shall incur a [wnalty of eighty dollars, recoverable on summary conviction in
like manner as other penalties under this Act. R. S. C. c. 1G9, s. 7.

Section 9 of c. 169, R. S. C. is unrepealed.

Summons.

50fS- Every summons issued by a justice under this Act shall be directed
to the accused, and shall require him to appear at a time and place to be
therein mentioned. Such summons may be in the form E in schedule one
hereto, or to the like effect. No summons shall be signed in blank.

2. Every such summons shall be served by a constable or other peace
officer upon the person to whom it is di'-ected, either by delivering it to him
personally or, if such Person cannot conveniently be met with, by leaving it
for him at his last or Jt usual place of abode with some inmate thereof appar-
ently not under sixteen years of age.

3. The service of any such summons may be proved by the oral testimony
of the person effecting the same or by the affidavit of such person purportiiiij to
be made be/ore a justice. R. S. C. c. 174, ss. 40, 41 & 42.

E.— {Section 562.)

SUMMONS TO A PERSON CHARGED WITH AN INDICTABLE

OFFENCE.
Canada, \

Province of , V

County of J

To A. B. of , {labourer) :

Whereas you have this day been charged before the under-
signed , a justice of the peace in and for the said
county of , for that you on , at ,
{stathvi shortly the ojf'cnci') : These are therefore to command you,
in Her Majesty's name, to be and appear before {me) on
at o'clock in the (fore) noon, at , or before such
other justice or justices of the peace for the same county of ,
as shall then be there, to answer to the said charge, and to be
further dealt with according to law. Herein fail not.

Given under {my) hand and seal, this day of ,

in the year , at , in the county aforesaid.

J. S., [seal.]
J. P., {Name of county.)

Sec. 5G3]

PRELIMINARY INQUIRY.

635

N INDICTABLE

Warrant of Apprkhbnbion.

503> The warrant issued by a justice for the apprehension of the person
against whom an information or complaint has been laid, as provided in section
five hundnid and fifty-eight, may be in the form F in schedule one hereto, or to
the like effect. No such warrant shall be siyned in blank.

2. Every such warrant shall be under the hand and seal of the justice
iRsuing the same, and may be directed, either to any constable by name, or to
such constable and all other constables within the territorial juri^ iction of the
justice issuing it, or generally to all constables within such jurisdiction.

3. The warrant shall state shortly the offence for which it is issued, and
shall name or otherwise describe the offender, and it shall order the officer or
officers to whom it ia directed to apprehend the offender and bring him before
the justice or justices issuing the warrant, or before some other justice or
justices to answer to the charge contained in the said information or com-
plaint, and to be further dealt with according to law. It shall not be necessary
to make such warrant returnable at any particular time, but the same shall
remain in force until it is executed.

4. The fact that a summons has been issued shall not prevent any justice
from issuing such warrant at any time before or after the time mentioned in
the summons for the appearance of the accused ; and where the service of the
summons has been proved and the accused does not appear, or when it appears
that the summons cannot be served, the warrant (form G) may issue. R. S. C.
c. 174, ss. 31, 43, 44 & 4G.

Y.— {Section 563.)

WARRANT IN THE FIRST INSTANCE TO APPREHEND A PER-
SON CHARGED WITH AN INDICTABLE OFFENCE.

Canada,
Province of
County of

To all or any of the constables and other peace officers in the
said county of

Whereas A. B. of , {labourer), has this day been

charged upon oath before the undersigned , a justice of

the peace in and for the said county of , for that he,

on , at , did {etc., stating shortli/ the offencf) :

These are therefore to command you, in Her Majesty's name,
forthwith to apprehend the said A. B., and to bring him before
[me) (or some other justice of the peace in and for the said
county of ), to answer unto the said charge, and to be

further dealt with according to law.

Given under {my) hand and seal, this day of ,

;}

in the year

, in the county aforesaid.
J. S., [Seal.]

J. P„ {Xame of County.)

:rk j

■:ii':|:{

.)&

€36

PROCEDURE.

[Sec. 604

Q.—{Si'ctian 568.)

WARRANT WHEN THE SUMMONS IS DISOBEYED.

Canada, |

Province of , ,-

County of . )

To all or any of the constables and other peace officers in the
said county of
Whereas on the day of , (instant or last

past) A. B., of , was charged before {me or «s,) the

undersigned (or luime the justice orjmtices, or as the case man M>
{a) justice of the peace in and for the said county of ,

for that {etc., as in the summons) ; and whereas I {or he the said
justice of the peace, or we or they the said justices of the peace
did then issue (my, our, his or their) summons to the said A. B.,
commanding him, in Her Majesty's name, to be and appear
before (me) on at o'clock in the (fore) noon,

at , or before such other justice or justices of the

peace as should then be there, to answer to the said charge and
to be further dealt with according to law ; and whereas the said
A. B. has neglected to be or appear at the time and place
appointed in and by the said summons, although it has now
been proved to (mt") upon oath that the said summons was duly
served upon the said A. B. ; These are therefore to command
you in Her Majesty's name, forthwith to apprehend the said
A. B., and to bring him before (me) or some other justice of the
peace in and for the said county of , to answer the said

charge, and to be further dealt with according to law.

Given under (my) hand and seal, this day of ,

in the year , at , in the county aforesaid. '

J. S., [seal.]

J. P., (Xame of counUj.)

ExRccTioN OF Warrant.

864* Every such warrant may be executed by arresting the accused
wherever he is found in the territorial jurisdiction of the justice by whom it is
issued, or in the case of fresh pursuit, at any place in an adjoining territorial
division within seven miles of the border of the first-mentioned division.
R. S. C. c. 174, 88. 47 & 48.

2. Every such warrant may be executed by any constable named therein,
or by any one of the constables to whom it is directed, whether or not the

[Sec. m\

Sec. 566]

PRELIMINARY INQUIRY.

637

lEYED.

officers in the

instant or last
me or us,) the
lie cane man he),
ity of ,

[ [or he the said
ices of the leace
the said A. B.,
be and appear
le (fore) noon,
justices of the
said charge and
vhereas the said
time and place
,gh it has now
mons was duly
ore to command
^rehend the said
[er justice of the
answer the said
law.

day of .

aforesaid.

\me of cmntij.)

resting the accused

^stice by whom it ia

ijoining territorial

leiitioned division.

Iible named therein,
irhether or not the

place in whioh it is to be exec^. ed is within the place for which he is a
constable.

3. Every warrant authorized by this Act may be issued and executed on a
Sunday oi statutory holiday. R. S. C. o. 174, ss. 37, 47 & 48.

The words " oy this Act " are wrong ; they constitute &
limitation that clearly was not intended.

Frooesdino When Acouhed is out of the Jurisdiction.

HQS* If the person against whom any warrant has been issued cannot be
found within the jurisdiction of the justice by whom the same was issued, but
is or is suspected to be in any other part of Canada, any justice within whose
jurisdiction he is or is suspected to be, upon proof being made on oath or
affirmation of the handwriting of the justice who issued the same, shall make
an endorsement on the warrant, signed with his name, authorizing the execu-
tion thereof within his jurisdiction ; and such endorsement shall be sufficient
authority to the person bringing such warrant, and to all other persons to
whom the same was originally directed, and also to all constables of the
territorial division whore the warrant has been so endorsed, to execute the
same therein and to carry the person against whom the warrant issued, when
apprehended, before the justice who issued the warrant, or before some other
justice for the same territorial division. Such endorsement may be in the form
H. in schedule one hereto. R. S. C. o. 174, s, 49. «

H.— [Section 565.)

ENDORSEMENT IN BACKING A WARRANT.

Canada,
Province of
County of

Whereas proof upon oath has this day been made before
lue , a justice of the peace in and for the said county of

, that the name of J. S. to the within warrant sub-
scribed, is of the handwriting of the justice of the peace within
mentioned : I do therefore hereby authorize W. T. who brings
to me this warrant and all other persons to ^vluom tlis warrant
was origmally directed, or by whom it may be lawfully exe-
cuted, and also all peace officers of the said county of ,
to execute the same within the said last mentioned county.

Given under my hand, this day of , in the

year, at , in the county aforesaid.

J. L..

J. P., {Name of county.)

638

PROCEDURE.

[Sees. 566-5G9

'^1

Si'

Disposal of Person so Arrested.

S00> If the prosecutor or any of the witnesses for the prosecution are in
the territorial division where such person has been apprehended upon a war-
rant endorsed as provided in the last preceding section the constable or other
Ijerson or persons who have apprehended him may, if so directed by the justice
endorsing the warrant, take him before such justice, or before some other
justice for the same territorial division ; and the said justice may thereupon
take the examination of such prosecutor or witnesses, and proceed in every
respect as if he had himself issued the wannat. R. S. C. c. 174, s. 50.

Disposal op Person Apprehended. {Xetv).

567> When any person is arrested upon a warrant he shall, except in
the case provided for in the next preceding section, be brought as soon as is
practicable before the justice who issued it or some other justice for the same
territorial division, and such justice shall either proceed with the inquiry or
postpone it to a future time, in which latter case he shall either commit the
accused person to proper custody or admit him to bail or permit him to be at
large on his own recognizance according to the provisions hereinafter con-
tained.

Coroner's Inquisition. (Xeiv).

56S> Every coroner, upon any inquisition taken before him whereby
any person is charged with manslaughter or murder, shall (if the person or
persons, or either of them, affected by such verdict or finding be not already
charged with the said offence before a magistrate or justice), by warrant
under his hand, direct that such person be taken into custo ly and be conveyed,
with all convenient speed, before a magistrate or justice ; or such coroner
may direct such person to enter into a recognizance before him, with or with-
out a surety or sureties, to appear before a magistrate or justice. In either
case, it shall be the duty of the coroner to transmit to such magistrate or
justice the depositions taken before him in the matter. Upon any such person
being brought or api^earing before any such magistrate or justice, lie shall
proceed in all respects as though such i)erson had been brought or had
appeared before him ux^on a warrant or summons.

This virtually gives an appeal from the coroner's jury
to a single magistrate, who consequently, though hereto-
fore he had not even the right to bail any one charged by
a verdict of the coroner's jury, will now have the right to
set him free altogether.

Search Warrants.

560. Any justice who is satisfied by information upon oath in the fonn
J in schedule one hereto, that thero is reasonable ground for believing that
there is in any building, receptacle, or place —

(rt) anything uiwn or in respect of which any offence against this Act has
been or is susjieoted to have been committed ; or

(b) anything which there is reasonable ground to believe will afford evi-
dence as to the commission of any such offence ; or

Sec. 569]

SEARCH WARRANTS.

639

(c) anything which there is reasonable ground to believe is intended to be
used for the purpose of committing any offence against the person for which
the offender may be arrested without warrant —

may at any time issue a warrant under his hand authorizing some
constable or other person named therein to search such building, receptacle or
place, for any such thing, and to seize and carry it before the justice issuing
the warrant, or some other justice for the same territorial division to be by
him dealt with according to law. R, S. 0. c. 174, ss. 51 & 52.

2. Every search warrant shall bo executed by day, unless the justice shall
h'l the warrant authorize the constable or other person to execute it at nifjht.

3. Every search warrant may be in the form I in schedule one hereto, or to
the like effect.

I. When any such thing is seized and brought before such justice he may
detain it, taking reasonable care to preserve it till the conclusion of the
investigation ; and, if any one is committed for trial, he may order it further
to be detained for the ptirpose of evidence on the trial. If no one is committed,
the juslrice shall direct such thing to be restored to the person from whom it
was taken, except in the cases next hereinafter mentioned, unless he is author-
ized or required by law to dispose of it otherwise. In case any improved arm
or ammunition in respect to which any offence under section one hundred and
sixteen has been committed has been seized, it shall be forfeited to the Crown.
R, S. C. c. 50, s. 101.

5. If under any such warrant there is brought before any justice any
forged bank note, bank note-paper, instrument or other thing, the iiossession
wliereof in the absence of lawful excuse is an offence under any provision of
this or any other Act, the court to which any such person is committed for
trial or, if there is nf) commitment for trial, such justice may cause such thing
to be defaced or destroyed. R. S. 0. c. 174, s. 55.

6. If under any juch wari'ant there is brought before any justice, any
counterfeit coin or other thing the possession of which with knowledge of its
nature and without lawful excuse is an indictable offence under any provision
of Part XXXV. of this Act (s. 460), every such thing as soon as it has been
produced in evidence, or as soon aM it appears that it will no<- be required to be
^■1 produced, sliall forthwith be defaced or otherwise disposed of as the justice
or tuc 'iQurt directs. R. S. C. c. 174, s. 56.

7. Every person acting in tlie execution of any such warrant may seize
any px])li)8ive substance which he has good cause to suspect is intended to be
used for any unlawful object, — and shall, with all convenient speed, after the
seizure, remove tlie same to such i>roper place as he thinks fit, and detain the
same until ordered by a judge of a superior court to restore it to the person
who claims the same. R. S. C. c. 150, s. 11.

8. Any explosive substance so seized shall, in the event of the person in
whose possession the same is found, or of the owner thereof, being convicted of
any offence under Part VI. of this Act (s. 9i)), be forfeited ; and the same
shall be destroyed or sold imder the direction of the court before which such
person is convi.;ted, and, in the case of sale, the proceeds arising therefrom
shall be paid to the Minister of Finance and Rt'ceiver General, for the public
uses of Canada. R. S. C. c. 150, s. 12.

-I;

lit;
■1.

''^.

I'H^Sl

640

PROCEDURE.

[Sec. m

9. If ofiFenaive weapons believed to be dangerous to the public peace are
seized under a search warrant the same shall be kept in safe custody in such
place as the justice directs, unless the owner thereof proves, to the satisfaction
of such justice, that such offensive weapons were not kept for any purpose
dangerous to the public peace ; and any person from whom any such offensive
weapons are so taken may, if the justice of the peace upon whose warrant the
same are taken, upon application made for that purpose, refuses to restore the
same, apply to a judge of a superior or county court for the restitution of such
offensive weapons, upon giving ten days' previous notice of such application to
such justice ; and such judge shall make such order for the restitution or safe
custody of such offensive weapons as upon such application appears to him to
be proper. R. S. C. o. 149, ss. 2 & 3.

10. If goods or things by means of which it is suspected that an oifence
has been committed under Part XXXIII. (ss. 443 et seq.) are seized under a
search warrant, and brought before a justice, such justice and one or more other
justice or justices shall determine summarily whether the same are or are not
forfeited under the said Part XXXIII.; and if the owner of any goods or
things which, if the owner thereof had been convicted, would be forfeited
under this Ant, is unknown or cannot be found, an information or complaint
may be laid for the purpose only of enforcing such forfeiture, and the said
justice may cause notice to be advertised stating that unless cause is shown to
the contrary at the time and place named in the notice, such goods or things
will be declared forfeited ; and at such time and place the justice, unless tlie
owner, or any person on his behalf, or other person interested in the goods or
things, shows cause to the contrary, may declare such goods or things, or any
of them, forfeited. 51 V. c. 41, s. 14.

J.— (Section 569.)
INFORMATION TO OBTAIN A SEARCH WARRANT.

Canada,
Province of
County of

The information of A. B., of , in the said county

(yeoman) taken this day of , in the year ,

before me, J. S., Esquire, a justice of the peace, in and for
the county (describe things to be searched for and offence in respect
of which search is made), of , who says that

and that he has just and reasonable cause to suspect, and sus-
pects, tliat the said goods and chattels, or some part of them are
concealed in the (dwelliny-hoiise, dc.) of C. D., of , in the

said county, (here add the causes of smpicion, ivluitever they man
be) : Wherefore (he) prays that a search warrant may be granted
to him to search the (dwelling-home, dc), of the said C. D., as

[Sec. 56a

Sec. 570]

SEARCH FOR PUBLIC STORES.

641

jublic peace are
custody in such
) the satisfaction
for any purpose
ly such offensive
hose warrant the
ses to restore the
istitution of such
ich application to
■estitution or safe
appears to him to

ad that an offence
ire seized under a
one or more other
ime are or are not
: of any goods or
vould be forfeited
ation or complaint
ture, and the said
1 cause is shown to
loh goods or things
justice, unless the
ited in the gooda or
is or things, or any

IRRANT.

aforesaid, for the said goods and chattels so feloniously stolen,
taken and carried away as aforesaid.

Sworn (or affirmed) before me the day and year first above
mentioned, at , in the said county of .

J. S.,

J. P., (Name of county.)

I.— {Section 569.)

WARRANT TO SEARCH.
Canada,
Province of , -

County of

Wherefls it appears on the oath of A. B. of , that

there is reason to suspect that {describe things to be searched for
and qfence in respect of ivhich search is made) are concealed in
at

This is, therefore, to authorize and require you to enter
between the hours of {as the justice sliall direct) into the said
premises, and to search for the said things, and to bring the
same before me or some other justice.

Dated at , in the said county of , this

day of , in the year

J. S.,
J. P., {Xame of county).
To of .

liho said county

le year ,

Lee, in and for

IffeMe in respect

(spect, and sua-

irt of them are

, in the

\tever they maij

lay be granted

[said CD., as

Sk.\ROH for Pl'BLIO ST0UK8.

570t Any constable or other peace officer, if deputed by any public
department, may, within the limits for which he is such constable or peace
officer, stop, detain and search any person reasonably suspected of having or
conveying in any manner any public stores, defined in section throe hundred
and eighty-three, stolen or unlawfully obtained, or any vessel, boat or vehicle
in or on which there is reason to suspect that any public stores stolen or
unlawfully obtained may be found. ,

2. A constable or other peace officer shall be deemed to be deputo<i within
tlie meaning of this section if he is deputed by any writing signed by the
person who is the head of such department, or who is authorized to sign docu<
meats on behalf of such department. 50-51 V. c. 45, s. 10.
Crim. Law— 41

■#,-

.'J,.*

642

PROCEDURE.

Skaroh Warrant for Gold.

[Sec8. 571-574

571> On complaint in writing^ made to any justice of the county, district
or place, by any person interested in any mining claim, that mined gold or
gold-bearing quartz, or mined or unmanufactured silver or silver ore, is unlaw-
fully deposited in any place, or held by any person contrary to law, a general
search warrant may be issued by such justice, as in the case of stolen goods,
including any number of places or persons named in such complaint ; and if
upon such search, any such gold or gold-bearing quartz, or silver or silver ore,
is found to be unlawfully deposited or held, the justice shall make such order
for the restoration thereof to the lawful owner as he considers right.

2. The decision of the justice in such case is subject to appeal as in ordinary
cases coming within the provisions of Part LVIII (s. 839, post). R. S. C.
c. 174, s. 53.

A proviso as to security to be given on such appeal is
now to be found in s. 880 post.

Search for Timber.

57S. If any constable or other peace officer has reasonable cause to sus-
pect that any timber, mast, spar, saw-log or other description of lumber,
belonging to any lumberman or owner of lumber, and bearing the registered
trade mark of such lumberman or owner of lumber, is kept or detained in any
saw-mill, mill-yard, boom or raft, without the knowledge or consent of the
owner, such constable or other peace officer may enter into or upon the same,
and search or examine, for the purpose of ascertaining whether such timber,
mast, spar, saw-log or other description of lumber is detained therein without
such knowledge and consent. R. S. C. c. 174, s. 54.

Search for Liquors near Her Majesty's Vessels.

S73. Any officer in Her Majesty's service, any warrant or petty officer
of the navy, or any non-commissioned officer of marines, with or v.ithout
seamen or persons under his command, may search any boat or vessel which
hovers about or approaches, or which has hovered about or approached, any of
Her Majesty's ships or vessels mentioned in section one hundred and nineteen,
"Part VI. of this Act, and may seize any intoxicating liquor found on board
such boat or vessel ; and the liquor so found shall be forfeited to the Crown.
50-51 V. c. 46, s. 3.

Search in Houses of Ill-Fame.

S74> Whenever there is reason to believe that any woman or girl
mentioned Ii; section one hundred and eighty-five. Part XIII., has been
inveigled or enticed to a house of ill-fame or assignation, then uix)n complaint
thereof being mode under oath by the parent, husfxind, master or guardian uf
such woman or girl, or in the event of such woman or girl having no known
parent, hushand, master nor p^iardian in the pUice in which the offence i-
alleged to have been committed, by any other i^erson, to any justice of the
peace, or to a judge of any court authorized to issue warrants in cases of
alleged offences against the criminal law, such justice of the jjeace or judffeof
the court may issue a warrant to enter, by day or night, such house of ill-fame
or assignation, ami if necessary use force for t/ie imrpose of effecting sucli eiitii/

[Sees. 571-574

county, district
,t mined gold or
fev ore, is unlaw-
to law, a general
of stolen goods,
>mplaint ; and if,
Iver or silver ore,

make such ordir
3 right.

jeal as in ordinary
, post), R. S. C.

uch appeal is

jnable cause to sus-
ription of lumber,
ring the registered
; or detained in any
B or consent of the
,0 or upon the same,
lether such timber,
led therein without

Iesskls.

:ant or petty officer
!8. with or vathciut
jat or vessel which
approached, any of
adred and nineteen,
[uor found on board
eited to the Crown.

Iny woman or (firl
)rt XIII.. has been
hen uiKjn complaint
ister or guardian uf
Irl having no known
Ihich the offence is
h any justice of the
farrants in cases uf
Voijeaceor judgeof

Ich house of ill-fa""^'
I effecting siidientnj

Sec. 5753

SEARCH IN GAMING HOUSE.

643

whether by uteaking open doors or otherwise, and to search for such woman or
girl, and bring her, and the person or persons in whose keeping and possession
she is, before such justice of the peace, or judge of the court, who may, on
examination, order her to be delivered to her parent, husband, master or
guardian, or to be discharged, as law and justice require. R. S. C. c. 157, 8. 7.
48-49 V. 0. 69, s. 10 (Imp.).

The word " province " instead of \ place " was in the
repealed clause, in the eighth line.

Under the repealed clause, this provision applied only to
^vomen under 21 years of age. The words in italics are
new: see Lea v. Charrington, 16 Cox, 704,23 Q. B, D. 45,

Search in Gamino-Hoube.

575' If the chief constable or deputy chief constable of any city or
town, or other officer authorized to act in his absence, reiwrts in writing to
any of the commissioners of police or mayor of such city or town, or to the
pohce magistrate of any town, that there are good grounds for believing, and
that he does believe, that any house, room or place within the said city or town
is kept or used an a common gaming or betting-house as defined in Part XIV.,
sections one hundred and ninety-six, and one hundred and ninety-seven, or is
used for the 2^>i'rpose ofcarrijing on a lottery, or for the sale of lottery tickets, con-
trari/ to the ]}rovisions nf Part XV., section two hundred and five, whether
admission thereto is limited to those possessed of entrance keys or otherwise,
the said commissioners or commissioner, or mayor, or the said police magis-
trate, may, by order in writing, authorize the chief constable, deputy chief
constable, or other officer as aforesaid, to enter any such house, room or place,
with such constables as are deemed requisite by the chief constable, deputy
chief constable or other officer, — and, if necessary, to use force for the purpose
(if effecting such entry, whether by breaking open doors or otherwise, — and to
take into custody a1' iJersons who are found therein, and to seize, as the cate
may be (1) all tatlt ; and instruments of gaming, and all moneys and securities
for money, or (2) (dl instruments or devices for the carrying on of such lottery,
and all lottery tickets found in such house or premises. R. S. C. C. 158, s. 2.

2. The chief constable, deputy chief constable or other officer making such
tutry, in obedience to any suoli order, may, with the assistance of one or uiore
constables, search all parts of the house, rixmi or place which he has so
entered, where he suspects that tables or instruments of gaining or betting, or
any instnimeiits or devices for the carrying on of sucli k)ttery or any lottery
tickets, are concealed, and all persons whom he finds in such house or preniises,
and seize all tables and instruments of gaming, or any such instruments or
ikviccs nr lottery tickets as aforesaid, which he so finds. R. S. C. c. 15S, s. 3.

3. The police magistrate or other justice of the i)eace before vvhoiu any
(lerson is taken by virtue of an order or warrant under this section, may direct
any cards dice, balls, counters, tables or other instruments of gaming, used in
playing any game, and seized imder this Act in any place used as a comniuii
piniing-iuHise, or any such instruments or devices for the carrying on of a
lolkry, or any such lottery tickets «3 aforesaid, to be forthwith destroyed, and

M^P

? ' "

. ' -■ 71

'•%',-

644

PROCEDURE ON APPEARANCE.

[Sees. 576-579

any money or securities seized under this section shall be forfeited to the
Crown for the public uses of Canada. R. S. C. c. 168, s. 6.

4. The expression " chief constable " includes chief of police, city marshal
or other head of the police force of any city, town or place. R. S. C. c. 158,

8.1.

5. The expression "deputy chief constable" includes deputy chief of
police, deputy or assistant city marshal or other deputy heat! of the ix)lice
force of any city, town or place, aTid the expression "police magistrate" vncludcs
stipendiary magistrates.

Search for Vagrant.

5T6« Any stipendiary or police magistrate, mayor or warden, or any two
justices of the peace, upon information before them made, that any person
described in Part XV. (s. 207), as a loose, idle or discdwrly person, or vagrant,
is or is reasonably suspected to be harboured or concealed iu any disorderly
house, bawdy-house, house of ill-fame, tavern ur boarding-house, may, by
v'arrant, authorize any constable or other person to enter at any time sucli
house or tavern, and to apprehend and bring before them or any other justices
of the peace, every person found therein so suspected as aforesaid. R. S. C.
c. 157, 8. 8.

PART XLV.

Procedurk on Appearance of Accused.

5 YV» When any person accused of an indictable offence is before a juh-
tice, whether voluntarily or upon summons, or after being apprehended with
or without warrant, or while in custody for the same or any other offence, tlie
justice shall proceed to inquire into the matters charged against such iierson
in the manner hereinafter defined.

This applies to all indictable offences, not only to those

under this Act.

No Formal O;' action.

378. No irregVi'.uity or defect in the substance or form of the summons
or warrant, and no variance between the charge contained in the summons or
warrant and the charge contained in the information, or between either
and the evidence adduced on the part of the prosecution at the inquiry, shall
affect the validity of any proceeding at or subsequent to the hearing. K. S. C.
c. 174, 8. 58.

Justice May Postpone Hearing.

il79* If it appears to the justice that the person charged has been
deceived or misled by any such variance iu any summons or warrant, he may

Sec. 580]

ATTENDANCE OF WITNESSES.

645

adjourn the hearing of the case to some future day, and in the meantime may
remand such person, or admit him to bail as hereinafter mentioned. R. S. 0.
c. 174, 8. 59.

PROcnRiNo Attendanck of Witnesses.

980. If it appears to tho justice that any person being or residing with-
in the province is likely to give material evidence either for the prosecution or
for the accused on such inquiry he may issue a summons under his hand,
requiring such person to appear before him at a time and place mentioned
therein to give evidence respecting the charge, and to bring loith him any
documents in his possession or under his control reUUing thereto.

2. Such summons may be in the form K. in schedule one hereto, or to the
like effect. R. S. C. o. 174, s. 60.

The words " the province " are substituted for the word
•* Canada " : see s. 584. The other words in italics are exten-
sions of the enactment. The repealed clause required that
the witness be made to appear material by oath or affirma-
tion. That is now required only for a warrant : s. 582.

i!|^:''

¥..— {Section 580.)

SUMMONS TO A WITNESS.

Canada
Province of
Connty of

To E. F., of .(labourer) :

Whereas information has been laid before the undersigned
, a justice of the peace in and for the said county of
, that A. B. {dc, as in the summons or warrant against
the accused), and it has been made to appear to me upon (oath),
that you are likely to give material evidence for (the prosecution) ;
These are therefore to require you to be and to appear before me
on next, at o'clock in the (fore) noon, at ,

or before such other justice or justices of the peace of the same
county of , as shall then be there, to testify what you

know concerning i'le said charge so made against the said A. 6.
as aforesaid. Herein fail not.

Given under my hand and seal, this day of

in the year , at , in the county aforesaid.

J. S [seal.]

J. P., (Xauie of county.)

■ff

646

PROCEDURE.

[Sees. 581, 582

Service on Witness. (Amended).

SSI* Every suoh summons shall be served bt/ a constable or other peace
officer upon the person to whom it is directed either personally, or, if suoh
person cannot conveniently be met with, by leaving it for him at hia last or
most usual place of abode with some inmate thereof apparently not under six-
teen years of age. R. S. C. o. 174, s. 61.

Warrant Against a WiTNKsa. (Amended).

S32* If any one to whom such last-mentioned summons is directed does
not appear at the time and place appointed thereby, and no just excuse is
offered for such non-appearance, then (after proof upon oath that such sum-
mons has been served as aforesaid, or that the person to whom the sumvions in
directed is keeping out of the way to avoid service) the justice before whom sucli
person ought to have appeared, being satisfied by proof on oath that he is UMij
to give material evidence may issue a warrant under his hand t( bring such per-
son at a time and place to be therein mentioned before him or ai. other justice
m order to testify as aforesaid.

2. The warrant may be in the form L. in schedule one hereto, or to the
like effect. Such warrant may be executed anywhere within the territorial
jurisdiction of the justice by whom it is issued, or, if necessary, endorsed as
provided in section five hundred and sixty-five, and executed anywhere in the
province but out of such jurisdiction. R. S. C. c. 174, s. 61.

3. If a person summoned as a witness under the provisions of this part is
brought before a justice on a warrant issued in consequence of refusal to obey
the summons such person may be detained on such warrant befure the justice
who issued the summons, or before any other justico in and for the same terri-
torial division who shall then be there, or in the comu^on gaol, or any other
place of confinement, or in the custody of the person having him in charffe,
with a view to secure his presence as a witness on the day fixed for the trial;
or in the discretion of the justice such person may be released on recognizance,
with or without sureties, conditioned for his apjiearance to give evidence a>
therein mentioned, and to answer for his default in not attending upon thi
said summons as for contempt ; and the justice may, in a summary manner.
examine into and dispose of the charge of contempt against such person, uhn,
if found guilty thereof, ttiay he Jineti or iviprisoticd, or both, »uch _ti>it mM t',
exceed twenty dollars, and such imprisonment to he in the com7ni>,, tjaol, tnthnir
hard labour, and not to exceed the term of one viomth, and may ulsn lie urdereti
to pay the costs incident to the service and execation of the said summons an(i
warrant and of his detention in custody. 51 V. c. 45, s. 1.

(The conviction under this section may be in the form PP in schedule one
hereto.) See under s. 7S1.

[Sees. 581, 682

le or other peace
ally, or, if such
im at his last or
y not under six-

a is directed does
10 just excuse is
h that such sum-
ri the summons in
yeiore whom sucli
h that he is likclii
;o bring such per-
any other justice

5 hereto, or to the
lin the territorial
Bsary, endorsed as
d anywhere in the

ons of this part is

of refusal to obey

before the justice

for the same terri-

aol, or any other

g him in charffe,

xed ft)r the trial;

on recognizance.

give evidence a>

tending upim th<

lUmmary manner,

|8uch i)er8on, wbn.

, sHch Jim niif ' '

vii'i' <jnol, viiiimr

y also be ordered

ai*5 summons ami

lp in schedule one

.Sec. 583]

WARRANT FOR WITNESS.

647

L. {Section 582.)

WARRANT WHEN A WITNESS HAS NOT OBEYED THE

SUMMONS.

Canada, ' \

Province of , >

County of . )

To all or any of the constables and other peace officers in the
said county of

Whereas information haring been laid before , a

justice of the pt.'tace, in and for the said county of , that

A. B. {iic., as in the summons) ; and it having been made to appear
to {me) upon oath that E. F. of , {labourer), was likely

to give material evidence for {the prosecution), {I) duly issued {my)
summons to the said E. F., requiring him to be and appear
before {me) on , at , or before such other justice

or justices of the peace for the same county, as should then be
there to testify what he knows respecting the said charge so
made against the said A. B., as aforesaid ; and whereas proof
has this day been made upon oath before {me) of such summons
having been duly served upon the said E. F. ; and whereas the
said E. F. has neglected to appear at the time and place appointed
by the said summons, and no just excuse has been offered for
such neglect : These are therefore to command you to bring
and have the said E. F. before {)iie) on at

o'clock in the (fore) noon, at , or before such other

justice or justices for the same county, as shall then be there, to
testify what he knows concerning the said charge so made against
the said A. B. as aforesaid.

Given under {my) hand and seal, this day of ,

in tiie year , at , in the county aforesaid.

J. S. [seal. J

J. P., {Name of county.)

*;;:',f^'

i^'"** :'. : ■

Warrant for Witness in First Instance.

5H3< If the justice is satisfied by evidence ujwn oath that any person
u-ithin the province, likely to give material evidence either for the prosecution
or for tlie accused, will not attend to give evidence without lieing compelled so
to do, then instead of issuing a summons, he may issue a warrant in the first
instance. Such warrant may be in the form M. in schedule one hereto, or to

-i.

'■ m v;
ill

648

PROCEDURK

[Sec. 584

the like effect, and may be executed anywhere within the juriudiotion of such
juBtice, or, if necessary, endorsed as provided in section five hundred and
sixty-five, and executed anywhere in the province but out oi sr.oli jurisdiction.
R. S. C. o. 174, a. 62.

M.— (Section 583.)

WARRANT FOR A WITNESS IN THE FIRST INSTANCE.

Canada,
Province of
County of

To all or any of the constables and other peace officers in the
said countv of

Whereas information has been laid before the undersigned
, a justice of the peace, in and for the said county of
, that (dt'c, as in the sttmmom) ; and it having been
made to appear to {mr) upon oath, that E. F. of
{labourer); is likely to give material evidence for the prosecution,
and that it is lu'obable that the said E. F. will not attend to give
evidence unless compelled to do so : These are therefore to
command you to br^ng and have the said E. F. before (we) on
, ut o'clock in the (fore) noon, at , or

l>efore such othei justice or justices of the peace for the same
county aa .^haU then be there, to testify what he knows concern-
ing the said charge so made against the said A. B. as aforesaid.
Given under my hand and seal, this day of ,

in tlie year , at , in the county aforesaid.

J. S., [SE.U.]

J. P., {Xante ofcmintii.)

Wn?; 'Es OvT op thb Province. (New).

584* If there is reason to ht?lieve that any person residing anywhere in
Canada out of the province and not being within the province, is likely to give
material evidence either for the prosecution or for the accused, any jiuige of a
Sui)erior Court or a County Court, on application therefor by the infurniant
or complainant, or the Attorney-General, or by the accused person or his
solicitor or some ijerson authorized by the accused, may cause a writ of subiuviia
to be issued under the seal of the court of which he is a judge, requiring such
person to appear before the justice before whom the inquiry is being held or is
intended to be held at a time and place mentioned therein to give evidencfr
respecting the charge and to bring with him any documents in his possession
or under his control relating thereto.

[Sec. 584

diction of such
■fl hundred and
u»h jurisdiction.

STANCE.

officers in the

le undersigned
said county of
t having been
^ of

le prosecution,
b attend to give
re therefore to
before (»'<■) on
at . or

for the same
nows concern-

. as aforesaicl.

ly of
iforesaid.

\te ofnnintn.)

Iding anywhere in

|e, is likely to give

j'd, any judge of a

(by the intormant

led person or bis

|a writ of subiuvna

^e, requiring such

|s being held or is

to give evideiictv

1 in his posfsession

Sec. 584]

WITNESSES OUT OF THE PROVINCE.

649'

2. Such subpoena shall be served i)ersonally upon the person to whom it is
directed and an affidavit of such service by a person effecting the same
j.nrporting to be made before a justice of the peace, shall be sufficient pro f
thereof.

3. If the jierson served with a subpoena as provided by this section, does -
not .ippear at the time and place sjiecified therein, and no just excuse is offered
for his non-apiiearance, the justice holding the inquiry, after proof upon oath
that the subixena has been served, may issue a warrant und^'- his hand directed
to any constable or i)eace officer of the district, covmty ' lace where such
i)erson is, or to all constables or peace officers in such di t. mmty or place,
directing them or any of them to arrest such person am » >>(? hii/i before the
said justice or any other justice at a time and place meirint -i such warrant
in order to testify as aforesaid.

4. The warrant may be in the form N in schcduh ne hereto or i . . the like
effect. If necessary, it may be endorsed in the manner provided by section
five hundred and si-xty-five, and executed in a district, county or place other
than the one therein mentioned.

N.— (Sfcfion 584.)

WARRANT WHEN A WITNESS HAS NOT OBEYED THE

SUBPCENA.

Canada,
Province of
County of
To all or any of the constables and other peace officers in the

said county of

Whereas information having been laid before , a

justice of the peace, in and for the said county, that A. B. {ett\
as in the summona) ; and there being reason to believe that E. F.,
of , in the province of (labojirer),

was likely to give material evidence for (the prosecution), a writ
of subpoena was issued by order of , judge of

{name of court) to the said E. F., requiring him to be and appear
before {nw) on at or before

such other justice or justices of the peace for the ?ame county
as should then be there, to testify what he knows respecting
the said charge so made against the said A. B., as aforesaid ;
and whereas proof has this day been made upon oath before {me)
of such writ of subpoena having been duly served upon the said
E, F., and whereas the said E. F. has neglected to appear at
the time and place appointed by the said writ of subpoena, and
no just excuse has been offered for such neglect : These are-

m*>

^f^^-

IMAGE EVALUATrON
TEST TARGET (MT-3)

^ .<.^.

1.0

I.I

bilM lis

IL25 i 1.4

1.6

Photographic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 873-4503

>7^^

ri^

650

PROCEDURE.

[Sec. 585

■if:

therefore to command you to bring and have the said E. F.
before {me) on at o'clock in the (fore)

noon), at , or before such other justice or justices

for the same county as shall then be there, to testify what he
knows concerning the said charge so made against the said
A. B. as aforesaid.

Given under my hand and seal, this day of ,

in the year , at ' ' in the county aforesaid.

J. S., [seal]

J. P., (Name of county).

Witness Refusing to be Examined.

88Q>* Whenever any person appearing, either in obedience to a summons
or subpoena, or by virtue of a warrant, or being present and being verbally
required by the justice to give evidence, refuses to be sworn, or having been
sworn, refuses to answer such questiont as are put to him, or refuses or negkcH
to produce any dooumenls which he it required to produce, or refuses to ai{in his
depositions without in any such case offering any just exuuse for such refusal,
such justice may adjourn the proceedings for any period not exceeding eight
clear days, and may in the meantime by warrant in form O in schedule one
hereto, or to the like effect, commit the person so refusing to gaol, unless he
sooner consents to do what is required of him. If such pirson upon heiwj
irought up upon such adjourned hearing, again refuses to do what is so required
•of him, the justice, if he sees fit, may again adjourn the proceedings, and commit
him for the like period, and so again from time to time until such person consents
to do what is required of him.

2. Nothing in this section shall prevent such justice from sending any
«uch case for trial, or otherwise disposing of the same in the meantime,
according to any other sufficient evidence taken by him. R. S. C. c. 174,
s. 03.

0.— {Section 585.)

WARRANT OF COMMITMENT OF A WITNESS FOR REFUSING
TO BE SWORN OR TO GIVE EVIDENCE.

Canada,
Province of i

Oounty of

To all or any of the constables and other peace officers in the

county of , and to the keeper of the common

gaol at , in the said county of

Whereas A. B. was lately charged before , a justice

of the peace in and for the said county of , for that

Sec. 586]

DISCRETIONARY POWERS.

651

(etc., as in the aummoru) ; and it having been made to appear to
(me) upon oath that E. F. of , was likely to g^ve

material evidence for the prosecution (/) duly issued (my)
summons to the said E. F., requiring him to be and appear
before me on , at , or before such other justice

or justices of the peace for the same county as should then
be there, to testify what he knows concerning the said charge
j90 made against the said A. B. as aforesaid ; and the said E. F.
now appearing before (me) {or being brought before (me) by virtue
of a warrant in that behalf), to testify as aforesaid, and being
required to make oath or affirmation as a witness in that behalf,
now refuses so to do {or being duly sworn as a witness now
refuses to answer certain questions concerning the premises
ivhich are now here put to him, and more particularly the
iollowing ) without o£fering any just excuse for such

refusal : These are therefore to command you, the said con-
stables or peace officers, or any one of you, to take the said E. F.
and him safely to convey to the common gaol at , in

the county aforesaid, and there to deliver him to the keeper
thereof, together with this precept : And (/) do hereby command
you, the said keeper of the said common gaol to receive the said
E. F. into your custody in the said common gaol, and him there
safely keep for the space of days, for his said contempt,

unless in the meantime he consents to be examined, and to
answer concerning the premises ; and for your so doinc^ ihis
^hall be your sufficient warrant.

Given under {my) hand and seal, this day of

in the year, , at , in the county aforesaid.

. J. S., [seal.]

J. P., {Name of county.)

DisoRBTioNABY POWERS OF THE JcBTiOB. {Amended).

586* A justice holding the preliminary inquiry may in his discretion —

(a) permit or refuse permission to the prosecutor, his counsel or attorney

to address him in support of the change, either by way of opening or summing

up the case, or by way of reply upon any evidence which may be produced by

the person accused ; •

(6) receive further evidence on the part of the prosecutor after hearing
any evidence given on behalf of the accused ;

652

PROCEDURE.

[Sec. 686

(o) adjourn the hearing of the matter from time to time, and change the
place of hearing, if from the absence of witnesses, the inability of a witness
who is ill to attend at the place where the justice usually sits, or from any
other reasonable cause, it appears desirable to do so, and may remand the
accused if required by warrant in the form P in schedule one hereto : Pro-
vided that no such remand shall be for more than eight clear days, the day
following that on which the remand is made being counted as the first day ;
and further provided, that if the remand is for a time not exceeding three clear
days, the justice may verbally order the constable or other person in whose
custody the accused then is or any other constable or person named by
the justice in that behalf, to keep the accused person in his custody and to
bring him before the same or such other justice as shall be there acting at the
time appointed for continuing the examination ; R. S. C. c. 174, ss. 64, 65.

(d) order that no person other than the prosecutor and accused, their
counsel and Bolieitor shall have access to or remain in the room or building in
which the inquiry is held (which shall not be an open court), if it appears to
him that the ends of justice will be best answered by so doing : R. S. G. c. 174,
8.67.

(e) regulate the course of the inquiry in any way which may appear to
him desirable, and which is not inconsistent with the provisions of this Act,

■p.— (Section 686.)

WARRANT REMANDING A PRISONER.

Canada, 'j

Province oi , \-

County of ,J

To all or any of the constables and other peace officers in the
said county of , and to the keeper of the common

gaol at , in the said county.

Whereas A. B. was this day charged before the undersigned
, a justice of the peace in and for the said county of
, for that {dc, as in the warrant to apprehend), and it
appears to [urn) to be : ^sary to remand the said A. B. : These
are therefore to com., d you, the said constables and peace
officers, or any of you, in Her Majesty's name, forthwith to con-
vey the said A. B. to the common gaol at , in the said
county, and there to deliver him to the keeper thereof, together
with this precept : And I hereby command you the said keeper
to receive the said A. B. into your custody in the said common
gaol, and there.safely keep him until the day of
{instant), when I hereby command you to have him at , at
o'clock in the (fore) noon of the same day before (w)

ne, and change the
ability of a witness
lly Bits, or from any
id may remand the
le one hereto : Pro-
; clear days, the day
ed aa the first day,
exceeding three clear
iher person in whose
OT person named by
.n his cvi-tody and to
be there acting at the
c. 174, ss. 64, 65.
)r and accused, their
e room or building in
court), if it appears to
ioing : R. S. 0. c. 174,

Sec. 587]

BAIL ON REMAND.

653

or before such other jnstioe or justices of the peace for the said
county as shall then he there, to answer further to the said
charge, and to he further dealt with according to law, unless you
shall be otherwise ordered in the meantime.

Given under my hand and seal, this day of ,

in the year

, in the county aforesaid.
J. S., [seal.]

J. P., {Name of county.)

Bail on Remand.

587. If the accused is remanded under the next preceding section the
iuBtice may discharge him, upon his entering into a recognizance in the form
Q in schedule one hereto, with or without sureties in the discretion of the
justice, conditioned for his appearance at the time and place appointed for the
continuance of the examination. R. S. C. c. 174, s. 67.

■i

Q.— {Section 587.)

RECOGNIZANCE OF BAIL INSTEAD OF REMAND ON AN
ADJOURNMENT OF EXAMINATION.

Canada, ')

Province of
County of

Be it remembered that on the day of in the

year , A. B., of , {labourer), L. M., of ,

((jrocer), and N. 0., of , {butcher), personally came before

me , a justice of the peace for the said county, and

severally acknowledged themselves to owe to our Sovereign Lady
the Queen, her heirs and successors, the several sums following,
that is to say : the said A. B. the sum of , and t'ne said

L. M., and N. 0., the sum of , each, of good and lawful

current money of Canada, to be made and levied of their several
goods and chattels, lands and tenements respectively, to the use
of our said Lady the Queen, her heirs and successors, if he,
the said A. B., fails in the condition endorsed {or hereunder
written).

Taken and acknowledged the day and year first above men-
tioned, at before me.

J. S.,
• J. P., {Natne of county).

1?,r>

654

PROCEDURE.

[Sees. 588, 58»

CONDITION.

The condition of the within {or above) written recognizance
is such that whereas the within boimden A. B. was this day {or
on last past) charged before me for that {dc, a» in the

umrant) ; and whereas the examination of the witnesses for the
prosecation in this behalf is adjourned until the day of

(instant) : If, therefore, the said A. B. appears before
me on the said day of (instant), at

o'clock in the (fore) noon, or before such other justice or justices
of the peace for the said county as shall then be there, to
answer (further) to the said charge, and to be further dealt with
according to law, the said recognizance to be void, otherwise to
stand in full force and virtue.

, Hearing Mat Procbbd Before Remand is Over.

988. The justice may order the accused person to be brought before
him, or before any other justice for the same territorial division, at any time
before the expiration of the time for which such person has been remanded, and
the gaoler or officer in whose custody he then is shall duly obey such order,
R. S. 0. c. 174, 8. 66.

Breach of Recognizance.

580. If the accused person does not afterwards appear at the time and
place mentioned in the recognizance the said justice, or any other justice who
is then and there present, having certified upon the back of the recognizance
the non-appearance of such accused person, in the form R in schedule one
hereto, may transmit the recognizance to the clerk of the court where tlie
accused person is to be tried, or other proper officer appointed by law, to be
proceeded upon in like manner as other recognizances ; and such certificate
shall be prima facie evidence of the non-appearance of the accused person.
R. S. C. c. 174, s. 68.

B..— (Section 689.)

CERTIFICATE OP NON-APPEARANCE TO BE ENDORSED 0.\

THE RECOGNIZANCE.

I hereby certify that the said A. B. has not appeared at the
time and place in the above condition mentioned, but therein
has made a default, by reason whereof the within written
recognizance is forfeited.

J. S.,

J. P., (Name of countij,)

[SeoB. 588, 58»

Sec. 690]

EVIDENCE FOR THE PROSECUTION.

655

ten recognizance
was this day (or
lat {Sc, as in the
witnesses for the
le day of

B. appears before
mt), at

justice or justices
ihen be there, to
further dealt witb
void, otherwise to

IS Over.

to be brought before
1 division, at any time
las been remanded, and

duly obey such order.

appeal' at the time and
any other justice who
sk of the recognizance

inn R in schedule one

if the court where the

ipointed by law, to be

; and such certificate

if the accused person.

Ie endorsed on

Lot appeared at the

fcioned, but therein

le within writtec

Lvrtme of county,)

Evidence fob the Probecutiok. {Amended).
800. When the accused is before a justice holding an inquiry, such
justice shall take the evidence of the witnesses called on the part of the
prosecution.

2. The evidence of the said witnesses shall be given upon oath and in the
presence of the accused; and the accused, his counsel or solicitor, shall be
entitled to cross-examine them.

3. The evidence of each witness shall be taken down in writing in the
form of a deposition, which may be in the form S in schedule one hereto, or to
the like eflfect.

4. Such deposition shall, at some time before the accused is called on for
his defence, be read over to and signed by the witness and the justice, the
accused, the vntness and justice being all present together at the time pf such
reading and signing.

5. The signature of the justice may either he at the end of the depositimi of
each mtness, o)' at the end of several or of aU the depositions in such a form as to
show that the signature is meant to autJienticate each separate deposition,

6. Every justice Iwlding a preliminary inquiry is hereby required to cause
the depositions to be written in a legible hand and on one side only of each sheet of
paper on which they are written. R. S. C. c. 174, s. 69.

7. Provided tJutt the evidence upon sttch inquiry or any part of the same may
be taken in shorthand by a stenographer who may be appointed by the justice, and
tvho before acting shall make oath that he shall truly and faithfully report the
evidence ; and where evidence is so taken, it shall not be necessary that such evi-
dence be read over to or signed by the witness, but it shall be sufficient if the tran-
script be signed by the justice and be accompanied by an affidavit of the stenographer
that tl is a true report of the evidence.

^.—{Section 590.)

DEPOSITION OF A WITNESS.
Canada,
Province of
County of

The deposition of X. Y. of , taken before the under-

signed, a justice of the peace for the said county of »

this day of , in the year , at

[or after notice to C. D. who stands committed for in)

the presence and hearing of G. D. who stands charged that {state
the charge). The said deponent saith on his {oath or affirmation^
as follows : {Insert deposition as nearly as possible in words of
witness.)

{If depositions of several witnesses are taken at the same time, thetj
may be taken and signed as follotcs :)

*■

lis

566

PROCEDURE.

[Sec. 691

The depositions of X. of , Y. of Z. of

~&c., taken in the presence and hearing of C. D., who stands
charged that

The deponent X. {on his oath or affirmation) says as follows :

The deponent Y. {on his oath or affirmation) says as follows ;

The deponent Z. {on his oath, dc, dc.)
'{The signature of the justice may be appended as follows:)

The depositions of X., Y., Z., &c., written on the several
sheets of paper, to the last of which my signature is annexed,
were taken in the presence and hearing of G. D. and signed by
the said X., Y., Z., respectively in his presence. In witness
whereof I have in the presence of the said C. D. signed my

name.

J» S.|

( '

J. P., {Name of cotinty.)

Etioenor to bb Riad to the AooncED. (Amended),

591> After the examination of the witnesses produced on the part of the
prosecution has been completed, and after the depoaitiona have been tigwd at
aforesaid, the justice, unless he discharges the accused person, shall ask hm
whether he wishes the deposituytis to he read again, and unless the accused dk-
penses therewith shall read or cause them to be read again. When the depositions
have been again read, or the reading dispensed with, the accused shall be
addressed by the justice in thttse words, or to the like effect :

'* Having heard the evidence, do you wish to say anything in answer to
the charge ? You are not bound to say anything, but whatever you do say
will be taken down in writing and may be given in evidence against you at
your trial. You must clearly understand that you have nothing to hope from
any promise of favour and nothing to fear from any threat which may have
been held out to you to induce you to make any admission or confession of
gfuilt, but whatever you now say may be given in evidence against you upon
your trial notwithstanding such promise or threat."

2. Whatever the accused then says in answer thereto shall be taken down
in writing in the form T in schedule one hereto, or to the like effect, and shall
be signed by the justice and kept with the depositions of the witnesses and
-dealt with as hereinafter mentioned. R. S. C. c. 174, ss. 70 & 71.

See s. 689, post.

est

^■'^m ADMISSIOIW ST ACCUSED.

T.-^{8eotion 691.)

^STATEMEOTOPTHEAOCWM,.

Province of
County of

on , at /^- . , ' ™' *^' *I»e said A tt

«.d the said eh„g, be4''Z'';^r'^/^**^''«'^)I
witae^e, for the iLeeutiLTn '/r^ "^^ »- '»'' «"»
mmmed in hie presence, the said A B ; " '*'''« ™T«aUy
as follows : " Having heiri th, • j " "'"' addressed bj me
m<Mng in answer ' Zt,^" 7^^' "• y>- ^ J^
«.ything unless you desire todTso . S^iT ""' '"'"'^ 'o "^
be taken down in writing, and ma, ie^tel ? 77°" ™^ "^
yoa at your trial. You must oleariv l^J! I f"*™'" "Sainst.
"othing to hope from any promis '„/f ""'* ""' y»» >»»<►
ftom «,y threat which m" Ce C C";' "f ""'"''S to fear
-e any admission or conSo^,';tat°l^ "^T ^»" '»
now say may be given in evidence «„•• » ' whatever yon

notwithstanding such pro^^^Ttl^™' T "^» '»««»>.
A. B. says as follows : (Her. «„ J^T," ^'""PO" the said

«;t7/).

Taken before me, at
mentioned.

A. B.
' *^® ^*y ^^ year first above.

'^^ S., fSMAL.]

'^'^•*{^am Of county.))

«»8. After .. ^''''''''' '°" ™" ^"'«^*«- (J^«^)
CWM. Law-42 *'''*^ "^ ^^ ^«heB to caU any witnesBel

il--

r,l-''/

658

PROCEDURE.

[Sees. 694, 595

2. Every witness called by the accused who testifies to any fact relevant
to the case shall be heard, and his deposition shall be taken in the sanie manner
as the depositions of the witnesses for the prosecution.

DiSOHAROR or AOOUBBD.

(104. When all the witnesses on the part of the prosecution and the
aceiued have been heard the justice shall, if upon the whole of the evidence he
is of opinion that no sufficient case is made out to put the accused upon his
trial, discharge him ; and in such case any recognizances taken in respect of
the charge shall become void, unless some person is bound over to prosecute
under the provisions next hereinafter contained. R. S. C. c. 174, s. 73.

AoccsBR HAY HAVE HiMSELF BouND OvBR. (Amended).

905* If the justice discharges the accused, and the person preferring the
charge desires to prefer an indictment respecting the said charge, he may
require the justice to bind him over to prefer and prosecute suoh an indict-
ment and thereupon the justice shall take his recognizance to prefer and
prosecute an indictment against the accused before the court by which such
accused' would be tried if such justice had committed him, and the justice
shall deal with the recognizance, information and depositions in the same way
as if he had committed the accused for trial.

2. Such reoogpiizance may be in the form U in schedule one hereto, or to
the like effect.

S. If the prosecutor so bound over at his own request does not prefer and
prosecute such an indictment, or if the grand jury do not find a true bill, or iftht
accused is not convicted upon the indictment so pr^erred, the prosecutor shall, if
the court so direct, pay to the accused person his costs, including the costs of his
appearance on the preliminary inquiry.

4. The court before which the indictment is to be tried or a judge thereof may
4h its or his discretion order that the prosecutor shall not be permitted to prefer
•any such indictment until he hat given security for such costs to the satisfactm
<if8uch court or judge. R. S. C. c. 174, s. 80.

Bub-section 1 is an extension to all offences whatever of
an enactment that applied only to the offences falling under
the vexatious indictments clause : B. S. G. c. 174, s. 140.

\}.— {Section 695.)

FORM OF RECOGNIZANCE WHERE THE PROSECUTOR RE
QUIRES THE JUSTICE TO BIND HIM OVER TO PROSECUTE
AFTER THE CHARGE IS DISMISSED.

Canada,

» r

Province of
County of

Whereas C. D. was charged before me upon the information
of E. F. that C. D. {stxtte the charge), and upon the hearing of the

[Seo8. 694, 595

ny fact relevant
the Ba'ue manner

)8ecution and the
){ the evidence ho
aooueed upon his
»ken in respect of
i over to prosecute
1. 174, 8. 73.

fiitnded).
tBon preferring the
id charge, he may
iute suoh an indict-
anoe to prefer and
)urt by vhich such
im, and the justice
DHB in the same way

lule one hereto, or to

t does not prefer and
idatruef>i^horiftht
he prosecutor shall, if
ludine tf^« <="*'* "-^ ''**

, a judge thereof my
be permitted to prefer
osta to the latisfadm

nces whatever of
ces falling under

c. 174, 8. UO.

lOSECUTOR RE-

[to prosecute

iSED.

an the information
the hearing of the

Sec. 696]

COMMITTAL FOR TRIAL.

659

said charge I discharged the said C. D., and the said E. F.
desires to prefer an indictment against the said 0. D. respecting
the said charge, and has required me to bind him over to prefer
suoh an indictment at {here descnbe the next practicable sitting of
the court by which tlie person discharged would be tried if committed).
The undersigned E. F. hereby binds himself to perform the
following obligation, that is to say, that he will prefer and prose-
cute an indictment respecting the said charge against the said
G. D. at {as above). And the said E. F. acknowledges himself

bound to forfeit to the Crown the sum of $
fails to perform the said obligation.

Taken before me.
J. S.,

J. P. {Name of countji.)

, incase he

E. F.

Committal for Trial.

590* If a justice holding a preliminary inquiry thinks that the evidence
is sufficient to put the accused on his trial, he shall commit him for trial by a
warrant of commitment, which may be in the form V in schedule one hereto,
or to the like effect. R. S. C. o. 174, a. 73.

\.— {Section 596.)

WARRANT OF COMMITMENT.

Canada, |

Province of , >

County of . )

To the constable of , and to the keeper of the{common gaol)

at , in the said county of

Whereas A. B. was this day charged before me, J. S., one of
Her Majesty's justices of the peace in and for the said county of
, on the oath of C. D. of {farmer), and others

for that {(ic, stating shortly the offence) : These are therefore to
command you the said constable to take the said A. B„ and him
safely to convey to the {common gaol) at aforesaid, and

there to deliver him to the keeper thereof, together with this
precept : And I do hereby command you the said keeper of the
said {common gaol) to receive the said A. B. into your custody in

660

PROCEDURE.

[Seoiu 007, 098

»wfl

the said {common ffaol), and there safely keep him until he shall
be thence delivered by due course of law.

Given under my hand and seal, this day of ^

in the year .at .in the county aforesaid.

J. S., fBBAL.]

J. P., {Name of county.)

COFT OV DIFO8ITION8.

59T^ Every one who has been committed for trial, whether he is bailed
or not, may be entitled at any time, before the trial to have copies of the
depositions, and of his own statement, if any, from the officer who has custody
thereof, on payment of a reasonable sum not exceeding five cents for each folio
of one hundred words. B. S. C. c. 174, s. 74.

Recookizanoes to Prosecute on Give Evidence. {Amended).

598>' When any one is committed for trial the justice holding the
preliminary inquiry may bind over to prosecute some person willing to be so
bound, and bind over every witness whose deposition has been taken, and
whose evidence in his opinion is material, to give evidence at the court before
which the accused is to be indicted.

2. Every recognizance so entered into shall specify the name and surname
of the person entering into it, his occupation or profession if any, the place of
his residence and the name and Jiumber if any of any itreet in lokieh it may be,
and whether he is owner or tenant thereof or a lodger therein.

3. Such recognizance may be either at the foot of the deposition or
separate therefrom, and may be in the form W, X or Y in schedule one hereto,
or to the like effect, and shall be acknowledged by the person entering into the
same, and be subscribed by the justice or one of the justices before whom it ia
acknowledged,

4. Every such recognizance shall bind the person entering into it to
prosecute or give evidence (both or either as the case may be), before the court
by which the accused shall be tried.

5. All such recognizances and all other recognizances taken under this Act
shall be liable to be estreated in the same manner as any forfeited recognizance
to appear is by law liable to be estreated by the court before which the principal
party thereto was bound to appear. R. S. G. c. 174, ss. 76 & 76.

6. Whenever any person is bound by recognizance to give evidence before
a justice of the peace, or any criminal court, in respect of any offence urder
this Act, any justice of the peace, if he sees fit, upon information being made
in writing and on oath, that such person is about to abscond, or has absconded,
may issue his warrant for the arrest of such person ; and if such person is
arrested any justice of the peace, upon being satisfied that the ends of justice
would otherwise be defeated, may commit such person to prison imtil the time
at which he is bound by such recognizance to gfive evidence, unless in the
meantime he produces sufficient sureties ; but any person so arrested fhall be

[Sew. W7, 698

niil be shall

ay of »

tretwid.

! 0/ county.)

ether he is buled
»ve copies of the
■ who hfts custody
ants for each folio

(Amended).

iBtice holding the
on willing to be so
I been taken, and
at the court before

name and surname
{ any, the place of
in which it may be,

the deposition or

ihedule one hereto,

n entering into the

before whom it is

ntering into it to
}), before the court

ken under this Act

fceited recognizance

vhich the principal

;76.

Ive evidence before
1 any offence under
Lation being made
for has absconded,
H if such person is
[the ends of justice
liBon until the time
^nce, unless in the
, arrested *aJl ^

Sec. 098]

COPY OP DEPOSITIONS.

661

entitled on demand to receive a copy of the information upon which the
warrant for his arrest was issued. 48-49 V. 0. 7, s. 9.

A notice to the person bound is not now required. The
exception as to married women and infants has been left
out : 8-8' 6 applied heretofore to the Explosive SnbstanceB
Act.

Vf.— {Section 698.)

RECOGNIZANCE TO PROSECUTE.

Canada, ^

Province of , -

County of , j

Be it reiAembered that on the day of ,

in the year , C. D. of , in

the of , in the said

county of > {/amier), personally came before

me • a justice of the peace in and for the said

county of . and acknowledged himself to owe to

our Sovereign Lady the Queen, her heirs and successors, the
sum of I of good and lawful current money of

Canada, to be made and levied of his goods and chattels, lands
and tenements, to the use of our said Sovereign Lady the Queen,
her heirs and successors, if the said C. D. fails in the condition
endorsed {or hereunder written).

Taken and acknowledged the day and year first above men-
tioned at . , before me.

J. S.,

J. P., {Name of county).

CONDITION TO PROSECUTE.
The condition of the within {or above) written recognizance
is such that whereas one A. B. was this day charged before me,
J. S., a justice of the peace within mentioned, for that {etc., as
in the caption of the depositions) ; if, therefore, he the said C. D.
appears at the court by which the said A. B. is or shall be
tried* and there duly prosecutes such charge then the said
recognizance to be void, otherwise to stand in full force and
virtue.

662

PROCEDURE.

[Sec. 59»

X.— {Section 598.)
RECOGNIZANCE TO PROSECUTE AND GIVE EVIDENCE.
{Same as the last form, to the asterisk,* and then thus) : — And
there duly prosecutes such charge against the said A. 6. for the
offence aforesaid, and gives evidence thereon, as well to the
jurors who shall then inquire into the said offence, as also to
them who shall pass upon the trial of the said A. B., then the
said recognizance to be void, or else to stand in full force and
virtue.

Y.— {Section 598.)

RECOGNIZANCE TO GIVE EVIDENCE.
{Same as the Utst form but one, to the asterisk,* and then this) :
— And there gives such evidence as he knows upon the charge
to be then and there preferred against the said A. B. for the
offence aforesaid, then the said recognizance to be void, other-
wise to remain in full force and virtue.

Witnesses Rkfdsino to bk Bound Over.

590. Any witness who refuses to enter into or acknowledge any such
recognizance as aforesaid may be committed by the justice holding the inquiry
by a warrant in the form Z in schedule one hereto, or to the like effect, to the
prison for the place where the trial is to be had, there to be kopt until after
the trial, or until the witness enters into such a recognizance as aforesaid
before a justice of the peace having jurisdiction in the place where the prison
is situated : Provided th&t if the accused is afterwards discharged any justice
having such jurisdiction may order any such witness to be discharged by an
order which may be in the form AA in the said schedule, or to the like effect.
R. S. C. c. 174, Bs. 78 & 79.

Z.— {Section 599.)

COMMITMENT OF A WITNESS FOR REFUSING TO ENTER
INTO THE RECOGNIZANCE.

Canada,

Province of '

County of

To all or any of the peace officers in the said county of ,

and to the keeper of the common gaol of the said county
of , at , in the said county of

Sec. 599]

REFUSING TO BE BOUND OVER.

663

5 TO ENTER

Whereas A. B. was lately charged before the undersigned
{name of the justice of the peace), a justice of the peace in and for
the said county of , for that (tic., as in the summons to

the witness), and it having been made to appear to (me) upon oath
that E. F., of , was likely to give material evidence for

the prosecution, (i) duly issued (/n»/) summons to the said E. F.»
requiring him to be and appear before (me) on , at

or before such other justice or justices of the peace as should
then be there, to testify what he knows concerning the said
charge so made against the said A. B. as aforesaid; and the
said E. F. now appearing before {me) (or being brought before
{me) by virtue of a warrant in that behalf to testify as aforesaid),
has been now examined before {me) touching the premises, bub
being by {me) required to enter into a recognizance conditioned
to give evidence against the said A. B., now refuses so to do :
These are therefore to command you the said peace officers, or
any one of you, to take the said E. F. and him safely convey to
the common gaol at , in the county aforesaid, and there

deliver him to the said keeper thereof, together with this
precept : And I do hereby command you, the said keeper of the
said common gaol, to receive the said E. F. into your custody in
the said common gaol, there to imprison and safely keep him
until after the trial of the said A. B. for the offence aforesaid,
unless in the meantime the said E. F. duly enters into such
recognizance as aforesaid, in the sum of before some

one justice of the peace Tor the said county, conditioned in the
usual form to appear at the court by which the said A. B. is or
shall bo tried, and there to give evidence upon the charge which
shall then and there be preferred against the said A. B. for the
offence aforesaid.

Given under ray hand and seal this day of , in

the year , at , in the county aforesaid.

J. S.,

J. P., {Name of county.)

%.-^ S>> ;

*'^

664

PROCEDURE.

[Sec. 600

, in the county
day of

AX,~-'{Section 599.)

SUBSEQUENT ORDER TO DISCHARGE THE WITNESS.
Canada,
Province of
County of

To the keeper of the common gaol at
of , aforesaid.

Whereas by {my) order dated the
(instant) reciting that A. B. was lately ' before then charged
before (me) for a certain offence therein mentioned, and that
E. F. having appeared before {me) and being examined as a
witness for the prosecution on that behalf, refused to enter into
recognizance to give evidence against the said A. B., and I
therefore thereby committed the said E. F. to your custody, and
required you safely to keep him until after the trial of the said
A. B. for the offence aforesaid, unless in the meantime he should
enter into such recognizance as aforesaid; and whereas for want
of sufficient evidence against the said A. B., the said A. B. has
not been committed or holden to bail for the said offence, but on
the contrary thereof has been since discharged, and it is there-
fore not necessary that the said E. F. should be detained longer
in your custody : These are therefore to order and direct you the
said keeper to discharge the said E. F. out of your custody, as
to the said commitment, and suffer him to go at large.

Given under my hand and seal, this day of ,

in the year , at , in the county aforesaid.

J. S., [seal.]

J. P., {Name of county.)

Transmission of Documknts. (Amended).

000* The foUowinff documents shall, as soon as may be after the com-
mittal of the accused, be transmitted to the clerk or other proper officer of the
court by which the accused is to be tried, that is to say, the information if any,
the depositions of the witnesses, the exhibitt thereto, the statement of the accused,
and all recognizances entered into, and also any depositions taken before a
coroner if any such have been sent to the justice.

2. When any order changing the place of trial is made the person obtain-
ing it shall serve it, or an office copy of it, upon the person then in possession
of the said documents, who shall thereupon transmit them and the indictment,

[Sec. 600

Sec. 601]

RULE AS TO BAIL.

665

VITNESS.

in the county

y of

then charged
med, and that
examined as a
jd to enter into
A. B., and I
ur custody, and
irial of the said
itime he should
/hereas for want
B said A. B. has
offence, but on
and it is there-
detained longer
^d direct you the
our custody, as
large.

ay of .

aforesaid.

\e of county.)

J be after the com-
broper officer of the
linformation if any,
lientof the accused,
Ions taken before a

J the person obtain-
[then in possession
Ind the indictment,

if found, to the officer of the court before which the trial is to take place.
B. S. C. c. 174, 88. 77, 102. '

Reus AS TO Bail.

601* When any person appears before any justice charged with an indict-
able offence punithable by imprisonment for more than five pears other than
treason or an offence punishable with death, or an offence under Part IV. of
this Act (s. 66), and the evidence adduced is, in the opinion of such justice,
sufficient to put the accused on his trial, but does not furnish such a strong
presumption of guilt as to warrant his committal for trial, the justice, jointly
with some other justice, may admit the accused to bail upon his procuring and
producing such surety or sureties as, in the opinion of the two justices, will be
sufficient to ensure his appearance at the time and place when and where he
ought to be tried for the offence ; and thereui)on the two justices shall take
the recognizances of the accused and his sureties, conditioned for his appear-
ance at the time and place of trial, and that he will then surrender and take
his trial and not depart the court without leave ; and in any case in which the
offence committed or suspected to have been committed is an offence punish'
cMeby imprisomnent for a term lets than five years any one justice before whom
the accused appears may admit to bail in manner aforesaid, and such justice
or justices may, in his or their discretion, require suoh bail to justify upon oath
AS to their sufficiency, which oath the said justice or justices may administer ;
and in default of such person procuring sufficient bail, such justice or justices
may commit him to prison, there to be kept until delivered according to law.

2. The recognizance mentioned in this section shall be in the form BB in
schedule one to this Act. R. S. C. c. 174, s. 81.

BB.— (Section 601).

RECOGNIZANCE OF BAIL.

Canada, |

Province of , >

County of . )

Be it remembered that on the day of , in

the year , A, B. of , (labourer), L. M. of

, (grocer), and N. 0. of , (butcJier), personally came

before (us) the undersigned, (two) justices of the peace for the
county of , and severally acknowledged themselves to

owe to our Sovereign Lady the Queen, her heirs and successors,
the several sums following, that is to say :, the said A. B. the
sum of , and the said L. M. and N. 0. the sum of

, each, of good and lawful current money of Canada, to be
made and levied of their several goods and chattels, lands and
tenements respectively, to the use of our said Sovereign Lady
the Queen, her heirs and successors, if he, the said A. B., fails
in the condition endorsed (or hereunder written).

I
I
I

■ 1 i

' I

>";

666

PROCEDURE.

[Sec. 60?

Taken and acknowledged the day and year first above men-
tioned, at before us.

J. S.» * ■

J. N.,

J. P., (Name of county.)

CONDITION.

The condition of the within (or above) written recognizance,
is such that whereas the said A. B. was this day charged before
(us), the justices within mentioned for that {etc., as in the warrant) ;
if, therefore, the said A. B. appears at the next court of oyer
and terminer {or general gaol delivery or court of General or
Quarter Sessions of the Peace) to be holden in and for the
county of , and there surrenders himself into the cus-

tody of the keeper of the common gaol {or lock-up house) there,
and pleads to such indictment as may be found against him by
the grand jury, for and in respect to the charge aforesaid, and
lakes his trial upon the same, and does not depart the said
court without leave, then the said recognizance to be void, other-
wise to stand in full force and virtue.

Bail After Cohhittal.
008. In case of any offence other than treason or an offence punishable
with death, or an offence under Part IV. of this Act, (s. 65), where the
accused has been finally committed as herein provided, any judge of any
superior or county court, having jurisdiction in the district or county within
the limits of which the accused is confined, may, in his discretion, on applica-
tion made to him for that purpose, order the accused to be admitted to bail on
entering into recognizance with sufiioient sureties before two justices, in such
amount as the judge directs, and thereupon the justices shall issue a warrant
of deliverance as hereinafter provided, and shall attach thereto the order of
the judge directing the admitting of the accused to bail.

2. Such warrant of deliverance shall be in the form CC in schedule one to
this Act. R. S. C. c. 174, s. 82.

CC— {Section 602.)

WARRANT OF DELIVERANCE OF BAIL BEING GIVEN FOR
PRISONER ALREADY COMMITTED.

Canada,
Province of
County of
To the keeper of the common gaol of the county of

at , in the said county.

I .

[Seo.60?

ist above men-

ne of county.)

0. recognizance,
■ charged before
in the warrant) ;
xt court of oyer
:t of General or
in and for the
self into the cus-
up house) there,
i against him by
ge aforesaid, and
depart the said
to be void, other-

in offence punishable
;, (s. 65), where the
I, any judge of any
•ict or county within
liscretion, on applica-
e admitted to bail on

two justices, in such
' shall issue a warrant

thereto the order of

BC in schedule one to

IG GIVEN FOR
5D.

Sees. 603, 604]

BAIL BY SUPERIOR COURT.

667

lity of

Whereas A. B. late of , {labow-er) has before {us)

(tico) justices of the peace in and for the said county of ,

entered into his own recognizance, and found eufificient sureties
{or his appearance at the next court of oyer and terminer or
general gaol delivery {or court of General or Quarter Sessions of
the Peace), to be holden in and for the county of , to

answer our Sovereign Lady the Queen, for that (etc., a in the
commitment), for which he was taken and committed to your said
common gaol : These are therefore to command you, in Her
Majesty's name, that if the said A. B. remains in your custody
in the snM rommon gaol for the said cause, and for no other,
you shall forthwith, suffer him to go at large.

Given under our hands and seals, this day of ,

in the year , at , in the county aforesaid.

J. S., [seal.]
J. N., [seal.]

•7. P., {Name of county.)

Bail by Superior Court.

603. No judge of a county court or justices shall admit any person to
bail accused of treason or an offence punishable with death, or an offence under
Part IV. of this Act, a. 65, nor shall any such person be admitted to bail,
except by order of a superior court of criminal jurisdiction for the province in
which the accused stands committed, or of one of the judges thereof, or, in the
province of Quebec, by order of a judge of the Court of Queen's Bench or
Superior Court. R. S. C. c. 174, s. 83.

Application for Bail After Committal.

604. When any person has been committed for trial by any justice the
prisoner, his counsel, solicitor or agent may notify the committing justice,
that he will, as soon aa coxmsel can be heard, move before a superior court of
the province in which such person stands committed, or one of the judges.
thereof, or the judge of the county court, if it is intended to apply to such
judge, under section six hundred and two, for an order to the justice to admit
such pris mer to bail, — whereupon such committing justice shall, as soon a»
may be, transmit to the clerk of the Crown, or the chief clerk of the court, or
the clerk of the county court or other proper officer, as the case may be,
endorsed under his hand and seal, a certified copy of all informations, exami-
nations and other evidence, touching the offen ce wherewith the prisoner has
been charged, together with a copy of the warrant of commitment, and the
packet containing the same shall be handed to the person applying therefor,
for transmission, and it shall be certified on the outside thereof to contain the
information concerning the case in question. R. S. C. c. 174, s. 93.

t'l-

668

PROCEDXTRE.

[Sees. 605.607

2. Upon such application to any such court or judge the same order con-
cerning the prisoner being bailed or continued in custody, shall be made as if
the prisoner was brought up upon a habeas eorput. R. S. C. c. 174, s. 94.

3. If any justice neglects or offends in anything contrary to the true
intent and meaning of any of the provisions of this section, the court to whose
officer any such examination, information, evidence, bailment or recognizance
ought to have been delivered, shall, upon examination and proof of the offence,
in a summary manner, impose such fine upon every such justice as the court
thinks fit. R. S. C. c. 174, s. 95.

Wabrant of Deliteranoe.

60S< Whenever any justice or justices admit to bail any person who is
then in any prison charged with the offence for which he is so admitted to bail,
such justice or justices shall send to or cause to be lodged with the keeper of
such prison, a warrant of deliverance under his or their hands and seala,
requiring the said keeper to discharge the person so admitted to bail if he U
detained Tor no other offence, and upon such warrant of deliverance being
delivered to or lodged with such keeper he shall forthwith obey the same,
R. S. C. c. 174, B. 84.

Wahrant for Arrest of Person about to Abscond. (New).

600< Whenever a person charged with any offence has been bailed in
manner aforesaid, it shall be lawful for any justice, if he sees fit, upon the
application of the surety or of either of the sureties of such person and upon
information being made in writing and on oath by such surety, or by some
person on his behalf, that there is reason to believe that the person so bailed is
about to abscond for the purpose of evading justice, to issue his warrant for the
arrest of the person so bailed, and afterwards, upon being satisfied that the
ends of justice would otherwise be defeated, to commit such person when so
arrested to gaol until his trial or until he produces another sufficient surety or
other sufficient sureties, as the case may be, in like manner as before. 14-15 V,
c. 93, s. 17 (Imp.).

Delivkrt of Accused to Prison.

60 Y> The constable or any of the constables, or other person to whom any
warrant of commitment authorized by this or any other Act or law is directed,
shall convey the accused person therein named or described to the gaol or other
prison mentioned in such warrant, and there deliver him, together with the
warrant, to the keeper of such gaol or prison, who shall thereupon give the
constable or other person delivering the prisoner into his custody, a receipt for
the prisoner, setting forth the state and condition of the prisoner when
delivered into his custody.

2. Such receipt shall be in the form DD in schedule one hereto.
c. 174, s. 85.

R. S, C.

1 1

\.B8C0ND. (New).

Sec 607]

DELIVERY OP ACCUSED TO PRISON.

66d

DI). —{Section 607.)

GAOLER'S RECEIPT TO THE CONSTABLE FOR THE

PRISONER.

I hereby' certify that I have received from W. T., constable^

of the county of , the body of A. B., together with a

warrant under the hand and seal of J. S., Esquire, justice of the

peace for the said county of , and that the said A. B.

was sober, {or as the caae may be), at the time he was delivered

into my custody.

P. K.,

Keeper of the common gaol of the said county.

le one hereto. R. §• C-

670

PROCEDURE.

[Sec. 608

PART XLVI.

Indictments.

608. It shall not be necessary for any indictment or any record or docu-
ment relative to any criminal case to be written on parchment. R. S. G. c. 174
8. 103.

By the interpretation clause, s. 3, ante, the word indict-
ment includes information, presentment, plea, record, etc.

By the 4 Geo. II. c. 26, and 6 Geo. II. c. 14, "all indict-
ments, informations, inquisitions and presentments shall
be ih English, and be written in a common legible band,
and not court hand, on pain of £50 to him that shall sue in
three months."

No part of the indictment must contain any abbreviation,
or express any number or date by figures, but these as m\\
as every other term used, must be expressed in words at
length, except where a fac-simile of an instrument is set
out: 3 Burn, 35 ; 1 Chit. 175.

Formerly, like all other proceedings, they were in Latin,
and though Lord Hale thinks this language more appro-
priate, as not exposed to so many changes and alterations,
" it was thought in modern times to be of very greater use
and importance," says his annotator Emlyn, ** that they
should be in a language capable of being known and under-
stood by the parties concerned, whose lives and liberties
were to be affected thereby."

Before confederation in Ontario and Qaebes, the indict-
ment in cases of high treason only had to be writt en on
parchment : C. S. C. c. 99, s. 20.

By s. 133 of the British North Amenca Act, the French
language may be used in any of the courts of Qaebe c and
in any court in Canada established under that Act.

Sec. 609]

STATEMENT OF VENUE.

671

Statement of Venue.

600. It shall not be necessary to state any venue in the body of any
indictment, and the district, county or place named in the margin thereof,
shall be the venue for all the facts stated in the body of the indictment ; but if
local description is required such local description shall be given in the body
thereof. R. S. 0. o. 174, s. 104.

This section is taken from s. 23, 14 & 15 Y. c. 100, of the

Imperial statutes, upon which Greaves says : " This section

was framed with the intention of placing the statement of

veuue upon the same footing in criminal cases upon which

it was placed in civil proceedings by Reg. Gen., H. T., 4

Wm. lY. By this section, in all cases, except where some

local description is necessary, no place need be stated in the

body of the indictment ; thus in larceny, robbery, forgery,

false pretenses, etc., no venue need be stated in the body

of the indictment. In such cases, before the passing of

this Act, although it was considered necessary to state

some parish or place, it was quite immaterial whether the

offence was committed there or at any other parish in the

county. On the other hand, in burglary, sacrilege, stealing

in a dwelling house, etc., the place where the offence was

committed must be stated in the indictment. It was

necessary so to state it before the Act, and to prove the

statement as alleged, and so it is still, subject ever to the

power of amendment given by the first section." {See

now, 88. 611, 613, post.)

" The venue, that is, the county in which the indictment
is preferred, is stated in the margin thus " Middlesex," or
"Middlesex, to wit," but the latter method is the most
usaal. In the body of the indictment a special venue used
to be laid, that is, the facts were in general stated to have
arisen in the county in which the indictment was pre-
ferred." 3 Burn, 21.

" The place (or special venue, as it is technically termed)
must be such as in strictness the jury who are to try the
cause should come from. At common law, the jury, in
strictness, should have come from the town, ha.olet, or

■■ '>91 "

672

PROCEDURE.

[Sec. 6W

parish, or from the manor, castle, or forest, or other
kuown place ont of a town, where the offence was com-
mitted, and for this reason, besides the county, or the city,
borough, or other part of the county to which the jaris-
diction of the court is limited, it was formerly necessary
to allege that every material act mentioned in the indict-
ment was committed in such a place.

Under ss. 611, 618, no indictment will now probably
be quashed for want of a sufficient description.

The cases in which a local description has been held to
be necessary in the body of the indictment, are :

Burglary, 2 Buss. 47 ,* house-breaking, B. v. Bullock,
1 Moo. 824, note (a) ; stealing in a dwelling-house, under
section corresponding to s. 845 ante : B. v. Napper, 1 Moo.
44 ,' being found, by night, armed, with intent to break
into a dwelling-house, under section corresponding to s.
417, ante, and all offences under part XXX., ante : B. y.
Jarrald L. & C. 801 ; riotously demolishing churches,
houses, machinery, etc., or injuring them, under sections
corresponding to ss. 85, 86, ante : B. v, Bichards, 1 M. &
Bob. 177 ; maliciously firing a dwelling-house, perhaps an
out-house, and probably all offences that fell under ss. 2,
3, 4, 5, 6, 7, 8, 9, 10, 13 & 14 of the repealed Act, as to
malicious injuries to property, but not the offences under
ss. 18, 19, 20, 21, of the same Act : B. v. Woodward, 1
Moo. 823 ; forcible entry, Archbold, 50 ; nuisances to high-
ways : B. V. Steventon, 1 G. & E. 55 ; malicious injuries
to sea-banks, milldams, or other local property, Taylor,
Ev., 1 vol., par. 227 ; not repairing a highway, in which
even a more accurate description is necessary, as the
situation of the road within the parish, etc.; indecent
exposure in a public place, B. v. Harris, 11 Cox, 659.

But in most cases of want of local description, where
necessary, or of variance between the proof and the allega-
tions in the indictment respecting the place, local descrip-

SeCM. 610, Oil]

HEADING OF INDICTMENTS.

673

tion, etc., the courts wonld no^v allow an amendment, or
order particulars.

It is well remarked in Taylor Ev., vol. l,par. 228 :
" It would be extremely difficult to advance any sensible
argument in favour of this distinction which the law recog-
uizes between local and transitory offences. On an indict-
ment, indeed, against a parish for not repairing a highway,
it may be convenient to allege, as it will be necessary to
prove, that the spot out of repair is within the parish
charged, . . . but why a burglar should be entitled to
more accurate information respecting the house he is
charged with having entered, than the highway robber can
claim as to the spot where bis o£fence is stated to have
been committed, it is impossible to say : either full infor-
mation should be given in all cases or in none."

HEADiNa OF Indictments. (Xeio).

010. It uhall not be necessary to state in any indictment that the jurors
present upon oath or affirmation.

2. It shall be sufficient if an indictment begins in one of the forma EE in
schedule one hereto, or to the like effect.

3. Any mistake in the heading shall upon being discovered be forthwith
amended, and whether amended or not shall be immaterial.

E. E. {Sectiann 610, 626.)

In the {niniii' of the court in which the indictment is found).
The jurors for our Lady the Queen present that
(Where there are more counts than one, add at the befjinniny of
each cunnt) :

'• The said jurors further present that ."'

See, as to forms, generally, s. 982, post.

Form and Contents op Counts. (Nao).

611. Every count of an indictment shall contain, and shall be sufficient
if it contains, in substance a statement that the accused has committed some
indictable offence therein sjx'cified.

2. Such statement may be made in popular language wthout any
technical averments or any allegations of matter not essential to be proved.

3. Such statement may be in the words of the enactment describing the
utfence or declaring the matter charged to be an indictable offence or in any

Crim. Law— 43

! 1 1'

i.'l!

674

PROCEDURE.

[Sec. (ill

words Bufflcient to give the accused notice of the offence with which he in
charged.

4. Every count shall contain so much detail of the circuniHtnnceH of the
alleged offence an is sufficient to give the accused reasonable information nx to
the act or omission to be proved against him, and to identify the traUHaction
referred to : Provided that the absence or insufficiency of such details shall imt
vitiate the count.

6. A count may refer to any section or sub-section of any statute creatiii)f
the offence charged therein, and in estimating the sufficiency of such coimt tlie
court shall have regard to such reference.

0. Every count shall in general apply only to a single transaction.

EXAMPLES OF THE MANNER OF STATING OFFENCES.
F. P. {Section 611.)

{a) A. murdered 6. at , on (s. 231).

({b) A. stole a sack of flour from a ship called the nt

i , on (s. 849).

'(c) A. obtained by false pretenses from B., a horse, a cnvt
and the harness of a horse at , on (s. 859).

((/) A. committed perjury with intent to procure the con\ic-
tion of B. for an offence punishable tvith jtennl servitude, namely
robbery, by swearing on the trial of B. for the robbery of C. nt
the Court of Quarter Sessions for the county of Carleton, held at
Ottawa, on the day of , 1879; first that he, A.

saw B. at Ottawa, on the day of ; secondly,

that B. asked A. to lend B. money on a watch belonging to C. ;
thirdly, etc. (S. 146, s-s. 2) ; or

assault alleged to have been committed by the said B, on C. at
Ottawa, on the day of by swearing to the effect

that the said B. could not have been at Ottawa, at the time of
the alleged assault, inasmuch as the said A. had seen him at that
time in Kingston, (s. 146, s-s. 1).

(/) A. with intent to maim, disfigure, disable or do grievous
bodily harm to B. or with intent to resist the lawful apprehension
or detainer of A. {or C), did actual {grievous /) bodily harm to
B. {or D.) (S. 241).

{g) A. with intent to injure or endanger the safety of persons
on the Canadian Pacific Hallway, did an act calculated to inter-

[S«c. (HI
ith which hi" in

iiuntftJicei* of till'
nformatiim nx to
r the transact iim
, detftils Bhall ixit

^ statute creatint?
of such count the

insftction.
OFFENCES.

Hcc. «11]

INDICTMENTS.- FOB M OF.

675

(8. 231).
I the

a horse, a cavt

(3.359).
jcure the con\'ic-
wrrihtde, namely
rohbery of C. nt
larleton, held at
first that he, A.
; secondly,
|belongmg to C. ;

tvial of B. at a
for an

said B. on C. at
Iring to the effect
|a, at the time of

1 seen him at that

L or do grievous
If ul apprehension
I) bodily harm to

.safety of persona
Llculated to inter-

fere with an engine, a tf'nder, and certain carriages on the said
railway on at by {deiicrUH- with so vnich detail as

in sufficient to ijive the itcnised redsumililc information as to the acts
iiv ominsions relied on ar/ainst him, and to identify the transaction).
(Ss. 250, 489).

(/() A. published a defamatory libel on B. in a certain news-
paper, called the , on the day of A.D.
, which libel was contained in an article headed or
commencing (drscrihe with so much detail as is sufficient to give the
aciHxed reasonable information as to tlie part of tlw publication to
III' relied on anaivsthim), and which libel was written in the sense
of imputing that the said B. was {as tlie case may be). (S. 802.)

The first sub-section of this s. 611 cannot, probably
bear the construction that the wording of it taken literally
would, at first, suggest. The whole Act taken together does
not seem to allow of such a construction. Section 614, for
instance, as to treason, is directly against it. An indict-
in en for obtaining by false pretenses is, perhaps, the only
one that can be laid, without an averment of the intent,
where the intent is necessary to constitute the offence, and
this, because the form FF given in schedule one does not
aver the intent : s. 982 post ; see R. v. Pierce, 16 Cox,
213. But the same form, in all the other cases, where the
intent is an ingredient of the offence as enacted by statute,
does contain an averment of such intent. If it were suffi-
cient, in any indictment, to simply aver in all cases that
the defendant has committed an indictable offence therein
specified, the Act would not contain s. 618, for instance,
which specially decrees that in an indictment under s. 361,
it shall not be necessary to allege or to prove that the act
was done with intent to defraud, though s. 361 has no
mention whatever of an intent to defraud, and ss. 618,
619, 620, 621, 622, 623, 624, 625 would be superfluous.
Section 733 also provides for the case where the indictment
does not state any indictable offence, and s. 723, s-s. 2,
likewise assumes that indictments are not always to be so
carelessly drawn as 8.611 would, at first sight, seem to allow.

'(A

' . I

676

PROCEDURE.

[See. 611

'( i

Sub-section 2 of this s. 611 may perhaps dispense of,
for instance, the word ** burglariously " in indictments for
burglary, but leaves it necessary to aver all matter neces-
sary to he proved. S-s. 3 will, probably, not receive
a wider construction than the same enactment, as repro-
duced in s. 734, as to indictments for any offence against
this Act has heretofore received. See post, under that
section.

Sub-sections 4 & 6 are no additions to the law. S-s. 5 may
help an indictment in certain cases. See remarks, post,
under s. 629.

" The rule is, that, with certain exceptions, all the cir-
cumstances necessary to constitute the offence charged
should be stated with certainty and precision, to the end
that the defendant may be enabled to form a judgment
whether or not they constitute an indictable offence, and so
demur or plead accordingly ; or that he may be enabled to
plead autrefois acquit, or convict or a pardon, in bar of a
subsequent prosecution for the same offence ; and in order
also that the court may know what judgment may legally
be passed in the event of a conviction. The courts, how-
ever, will construe the words of an indictment according to
their ordinary and usual acceptation; and as regards
technical expressions — these they will construe according
to their technical meaning, and if the sense of a word be
ambiguous in its ordinary acceptation it will be construed
according as the context and subject matter may require,
in order to render the whole consistent and sensible ; and
iu doing so, the courts will disregard ungrammatical
language if the real meaning be sufficiently expressed : R.
V. Stevens, 5 East, 244; E. v. Stokes, 1 Den. 307.
But although the coarts will thus construe the averments
of an indictment so as to give effect to them, they will not
supply the omission of anything which is essential. If,
therefore, auy necessary averment is omitted no intendment
will be made in its favour — the rule upon the subject being
that the courts will presume the negative of everything

Sec. 611]

INDICTMENTS-FORM OF.

677

that has not been expressly affirmed, and the affirmative
of everything which has not been expressly negatived":
Saunders.

If there be any exception contained in the same clause
of the Act which creates the offence the indictment must
show negatively that the defendant does not come within
the exception : B. v. Earnshaw, 15 East 456; B. v. Baxter,

5 T. E. 83 ; E. v. Pearce, B. & B. 174. If, however, the
exception or proviso be in a subsequent clause or statute,
or, although in the same section, yet if it be not incor-
porated with the enacting clause by any words of teference,
it is matter of defence, and need not be negatived in the
indictment : B. v. Hall, 1 T. B. 320 ; Steel v. Smith, 1 B.

6 Aid. 94 ; B. v. White, 21 U. C. C. P. 354 ; B. v. Strachan,
20 U. C. C. P. 182 ; B. v. MacKenzie, 6 0. B. 165.

In an indictment under s. 431 of this Code, for instance,
it must be averred that the defendant made the document
ivith intent to defraud and without lawful authority. or excuse.
An indictment, however, which would negative only " law-
ful excuse " and not " lawful authority" would be sufficient :
E. V. Harvey, L. B. 1 C. C. E. 284. As to the rules of
evidence in such cases, see Taylor, Ev. par. 344, et seq.

An indictment for indecent assault by a male on
another male {see s. 260 ante) is defective, even after ver-
dict, if it does not aver that defendant is a male : B. v.
Montminy, Quebec, Q. B. May, 1893.

Such are the rules that have heretofore been recognized
in the framing of indictments. How far this Code alters
them remains to be settled by the jurisprudence. But it
must not be lost sight of that it is technical objections only
that the Imp. Commissioners report as being put an end
to by the Code. That every indictment must charge
an offence, and that every accused person is entitled
to know what he is accused of, still remains the law, it
must be assumed : E. v. Clement, 26 U. C. Q. B. 297 ; see
case of E. v. Cummings under s. 933 post. Parliament has
undoubtedly the right to decree that such shall not be the

:|:if
m

•t

S :1

678

PROCEDURE.

[Sees. 612, 613

law any longer, but when they come to that determination
the courts of the country will probably require that such
determination be expressed in clear and unequivocal terms.
S-B. 2 of this 8. 611 assumes negatively that all matter
of fact necessary to be proved must be alleged in the
indictment. It still remains the rule that an indictment
which does not substantially set down all the elements
of the offence is void : see 1 Bishop, Cr. Proc. 98.

Offences May be Charged in the Alternative. (New).

CIS- A count shall not be deemed objectionable on the ground that it
charges in the alternative several different matters, acts or omissions which are
stated in the alternative in the enactment describing any indictable offence or
declaring the matters, acts or omissions charged to be an indictable offence, or
on the ground that it is double or multifarious : Provided that the accused may
at any stafee of the trial apply to the court to amend or divide any such count
on the ground that it is so framed as to embarrass him in his defence.

2. The court, if satisfied that the ends of justice require it, may order any
count to be amended or divided into two or more counts, and on such order being
made such count shall be so divided or amended, and tliereupon a formal com-
mencement may he inserted before each of the counts into tohich it is divided.

Though the statute is in the disjunctive the offence
may be charged in the conjunctive. An indictment under
s. 436 for instance, which charges that the defendant did
destroy, deface and injure a register is not bad for duplicity
or multifariousness, though the section says "destroy,
deface or injure " ; E. v. Bowen, 1 Den. 22, and cases
there cited ; also E. v. Patterson, 27 U. C. Q. B. 142. The
above section permits of an alternative charge only where
the statute itself describes the offence in the alternative.
A charge made in the alternative as a general rule is no
charge at all ; the defendant either did one thing or the
other ; per Gurney, B., in E. v. Bowen, ubi supra. An
indictment that would charge an offence in the disjunctive
would be bad, if not amended, though the defect would be
cured by verdict under s. 734.

See E. V. Baby, 12 U. C. Q. B. 346, and Cotterill v.
Lempriere, 17 Cox, 97.

Certain OBJECTiONa not Fatal. {New).
618* {As amended in 18'JS), No count shall be deemed objectionable or
insufficient on any of the following grounds ; that is to say :

[Sees. 612, 613

Sees. 614, 615]

lid Cotterill v.

ned objectionable or

INDICTMENTS-SPECIAL CASES.

679

(«) that it does not contain f ho *

ct.Z T " '°- "'" "' »"' "^ <!-"».« which „., t. „, . ,.

[<-) that It does not >u^t „„* *u
iect of the charge ; or ''"^ *'^ ^^°-^« "^^^ -here words usedare the sub-

(/) that it does not specify the
™..ed , or O^'y «>o .,,.„, b, „y„t ,^, ^j^_^^ ^_^ ^

«:• o"' "^"-^ no. n».eo,...h, „.h ,^,„„ „, _, ^^^;

e.™&.:rtr.:r„:::Lr.K-'^

«. P "ereTertnTT^''^-'^ »' various dausea of
1«0- S-s. W assumes bitu fs nJ ''' "^' "*" "6' "7,
»"ege an intent to defraud ^ ''"'^ '" '"""^ ""^^^ '»

«- where particulars hat bet S^eT'" ^^ '"' "" '"«
aw Eve • ^ "■■™™'-™ ™« HmH T,M,o»

net stated. " ^^^^"v.se relevant as tendinrf^^ ^"^ ""^^'^

0 Th ^""""^^o prove gome overt

i^lllS Shou d aonlv nnl., . *''® wdictment.

■"«^e to app, ^^'^XHfl^l ,^: '-^ — ..

«I5 No ^■"''''""^■^'^-^'''s f-OR Libel.

» opecitjmg tiiat sense with-

:m'^

I^Ji

ii.

680

PROCEDURE.

[Seca. 610, 017

out any prefatory averment showing how that matter was written in that
sense. And on the trial it shall be sufficient to prove that the matter pub-
lished was criminal either with or without such innuendo.

See form of indictment for a defamatory libel under
8. 611, ante.

Indictments for Pkrjurt and Other Offences, {Neto).

010. No count charging perjury, the making of a false oath or of a false
statement, fabricating evidence or subornation, or procuring the commission cif
any of these offences, shall be deemed insufficient on the ground that it dots
not state the nature of the authority of the tribunal before which the oath or
statement was taken or made, or the subject of the inquiry, or the words used
or the evidence fabricated, or on the ground that it does not expressly negative
the truth of the words used : Provided that the court may, if satisfied that it
is necessary for a fair trial, order that the prosecutor shall furnish a particular
of what is relied on in support of the charge.

2. ;No count which charges any false pretense, or any fraud, or any
attempt or conspiracy by fraudulent means, shall be deemed insufficient
because it does not set out in detail in what tlie false pretenses or the fraud or
fraudulent means consisted : Provided that the court may, if satisfied as afore-
said, order that the prosecutor shall furnish a particular of the above matters
or any of them.

3. No provision hereinbefore contained in this part as to matters which are
not to render any count objectionable or insufficient shall be construed as
restricting or limiting in any way the general provisions of section six hundred
and eleven. R, S. C. c. 174, ss. 107, 108. 14-15 V. c. 100, ss. 20, 21 (Imp.).

See R. V. Dunning, 11 Cox, 651; and E. v. Hare, 13 Cox,
174 See forms of indictments for false pretenses and for
perjury in form FP of schedule 1, under s. 611, ante.
The sedtions on perjury are 145, et seq. on false pretenses,
858, et 8eq.; for conspiracies see under s. 527; Howard v. E.,
10 Cox, 54, cannot now be followed.

Particulars. {New).

017- When any such particular as aforesaid is delivered a copy slialllie
given without charge to the accused or his solicitor, and it shall be entered
in the record and the trial shall proceed in all respects as if the indictnwit had
been ametided in conformity with such particular.

2. In determining whether a particular is required or not, and wlietlier a
defect in the indictment is material to the substantial justice of the case or not,
the court may have regard to the depositions.

See R. V. Hamilton, 3 Russ. 173, and Greaves' note
where particulars were ordered by the court : R. v. Stapyl-
ton. 8 Cox, 69; R. v. Hodgson, 3 C. i& P. 422 ; R. v. Bootymau,

Sees. 618, 619] INDICTMENTS-SPECIAL CASES.

681

5 C. & P. 800. Any bill of particulars may itself be
amended at the trial under s. 723. An application for
particulars should be made before the trial, but the court
has full discretionary powers in the matter: s-s. 3, s. 723.

Indictment under Section 361.

OIS It shall not be necessary to allege, in any indictment against any
person for wrongfully and wilfully pretending or alleging that he inclosed and
sent, or caused to be inclosed and sent, in any post letter, any money, valuable
security or chattel, or to prove on the trial, that the act was done with intent
to defraud. R. S. C. c. 174, s. 113.

This enactment is useless. It was in the original statute
of 1869, because there the offence was made one of obtain-
ing money under false pretenses. But now s. 361 does not
contain such an enactment, and does not require an intent
to defraud.

Indictments in Certain Cases. (Ajuended).

619. An indictment shall be deemed sufficient in the cases following :

(a) If it be necessary to name the joint owners of any real or personal
property, whether the same be partners, joint tenants, parceners, tenants in
common, joint stock companies or trustees, and it is alleged that the property
belongs to one who is named, and another or others as the case may be ;

(6) If it is necessary for any purpose to mention such persons and one only
is named ;

(c) If the property in a turnpike road is laid in the trustees or commis-
sioners thereof without specifying the names of such trustees or commissioners ;

(d) If the offence is committed in respect to any property in the occupation
or under the management of any public officer or commissioner, and the
property is alleged to belong to such officer or commissioner without naming
him;

{e) If, for an offence under section three hundred and thirty-four, the
oyster bed, laying or fishery is described by name or otherwise, without stating
the same to be in any particular county or place. R. S. C. c. 174, ss. 118, 11!),
120, 121 & 123.

Sub-sections (a) & (6) are taken from the Imperial Act,
7 Geo. IV. c. 64, s. 14. Formerly, where goods stolen were
the property of partners, or joint -owners, all the partners
or joint owners must have been correctly named in the
indictment, otherwise the defendant would have been
acquitted.

The word " parceners " refers to a tenancy which arises
^hen an inheritable estate descends from the ancestor to

■^*>

.. ■ i\

til

682

PROCEDURE.

[Sec. m

several persons possessing an equal title to it: Wharton,
Law Lexicon.

It must be remembered that the words in s. 619, s-s. (a)
are, *^ another or others;" and if an indictment allege pro-
perty to belong to A. B. and others, and it appears that
A. B. has only one partner, it is a variance.

The prisoner was indicted for stealing the property of
G. Eyre " and others," and it was proved that G. Eyre had
only one partner; it was held, per Denman, Com. Serj., that
the prisoner must be acquitted : Hampton's Case. 2 Euss.
303. So where a count for forgery laid the intent to be to
defraud S. Jones " and others," and it appeared that Jones
had only one partner, it was held that the count was not
supported : E. v. Wright, 1 Lewin, 268.

In E. v. Kealey, 2 Den. 68, the defendant was indicted
for the common law misdemeanour of having attempted, by
false pretenses made to J. Baggally and others, to obtain
from the said J. Baggally and others one thousand yards
of silk, the property of the said J. Baggally and others,
with intent to cheat the said J. Baggally and others of the
same. J. Baggally and others were partners in trade, and
the pretenses were made to J. Baggally; but none of the
partners were present when the pretenses were made, nor
did the pretenses ever reach the ear of any of them. It was
objected that there was a variance, as the evidence did not
show that the pretenses were made to J. Baggally and
others; but the objection was overruled by Eussell Gurney,
Esq., Q.C., and, upon a case reserved, the conviction was
held right.

Greaves, in note (a), 2 Euss. 304, says on this case : "It
is clear that the 7 Geo. IV. c. 64, s. 14 (s. ^10 ante) alone
authorizes the use of the words ' and otlieis ; ' for, except
for that clause, the persons must have been named. There
the question really was, whether that clause authorized
the use of it in this allegation. The words are, * whenever
it shall be necessary to mention, /or any purpose whatsoever,

[Sec. 61»

to it: Wharton,

in 8. 619, 8-8. (a)
nent allege pro-
it appears that
e.

the property of
that G. Eyre had
, Com. Serj., that
n'8 Case. 2 Euss.
le intent to be to
eared that Jooes
e count was not

ant was indicted
ng attempted, by
others, to obtain

thousand yards
jally and others,
,nd others of the
ers in trade, and
but none of the

were made, nor
of them. It was
evidence did not
J. Baggally and

Eussell Gurney,
e conviction was

n this case : " It
.610 ante) alone
trs ; ' for, except
a named. There
lause authorized

Sec. 619J

INDICTMENTS-SPECIAL CASES.

i are,

whenever

683

rpose wh'ttsoeEcr,

any partners, etc.,' cu u i,. **

™n.ion,' etc., s. 619. «L) CT ^"^ "»? ^'^°'« to
pmoaer had applied to B««b«iiJT " '» P'»» ">at the
tte firm, and the infeenTfrom°r'":''" ""^ ^^^^ of
mdretment is that he hid LZ^ """ ='»'«■»»' « the
their pnrchase. and, if that eontt't I?, " '"""«^' '<"
must have been alleged as , ZT . ^ ''*™ a"«8ed. it
™s cleari, oo„eot to^ ^7' ^f '"e fima.'ana ll
as made to the firm also." P' '° "'»i« a contract

ffri^ht'tses! J«:;:: zt'":^ ^ ^^-^p'o-'^ ^d

3 Burn, 20; see s. 723 IT^nd R ^' t^'' ""■"^dedi
M; B. T. Vincent, 2 Den 46^ E , J" f"'^'""'^' ^- & C.

It - not necessary tha a !;;r f''' " ^°^' ««7-
•«;at: Where C. & D^^ ZtetonZ "'"•"'"'"> »"•■"'»
.jd he widow of C. upon his death ITn'^r'''*"'''?'
aJmrnistrafion. acted as partner and ,^^, **''"« ■""
«rds divided between her and fL '^! »'"* "as after-
Wore the division, part If ? i ! T'""* P"""". but
'o'to that the goorwelLoperW? "'k"""^"' " "-
«■ and the widow : K. v.S;'e 17^78" "^ «"'"'»

And where a fathAr .„ i ™-

'»-; the son ZiinZZT'^'j" ''"'--»»»
™tm»ed the business for thl V !" "''''''' ">« ^'her
4«aon-s ne.t of iin ■ 8„ ' fJ"'"' ''-^"^fit of himself and
"■f.'o be the prope;,;Tf the ,1''"^ T''"' "-" "»«
---allthe..d,L,J^.f5trK^.l^;C^^

'M-t!j^rh:i::,::'t

.Wpertyof John Bennett and n I ®°'"'' ^^--^'^Mas the
fe^ettwas one of the stie", ttTV ""'''"''' «""
"K J., held that the prter^v ""' ""''*'=''''?«' ••

I«'"«:E.,.BonUon,5cTp^.„r ^''"^^"y laid in

, '"^•'••Pritehard.L&Cs/'f

'---^-in^co-partneSS-rrr/sZ-

^ ii

i I

684

PROCEDURE.

[Stc. 020

property of one of the partners specially named and others,
under the clause in question. See s. 620, post, as to
bodies corporate, and the property under their control:
R. V. Beacall, 1 Moo. 15.

On s-s. (c), it has been held that if a person employed by
a trustee of turnpike tolls to collect them lives in the toll
house rent free, the property in the house, in an indictment
for burglary, may be laid in the person so employed by the
lessee, he having the exclusive possession, and the toll
house not being parcel of any premises occupied by his
lemployer : R. v. Camfield, 1 Moo. 42.

PROPKnTY OF Body Cokporate.

OSO. All pri perty, real and personal, whereof any body corporate has,
by law, the management, control or custody, shall, for the purpose of any
indictment or proceeding against any other person for any offence committed
on or m respect thereof, be deemed to be the property of such body coriwrate.
R. S. C. c. 174, s. 122.

This clause is not in the English statutes. It was held
in England, without this clause, that when goods of a cor-
poration are stolen they must be laid to be the property
of the corporation in their corporate name and not in the
names of the individuals who comprise it : R. v. Patrick
and Pepper, 1 Leach, 253. — So in R. v. Freeman, 2 Russ.
801, the prisoner was indicted for stealing a parcel, the
property of the London and North Western Railway Com-
pany. The parcel was stolen from the Lichfield Station,
which had been in the possession of the company for three
or four years, by means of their servants, but no statute
was produced which authorized the company to purchase
the Trent Valley Line ; an Act incorporating the company
was, however, produced. It was held that, as a corporation
is liable in trover, trespass and ejectment, they might have
:au actual possession though it might be wrongful, Tvhieii
V'ould support the indictment.

In R. V. Frankland, L.& G. 276, it was held: 1st. That
the incorporation of a private company must be proved by
legal and documentary evidence ; 2ud. That partuers in a

Sols. 021-023]

IN DICTMENTS-SPECI AL CASES.

685

Lined and others.
5-20, post, as to
r their control;

son employed by
lives in the toll
in an indictment
employed by the

m, and the toll
occupied by his

iny body corporate has,
tor the purpose of any
r any offence committed
• of such body coriwrate.

utes. It was held
len goods of a cor-
0 be the property
me and not iu the
it: E. V. Patrick
Freeman, 2 Russ.
ling a parcel, the
ern Railway Com-
Lichfield Station,
company for three
ts, but no statute
pany to purchase
iting the company
[it, as a corporatiou
,t, they might have
le wrongful, \7hich

company not incorporated might be proved to be such by
parol evidence ; 3rd. That Thomas Bolland and others,
who were described in the indictment as the owners of tbe
property embezzled, being partners in a company not
incorporated, the indictment was supported by proof that
the money was the property of the company.

By s. 613, ante, no count is objectionable on the ground
that it does not contain the name of the person injured,
or defrauded, or that it does not state the owner of any
property therein described, or that it does not name any
one with precision.

Indictjiknts for Stealing Ores, Etc.

631' In an indictment for any offence mentioned in section three
Imndred a :d forty-three or three hundred and seventy-five of this Act, it shall
lie siitficient to lay the projierty in Her Majesty, or in any person or corpora-
rim, in different counts in such indictment ; and any variance in the latter
case, between the statement in the indictment and the evidence adduced,
may Ise amended at the trial ; and if no owner is proved the indictment
may be amended by laying the property in Her Majesty. R. S. C. c. 174,
s. 124.

See under ss. 3-13 & 875, ante.

Offences as to Postage Stamps, Etc.

OSS. In any indictment for any offence committed in respect of any
(iustal card, jiostage stamp or other stamp issued or prepared for issue by the
authority of the Parliament of Canada, or of tlie legislature of any province of
Canada, or by, or by the authority of any corjMirate body for the payment of
any fee, rate or duty whatsoever, the projjerty therein may be laid in the
person in whose possession, as tiie owner thereof, it was when the oflfence was
cmnraitted, or in Her Majesty if it was then unissued or in the possession of
any officer or agent of the Government of Canada or of the Province by
authority of the legislature whereof it was issued or prepared for issue. R. S. C.
c. 174, 8. 125.

See interpretation clause, s. 3.

Indictments Under Sections 319-321.

633. In every case of theft or fraudulent application or disposition of
any chattel, money or valuable security under sections three hundred and
nineteen (c) and three hundretl and twenty-one of this Act, tlie proiK^rty in
any such chattel, money or valuable security may, in any warr.ant by the
justice of the peace before whom the offender is charged, and in the indictment
preferred against such offender, be laid in Her Majesty, or in the municipality,
as the case may be. R. S. C. c. 174, s. 120.

-.'j i

686

PROCEDURE.
Indictments as to Mail Bags, Etc.

[Sees. n24-r)2G

084. When an offence is committed in respect of a i)OBt letter bag, or a
IX)st letter, or other mailable matter, chattel, moi.ey or valuable security Heiit
by post, the projierty of such jwat letter bag, jxjst letter, or other mailable
matter, chattel, money or valuable security ftiay, in the indictment preferred
against the offender, be laid in the Postmaster-General ; and it shall not be
necessary to allege in the indictment, or to prove upon the trial or otherwisp,
that the post letter bag, post letter or other mailable matter, chattel m
valuable security was of any vah'.e.

2. The property of any chattel or thing used or emi)l()yed in the service of
the post office, or of moneys arising from duties of postaare, shall, exce])t in
the oases aforesaid, be laid in Her Majesty, if the same is the projierty of Her
Majesty, or if the loss thereof would be borne by Her Majesty, and not h\
any person in his private capacity,

3. In any indictment against any person emi>loyed in the jiost office of
Canada for any offence against this Act, or against any person for an offence
committed in respect of any person so employed, it shall be sufficient to allege
that »uch offender or such other person was employed in the pj.st office of
Canada at the time of the commission of such offence, without stating further
the nature or particulars of his employment. R. S. C. o. 35, s. 111.

See SB. 3 and 4, ante, for interpretation of terms.

Stbaling by Tenant oh Lodger.

093. An indictment may be preferrt.l against any person who stealn any
chattel let to be used by him in or with ai..> house or lodging, or who steal-
any fixture so let to be used, in the same form as if the offender was not a
tenant or Imlger, and in either case the property may be laid in the owner r
person letting to hire. R. S. C. c. 174, s. 127. 24-25 V. c. 9G, s. 74 (Imi>.).

See s. 822, ante.

Joinder of Counts. (New).

G20. Any number of counts for any offences whatever may be joined in
the same indictment, and shall be distinguished in the manner shown in tiii
form EE in schedule one hereto, or to the like effect : Provided that to a count
charffing murder no count charr/inii ani/ offaicc other than murder shall 'x
joine d.

2. When there are more counts than one in an indictment each count may
be treated as a sej^arate indictment.

3. If the court thinks it conducive to the ends of justice to do so, it may
direct that the accused shall be tried ui)on any one or more of sunh counts
separately. Such order may be made eitlier before or in the course of tlie trial,
and if it is made in the course of the trial the juiy shall be (Uschurged fruin
giving a verdict on the counts on which the trial is not to proceed. Tiie
counts in the indictment which are not then tried shall be proceeded upon in
all respects as if they had been found in a separate indictment.

4. Provided that, unless there be special reasons, no order shall Ije made
preventing the trial at the same time of any number of distinct charges of

Sec. 620]

JOINDER OF COUNTS.

687

ktment eacli count mx

theft not exceeding three, alleged to have been committed within six montim
from the first to the last of Huch oflFences, whether (njainst themme person or not.
5. If one sentaice is passed upon any verdict of gviltyon more eounfi than
me, the sentence shall be good if any of such counts would have justified it.

The proviso in s-s. 1 is new as statutory law, though
in practice no count for any other offence was joined
to a count for muicler : aee Theal v. K., 7 S. C. R. 397.
The last words of s-s. 4 are also new law. Suh-section 5
extends to all offences a rule that applied exclusively to
misdemeanours.

See form EE under s. 610, p. 673, ante.
In R. V. Jones, 2 Camp. 131, Lord Ellenborough said :
'• In point of law there is no objection to a man being tried
on one indictment for several offences of the same sort.
It is usual, in felonies, for the judge, in his discretion, to
call upon the counsel for the prosecution to select one
felony, and to confine themselves to that ; but this practice
has never been extended to misdemeanours."

In R. v. Benfield, 2 Burr. 980, an information against
five for riot and libel had been filed, on which three of them
were acquitted of the whole charge, and Benfield and Saun-
ders found guilty of the libel. It was objected that several
distinct defendants charged with several and distinct
offences cannot be joined together in the same indictment
or information, because the offence of one is not the offence
of the others. But it was determined that several offences
may be joined in one and the same indictment or informa-
tion, if the offence wholly arises from such a joint act as is
criminal in itself, without any regard to any particular
default of the defendant which is peculiar to himself ; as,
for instance, it may be joint for keeping a gaming house,
or for singing together a libellous song, but not for exercis-
ing a trade without having served an apprenticeship,
because each trader's guilt must arise from a defect peculiar
to himself, and 2 Hawk. 140 was said to be clear and
express in this distinction.

In Young's case, 1 Leach, 511, Buller, J., said: "In
misdemeanours the case in Burrow, R. v. Benfield, 2 Burr.

.i*>

688

PROCEDURE.

[S«c. (i2«

980, shews that it is no objection to au indictment that it
contains several charges. The case of felonies admits of
a different consideration ; but even in such cases, it is no
objection in this stage of the prosecution (writ of error).
On the face of an indictment every count imports to be for
a different offence, and is charged as at different times ;
and it does not appear on the record whether the offences
are or are not distinct. But, if it appear before the defend-
tmt has pleaded or the jury are charged, that he is to be
tried for separate offences, it has been the practice of the
judges to quash the indictment, lest it should confound the
prisoner in his defence, or prejudice him in the challenge
of the jury ; for ho might object to a juryman trying one
of the offences, though be might have no reason to do so in
the other. But these are only matters of prudence and
discretion. If the judge who tries the prisoner does not
discover it in time, I think he may put the prosecutor to
make his election on which charge he will proceed. I did
it at the last sessions at the Old Bailey, and hope that, in
exercising that discretion, I did not infringe on any rule of
law or justice. But, if the case has gone to the length of a
verdict, it is no objection in arrest of judgment. If it were
it would overturn every indictment which contains several
counts."

In the case of R. v. Hey wood, L. & C. 451, this decision
in Young's case was followed by the court of crown cases
reserved, and it was held, that, although it is no objection
in point of law to au indictment that it charges the prisoner
with several different felonies in different counts, yet, as
matter of practice, a prisoner ought not, in general, to be
charged with different felonies in different counts of an
indictment ; as, for instance, a murder in one count, and
a I)urglary in another, or a burglary in the house of A. in
one count, and a " distinct " burglary in the house of B. in
another, or a larceny of the goods of A. in one count, and
a " distinct " larceny of the goods of B. at a different time
in another, because such a course of proceeding is caicu-

Seo. 026]

JOIXDER OF COUNTS.

689

lated to embnrrnBo *u^ •

ment on th«t ground before th. '" ""^ '»'"'='•

the jury are charged, the j dgl //iTr' '."' P''"''^'' «
ftemdictment. or put the p?Le"utor /"f °" '""^ 'J"'''''
no objection in arrest of iud«me„? 1 """• ^'" » i*
S« 3. 784 po.t. Thus, where rL T " ""' "' ^"»f-
p™o„er in three severkl cou^a wi ht"" '^""^'^ '"e
in sending three separate thrj/^'? ''"■«™' f^'onie*
couai^lled the mselnZlT^TZl'Tt: ^''^' '-
would proceed.- E. v. Ward, 10 c™ 42 A f • """"' •>«
ent judgments are requi-V ;. „ "' f/ , ^"^ "»« differ-
count for a felony „i,2 anotL t for? "] *"" '''"^^'^ "^ "^
be holden to be bad upon d 'l' '""''^"'^'"'°». would
verdict, upon motion in Irrest o^rr '"' ^"" » •''««™'
PI- ^3; 1 Stephen's HiTum'l'T"'''- ' «"'"^'^. C^-
««fe, that is not so. "' '""' "n''«r s. 626,

So in R. V. Ferguson, Dears 427 ..
bavmg been indicted for a flL •/'""'* *^' P"soaer
'wodiiferent counts of one nZr'." '"""'■"eanour in

"rest of judgment, against the J5' ■' f "°""'' """"ed in
J" ge reserved the decWo„ and l'?;°' ■""■"'«• '"e
.Ielner.„gthejudgmentofthe'courtofr ^"""P"'^"' C-J-
»«1^ "There is really no difficu, ! ;^T ™'^"'^^'^''

«e,a„dImnstsaythatIreg;etZt" >' '""■'" '" "''^
for whom I have a great respecVsb u r™''''^'='>''*''-
lecesaary to reserve it 111' *°"''' '""^ 'bought i ,
;*.men, was bad on lou 't of\!tr '1' "''^«'» «-
'o«nta. The prisoner was convild „ I* '"i^iomder of
"■"y. and it is the same th ng af^^"" '^^T"' '" ''^"•'y
"mm indictment containte- /!- '*'','"'^^'"=»"«'e4
fowod that there was aTund"': ^"!f <=<»■"' ; and it
■«' conviction. There is not 1? '"f,'""" '° """""t
f « objection, that the indictmeM ,""''' P"'»«^ ^r
'"'-demeanour, and it dt Tof^.tu 7'"'"^" " --'
Cm, i,„_« ""' "' ""y argument."

«'.;•■

...)'

690

PROCEDURE.

[Sec. 62G

So in E. V. Holman, L. & C. 177, where the prisoner
was charged in an indictment by one count for embezzle-
ment and the other for larceny as a bailee. At the close of
the case for the prosecution it was objected that the indict-
ment was bad for misjoinder of counts, and that the objec-
tion was fatal, although not, taken till after plea pleaded
and the jury had been charged ; and, upon the court pro-
posing to direct the counsel for the prosecution to elect on
which count he would proceed, the prisoner's counsel
further contended that the indictment was so absolutely
.bad that the election of counts was inadmissible.

The court directed the counsel for the prosecution to
<«lect on which count he would proceed, reserving, at the
request of the prisoner's counsel, the points raised by him
as above stated for the consideration of the court for Crown
cases reserved. The counsel for the prosecution elected to
proceed on the second count, and upon that count the
prisoner was convicted, and the conviction affirmed.

Where the defendant was indicted, in several counts,
for stabbing with intent to murder, with intent to maim
and disable, and with intent to do some grievous bodily
barm, it was holden that the prosecutor was not bound to
elect upon which count he would proceed, notwithstanding
the judgment is by the statute different, being on the first
count capital, and on the others transportation : R. v.
Strange, 8 C. & P. 172 ; Archbold, 70.

When the enactment contained in s. 713, post, was in
force in England, 7 Wm. IV. and 1 V. c. 85, s. 11, a
prisoner was charged in one indictment with feloniously
stabbing with intent— first, to murder; second to maim;
third, to disfigure; fourth, to do some grievous bodily
harm ; to which was added a count for a common assault.
The case was far advanced before the learned judge was
aware of this, and at first he thought of stopping it; but
as it was rather a serious one he left the case, without
noticing the last count, to the jury, who (properly as the

[Sec. 62G

Sec. C2()]

JOINDER OF COUNTS.

691

tie prisoner

: embezzle-
tiie close of

t the indict-

it the objec-

plea pleaded

le court pro-

,n to elect on

ler's counsel

JO absolutely

jle.

irosecution to

rving, at the

raised by him

)urt for Crown

tion elected to

hat count tbe

ffirmed.

several counts,

ntent to maim
grievous bodily
,8 not bound to
lotwithstauding
[ing on the first
irtation : ^^ ^'•

L3, post, was in
Ic. 85, B. 11, a
vith feloniously
[cond to maim;
j grievous bodily
lommon assault-
Irned judge vfas
fstoppiPgit; but
le case, v?itbout
] (properly as tbe

learned judge thought upon the facts) convicted the prisoner;
and the counsel for the prosecution then, being aware of th6
objection of misjoinder, requested that the verdict might
be taken on the last count for felony, which was done
accordingly; and this was held right by all the judges:
E. V. Jones, 2 Moo. 94.

Here, in Canada, now, there is no iobjection to a count
for a common assault, in an indictment for any offence
where, under s. 713, the jury may find a verdict for the
assault. But, of course, such a count is not necessary, as
the jury may, in that case, convict of the 'assault without
its being alleged in the indictment: see 1 Bishop's Cr.
Proc. 446.

In any case not falling under s. 713 the prosecutor

may be ordered to proceed on one of the counts only. If

the defendant does not take the objection and allows the

trial to proceed the conviction will be legal, if a verdict is

taken distinctly on one of the counts. If a verdict is given

of guilty generally, without specifying on which of the

counts, the conviction will be held bad on motion in arrest

of judgment, or in error. For how could the court know

what sentence to give if it ia not clear^what offence the

jury have found the prisoner guilty of. But s-s. 5 of s. 626

would seem to alter the law in this respect : see 1 Starkie,

Cr. PI. 43 ; E. v. Jones, 2 Moo. 94 ; K. v. Ferguson, Dears.

427; O'Connell v. K, 11 CI. & F. 155.

Though in law the right to charge different felonies in
one indictment cannot be denied, yet, in practice the
court, in such a case, will always oblige the prosecutor to
elect and proceed on one of the charges only : Dickinson's
Quarter Sessions, 190.

But the same offence may be charged in different ways,
in different counts of the same indictment, to meet the
several aspects which it is apprehended the case may
assume in evidence, or in which it may be seen in point of
law, and it is said in Archbold, p. 72 : " Although a prose-

.j.

692

PROCEDURE.

[Sec. G2()

<-':
%■

it;
I

cutor is not, in general, permitted to charcre a defendant
with different felonies in different counts, yet he may charge
the same felony in different ways in several counts in order
to meet the facts of the case; as, for instance, if there be a
doubt whether the goods stolen, or the house in which a
burglary or larceny was committed, be the goods or house
of A. or B., they may be stated in one count as the goods or
house of A., and in another as the goods or house of B. : see
E. V. Egginton, 2 B. & P. 508 ; E. v. Austin, 7 C. & P. 796.
And the verdict may be taken generally on the whole indict-
ment : E. V. Downing, 1 Den. 52. But, inasmuch as the
word 'felony' is not nomen colUctivum (as 'misdemeanour'
is: see Eyalls v. R, 11 Q. B. 781, 795), if the verdict and
judgment, in such case, be against the defendant for * the
felony aforesaid,' it will be bad unless the verdict and judg-
ment be warranted by each count of the indictment":
Campbell v. E., 11 Q. B. 799, 814; see 1 Bishop's Gr. Proc.
449.

In E. V. Sterne, 1 Leach, 473, 2 East P. C. 701, the defend.
ant was charged in two counts with two distinct felonies on
the same facts, and found guilty of a third one that was
included in those charged. In E. v. Audley (Lord), 3 St.
Tr. 401, the prisoner was tried at the same time upon three
indictments for three different felonies : see also E. v. Ker-
shaw, 1 Lewin, 218 ; E. v. School, 26 U. C. Q. B. 212.

Indictments for misdemeanours may contain several
counts for different offences, and, as it seems, though the
judgments upon each be different: Young v. E., 3 T. Pi. 98,
105, 106 ; E. V. Towle, 2 Marsh. 466 ; E. v. Johnson, 3 M.
k S. 539 ; E. v. Kingston, 8 East, 41 ; and see E. v. Ben-
field, 2 Burr. 980 ; E. v. Jones, 2 Camp. 131 ; Dickinson's
Q. S. 190 ; Starkie's Cr. PI. 43 ; E. v. Davies, 5 Cox, 328,
Even where several different persons were chaiged in differ-
ent counts with offences of the same nature, the court held
that it was no ground for a demurrer, though it might be
for an application to the discretion of the court to quash the

[Sec. 6'2()

a defendant
may charge
ints in order
if there be a
e in which a
ods or house
\ the goods or
luse of B. ; see
rC.&P. 796.
whole indict-
smuch as the
lisdemeanour'
le verdict and
idant for ' the
•diet and judg-
indictment " :
ihop's Cr. Proc.

'01,thedefeml-

iinct felonies on
one that was

ly (Lord), 3 St.

ime upon three
also H. V. Ker-
Q. B. 212.
lontain several
18, though the
B.,3T.E.98,
Johnson, 3 M.
. see B. V. Ben-
,1; Dickinson's
ies, 6 Cox, 328.
Uiged indlffer-
, the court held
U it might be
[u't to quash the

Sec. 626]

JOINDER OF COUNTS.

693

indictment : E. v. Kingston, 8 East, 41. Where two
defendants were indicted for a conspiracy and a libel, and
at the close of the case for the prosecution, there was
evidence against both as to the conspiracy but against one
only as to the libel, the judge then put the prosecutor to
elect which charge he would proceed upon : R. v. Murphy,
8 C. & P. 297. On an indictment for conspiracy to defraud
by making false lists of goods destroyed by fire, one set of
counts related to a fire in June, 1864, and another to a fire
in Noveruber, 1864. The prosecution was compelled to elect
which charge of conspiracy should be first tried, and to
confine the evidence wholly to that in the first instance :
E. V. Barry, 4 F. & F. 389. And on an indictment against
the manager and secretary of a joint- stock bank, containing
many counts, some charging that the defendants concurred
in publishing false statements of the afifairs of the bank,
and others that they conspired together to do so, the pro-
secutors were put to elect on which set of counts they
would rely : R. v. Burch, 4 F. & F. 407.

If there be several offenders that commit the same
offence, as if several commit a robbery, or burglary, or
murder, they may be joined in one indictment. And for
separate offences of the same nature several persons may
be indicted in the same indictment if they are indicted
separaliter, severally, so that twenty persons may be
indicted for keeping twenty different disorderly houses ; 2
Hale, 173. In fact, formerly, in the criminal courts, there
was only one indictment against all the prisoners ; the
jury at the end of the day retired and considered all the
cases they had heard during the day, and then gave all the
verdicts in the different cases together ; i>er Denman, C.J.,
m R. V. Newton, 3 Cox, 492 ; and per Alderson, B., in R.
V. Downing, 1 Den. 52.

Counts for different misdemeanours on which the judg-
ment is of the same nature may be joined in the same
iudictment, and on such counts judgment may, and indeed

.^'B

694

PROCEDURE.

[Sec. 626

't i?

i^ii

ought to be, separately entered : R. v. Orton, 14 Cox, 436,
546; E. V. Brndlangh, 15 Cox, 217.

Counts for different misdemeanours of the same class
may be joined in the same indictment : E. v. Abrahams,
24 L. C. J. 325.

Although, in general, it is not permitted to include two
different felonies under different counts of an indictment,
yet the same offence may be charged in different ways in
different counts of the same indictment. Thus, in. the first
count the accused may be charged with having stolen
wood belonging to A., and in a'lother with having stolen
wood belonging to B.: E. v. Falkner, 7 E. L. 544.

If an assault is on two or more persons, or if by one act
any one steals various articles, whether belonging to the
same person or the property of two or more persons, or
kills or wounds more than one, the offence may be charged
as one in the indictment, in the same count : E. v. Ben-
field, 2 Burr. 980 ; form in 3 Chit. 823. Though it may
also, perhaps, be charged in different indictments ; see cases
under s. 632 post. See E. v. Devett, 8 C. & P. 689 ; E. v.
Giddins, Car. & M. 634; E. v. Fuller, 1 B. & P. 180;
Lh jham v. E., 9 Cox, 516.

Sub-section 4 of s. 626 is a reproduction of ss. Ill &
134, c. 174, E. S. C. 24 & 25 V. c. 96, ss. 6, 71 (Imp.).

The word "month " therein means a calendar month:
Interpretation Act, c. 1, Eev. Stat.

Section 202, c. 174, E. S. C. has not been re-enacted,
so that the indictment, now, must charge three acts of
stealing. That s. 202 allowed the proof of three acts of
stealing where the indictment charged only one.

The effect of this legislation is to restrain the power of
the court with respect to the doctrine of election. The court
cannot, unless there be special reasons, put the prosecntor
to his election where the indictment charges three acts of
larceny within six months. But on the other hand, the

Sec. 026]

JOINDER OF COUNTS.

695

court ia not bound to put the prosecutor to his election in
other cases, but is left to its discretion, according to the
old practice.

By means of a secret junction pipe with the main of a
gas company, a mill was supplied with gas, which did not
pass through the gas meter, and which was consumed
without being paid for. This continued to be done for
some years. Held, on an indictment for stealing 1,000
cubic feet of gas on a particular day, the entire evidence
might be given, as there was one continuous act of stealing
all the time, and that s. 6 of the Imperial Lavceny Act,
s. 202, of c. 174, R. C. S. as to the prosecutor electing on
three separate takings within six months, did not apply :
R. V. Firth, 11 Cox, 234.

An indictment charged an assistant to a photographer
with stealing on a certain day divers articles belonging to
his employer. It did not appear when the articles were
taken, whether at one or moro times, but only that they
were found in the prisoner's possession on the 17th of
January, 1870, and that one particular article could not
have been taken before March, 1868, but the prosecution
abandoned the case as to this article : Held, that this was
not a case in which the prosecutor should be put to elect
upon which taking to proceed: R. v. Henwood, 11 Cox^
526.

When it appears by the evidence that the felonious
receiving was one continuous act during a certain period
of time, extending over two years, the court will not compel
the prosecutor to elect, even if it be proved that some of
the articles received by the accused were so received at
divers fixed dates extending over more than six montlip,
and on more than three occasions : R. v. Suprani, 13 R. L.
577, 6 L. N. 269.

It seems that, where three acts of larceny are charged
in separate counts there may also be three counts for

,> V

Hi:

iM!

696

PROCEDURE.

[Sec. 020

receiving : E. v. Heywoocl, L. & C. 451. There is no doubt
of that under this Code.

Greaves says : " It frequently happened before this
statute passed, that a servant or clerk stole sundry articles
of small value from his master at different times, and iu
Buch a case it was necessary to prefer separate indictments
for each distinct act of stealing, and on the trial it not sel-
dom happened that the jury, having their attention con-
fined to the theft of a single article of small value, im-
properly acquitted the prisoner on one or more indictments.
The present section remedies these inconveniences, and
places several larcenies from the same person in the same
position as several embezzlements of the property of the
same person, so that the prosecutor may now include three
larcenies of his property committed within the space of six
calendar months in the same indictmeit " : Lord Camp-
bell's Acts, by Greaves, 19.

The indictment need not charge that the subsequent
larcenies were committed within six months after the com-
mission of the first : R. v. Heywood. L. & C. 451. And it
is not necessary, now, that the three acts of stealing should
be from the same person.

JOINDER OF DEFENDANTS-SEPARATE TRIALS.

Two parties accused of the same offence on the same
indictment are not entitled as of right to a separate defence
either in felonies or misdemeanours : R. v. McCouoby, 5
E. L. 746.

In R. V. Littlechild, L. R. 6 Q. B. 293, it was held that
it is in the discretion of the court to grant a separate trial
or not.

In E. V. Gravel {Montreal, Q. B. March, ISr^,) for sub-
ornation of perjury, separate trials were refused, Ramsay,
J. In R. V. Bradlaugh, 15 Cox, 217, for libels, separate
trials were granted. Where several persons are jointly
indicted the judge will not allow a separate trial on the

Sec?. G27, 62S]

SPECIAL INDICTMENTS.

697

ground that the dopositious disclose statements and con-
fessions made by one prisoner implicating another which
are calculated to prejudice the jury, and that there is no
legal evidence disclosed against the other prisoner : R. v.
Blackburn, 6 Cox, 333.

The prosecution has always a right to a separate trial :
1 Bishop, Cr. Pioc. 1034 ; 2 Hawk. c. 41, par. 8.

See, on the question, 1 Chit. C. L. 535 ; 1 Starkie, Cr.
PI. 36 ; 1 Bishop, Cr. Proc. 463, 1018 : 1 Wharton, 433 ;
R. V. Payne, 12 Cox, 118; O'Connell v. E., 11 CI. & F.
155.

For conspiracy and riot there can be no severance of
trial : 1 Wharton, 434 ; Starkie's Cr. PI. 26, et seq.

Each count must by itself disclose an oflfence, and the
allegations in one count cannot help the other counts : R.
V. Samuels. 16 R. L. 576.

Accessories After the Fact and Receivers. (Amended).

0St7. Every one charged with being an accessory after the *'act to an
(iffeiice, or with receiving any i)roperty knowing it to have been stolen, may be
iudictecl, whether the principal offender or other party to the offence or person
by whom such property was so obtained has or has not been indicted or
convicted, or is or is not amenable to justice, and such accessory may be
indicted either alone as for a substantive offence or jointly with such principal
or other offender or person.

2. When any property has been stolen any number of receivers at different
tinu'.s of such projierty, or of any part or parts thereof, may be charged with
substanti *e offences in the same indictment, and may be tried together,
wliether the i)erson by whom the property was so obtained is or is not indicted
with th( ni, or is or is not in custody or amenable to justice. R. S. C. c. 174,
«. 133, 13G & 138. 24-25 V. c. 90, ss. 6, 1)1 & 1)3 (Imp.).

See ss 63, 314, 531, & 532, ante ; also, ss. 715, 716,
& 717, post, as to trial of receivers. This enactment
does not seem to apply to the receiving of property obtained
by false pretenses.

After a Previovs Conviction.

628. In any indictment for any indictable offence, committed after a
rrevious conviction or convictions for any indictable offence or offences or for
any offence or offences (and for which a greater punishment may be inflicted
on that account), it shall be sufficient, after charging the subsequent offence, to

P).

698

PROCEDURE.

[Sr-o. 628

state that the offemler was at a certain time and place, or at certain times and
places, convicted of an indictable offence, or of aji offence or offences, as the
case may be, and to Mate (he niib/'ti'ncc and effect on!;/, nmitting the formal fan
itf the indictment and convict! ';i, or of the sumiwirii ennviction, an the case mii'i
he, for the previous offence, without otherwise describing the previous offence or
offences. R. S. C. c. 174, s. V.V.)

See a. 676, })ost, as to trial, and s. 694 as to proof.

This clause is taken from s. 116 of the English Larceny
Act, 24 &2o V. c. 96, s. 37 of the English Coin Act, 24 & 25\.
c. 99, and of s. 9, 34 & 35 V. c. 112. The words in italics are
not in s. 116 of the English Larceny Act but are in s. 37
of the Coin Act. They clearly take away the necessity,
before existing, of setting out at length the previous
indictment, etc., and of giving in evidence a cojiy of that
indictment.

" The proceedings on the arraignment and trial are to be
as follows ; {see s. 676, j^ost) :

" The defendant is first to be arraigned on that pait
only of the indictment which charges the subsequent
offence ; that is to say, he is to be asked whether he be
guilty or not guilty of that offence. If he plead not guilty,
or if the court order a plea of not guilty to be entered for
him, then the' jury are to be charged in the first instance to
try the subsequent offence only. If they acquit of that
offence the case is at an end ; but if they find him guilty
of the subsequent offence, or if he plead guilty to it on
arraignment, then the defendant is to be asked whether he
has been previously convicted as alleged, and if he admit
that he has he may be sentenced accordingly ; but if he
deny it, or stand mute of malice, or will not answer directly
to such question, then the jury are to be charged to try
whether he has been so previously convicted, and this may
be done without swearing them again, and then the previous
conviction is to be proved in the same manner as before
this Act passed."

" The proviso as to giving evidence of the previous con-
viction if the prisoner gives evidence of his good character
remains unaltered " : Greaven' notr:

[Sc-o. 628

Sec. 628]

SPECIAL INDICTMENTS.

699

at certain times and
;e tir otfences, as the
ttinrj the formal f (IK
tion, as the casn im>i
le previous otfence or

i to proof,
jinglish Larceny
aAct,24&'J5V.
)rd8 in italics are
but are in s. 37
y the necessity,
ih the previous
B a copy of that

ud trial are to be

;ned on that part
, the subsequent
\ whether he be
plead not guilty,
to be enteretl for
e first instance to
ly acquit of that
^ find him guilty
d guilty to it on
asked whether be

and if he admit
fJingly ; but if he

it answer directly
le charged to try
|ted, and this may

then the previous
Imanner as before

I the previous cou-
lis good character

See R. V. Martin, 11 Coy ^3; R. v. Thomas, 13 Cox,
52; R. V. Harley, 8 L. C. J. 280 ; form of indictment under
8. 837, p. 379 ante, and Greaves' note, in 2nd edit, of this
work, p. 754.

In R. V. Clark, Dears. 198, it was held that any number
of previous convictions may be alleged in the same indict-
ment, and, if necessary, proved against the prisoner; by the
aforesaid section this is undoubtedly also allowed.

In R. V. Fox, 10 Cox, 502, upon a writ of error by the
Crown to increase the sentence, the Irish court of criminal
appeal perceived that it appeared from the record that the
provisions of s. 116 of the Larceny Act, under which the
indictment had been tried, as to the arraigning of the
prisoner, etc., had been neglected, and, thereupon, quashed
the conviction.

In R. v. Spencer, 1 C. & K. 159, it was held that the
indictment need not state the judgment, but the introduc-
tion of the words given in italics supra, in clause 628, seems
to require the statement of the judgment. It will certainly
be more prudent to allege it.

The certificate, s. 694, must state that judgment was
f;iven for the previous otfence and not merely that the
prisoner was convicted : R. v. Ackroyd, 1 C. & K. 158 ; R. v.
Stonnell, 1 Cox, 142; for the judgment might have been
arrested, and the statute says the certificate is to contain
the substance and efect of the indictment and conviction
for the previous offence ; until the sentence there is no
perfect conviction.

At common law a subsequent offence is not punishable
more severely than a first otfence ; it is only when a statute
declares that a punishment may be greater after a previous
conviction that this clause 628 applies. So in an indict-
ment for a misdemeanour, as for obtaining money by false
pretenses,a previous conviction for felony cannot be charged:
Pi. V. Garland, 11 (]ox, 224. And then this clause does not
prevent the prosecution from disregarding, if it chooses, the

.»v

>1[

700

PROCEDURE.

[Sec. fi2S

fact of a previous conviction and from proceeding as for a
first offence. But the court cannot take any notice of a
previous conviction, unless it were alleged in the indictmelit
and duly proved on the trial, for giving a greater punish-
ment than allowed by law for the first offence : E. v.
Summers, 11 Cox, 2i8; R. v. Willis, 12 Cox, 192.

To complete the proof required on a previous conviction
charged in the indictment, when the prisoner does not
admit it, it must be proved that he is the same person that
is mentioned in the certificate produced, but it is not
necessary for this to call any witness that was present at
the former trial ; it is sufficient to prove that the defendant
18 the person who underwent the sentence mentioned in the
certificate : E. v. Crofts, 9 C. & P. 219 ; 2 Russ. 322.

By s. 676, 2^081, it is enacted that if upon such a trial
for a subsequent offence, the defendant gives evidence of
his good character, it shall be lawful for the prosecutor to
give in reply evidence of the previoua conviction before the
verdict on the subsequent offence is returned, and then the
previous conviction forms part of the case for the jury ou
the subsequent offence.

It has been held on this proviso that if the prisoner
cross-examines the prosecution's witnesses, to show that he
has a good character, the previous conviction may be
proved in reply : R. v. Gadbury, 8 C. & P. 676.

This doctrine was confirmed in R. v. Shrimpton, 2 Den,
819, where Lord Campbell, C.J., delivering the judgment
of the court, said: "It seems to me to be the natural and
necessary interpretation to be put upon the words of the
proviso in the statute, that if, whether by himself or by
his counsel, the prisoner attempts to prove a good character,
either directly, by calling witnesses, or indirectly, by cross-
examining the witnesses for the Crown, it is lawful for the
prosecutor to give the previous conviction in evidence for
the consideration of the jury." In the course of the argu-
ment Lord Campbell said that, however, he would not admit

[Sec. 028

ceding as for a
tny notice of a
the intlictmeht
greater luinisb-
offence : Pv. v.
»x, 192.

vious conviction
isoner does not
lame person that
i, but it is not
it was present at
lat the defendant
mentioned in the
Russ. 322.
ipon such a ti-ial
gives evidence of
the prosecutor to
iviction before the
|aed, and then the
le for the jury ou

it if the prisoner
B8, to show that he
[nviction may be

676.
Rhrimpton, 2 Den.
Ing the judgment
the natural and
the words of the
|by himself or by
. a good character,
[directly, by cross-
It is lawful for the
|n in evidence for
jurse of the argu-
[e would not admit

Sec. G29] INDICTMENT-PRKLIMINARY OBJECTIONS.

701

evidence of a previous conviction if a witness for the pro-
secution, being asked by the prisoner's counsel some ques-
tion which has no reference to character, should happen to
say something favourable to the prisoner's character.

It is said in 2 Euss. 354: "It ia obvious, that where
the prisoner gives evidence of his good character the proper
course is for the prosecutor to require the officer of the
court to charge the jury with the previous conviction, and
then to put in the certificate and prove the identity of the
prisoner in the usual way. If the prisoner gives such
evidence during the course of the case for the prosecution
then this should be done before the case for the prosecu-
tion closes; but if the evidence of character is given after
the case for the prosecution closes then the previous con-
viction must be proved in reply." See a. 952, post, as to
punishment in certain cases.

PUi.'.miNAUY OiMFX'TioNX TO IsuicT-MEXT. {Amended).

039. Every objection to any indictment for any defect apparent on the
face thereof shall bo taken by denuirrer, or motion to (luash the indictment,
liffdie the defendant has pleaded, and not afterwards, ixccpt bi/ leave of the

' ()»• Jwliie btf'ire whi'ia the tritd likt.t plncc, and evory court before which
iiivsucli objection is taken may, if it is thought necessary, cause the indict-
iii.nt to b<' fortlnvith ami-ndt'd in such particular by son-o officer of the court
.,r other person, and thereut)on the trial shall proceed as if no such defect had
apiieait (1 ; and no motitm in arrest of j'ulgmcnt shall be allowed for any defect
ill the iiidietiiient which might have W. i taken advantap^e of by demurrer, or
auiriuled under the authority of this Act. R. S. C. e. 174, s. 143.

The words in italics are new and, it seems, relate to an
objection taken at the irial, and must be read in connec-
tion with s. 12d,po8t. S. 733, jjosf, gives the right to move
in arrest of judgment when the indictment {as amended^
Khen amended) does not charge an indictable offence.
"Indictment" defined, s. 3, and includes pleas : see R. v.
Creighton, 19 0. R. 339. "When should a motion to quash
be made? E. v. Chappie, 17 Cox, 455. That case, how-
ever, only applies to defects that are cured by verdict : see
R. V. Howes, 5 Man. L. R. 339.

"It may be observed, that as the power to amend is
vested entirely in the discretion of the courts, a case can-

iff* r

702

PROCEDURE.

[Sec. 02!)

I ':. k

not be reserved under the 11 & 12 V. c. 78 (establishing
the court of Crown cases reserved), as to the propriety of
making an amendment, as that statute only authorizes the
reservation of * a question of law.' If, however, a case
should arise in which the question was, whether the court
had jurisdiction to make a particular amendment — in other
words, whether a particular amendment fell within the
terms of the statiUe, there the court might reserve a cast
for the opinion of tiio judges as to that point, as that
would clearly be a mere question of law " : Lord Camp.
bell's Acts, by Greaves, p. 2.

The Imperial statute, from which this clause is taken,
reads as follows :

** Every objection to any indictment for any formnl
defect apparent on the face thereof shall be taktrn bv
demurrer or motion to quash such indictment he/ore tlte
jury shall be stcorn, and not afterwards ; and every court
before which any such objection shall be taken for aiiij
formal defect may, if it be thought necessary, cause the
indictment to be forthwith amended in such particular bv
some officer of the court or other person, and thereupon
the trial shall proceed as if no such defect had appeared ":
14 & 15 V. c. 100, s. 25.

Greaves says on this clause : " Under this section all
formal objections must be taken before the jury are sworn.
They are no longer open upon a motion in arrest of judj;-
ment or on error. By the common law many formal
defects were amendable : sec 1 Chit. 297, and the cases
there cited ; and it has been the common practice for tlit
grand jury to consent, at the time they were sworu, that
the court should amend matters of form. The power of
amendment, therefore, given in express terms by this
section, seems to be no additional power, but rathe: the
revival of a power that had rarely, if ever, been exercised
of late years."

[Sec. 620

78 (establishing
the propriety of
ly authorizes the
however, a case
,'hether the court
ulment— in other
t fell withiu tlie
ht reserve a case
at point, as that
r " : Lord Camp-
is clause is taken,

nt for any fomnl
ihall be taken by
iUctmeut before the
i ; and every court
I be taken for amj
ecessary, cause the
such particular by
on, and thereupon
ct had appeared":

tier this section all
the jury are sworn.
. in arrest of judg-
law many formal
I297, and the cases
ion practice for the
ty were sworn, that
tm. The power oi
Jess terms by this
Iver, but rathev the
[ever, been exercised

Sec. (120] INDICTMKXT-P'iELIMINAUY OIJJKCTION.S.

708

A motion for arrest of jud<^raent will always avail to
tlie defendant for defects apparent on the face of the indict-
ment, when these defects are such that thereby no otl'ence
in law appears charged against the defendant : II. v. Lynch,
20 L. C. J. 187; s. 783, post. Such an indictment cannot
1)0 aided by verdict, and such defects are not cured by
verdict. As said in R. v. Waters, 1 Den. 35(5 : " There is
a difference between an indictment which is bad for charg-
ing an act which as laid is no crime and an indictment
which is bad for charging a crime defectively ; the latter
may be aided by verdict, the former cannot."

If the indictment charges no ofTence there can be no
waiver of the objection to it. It is void. Even where a
statute requires the objection to be taken at an early stage,
or not at all, a conviction on such a defective indictment
cannot be sustained. See E. v. Montminy, p. 077, ante.

Defects in matters of substance are not amendable, so
if a material averment is omitted the court cannot allow
the amendment of the indictment by inserting it, for the
very good reason that if uhere is an omission of a material
averment, of an averment without which there is no offence
known to the law charged against the defendant, then,
s'rictly speaking, there is no indictment ; there is nothing
to amend.

In a criminal charge there w no lat'diuh of intention
to include anything more than is charged ; the charge
must be explicit enough to support itself. Per Lord
Mansfield, in II. v. Wheatly, 2 Burr. 1127.

The court cannot look to what the prosecutor intended
to charge the defendant with ; it can only look to what he
has charged him with. And this charge, fully and clearly
defined, of a crime or offence known to the law, the indict-
ment as returned by the grand jury must contain. If the
indictment as found by the grand jury does not contain
such a charge, the defect is fatal ; if the grand jury has
not charged the defendant with a crime it will not be

704

PROCEDURE.

[Sec. 62i>

allowed, at a later period of the case, to amend the indict-
ment so aa to make it charge one. (Subject now to amend-
ments at the trial under s. 723, post)

It must not be forgotten that when the clerk of the
court, on the grand jury returning the bill, asked them to
agree that the court should amend matters of form in the
indictment, the grand jury gave their assent, but on the
express condition that no matter of substance should be
altered. Who are the accusers on an indictment? The
grand jury, and to their accusation only has the prisoner
to answer. This accusation cannot be changed into
another one, at any time, without the consent of the
accuser: 1 Chit. 298, 324. And if they have brought
against the prisoner an accusation of an offence not known
in law the court cannot turn it into an offence known in
law by adding to the indictment.

This section, though the word " formal " is not in it as
in the English Act, must be interpreted as obliging the
defendant to demur or move to quash before joining issue
for defects apparent on the face of the indictment, ivhich
the court has the power to amend. In cases where the
court has not the power to amend the defect or omission
the motion for arrest of judgment will avail to the defendant
as heretofore. And this clause itself supposes cases where
the court has not the power to amend, when it says that :
" No motion in arrest for judgment shall be allowed for
any defect in the indictment which might have been taken
advantage of by demurrer, or amended under the authority
of this Act" giving it clearly to be- understood that a
" motion for arrest of judgment shall be allowed for any
defect in the indictment which could not have been taken
advantage of by demurrer or amended under the authority
of this Act," leaving the question reduced to : What are the
amendments allowed under the authority of this Act!
Which can be, it seems, very < asily answered. Of course
this clause has no reference to the amendments allowed on

Sec. 629] INDICTMENT— PRELIMINARY OBJECTIONS.

705

jnd the indict-
now to amend-

le clerk of the
asked them to
, of form in the
mt, but on the
tance should be
lictment? The
las the prisoner
changed into
consent of the
jT have brought
lence not known
)ffence kno\yn in

I " is not in it as
as obliging tbe
'ore joining issue
.dictment, ivhich
cases where the
sfect or omission
to the defendant
lOses cases where ,
„en it says that ;
,1 be allowed for
have been taken
..er the authority
iderstood that a
allowed for any
[have been taken
ler the authority
,o: What are the
[ttj of this Act!-
■red. Of course
tents allowed on

the trial, by s. 723, post Then the only other clause in
the Act relating to amendments is this s. 629. And it does
not authorize amendments in matters of substance or
material to the issue. For instance, heretofore if the word
" feloniously " in an indictment for felony had been
omitted the court could not allow its insertion. This
would have been adding to the o£fence charged by the
grand jury, and a change of its nature and gravity. See
note {a) by Greaves, 1 Ruas. 935 ; R. v. Gray, L. & C. 365.

And in an indictment intended to be for burglary the

word " burglariously," if omitted, could not have been

inserted by amendment. It would have been charging the

defendant with burglary, when the grand jury had not

charged him with that offence. And in England, in au

indictment intended to be for murder, if it is barely alleged

that the mortal stroke was given feloniously, or that the

defendant murdered, etc., without adding of malice afore-

thought, or if it only charges that he killed or slew without

averring that he murdered the deceased, the defendant can

only be convicted of manslaughter : 1 East, P. C. 345 ; 1

Chit. 243; 3 Chit. 737, 751. And why? Because the

offence charged is manslaughter, not murder. And the

court has not the power by any amendment to try for

murder a defendant whom the grand jury has charged with

manslaufihter.

And even in the case of a misdemeanour, on an indict-
ment for obtaining money by false pretenses, if tbe words
''with intent to defratul" are omitted in the indictment
there is no offence "charged, and the court cannot allow
their insertion by amendment : R. v. James, 12 Cox, 127,
jitT Lush, J. See now form under s. 611, ante. So if a
statute makes it an offence to do an act " wilfully " or
" maliciously " the indictment is bad if it does not contain
these words : R. v. Bent, 1 Den. 157 ; R. v. Ryan, 2 Moo.
15 ; R. V. Turner, 1 Moo. 239 ; it does not charge the
defendant with a crime. An amendment which alters the

Cbim. Law — 45

■h

ill

706

PROCEDURE.

[Sec. 629

nature and quality of the offence will not be made : B. v.
Wright, 2 F. ife F. 320.

And whether the defendant takes advantage of m
objection of this nature, or not, makes no difference. Na}v
even after verdict, even without a motion in arrest of
judgment, the court is obliged to arrest the judgment if
the indictment is insufficient: B. v. Wheatly, 2 £urr.
1127 ; 1 Chit. 303 ; E. v. Turner, 1 Moo. 239 ; B. v. Webb,
1 Den. 338 ; see also Sill's Case, Dears. 132.

These omissions are not defects in the sense of this
word as used in this section ; they make the indictment
no indictment at all, or, at least, the indictment charges
the defendant with no crime or offence.

On these principles the Court of Queen's Bench, in
Quebec, decided B. v. Carr, 26 L. C. J. 61.

In that case the indictment was under s. 10, of c. 20,
32 & 33 v., now s. 232, mite, for an attempt to murder.
A verdict of guilty was given, but the court being of
opinion that the indictment was defective on its face, and
that words material to the constitution of the offence
charged were omitted therein, granted a motion to arrest
the judgment and quash the indictment, though the prose.
cutor invoked s. 32 of the Act then in force, now s. 629,
ante, and contended that the prisoner was too late to take
the objection.

Section 629 leaves the law of amendments what it is
at common law. It leaves to the judge the discretion of
allowing or refusing the amendment, and in matter of
substance no such amendment can be allowed. An irregu-
larity may be amendable, but a nullity is incurable, and
it has been held that the court itself, ex proprio motu, will
refuse to try an indictment on which plainly no good jud^'-
ment can be rendered: B. v. Tremearne, B. & M. 147;
B. V. Deacon, B. & M. 27.

The ruling in the case of R. v. Mason, 22 U. C. C. P.
246, is not a contrary decision. The concluding remarks

[Sec. 629

J made : B. v.

vantage oi ai>
fference. Nay,
n in arrest of
he judgment if
eatly, 2 Burr.
9 ; B. V. Webb,

te sense of this
3 the indictment
ictment charges

leen'B Bench, m

•

ers. 10, ofc.20,
,empt to murder.
court being of
on its face, and
of the offer^ce
motion to arrest
hough the prose-
orce, now s. 629,
IS too late to take

dments what it is
) the discretion of
ad in matter of
)wed. Anirregu-
is incurable, and
Iproprto ?Hot«, \\iii
Inly no good judg-
^e, B. »& M. 147;

lon.22U.C.C.P.
Including remarks

Sec. 629] INDICTMENT-PRELIMINARY OBJECTIONS.

707

of Gwynne, J., show that the coart in that case did not
hold that no arrest of judgment or reversal on error
should, in any case, be granted for any defect whatever
in the indictment apparent on the face thereof. What
can be gathered from these remarks, taken together with
those of Hagarty, C.J., is, that it was there held that
the objections taken would not have been good grounds
of demurrer, or that if they had been raised by demurrer
the court would have had the power to amend the indict^
ment in such particulars, and that, therefore, the defend-^
ant was too late to raise these objections after verdict.
And this ruling was perfectly right.

As remarked, ante, if the defect is one which the court

{•or ' ".mend the objection must be taken in limine litis',

a . ' f not guilty may then be a waiver of the right to

taiie advantage of such a defect. But if the indictment i»

defective in a matter of substance a plea of not guilty

ia no waiver. Nay, more, a plea of guilty is no waiver, and

does not prevent the defendant from taking exceptions in

arrest of judgment to defects apparent on the record : 1

Chit. 431; 2 Hawk. 466; E. v. Brown, 24 Q. B. D. 357.

The court, as said before, cannot allow an amendment

adding, for instance, to the offence charged, or having the

effect to make the indictment charge an offence where none,

in law, was charged, or to change the nature of the offence

charged by the grand jury, and the statute obliges to

demur or move to quash before plea only for objections.

based on amendable defects.

It is true, as remarked by one of the learned judges in IT.
V. Mason, that the last part of this clause of our statute, tak-
ing away, in express words, the motion in arrest of judg-
ment, is not in the Imperial statute ; but it will be seen,
ante, that Mr. Greaves, who framed the English clause, is
of opinion that even without these words it has the same
effect; the words, and not afterwards, in the English Act>
cannot be interpreted otherwise : see s. 733, post.

m 4

'A 4

«*
^ J

708

PROCEDURE.

[Sec. 629

Another difference between the two Acts consists in the
words, before the defendant has pleaded, in the Canadian
Act, instead of, before the jury shall he sworn, in the Eng-
lish one. This is not an important change, however. In
«,\] cases a demurrer must be pleaded before the plea of
■*' not guilty," though the same may not strictly be said of
the motion to quash : E. v. Heane, 9 Cox, 433. And the
judge may allow a plea of " not guilty " to be withdrawn
in order to give the defendant his right to demur or move
to quash for any substantial defect. See cases under s.
657, post

Greaves' Note, MSS., on the foregoing remarks as con-
tained in first edition : "I altogether concur in the remarks
on the omission of * formal ' before ' defect ' in the 14 & 15
v. c. 100, s. 25. If construed according to the terms under
the new clause a man might be hanged for what was really
no crime, because he was too ignorant to perceive the
defect in the statement of the offence in due time."

If the indictment does not charge any o£fence the court
cannot amend it so as to make it charge an offence : E. v.
Norton, 16 Cox, 59 ; see E. v. Flynn, 2 P. & B. (N.B.) 321.

Indictments may be signed by the clerk of the crown, or
by a counsel prosecuting for the crown *' for and in the
name of the Attorney-General of the province": E. v. Grant,
2 L. C. L. J. 276 ; E. v. Downey, 13 L. C. J. 193 ; E. v.
Ouellette, 7 E. L. 222 ; E. v. Eegnier, Eamsay 's App. Gas. 188.

A defective indictment may be quashed on motion as
well as on demurrer : E. v. Bathgate, 13 L. C. J. 299 : see
E. v. Eyland, L. E. 1 C. C. E. 99 ; E. v. Belyea, James
(N.S.) 220.

Everything that is necessary to constitute the offence
must be alleged in the indictment : E. v. Bourdon, 2 E. L.
713. See Bishop, 1 Cr. Proc. 98, 124.

On an indictment for defrauding a bank the indict-
ment was amended by adding the words "a body cor-
porate": E. V. Paquet, 2 L. N. 140.

Sec 629] INDICTMENT -PRELIMINARY OBJECTIONS.

70D

Defendant was indicted as mistress of a certain girl
called Marie. At the trial the indictment was amended
by striking out that she was such mistress, and inserting
the girl's right name: E. v. Bissonette, 23 L. C. J. 249.
See also K. v. Leonard, 3 L. N. 138.

A.n indictment for perjury, based on an oath alleged to
have been made before the " judge of the general sessions
of the peace in and for the said district" instead of "before
the judge of the sessions of the peace in and for the city" of
Montreal," may be amended after plea : R. v. Pelletier, 15
L. C. J. 146.

It is not a misjoinder of counts to add allegations of a
previous conviction for misdemeanour as counts to a count
for larceny; and the question, at all events, can only be
raised by demurrer or motion to quash the indictment,
under 32 & 33 V. c. 29, s. 32, s. 629, ante. And where there
has been a demurrer to such allegations as insufficient in
law, and judgment in favour of the prisoner, but he is con-
victed on the felony count, a court of error will not re-open
the matter on the suggestion that there is a misjoinder of
counts : where a prisoner arraigned on such an indictment
pleads " not guilty " and is tried at a subsequent assize
when the count for larceny only is read to the jury : Held
no error, as the prisoner was given in charge on the lar-
ceny count only : R. v. Mason, 22 U. C. C. P. 246.

Defendant was convicted on an indictment charging him
with felonioaaly receiving goods of three different persons
(naming them) knowing the same to have been feloniously
stolen : held, that the defendant, having pleaded to the
indictment, could not, in arrest of judgment, object that it
was bad as charging him with receiving goods not alleged
to have been feloniously stolen, as the defect was aided by
the verdict under the Act of 1869, c. 29, s. 32, and the fact
of three different offences being charged in the indictment,
if objectionable at all, could not be taken advantage of after
verdict. An order for an extra jury panel under R. S. (N. S.)

t'f

i:f. i

':■■'![

:■ f-

•i

Iwi

710

PROCEDURE.

[Sec. G30

8d Ser., c. 92, s. 87, is valid although not signed by a
majority of the judges: B. v. Quinn, 1 B. & G. (N. S.)
139»

An indictment charged that the prisoner did steal, take
and carry away, etc., without charging that it was done
feloniously. Before pleading the prisoner's counsel moved
to quash the infdictment. After argument the presiding
judge allowed the indictment to be amended, under 32 & 88
V. c. 20, s. 82, s. 629, ante, by adding the word " felon-
iously." The prisoner was found guilty upon the amended
indictment.

Held, on a case reserved, that the indictment without
the word feloniously was bad and that it was not amend-
able under the said section : B. v. Morrison, 2 P. & B.
(N. B.) 682 ; see B. v. Flynn, 2 P. & B. (N. B.) 321.

Time to Plead.

630. No person prosecuted shall be entitled as of right to traverse or
postpone the trial of any indictment preferred against him in any court, or to
imparl, or to have time allowed him to plead or demur to any such indictment :
Provided always, that if the court before which any iierson is so indicted, upon
the application of such person or otherwise, is of opinion that he ought to be
allowed a further time to plead or demur or to jirepare for his defence, or
otherwise, such court may grant such further time and may adjourn the trial
<tf such person to a future time of the sittings of the court or to the next or
any subsequent session or sittings of the court, and upon such terms, as to bail
or otherwise, as to the court seem meet, and may, in the case of adjournment
to another session or sitting, respite the recognizances of the prosecutor and
witnesses accordingly, in which case the prosecutor and witnesses shall be
bound to attend to prosecute and give evidence at such subsequent session or
sittings without entering into any fresh recognizances for that purpose.
R. S. C. c. 174, 8. 141.

See 8s. 767, 758, 759, post, on special enactments for
Ontario.

Formerly, it was always the practice in felonies to try
the defendant at the same assizes: 1 Chit. C. L. 488; but it
was not customary nor agreeable to the general course of
proceedings, unless by consent of the parties, or where the
defendant was in gaol, to try persons indicted for mis-
demeanours during the same term in which tbey bad
pleaded not guilty or traversed the indictment : 4 Blacks.
851.

Sec. 630]

TRAVERSE, ETC.

711

enactments for

Traverse took its name from the French de trovers,
wb.ich is no other than de tranaverao in Latin, signifying
on the other side; because as the indictment on^the one side
cbarg^th the party, so he, on the other side, cometh in to
discharge himself.

The word traverse is only applied to an issue taken upon
an indictment f'^r r isdemeanour; and '^. ~hould rather
Beom applicab ^^o i- fact of putting ou the trial till a
following sessions or assizes, then to the joining of the
issue ; and therefore, perhaps, the derivation is from the
meaning of the word transverto, which, in barbarous Latin,
is to go over, i. e., to go from one sessions, etc., to another,
and thus it is that the officer of the court asks the party
whether he be ready to try then, or will traverse over to the
next sessions, etc., but the issue is joined immediately by
pleading not guilty : 6 Burn, 1019.

To traverse properly signifies the general issue or plea
of not guilty : 4 Stephens' Comm. 419.

To imparl is to have license to settle a litigation
amicably, to obtain delay for adjustment: Wharton's Law
Lexicon, verbo *' imparl.**

The above 8. 630 is taken from the 60 Geo. IIL & 1
Geo. IV. c. 4, ss. 1 «& 2, and the 14 & 15 V. c. 100, s. 27.

. On the 14 & 15 V. c. 100, s. 27, Greaves says: —

" This section is intended wholly to do away with
traverses, which were found to occasion much injustice. A
malicious prosecutor could formerly get a bill for any frivol-
ous assault found by the grand jury, and cause the defendant
to be apprehended during the sitting of the court; and
then he was obliged to traverse till the next session or
assizes, as he could not compel the prosecutor to try the
case at the sessions or assizes at which the bill was found.
Tbis led to the expense of the traverse-book and sundry
fees, which operated as a great hardship on the defendant,
not uufrequently an innocent person. Again, the defendant,

^Wi

712

PROCEDURE.

[Sec. 630

in many instances, has been able to turn hia right to
traverse into a means of improperly pntting the prosecutor
to expense and inconvenience. The intention of the section
is to abolish traverses altogether, and to put misdemeanours
precisely on the same footing in this respect as felonies.
In felonies, the prisoner has no right to postpone his trial,
but the court, on proper grounds, will always postpone the
trial. Under this section, therefore, no defendant in a case
of misdemeanour can insist on postponing his trial ; but the
court in any case, upon proper grounds being adduced, not
only may, but ought to, order the trial to be postponed. If,
therefore, a witness be absent, or ill, or there has not been
reasonably sufiicient time for the defendant to prepare for
his defence, or there exist any other ground for believing
that the ends of justice will be better answered by the trial
taking place at a future period, the court would exercise a
very sound discretion in postponing the trial accordingly. "
There are several cases in which, upon a proper appli-
cation, the court will put off the trial. And it has been
laid down that no crime is so great, and no proceedings so
instantaneous, but that the trial may be put off if suffi-
cient reasons are adduced to support the application ; but
to grant a postponement of a trial on the ground of the
absence of witnesses, three conditions are necessary ; 1st,
the court must be sati.sfied that the absent witnesses are
material witnesses in the case; 2nd, it must be shown
that the party applying has been guilty of no laches or
neglect in omitting to endeavour to procure the attendance
of these witnesses ; and, 3rd, the court must be satisfied
that there is a reasonable expectation that the attendance
of the witnesses can be procured at the future time to
which it is prayed to put off the trial : B. v. D'Eou, 3 Burr.
1514.

But if an affidavit is given that, on cross-examination,
one of the abaant witnesses for the prosecution who has
been bound over to appear can give material evidence for

Sec. 630]

POSTPONING TRIAL.

'TIS

the prisoner, this is sufficient ground for postponing the
trial, without showing that the defence has made any
endeavour to procure thib witness's attendance as the pri-
soner was justified in believing that, being bound over, the
witness would be present : E. v. Macarthy, Car. & M. 625.

In R. V. Savage, 1 C. & K. 75, the court required an
affidavit stating what points the absent witness was expected
to prove, so as to form an opinion as to the witness being
material or not.

The party making an application to postpone a trial, on
the ground of the absence of a witness, is not bound in his
affidavit to disclose all that the absent witness can testify
to, but he must show that the absent witness is likely to
prove some fact which may be allowed to go to the jury ;
he must; also show the probability of having the witness at
a later term : li. v. Dougall, 18 L. C. J. 85.

The court will postpone until the next assizes the trial
of a prisoner charged with murder, on an affidavit by his
mother that she would be enabled to prove by several wit-
nesses that he was of unsound mind, and that she and her
family were in extreme poverty, and had been unable to
procure the means to produce such witnesses, and that she
had reason to believe that if time were given to her the
requisite funds would be provided : R. v. Langhurst, 10
Cox, 353.

But the affidavit of the prisoner's attorney, setting forth
the information he had received from the mother, is
insufficient : Idem.

Upon an indictment for a murder recently committed
the court will postpone the trial, upon the affidavit of Ihe
prisoner's attorney that he had not had sufficient time to
prepare for the defence, the affidavit suggesting the possi-
bility of a good ground of defence : R. v. Taylor, 11 Cox,

■f'h

714

PROCEDURE.

[Sec. C31

If the applioafcion is made by the defendant, he shall be
remanded and detained in custody until the next assizes
or sessions ; but where the application is made by the
prosecutor, it is in the discretion of the court either, ou
consideration of the circumstances of each particular case,
to detain the defendant in custody, or admit him to bail,
or to discharge him on his own recognizance : R. v. Beard-
more, 7 C. & P. 497 ; E. v. Parish, 7 C. & P. 782 ; E. v.
Osborn, 7 C. & P. 799 ; R. v. Bridgman, Car. & M. 271.
But, as a general rule, after a bill has been found, if the
offence be of a serious nature, the court will not admit the
prisoner to bail r R. v. Chapman, 8 C. & P. 568 ; E. v.
Outtridge, 9 C. & P. 228 ; R. v. Owen, 9 C. «& P. 83 ; E. v
Bowen, 9 C. & P. 509 ; 5 Burn, 1032.

The production of fresh evidence on behalf of the prose-
cution (not known or forthcoming at the preliminary
investigation, and not communicated to the defence a
reasonable time before the trial) may be a ground for
postponing the trial, on the request of the defenc-e, if it
appears necessary to justice : R. v. Flannagan, 15 Cox,
403.

On the finding of an indictment for perjury application
was made for defendant to appear by counsel and plead :
Held, that he should submit to the jurisdiction of the
court, and appear himself, before he can be allowed to take
any proceedings therein : R. v. Maxwell, 10 L. C. E. 45.

AuTHEKOis Acquit, Etc. {Amended).

031« The following speoial pleas and no others may be pleaded according
to the provisions hereinafter contained, that is to say, a plea of autrefois acquit,
« plea of autrcfoia convict, a plea of pardon, and such pleas in oases of defama-
tory libel as are hereinafter mentioned.

2. All other flfrounds of defence may be relied on under the plea of not
guilty.

3. The pleas of autrefois acquit, autrefois convict, and pardon may be
pleaded together, and if pleaded shall be disposed of before the accused is
called on to plead further ; and if every such plea is disposed of against tlie
accused he shall be allowed to plead not guilty.

4. In any plea of autrefois acquit or niUrefois convict it shall be sufficient
for the accused to state that he has been lawfully acquitted or convicted, as

Sees. 632, 633]

AUTREFOIS ACQUIT, ETC.

715

L under the plea of not

the case may be, of the offence charged in the count or rounta to which sucli
{ika itt pleaded, indicating the time and place of such acquittal, or conviction.
R. S. C. 0. 174, 8. 146.

5. "'n the trial of an issue on a plea of autrefois nequit or autrefois convict
to any count or counts, if it api^ar that the matter on which the accused was
given in charge on the former trial is the same in whole or in part as that on
which it is proposed to give him in charge, and that he might on the former
trial, if all proper amendments had been made which mi'jht then have been viade,
have been convicted of all the offences of which he may be convicted on the
count or counts to which such plea is pleaded, the court shall give judgment
that he be discharged from such count or counts.

G. If it appear that the accused might un the funner trial have been con-
victed of any offence of which he might bo convicted on the count or counts to
which such plea is pleaded, but that he may be convicted on any such count or
counts of some offence or offences of which he could not have been convicted
on the former trial, the court shall direct that he shall not bo convicted on any
such count or counts ot any offence of whioh he might have been convicted on
the former trial, but that he shall plead over as to the other offence or offences
charped.

63S. On the trial of an issue on a plea of autrefois acquit or convict the
dejiositions transmitted to the court on the former trial, together with the judge's
(iiui official stenographer's notes if available, and the depositions transmitted to
the court on the subsequent charge, shall be admissible in evidence to prove or
disprove the identity of the charges. See ss. 694 Sc, 720, post,

03%. When an indictment charges substantially the same offence as that
cliarged in the indictment on which the accused was given in charge on a
former trial, but adds a statement of intention or circumstances of aggravation
tending if proved to increase the punishment, the previous acquUtal or convic-
tion sliall bea bar to such subsequent indictment.

2. A previous conviction or acquittal on an indictment for muvder shall be
a bar to a second indictment for the same homicide charging it as manslaughter ;
and a previous conviction or acquittal on an indictment for manslaughter shall
III' a bar to a second indictment for the same homicide charging it as murder.

The wurds in italics in the fifth line of s-s. 5 of s. 681 and
in the second line of s. 632 are new. Section G38 seems
open to a construction that would make it an extension
of the law. Sections 799, 821, 866 & 969, post, contain
enactments on acquittals or convictions in special cases as
a bar to all farther proceedings for the same cause.

Sub-section 4 of s. 631 is taken from the 14 k 15 V.
c. 100, 8. 28, of the Imperial Statutes.

It is a sacred maxim of law that **nemo his vexari
debet p'o eadem causa" no man ought to be twice tried, or

.»','

'-} 'i

716

PROCEDURE.

[Sec. 03;{

brought into jeopardy of his life or liberty more than r ice,
for the same offence.

'• This enactment very properly," says Greaves, Lord
Campbell's Acts, 31, " abbreviates the form of pleas of
autrefois acquit and autrefois convict, and renders it unne-
cessary to set forth the previous indictment, and to make
the many averments of identity, and so forth, which were
requisite before the passing of this statute."

These pleas are of the class called special pleas in bar;
such pleas may be pleaded ore tenna.

The following is the form of a plea of autrefois acquit,
when drawn up in answer to the whole ot the indictment:

" And the said J. S., in his own proper person cometli
into court here, and having heard the said indictment
read, saith, that our said Lady the Queen ought not further
to prosecute tho said indictment against the said J. S., be-
cause he saith that heretofore, to wit, at (describe the court
correrMy) ho, the said J. S., was lawfully acquitted of the
said oflfence charged in the said indictment and this he, the
said J. S., is ready to verify. Wherefore he prays judg-
ment, and that by the court here he may be dismissed and
discharged from the said premises in the present indictment
specified": Archbold, 132.

If there is more than one count in the indictment it is
better to plead to each : R. v. Westley, 11 Cox, 139. By s. 3,
a)iti', the word indictment includes pleas, so that all tho rules
as to amending indictments apply to pleas. The defendant
might before the Code plead over to tho indictment, iu
felonies, at the same time as pleading such special pleas,
but now, under s-s. 3 of s. 631, that cannot be done.

The jury must first determine the plea of former acquit-
tal or conviction. The prisoner has the right of challenge
in the usual way : 2 Hale, P. C. 267d ; E. v. Scott, 1 Leacli,
401. See remarks, post, under s. 667, as to challenges. If
the verdict is in favour of the prisoner, and finds the plea

■':]

Sec. <W3]

AUTREFOIS ACCJUIT, ETC.

717

ecial pleas in bar;

proved, the prisoner is discharged, and the trial is at an
end. If, on the contrary, the jury find the plea " not
proved " and the prisoner then pleads not guilty, they are
chtirged again, if both the prosecutor and the accused do
uot ask for another jury, this time to inquire of the second
issue, i. e., on the plea of not guilty, and the trial proceeds
as if no plea in bar had been pleaded: 1 Chit. 4G1 ; 2 Hale,
255 ; R. V. Knight, L. & C. 378. They then need not be
sworn de novo to try this second issue : R. v. Key, 2 Den.
347. But if both the accused and the prosecutor do not
consent to have the same jury a new jury has to be ehosLH
to try the issue of not guilty; another and quibo sepaidte
trial then takes place : s-s. 6, s. 667 ; R. v. Roche, 1 Leach,
134. Formerly, when such pleas contained the first indict-
ment, with the judgment, etc., detailed at full length li.e
prosecutor could demur to it, and then the court pionotaceu
on that demurrer without the intervention of a jury; but
now, with the general form allowed by the statute, the
prosecutor meets the plea with a general replication,
entered only when the recoid is made up, after trial, th» ugh
not necessarily actually pleaded, and the issue must be
determined by a jury : see R. v. Connell, 6 Cox, 178 ; Arch-
bold, 133 ; note by Greaves, 2 Russ. 161 ; R. v. Tancock, 13
Cox, 217.

This replication and the similiter, (as i- vhich see s.
734, post,) when so entered upon the recoid, may be as
follows :

"And hereupon A. 13., who prosecute.^ for our said Lady
the Queon in this behalf, says thaf by reason of anything
in the said pica of the said J. S. above pleaded in bar to the
present indictment, our said Lady the Queen ought not to
be precluded from prosecuting the said indictment against
the said J. S., because he says that the said J. S. was not
lawfully acquitted of the said ofience charged in the said
indictment, in manner and form as the said J. S. hath
above in his said plea alleged ; and this he, the said A. B.,

; it

k I

If' t

ts!,>V

718

PROCEDURE.

[Sec. G3S

prays may be inquired of by the country. And the said
J. 8. doth, the like."

For a form of plea of autrefois acquit or autrefois con-
vict to one count' only of the indictment see Lord Camp-
bell's Acts, by Greaves, 88 ; R. v. Connell, 6 Cox, 178; R. v.
Bird, 5 Cox, 11.

When any one is indicted for an offence and acquitted
he cannot afterwards be indicted for the same offence,
provided the first indictment were such that he could have
been lawfully convicted on it; and if he be thus indicted
a second time he may plead autrefois acquit, and it will
be a good bar to the indictment. And an acquittal in a
foreign country by a competent tribunal is a bar to an
indictment for the same o£fence in this country : Hutche-
son's Case, note to E. v. Eoche, 1 Leach, 134.

The true test by which the question, whether such a
plea is a sufficient bar in any particular case, may be tried
is whether the evidence necessary to support the second
indictment would have been sufficient to procure a legal
conviction upon the first : E. v. Bulmer, 5 L. N. 92 ; R. v.
Sheen, 2 C. & P. 634 : E. v. Bird, 2 Den. 94 ; E. v. Drury,
3 C. & K. 193 ; E. v. Miles, 1 7 Cox, 9 ; Eyley v. Brown, 17
Cox, 79; though in E. v. Gilmore, 15 Cox, 85, some doubt
has been thrown on the accuracy of that proposition.

Thus, an acquittal upon an indictment for burglary
and larceny may be pleaded to an indictment for a larceny
of the same goods, because upon the former indictment the
defendant might have been convicted of the larceny. But
if the first indictment were for a burglary, with intent to
commit a larceny, and did not charge an actual larceny,
an acquittal on it would not be a bar to a subsequent indict-
ment for the larceny : 2 Hale, 245 ; E. v. Vandercomb, 2
Leach 716; because the defendant could not have been
convicted of the larceny on the first indictment. An
acquittal upon an indictment for murder may be pleaded
in bar of another indictment for manslaughter, because the

[Sec. 633

y. And the said

5 or autrefois con-
t »ee Lord Camp-
1, 6 Cox, 178; E. v.

nee and acquitted
he same offence,
;hat he could have
) be thus indicted
icquit, and it will
an acquittal in a
1 is a bar to an
country: Hutche-
134.

I, whether such a
jase, may be tried
ipport the second
bo procure a legal
5 L.N. 92; Rv.
. 94 ; R. V. Drury,
yley v. Brown, 17
i, 85, some doubt
proposition.

lent for burglary
aent for a larceny
ler indictment the
the larceny. But
•y, with intent to
n actual larceny,
lubsequent indict-
V. Vandercomb, 2
d not have been
indictment. An
r may be pleaded
jhter, because the

defeii(Jan6 could be convicted nf fi,
first indictment. So. an acouilnf '"'"'^'»-'«'>'« on th,
manslanghter i,, it UenirHar T" "''."*''«'»»' '»,
murder, for they differ only to d«^ ot? ""'"'"ment for

on the previous todicfment , m TTl^ "' "■" ''"^"■P^
murder of a child is a bar'to ,„ • ^j° : ^"""^ai'telforthe
*o birth of the aame cMd Z ""'"""»°« ^r concealing
Wenclant upon the firriS«,^, '" ''\ P^. *bf

victed under s. 718, «o.t .»„„?, ""«•" •"»'« been cop
W this assault: R. V^tmits:' U Vt'^^""^ '■"'■«"'»
So, also, a neraon .'n^; * ^ * * V- J5. 652.

•«»ult with intent to colmU 7 „ V"'"'*'' '» ''»
indicted for larceny and "con m.^ "' ""^ » P'^n
■nftedonthesamefacTsforobu -"r ""«"'"<'» be
anJ » person todicted fo/obtai^to ' ^f ^/ '"'' ^"^<'^^-
aeqmtted may afterwards be ntr*' /.'""' ?"'«»»«» ^i
«" facts, as ss. 196-198 of 'T74 R 1 'n '""""^ »" '"»
"•enacted : R. v. Henderson 2 aI ,t °- ^^"^ "«" been
» 't 2 Buss. 65; Stepb ™' Hi^"".'"? "'"^ «"«"« «"<.
fe Pars. 15, 16 . R „ 1 7 ^'■- 1- 162 •• 2 Tavln,

»f « in ai/m'ant X^reivinr; ^ " » ™° "»
««t afterwards be prosecuted °^ '''''°'' 8~'la. he can-

Ws rule is equally appSe,hf'"."u ""> =»"« f^c* •
•r;«?'h«<lefend^tSlVwrh^^^^ '*'" '•■"''«"»''»'

t20

PROCEDURE.

[Sec. C33

Dann, 1 Moo. 424. See R. v. O'Brien, 16 Cox, 29. Warb.
Lead. Cas. 229, and R. v. Miles, Id. 230. R. v. Gilmoie,
15 Cox, 86, cannot be followed in Canada, because under
8. 713, post, the defendant, in such a case, may be convicted
upon a first charge of the offence subsequently charged in
that case.

But the prisoner must have been put in jeopardy on the
first indictment. If by reason of some defect in the record,
either in the indictment, the place of trial, the process, or
the like, the defendant was not lawfully liable to suffer
judgment for the offence charged against him in the first
indictment, as it stood at the time of the verdict, he has
not been in jeopardy, in the sense which entitles him to
plead the former acquittal or conviction in bar of a subse-
quent indictment: R. v. Drury, 3 C. & K. 193; R. v. Green,
Dears. & B. 113.

" In general," says Starkie, Cr. PI. 320, " where the
original indictment is insufficient no acquittal founded
upon that insufficiency can be available, because the defend-
ant's life was never really placed in jeopardy, and there-
fore the reason for allowing the plea entirely fails."

And 1 Chit. Cr. L. 454, says: "And hence we may
observe that the great general rule upon this part of the
subject is, that the previous indictment must have been
one upon which the defendant could legally have been
convicted, upon which his life or liberty was not merely in
imaginary but in actual danger, and consequently in which
there was no material error . . . Upon the same principle,
where the defendant was acquitted merely on some error of
indictment, or variance in the recitals, he may be indicted
again upon the same charge, for the first proceedings were
merely nugatory. Thus, if an indictment for larceny lay
the property in the goods in the wrong person the party
may be acquitted, and afterwards tried on another, stating
it to be the property of the legal owner."

[Sec. G33

OX, 29. Wavb.
:i. V. Gilmore,
aecause under
y be convicted
tly charged in

eopardyontbe
t in the record,
the process, or
iable to suffer
lim in the first
verdict, he has
entitles him to
bar of a subse-
93; R. V.Green.

20, " where tbe
iquittal founded
sause the deiend-

,rdy, and there-

ly fails."

hence we may
this part of tbe
|must have been
Tally have been
18 not merely in
luently in which
same principle,
pn some error of
[may be indicted
proceedings were
for larceny lay
[erson the party
lanother, stating

Sec. 633]

AUTREFOIS ACQUIT, ETC.

721

And even now, that an amendment is allowed in such
a case, and that the court, on the first indictment, might
have substituted the name of the legal owner for the wrong
one first alleged, if the indictment was not, in fact, so
amended, the plea of autrefois acquit cannot be sustained ;
the indictment must be considered as it was, not as it
might have been made ; the court was not bound to amend,
and the indictment to be considered is the indictment upon
which the jury in the first case gave their verdict : B. v.
Green, Dears. & B. 113 ; though it may be contended that
the wording of s-s. 5 of s. 631 may now make a change in
this respect.

An abortive trial without verdict cannot be pleaded as
an acquittal ; thn acquittal, in order to be a*bar, must be
by verdict on a trial. Thus if after the jury are sworn,
and the prisoner given in charge to them, the judge, in
order to prevent a failure of justice by a refusal of a witnela
to give his evidence, or by reason of the non-agreement of
the jury to a verdict, or by reason of the death or such
illness of a juryman as to necessitate the discharge of the
jary before verdict, does so discharge them without coming
to a verdict, in all these and analogous cases the prisoner
must be tried again : R. v. Winsor, 10 Cox, 276, 7 B. & S.
490 ; R. V. Charlesworth, 1 B. & S. 460 ; 1 Burn, 348 ; 2
Russ, 62, note by Greaves ; R. v. Ward, 10 Cox, 673.

A previous summary conviction for an assault is not a
bar to an indictment for manslaughter of the party
assaulted, dead since, founded upon the same facts : R. v.
Morris, 10 Cox, 480; R. v. Friel, 17 Cox, 325.

A person was acquitted of an assault with intent to
murder, but was convicted of an assault with intent to do
grievous bodily harm, and the prosecutor, having subse-
quently died, he was indicted for murder, and it was held
right : R v. Salvi, 10 Cox, 481, note. See The Queen v.
Bozan, 2 Mauritius Decisions 35.

Cbim. Law— 46

i»i

,f ■*

722

PROCEDURE.

[Sec. 633

And these two cases cannot be questioned. There can
never be the crime of murder till the party assaulted dies ;
the crime has no existence, in fact or law, till the death of
the party assaulted. Therefore, it cannot be said that one
is tried for the same crime when he is tried for assault
during the life, and tried for murder after the death, of the
injured party. That new element of the injured person's
death is not merely a supervening aggravation but it
creates a new crime; per Lord Ardmillan, in Stewart's
Case, (Scotland), 5 Irvine, 810. S. 633, ante^ will probably
be held not to apply where the aggravation results from
facts subsequent to the first indictment.

A, man steals twenty pigs at the same time, can he be
charged with twenty larcenies of one pig, in twenty differ-
ent indictments ? . After verdict on the first indictment
can he maintain a plea of autrefois acquit or autrefois con-
vtct in answer to the subsequent indictments ?

It may be said that, in principle, a .man who steals
twenty pigs, at the same time, commits but one larceny,
but one criminal act. Suppose a man steals a bag con-
taining three bushels of potatoes, could he be charged with
three larcenies of one bushel each, in three different indict-
ments, or with two larcenies in two indictments, one of the
bag, and one of the potatoes? Or if a man steals ten
pounds in ten one pound notes, can he be charged in ten
different indictments with ten different larcenies of one
pound ?

Then A., at one shot, murders B. and C, though the
shot was directed at B. only; has he committed one
murder or two murders ? If he is tried for the murder of
B. and acquitted, can he plead autrefois acquit to an indict-
ment charging him with the murder of C. ? Of course
not. He is guilty of two murders.

In all these cases there has been only one criminal act,
only one actual execution of a criminal design, only one
guilty impulse of the mind ; yet, it appears to be settled that

[Sec. 633

d. There can
Bsaulted dies ;
,11 tbe death of
B said that one
led for assault
le death, oi the
ijured person's
■avation but it
n, in Stewart's
ie, will probably
on results from

time, can he be
in twenty differ-
first indictment
or autrefois con-

QtS?

man who steals
but one larceny,
iteals a bag con-
be charged with
[e different indict-
^ments, one of tbe
man steals ten
|e charged in ten
larcenies of one

Id C, though tbe

committed one

Ifor the murder of

cquit to an indict-

(3. ? Of course

lone criminal act,

[design, only one

to be settled that

Sec. 633]

AUTREFOIS ACQUIT, ETC.

723

where several chattels are stolen at the same time, an
acquittal on an indictment for stealing one of them is no
bar to an indictment for stealing another of theno, although
it appear that both were taken by the same act : 8th Bep.
Cr. L. Comm., 5th July, 1845.

" And thus it hath happened," says Hale, vol. 2, p. 245^
" that a man acquitted for stealing the horse hath yet been
arraigned and convicted for stealing the saddle, though both
were done at the same time." And in B. v. Brettel, Gar. &
M. 609, 2 Buss. 60, it was held that where the prisoner had
been convicted of stealing one pig, he might be tried for
stealing another pig at the same time and place ; but as
the prisoner was undergoing his sentence upon the convic-
tion already given against him, the Judge (Oresswell, J.)
thought that the second indictment should be abandoned^
and this was done.

Erie, J., in B. v. Bond, 1 Den. 517, seemed to be of
opinion that one act of taking could not bo two distinct
crimes. He said : " I do not think it necessary in a plea
of autrefois convict^ to allege the identity o! the specific
chattel charged to be taken (under the old form of such
pleas). Suppose the first charge to b''. taking a coat ; the
second, to be taking a pocket-book; autrefois convict
pleaded : parol evidence showing that the pocket-book was.
in the pocket of the coat. I think that I would support the
plea because it would show a previous conviction for the,
same act of taking.'^

But a note by Greaves, 2 Buss. 60, thinks this dictum"
erroneous, and the reporter, in Denison, in a foot note to
the case says : " Qiuere, whether a plea of autrefois acquit
or convict would be supported by mere proof of the same
act of takinfi? Suppose a purse stolen containing ten
sovereigns, five belonging to A., five to B. Two indictments
preferred one charging prisoner with a theft from A., the
other with a theft from B. ; a conviction of the theft from
A. If the same act of taking were the gist of the crime, he

724

PROCEDURE.

[Sec. 633

could plead autrefois convict to the indictment of stealing
from B. It seems that, to support a plea of autrefois con-
vict or acquit, there must be proof of * a taking of the same
thing from the same party at the same time.' "

If, according to this note, in the case where ten sover-
eigns are stolen at one and the same time, in the same
purse, five belonging to A^, five to B., two crimes have
been committed by one act, it follows that in the case of the
stealing of a bag containing potatoes, if the bag belongs to
A., and the potatoes to B., two larcenies may be charged, cue
of the bag and one of the potatoes. See B. v. Ghampueys,
2M. & Rob. 26.

The proof, on a plea of this nature, lies on the defend-
ant, and he is to begin : Archbold, 133 ; 2 Buss. 62, note
by Greaves.

In order to prove a formal acquittal or conviction, if it
took place at a previous session or in a different court, the
prisoner must produce the record regularly drawn up : R.
V. Bowman, 6 G. & P. 101, 337. But if it took place at the
seme assizes, the original indictment, with the notes of the
clbrk of the court upon it, are sufficient evidence : R. v.
Lea, 2 Moo. 9 (called R. v. Parry, in 7 G. &. P. 886).

But see ss. 694, 726, 865 & 866 post. If any issue of
fact as to identity of charges, or of persons, etc., is raised
it must be tried by a jury as in B. v. Lea, 2 Moo. 9. See
8. 690,po8t

Conviction for unlawfully taking girl of sixteen out of
possession of her father not a bar under autrefois convict
to indictment for seduction of same girl : B. v. Smith
19 O.B. 714.

Greaves' MSS. note.—" The nest question is, suppos-
iog the judges of G. G. R. were to hold that evidence bad
been improperly received or rejected, and simply deter-
mined to arrest or reverse the judgment, could the prisoner
be indicted de novo, and tried and convicted for the same

■Sir

Sec. 633]

AUTREFOIS ACQUIT, ETC.

725

offence ? And it is perfectly clear that be could. Nothing,
except a verdict of guilty or not guilty on a valid indict-
ment, and a lawful and still existing judgment on such ver-
dict can afford a bar to another prosecution for the very
same offence. See my note, 2 Buss. 69 et seq. R. v. Winsor,
6 B. & S. 143-7-190 ; 2 Hale, 246 ; Yaux's Case, 4 Rep.
44."

" I have said on a valid indictment. Now an indict-
ment may be either actually valid or valid as against the
crown in some cases ; for a very material distinction exists
between an acquittal and conviction upon a bad indict-
ment. If autrefois acquit be pleaded and the former indict-
ment is bad upon the face of it, tbe plea fails, because the
judgment may and is to be supposed to have been upon that
defect, as it is simply quod eat sine die (3 Inst. 214, 2 Hale,
248, 394). But if a prisoner be convicted and sentenced on
an insufficient indictment a plea of autrefois convict will be
good unless the judgment has been reversed : 2 Hale, 247 ;
ior the judgment could only be given on the verdict. So if
a special verdict be found, and the court erroneously
adjudges it to be no felony, autrefois acquit is a good plea
as long as that judgment is unreversed on error : 2 Hale,
246. And in the case of an acquittal, if the judgment has
been quod eat inde quietus, as the ancient form is in case of
acquittal upon not guilty pleaded, that could never refer
to the defect of tbe indictment,* but to the very matter of
tbe verdict, and the prisoner could not be indicted again
until the judgment had been reversed on error : 2 Hale,
394."

"Whenever a plea of autrefois acquit or convict in the
sbort form allowed by the 14 & 15 V. c. 100, s. 28, is pleaded,
if the former indictment, or other part of the record be bad
on the face of it, the question arises whether the replication
should not set out the record and conclude with a demur-
rer. If tbe objection was the only answer to the plea, it
would seem to be the better course. A jury might in such

■l;

i •

!r'll

,<fj' i

i ■ ;

'V (

726

PROCEDURE.

[Sec. 634

a case err, as they certainly did in E. v. Lea, 1 Moo. 9,
where, against the direction of the judge, and without any
reasonable evidence, they found for the prisoners, and it was
held that the verdict could not be set aside. A judge might
also decide erroneously against the crown ; and, if a ver-
dict passed for the prisoner, there would be great doubt
whether any remedy existed. A case could not be reserved
under the Act, for there would not be any conviction, and
error would not be available, for tlie lormer record could
not appear on the subsequent record, and there is grave
doubt as to a special verdict in such a case. But if judg-
ment were given against the crown on such a replication as I
have suggested, error might remedy the mischief."

•34 . PLEA OF JUSTIFICATION IN CASE OF LIBEL.

See ante, under s. 802, p. 805.

\ i

Sees. 633-639]

CORPORATIONS.

727

]■ I

PART XLVII.

CORPORATIONS.

68S. Every corporation against which a bill of indictment is found at
any court having criminal jurisdiction shall apiiear by attorney in the court in
which such indictment is found and plead or demur thereto. R. S. C. c. 174,

8.155.

See R. V. Birmingham, Warb. Lead. Cas. 33.

030. No writ of certiorari shall be necessary to remove any such indict-
ment into any superior court with the view of compelling the defendant to
plead thereto ; nor shall it be necessary to issue any writ of distringas, or other
process, to compel the defendant to appear and plead to such indictment.
R. S. C. c. 174, 8. 156.

6S7> The prosecutor, when any such indictment is found against a
corporation, or the clerk of the court when such indictment is founded on a
presentment of the gt&nd jury, may cause a notice thereof to be served on the
mayor or chief ofHoer of such corporation, or upon the clerk or secretary thereof,
stating the nature and purport of such indictment, and that, unless such
corporation appears and pleads thereto in two days after the service of such
notice, a plea of not guilty will be entered thereto for the defendant by the
court, and that the trial thereof will be proceeded with in like manner as if the
said corporation had appeared and pleaded thereto. R. S. C. c. 174, s. 157.

038* If such corporation does not appear in the court in which the
indictment has been found, and plead or demur thereto within the time speci-
fied in the said notice, the judge presiding at such court may, on proof to him
by affidavit of the due service of such notice, order the clerk or proper officer
of the court to enter a plea of "not guilty " on behalf of such corporation, and
such plea shall have the same force and effect as if such corporation had
appewed by its attorney and pleaded such plea. R. S. C. c. 174, s. 158.

639. The court may — whether such corporation appears and pleads to
the indictment, or whether a plea of "not guilty " is entered by order of the
court— proceed with the trial of the indictment in the absence of the defendant
in the same manner as if the corporation had appeared at the trial and defended
the same ; and in case of conviction, may award such judgment and take such
other and subsequent proceedings to enforce the same as are applicable to con-
victioni* ."igainst corporations. R, S. C. c. 174, s. 159.

>^>^

i*i

I' ■ J

i {

728

PROCEDURE.

[Sec. 640

PART XLVIII.

PREFERRING INDICTMENT.
Jurisdiction. (J\rew).

640. Every court of criminal jurisdiction in Canada is, subject to the
provisions of Part XLII. (s. 638), competent to try all offences wherever com-
mitted, if the accused is found or apprehended or is in custody within the juris-
diction of such court, or if he has been committed for trial to such court or
ordered to be tried before such court, or before any other court the jurisdiction
of which has by laiqful authority been transferred to such first mentioned court
under any Act for the time being in. force : Provided that nothing in this Act
authorizes any court in one province of Canada to try any person for any
offence comm: 1 entirely in another province, except in the followinf?
case :

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 punished in the province in which he resides, or in which such news-
paper is printed. 61 V. c. 44, s. 2.

This section extends to all cases, the provision hereto-
fore to be found in various statutes that the accused may
be tried in any district where he is apprehended or in
custody: see R. v. Lynch, 20 L. C. J. 187 ; R. v. Smith, 1 F.
& F. 36; R. V. James, 7 C. & P. 563; R. v. Smythies, 1
Den. 498, and note (c) to 1 Ruse. 274. S-s. 2 is given as
an exception to the proviso in s-s. 1. But it is clearly not
an exception to the enactment of that proviso that any
offence committed entirely in one Province shall not be
triable in another Province.

See ante, under s. 542, the Imperial statutory provisions
as to the trial in the colonies of offences committed abroad
or within the jurisdiction of the Admiralty.

The words "wherever committed" in s. 640 must receive
a limited construction, and be read as if the words "in
Canada" were added thereto: Macleod v. The Attorney-
General, 17 Cox, 341, (1891), A.C. 455. Parliament cannot
have intended to legislate on offences committed abroad by
any one, even by foreigners, as this enactment taken

640 must receive

Sec. 641]

MODES OF PROSECUTION.

729

literally vrould infer. The English draft code yraa more
happily worded. It said "eyery court competent to try
offences triable in England or Ireland shall be competent
to try all such offences wherever committed if the accused
is found, etc. What this s. 640 means is, what was meant
by the English draft, namely, that all courts otherwise com-
petent to try an offence shall be competent to try it
irrespectively of the place where it was committed, the
place of trial being determined by the costs and expenses,
the convenience of the court, the witnesses, and the person
accused, the county where the offence was committed, being,
of course, as a general rule, the best place for the purpose :
1 Stephens' Hist. 278. The Code is silent as to what are
the offences committed on the high seas or abroad, on land^
either wholly or partly, that can be tried in Canada : see
remarks under s. 542, ante. The Imperial draft code had
two special articles on the subject, but they have not been
reproduced.

Modes of Prosecution. (New).

64 1< Any one who is bound over to prosecute any person, whether
committed for trial or not, may prefer a bill of indictment for the charge on
which the accused has been committed, or in respect of which the prosecutor
is 80 bound over, or for any charge founded upon the facts or evidence
disclused on the depositions taken before the justice. The accused may at any
time before he is given in charge to the jury apply to the court to quash any
count in the indictment on the ground that it is not founded on such facts or
evidence, and the court shall quash such count if satisfied that it is not so
founded. And if- at any time during the trial it appears to the court that any
count ia not so founded, and that injustice has been or is likely to be done to
the accused in consequence of such count remaining in the indiotuient, the
court may then quash such count and discharge the jury from findiiig any
verdict upon it.

2. The Attorney-General or any one by his direction or any one with the
written consent of a judge of any court of criminal jurisdiction or of the
Attorney-General, may prefer a bill of indictment for any offence before the
grand jury of any court specified in such consent ; and any person may prefer
any bill of indictment before any court of criminal jurisdiction by order of such
court.

3. It shall not be necessary to state such consent or order m the indict-
ment. An objection to an indictment for want of such consent or order must
be taken by motion to quash the indictment before the accused person is given
in charge.

780

PROCEDURE.

[Sec. 041

:ii

4. Save us afurestaid no bill of indictment shall after the commencement of
this Act be preferred in any province in Canada.

The words " Attorney-General " include the Bolicitor-
general : s. 3.

This enactment extends to all offences whatever the
provisions of s. 140, c. 174, R. S C, which applied only to
certain specified offences. The ^rand jury are not now at
liberty to find a bill upon their own knowledge only ; and
the right to go directly before them and prefer a bill against
any one is taken away. No one, as a general rule, is now
liable to be indicted without a preliminary inquiry being
first held before a magistrate. The only exceptions are
those contained in s-s. 2 of the above s. 641. Criminal
informations will lie as heretofore, though there may be
some difficulty to determine in what cases, owing to the
silence of the Code on the subject, the distinction between
felonies and misdemeanours being abolished, and the remedy
by information being given in England only in cases of mis-
demeanours.

By s. 595, ante, if the magistrate dismisses the charge
and refuses to commit or bail the person accused, he is
bound, if required to do so, to take the prosecutor's recog-
nizance to proseciito thu charge • R. v. Lord Mayor, 16
Cox, 77 ; 8ee Ex parte Wason, 38 L. J. Q. B. 802.

This clause 641 forms in England the Acts known as
the "Vexatious Indictments Acts" 22 & 23 V. c. 17;
80 & 31 V. c. 35; 44 & 45 V. c. 60 and 48 & 49 V. c. 69,
and the enactment applies there only to certain specified
offences.

The order of a judge in a court of civil jurisdictioti
ordering any one to be prosecuted for perjury under s. 4 of
c. 164, R. S. C. (unrepealed, see, ante, p. 98) is not covered
by 8-8. 2 of s. 641, as it was by 8. 140 of the Procedure Act.

As to jurisdiction of a state over offences committed
abroad by its own subjects see cases under s. 542, anV;
and Macleod v. Attorney General, 17 Cox, 341, [18911
A.C. 465. The offence committed abroad in that last case

Sec. 641]

MODES OF PROSKCUTION.

7ai

was committed by a British subject, but that fact does not
geem to have been speoially alluded to, or else it was
assumed that a colony has not, in such cases, like the
Imperial Parliament, jurisdiction over offences committed
abroad.

It is not necessary by s-s. 8 that the pe.'ormance of any
of the conditions mentioned in this section should be
averred in the indictment or proved before the petit jury :
Knowlden v. K. (in error) 5 B. & S. 582, 9 Cox, 488;
Boaler v. R. 16 Cox, 488, 21 Q. B. D. 284. When the
inlictment is preferred by the direction in writing of a
judge of competent jurisdiction, it is for the judge to whom
the application is made for such direction to decide what
materials ought to be before him, and it is not necessary to
summon the party accused or to bring him before the judge ;
the court will not interfere with the exercise of the discre-
tion of the judge under this clause : K. v. Bray, 3 B. & S.
255, 9 Cox, 215.

The provisions of the above statute must be complied
with in respect to every count of an indictment to which
they are applicable, and any count in which they have
not been complied with must be quashed, but the motion
to quash need not necessarily be made before plea pleaded :
R. v. Fuidge, L. & C. 390, 9 Cox, 430 ; R. v. Bradlaugh, 15
Cox, 156. So if an indictment contains one count for ob-
tainiog money by false pretenses on the 26th of September,
1878, and another count for obtaining money by false pre-
tenses on the 29th of September, 1878, though the false
pretenses charged be the same in both cases, the second
count must be quashed, if the defendant appears to have
been committed only for the offence of the 26th September,
and if the second offence is not disclosed by the depositions.
Where three persons were committed for conspiracy, and
afterwards the Solicitor>General, acting under this clause,
directed a bill to be preferred against a fourth person, who
had not been committed, and all four were indicted together

I \

mii^

1 1

732

PROCEDURE.

[Seo. 64?'

for the same conspiracy, such a course was held unobjec-
tionable : Knowlden v. B. (in error), 5 B. & S. 532, 9 Cox,.
483. ^

Where it is made clear, either on the face of an indict-
ment or by affidavit, that it has been found without juris-
diction, the court will quf^'^b it on motion of the defendant,
even after he has pleaded : B. v. Heane, 4 6. & S. 947, 9
Cox, 433.

A prosecutor who has required the magistrates to take
his recognizances to prosecute under s. 595 when the
magistrates have refused to commit or to bail for trial the
person charged, must either go on with the prosecution or
have his recognizances forfeited, as it would defeat the ob-
ject of the statute if he was allowed to move to have his
recognizances discharged: B. v. Hargreaves, 2 F. & F.
790.

Held, that where one of the preliminary formalities
mentioned in this section is required, the direction by a
Queen's counsel then acting as crown prosecutor, for and
in the name of the Attorney-General, is not sufficient. The
Attorney-General or Solicitor-General alone can give the
direction t Abrahams v. B., 6 S. C. B. 10 ; B. v. Ford, 14
Q. L. B. 231.

A person heretofore prosecuting under s. 140 of the
Procedure Act had no right to be represented by any other
counsel than the representative of the Attorney-General : B.
V. St. Amour, 5 B. L. 469. As to the interpretation of the
said section : 8««, further, B. v. Bradlaugb, 15 Cox, 156;
also B. V. Bell, 12 Cox, 37 ; B. v. Yates, 15 Cox, 272, and
Yates V. B. 15 Cox, 686.

Coroner's Inquisition. {Ifeio).

043« After the commencement of this Act no one shall be tried upon
any coroner's inquisition.

By s. 668, the coroner cannot now commit any one for
trial. He must send any one charged by his inquest before
a magistrate.

Sees. 643-647]

OATH BEFORE GRAND JURY.

733

U shall be tried upon

Oath Befork Oijand Jury.

643. It shall not be nece»c>ary for any pernon to take an oath in open
court in order to qualify him to give evidence before any grand jury.
R. S. 0. c. 174, 8. 173. ■

044* The foreman of the grand jury or any member of the grand jury
who may, for the time being, act on behalf of the foreman in the examination
of witnesses, may administer an outh to every person who appears before such
grand jury to give evidence in support of any bill of indictment ; and every
such person may be sworn and examined upon oath by such grand jury touch-
ng the -matters in question. R. S. C. c. 174, s. 174.

048. The name of every witress examined, or intended to be examined,
shall be endorsed on the bill of indictment ; and the foreman of the grand
jury, or any member of the grand jury so acting for him, shall write his
initials against the name of each \vitness sworn by him and examined touching
such bill of indictment. R. S. C. c. 174, s. 175.

640* The name of every witness intended to be examined on any bill of
indictment shall be submitted to the grand jury by the officer prosecuting on
behalf of the Crown, and no others shall be examined by or before such grand
jury unless upon the written order of the presiding judge. R. S. C. c. 17^i,
s. 17C.

647< Nothing in this Act shall affect any fees by law payable to any
officer of any court for swearing witnesses, but such fees shall be payable as if
the witnesses had been 8\sorn in oiien court. R. S. C. c 174, s. 177.

Sections 643, 644 & 645 are re-enactments of the
Imperial Act, lU & 20 V. c. 54. S. 646 would, perhaps, be
held not to apply to private prosecutions, sed quaere !

The omission by the foreman to write his initials against
the name of each witness swoin and examined would give
to the prisoner the right, before plea, to ask that the indict-
ment be sent back to the grand jury with a direction to
the foreman to so initial the names of the witnesses exa-
mined. In a case in Illinois, under a similar enactment, it
was held that the statute requiring the foreman of the
grand jury to note on the indictment the names of the
witnesses upon whose evidence the same is found is man-
datory, and that a disregard of this requirement would, no
doubt, be sufficient ground to authorize the court, upon a
inoijei- motion, to quash the indictment : Andrews v. The
People, 117 111., 196.

See Thompson on Juries, 724.

1 1
1 1

734

PROCEDURE.

[Sec. 047

Uudei' s. 629, ante, a motion to quash the indictment
upon such a ground must be made before plea, and upon
such a motion the court would send the indictment back to
the grahd jury to remedy the defect. If the grand jury has
been discharged the indictment, it seems, must be quashed.

With the grand jury's consent the witnesses before
them are examined by the crown prosecutor or clerk of the
crown, or by the private prosecutor or his solicitor. But
' the grand jury must be alone during their deliberations :
1 Chit. 815 ; 3 Burn, 36 ; charge to grand jury, Drummond,
J., 4 R. L. 364 ; Stephen's Cr. Proc. Art. 190; and 1 Hist.
Cr. L. 273, 274.

Not more than twenty-three grand jurors should be
sworij in. But any number from twelve to twenty-three
constitute a legal grand jury. At least twelve of them
must agree to find a true bill. If twelve do not agree, they
must return " not found," or " not a true bill," or " ifjnor-
ajniis" ; this last form, however, is v~t now often used:
4 Stephen's Bl. 375 (10th edit.) ; 1 Chit. 322 ; 2 Burr.
1089 ; 3 Burn, 37 ; R. v. Marsh, 6 A. & E. 236 ; Dickin-
son's Quarter Sess. 183; Stephen's Cr. Proc. Art. 186;
Low's case, 4 Me. 437 ; 1 Whart. Cr. L. pars. 463, 497. In
addressing the grand jury, in Montreal, Queen's Bench.
June Ist, 1893, Wurtele, J., instructed them that to ftnd an
accusation founded or to declare it v/nfounded twelve at
least must concur. The italicized words contain a palpable
error.

The court will not inquire whether the witnesses were
properly sworn before the grand jury : R. v. Russell,
C. & M. 247, but 866 R. v. Dickinson, ])ost.

The court will not receive an affidavit of a grand juror
as to what passed in the grand jury room upon the subject
of the indictment : R. v. Marsh, 6 A. & E. 236; nor allow
one of them to be called as a witness to explain ^he finding :
R. V. Cooke, 8 C. & P. 582.

On the trial of Alexander Gillis for murder, his counsel
called the foreman of the grand jury which found the bill

Sec. 647]

OATH BEFORE GRAND JURY.

735

against him to prove that a witness's evidence before the
grand jury was different from that given by the witness on
the trial. The counsel for the crown objected that a grand
juror could not be allowed to give evidence ot what took
place in the grand jury room : Held, that a grand juror's
obligation to keep secret what transpired before the grand
jury only applied to what took place among the grand
jurors themselves, and did not prevent his beiiJg called to
prove what a witness had said : E. v. Gillis, 6 C. L. T. 203.

On this point, see Taylor, Ev. par. 863. Also, Stephen
Ev., Art. 114, where it is said : " It is also doubtful
whether a grand juror may give evidence as to what any
witness said when examined before the grand jury." See
8. 145, ante, as to perjury committed before a grand jury.

A grand jury cannot on a suspicion that a witness
called before them has been tampered with by the prisoner
receive in evidence his written examination given at the
preliminary investigation for the purpose of finding a bill :
R. v. Denby, 1 Leach, 514.

Depositions not taken in presence of the accused cannot
be submitted to the grand jury : R. v. Carb? j y 13 Q. L. R.
100.

A grand jury have no right to ignore a bill on account
of insanity, either when the offence wag committc:1 or at
the time when the bill is preferred : R. v. Hodges, 8 C. & F.
195.

In R. V. Dickinson, R. & R. 401, it being discovered after
conviction that the witnesses had been examined before the
grand jury without being sworn, the judge thought the
objection came too late, and sentenced the prisoner. Sub-
sequently, without deciding on the validity of the objection,
the judge thought that, as a matter of discretion, it was
better to direct application to be made for a pardon.

As to whether a bill once thrown out by the grand jury
can be submitted de novo during the same term of the

,• f"-

1 '

736

PROCEDURE.

[Sec. 648

court, see B. v. Humphreys, Gar. & M. 601 ; R. v. Newton,
2 M. & Bob. 508. By observing either one or the other of
the preliminary formalities required by s. 641 a new bill
founded on the same facts may, it would seem, be preferred
.during the same term.

Witnesses may be examined before the petit jury whose
names are not on the back of the indictment : .Archbold, 86.

Bench Warrant. {Amended).

OlS* When any ono against whom an indiotmenc has been duly pre-
ferred and has been found, and who ia then at large, does not appear to plead
to such indictment, whether he is under recognizances to appear or not—

(a) the court before which the accused ought to have been tried viay issue a
wmrrant for his apprehension, which may be executed in any part of Canada ;

(6) the officer of the court at which the said indictment is found or (if the
placeior trial has been changed) the officer of the court before which the trial
is to take place, shall, at any time after the time at which the accused ought
to have appeared and pleaded, grant to the prosecutor, upon application made
on his behalf and upon payment of twenty cents, a certificate of such indict-
ment having been found. The certificate may he in the form GG in schedule
one hereto, or to the like effect. Upon production of such certificate to any
justice for the county or place in which the indictment was found, or in which
the accused is or resides or is suspected to be or reside, such justice shall issue
his warrant to apprehend him, and to cause him to be brought before such
justice, or before any other justice for the same county or place, to be dealt
with according to law. The warrant may be in the form HH in schedule one
hereto, or to the like effect.

. 8. If it is proved upon oath before such justice that any one appi-ehended
and brought before him on such warrant is the person charged and named in
such indictment, such justice shall, without further inquiry and examination,
either commit him to prison by a warrant which may be in the form II in
schedule one hereto, or to the like effect, or admit him to bail as in other cases
prcvideH : but if it appears that the accused has without reasonable excuse hmkn
hit recognizance to appear he shaU not in any case be bailable as of right.

3. If it is proved befor . the justice upon oath that any such accused |)erson
is at the time of such application and production of the said certificate a^
aforesaid confined in any prison for any other offence than tiiat charged in the
said indictment, such justice shall issue his warrant directed to the warden or
gaoler of the prison in which such person is then confined as aforesaid, cuui-
manding him to detain him in his custody until by lawful authority he is
removed therefrom. Such warv.int may be in the fonn J J. in schedule one
hereto, or to the like effect. R. S. C. c. 174, ss. 33, 34 & 36. 11 & 12 V. c. 42,
8. 3, Imp. : Arch bold, 89.

[Sec. 648

R. V. Newton,
ir the other of
;41 a new bill
1, be preferred

etit jury whose
: .Archbold, 86.

has been duly pre-
not appear to plead
bppear or not—
een tried may mue a
y part of Canada ;
nt is found or (if the
before which the trial
ich the accused ought
pon application made
ificate of such indict-
form GG in schedule
moh certificate to any
as found, or in which
loh justice shall issue
J, brought before such
[y or place, to be dealt
HH in schedule one

any one apprehended
Icharged and named in
luiry and examination,
be in the form II in
^ bail as in other cases
lamiahk excuse hnkm
ihle <«« of right.
ly such accused i^rson
the said certificate as
Ian that charged in thf
3Cted to the warden or
ined as aforesaid, corn-
lawful authority he is
J J. in schedule one
'k 11&12V.C.12,

Sec. 648]

BENCH WARRANT, ETC.

737

QG.— {Section 648.)

CERTIFICATE OF INDICTMENT BEING FOUND.
Canada, \

Province of , l-

County of .)

I hereby certify that at a i irt of (Oyer and Terminer,
or General Gaol Delivery, or General Sessions of the Peace)
holden in and for the county of , at , in the

said (county), on , a bill of indictment was found by the

grand jury against A. B., therein described as A. B. late of
(labourer), for that he (Sc, stating shortly the offence),.
and that the said A. B. has not appeared or pleaded to the said
indictment.

Dated this day , in the year

Z. X.

(Title of oficer.)

mi..— {Section 648.)

WARRANT TO APPREHEND A PERSON INDICTED.

Canada,
Province of
County of

To all or any of the constables and other peace officers in the.
saiu county of

Whereas it has been duly certified by J. D., clerk of the"
[mmetlw court) {or E. G., deputy clerk of the Crown or clerk of"
tlie peace, or as the case may be), in and for the county of ,,

that {etc., statiny the certificate). These are therefore to com-
mand you m Her Majesty's name forthwith to apprehend the said:
A. B , and to bring him before {me) or some other justice or
justices of the peace in and for the said county to be dealt with
according to law.

Given under my hand and seal, this day of

in the year , at , in the county aforesaid

J. S., [seal.]

J. P., (Name of county.)
Grim. Law— 47

738

PROCEDURE.

[Sec. 048

II.— {Section 648.)

WARRANT OF COMMITMENT OJ A PERSON INDICTED.

Canada, |

Province of , >

County of . )

To all or any of the constables and other peace oflScers in the
said county of , and the keeper of the common

gaol, at , in the said county of

Whereas by a warrant under the hand and seal of ,

(a) justice of the peace in and for the said county of ,

dated , after reciting that it had been certified by J. D.,

(etc., as in the certificate), the said justice of the peace commanded,
all or any of the constables or peace officers of the said county,
in Her Majesty's name, forthwith to apprehend the said A. B.,
.and to bring him before (him) the said justice of the peace or
before some other justice or justices in and for the said county,
to be dealt with according to law ; and whereas the said A. B.
has been apprehended under and by virtue of the said warrant,
and being now brought before (me) it is hereupon duly proved
to [me] upon oath that the said A. B. is the same person who is
named and charged as aforesaid in the said indictment : These
are therefore to command you, the said constables and peace
officers, or any of you, in Her Majesty's name, forthwith to take
and convey the said A. B. to the said common gaol at ,

in the said county of , and there to deliver him to the

keeper thereof, together with this precept ; and (/) hereby com-
mand you the said keeper to receive the said A. B. into your
custody in the said gaol, and him there safely to keep until he
shall th r ce b*. ?.elivered by due course of law.

Givevj under (my) hanri and seal, this day of ,

in the ye at , at , in the county aforesaid.

J. S., [seal.]

J. P., (Xame of count i/.) ■

Sec. 648]

BENCH WARRANT, ETC.

739

J3.— {Section 648.)

WARRANT TO DETAIN PERSON INDICTED WHO IS ALREADY
IN CUSTODY FOR ANOTHER OFFENCE.

Canada, ^

Province of , U

County of J

To the keeper of the common gaol at , in the said county

Whereas it has been duly certified by J. D., clerk of the
(HrtH/f the conrt) {or deputy clerk of the Crown or clerk of the peace
of and for the county of , or as tlie case may he) that {etc., statiwj
the certificate) ; And whereas (/ am) informed that the said A. B.
is in your custody in the said common gaol at aforesaid,

charged with some offence, or other matter ; and it being now
duly proved upon oath before {me) that the said A. B., so indicted
as aforesaid, and the said A. B., in your custody, as aforesaid,
are one and the same person : These are therefore to command
you, in Her Majesty's name, to detain the said A. B. in your
custody in the common gaol aforesaid, until by a writ of habeas
corpus he shall be removed therefrom, for the purpose of being
tried upon the said indictment, or until he shall otherwise be
removed or discharged out of your custody by due course of law.

Given under {my) hand and seal, this day of ,

in the year , at , in the county aforesaid.

J. S., [seal.]

J. P., {Name of county.)

^vC

^^^.^

740

PROCEDURE.

[Sees. 649-C51

111

PART XLIX.

REMOVAL OF PRISONERS-CHANGE OF VENUE.

640. The Governor in Council or the Lieutenant-Governor in Council
of any province may, if, from the insecurity or unfitness of any gaol of any
county or district for the safe custody of prisoners, or for any other cause,
he deems it expedient so to do, order any person charged with, an indictable
offence confined in such gaol or for whose arrest a warrant has been issued, t^
be removed to any other place for safe keeping or to any gaol, which place or
gaol shall be named in such order, there to be detained until discharged in
due course of law, or removed for the purpose of trial 'o the gaol of the county
or district in which the trial is to take place ; and \. copy of such order,
certified by the clerk of the Queen's Privy Council for Canada, or the clerk of
the Executive Council, or by any person acting as such clerk of the Privy
Council or Executive Council, shall be sufficient authority to the sheriffs and
gaolers of the counties or districts respectively named in such order, to deliver
over and to receive the body of any person named in such order. R. S. C.
c. 174, 8. 97.

2. The Governor in Council or a Lieutenant-Governor in Council may, in
any such order, direct the sheriff in whose custody the person to be removed
then is, to convey the said person to tho place or g» .>i in which he is to be
confined, knd in caae of removal to another county or district shall direct the
sheriff or gaoler of such county or district to receive the said person, and to
detain him until he is discharged in due course of law, or is removed for the
purpose of trial to any other county or district. R. S. C. c. 174, s. 98.

3. The Governor in Council or a Lieutenant-Governor in Council may
make an order as hereinbefore provided in respect of any person under
sentence of imprisonment or under sentence of death,— and in the latter case,
the sheriff to whose gaol the prisoner is removed shall obey any direction
given by the said order or by any subsequent order in council, for tiie return
of such prisoner to the custody of the sheriff by whom the sentence is to be
executed. R. S. C. c. 174, s. 100.

630. If after such removal a tame bill for any indictable offence is
returned by any grand jury of the county or district from which any such
person is removed, against any such person, thecourt into which such tnie bill
is returned, may make an order for the removal of such jmrson. from the (fool
in which he is then confined, to the gaol of the county or district in which
such court is sitting, for the purpose of his being tried in such county or dis-
trict. R. S. C. c. 174, 3. 99.

Change ok Ve.\ce.

Otil* Whenever it api^ears to the satisfaction of the court or judge
hereinafter mentioned, that it is expedient to the ends f)f justice that the trial
of any person charged with an indictable offence should be held in some Hi-

[Sees. 649-G51

Sec. 651]

CHANGE OF VENUE.

741

VENUE.

rovemor in Council
ot any gaol of any
n any other cause,
I with an indictable

has been issued, tg
jaol, which place or

until discharged in
le gaol of the county
copy of such order,
nada, or the clerk of
I clerk of the Privy
y to the sheriffs and
mch order, to deliver
uch order. R. S. C.

or in Council may, in
person to be removed
in which he is to be
itrict shall direct the
le said person, and to
|or is removed for the
c. 174, 8. 98.
•nor in Council may
if any person under
ind in the latter case,
ll obey any direction
luncil, for the return
the senUnce is to be

lindictable offence is

om which any such

J which 8\ich tnie bill

^.erson. from the t'cul

or district in wliich

I such county or dis-

1 the court or judge
justice that the trial
bii held in some dis-

trict, county or place other than that in which the offence is supposed to have
been committed, or would otherwise be triable, the court lt>efore which such
j)er8on is or is liable to Ixj indicted may, at any term or sitting thereof, and
any judge whtj might hold or sit in such court may, at a.iy other time, either
before or after the presentation of a bill of indictment, order that the trial
shall be proceeded with in some other district, county or place within the same
province, named by the court or judge in such order ; but such order shall be
made upon such conditions as to the payment of any additional expense there-
by caused to the accused, as the court or judge thinks proper to prescribe.

2. Forthwith uixin the order of removal being made by the court or judge,
the indictment, if any has been found against the prisoner, and all inquisitions,
informations, depositions, recognizances and other documents relating to the
prosecution against him, shall be transmitted by the officer having tlie custody
thereof to the proper officer of the court at the place where the trial is to be
had, and all proceedings in the case shall be had, or, if previously commenced,
shall be continued in such district, county or place, as if the case had arisen
or the offence had been committed therein.

3. The order of the court, or of the judge, made under this section, shall b**
a sufficient warrant, justification and authority, to all sheriffs, gaolers and peace
officers, for the removal, disposal and reception of the prisoner, in conformity
with the terms of such order ; and the sheriff may appoint and empower any
constable to convey the prisoner to the gaol in the district, county or place in
which the trial is ordered to be had.

4. Every recognizance entered into for the prosecution of any person, and
ever}- recognizance, as well of any witness to give evidence, as of any person
for any offence, shall, in case any such order, as provided by this section, is
made, be obligatory on each of the persons bound by such recognizance as to
all things therein mentioned with reference to the said trial, at the place where
such trial is so ordered to be had, in like manner as if such recognizance had
been originally entered into for the doing of such things at such last mentioned
place : Prfjvided that notice in writing shall be given either personally or by
leaving the same at the place of residence of the persons bound by such recog-
nizance, as therein described, to apiiear before the court, at the place where
such trial is ordered to be had. R. S. C. c. 174, s. 102.

See s. 600, s-s. 2.

By this section, 651, the court or judge has a discre-
tionary power of a wide extent : ** Whenever it appears to
the satisfaction tfthe court or judge" it says, and when the
court or judge declares that it so appears, the matter quoad
hoc is at an end, the venue is changed, and the trial must
take place in the district, county or place designated in the
order.

The words of the statute require that the court or judge
be satisfied that the change of venue is expedient to the ends
of justice. Mr. Justice Sanhorn, in Ex parte Brydgee, IS

vm\'

742

PROCEDURE.

[Sev\ 051

L. C. J. 141, said that "the commoQ law discourages change
of venue, and it is only to be granted with caution and upon
strong grounds." \

The following cases decided in England may be usefully
noticed here :

Where there was a prospect of a fair trial the court
refused to change the venue, though the witnesses resided
in another county : R. v. Dunn, 11 Jur. 287.

The court will not permit the venue in an indictment to
he changed for any other cause than the inability to obtain
a fair trial in the original jurisdiction : B. v. Patent Eureka
and Sanitary Manure Company, 13 L. T. 365.

The court lias no power to change the venue in a crim-
inal case, nor will they order a suggestion to be entered on
the roll to change the place of trial in an information foi-
libel, on the ground of inconvenience and difficulty in
securing the attendance of the defendant's witnesses : It. v.
Cavendish, 2 Cox, 176.

Change of venue asked for upon the ground on an
indictment for conspiracy to destroy foxes, that the gentle-
men who were likely to serve on the jury were much
addicted to fox-hunting refused: R. v. King, 2 Chit.
Rep. 217.

It is no ground to change the venue that the defendant's
witnesses are all resident in another county and that he bas
no funds to bring them for his trial : R. v. Casey, 18 Cox,
614.

The court will remove an indictment for a misdemean-
our from one county to another, if there is reasonable cause
to apprehend or suspect that justice will not be impartially
administered in the former county : R. v. Hunt, 3 B. & Aid.
444 ; 2 Chit, 130.

The court has a discretionary power of ordering a sug-
gestion to be entered on the record of an indictment for
felony, removed thither by certhrari, for the purpose of

rages change
ion and upon

Ety be usefully

rial the court
aessea resided

indictment to
(ility to obtain
Patent Eureka
)5.

jnue in a crim-
) be entered on
information for
ad difficulty in
^vitnesses*. E.v.

ground on an

[that the gentle-

iry were much

King, 2 Chit.

I the defendant's
land that he has
Casey, 13 Cox,

a misdemean-
[easonable cause
It be impartially
lunt, 3 B. & Aid.

ordering a sug-

indictment for

[the purpose of

Sec. 051]

CHANGE OF VENUE.

743

awarding the jury process into a foreign county ; but this
power will not be exercised unless it is absolutely necessary
for the purpose of securing an impartial trial : R. v. Holden,
5 B. &. Ad. 347.

In the case of R. v. Harris, et al., 3 Burr. 1330, the
private prosecutors, in their affidavit on an application
made by them for a change of the -uue, went no further
than to swear generally "thatthe^- ■nly believed that there
could not be a fair and impartial tri Viad by a jury of the
Cityof Gloucester," without giving j ^jarticular reasons
or grounds for entertaining such a belief. The case to be
tried was an information against the defendants, as alder-
men of Gloucester, for a misdemeanour in refusing to admit
several persons to their freedom of the city, who demanded
their admission, and were entitled to it, and in consequence
to vote at the then approaching election of members of
Parliament for that city, and whom the defendants did
admit after the electiop was over ; but would not admit
them till after the election, and thereby deprived them of
their right of voting at it. The prosecutors had moved for
this rule on a supposition " that the citizens of the city
conld not but be under an influence or prejudice in thi&
matter." The application was refused.

" There must be a clear and solid foundation for it,"
said Lord Mansfield ; " now, in the present case, this gen-
eral swearing to apprehension and belief only is not a suffi-
cient ground for entering such a suggestion, especially as
it is sworn on the other side that there is a list returned
up, consisting of above six hundred persons duly qualified
to serve. Surely a person may espouse the interest of one
or another candidate at an election, without thinking him-
self obliged to justify, or being even inclined to defend, the
improper behaviour of the friends or agents of such candi-
date."

" The place of trial," said Mr. Justice Denison, "ought
not to be altered from that which is settled and established

;^£^ - ;*,-.*■

IMAGE EVALUATION
TEST TARGET (MT-3)

M/.

V^^^ <• ■^ %

f/.

1.0

I.I

1^ 1 2.6 1 2.5

« IS 1110

11-25 i 1.4

1.6

Photogr^hic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 873-4503

■17

,<lf.

jtiT^^SS^

744

PROCEDURE.

[Sec. 651

by the common law, unless there shall appear a clear and
plain reason for it, which cannot be said to be the present
case." \

" Here is no fact suggested," said Mr. Justice Foster,
** to warrant the conclusion that there cannot be a fair and
impartial trial had by a jury of the City of Gloucester. It
is a conclusion without premises. The reason given, or
rather the supposition, would hold as well in all cases of
riots at elections. This is no question relating to the
interest of the voters ; it is only whether the defendants,
the persons particularly charged with this misdemeanour,
have personally acted corruptly or not."

" There was no rule better established," said Mr. Jus-
tice Wilmot, " than that all causes shall be tried in the
county, and by the neighbourhood of the place where the
fact is committed ; and, therefore, that rule ought never to
be infringed, unless it plainly appears that a fair and im-
partial trial cannot be had in that county ; . . It does
not follow that because a man voted on one side or on the
other he would therefore perjure himself to favour that
party when sworn upon a jury. God forbid ! The freemen
of this corporation are not at all interested in the personal
conduct of these men upon this occasion ; the same reason-
ing would just as well include all cases of election riots."

It may be remarked on this case : (1) That the applica-
tion for a change of the venue was made by the prosecution,
and there is no doubt that much stronger reason must then
be given than when the application is made by the defendant;
<2) That the case dates from 1762, and that in some of the
more recent cases on this point, the court seems to have
granted such an application, on the part of the defendant,
with less reluctance. This is easily explained; it must
have been an unheard of thing, at first, to change the venuei
at common law, at the time where the jurors themselves
were the witnesses, and the only witnesses; where they
were selected for each case because they were supposed to

■''■•' Wr

Sec. 651]

CHANGE OF VENUE.

745

know the facts. Where no other witnesses, no evidence
whatever was offered to them, it may well be presumed that
a change in the venue was not allowable under any circum-
stances. The rule must then invariably, inflexibly, have
been that the venue should always be laid in the county
where the offence was committed. The strictness of the
rule can have been relaxed only by degrees, and even when,
for a long period, the strongest reason in support of it had
ceased to exist, by the changes which have given us the
present system of jury trial, it is not surprising to find the
judges still adhering to it as much as possible. But,
insensibly, a change is perceptible in the decisions, and
now, under our statute, there is no doubt that every time,
for any reason whatever, it is expedient to the ends ofjvxtice
that a change in the venue, upon any criminal charge,
fihould take place, it should be granted whether applied for
by the prosecution or by the defence.

Another decision, in England, on the question may be
noticed here:

The court removed an indictment from the Central
Criminal Court, and changed the venue from London to
Westminster, where it was a prosecution instituted by the
Corporation of London for a conspiracy in procuring false
votes to be given at an election to the office of brid'^j- mas-
ter : B. V. Simpson, 5 Jur. 462.

A case in the Province of Quebec gave rise to a full
discussion on this section: Ex parte Brydges,18 L. C. J. 141.

In this case, a coroner's jury in the district of Quebec
returned a verdict of manslaughter against the defendant,
a resident of Montreal. The coroner issued his warrant,
upon which the defendant was arrested ; he gave bail, and
then, in Montreal, before Mr. Justice Badgley, a judge of
the Court of Queen's Bench, made application in chambers
for a change in the venue ; the only affidavit, in sup;oort
of the application, was the defendant's, who swore that he
could not have a fair trial in the district of Quebec. The

746

PROCEDURK

[Sec. 651

crown was served with a notice of the application, and
resisted it ; Mr. Justice Badgley, however, granted it, and
ordered that the trial should take place in Montreal^
deciding (1) that, under the statute, a judge of the Court
of Queen's Bench, in chambers in Montreal, may order the
change of the venue from Quebec to Montreal, of the trial
of a person charged with the commission of an offence in
the Quebec district, and (2) that this order may be given
immediately after the arrest of the prisoner.

On this last point there is no room for doubt. By the
statute, as soon as a person is charged with an offence, the
application can be made, and there is no doubt, that in
Brydges' case such an application could even have been
made before the issuing of the warrant of arrest agf^inst
him.! The finding by the coroner's inquisition of man-
slaughter against him was the charge. From the moment
this finding was delivered by the jury Brydges stood
charged with manslaughter ; see now s. 568, ante. In fact,
this finding was equivalent to a true bill by a grand jury,
and upon it he had, if remaining intact, to stand his trial,
whether or not a bill was later submitted to the grand Jury,
whether the grand jury found " a true bill," or a "no bill"
in the case. See K. v. Maynard, R. & R. 240 ; R. v. Cole^
2 Leach, 1095 ; and the authorities cited in R. v. Tremblay,
18 L. C. J. 158.

Upon the other point decided, in this case, by Mr. Jus-
tice Badgley, as to the jurisdiction he had to grant the
order required, there seemed at first to be more doubt. Biit
the question was s t rest by the judgment afterwards
given in the case i^. Jamsay and Sanborn, JJ., who en-
tirely concurred with Mr. Justice Badgley in his ruling on
the question, as follows :

Ramsay, J. — " Before entering on the merits of thepe
rules it becomes necessary to deal with a question of juris-
diction which has been raised on the part of the crowp.
It is urged that this case is not properly before us,

Sec. 651]

CHANGE OF VENUE.

747

1: ; 1

that if it is, that the law under which it is brought before
the court, sitting iu this district, is of so inconvenient and
dangerous a character that it should be altered. With the
inconvenience of the law we have nothing to do ; neither
ought we to express any opinion as to whether the grounds
on which the learned judge who gave the order to change
the venue were slight or not, provided he bad jurisdiction.
The whole question rests on the interpretation of s. 11 of
the Criminal Procedure Act of 1869. That section is in
these words : (His Lordship read the section.)

<* We have only to ask whether, at the time this order
was given, Judge Badgley was a judge who might hold or
Bit in the Court of Queen's Bench. If so, he had juris-
diction.

"But we are told that the statute evidently intended
that the judge giving the order should be actually sittings
in the district in which the offence is alleged to have taken
place. There is no trace of any such intention in the
statute and there is no rule of interpretation of statutes sa
well established as this, that where the words of a statute
are clear and sufficient they must be taken as they stand.
If courts take upon themselves, under the pretext of inter-
preting the law, to diminish or extend the clearly expressed
scope of a statute, they are usurping the powers of the
legislature, aud assuming a responsibility which in no way
devolves on them. In the particular case before us it does
not appear clear to my mind that it was the intention of
the legislature to limit the power to change the venue to a^
jadge sitting in the district where the offence was said to
be committed. In the first place, our statute goes far
beyond the old law, which, I believe, is still unchanged in
England. Not only is the power given here to a judge in
chambers to change the venue, but he may do so before
the bill of indictment is either laid or found. The object
was to protect a man from being even put to trial by a
prejudiced grand jury, and this could only be effectually

if*

748

PROCEDURE.

[Sec. 651

done by giving the power to any judge who could bold or
sit in the court to change the venue, for it will be observed
that in 1869, when the Act was passed, there were many
districts in this Province in which there was no resident
judge, and in Ontario the judges of the superior courts all
live in Toronto, and, so far as I know, in each of the other
Provinces, they live in the capital town. Unless, then,
there was to be a particular provision for the Province of
Quebec the law had to be drawn as we find it. Besides
this the Court of Queen's Bench is not for the district but
for the whole Province. The object of dividing the Province
into districts is for convenience in bringing suits, but the
jurisdiction of the court is general. This has never been
doubted, and it has been the practice both in England and
this 'country to bail in the place where the prisoner is
arrested. In the case of Blossom, where the taking of bail
"was vigorously resisted by the crown, this court, sitting at
Quebec, bailed the prisoner who was in jail here. This is
going a great deal farther, but the power of the court to
bail was not, and, I think, could not, be questioned. We
are told that great inconvenience might arise if this statute
be not restrained. This is really no valid objection to the
law. There are no facultative acts which may not be
abused one way or another. A discretionary power involves
the possibility of its indiscreet exercise, but that is not
ground for us to annul the law creating it. In this case
the inconveniences referred to are not specially apparent
— the prisoner arrested in Montreal was bailed there, and
made his application to have the venue changed to the
district where he resided and where he actually was. The
order made by Mr. Justice Badgley could hardly then be
used as a precedent for an abusive use of the statute. It
must be understood that in saying this I do not refer to the
sufficiency or insufficiency of the affidavit on which the
order was given, which is not in any way before us, but
€olely to the circumstance of the accused being actually
before the judge here. As the point is a new one, and as

Sw. 651]

CHANGE OF VENUE.

749

ho could hold or
i will be observed
there were many
was no resident
nperior courts all
each of the other
1. Unless, then,
r the Province of
find it. Besides
ar the district but
iding the Province
^ing suits, but the
is has never been
kh in England and
re the prisoner is
3 the taking of bail
lis court, sitting at
jail here. This is
ver of the court to
e questioned, ^'e
arise if this statute
lid objection to the
rhich may not be
lary power involves
|e, but that is not
it. In this case
specially apparent
bailed there, and
le changed to the
.ctuallywas. The
lid hardly then be
|of the statute. It
do not refer to the
vii on which the
,ay before us, but
led being actually
new one, and as

questions of jurisdiction are always delicate, we would wil-
lingly have reserved it for the decision of all the judges;
but the Act allowing us to reserve cases is unfortunately as
much too narrow as the statute before us appears to Mr*
Ritchie to be too wide in its phraseology. We can only
reserve after conviction, and irregular* reservations for the
opinion of the judges have no practically good results.
We must, therefore, give the judgment to the best of our
ability, and I must say for my own part that I cannot see
any difficulty in the matter. The words of the statute are
perfectly unambiguous, and there is no reason to say that
they lead to any absurd conclusion."

Sanborn, J. — ".First, as to the jurisdiction. It is

objected that the venue was improperly changed, and that

this inquisition ought to be before the court at Quebec. If

wo are not 'legally' possessed of the inquisition of course

we cannot entertain these motions to quash. This has

been fully and exhaustively treated by the President of the

court. It is merely for us to inquire : Had Mr. Justice

Badgley the power to order the trial to take place here

instead of in the district of Quebec where the accident

occurred ? The 11th section of the Criminal Procedure Act

undoubtedly gives that power. He was a judge, entitled to

sit at the court lohere the party loas sent for trial. The

jurisdiction of any of the judges of the Queen's Bench is

not local for any district, but extends to all parts of the

Province."

The words " be was a judge, entitled to sit at the court
where the party ivas sent for trials" in Mr. Justice Sanborn's
remarks appear not supported by the statute. It is the
court at which the party charged with a crime was at first
liable to be indicted, or any judge who might hold or sit in
that court, who have jurisdiction in the matter, not the court
where the party is sent for trial nor a judge ivho can hold and
sit in such last mentioned court. Of course, in Brydpies'
case this distinction could not be made, as Mr. Justice

f'f

SI "

760

PROCEDURE.

[Sec. 051

Badgley, who gave the order to change the venue, could sit
in the court at Quebec as well as in Montreal, and in Mont-
real as well as in Quebec. But suppose that such an
application is made to a judge who can hold or sit in a
<3oart of quarter sessions, at which the party charged is or
ia liable to be indicted; and there are not many cases
where a party accused is not liable to be indicted before the
<i0urt of quarter sessions ; the statute gives jurisdiction only
to the court of quarter sessions of and for the locality
where the trial should take place, in the ordinary course of
law, or to a judge thereof, and not to a court or judge of
another locality ; and the judge of the quarter sessions for
Montreal, for instance, could not, in a case from the dis-
trict, of Quebec, order the trial to take place in Montreal,
though he would be a judge entitled to sit at the court
where the party was sent for trial.

See in Re Sproule, 12 S. G. R. 140, questions as to
change of venue, and R. v. Martin, 16 Q. L. R. 281.

Change of venue allowed upon prisoner's solicitor's affi-
davit that from conversations he had had with the jurors,
he was convinced of a strong prejudice against the prisoner:
R. V. McEneany, 14 Cox, 87 ; see R. v. Walter, 14 Cox, 579.

Held, that 82 & 83 V. c. 20, s. 11, does not authorize any
order for the change of the place of trial of a prisoner in
any case where such change would not have been granted
under the former practice, the statute only affecting pro-
cedure : R. V. McLeod, 6 P. R. (Ont.) 181.

The power so granted is purely discretionary, but,
where application is made on the part of the accused, it
will be a sufficient ground that persons might be called on
the jury whose opinions might be tainted with prejudice,
and whom the prisoner could not challenge : R. v. Russell,
Ramsay's App. Cas. 199. See Ex parte Corwin, 24 L. C.
J. 104, 2 L. N. 864.

As to the carrying out of the sentence where venue has
beeii changed, see iwst, s. 783, s-s. 4.

Sees. 632-C66]

ARRAIGNMENT.

751

PART L.

Arraionhknt. {Amended).

092. If any person against, whom any indictment is found is at the time
confined for some other cause in the prison belonging to the jurisdiction of the
court by which he is to be tried, the court may by order in writing, without a
writ of habeas corpus, direct the warden or gaoler of the prison or sheriff or
other person having the custody of. the prisoner to bring up the body of such
person as often as may be required for the purposes of the trial, and such warden,
gaoler, sheriff or other person shall obey such order. R. S. C. c. 174, s. 101.
30-31 V. c. 35 (Imp.).

'* Prison " uefined, s. 3.

RiQHT TO Inspect Dkpobitions, Etc.

633. Every accused person shall be entitled at the time of his trial to
inspect, without fee or reward, all deiiositions, or copies thereof, taken against
him and returned into the court before which, such trial is had, and to have the
indictment on which he is to be tried read over to him if he so requires. R. S. 0.
c. 174, 8. 180.

This is the 6 & 7 Wm. IV. c. 114, s. 4 of the Imperial
Statutes. See s. 597, ante.

Copy op Indictment.

654. Every person indicted for any offence shall, before being -i-x.igned
on the indictment, be entitled to a copy thereof on paying the clerk JJt cents
per folio of me hundred words for the same, if the court is of opinion that the
Bame can be made without delay to the trial, but not otherwise. R. S. C.
c. 174, 8. 181.

The cost was ten cents hy the repealed statute. At
common law, the prisoner was not entitled to a copy of the
iDdictment in treason and felonies.

Copt op Depositions.

655. Every person indicted shall be entitled to a copy of the depositions
returned into court on payment of >!ve cents per folio of one hundred words for
the same, provided, if the same are not demanded before the opening of the
assizes, term, sittings or sessions, the court is of opinion that the same can be
made without delay to the trial, but not otherwise ; but the court may, if it
sees fit, postpone the trial on accoimt of such copy of the depositions not
having been previously had by the person charged. R. S. C. c. 174, s. 182.
U-12V. c. 42, s. 27{lmp.).

762

PROCEDURE.

[Seca. 656, 667

The coat was ten cents by the repealed statute. See s.
597, ante.

Pleas in Abatement Abolished. (New),

636. Xo plea in abatement shall be allowed after the commencement of
this Act. Any objection to the constitution of the grand jury may be taken
by motion to the court, and the indictment shall be quashed if the court is of
opinion both that such objection is well founded and that the accused has
suffered or may suffer prejudice thereby, but not otherwise. R. S. C. c. 174^
8. 142 part.

The repealed clause applied only to certain pleas in
abatement. An objection that the grand jury was com*
posed of more than twenty-three members should now be
taken by motion : see Bishop, 1 Gr. P. 884. It is only
objections to the constitution of the grand jury that this
section provides for. The Code makes no provision on the
constitution of the grand jury, with the exception of s. 662,
post : in R. v. Mitchel, 3 Cox 93, an objection that a grand
juror was disqualified was taken by a plea in abatement.
There is no such thing known to the criminal law as a
challenge to the grand jury : R. v. Mercier, Q. B. 1 Q. B.
541.

It seems that an objection that the witnesses have not
been properly sworn before giving their evidence before the
grand jury is a question of law that can be reserved for the
Court of Appeal : R. v. Tew, Dears, 429.

The prosecutor has the right to move to quash the
finding of the grand jury : R. v. Fieldhouse, 1 Russ. 1030.

Though an objection to the constitution of the grand
jury may be well founded, yet the indictment is not to be
quashed if the court is of opinion that the accused has not
suffered or will not suffer prejudice thereby by the objec-
tion. See R. V. Belyea, James (N.S.) 220.

Plea— Refusal to Plead. (Amended).

657. When the accused is called upon to plead he may plead either
guilty or not guilty, or such special plea as is hereinbefoie provided for.

2. If the accused wilfully refuses to plead, or will not answer directly, the
court may order the proper officer to enter a plea of not guilty. R. S. C. o. 174,
SB. 144, 145.

Sea«57]

ARBAIONJIENT.

753

The words "at.„d, „„„ „, „ .

clause are replaced by " .ntnUy ret's'to Z*. ""-'«-»

This clause is taken from 7 t. a r.
1 & 2 of .he Imperial statutes ^ * « «<»• IV. o. 28, ss.

Formerly, to stand mute was *„ „ ;,
defendant stood mute of m^lic.JlT'"'- ""'• '' ">«
tenced. In the ease of R. v Mereilri"?""^!'""^ '»-
prisoner bemg arraigned, stood mn e T. *"''• '^' "•»
the sheriff to return a jury il,T^; ,^''° """t Ofdere,?

prisoner stood mute obst nLrorbvlL ''! ""'"■'' '"^
A jury being accordingly ret J^d T ^' y,""*""" »f Sod.
.dmmistered to themf "You "hfl'l ^°,-^''"°"'''«»«''' ""
true-presentment make for and n„ h ? if ""^ '"«"'« ""'I
Lord the King, whether PrrnlMet^"" ll °" «»^"->
at the bar, being now here ndicLf 11'' "".^ "<"' ?"»«»««•
David Samuel Mondrey stand, t ! V^' "'""" '»»"'er of
and obstinately, „r b^te 1"",'' '""'"''''•"^' ''«»"?
according to your evidence Td t ', *'"' ■"=' "^ <iol
mmined the «itnessest oln" „rt'""'"'«'" '"'^ i^^
verdict that the prisoner stood Z' *?'" "•"'■''°'' «» «>«''
tbe visitation of God. WhereLon ^b """'"' """ ■"" "^^
passed sentence of dea^h uporthe r"' '•""'"''"^'y
accordrngly executed on the Monday WIowLT "'"' '"'

'/whr:ri''t^„:ratsr '^^^^ - ~-^

."formality in swearing the witne "l/ ''°°''""' °' ^""^
«Pon an indictment for the same 'ff™' "S"''" """'s-ed:
plead, alleging that he had beenL.^'T- '""' ''^''^ '»
}- and Vaughan, B., order^ " il ^^ '"'"• Li'Wale,.
»tered for him: B. y'. BiZ^sVlrP .2"' «""^ '» ''^•

'^eii'rratry'rLr '""^'^'^^ '^ ^e'cny-
. was mute by the Z^io:^"^- '" "' "^"h^'
i was so; they were then sworn .'.^'J"^ ''"""' «>»*
We to plead which thev fo„„T • i" ''^ ''=«"'" he wag

«-;<». by a sign^XtTn'o*; ^1^1"'^""'
CWM.LAW--48 " s'^'^J; the judge thea

Iff ■

754

PROCEDURE.

[Sec. 657

ordered the jury to be empannelled to try i^vhetber the
defendant was now sane or not, and, on this question,
directed them to Bay whether the defendant had sufficient
intellect to understand the course of the proceedings to
make a proper defence, to challenge the jurors and com-
prehend the details of the evidence, and that, if they
thought he had not, they should find him of non-sane
mind: R. v. Pritchard, 7 C. & P. 803.

It seems that where a prisoner who is called on to plead
remains mute the court cannot hear evidence to prove
ihat he does so through malice, and then enter a plea of
not guilty under this section; but a jury must be empan-
nelled to try the question of malice, and it is upon their
:fincfing that the court is authorized to enter the plea : B. v.
Israel, 2 Cox, 268.

A prisoner, when called upon to plead to an indicttnent,
stood mute. A jury was empannelled and sworn to try
whether he was mute of malice or by the visitation of God.
A verdict of mute of malice having been returned the
court ordered a plea of not guilty to be entered on the
record : R. v. Schleter, 10 Cox, 409.

A collateral issue of this kind is always tried instanter
by a jury empannelled for that purpose. In fact there is,
properly speaking, no issue upon it ; it is an inquest of
office. No peremptory challenges are allowed : R. v. Rad-
cliffe, Fost. 86, 40. The jury may be chosen amongst
the jurors in attendance for the term of court, but must
be returned by the sheriff, on the spot, as a special panel :
Dickinson's Quarter Sessions, 481. If the jury return
a verdict of " mute by the visitation of God," as where the
prisoner is deaf or dumb, or both, a plea of not guilty is
to be entered, and the trial is to proceed in the usual way,
but in so critical a case great diligence and circumspection
ought to be exercised by the court ; all the proceedings
against the prisoner must be examined with a critical eye,
and every possible assistance consistent with the rules of

See. 658J

SrECUtPHovisIONSINxREASdN-.

, . "'^ *^ TREASON. 7ce

law given to him br ih^ . °

In the ease of B. v' teTt; ^ \ '''^'' ' ^-eaeh «1
returned tha. the prisoner C'"^!'''''' ^'^^ «"« S
God " It .pp,„i th"*' ""'« by the visitatioi of

dumb could receive\nd JZ,^^:"- 7'" ""' "-^ «>"'
""" "«■>'- » P«aon skilled inXT.t^'""""'"'''' ^y «"■

aceused i, i.s;„r«:f i' f^;^;",;,'"; '"e o.,e „here an
after the prisoner had plead«r"^' . '^*' ^^^- Formerly

y the clerk: -J,,, ^tl ,X1""^t" .'" ""' -^^'
he had to answer, if » .' ^'' '"'™ h" Wal

-««"^^" if a pe^r. "bTZ! ^ "^' "'^ ""I ''«
refused to answer, the injl, , " "•* P«"." if u.
aud he stood convlc'ted : "/S^r """"■ ^™ -»"-'

.orc.lCt:^n°^"''^--«--Huddell
«-- cited ; also. K^ol^' ^^^J^^^f' ^^^. -d clt

, . "■ '"" »"«isninent ; th..

(-l.ooproUhetodictmenl.
. (») • li.1 ot the «.!»„«„,, L .

sj;!."'"'"'"' ">»'»-«'»' .he ,„„„„,„.„^

5 T. . . "^^ °' *<' ^uf »itne«», «„d

«• -inis section shall nof i

^^B- ^-F-t.. Moo. X.O;B.v. Burke. :o 00. ;:!

766

PROCEDURE.

[Sees. 650, 660

PART LI.

Trial.
fk!i9. Every^person tried for any indictable offence shall be admitted,
after the close of the case for the prosecution, to make full answer and defence
thereto by counsel learned in the law. R. S. C. c. 174 s. 178. 6-7 Wm. IV.
c. 114 (Imp.).

See remarks under the two next sections.
Presence op the Accused at Trial.

660. Every accused person shall be entitled to be present in court
during the whole of his trial unless be misconducts himself by so interrupting
the proceeding^ as to render their continuance in his presence iiispraoticable.

2. ,The court may permit the accused to be out of court during the whole or any
part of any trial on such terms as it thinks proper.

Sub- section 2 is new as to offences heretofore known as
felonies.

The defendant should in all cases, as a general rule, ap-
pear in person to plead and to receive his sentence. In
cases where the punishment may be for more than five
years, {see s. 668) the court will probably not allow the
defendant to be out of court, except for grave reasons, and
under particular circumstances. A defendant should sub-
mit to the jurisdiction of th? court and appear in person
before his plea can be receiv^O : R. v. Maxwell, 10 L. C. E.
45.

The following cases on the practice may serve as guides
in the future notwithstanding the change introduced by
s-s. 2 of s. 660.

A prisoner charged with felony, whether he has been on
bail or not, must be at the bar, viz., in the dock during his
trial, and cannot take his trial at any other part of the
court, even with the consent of the prosecutor : R. v. St.
George, 9 C. & F. 483. A merchant was indicted for an
offence against the Act of parliament prohibiting slave-
trading (felony). His counsel applied to the court to allow
him to sit by him, not on the ground of his position in

[Sees. 659, 660

Sec. 661]

ADDRESSES TO JURY.

757

e shall be admitted,

I answer and defence

178. 6-7Wm. IV.

be present in court
(elf by so interrupting
sence iispracticable.
during the whole or any

retofore known as

I general rule, ap-
|bia sentence. In
Ir more than five
jly not allow the
;rave reasons, and
iclant should sub-
appear in person
.xwell. 10 L. C. B.

[ay serve as guides
\ge introduced by

ler he has been on
L dock during his
[other part of the
aecutor : B. v. St.
L indicted for an
Iprohihiting slave-
\ the court to allow
of his position in

society, but because he was a foreigner, and several of the
documents in the case were in a foreign language, and it
would, therefore, be convenient for his counsel to have him
by his side, that he might consult him during his trial :
Held, that the application was one which ought not to be
granted : R. v. Zulueta, 1 C. & K. 215, 1 Cox, 20. A
similar application by a captain in the army was also
refused in R. v. Douglas, Car. & M. 193. But in misde-
meanours a defendant who is on bail and surrenders to
take his trial need not stand at the bar to be tried : R. v.
Lovett, 9 C. & P. 462.

CouNSEt's Addressks to the Jury. {Amended).

601. If an accused person, or any one of several accused i^ersons being
tried together, is defended by counsel, such counsel shall, at the end of the
case for the prosecution, declare whether he intends to adduce evidence or not
on behalf of the accused person for whom he appears ; and if he does not there-
upon announce his intention to adduce evidenve the counsel for the prosecu-
tion may address the jury by way of summing up.

2. Upon every trial for an indictable offence, whether the accused i^erson
is defended by counsel or not, he or his counsel shall be allowed, if he thinks
fit, to open his case, and after the conclusion of such opening to examine such
witnesses as he thinks fit, and when all the evidence is concluded to sum up
the evidence. If no vHtnesses are examined for the defence the counsel for the
accused shall have the privilege of addressing the jury last, othenoise such right
shall belong to the counsel for the prosecution : Provided, that the right of reply
shall be always allowed to the Attorney-General or Solicitor-General or to
any counsel acting on behalf of either of them. R. S. C. c. 174, s. 179. 28 V.
f. 18, s. 2 (Imp.).

The words in italics in s-s. 2 seem in contradiction with
the last part of s-s. 1. The corresponding section in the
Imp. draft Code is differently worded. However, as it is, this
8. 661 probably bears a construction that brings no substan-
tial change in the law. The reply is now given to any coun-
sel acting on behalf of the Attorney-General or Solicitor-
Genei-al instead of to any Queen's counsel acting on behalf of
the Grown. The addresses of counsel are, therefore, to take
place as follows : — First case : When no evidence for the
defence : Counsel for the Crown opening the case :
Crown's evidence. Defendant or his counsel declares
that he has no evidence to adduce ; counsel for the Crown

1 15^

9\
.'A

758

PROCEDURE.

[Sec. 661

sums up : defendant or his counsel addresses jury; reply of
counsel for the Crown, but only by Attorney or Solicitor-
General, or counsel, acting on behalf of either of them.
Second case: where the defence adduces evidence. Crown
prosecutor opens the case : evidence of the Crown ; defend-
ant or his counsel addresses the jury: defendant's evi-
dence; defendant or his counsel sums up ; reply of
prosecution in all cases. In the first case, the counsel for
the prosecution seldom in practice exercises both the rights
of summing up and replying, and should not do so except
for special reasons : B. v. Holchester, 10 Cox, 226 ; if the
counsel, however, is not the Attorney-General or Solicitor-
General, or a counsel acting on behalf of either of them, he
has to sum up the evidence, after it is over and before the
defendant or his counsel addresses the jury, if he thinks
proper to do so, as he is not allowed to reply ; if he is the
Attorney- General or Solicitor-General, or a counsel acting
on behalf of either of them, he, in practice, does not sum up,
as he is entitled to reply whether the defendant adduces
evidence or not, though in England this right is very sel-
dom exercised where no evidence, or evidence as to char-
acter only, is offered. In the second case, in practice, the
defence addresses the jury only after its evidence is over ;
two addresses would generally have no other result but t^
lengthen the trial, and fatigue judge, counsel and jury: 8(e
R. V. Kain, 15 Cox, 388, and Archbold, 178.

Opening of counsel for prosecution. — A prosecutor con-
ducting his oase in person, and who is to be examined as
a witness in support of the indictment, has no right to
address the jury as counsel : R. v. Brice, 2 B. & Aid. 606 ;
R. V. Stoddart, Dickinson's Quarter Sessions, 152 ; B. v.
Gurney, 11 Cox, 414, where a note by the reporter, sup-
ported by authorities, says that such is the law whether
the prosecutor is to be a witness or not.

Sergeant Talfourd, in Dickinson's Quarter Sessions,
495, on the duties of the counsel for the prosecution, says:

Sec. 661]

ADDRESSES TO JURY.

759

" When the counsel fnr th. '

•.e ought ,0 crfi„?u^J:,n:t'"'>-«<'i~«es the My
fact, which he e.pecLt:'Zliyr^*^'-^nto,\l
pnsooer has no counsel he ^hZu I '" ™'°' "here the
stating any part „/ the fact, tee n'""r'r'^"fr''i°from
o™ brief appears donb/mi^tTw^h ''''''''' ^'''" "s
oation; for he will either ^rodZ " ^^ ""''"' '"»"«•
jurors an impression which the m«r J -.^ minds of the
may not remove in instances X: the':?- ""'^"'"^""^
to comment on it with effect n^ "^ '°°" " ""aWe
against the case for the proJJLTVT°'^^''^'^^'>'«

spects it maynot deserve. The eonrT.'v '" """^ "•
»o. fail, in the summing up to I 'f^'"' ;'"»»''"•".-'»»-
between the statement and 2e „Lf "2 *° "^''^'Paney
well of felony as misdemean u whe L . '" "" '"'"=• "^
sel. not only may the facts Zl^ZT'^'""^'^ '"'""■
be stated, but they may be reasjned ' ^""""'*''»^ rests
a»y line of defence ^Ucb^^'ZLZ' °,° "' '" ""«">««
a« counsel for parties charg^wirf^ '^ "^ *''''?'"'• ^"^
he jury in their defence T^t 1°"^ -"ay now address
in misdemeanour, the 1" tS. nf T """^ '^^» ''»«
f ber degree of offence is hra». T "/ "''"8^'' ""b
ftey have counsel, and it is no L!™, *"* '" '"''' '"'ere
*cutor's counsel to abstain f^ol T '''"™'''« '»' ">« P™-
«- he opens in such mannrrasT"' "'"^"'"y » «'»
«'y way he may think adri»»hl ! '»/'""'«'" «s parts i„
, *i!.ty of g„i,t and the difficX' f "^'""'''"'"e 'he pro-
B»t even here he. should 3 °f " "P^ "' ™"'=''"'<'"-
<«. and from appealing to th^ ^ .■"'^•"8'"« '" »vec-
'k'jnry; for it is neither in aln, TT "'' "' P"'"'""^ °f
'"•«8'e for a conviction "a " 'd° T ."«''"°»'»S '"
«lends for a verdict." *'''"'™'^ '" » eivil cause

Oo the duties of counsel ;„ „ •
PWcution, it ia said in Ar,l'hluT,o'"« "■' ""»« '<>' the
"St to state alt that if ''' "*^ "^° •'o-ns so he

«»atio„softh pri:n'r;as''frr'' 1" "'o^^' '' -
- -e be a d^screSr^- tl- 5^ -

^i^^'l^

■ 0

■t^

•i

m 1

fill

1?'

.ili

.Kj '[

ff>

760

PROCEDURE.

[Sec. 661

ments of counsel and the evidence afterwards adduced in
support of them: per Parke, B., R. v. Hartel, 7 C. & P,
778 ; B. V. Davis, 7 G. & P. 785 ; unless such declarations
should amount to a confession, where it would be improper
for counsel to open them to the jury ; B. v. Swatkins, 4 G.
& P. 548. The reason for this rule is that the circum-
stances under which the confession was made may render
it inadmissible in evidence. The general effect only of any
confession said to have been made by a prisoner ought,
therefore, to be mentioned in the opening address of the
prosecutor's counsel."

Mr. Justice Blackburn, in B. v. Berens, 4 F. & F. ^42,
"Warb. Lead. Gas. 237, said that the position of prosecuting
counsel in a criminal case is not that of an ordinary coun-
sel in a civil case, but that he is acting in a quasi judicial
capacity, and ought to regard himself as part of the court:
that while he was there to conduct his case, he was to do
it at his discretion, but with a feeling of responsibility, not
as if trying to obtain a verdict, but to assist the judge in
fairly putting the case before the jury, and nothing more.

In E. V. Puddiok, 4 F. & F. 497, it is said per Cromp-
ton, J. : " The counsel for the prosecution are to regard
themselves as ministers of justice, and not to struggle fo
a conviction as in a case at nisiprius ; nor be betrayed b'
feelings of professional rivalry to regard the question tt
issue as one of professional superiority, and a contest f>r
skill and pre-eminence." '

Summing up by counsel for the prosecution, where h(
defence brings no evidence. — It has already been remarked
that in practice, if the counsel for the prosecution hasihe
right of reply and intends to avail himself of it, it wouUbe
waste of time for him to sum up ; but if the counsel has
not the right of reply he will perhaps find it usefil to
review the evidence as it has been adduced, and give tome
explanations to the jury. But it has been held in I v.
Puddick, 4 F. & F. 497, that the counsel for the prosewtion

[Sec. 661

rds adduced in
ftel. 7 C. & P.
ch declarations
lid be improper

Swatkins, 4 C.
dat the circum-
ade may render
fEect only of any

prisoner ougbt,
^ address of the

on of prosecuting
,n ordinary coun-
in a quasi judicial
part of the court;
•ase, he was to do
responsibility, not
issist the judge in
,d nothing more.

Is said per Cromp-

lion are to regard

jot to struggle fo

tor be betrayed b'

•d the question jt

and a contest ftr

Littiow, where lie
Idy been remarled
rosecutionhasibe
ifofit,itwouUbe
[if the counselbaa
find it usefUto
fed, and give lome
Len held in ^l. v.
kor the proseoition

Sec. 661]

ADDRESSES TO JURY.

761

ought not, in summing up the evidence, to make obser-
vations on the prisoner's not calling witnesses, unless, at all
events, it has appeared that he might be fairly expected to
be in a position to do so, and that neither ought counsel
to press it upon the jury that if they acquit the prisoner
they may be considered to convict the prosecutor or prose-
cutrix of perjury. Nor is it the duty of coansel for the
prosecution to sum up in every case in which the prisoner's
counsel does not call witnesses. The statute gives him the
right to do so, but that right ought only to be exercised in
exLAjjLional cases, such as where erroneous statements have
been made and ought to be corrected, or when the evidence
differs from the instructions. The counsel for the prose-
cution is to state his case before he calls the witnesses ;
then, when the evidence has been given, either to say
simply, •' I say nothing," or " I have already told you what
would be the substance of the evidence, and you see the
statement which I made is correct ; " or in exceptional
cases, as if something different is proved from what he
expected, to address to the jury any suitable explanation
which may be required : R. v. Berens, 4 F. & F. 842,
reporter's note ; R. v. Holchester, 10 Cox, 226 ; B. v.
Webb, 4 F. & F. 862. By the Canada Evidence Act of
1898, 56 Y. c. 31, s. 4, it is enacted that the failure of the
accused or of his wife or husband to testify shall not be
made the subject of comment by the judge or by counsel
for the prosecution in addressing the jury.

TJie defence. — The defendant cannot have the assistance
of counsel in examining and cross-examining witnesses,
and reserve to himself the right of addressing the jury :
R. V. White, 8 Camp. 98 ; R. v. Parkins, 1 C. & P. 548.
But see post as to statements by him to the jury. But if
the defendant conducts his own case counsel will be allowed
to address the court for him c n points of law arising in the
case : Idem. Not more than two counsel are entitled to
address the court for a prisoner during the trial upon a
point of law : R. v. Bernard, 1 F. & F. 240.

762

PROCEDURE.

[Seo. 661

The counsel for the defendant may comment on the
case for the prosecution. He may adduce evidence to any
extent, and even introduce new facts, provided he can
establish them by witnesses. He cannot, however, assume
as proved that which is not proved. Nor will he be
allowed to state anything which he is not in a situation to
prove, or to state the prisoner's story as the prisoner him-
self might have done : E. v. Beard, 8 C. & P. 142 ; B. v.
Butcher, 2 M. & Rob. 228.

At a meeting of all the judges, in 1881, in England it
was resolved: " That in the opinion of the judges it is con-
trary to the administration and practice of the criminal law
as hitherto allowed, that counsel for prisoner should state
to the jury as alleged existing facts, matters which they
have been told in their instructions, on the authority of the
prisoner, but which they do not propose to prove in
evidence": Archbold, 180.

Bishop says, 1 Cr. Proc. 311 : " No lawyer ought to
undertake to be a witness for his client, except when he
testifies under oath, and subjects himself to cross-examina-
tion, and speaks of what he personally knows. Therefore,
the practice, which seems to be tolerated in many courts, of
counsel for defendants protesting in their addresses to the
jury that they believe their clients to be innocent, should
be frowned down and put down, and never be permitted to
show itself more. If a prisoner is guilty and he communi-
cates the facts fiilly to counsel in order to enable the latter
properly to conduct the defence, then, if the counsel is an
honest man, he cannot say he believes the prisoner inno-
cent; but if he is a dishonest man he will as soon say this
as anything. Thus a premium is paid for professional
lying. Again, if the counsel is a man of high reputation,
a rogae will impose upon him by a false story to make
him an " innocent agent " in communicating a falsehood to
the jury. Lastly, a decent regard for the orderly adminis-
tration of justice requires that only legal evidence be

Sec. 661]

ADDRESSES TO JURY.

763

ment on the
Idence to any
idod he can
/ever, aasume
r will he be
a situation to
prisoner him-
P. 142 ; R. V.

, in England it
adgea it ia con-
kie criminal law
ler should state
era which they
authority of the
36 to prove in

lawyer ought to
except when he
;o crosa-examina-
,wa. Therefore,
many courts, of
addreaaea to the
innocent, should
ir be permitted to
,nd he communi-
enable the latter
|the counsel is an
le prisoner inno-
p aa soon say this
for professional
high reputation,
,e Btory to make
,ing a falaehood to
orderly adminis-
fegal evidence be

produced to the jury, and the unaworn statement of the
prisoner's counsel, that he believes the prisoner innocent »
is not legal evidence. It is the author's cherished hope
that he may live to see the day when no judge, sitting
\yhere the common law prevails, will ever, in any circum-
stances, permit such a violation of fundamental law, of true
decorum, and of high policy to take place in his presence
as is involved in the practice of which we are now
speaking."

On the same subject it is said in 3 Wharton's Cr. L.
3010 : " Nor is it proper for counsel in any stage of the
case to state their personal conviction of their client's inno-
cence. To do so is a breach of professional privilege, well
deserving the rebuke of the court. The defendant is to be
tried simply by the legal evidence adcaced in the case; and
to intrude on the jury statements not legal evidence is an
incerference with public justice of such a character that, if
persisted in, it becomes the duty of the court, in all cases
where this can be done constitutionally, to discharge the
jury and continue the case. That which would be con-
sidered a high misdemeanour in third parties cannot be
permitted to counsel. And where the extreme remedy of
discharging the jury is not resorted to, any undue or
irregular comment by counsel may be either stopped at «ihe
time by the court, or the mischief corrected by the judge
when charging the jury."

Summing up by the defence. — The counsel for the pri-
soner or the prisoner himself is entitled at the close of the
examination of his witnesses to sum up the evidence: R. v.
Wainwright, 13 Cox, 171. In practice, it is the only time
when the counsel for the prisoner addresses the jury, and
what has just been said on the defence generally applies to
the address to the jury, whether made before or after the
examination of witnesses.

The rule formerly was that if the prisoner's counsel has
addressed the jury the prisoner himself will not be allowed

., ■{«,

■1

764

PROOEDtTRB.

[Sec. 661

to address the jury also : B. v. Boucher, 8 C. & P. 141 ;
R. V. Burrows, 2 M. & Rob. 124 ; R. v. Rider, 8 C. & P. 589.
But the following cases show that there seems now in
England to be no well settled rule on the subject. Plere,
in Canada, now that by the Evidence Act of 1893, 56 V.c.81,
B.4, the prisoner is a competent witness, he probably will not
bo allowed to make a statement to the jury. As he is at
liberty to give his story upon oath, he should not be allowed
to protect himself from cross-examination by making tbe
same statement not upon oath.

A person on his trial defended by counsel is not entitled
to have his explanation of the case to the jury made through
the mouth of his counsel, but may, at the conclusion of bis
counsel's address, himself address the jury and make sucb
statements, subject to this, that what he says will be treated
as additional facts laid before the court, and entitling tbe
prosecution to the reply: R. v. Shimmin, 15 Cox, 122;
see reporter's note, and R. v. Doherty, 16 Cox, 806,
Warb. Lead. Cas. 242.

In R. V. Weston, 14 Cox, 346, the prisoner's counsel
was allowed to make a statement on behalf of his client.

Per Stephen, J., A prisoner may make a statement to
the jury provided he does so before his counsel's address to
the jury : R. v. Masters, 50 J. P. 104.

A prisoner on his trial defended by counsel may, at the
conclusion of his counsel's address, make a statement of
facts to the jury, but the prosecution will be entitled to
reply : R. v. Rogers, 2 B. C. L. R. 119.

In R. V. Taylor, 15 Cox, 265, the prisoners were allowed
to address the jury after their counsel : see R. v. Millhouse,
15 Cjx, 622, where the judge said that could be allowed
only where the prisoner called no witnesses.

In R. V. Borrowes, cited in Shirley's Leading Cases, 140,
the court held that a prisoner defended by counsel is uot
entitled to address the jury as a matter of right.

Sec, 661]

ADDRESSES TO JURY.

765

The Reply. — If the defeudaut brings no evidence thei
counsel for the prosecution is not allowed to reply, except
if be be the Attorney-General or Solicitor-General, or
counsel acting on behalf of either of them.

On this privilege to reply it is said in 1 Taylor Ev.»
par. 862 : " But as this is a privilege, or rather a preroga-
tive which stands opposed to the ordinary practice of the
courts, the true friend of justice will do well to watch with
jealousy the parties who are entitled to exercise it. Mr>
Home, so long back as the year 1777, very properly
observed that the Attorney-General would be grieviously
embarrassed to produce a single argument of reason or
justice on behalf of bis claim, and, as the rule which pre-
cludes the counsel for the prosecution from addressing the
jury in reply when the defendant has called no witnesses
has been very long thought to afford the best security
against unfairness in ordinary trials, this fact raises a
natural suspicion that a contrary rule may have been
adopted, and may still be followed in State prosecutions,
for a different and less legitimate purpose. It is to be
hoped that ere long this question will receive the consider-
ation which its importance demands, and that the Legis-
lature, by an enlightened interference, will introduce one
uniform practice in the trial of political and ordinary
offenders."

If the defendant gives any evidence, whether written or
parol, the counsel for the prosecution has a right to reply.
If witnesses are called merely to give evidence to character
the counsel for the prosecution is strictly entitled to reply,
though in England, in such cases, the practice is not to
reply.

In R. V. Bignold, 4 D. & B. 70, Lord Tenderden revived
an important rule, originally promulgated by Lord Kenyon,
and by which a reply is allowed to the counsel for the
prosecution if the counsel for the defendant, in his address
to the jury, states any fact or any document w'ach is not

766

PROCEDURE.

[Sec. 661

»^B

i- :

'■

'% 1 '

'!^H

1:;

■f^M

'^I^H

if >

^^^H

';♦

^^^^H

^-t )

•

^J^l

h] * ••

fl|^

IhIH

^^H

I t

'i.

^^^1

' . "?■

A ' *

,spi

- P

' ^ it'-

■ '■ "

already in evidence, although he afterwards decHnes to
prove the fact or put in the writing : 6 Burn, 857 ; see R. v.
Trevelli, 16 Cox, 289; R. v. Stephens, 11 Cox, 669; R. v.
Burns, 16 Cox, 196, Warb. Lead. Cas. 240.

' Evidence in reply. — Whenever the defendant gives evi-
dence to prove new matter by way of defence, which the
Crown could not foresee, the counsel for the prosecution is
entitled to give evidence in reply to contradict it, but then
be does not address the jury in reply before going into that
evidence. The general rule is that the evidence in reply
must bear directly or indirectly upon the subject-matter of
the defence, and ought not to consist of new matter uncon-
nected with the defence, and not tending to controvert or
dispiite it. This is the general rule, made for the purpose
of preventing confusion, embarrassment and waste of time;
but it rests entirely in the discretion of the judge whether
it ought to be strictly enforced or remitted as he may think
best for the discovery of truth and the administration of
justice : 2 Phillips' Ev. 408 ; R. v. Briggs, 2 M. & Rob.
199 ; R. V. Frost, 9 C. & P. 169. Where the counsel for
the Crown has, per incuriam, omitted to put in a piece of
evidence before commencing his reply, and the course of
justice might be interfered with if the evidence were not
given, the court may permit the evidence to be given : R.
V. White 2 Cox, 192. If evidence of his good character is
given on behalf of a prisoner, evidence of his bad character
may be given in reply : R. v. Rowton, L. & C. 520, over-
ruling R. V. Burt, 5 Cox, 284 ; see R. v. Brown, Warb.
Lead. Cas. 236 ; R. v. Triganzie, 15 0. R. 294.

Defendant's reply on evidence adduced in answer to
his own. — When evidence is adduced for the prosecution
in reply to the defendant's proof the defendant's counsel
has a right to address the jury on it, confining himself to
its bearings and relations, before the generalSreplying ad-
dress of the prosecution : Dickinson's Quart. Sess. 565.

Seo. 661]

CHARGE TO JURY.

767

Witneases may be recalled : R. v. Lamere, 8 L. C. J.
281 ; R. V. Jennings, 20 L. C. J. 291 ; 2 Taylor, Ev. par.
1331.

Charge by the judge to the jury. — It is the duty cf the
president of the court, the case on both sides being closed,
to sum up the evidence. His address ought to be free from
all technical phraseology, the substance of the charge
plainly stated, the attention of the jury directed to the
precise issue to be tried, and the evidence applied to that
issue. It may be necessary, in some cases, to read over
the whole evidence, and, when requested by the jury, this
will, of course, be done ; but in general it is better merely
to state its substance : 5 Burn, 857 ; 1 Chit. 632 ; see Re
Dillet, 16 Cox, 241, for a conviction set aside by the Privy
Council on account of the unfairness of the charge.

In 12 Cox, 549, the editors reported a case from the
United States, preceding it with the following remarks :
"Although an American case, the principles of the crim-
inal law being the same as in England, and the like duties
and powers of the judge being recognized, a carefully pre-
pared judgment on an important question that may arise
here at some time has been deemed worthy of a place for
any future reference."

The case is Commonwealth v. Magee, Philadelphia,
December, 1878, decided by Pierce, J., as follows, on a
motion for a new trial. and in arrest of judgment on the
ground of misdirection in the charge to the jury :

Pierce, J., in his judgment, said : " The evidence
against the defendant was clear and explicit by two wit-
nesses, who testified to having bought and drunk liquors
at the defendant's place within this year. The defendant
offered no testimony."

"There was nothing in the manner or matter of the
witnesses to call in question their veracity, or in the slight-
est degree to impugn their evidence; the counsel for the

T't * > " . «

-ICJ. ( , > If-

' i

768

PROCEDURE.

1 jB. ' >" 1

1 '^h

••■J .■

[SecOtti

defence did not in any manner question the truth of their
evidence, but confined his address to the jury to an attack
upon the law and the motives of the prosecutors. Were
the jury, under these circumstances, at liberty to disregard
their oaths and acquit the defendant? They had been
solemnly sworn to try the case according to the evidence,
and a regard to their oaths would lead them but to cue
conclusion, the guilt of the defendant. The counsel for the
Commonwealth states the charge to have been : ' The judge
declared that he had no hesitation in saying that, under
the evidence, it was the duty of the jury to render a verdict
of guilty under the bill of indictment.' But no matter which
form of expression was used, it was the evidence to which
I had just called their attention that indicated their duty,
and in view of which the remark was made. I perceive no
error in this. It was not a direction to the jury to convict
the defendant. It was simply pointing them to their duty.
Jurors are bound to observe their oaths of office, whether
it will work a conviction or acquittal of a defendant, and
they are not at liberty to disregard uncontradicted and
unquestioned testimony at their will and pleasure. Where,
however, the testimony is contradicted by testimony on the
other side, or a witness is impeached in his general char-
acter, or by the improbability of his story, or his demeanour,
it would be an unquestionable error in a judge to assume
that the facts testified to by him had been proved."

In 3 Wharton's Cr. L., par. 3280, it is said : "Can a
judge direct a jury peremptorily to acquit or convict if, in
his opinion, this is required by the evidence? Unless
ther'^ is a statutory provision to the contrary this is within
the province of the court, supposing that there is no dis-
puted fact on which it is essential for the jury to pass."
See, also, 1 Wharton Cr. L., par. 82a.

See charge to the jury in R. v. Dougall, 18 L. C. J. 90.

In R. V. Wadge (July 27th, 1878), for murder, Denman,
J., remarked that ** he had to take exception to the request

See. 061]

CHARGE TO JURY.

769

made to the jury by the counsel for th^ defence, that, • if
they had any doubt nbout the ense, they should give the
prisoner the benefit of ii.' That was an expression fre-
quently employed by counsel in defending prisonur^, but it
was a fallacious and an artful one, and intended to deceive
juries. The jury had no right to grant any benefit or boon
to any one, but only to be just and do their duty."

In R. V. Glass (Montreal, Q. B., March, 1877), the
counsel for the defence after the judge's charge asked him
to instruct the jury with regard to any doubt they might
have iu the case. Eamsay, J., answered, " No, I shall not
when there is no doubt."

When the judge has summed up the evidence he leaves
it to the jury to consider of their verdict. If they cannot
agree by consulting in their box they withdraw to a conven-
ient place, appointed for the purpose, an officer being
sworn to keep them, as follows, in all capital cases, (and
in other cases, when so ordered by the court, 8. 673): " You
shall well and truly keep this jury, you shall not suffer anj'
person to speak to them, neither shall you speak to them
yourself, unless it be to ask them if they are agreed on
their verdict. So help you God:" 1 Chit. 632; 6 Burn,
357.

But this formality need not appear on the face of the
record. The precautions taken for the safe keeping of the*
jury are noted by the clerk in the register, but they form^
no part of what is technically known as the record. Con-
sequently the regularity or sufficiency of this part of the
proceedings cannot be questioned upon a writ of error l
Duval V. R., 14 L. C. R. 62.

The jury coming back to the box the prisoner is brought
to the bar. The clerk then calls the jurors over by their
names, and asks them whether they agree on their verdict ;
if they reply in the affirmative, he then demands who shall
say for them to which they answer, their foreman. He
then addresses them as follows : " Gentlemen, are you

Crim. Law— 49

770

PROCEDURE.

[Sec. 661

agreed on your verdict ; how say you, is the prisoner at
the bar (or naming him if the defendant is bailed or not in
•court) guilty of the oflfence whereof he stands^ indicted, or
not guilty ? " If the foreman says guilty, the clerk of the
«ourt addresses them as follows : " Hearken to your verdict
as the court recordeth it ; you say that the prisoner at
the bar (or as the case may he) is guilty (or " not guilty," if
such is the verdict received) of the offence whereof he stands
indicted; thatisyourverdict, andsosayyouall." The verdict
is then recorded. The assent of all the jury to the verdict
pronounced by their foreman in their presence is to be con-
clusively inferred. But the court may, before recording
the verdict, either proprio motu, or on demand of either
party, poll the jury, that is to say, demand of each of them
successively if they concur in the verdict given by their
foreman : 2 Hale, 299 : Bacon's Abr. Verb, juries, p. 768 ;
1 Bishop, Cr. Proc. 1003.

The mere entry, by the clerk, of the verdict does not
necessarily constitute a final recording of it. If it appear
promptly, say after three or four minutes, that it is not
recorded according to the intention of the jury it may be
vacated and set right : E. v. Parkin, 1 Moo. 46 ; even if the
prisoner has been discharged from the dock he will be
immediately brought back, on the jury which had not left
the box saying that " not guilty " has been entered by
mistake, and that "guilty " is their verdict : R. v. Vodden,
Dears. 229.

A judge is not bound to receive the first verdict which
ihe jury gives, but may send them to reconsider it. Pol-
lock, C.B., said, in R. v. Meany, L. & C. 213 : *' A judge has
& right, and in some cases it is his bounden duty, whether
in a civil or a criminal case, to tell the jury to reconsider
their verdict. He is not bound to receive their verdict
unless they insist upon his doing so ; and where they re-
consider their verdict, and alter it, the second, and not the
first, is really the verdict of the jury." 8ee R. v. Smith, 1

Jll:

Seos. 662, 663]

QUALIFICATION OF JURORS.

771

prisoner at
lied or not in
a indicted, or
e clerk of the
) your verdict
3 prisoner at
not guilty" if
reof be stands
," The verdict
to the verdict
!e is to be con-
fore recording
aand of either
)feacb of them
given by their
juries, p. 768 ;

Russ. 749 ; Archbold, 166 ; Bacon's Abr. Verb. " verdict ; "
5 Burn, 858 ; 1 Chit. 647 ; R. v. Maloney, 9 Cox, 6 ; 2
Hale, 309.

A recommendation to mercy by the jury is not part of
their verdict : R. v. Trebilcock, Dears. & B. 453 ; R. v.
Crawshaw, Bell, 303.

The saying that " a judge is bound to be counsel for the
prisoner " is erroneous : Per Wills, J., in R. v. Gibson, 16
Cox, 181.

Qualification of Jurobs.

662. Every person qualified and summoned as a grand or petit juror,
according to the laws in force for the time being in any province of Canada,
shall be duly qualified to serve as such juror in criminal cases in that province.
R. S. C. c. 174, 8. 160.

The following words were in the repealed clause :
" whether such laws were in force or were or are enacted
by the Legislature of the Province before or after such pro-
vince became a part of Canada, but subject always to any
provision in any Act of the Parliament of Canada, and in
so far as such laws are not inconsistent with any such Act.

The Jurors and Juries Acts of Ontario and Quebec, and
s. 160 of the Dominion Criminal Law Procedure Act, are
constitutional : R. v. Provost, M. L. R. 1 Q. B. 477 ; R. v.
Bradshaw, 38 U. C. Q. B. 564 ; R. v. O'Rourke, 1 0. R. 464.

The defendant in a criminal case has no right to a com-
munication of the petit jury list : R. v. Maguire, 13 Q. L.
R. 99.

Juries de Mbdietatk Lingua Abolished as to Aliens.

603. No alien shall be entitled to be tried by a jury de viedictatc lingua;
but shall be tried as if he was a natural bom subject. R. S. C. c. 174, s. 161.

Ever since the 28 Ed. III. c. 13, aliens, under our
criminal law, have been entitled to be tried by a jury com-
posed of one half of citizens and one half of aliens or
foreigners, if so many of these could be had. It seems to
have been thought necessary, in R. v. Vonhoff, 10 L. C. J.
292, that these six aliens should be natives of the country
to which the defendant alleged himself to belong, but the

''^'f5

« i

772

PROCEDURE.

[Sec. 664

better opinion seemed to be that six aliens were required,
without regard to nationality. S. 2 of 28 Ed. III. c. 18,
says " the other half of aliens."

However, this is now of historical interest only, and by
the above clause aliens, all through the Dominion, when
indicted before a criminal court, are on the same footing as
British subjects as to the composition of the jury.

In England also, now, an alien is not entitled to a jury
de medietate linguce : 33 & 34 V. c. 14 (Imp.).

Mixed Juries in Province of Quebec.

684. In those districts in the province of Quebec in which the sheriff is
required by law to return a panel of petit jurors composed one half of persons
speaking the English language, and one half of persons speaking the French
language, he shall in his return specify separately those jurors whom he returns
as speaking the English language, and those whom he returns as speaking the
French language respectively ; and the names of the jurors so summoned shall
be called alternately from such lists. R. S. C. c. 174, s. 166.

The right to a medietate linguoe jury exists in misde-
meanours as in felonies : B. v. Maguire, 13 Q. L. B. 99.

Sub-section 2 of s. 7, 27 & 28 V. c. 41 (1864), clearly
gives that right to any prosecuted party. And though
the Quebec Legislature, by 46 V. c. 16, s. 62 (1883), has
repealed the said Act, this particular clause, giving the
right to a mixed jury, must be considered as still in force,
the Quebec Legislature not having had the right to repeal
it. Otherwise, there is no statute in the Province giving
the right to a mixed jury in any case whatever, s. 664,
ante, merely taking it for granted that the right exists. If
the Quebec Legislature had the power to repeal that clause
the Dominion Parliament had not the right to enact for
Manitoba s. 167 of the Procedure Act, now s. 665, 'post.

Where in a case of felony, in which one half of the jury,
on the application of the prisoner, were sworn as beiDg
skilled in the French language, it was discovered after
verdict that one of such French half was not so skilled iu
the French language ; held, that the trial and verdict were
null and void : B. v. Ghamaillard, 18 L. G. J. 149.

Sec. 664]

MIXED JURIES.

773

rere required,
Id. III. c. 13,

t only, and by
jminion, when
ame footing as

! jury-

titled to a jury

;o.

i which the sheriff is
d one half of persons
speaking the French
irors whom he returns
turns as speaking the
)rs so summoned shall
166.

exists in misde-
3 Q. L. R. 99.

The right to have a jury, composed of at least one half of
persons skilled in the language of the defence, must,
undoubtedly, both in Manitoba and Quebec, be exercised
^ipon arraignment. Immediately after arraignment the
venire is presumed to have issued, and if it issues without
this order the jurors must be summoned in the usual man-
ner, that is to say, without regard to language.

In R. V. Dougall, 18 L. C. J. 85, it was held by Mr.
Justice Ramsay : 1st. That where defendant has asked for
a jury composed one half of the language of the defence
six jurors speaking that language may first be put into the
box, before calling any juror of the other language; 2nd.
That the right of the Crown to tell jurors " to stand aside,"
exists for misdemeanours as well as for felonies ; 3rd. That
when to obtain Fix jurors speaking the language of the
defence all speaking that language have been called, the
Crown is still at liberty to challenge to stand aside, and is
not held to show cause until the whole panel is exhausted.
Mr. Justice Ramsay said that the calling the jurors' names
alternately from the English and French lists, mentioned
in s. 40, now s. 664, ante, is only directory, and applies only
to the calling of the jury in ordinary cases, where no order
has been given for a jury composed of one half English and
one half French. The case was reserved^ by the learned
judge, for the consideration of the full court, but only on
the one point thirdly above mentioned, given in the sum-
mary of the report of the decision of the court, at page 242,
18 L. C. J., as follows ; " Where to obtain six jurors
speaking the language of the defence (English), the list
of jurors speaking that language was called, and several
were ordered by the Crown to stand aside ; and the six Eng-
lish-speaking jurors being sworn the clerk re-commenced
to call the panel alternately from the list of jurors speak-
ing the English and French languages, and one of those
(English) previously ordered to " stand aside " was again
called: Held, that the previous ** stand aside " stood good

v:.^-!'.

'H'l m

% 1 ' ^P

/f f:'

il'i

I'll

■ill

W *

JSIHI^^H

Wp ^W I

Plii

^ ■■

/i , ■ ■ 'V

T " W,' }

) '

,: ■ V;?

774

PROCEDURE.

[Sees. 665, 66S

until the panel was exhausted by all the names on both
lists being called."

" Mixed Jcrirs in Manitoba.

66S. Whenever any person who is arraigned before the Court of Queen's
Bench for Manitoba demands a jury composed, for the one half at least, of
persons skilled in the language of the defence, if such langtiasre is either English
or French, he shall be tried by a jury composed for the one half at least of the
persons whose names stand first in succession upon the general panel and who,
on appearing and not being lawfully challenged, are found, in the judgment of
the court, to be skilled in the language of the defence.

2. Whenever, from the number of challenges or any other cause, there is
in any such case a deficiency of persons skilled in the language of the defence
the court shall fix another day for the trial of such case, and the sheriff shall
supply the deficiency by summoning, for the day so fixed, such additional
number of jurors skilled in the langxiage of the defence as the court orders, and
as are found inscribed next in succession on the list of petit jurors. R. S. C.
c. 174, s. 167.

See remarks under preceding; section.

Challenging the Array. {New).

666. Either the accused or the prosecutor may challenge the array on
the ground of partiality, fraud, or wilful misconduct on the part of the sheriff
or his deputies by whom the panel was returned, but on no other ground. The
objection shall be made in writing, and shall state that the person retuminfi^
the panel was partial, or was fraudulent, or wilfully misc(jnducted himself, as
the case may be. Such objection may be in the form KK in schedule one
hereto, or to the like effect.

2. If partiality, fraud or wilful misconduct, as the case may be, is denied
the court shall appoint any two indifferent persons to try whether the alleged
ground of challenge is true or not. If the triers find that the alleged ground
of challenge is true in fact, or if the party who has not challenged the array
admits that the ground of challenge is true in fact, the court shall direct a
new panel to be returned.

This is taken in part from 39 & 40 V. c. 78, b. 17 (Imp.)
(for Ireland).

Sec. 666]

CHALLENGES.

77&

KK.— (Section 666.)

CHALLENGE TO ARRAY.

Canada,
province of
County of

The Queen ^ The said A. B., who prosecutes for our Lad7
t;. y the Queen {or the said CD., as the case may be)

C. D. J challenges the array of the panel on the ground
that it was returned by X. Y., sheriff of the county of
[or E. F., deputy of X. Y., sheriflf of the county of , as the

case may be), and that the said X. Y. {or E. F., as the case may be)
was guilty of partiality {or fraud, or wilful misconduct) on
returning said panel.

Relationship between the sheriff and the prosecutor or
the defendant are no more by themselves grounds for
challenging the array, and R. v. Rouleau, 16 Q. L. R. 322
cannot now be followed. The form above given is very
general, but the court may order the party challenging to
give particulars : see Archbold, 171.

A challenge to the array is an exception to the whole
panel of jurors returned, and must be made before the
swearing of any of the jury is commenced.

The ground of the challenge may be either that some
fact exists inconsistent with the impartiality of the sheriff,
or other officer returning the panel, or that some fact
exists which makes it improbable that he should be im-
partial, or that some fact exists wbioh does, in fact, interfere
with bis impartiality.

The challenge must be in writing, and must set forth
the fact on which it is grounded. The court must decide
whether the alleged fact is in itself a good cause of chal-
lenge, in which case it Is ca,lled a principal challenge, or
whether it is merely a fact from which partiality may or
may not be inferred, in which case it is called a challenge
to the favour, or that the sheriff has been guilty of some
default in returning the panel.

!'■ ■„.•

776

PROCEDURE.

[Sec. 667

If the court holds that the alleged fact is a good cause
for a principal challenge, and the alleged fact is denied, or
if the court holds that the alleged fact is good as a
challenge to the favour, and either the fact or the partiality
sought to be inferred from it, or both, are denied, two triers
must be appointed by the court to try the facts in dispute.

If the triers find in favour of the challenge the panel h
quashed, and a new one is ordered to be returned by the
coroners or other officers. If they find against the chal-
lenge the panel is affirmed : Stephen's Gr. Froc. Art. 280.

Held, in an indictment against B. M., that it was ground
of principal challenge to the array that the prisoner's
husband had an action pending against the sheriff for au
assault committed on the prisoner: R. v. Rose Milne, 4 P &
B. (N. B.) 394. This case cannot now be followed.

Calling the Panel. {New).

00 V. If the array is not challenged, or if the triers find against tlie
challenge, the officer of the court shall proceed to call the names of the jurors
in the following manner : The name of each juror on the panel returned, with
his number on the panel and the place of his abode, shall be written on a
distinct piece of card, such cards being all as nearly as may be of an equal size.
The cards shall be delivered to the officer of the court by the sheriff or other
officer returning the panel, and shall, under the direction and care of the
officer of the court, be put together in a box to be provided for that purpose,
and shall be shaken together.

2. The officer of the court shall in oper court draw out the said cards, one
after another, and shall call out the name and number uixin each such card as
it is drawn, until such a number of persons have answered to their names as in
the opinion of the court will probably be sufficient to provide a full jury after
allowing for challenges of jurors and directions to stand by.

3. The officer of the court shall then proceed to swear the jury, eacli juror
being called to swear in the order in which his name is so drawn, until, after
subtracting all challenges allowed and jurors directed to stand by, twelve
jurors are sworn. If the numVwr so answering is not sufficient to provide a
full jury such officer sliall proceed to draw further names from the box, and
call the same in manner aforesaid, until, after challengei allowed and directions
to stand by, twelve jurors are sworn.

4. If by challenges and directions to stand by the panel is exhausted witli-
out leaving a sufficient number to form a jury those who have been directed to
Btand by shall be again called in the order in which they were drawn, and shall
be sworn, unless challenged by the accused, or unless tlie prosecutor ciiallenges
them and shows cause why they should not be sworn : Provided that if before

[Sec. 667

ls a good cause
,ct is denied, or
is good as a
)r the partiality
inied, two triers
its in dispute.

nge the panel is
returned by tbe
gainst the cbal-
Proc. Art. 280.

lat it was ground
t the prisoner's
the sheriff for an
lose Milne, 4 P &
followed.

triers find against the

|the names of the jurors

le panel returned, with

(, shall be written on a

nay be of an equal size.

by the sheriff or other

rection and care of tlie

ivided for that purpose,

■ out the said cards, one
uiwn each such card as
Lred to their names as in
Lrovide a full jury after
Id by.

lear the jury, each juror
lis 80 drawn, until, after
^d to stand by, twelve
sufficient to provide a
lames from the box, and
M allowed and directions

Ipanel is exhausted with-
\\o have been directed to
Ipy were drawn, and shall
flie prosecutor challenges
■ Provided that if before

Sec. 668]

CHALLENGES.

777

any such juror is sworn other jurymen in the panel become available the
prosecutor may require the names of such jurymen to be put into and drawn
from the box in the manner hereinbefore prescribed, and such jurors shall be
sworn, challenged, or ordered to stand by, as the case may be, before the
jurors originally ordered to stand bv are again called.

5. The twelve men who in manner aforesaid are ultimately sworn shall be
the jury to try the issues on the indictment, and the names of the men so
drawn and sworn shall be kept apart by themselves until such jury give in
their verdict or until they are discharged ; and then the names shall be
returned to the box, there to be kept with the other names remaining at that
time undrawn, and so toties quotks as long as any issue remains to be tried.

6. Provided that when the prosecutor and accused do not object thereto
the court may try any issue with the same jury that has previously tried or
been drawn to try any other issue, without their names being returned to the
box and redrawn, or if the parties or either of them object to some one or more
of the jurors fonning such jury, or the court excuses any one or more of them,
then the court may order such persons to withdraw, and may direct the
requisite number of names to make up a complete jury to be drawn, and the
persons whose names are so drawn shall be sworn.

7. Provided also, that an omission to follow the directions in this section
shall not affect the validity of the proceedings.

This section is taken from the 39 &c 40 V. c. 78, s. 19
(Imp.), for Ireland. i

Challenges, Etc.

OOS- Every one indicted for treason or any offence punishable with death
is entitled to challenge twenty jurors peremptorily.

2. Every one indicted for any offence, other than treason or an offence
punishable with death, for which he may be sentenced to imprisonment for
more than five years, is entitled to challenge twelve jurors peremptorily.

3. Every one indicted for any other offence is entitled to challenge four
jurors peremptorily.

4. Every prosecutor and every accn d i^erson is entitled to any number of
chiiUenges on any of the following grounds : that is to say :

(a) that any juror's name does not appejvr in the panel : Provided that no
misnomer or misdescription shall be a ground of challenge if it apiiears to the
court that the description given in the panel sufficiently designates the persons
referred to ; or

[b) that any juror is not indifferent between the Queen and the accused ; or

(r) that any juror has been convicted of any offence for which he was
sentenced to death or to any term of imprisonment with hard labour or exceed-
ing twelve months ; or

(d) that any juror is an alien.

5. No other ground of challenge than those above-mentioned shall be

allowed.

6. If any such challenge is made the court may in its discretion require the
party challenging to put his challenge in writing. The challenge may be in

ttllil

778

PROCEDURE.

[Sec. 668

the form LL in schedule one hereto, or to the like effect. The other party may
deny that the g^round of challenge is true.

7. If the ground of challenge is that the jurors' names do not appear in the
panel, the issue shall be tried by the court on the voir dire by the inspection of
the panel, and such other evidence as the court thinks fit to receive.

8. If the ground of challenge be other than as last aforesaid the two jurors
last sworn, or if no jurors have then been sworn then two persons present
whom the court may appoint for that purpose shall be sworn to try whether
the juror objected to stands indifferent between the Queen and the accused, or
has been convicted, or is an alien, as aforesaid, as the case may be. If the
court or the triers find against the challenge the juror shall be sworn. If
they find for the challenge he shall not be sworn. If after what the court con-
siders a reasonable time, the triers are unable to agree the court may discharge
them from giving a verdict, and may direct other persons to be sworn in their
place.

9. The Crown shall have power to challenge four jurors peremptorily,
and may direct any nimiber of jurors not peremptorily challenged by the
accused to stand b> until all the jurors have been called who ar« available for
the purpose of trying that indictment.

10. The accused may be called upon to declare whether he challenges any
jurors peremptorily or otherwise, before the prosecutor is called upon to declare
whether he requires such juror to stand by, or challenges him either for cause
or peremptorily. R. S. C. c. 174, ss. 163 & 164 . (Amended).

Hi.— (Section 668.)

Canada,
Province of,
County of

The Queen

CD.,

the panel {or

CHALLENGE TO POLL.

•J

The said A.B., who prosecutes, &c (or the
said CD., as the case may be) challenges G.H.,
on the ground that his name does not appear in
that he is not indi£ferent between the Queen and
the said CD., " or " that he was convicted and sentenced to
(' death ' or • penal servitude,' or • imprisonment with hard
labour,' or ' exceeding twelve months,' " or *• that he is disquah-
fied as an alien."

"Jurors" in second line of s-s. 10 ought to be "juror."

The word " last " in s-s. 8 constitutes a change in the
law as given in Bacon's Abr. Juries E. 12 : 3 Blacks. 363 ;
2 Hale, 275; and Archbold, 176, that the two first jurors
sworn are to try all the subsequent challenges. The rule

..< ll

Sec. 668]

CHALLENGES.

that when the challenge is made to the first juror and dis-
allowed by the two triers chosen by the court, then this
first juror is joined to the two triers till another juror is
sworn is not reproduced. See s. 675.

A challenge to the polls is an exception to some one or
more individual juror or jurors. It may be made orally.
See s-s. 6, ante. After issue joined between the crown and
the prisoner, when the jury is called and before they are
sworn, is the only time when the right of challenge can be
exercised : R. v. Key, 2 Den. 347 ; R. v. Shuttleworth, 2
Den. 341 1; Stephen's Hist. 302. In R. v. Giorgetti,
^ F. & F. 546, it was held that the challenge must be made
before the book is given into the hands of the juror, and
before the officer has recited the oath, and it comes too late
afterwards though made before the juror has kissed the
book. In R. v. Frost, 9 C. & P. 136, it was held that the
challenge of a juror, either by the Crown or by the prisoner,
must be before the oath is commenced. The moment the
oath has begun it is too late. The oath is begun by the
juror taking the book, having been directed by the officer of
the court to do so. But if the juror takes the book with-
out authority neither party wishing to challenge is to be
prejudiced thereby. But a juror may be challenged even
after being sworn if the prosecutor consents : Bacon's Abr.
Verb. Juries, 11 ; 1 Chit. 545 ; R. v. Mellor, Dears. & B.
494, per Wightman, J.

By s-s. 10 of s. 668, the prisoner may be compelled to
eibaust all his challenges before the Crown is called upon to
show cause for its challenges or order to stand aside:
1 Stephen's Hist. 303.

It is obvious that each juror must be sworn separately
in all cases, see s-s. 3, s. 667, ante.

The accused is to be informed before the swearing of
tbe jurors that if he will challenge them or any of them
he must challenge them as they come to the book to be
sworn and before they are sworn ; the following is the

i i

780

PROCEDURE.

[Sec. CCS

usual form : " Prisoner, these good men, whose names you
shall now hear called, are the jurors who are to pass between
our Sovereign Lad}' the Queen and you upon your trial
(in a capital case, upon yoar life and death) ; if, therefore,
you would challenge them or any of them, you must chal-
lenge them as they come to the book to be sworn, and
before they are sworn, and you shall be heard": 1 Gbii.
631.

The accused must make all his challenges in person,
even in cases where he has counsel : 1 Chit. 546 ; 2
Hawk. 570. The practice is not uniform on that point.

To enable the accused to make his challenges he is
entitled to have the whole panel read over, in order that
he may see who they are that appear: 2 Hawk. 570;
Townly's case, Fost. 7.

A. challenge to the polls is either peremptory or for
cause ; a peremptory challenge is such as is allowed to be
made to a juror without assigning any cause ; the number
of these challenges allowed in each particular case is settled
by 8. 668, ante.

Peremptory challenges are not allowed upon any colla-
teral issue : R. v. Batcliffe, Fost. 40 ; Barkstead's case,
Kel. 16; Johnson's case, Fost. 46; R. v. Paxtou, 10
L. C. J. 213.

Hale, 2 P. C. 267d, says that no peremptory challenges
are allowed to the defendant "if he had pleaded any foreign
plea in bar or in abatement, which went not to the trial of
the felony, but of some collateral matter only." And it is
added, in Bacon's Abr. Verb. Juries, 9, that " this peremp-
tory challen}{e seems by the better opinion to be only
allowable when the prisoner pleads the general issue.''
This would seem to take away the right of peremptorily
challenging on the trial of pleas of ** autrefois acquit " or
•* autrefois convict.*' But it is not so ; the issue on a plea
of this kind is not a collateral issue. And it is said in 2
Hale, loc. cit., that if a man plead not guilty, or 2>le(^(l «''y

[Sec. CBS

ose names you
io pass between
pon your trial
); if, therefore,
you must chal-
be sworn, an(\
leard": 1 Cbii.

inges iu peraon,
1 Chit. 546; 2
)n that point,
challenges he is
er, in order that
:: 2 Hawk. 570;

eremptory or for
tB is allowed to be
.use ; the number
liar case is settled

jd upon any colla-

Barkstead's case,

Ir. v. Paxton, 10

Imptory challenges
lleaded any foreign
not to the trial of
only." And it is
[hat •' this peremp-
Pinion to be only
he general issue.''
Lht of peremptorily
litrefois acqidt," 0"^
[the issue on a plea
lAnd it is said in 2
luilty. or rlc(^^l i<M^j

Sec. 668]

CHALLENGES.

781

other matter of fact triable by the same jurfi, and plead
over to the felony, he has his peremptory challenges. By
collateral issues must be understood, for instance, where a
criminal convict pleads any matter allowed by law in bar
of execution, as pregnancy, pardon, an act of grace, or, as
in Ratcliffe's case, above cited, when a person brought to
the bar to receive his sentence says that he is not the same
person that was convicted, the issues in these cases being
always tried by a jury instanter.

Where several persons are tried by the same jury each
of such persons has a right to his full number of peremp-
tory challenges in all cases where the right of peremptory
challenge exists; and if twenty men were indicted for the
same offence by one indictment yet every prisoner should
be allowed his full number of peremptory challenges. Th ey
may join in their challenges, if they wish to be tried
together, and then they can only challenge amongst them
to the number allowed to one: s. 671, posi. But if they
refuse to do so the Grown has the right of trying each, or
any number of them less than the whole, separately from
the others, in order to prevent the delay which might arise
from the whole panel being exhausted by the challenges : 1
Chit. 535.

So, in Charnock's case, 3 Salk. 80 (in many books
erroneously called Char wick,) three being indicted together.
Holt, C.J., told them '* that each of them had liberty ta
challenge thirty-live of those who were returned upon the
panel to try them, without showing any cause; but that if
they intended to take this liberty, then they must be tried
separately and singly, as not joining in the challenges; but,
if they intended to join in the challenges, then they could
challenge but thirty-five in the whole, and might be tried
jointly upon the same indictment ; " accordingly, they all
three joined in their challenges and were tried together and
found guilty.

Il'lir

782

PROCEDURE.

[Sec. 668

A challenge to the polls for cause Ib either 2^ri>icipal or
for favour : it is allowed to both the prosecutor and the
defendant : Archbold, 152.

It is said in Archbold, 156 : " The defendant in treason
or felony may, for cause shown, object to all or any of the
jurors called, after exhausting his peremptory challenges of
. thirty-five or twenty." If this means that the prisoner
must first exhaust all his peremptory challenges, before
being allowed to challenge for cause, it is an error, and was
80 held by the Court of Queen's Bench, in Ontario, in R. v.
Whelan, 28 U. C. Q. B. 2, confirmed by the Court of Appeal,
28 U. C. Q. B. 108, in which case, it was unanimously held
that the prisoner is entitled to challenge for cause before
exhausting his peremptory challenges, Richards, C.J., con-
curring, though he had at first at the trial, on Archbold's
passage above cited, ruled that the prisoner, before being
allowed to challenge for cause, must first have exhausted
his peremptory challenges.

If the prosecutor or the dufsndant have several causes
of challenge against a juror he must take them all at the
same time: Bacon's Abr. Verb, juries, 11; 1 Chit. 545.

If a juror be challenged for cause and found to be indif-
ferent he may afterwards be challenged peremptorily, if
the number of the peremptory challenges is not exhausted ,
1 Chit. 545 ; R. v. Geach, 9 C. & P. 499.

The most important causes of a principal challenge to
the polls are : 1. Pri-^^ier defectum, on account of somt
personal objection, as alienage, minority, old age, insanity,
present state of drunkenness, deafness, or a want of the
property qualifications required by law. 2. Propter affeo
turn, on the ground of some presumed or actual partiality
in the juror who is objected to; as if he be of atliuityto
either party, or in his employment, or is interested in tbe
event, or if he has eaten or drunk at the expense of one of
the parties, if the juror has expressed his wishes as to tlie

[Sec. Gfi8

er imncipal or
cutor and tbe

dant in treason
il or any of the
vy cballenges of
at the prisoner
allenges, before
a error, and \9as
Ontario, in R. v.
Court of Appeal,
inanimously held
for cause before
•hards, C.J., con-
al, on Archbold's
,ner, before being
st have exhausted

ive several causes
le them all at the
1 Chit. 545.

foundtobeindif-
1 peremptorily, if
, is not exhausted ;

Icipal challenge to
1 account of some
t old age, inaanity,
' or a want of the
2. Proi)ter affec-
[x actual partiality
heheoi affinity to
L interested in tbe
3 expense of one o(
lis wishes as to tbe

Soo. 668]

CHALLENGES.

783

result of the trial, or his opinion of the guilt or innocence
of the defendant, also if he was one of the grand jurors who
found the indictment upon which the prisoner is then
arraigned, or any other indictment against him on the same
facts. 3. Propter delictwn, on the ground of infamy as
where the juror has been convicted of treason, felony,
perjury, conspiracy, or any other infamous ofifence ; see s.
668, ante.

A challenge to the polls for favour is founded on the alle-
gation of facts not sufficient in themselves to warrant the
court in inferring undue influence or prejudice, but suffi-
cient to raise suspicion thereof, and to warrant inquiry
whether such influence or prejudice in fact exists. The
cases of such a challenge are manifestly numerous, and
dependent on a variety of circumstances, for the question
to be tried is whether the juryman is altogether indifferent
as be stands unsworn. If a juror has been entertained in
the party's house, or if they are fellow-servants, are cited
as instances of facts upon which a challenge for favour may
be taken : 1 Chit. 544.

In the case of a principal challenge to the polls the
court, without triers, examines either the juror challenged,
or any witness or evidence then offered, to ascertain the
truth of the fact alleged as a ground of challenge, if this
fact is not admitted by the adverse party; and if the
ground is made out to the satisfaction of the court, the
challenge is at once allowed, and the juror set aside.

In these cases, the necessary conclusion in law of the
fact alleged against the juror is that he is not indifferent,
and this, as a matter of law, must be decided by the

court.

But in the case of a challenge for favour the matter of
challenge is left to the discretion of triers. In this case
the gi'ounds of such challenge are not such that the law
necessarily infers partiality therefrom, as, for instance,

'm\

(J' -#

jMj,

784

PROCEDURE.

[Sec. GG8

relationship ; but are reasonable grounds to suspect that the
juror will act under some undue influence or prejudice.

Bishop says, 1 Cr. Proc. 905 : " It is plain that the line
which separates the challenge for principal cause and the
challenge to the favour must be either very artificial, or
very uncertain."

And Wharton, 3 Cr. L. 3125, says : " The distinction,
however, between challenges for favour and those for prin-
cipal cause is so fine that it is practically disregarded."

The oath taken by the triers is as follows : " Tou shall
well andtridy try whether A. B., one of the jurors, stands
indifferent to try the prisoner at the bar, and a true verdict
give according to the evidence. So help you God."
'■' No challenge of triers is admissible : 1 Chit. 549.

The oath to be administered to the witnesses brought
before the triers is as follows :

" The evidence which you shall give to the court and triers
upon this inquest shall he the truth, the ivhole truth, cmd
nothing hut the truth. So help you God."

If this challenge is made to the first juror, and before
any one has been sworn, then the court will direct two
indifierent persons, not returned of the jury, to act as
triers ; if they find against the challenge the juror will be
sworn, and he joined ivith the triers in determining the
next challenges. Such has been the rule heretofore, though,
as noted above, it is not enacted in s. 668.

But as soon as two jurors have been found indifierent
and have been sworn then the office of the first two triei-s
ceases, and every subsequent challenge is referred to the
decision of the two first jurors sworn : 3 Blacks. 363 ; (now
the two last, s. 668). If the challenge is made when there
is yet only one juror sworn, one trier is chosen by each
party, and added to the juryman sworn, and the three,
together, try the challenges till a second juror is sworn:
1 Chit. 549; Bacon's Abr. Verb. Juries, E. 12; 2 Hale, 274;
s. 675.-*

Sec. C)6S]

CHALLENGES.

785

suspect that the
or prejudice,
ain that the line
lI cause and the
i^ery artificial, or

'The distinction,
id those for prin-
disregarded."
,lows : " You shall
the jurors, stands
and a true verdict

you God.
1 Chit. 549.
witnesses brought

Uhe court andtriers
le ivhole truth, md

d."

it juror, and before
Lrt will direct two
iC jury, to act as
[e the juror will be
■,n determining tk
heretofore, though,

^n found indifferent
the first two triei^
is referred to the
Blacks. 363 ; (now
L made when there
I is chosen by each
lorn, and the three,
pnd juror is sworn:
I E 12; 2 Hale, 214;

The trial then proceeds by witnesses before the triers,
in open court ; the juror objected to may also be examined,
having first been sworn as follows :

" Yoiv shall true answer rruike to all such questions as
the court shall demand of you. So help you God."

The challenging party first addresses the triers and calls
his witnesses ; then the opposite party addresses them and
calls witnesses if he sees fit, in which case the challenger
has a reply. But in practice there are no addresses in
such cases. The judge sums up to the triers who then
say if the juror challenged stands indifferent or not ; this
verdict is final : Roscoe, 197, 198. But a juror challenged
by one side and found to be indifferent may still be chal-
lenged by the other : 1 Chit. 545.

See R. V. Mellor, Dears. & B. 468 ; Morin v. R., 16 Q. L. R.
366, 18 S. C. R. 407; Brisebois v. The Queen, 15 S. C. R. 421 ;
Bowsse V. Cannington, cited in Doe v. Oliver, 2 Sm. Lead.
Cas. 780 ; Mansell v. R., Dears. & B. 375 ; R. v. Geach, d
C. & P. 499; 1 Chit. 547; 4 Blacks. 353. In Morin v.
R. uhi supra, the result in the Supreme Court was that
the court had no jurisdiction to determine the question
raised. All that was said upon the merits of that question
is obiter.

On a trial for forgery the panel of petit jurors contained
the names of Robert Grant and Robert Crane. Robert
Grant, as was supposed, was called and went into the box.
After conviction, and before the jury left the box, it was
discovered that Robert Crane had by mistake answered to-
the name of Robert Grant, and that Robert Crane wasi
really the person who had served on the jury : held, a
mis-trial : R. v. Feore, 3 Q. L. R. 219.

The prisoner should challenge before the juror takes the
book in his hand, but the judge, in his discretion, may allow
the challenge afterwards before the oath is fully admin-
istered : R. V. Kerr, 3 L. N. 299.
Criu. Law— 60

786

PROCEDURE.

[Sees. 669-672

Challenge by the Crown in Libel Cases.

069. Special provision as to the right of the Crown to cause any juror
to stand aside in a libel case. See ante, under s. 302, p. 305.

On a public prosecution for libel by order of the

Attorney-General this section does not apply: R. v.

Maguire, 13 Q. L. R. 99. But in all trials for libels upon

private individuals this section applies, even when the

prosecution is conducted by a counsel appointed by and

representing the Attorney-General : R. v. Patteson, 36 U.

C. Q. B.129.

But it is restricted to cases of libel : R. v. Brice, 15
^. L. R. 147.

Challbnoes in Case of Mixed Jurobs.

I ©70. Whenever a person accused of an oifence for which he would be
Entitled to twenty or twelve peremptory challenges as hereinbefore provided
elects to be tried by a jury composed one-half of persons skilled in the language
of the defence under sections six hundred and sixty-four or six hundred and
sixty-five, the number of peremptory challenges to which he is entitled shall
be divided, so that he shall only have the right to challenge one half of such
number from among the English speaking jurors, and one half from among the
French speaking jurors. R. S. C. c. 174, ss. 166 & ^67.

This applies to Quebec and Manitoba: ss. 664, 665,
ante. When the accused has only four peremptory chal-
lenges this s. 670 does not apply. The crown exercises its
challenges without regard to the language of the jurors.

Joint Trials.

071* If several accused persons are jointly indicted and it is proimed to
try them together, they or any of them may either join in their challenges, in
which case the persons who so join shall have only as many challenges as a
single person would be entitled to, or each may make his challenges in the
«ame manner as if he were intended to bo tried alone.

That has always been the law ; see remarks, cmif,

under s. 668.

Ordering Tales.

67*2. Whenever after the proceedings hereinbefore provided the panel
has been exhausted, and a complete jury cannot be had by reason thereof,
then, upon request made on behalf of the Crown, the court may order the sheriff ot
other proper officer forthwith to summon such uuinber of ijcrsons whether
qualified jurors or not as the court deems necfci!s.;ry and directs in order to
make a full jury ; and such jurors may, if necessary, be eummoned I'y word of
mouth.

si.i

[Sees. 669-672

3E8.

ti to cause any juror

(5.

order of the

) apply- ^- ^•

for libels upon

even when the

^pointed by and

-, Patteson, 36 U.

: E. V. Brice, 15

BORS.

, for which he would be
fl hereinbefore provided
18 skilled in the language
four or six hundred and
hich he is entitled shall
allenge one half of such
1 one half from among the

toba: ss. 664, 665,
peremptory chal-
crown exercises its
age of the jurors.

lictedanditisproiK-sedto

oin in their challenges, in

.Was many challenges as a

ie his challenges in the

\ee remarks, «^if.

Lfore provided the pane
fbe had by reason thereo ,
Lt may order the Bhen

Lnber of l^rsons whe «
l,y and directs in order^

tie summoned by word 0'

Sees. 673-675]

JURIES.

787

2. The names of the persons so summoned shall be added to the general
panel, for the purposes of the trial, and the same proceedings shall be taken as
to calling and challengring such persons and as to directing them to stand by as
are hereinbefore provided for with respect to the persons named in the original
panel. R. S. 0. c. 174, s. 168^ ,.

This is a re-enactment.

Jurors not to Sbparatb. (New).

6T3« The trial shall proceed continuously; subject to the power of the
court to adjourn it. Upon every such adjournment the court may in all cases,
if it thinks fit, direct that during the adjournment the jury shall be kept
together, and proper provision made for preventing the jury from holding
communication vdth any one on the subject of the trial Such direction shall
be given in all cases in which the accused may upon conviction be sentenced
to death. In other cases, if no such direction is given, the jury sh&ll be per-
mitted to separate.

2. No formal adjournment of the court shall hereafter be required, and no
entry thereqf in the Crovm book shall be necessary. R. S. C. c. 174, s. 169.

Jurors may have Fire, Etc. (New).
674> Jurors, after having been sworn, shall be allowed at any time before
^ving their verdict the use of fire and light when out of court, and shall also
be allowed reasonable refreshment. 53 V. c. 57, s. 21.

Sating Clause.

675. Nothing in this Act shall alter, abridge or affect any power or
authority which any coui't or judge has when this Act takes effect, or any
practice or form in regard to trials by jury, jury process, juries or jurors,
except in cases where such power or authority is expressly altered by or is
inconsistent with the provisions of this Act. R. S. C. c. 174, s. 170.

Section 673 alters the law ; s. 674 was first enacted in
1890.

On a trial for felony the jury could not be allowed to
separate during the progi-ess of the trial, and where such
separation took place it was a mis-trial, and the court then
directed that the party convicted be tried again as if no
trial had been had in such case : R. v. Derrick, 23 L. C. J.
239.

It seems to have always been admitted that in misde-
meanours the jury might be allowed to separate during the
trial : K. v. Woolf , 1 Chit. Rep. 401 ; R. v. Kinnear, 2 B. &
Aid. 462.

There is no doubt that, generally speaking, the judge
ought not to allow the jury to separate in cases where the

.*','

788

PROCEDURE.

[Sec. 6'

punishment may be for over five years' imprisonment. In
fact, some judges never allow the jury to separate and if
it can be done without too much inconvenience, this is,
perhaps, the best practice. When, however, such separation
is permitted, the judge ought to caution the jury against
holding conversation with any person respecting the case,
or suffering it in their presence, or reading newspaper
reports or comments regarding it, or the like : see 1 Bishop,
Cr. Proc. 996. They are not allowed to separate after they
have retired to consider their verdict : s. 727.

The doctrine that " a jury sworn and charged in case
of life or member cannot be discharged by the court, but
they ought to give a verdict," is exploded, and it may now
be considered as established law that a jury sworn and
charged with a prisoner, even in a capital case, may be
discharged by the judge at the trial without giving a ver-
dict, if a necessity — that is a high degree of need — for
such discharge is made evident to his mind. If after delib-
erating together the jury say that they have not agreed,
and that they are not likely to agree, the judge may dis-
charge them. It lies absolutely in his discretion how long
they should be kept together, and his determination on the
subject cannot be reviewed in any way : R. v. Charles-
worth, 2 F. & F. 326, 1 B. & S. 460; Winsor v. K (in
error), 7 B. & S. 490, 10 Cox, 276 ; s. 728 post.

In the course of the trial one of the jurors had, without
leave, and without it being noticed by any one, left the
jury box and also the court-house, whereupon the court
discharged the jury without giving a verdict, and a fresh
jury was empannelled. The prisoner was then tried anew,
and convicted before the fresh jury : Held, by the Court
of Criminal Appeal, that the course pursued was right : R.
v. Ward, 10 Cox, 573.

If a juryman is taken ill, so as to be incapable of
attending through the trial, the jury may be discharged,
and the trial and examination of witnesses begun over

[Sec. 675

)risoninent. In
separate and if
enience, this is,
, such separation
bhe jury against
aecting the case,
ding newspaper
:e : see 1 Bishop,
parate after they
'27.

I charged in case
by the court, but
I, and it may now
I jury sworn and
ital case, may be
lOut giving a ver-
yree of need— for
id. If after delib-
have not agreed,
le judge may dis-
iscretion how long
lermination on the
tv : R. V. Charles-
Winsor v. R. (in
post.
lurors had, without
any one, left the
lereupon the court
[erdict, and a fresh
,8 then tried anew,
:eW, by the Court

lued was right: R.

L be incapable of
[nay be discharged,
Inesses begun over

Sec. 675]

JURIES.

789

again another juror being added to the eleven; but in that
case the prisoner should be offered his challenges over again
as to the eleven, and the eleven should be sworn de novo :
R. V. Edwards, R. & R. 224 ; see also R. v. Scalbert, 2 Leach,
620 ; R. V. Beere, 2 M. & Rob. 472 ; R. v. Gould, 3 Burn, 98.

In R. V. Murphy, 2 Q. L. R. 383, after the prisoner had
been given in charge to the jury, the case was adjourned
for one day on account of his counsel's illness.

But when such a trial has to be begun over again it is
not regular, whether the prisoner assents to it or not, instead
of having the witnesses examined anew viva voce, to simply
call and swear them over again and then read over the
notes of their evidence taken by the judge on the first trial,
even if, then, each witness is asked if what was read was
true, and is submitted at the pleasure of the counsel on
either side to fresh oral examination and cross-examina-
tion : R. V. Bertrand, 10 Cox, 618.

Although each juryman may apply to the subject before
him that general knowledge which any man may be sup-
posed to have, yet if he be personally acquainted with any
material particular fact he is not permitted to mention the
circumstance privately to his fellows, but he must submit
to be publicly sworn and examined, though there is no
necessity for his leaving the box, or declining to interfere
in the verdict : R. v. Rosser, 7 C. & P. 648 ; 2 Taylor, Ev.
par. 1244 ; 3 Burn 96 ; see R. v. Petrie, 20 O. R. 317.

A juror was summoned in error but not returned in the
panel, and in mistake was sworn to try a case during the
progress of which these facts were discovered. The jury
were discharged and a fresh jury constituted : R. v. Phil-
lips, 11 Cox, 142. It is not necessary when a jury are dis-
charged without giving a verdict to state on the record the
reason why they are so discharged: R. v. Davison, 2 F. & F.
250, 8 Cox, 360.

The rule is that the right to discharge the jury without
giving a verdict ought not to be exercised except in some

'• V

790

PROCEDURE.

[Sec. 675

case of physical necessity, or where it is hopeless that the
jury will agree, or where there have been some practices to
defeat the ends of justice. If after the prisoner is given in
charge, though before any evidence is given, it is discovered
that a material witness for the prosecution is not acquaint-
ed with the nature of an oath, it is not a sufficient ground
for discharging the jury so that the witness might be
instructed before the next assizes upon that point, and a
verdict of acquittal must be entered if the prosecution has
no other sufficient evidence : R. v. Wade, 1 Moo. 86. R. v.
White, 1 Leach, 430, seems a contrary decision, but is now
overruled by the above last cited case. Where, during the
trial of a felony, it was discovered that the prisoner had a
relation on the jury, Erskine, J., after consulting Tindal,
C.J., held that he had no power to discharge the jury but
that the trial must proceed : R. v. Wardle, Car. & M. 647.

If it appear during a trial that the prisoner, though he
has pleaded not guilty, is mad, the judge may discharge
the jury of him, that he may be tried after the recovery of
his understanding: 1 Hale, 34: see ^'^^sif, sections 737, et seq.,
and remarks thereunder.

In Kinloch's case, Fost. 16, 23, et seq., it was held that a
jury can be lawfully discharged in order to allow the
defendant to withdraw his plea of " not guilty," and to
plead in bar.

On a writ of error the record showed that on the trial
the judge discharged the jury after they were sworn, in
consequence of the disappearance of a witness for the
crown, and the prisoner was remanded. Held, that the
judge had a discretion to discharge the jury which a court
of error could not review ; that the discharge of the jury
without a verdict was not equivalent to an acquittal, aud
that the prisoner might be put on trial again : Jones v. R,
3 L. N. 309.

A jury had been sworn on the previous day to try the
prisoner on an indictment for murder. In the coui-se of the

[Sec. 675

peless that the
me practices to
oner is given in

it is discovered
is not acqiiaint-
iifficient ground
tness might he
tiat point, and a

prosecution has
. Moo. 86. R. V.
ision, but is now
/here, during the
[le prisoner had a
onsulting Tindal,
irge the jury but
5, Car. & M. 647.
risoner, though he
ge may discharge
er the recovery oi
jctions 737, et seq..

Sees. 676, 67:1

WITNESSES.

791

it was held that a
•der to allow the
ot guilty," and to

d that on the trial
ey were sworn, in
witness for the
Held, that the
ury which a court
[harge of the jury
an acquittal, and
[gain : Jones v. K,

|iou8 day to try the
In the course of the

trial one of the jurors was discharged because he came
from a house where there was small-pox. The case being
resumed before a new jury the prisoner contended that,
having been once put in jeopardy of his life, no new trial
could be had. The court overruled the objection : R. v.
Considine, 8 L. N. 307.

A juror may be a witness. He is then twom without
leaving the jury box : 2 Taylor, Ev., par. 1244. See R. v.
Rosser, 7 C. & C. 648. Under s. 675 it seems that the
whole of s. 7 of the 27 & 28 V. c. 41 (1864), is still in force in
the Province of Quebec, (see remarks under s. 664, ante),
except s-8. 8 & 9 thereof, which are repealed by 49 V.
c. 4 (D.).

Proceedings Whejt Previous Conviction Charged.

0T6. The proceedings upon any indictment for committing any offence

after a previous conviction or convictions shall be as follows, that is to say :

the offender shall, in the first instance, be arraigned upon so much only of the

indictment as charges the subsequent offence, and if he pleads not guilty, or if

the court orders a plea of not guilty to be ei)«ered on his behalf, the jury shall

be charged, in the first instance, to inquire concerning such subsequent

offence only ; and if the jury finds him guilty, or if on arraignment he pleads.

guilty, he shall then, and not before, be asked whether he was so previousl>

convicted as alleged in the indictment ; and if he answers that he was so

previously convicted the court may proceed to sentence him accordingly, but.

if he denies that he was so previously convicted, or stands mute of malice, or

will not answer directly to such question, the jury shall then be charged to

inquire concerning such previous conviction or convictions, and in such case it

shall not be necessary to swear the jury again, but the oath already taken by

them shall, for all purposes, be deemed to extend to such last mentioned

inquiry : Provided, that if upon the trial of any person for any such subsequent

offence, such person gives evidence of his good character, the prosecutor may,

in answer thereto, give evidence of the conviction f>f such person for the

previous offence or offences before sxich verdict of guilty is returned, and the

jury shall inquire concerning such previous conviction or convictions at the

same time that they inquire concerning such subsequent offence. R. S. C

c. 174, s. 207.

See s. 628, ante, and remarks thereunder
field, 16 Cox, 314.

Witnesses' Attendance.

R. v. Wood-

677. Every witness duly subpoenaed to attend and give evidence at any
criminal trial before any court of criminal jurisdiction shall be bound to attend
and remain in attendance througho'it the trial. R. S. C. c. 174, s. 210.

792

PROCEDURE.

Compelling Attendance of Witnesses,

[Sees. 678-680

618- Upon proof to the satisfaction of the judge of the service of the
subpoena upon any witness who fails to attend or remain in attendance, or
upon -its appearing that any witness at the preliminary examination has
entered into a recognizance to appear at the trial, and has failed so to appear,
and that the presence of such witness is material to the ends of justice, the
judge may, by his warrant, cause such witness to be apprehended and forth-
with brought before him to give evidence and to answer for his disregard of
the subpoena ; and such witness may be detained on such warrant before
the judge or in the common gaol with a view to secure his presence as a
witness, or, in the discretion of the judge, he may be released on a recogniz-
ance, with or without sureties, conditioned for his appearance to give evidence
and to answer for his default in not attending or not remaining in attendance ;
and the judge may, in a summary manner, examine into and disixise of the
charge against such witness, who, if he is found guilty thereof, shall be liable
to a fine not exceeding one hundred dollars, or to imprisonment, with or with-
out hard labour, for a term not exceeding ninety days or to both. R. S. C.
c. 174, 8. 211.

As to re-calling witnesses see R. v. Lam^re, 8 L. C. J.
181 ; R. V. Jennings, 20 L. C. J. 291 ; 2 Taylor, Ev. par.

1331.

Witness Out op the Jurisdiction,

0T9, If any witness in any criminal case cognizable by indictment in
any court of criminal jurisdiction at any term, sessions or sittings of any court
in any part of Canada, resides in any part thereof, not within the ordinary
jurisdiction of the court before which such criminal case is cognizable, such court
may issue a writ of subjMBna, directed to such witness, in like manner as if
such witness was resident within the jurisdiction of the court ; and if such
witness does not obey such writ of subpoena the court issuing the same may
proceed against' such witness for contempt or otherwise, or bind over such
witness to appear at such days and times as are necessary, and upon default
being made in such appearance may cause the recognizances of such witness to
be estreated, and the amount thereof to be sued for and recovered by process
of law, in like manner as if such witness was resident within the jurisdictiun
of the court. R, S. C, c, 174, s, 212,

Witness from Gaol or Penitentiary.

680. When the attendance of any person confined in any prison in
Canada, or upon the limits of any gaol, is required in any court of criminal
jurisdiction in any case cognizable therein by indictment, the court before
whom such prisoner is required to attend may, or any judge of such court, or
of any superior court or county court may, before or during any such term or
sittings at which the attendance of such (xarson is required, make an order
upon the warden or gaoler of tiie prison, or u^xju the sheriff or otlier person
having tffe custody of such prisoner, to deliver such prisoner to the person
named in such order to receive him ; and such person shall, at the time
prescribed in such order, convey such prisoner to the place at wliich such
person is required to attend, there to receive and obey such further order as
to the said court seems meet. R. S. C. c. 174. s. 213.

[Sec3. 678-680

the service of the
1 in attendance, or
f examination has
failed so to appear,
ends of justice, the
ehended and forth-
for his disregard of
vich warrant before
B his presence as a
eased on a recogniz-
mce to give evidence
ining in attendance ;
D and disiwse of the
lereof , shall be liable
nment, with or with-
3r to both. R. S. C.

im^re, 8 L. C. J.
Taylor, Ev. par.

able by indictment in
r sittings of any court
; within the ordinarj-
cognizable, such court
in like manner as if
le court ; and if such
issuing the same may
4e, or bind over such
iry, and upon default
ices of such witness to
recovered by process
[•ithin the jurisdiction

luY.

Ined in any prison in
lany court of criminal
>nt, the court before
Ldge of such court, or
iring any such term or
luired, make an order
Iheriff or other person
Irisoner to the person
[n shall, at the time
l)lace at which such
Luch further order as

Sec. 680]

WITNESSES.

793

At common law writ? -f subpoena have no force beyond
the jurisdictional limi^dof the court from which they issue,
but, by the above clause, 679, any court of criminal juris-
diction in Canada may summon a witness from any other
part of Canada, for instance, a criminal court in Quebec
can summon a witness in Nova Scotia, or vice versa, and if
the subpcena is not obeyed the court may proceed against
the witness in like manner as if such witness were resident
within the jurisdiction of the court. In England, 46
Geo. III. c. 92 contains a provision of the same nature.
In criminal cases the witness is bound to attend even if he
has not been tendered his expenses : 3 Russ. 575 ; Roscoe,
Ev. 104.

Section 680 renders unnecessar}'-, in criminal matters, the
writ of habeas corpus ad testificandum. It seems to go
very farj and might lead to serious consequences ; it, for
instance, authorizes a judge of the court of quarter sessions,
or of the county court in any part of the Dominion, to order
the removal of a prisoner from any other part of the
Dominion. Moreover, this removal is not, as in England, to
be made under the same care and custody as if the prisoner
was brought under a writ of habeas corpus, and by the offi-
cer under whose custody the witness is, but by any other
person named by the judge in his order, thereby, against all
notions on the subject, releasing for a while a prisoner from
the custody of his gaoler, who, of course, ceases, pro tem-
pore, to be responsible for his safe keeping. The Imperial
Act on the subject is the 16 & 17 V. c. 30, s. 9. Though our
statute does not expressly require it, an affidavit stating the
place and cause of confinement of the witness, and further
that his evidence is material, and that the party cannot, in
his absence, safely proceed to trial, sliould be given in sup-
port of the application. And if the prisoner be confined at
a great distance from the place of trial, the judge will,*per-
haps, require that the affidavit should point out in what
manner his testimony is material: 2 Taylor, Ev. par. 1149.

The word " prison " includes any penitentiary, s. 3.

;• -K

794

PROCEDURE.

[Sees. 681-6S3

Evidence of Pbrhon III may be Taken under Commission.

081- Whenever it ia made to appear at the instance of the crown, or of the
prisoner or defendant, to the satisfaction of a judge of a superior court, or a jud^e
of a county court having criminal jurisdiction, that any person, who is danger-
ously ill, and who, in the opinion of some licensed medical practitioner, is not
likely to recover from such illness, is able and willing to give material infor-
mation relating to any indictable otfence, or relating to any person accused of
any such offence, such judge may, by order under his hand, appoint a commiM-
sioner to take in writing the statement on oath or affirmation of such peison.

2. Such commissioner shall take such statement and shall subscribe the
same and add thereto the name? of the persons, if any, present at the taking^
thereof, and if the deposition relates to any indictable offence for which any
accused person is already committed or bailed to appear for trial shall transmit
the same, with the said addition, tj the proper officer of the court at which
such accused person is to be tried ; and in every other case he shall transmit
the same to the clerk of the peace of the county, division or city in which he
has taken the same, or to such other officer as has charge of the records and
proceedings of a superior court of criminal jurisdiction in such county,
division or city, and such clerk of the peace or other officer shall praservre tiie
same and file it of record, and upon order of the court or of a judge transmit
the same to the propar officer of the court where the same shall be required tj
be used as evidence. U. S. C. c. 174, s. 220.

See s. 686, post

Presence of Prisoner.

0S2< Whenever a prisoner in actual custody is served with, or receivos,
notice of an intention to take the statement mentioned in the last precediu?
section the judge who has appointed the commissioner may, by an order in
writing, direct the officer or other parson having the custody of the prisoner to
convey him to the place mentioned in the said notice for the purpose of being^
present at the taking of the statement ; and such officer or other person sliall
convey the prisoner accordingly, and the expenses of such conveyance whall be
paid out of the funds applicable to the other expenses of the prison from which
the prisoner has been conveyed. R. S. C. c. 174, s. 221.

See 8. 686, post.

Commission Out op Canada.

683* Whenever it is made to appear, at the instance of the Crown, or of
the prisoner or defendant, to the satisfaction of the judge of any superior court,
or the judge of a county court having criminal jurisdiction, that any person
who resides out of Canada is able to give material information relating to any
indictable offence for which a prosecution is pendiivj, or relating to any person
accused of such offence, such judge may, by order under his hand, appoint a.
commissioner or commissioners to take the evidence, up<m oath, of such
person.

2. Until otherwise provided by rules of court, the practice and procedure
in connection with the appointment of commissioners under this section, the
t»king of depositions by such commissioners, and the certifying and return

■ f >4

"' '«,

Sees. 684, 685]

WITNESSES.

795

thereof, and the use of such depo^^ltions as evidence at the trial, shall be, as
nearly as practicable, the same as those which prevail in the respective courts
in connection with the like matters in civil causes. 53 V. s, 37, s, 23.

Order for examination of witness out of jurisdiction
under 53 V. c. 37, s. 23 should not provide that evidence so
taken should be read before the grand jury : R. v. Chet-
wynd, 23 N. S. Rep. 332.

When Evidence must be Corroborated.

684' No person accused of an offence under any of the hereunder
mentioned sections shall be convicted upon the evidence of one witness,
unless such witness is corroborated in som'^ material particular by evidence
implicating the accused :

(a) Treason, Part IV., section sixty-five ;

(6) Perjury, Part X., section one hundred and forty-six ;

(rf) Pnxjurmg feigned marriage. Part XXII., section two hundred and
sevent,' -seven ;

(e) Forgery, Part XXXI., section four hundred and twenty-three.

Section 218, c. 174 R. S. C, as to evidence in cases of for-
gery, required corroboration only of an interested witness :
see R. v. Rhodes, 22 O. R. 480.

Evidence op Child in Certain Cases.

685. Where, upon the bearing or trial of any charge for carnally know-
ing or attempting to carnally i now a girl under fourteen or of any charge
under section two hundred and fifty-nine for indecent assault, the girl in
respect oi whom the offence is charged to have been committed, or any other
child of tender years who is tendered as a witness, does not, in the opinion of
the cjurt or justices, understand the nature of an oath, the evidence of such
girl nr other child of tender years may be received though not given upon oath
if, in the opinion of the court or justices, as the case may be, such girl or other
child of tender years is possessed of sufficient intelligence to justify the recep-
tion of the evidence and understands the duty of speaking the truth.

2, But no person shall be liable to be convicted of the offence, unless the
testimony admitted by virtue of this section, and given on behalf of the
prosecution, is corroborated by some other material evidence in support
thereof implicating the accused.

.3. Any witness whose evidence is admitted under this section is liable to
indictment and punishment for perjury in all respects as if he or she had been
sworn. 53 V.c. 37, s. 13. 4S-49 V. c. 69, s. 4 (Imp.).

-Sfee 8. 25 of the Canada Evidence Act, 1893, 56 V. c. 31.

796

PROCEDURE.

[Sees. OHG, f)H7

This provision applies to thu trial of offences under ss.
259, 269, & 270, mite.

See R. V. Wealand, 16 Cox, 402, 20 Q. B. D. 827 ; R. v.
Paul, 17 Cox, 111, 25 Q. B. D. 202 ; R. v. Pruntey, 16 Cox,
314. The evidence so given would be evidence to .support
any verdict allowed in virtue of s. 713, ^)osf, on an indict-
ment for any of the offences provided for in ss. 259, 260
&/ 270. Held, in that sense, by Court of Queen's Bench,
Montreal, May 26th, 1893, in R. v. Grantyei-s,
Depositions to bS read in Evidence.

0S6« If the evidence of a Hick jwrnon has been taken under commission
as provided in section six hundred and eighty -one, and upon the trial of any
offender for any offence to which the same relates, the person who made tlie
statement is proved to be dead, or if it is proved that there is no reasonable
probability that such jjerson will ever be able to attend at the trial to give evi-
dence, such statement may, upon the production of the judge's order apiwint-
ing such commissioner, be read in evidence, either for or against the accused,
without further proof thereof, — if the same purports to be signed by the com-
missioni'r by or before whom it jjurports to have been taken, and if it is proved
to the satisfaction of the co>irt that reasonable notice of the intention to take
such statement was served upon the jierson (whether prosecutor or accused)
Against whom it is proposed to be read in evidence, and that such person or hit
counsel or solicitor had, or might have had, if he had chosen to be present, full
opiwrtunity of cross-e-\amining the i)erson who made the same. R. S. C
o. 174, 8. 220.

See s. 681, ante.

The notice required by this section is a written notice.
Whether it has been a reasonable notice, and whether the
opportunity for cross-examination was sufficient or not, are
questions for the judge at the trial : R. v. Shurmer, 16 Cox,

94.

Depositions to be read .n Evidence.

0H7. If upon the trial of any accused person it is proved upon the oath
or affirmation of any credible witness that any i)erson whose deposition has
been taken by a justice in the preliminary or other inve-itigation of any charge
is dead, or so ill as not to be able to travel, or is absent from Uanada, and if it
is also proved that such deposition was taken in the jjresence of the jwrsun
accused, and that he, his coun.sel or solicitor, had a full opportunity of cross-
examining the witness, then if the deposition purports to be signed by tiie ju.t.
tice by or before whom the same purports to have been taken it shall be raad as
evidence in the prosecution without further proof tliereof, unless it is proved
that such deposition was not in fact signed by the justice purixirting to have
signed the same. R. S. C. c. 174. s. 222. 11-12 V. c. 43, s. 17, (Imp.).

[Sees. fiSG, 687

nces under ss.

D. 827 ; R. V.
untey, 10 Cox,
nee to Hupport
, on an indict-
in S8. 259, 269
Jueen's Bench,
■s.

n under commission
ipon the trial of any
)er8on who made the
here i» no reasonalle
the trial to give evi-
idge's order apiwint-
against the accused,
(6 signed by tiie com-
en, and if it is pvoved
the intention to take
rosecutor or accused)
lat such person or his
en to be present, full
the same. R. S. C'

written notice,
nd whether the
eient or not. are
hurmer, 16 Cox,

Sec. 697]

WITNESSES.

797

See R. V. Pruntey. 16 Cox, 344; R. v. Bullard, 12 Cox,
353; R. V. Bull, 12 Cox, 31 ; R. v. Clements, 2 Den. 251 ; R.
V. Stephenson, L. & C. 165, Warb. Lead. Cas. 233 ; R. v. De
Vidil, 9 Cox, 4 ; Ex imrte Huguet, 12 Cox, 651.

Doubts have arisen in England whether, under this last
cited clause of the Imperial Act, the prosecution must have
been identically for the same offence as charged against the
prisoner by the depositions against him as taken by the
magistrate, and it has even been held that a deposition
taken on a charge of assault could not afterwards be received
on an indictment for wounding: R. v. Ledbetter, 3 C. & K.
108. Though in the subsequent case of R. v. Beeston^
Dears. 405, it was held by the court of criminal appeal
that a deposition taken on a charge, either of assault and
robbery, of doing grievous bodily harm, or of feloniously
wounding with intent to do grievous bodily harm, can,
after the death of the witness, be read upon a trial for mur-
der or manslaughtv>r, where the two charges relate to the
same transaction, y.^t it seems by the report of the case
that if the charges on the two occasions had been substan-
tially different the deposition would not have been admis-
sible : see R. v. Lee, 4 F. & F. 63 ; R. v. Radboume, 1
Leach, 457 ; R. v. Smith, R. & R. 339 ; R. v. Dilmore, 6 Cox,
.52. But in Canada, by s. 088,posf, all doubts on the ques-
tion are removed, and a deposition taken on " any " charge
against a person may be read as evidence in the prosecution
of such person for " any other o fence," when the deposition
is otherwise admissible.

Prisoners deposition. — The depositions on oath of a
witness legally taken are admissible evidence against him
if lie is subsequently tried on a criminal charge. The only
exception is in the case of answers to questions which he
objected to, when his evidence was taken, as tending to
criminate him but which he has been improperly compelled
to answer : R. v. Coote, L. R. 4 P. C. 599, 12 Cox, 557; R. v.
Garbett, 1 Den. 236. Where a witness claims protection on

.' •'

f .

i i!

WSm !

798

PROCEDURE.

[Sec. 687

the ground that an answer may criminate him, and he is
compelled to answer, the answer is inadmissible w^hether he
claim the protection in the first instance or after havino
given some answers tending to criminate himself: R. v.
Garbett, uhi supra. But it seems that the part of the
deposition given before such witness has so claimed the pro-
tection of the court is admissible: R. v. Coote, uhi' siq^ra.
And the witness need not have been cautioned or put upon
his guard as to the tendency of the question in order to
render his answer admissible. See, now, s. 5 of the Canada
Evidence Act, 1893, 56 V. c. 31. S. 591, ante, is applicable to
accused persons only and not to witnesses ; and s. 592 enacts
specially that "nothing herein contained shall prevent
any prosecutor from giving in evidence any admission
or confession, or other statement made at any time by the
person accused or charged, which by law would be admis-
sible as evidence against him." See 3 Russ. 418, and R. v.
Coote, uhi supra. Also, R. v. Wellings, 14 Cox, 105, and
R. v. Beriau, Ramsay's App. Cas. 185.

The fact alone of the witness residing abroad at the time
of the trial is not sufficient to admit his deposition : R. v.
Austin, Dears. 612.

On a trial for murder the examination of the deceased
<»nnot be put in evidence if the prisoner had not the
opportunity to cross-examine him, he having knowledge
that it was his interest to do so: R. v. Milloy, 6 L. N. 95.

Depositions not taken in presence of the accused cannot
be submitted to the grand jury under s. 687: R. v. Carbmy,
13 Q. L. R. 100.

The deposition, regularly taken by the committini;
magistrate, of a witness was allowed to be read at the trial,
for the reason that a medical man proved that tlie witness
was old, and that he thought, under her state of nervous-
ness, that she would faint at the idea of coming into court,
though he was of opinion that she could go to London to
see a doctor without difficuity or danger: held, that her

[Sec. 687

him, and he is
ible whether he
,r after having
himself: R v.
he part of the
•laimed the pro-
mote, uhi' siijira.
aed or put upon
bion in order to
5 of the Canada
e, is applicable to
and s. 592 enacts
d shall prevent
i any admission
any time by the
would be admis-
Lss. 418, and R. v.
14 Cox, 105, and

broad at the time
deposition : K v.

li of the deceased
iner had not the

tving knowledge
lloy, 6 L. N. 95.

he accused cannot
IsT: R. v.Carbray,

the committini;'
I read at the trial

that the witness
state of nervous-
poming into court,
] go to London to
kr: loeld, that her

Sec. 687]

DEPOSITIONS.

799

deposition ought not ^o have been received : R. v. Farrell,
12' Cox, 605; R. v. Thompson, 13 Cox, 181.

The deposition of a witness who has travelled to the
assize town, but is too ill to attend court, may be read
before the grand jury: R. v. Wilson, 12 Cox, 622; R. v.
Gerrans, 13 Cox, 158; R. v. Goodfellow, 14 Cox, 326.

Depositions taken abroad under the Merchant Shipping
Act may be received in evidence if the witness cannot be
had : R. V. Stewart, 13 Cox, 296.

Too much importance ought not to be attached to the
variations between what a witness says at the trial and
what his deposition before the magistrate makes him say,
if there is a substantial concordance between both : R. v.
Wainwright, 13 Cox, 171.

On a charge of murder, to prove malice or motive against
the prisoner the deposition of the deceased against him,
taken before the magistrates on another charge, was held
admissible : R. v. Buckley, 13 Cox, 293 ; R. v. Williams, 12
Cox, 101.

Upon a prosecution for uttering forged notes the deposi-
tion of one S., taken before the Police Magistrate on the
preliminary investigation, was read upon the following
proof that S. was absent from Canada. R. swore that S. had,
a few months before, left his (R.'s) house where she (S.)
had, for a time, lodged ; that he had since twice heard
from her in the U. S. but not for six months. The chief
constable of Hamilton, where the prisoner was tried, proved
inettectual attempts to find S., by means of personal inquiries
in some places, and correspondence with the police of other
cities. S. had for some time lived with the prisoner as his
wife :

Held, upon a case reserved, Cameron, J., dis., that the
admissibility of the deposition was in the discretion of the
judge at the trial, and that it could not be said that he had
wrongfully admitted it : R. v. Nelson, 1 O. R. 500.

4 '

'i: i ■

■,i

SSi '5

lit

800

PROCEDURE.

[Sees. 688-691

Depositions may be Used foh Other Opp^'ces.

0S8> Depositions taken in the preliminary or other investigation of any
charge against any person may be r jad as evidence in the prosecution of such
person for any other oflfence, upon the like proof and in the same manner, in all
respects, as they may, according to law, be read in the prosecution of the
offence with which such person was charged when such depositions were taken.
R. S. C. c. 174, s. 224.

The deposition on oath of a jvitness is evidence against

him on his trial if he is subsequently charged with a

crime : R. v. Coote, 12 Cox, 557, L. R. 4 P. C. 599 : see R.

V. Buckley, ante, under s. 687, and remarks under that

section.

Evidence op Prisoner's Statement.

6S0« The statement made by the accused person before the justice may,
if necessary, upon thm trial of such person, be given in evidence against him
without further proof thereof, unless it is proved that the justice purporting to
have signed the same did not in fact sign the same. R. S. C. c. 174, a. 223.
11-12 V.c 48, 8. 18 (Imp.).

As to confessions under inducements see R. v. Fennel],
Warb. Lead. Cas. 250, and cases there cited.

See R. V. Soucie, 1 P. & B. (N.B.) 611. S. 689 must be
read in connection with s. 591 ante.

Admissions on Trial. (Xew).

000* Any accused person on his trial for any indictable offence, or his
counsel or solicitor, may admit any fact alleged against the accused so as to
dispense with proof thereof.

'• At present if the accused ia proved before his trial to have
made an admission it is evidence against him, but though he
offers to make the same admission in court it is thought that in
cases of felony the judge is obliged to refuse to let him do so."—
Imp. Comm. Rep.

iiiViDENCE on Trial for Perjury.

601. A certificate containing the substance and effect only, omitting
the formal part, of the indictment and trial for any offence, purporting to be
signed by the clerk of the court or other officer having the custody of ':he
records of the court whereat the indictment was tried, or among which such
indictment has been filed, or by the deputy of such clerk or other officer, shall,
upon the trial of an itdictment for perjury or subornation of iierjury, be
sufficient evidence of the trial of such indictment without proof of tho signa-
ture or official character of the person appearing to have signed the same.
R. S. C. c. 174, 8. 225. 14-15 V. c. 100, s. 22 (Imp.).

[Sees. 688-691

NCES.

ivestigation of any
>ro3eoution of such
ame manner, in all
prosecution of the
)sition8 were taken,

aclence against
larged with a
C. 599 : see R.
:ks under that

)f ore the justice may,
evidence against him
, justice purporting to
R. S. C. c. 174, 8. 223.

iee R. V. Fennell,
i.

S. 689 must be

Mable offence, or his
the accused so as to

|e his trial to have
_i, but though lie
lis thought that in
1 let him do so."—

I effect only, omitting
Lnce, purporting to be
tg the custody of the
1 or among which such
or other officer, shall,
lation of lierjury, be
lut proof of tho signa-
lave signed the same.

Sees. 692-694]

EVIDENCE AT TRIAL.

801

It is to be observed that this section is merely remedial
and will not prevent a regular record from being still
admissible in evidence, and care must be taken to have such
record drawn up in any case where the particular aver-
ments in the former indictment may be essential : Lord
Campbell's Acts, by Greaves, 27.

Before the same court, though not during the same
term, the production by the officer of the court of the
indictment with the entries thereon and the docket entries
is sufficient : R. v. Newman, 2 Den. 390. But the record or
a certificate under the above section are necessarj'- when
before another court: R. v. Coles, 16 Cox, 165.

Evidence on Trial under Sections 460, kt seq.

093« When, upon the trial of any person, it becomes necessary to prove
I. ^ nry coin produced in evidence against such person is false or counterfeit,

..)' not be necessary to prove the same to be false and ciunterfeit by the
•v' ' ;<3of anymonoyer or other officer of Her Majesty's mint, or other person
employed in producing the lawful coin in Her Majesty's dominions or else-
where, whether the coin counterfeited is current coin, or the coin of any
foreign prince, state or country, not current in Canada, but it shall be sufficient
to prove the same to be false or counterfeit by the evidence of any other credible
witness. R. S. C. c. 174, s. 229.

The usual practice is to call as a witness a silversmith

oiE the town where the trial takes place, who examines the

coin in court, in the presence of the jury : Davis's Cr. L.

235.

Evidence under Section 4S0.

603. On the trial of any person charged with the offences mentioned in
section four hundred and eighty, any letter, circular, writing or pajwr offering
or purporting to offer for sale, loan, gift or distribution, or giving or puriwrting
to give information, directly or indirectly, where, how, of whom or by what
means any counterfeit token of value may be obtained or had, or concerning
any similar scheme or device to defraud the public, shall be prima facie
evidence of the fraudulent character of such scheme or device. 51 V. c. 40,

8.4.

Proof of Previous CoNvinrioN.

604' A certificate containing the substance and effect onlj', omitting the
formal part, of any previous indictment and conviction for any indictable
offence, or a copy of any summary conviction, purixirting to be signed by the
clerk of the court or other officer having the custody of the records of tho
court before which the offender was first convicted, or to which such summary
conviction was returned, or by the deputy of such clerk or officer, shall, upon
Ckim. Law— 51

802

PROCEDURE.

[Sec. 695

proof of the identity of the person of the offender, be sufBcient evidrace of
such conviction without proof of the signature or official character of the
person appearing to have signed the same. R. S. C. c. 174, s. 230.

See ss. 628 & 676 ante, to which this s. 694 is intended
to apply: see 34 & 35 V. c. 112, s. 18 (Imp.). The enactment
does not extend to proof of a previous acquittal.

Pbkvious Conviction of Witness.

095- A witness may be questioned as to whether he baa be^i convicted
of any offence, and upon being so questioned, if he either denies the fact or
refuses to answer, the opposite party may prove such conviction ; and a certi-
ficate, as provided in the next preceding section, shall, upon proof of the
identity of the witness as such convict, be sufficient evidence of his conviction,
without proof of the signature or the official character of the person appearing
to have signed the certificate. R. S. C. c. 174, s. 231.

This enactment is taken from the 28 V. c. 18, s. 6, of
the Imperial statutes, An Act for Amending the Law of
Evidence and Practice on Criminal Trials.

Questions tending to expose the witness to criminal
accusation, punishment or penalty need not be answered •
no one can be forced to criminate himself. But this privi-
lege can be invoked only by the witness himself. Nor is
the judge bound to warn the witness of his right, though
he may deem it proper to do so : 2 Taylor Ev. par. 1319 ;
R. v. Coote, L. R. 4 P. C. 599, 12 Cox, 557. Whether the
answer may tend to criminate the witness, or expose him
to a penalty or forfeiture, is a point which the court will
determine, under all the circumstances of the case, as soon
as the protection is claimed, but without requiring the
witness fully to explain how the effect would be produced ;
for, if this were necessary, the protection which the rule
is designed to .afford to the witness would at once be
annihilated.

It is now decided, contrary to an opinion formerly
entertained by several of the judges, that the mere declar-
ation of a witness on oath that he believes that the answer
will tend to criminate him will not suffice to protect him
from answering, when the other circumstances of the case
are such as to induce the judge to believe that the answer

[Sec. 695

Jicient evidence of
a character of the
,9.230.

594 is intended
The enactment
ittal.

e baa been convicted
er denies the fact or
eviction; andacerti-
1, upon proof of the
B^ of his conviction,
; the person appearing

J V. c. 18, S. 6, of
ding the Law of
lis.

Ltness to criminal
not be answered;
F But this privi-
8 himself. Nor 13
; his right, though
lor Ev. par. 1319 ;
57. Whether the
less, or expose him
lich the court vnW
\i the case, as soon
out requiring the
ould be produced;
>n which the rule
-ould at once be

opinion formerly
[at the mere declar-
^es that the ansvyer
Iffice to protect him

Istances of the ca.se
Ive that the mm^

Sec. 695]

PREVIOUS CONVICTION OF WITNESS.

803

would not really have that tendency. In all cases of this
kind the court must see from the surrounding circum-
stances, and the nature of the evidence which the witness
is called to give, that reasonable ground exists for appre-
hending danger to the witness from his being compelled to
answer. When, however, the fact of such danger is once
made to appear, considerable latitude should be allowed to
. the witness in judging for himself of the effect of a
particular question ; , for it is obvious that a question,
though at first sight apparently innocent, may, by affording
a link in a chain of evidence, become the means of bringing
home an offence to the party answering. On the whole, as
Lord Hardwicke once observed, "these objections to
answering should be held to very strict rules," and, in some
way or other, the court should have the sanction of an oath
for the facts on which the objection is founded : 2 Taylor
Ev. par. 1311.

If the prosecution to which the witness might be
exposed, or his liability to a penalty or forfeiture, is barred
by lapse of time, the privilege has ceased and the witness
must answer : 2 Taylor Ev. par. 1312.

Whether a witness is bound to answer any question, the
direct and immediate effect of answering which might be to
degrade his character, seems doubtful, although where the
transaction as to which the witness is interrogated forms
any material part of the issue he will be obliged to answer,,
however strongly his evidence may reflect on his character.

Where, however, the question is not directly material to*
the issue, but is only put for the purpose of testing the
character and consequent credit of the witness, there is
much more room for doubt. Several of the older dicta and
authorities tend to show that in such case the witness is
not bound to answer ; but the privilege, if it still exists, is
certainly much discountenanced in the practice of modern
times. Even Lord Ellenborough, who is reported to have
held on one occasion that a witness was not bound to state

i<U

804

PROCEDURE.

[Sec. 695

whether he had not been sentenced to imprisonment in a
house of correction, and on another, that the question could
not so much as be put to him, seems in a later case to have
disregarded the rules thus enunciated by himself ; for, on a
witness declining to say whether or not he had been con-
fined for theft in gaol, his Lordship harshly observed : "If
yoxi do not answer the question I will send you there."

No doubt cases may arise where the judge, in the exer-
cise of his discretion, would very properly interpose to
protect the witness from unnecessary and unbecoming
•annoyance. For instance, all inquiries into discreditable
transactions of a remote date might, in general, be rightly
suppressed ; for the interests of justice can seldom require
that the errors of a man's life, long since repented of, and
forgiven by the community, should be recalled to remem-
brance at the pleasure of any future litigant. So questions
respecting alleged improprieties of conduct, which furnish
no real ground for assuming that a witness who could be
guilty of them would not be a man of veracity, might very
fairly be checked. But the rule of protection should not
be further extended ; for if the inquiry relates to transac-
tions comparatively recent, bearing directly upon the moral
principles of the witness, and his present character for
veracity, it is not easy to perceive why he should be privi-
leged from answering, notwithstanding the answer may
disgrace him. It has, indeed, been termed a harsh alterna-
tive to compel a witness either to commit perjurj' or to
destroy his own reputation ; but, on the other hand, it is
obviously most important that the jury should have the
means of ascertaining the character of the witness, and of
thus forming something like a correct estimate of the value
of his evidence. Moreover, it seems absurd to place the
mere feelings of a profligate witness in competition with the
substantial interests of the parties in the cause : 2 Taylor
Ev. pai-s. 1313, 1314, 1315 ; 3 Russ. 543, 547.

By the words "or refuses to answer" in the said section
(and these words are also in the Imperial statute), it would,

Sees. 696-698]

EVIDENCE-CERTAIN CASES.

805

isonment in a
[question could
jr case to have
iself ; «or, on a
bad been con-
Dbserved:^^ "If
^ou there."
ge, in the exer- <
[y interpose to
Qd unbecoming
ito discreditable
neral, be rightly
1 seldom require
repented oi, and
(Called to remem-
nt. So questions
ct, which furnish
[less who could be
■acity. might very
,ection should not
relates to transac-
ly upon the moral
lent character for
e should be privi-
the answer nmy
d a harsh altorna-
mit perjury or to
5 other hand, it is
r should have the
ihe witness, and of
iiniate of the value
)surd to place the
)mpetition with the

ixe cause: 2 Taylor

547.

in the said section
I statute), it wouW,

at first sight, seem that the witness questioned as to a pre-
vious conviction is not bound to answer ; but it is obvious
that this is not so ; and the above quotation from Taylor
goes to show clearly that the question, if insisted upon by
the court, must be answered. Indeed, in a great many
cases, the party putting the question could not be expected
to be ready n spot, to prove the "r>. miction of the

witness otherwise iD».«,a by himself.

By the Canada Evidence Act, 1893, 56 V. c. 31, s. 5, no
one is now excused from answering any question upon the
o-round that the answer may tend to criminate him.

Proof op Attested Isstrcmknts.

690. It shall not be necessary to prove by the attesting witness any
instrument to the validity of which attestation is not requisite ; and such
instniment may be proved by admission or otherwise as if there had been no
attesting witness thereto. R. S. C. c. 174, s. 232.

This is, verbatim, s. 7 of 28 V. c. 18 of the Imperial
statutes. Formerly the rule was that if an instrument, on
being produced, appeared to be signed by subscribing wit-
nesses, one of them, at least, should be called to prove ita
execution. The above clause abrogates this rule. It
applies only to instruments to the validity of which attes-
tation is not requisite.

Evidence at Trial for Child Murder.

697. The trial of any woman charged with the murder of any issue of
her body, male or female, which being born alive would, by law, be bastard,
shall proceed and be governed by such and the like niles of evidence and
presumption as are by law used and allowed to take place in respect to other
trials for murder. R. S. C. c. 174, s. 227.

If the mother of an illegitimate child endeavoured
privately to conceal his birth and death she was presumed
to have murdered it, unless she could prove that the child
was born dead. Taylor, on Ev., note 7, p. 128, justly says
that this rule was barbarous and unreasonable.

Comparison of Writings.

(»98. Comparison of a disputed writing with any writing proved to the
satisfaction of the court to be genuine shall be iHjrmitted to be madn by
witnesses ; and such writings, and the evidence of witnesses respecting the

806

PROCEDURE.

[Sec. 699

same, may be submitted to the court and jury as evidence of the genuineness
or otherwise of the writing in dispute. R. S. C. c. 174, s. 233.

This enactment is taken from the 28 V. c. 18 of the
Imperial statutes, and is, verhati'ni, s. 8 thereof. Before
this enactment, it was an established rule that, in a crim-
inal case, handwriting could not be proved by comparing a
paper with any other papers acknowledged to be genuine ;
neither the witness nor the jury were allowed to
compare two writings with each other, in order to ascer-
tain whether both were written by the same person : 2
Taylor Ev. par. 1667.

Party Discrediting his own Witness.

099. A party producing a witness shall not be allowed to impeach his
credit by general evidence of bad character, but if the witness, in the opinion
of the court, proves adverse, such party may contradict him by other evidence,
or, by leave of the court, may prove that the witness made at other times a
statement inconsistent with his present testimony ; but before such last
mentioned proof can be given the circumstances of the supposed statement,
sufficient to designate the particular occasion, shall be mentioned to the
witness, and he shall be asked whether or not he did make such statement.
K. S. C. c. i74, 8. 234.

This is s. 3 of the 28 & 29 V. c. 18 of the Imperial
statutes, An Act for Amending the Law of Evidence and
Practice on Criminal TriaU.

In the Province of Quebec a similar enactment is con-
tained in Article 269 of the Code of Civil Procedure.

The word adverse in the above clause does not mean
mei'ely unfavourable but hostile ; 2 Taylor Ev. par. 1282.
However, in Dear v. Knight, 1 F. & F. 433, Erie, J., appears
to have regarded a witness as " adverae," simply because he
made a statement contrary to what he was called to prove.

The first part of the clause seems to have always been
the law. It was decided in Ewer v. Ambrose, 3 B. & C.
740, that if a witness called to prove a fact prove the con-
trary his credit could not be impeached by general evi-
dence, but, in R. V. Ball, 8 C. & P. 745, that the party is at
liberty to make out his case by other and contradictory
evidence. The portion of the clause allowing a party to

[Sec. 699

e of the genuineness
.233.

V. c. 18 of the

thereof. Before
that, in a crim-
by comparing a

,d to be genuine ;

ere allowed to

I order to ascer-
same person: 2

S'ESS.

allowed to imi^ach hia
witness, in the opinion
; him by other evidence,
made at other times a
; but before such last
he supposed statement,

II be mentioned to the
1 make such statement.

of the Imperial
of Evidence and

enactment is con-
Procedure.

ise does not mean
lor Ev. par. 1282.
13, Erie, J., appears
simply because he
.8 called to prove.

have always been
mbrose, 3 B. & C
'act prove the con-
id by general evi-
lat the party is at
and contradictory
lUowing a party to

Sec. 700]

EVIDENCE-CERTAIN CASES.

807

prove that his witness made at any time a different account
of the same transaction seems to be new law according to
the said case of R. v. Ball, uhi swpra. See R. v. Little, 15
Cox, 319.

Former Written Statements by Witness.
700. Upon any trial a witness may be cross-examined as to previous
statements made by him in writing, or reduced to writing, relative to the
subject-matter of the case, without such writing being shown to him ; but if it
is intended to contradict the witness by the writing his attention must, before
such contradictory proof can be given, be called to those parts of the writing
which are to be used for the purpose of so contradicting him ; and the judge,
at any time during the trial, may require the production of the writing for his
inspection, and he may thereuiwn make such use of it for the purposes of the
trial as he thinks fit : Provided that a deiiosition of the witness, purporting to
have been taken before a justice on the investigation of the charge and to be
signed by the witness and the justice, returned to and produced from the
custody of the proper officer, shall be presumed prima facie to have been
signed by the witness. R. S. C. c. 174, s. 235.

The words " upon any trial " mean " upon any trial
in any criviinal case." This enactment is reproduced
from s. 5 of 28 V. c. 18 of the Imperial statutes. An Act for
Amending the Law of Evidence and Practice on Criminal
Trials : upon which see 2 Taylor Ev. pars 1301, 1302, 1303;
3 Russ. 550. The general rule was that, when a contra-
dictory statement alleged to have been made by the witness
was contained in a letter or other writing, the cross-examin-
ing party should produce the document as his evidence, and
have it read, in order to base any questions to the witness
upon it. The above clause abrogates this rule, under which
was excluded one of the best tests by which the memory
and integrity of a witness can be tried : 2 Taylor Ev. par.
1301. Before the abrogation of the rule the witness could
not be asked whether he did or did not state a particular
fact before the magistrate, without first allowing him to
read, or have read to him, his deposition: R. v. Edwards,
8 C. & P. 26. And it was irregular to Question a witness as
to the contents of a former declaration, affidavit, letter or
any writing made or written by him, or taken in writing
as his declaration or deposition, without first having the
said writing read: The Queen's case, 2 Brod. & B. 288.

■ -.1

:¥:

' 5 ■.

:•?

< 'i

I ?

808

PROCEDURE.

[Sec. 701

The prosecution cannot use or refer to the depositions with-
out putting them in : R. v. Muller, 10 Cox, 48.

But if the former declarations of the witness were not in
writing, but merely by parol, he may be cross-examined on
the subject of it, and if he deny it another witness may be
called to prove it, if it be a matter relevant to the issue ;
if not relevant to the issue, the witness' answer is conelu-
2 Taylor Ev. par. 1295.

sive

Proof ok Contradictory Statbjient bv Witness.

701« If a witness, ujK)n cross-examination as to a former statement made
by him relative to the subject-matter of the case and inconsistent with hia
present testimony, does not distinctly admit that he did make such statement,
proof may be given that he did in fact make it ; but before such proof can be
given the circumstances of the supposed statement, sufficient to desi(?nat« the
particular occasion, shall be mentioned to the witness and he shall be asked
whether or not he did make such statement. R. S. C. c. 174, s. 236.

This enactment is taken from s. 4 of the 28 V. c. 18 of
the Imperial statutes.

Formerly there was some difference of opinion as to
whether, in such a case, proof might be given that the wit-
ness had made the statement denied by him. It must be
observed that the clause applies only to a statement rehitm
to the subject matter of the case. If it is not relative to the
subject matter of the case the answer given by the witness
must be taken as conclusive. It seems that (juestions
respecting the motives, interest or conduct of the witness,
as connected with the cause or with either of the parties,
are relevant quoad this enactment, though Coleridge, J., in
R. v. Lee, 2 Lewin, 154, held that if a witness denies that
he has tampered with the other witnesses evidence to con-
tradict him cannot be received. This case was before the
statute, and does not specially apply to a former statement
made by a witness. As to the last part of the clause it is
based on a principle always received under the rules of
evidence. It was held in the Queen's case, 2 Brod. & B.
311, that where a witness for a prosecution has been exam-
ined in chief, the defendant cannot afterwards give evidence

[Sec. 701

epositions with-
43.

ness were not in
oas-examined on
• witness may be
mt to the issue;
mswer is conclu-

W1TNE88.

Former statement made
I inconsistent witli hia
I make such atateuient,
ifore such proof can be
ffioient to der<i(?nat« the
i and he shall be asked
c. 174, 8. 23G.

the 28 V. c. 18 of

of opinion as to
iven that the wit-
him. It must be
statement rdctive
not relative to the
en by the witness
IS that (luestions
ict of the witness,
[ler of the parties,
rh Coleridge, J., in
fitness denies that
(s evidence to con-
lisc was before the
former statement
of the clause it is
inder the rules of
:ase, 2 Brod. & B.
Ion has been exam-
i'ards give evidence

Sees. 702-704]

EVIDENCE-CERTAIN CASES.

809

of any declaration by sucli witness, or of acts done by him,
to procure persons corruptly to give evidence in support of
l';e prosecution, unless he has previously cross-examined
such witness as to such declarations or acts

Evidence— Common Gamino House.

70%* When any cardH, dice, balls, counters, tables or other instruments
of Raraing used in playing any unlawful game are found in any house, room or
place suspected to be used as a common gaming-house, and entered under a
warrant or order issued under this Act, or about the person of any of those
who are found therein, it shall be prima facie evidence, on the trial of a
prosecution under section one hundred and ninety-eight, that such house,
room or place is used as a common gaming-house, and that the persons found
in the room or place where such tables or instruments of gaming are found
were playing therein although no play was actually going on in the presence of
the chief constable, deputy chief oon8*'>able or other officer entering the same
under a warrant or order issued under this Act, or in the presence of those
persons by whom he is accompanied an aforesaid. R. S. C. c. 158. s. 4. 8-9 V.
c. 101>, X. '2 (Imp.).

This provision applies to prosecutions under s
p. 134, ante. As to search warrant see s. 575, p. 643.
next section.

Sections 9 & 10 R. S. C
unrepealed.

198,

See

c. 158, on the same subject are

703- It shall be prima fncie evidence in any prosecution for keeping a
common gaming-house under section one hundred and ninety-eight of this Act
that a house, room or place is used as a common gaming-house, and that the
persons found therein were unlawfully playing therein—

(«) if any constable or officer authorized to enter any house xooxa. or place,
is wilfully prevented from, or obstructed or delayed in, entering the same or
any part thereof ; or

(!/) if any such house, room or place is found fitted or provided with any
means or contrivance for unlawful gaming, or with any mpr^ns or contrivance
for concealing, removing or destroying any instnmients of gaming. R. S. C.
c. 158, 8. 8. 17-18 V. c. 38, s. 2 (Imp.).

Evidence of Gaminq in Stocks.

704- Whenever, on the trial of a person chargetl with making an agree-
ment for the sale or purchase of shares, gcxxls, wares or merchandise in the
manner set forth in section tw(» hundred and one, it is established that the
l*rson 80 charged has ma<le or signed any such contract or agreement of sale
or purchase, or has actetl, aided or abetted in the making or signing tlu-reof,
the burden of proof of the bona ,tidc intention to acquire or to sell such goods,
wares or merchandise, or to deliver or to receive delivery thereof, as the case
may be, shall rest upon the person so charged. 51 V. c. 42, a. 2.

See s. 201, ante.

810

PROCEDURE.

[Sees. 70? 709

Evidence in Certain Cases of Libel.

705« In any criminal proceeding commenced or prosecuted for publisliing
any extract from, or abstract of any (laper containing defamatory matter and
which has been published by or under the authority of the Senate, House of
Commons or any Legislative Council, Legislative Assembly or House of
Assembly, such paper may be given in evidence, and it may be shown that
8ucli extract or abstract was published in good faith and without ill-will to the
person defamed, and if such is the opinion of the jury, a verdict of not guilty
shall be entered for the defendant. Amemlment of 1893.

Evidence of Polyoamv,

706« In the case of any indictment under section two hundred and
seventy-eight (6), (c) and {d), no averment or proof of the method in which the
sexual relationship charged was entered into, agreed to, or consented to, shall be
necessary in any such indictment, or upon the trial of the person thereby
charged ; nor shall it be necessary upon such trial to prove carnal connection
had or intended to be had between the persona implicated. 53 V. c. 37, s. U.

See 8. 278, ante.

Evidence of Stealing Minebals.

707« In any prosecution, proceeding or trial for stealing ores or minerals
the possession, contrary to the provisions of any law in thut behalf, or any
smelt 1 gold or silver, or any gold-bearing quartz, or any unsmelted or other-
wise unmanufactured geld or silver, by any operative, workman or labourer
actively engaged in or on any mine, shall be primd facie evidence that the
same has been stolen by him. R. S. C. c. 164, s. 30.

See 8. 571 as to search warrant. As to stealing of ores
of metals, etc., see s. 343.

Evidence under Section 338,

70S« In any prosecution, proceeding or trial for any offence under
section three hundred and thirty-eight a timber mark, duly registered under
the provisions of the Act respecting the Marking of TiinJjer, on any timber,
mast, spar, saw-log or other description of lumber, shall be primd facie evidence
that the same is the proiwity of the registered owner of such timber mark ;
and possession by the offender, or by others in his employ or on his behalf, of
any such timber, mast, spar, saw-log or other description of lumber so marked,
shall, in all cases, throw upon the offender the burden of proving that such
timber, mast, spar, saw-log or other description of lumber came lawfully intu
his iK)ssession, or intct the possession of such others in his employ or on his
behalf. R. S. C. c. 174, s. 228.

The Act respecting the marking of timber is g. 64,
R. S. C. See ss. 338 and 572, ante.

Evidence under Sections 385, bt seq.
700. In any prosecution, proceeding or trial under sections three hundred
and eighty -five to three hundred and eighty -nine inclusive for offences relating
to public stores proof that any soldier, seaman or marine was actually doing

Sees. 710, 711]

ATTEMPTS, ETC.

811

0 stealing of ores

timber is g. 64,

duty in Her Majesty's servioe shall be /^n'wd /acjc evidence that his enlistment,
entry or enrolment has been regular.

2. If the person charged with the oflence relating to public stores men-
tioned in article three hundred and eighty-seven was, at the time at which the
offence is charged to have been committed, in Hor Majesty's service or employ-
ment, or a dealer in marine stores, or n dealer in old metals, knowledge on his
part that the stores to which the charge relates bore the marks described in
section three hundred and eighty-four shall be presumed until the contrary is
shown. 50-61 V. o. 45, h. 13. 38-39 V. c. 25 (Imp.).

See 88. 384, et acq.

EviDENXB nv Fraudclent Trade Marks.

7I0t In any prosecution, proceeding or trial for any offence under Part
XXXIII. relating to fraudulent marks on merchandise, if the offence relates
to imported goods evidence of the ix)rt of shipment shall be ^^rr ' facie
evidence of the place or country in which the goods were made or produced.
51 V. 0. 41, 8. 13.

2. Provided that in any prosecution for forging a trade mark the burden
of proof of the assent of the proprietor shall lie on the defendant.

See 88. 443, et aeq.

Verdict of Attempt.

711* When the complete commission of the offence charged is ni>t
proved but the evidence establishes an attempt to commit the offence, the
accused may be convicted of such attempt and punished accordingly. R. S. 0.
c. 174, 88. 183, 185.

This section does not apply to murder, s. 713. See re-
marks under ss. 64 and 529 ; and as to punishment, in cases
not specially provided for, ss. 528, 529 and 951. Under s.
713 the defendant may be convicted of attempting to com-
mit any offence included in the offence <;■ .^-ged.

This clause is taken from s. 9 of 14 <ic 15 V. c. 100 of
the English statutes, upon which Greaves has the following
remarks :

"As the law existed before the passing of this Act
{except in the case of the trial for murder of a child, and
the offences falling within the 1 V. c. 85,8. 11,) there was no
power upon the trial of an indictment for any felony to find a
verdict against u prisoner for anything less than a felony, or
upon the trial of an indictment for a misdemeanour to find a
verdict for an attempt to commit such misdemeanour : see
B. V. Catherall, 13 Cox, 109 ; R. v. Woodhall, 12 Cox, 240 ;

,< '.'

812

PROCEDURE.

[Sec. 711

R. V. Bird, 2 Den. 94 ; 1 Chit. 251, 639. At the same time
the general principle of the common law was, that upon a
charge of felony or misdemeanour composed of several
ingredients the jury might convict of so much of the charge
as constituted a felony or misdemeanour : R. v. Holling-
berry, 4 B. «fe C. 329. The reason why, upon an indictment
for felony, the jury could not convict of a misdemeanour, was
said to be that thereby the defendant would be deprived of
many advantages; for if he was indicted for the misde-
meanour he might have counsel, a copy of his indictment,
and a special jury : R. v. Weatbeer, 2 Str. 1133, 1 Leach, 12.
The prisoner is now entitled, in cases of felony, to counsel,,
and to a copy of the depositions, and though not entitled to
a copy of the indictment yet as a matter of courtesy his
counsel is always permitted to inspect it. With regard to
a special jury, in the great majority of cases a prisoner
would not desire it, and it can in no case be obtained unless
the indictment has been removed by certiorari. Very little
ground, therefore, remained for objecting to the jury being
empowered to find a verdict of guilty of an attempt to com-
mit a felony upon an indictment for such felony, and the
prisoner obviously gains one advantage by it, as where he is
charged with a felony he may peremptorily challenge jury-
men, which he could not do if indicted for a misdemeanour.
No prejudice, therefore, being likely to arise to the pri-
soner, and considerable benefit in the administration of
criminal justice being anticipated by the change, the jury
are now empowered, upon the trial of any indictment for a
felony, to convict of an attempt to commit that particular
felony, and upon the trial of any indictment for a misde-
meanour to convict of an attempt to commit that particular
misdemeanour."

In R. V. McPherson, Dears. & B. 197, the prisoner was
indicted for breaking and entering a dwelling-house, and
stealing therein certain goods specified in the indictment,
the property of the prosecutor. At the time of the break-

Sec. 711]

ATTEMPTS, ETC.

813

ing and entering the g'oocls specified were not in the house
but there were other goods there the property of the pro-
secutor. The jury acquitted the prisoner of the felon j^
charged but found him guilty of breaking and entering
the dwelling-house of the prosecutor, and attemjytmg to
steal his goods therein : Held, by the court of criminal
appeal, that the conviction was wrong, as there was no
attempt to commit the "felony charged " within the mean-
inir of the aforesaid section.

Cockburn, C.J., said : " The effect of the statute is, that
if you charge a man with stealing certain specified goods,
he may be convicted of an attempt to commit " the felony
or misdemeanour charged;" but can you convict him of
stealing other goods than those specified ? If you indict a
man for stealing your watch you cannot convict him of
attempting to steal your umbrella. I am of opinion that
this conviction cannot be sustained. The prisoner was
indicted for breaking and entering the dwelling-house of
the prosecutor, and stealing therein certain specified
chattels. The jury found speciallj'- that, although he broke
and entered the house with the intention of stealing the
goods of the prosecutor, before he did so somebody else
had taken away the chattels specified in the indictment ;
now, by the recent statute it is provided, that where the
proof falls short of the principal ofl^ence charged the party
may be convicted of an attempt to commit the ,mme. The
word attempt clearly conveys with it the idea, that if the
attempt had succeeded the offence charged would have
been committed, and therefore the ]»risoner might have
been convicted if the things mentioned in the indictment
or any of them had been there ; but attempting to commit
a felony is clearly diiitinguishable from intending to com-
mit it. An attempt must be to do that which, if successful,
would amount to the felony charged ; but here the attempt
never could have succeeded, as the things which the indict-
ment charges the prisoner with stealing had been already

1 :■■-■}!:

814

PROCEDURE.

[Sec. 711

removed, stolen by somebody else. The jury had found
him guilty of attempting to steal the goods of the prose-
cutor, but not the goods specified in the indictment."

An attempt to commit a felony can only be made out
where, if no interruption had taken place, the felony itself
could have been committed. The prisoner was indicted for
attempting to commit a felony by putting his hand into A.'s
pocket, with intent to steal the property in the said pocket
then being. The evidence was that he was seen to put his
hand into a woman's pocket, but there was no proof that
there was anything in the pocket: held, that on the assump-
tion that there was nothing in the pocket the prisoner
could not be convicted of the attempt charged : R. v. Collins,
L. & C. 471 ; though he was guilty of an assault with intent
to commit a felony. But that case is overruled ; see s. 64,
ante, and R. v. Brown, 24 Q. B. D. 357 ; R. v. Ring, 17
Cox, 491.

Greaves says, referring to the cases of R. v. McPherson,
and R. v. Collins : " There can be no doubt that this and the
preceding decision were right upon the grounds that the
indictment in the former alleged the goods to be in the
house, which was disproved, and the latter to be in the
pocket, which was not proved." Attempts to coniiuit
crimes, by Greaves, Cox & Saunders' Cons. Acts, cix.

But the case of R. v. Goodhall, 1 Den. 187, where it was
held that on an indictment for using an instrument with
inteijt to procure the miscarriage of a woman, the fact of
the woman not being pregnant is immaterial. Greaves
admits, is a direct authority that a man may be convicted
of an attempt to do that which it was impossible to do. And
if a person administers any quantity of poison, howover
small, however impossible that it could have caused death,
yet if it were done with the intent to murder the offence of
administering poison with intent to murder is complete: R,
V. Cluderay, 1 Den. 514 ; 1 Russ. 901, note by Greaves.

[Sec. 711

' had found
I the prose-
aent."

be made out
felony itself
J indicted for
land into A.'s
e said pocket
len to put his
lo proof that
I the assump-
the prisoner
: R. V. Collins,
lit with intent
lied ; see s. 64,
I. V. Ring, 17

V. McPherson,

bt this and the

iinds that the

to be in the

,s to couimit

cts, cix.

Sec. 711]

ATTEMPTS, ETC.

815

It was held in R. v. Johnson, L. & C. 489, that an indict-
ment for an attempt to commit a larceny, which charo-es
the prisoner with attempting to steal the goods and chattels
of A., without further specifying the goods intended to be
stolen, is sufficiently certain.

In R. V Cheeseman, L. & C. 140, Blackburn, J., said :
"If the actual transaction has commenced which would
have ended in the crime if not interrupted there is clearly
an attempt to commit the crime."

In R. V Roebuck, Dears. & B. 24, the prisoner was
indicted for obtaining money by false pretenses. It
appeared that the prisoner offered a chain in pledge to a
pawnbroker, falsely and fraudulently stating that it was
a silver chain whereas in fact it was not silver, but was
made of a composition worth about a farthing an ounce.
The pawnbroker tested the chain, and finding that it with-
stood the test he, relying on his own examination and test
of the chain, and not placing any reliance upon the
prisoner's statement, lent the prisoner ten shillings, the sum
he asked, and took the chain as a pledge; the jury found
the prisoner guilty of the attempt to commit the misde-
meanour charged against him: held, that the conviction was
ri^ht.

It is said in 2 Russ. 599, on this right given to con-
vict the defendant of the attempt to commit the offence
charged : " There are some oflfencea which may be attempt-
ed to be committed, whilst there are others which cannot
be so attempted. It is obvious that where an offence con-
sists in an act that is done, there may be an attempt to do
that act which will be an attempt to commit that offence.
But where an offence consists in an omission to do a thing,
or in such a state of things as may exist without anything
being done, it should seem that there can be no attempt
to commit such offence. Thus if an offence consists in
omitting or neglecting to turn the points of a railway, it
may well be doubted whether there could be an attempt to

816

PROCEDURE.

[Sec. 711

commit that offence. And a very nice question might per-
haps be raised on an indictment on the 9 & 10 Wm. III.
c. 41, s. 2, for having j^osseasion of marked stores, where
the evidence failed to prove that the stores actually came
into the prisoner's possession though an attempt to get
them into his possession, as in R. v. Cohen, 8 Cox, 41, and
knowledge of their being marked, might be proved ; for in
order to constitute the offence of having possession of any-
thing it is not necessary to prove any act done, and, there-
fore, it would be open to contend that there could not be
an attempt to commit such an offence."

It is to be observed, however, that s. 387, ante, corre-
sponding to the 9 & 10 Wm. III. c. 41, s. 2 (Imp.), cited as
above in 2 Russ., has the words " receives, possesses ; " and
on a count charging the receiving of stores there seems
no reason to doubt that there might be a conviction of an
attempt to recei.ve; for receiving clearly includes an act
done. Thus in R. v. Wiley, 2 Den. 37, where a prisoner
went into a coach office and endeavoured to get possession
of stolen fowls which had come by a coach, there seems no
reason why she might not have been convicted of an
attempt to receive the fowls.

Can there be an attempt to commit an assault? Greaves
says : " In principle there seems no satisfactory ground for
doubting that there may be such an attempt. Although
an assault may be an attempt to inflict a battery on
another, as where A. strikes at B. but misses him, yet it
may not amount to such an attempt, as where A. holds up
his hand in a threatening attitude at B., within reacli of
him, or points a gun at him without more. Is not the
true view this — that every offence must have its beginning
and completion, and is not whatever is done which falls
short of the completion an attempt, provided it be suffici-
ently proximate to the intended offence ? Pointing a loaded
gun is an assault. Is not raising the gun in order to point
it an attempt to assault ?

Sec. 712]

ATTEMPTS, ETC.

817

1 might per-

10 Wm. III.

jtores, where

ctually came

bempt to get
Cox, 41, and

roved ; for in

3ssion of any-

le, and, there-
could not be

i7, ante, corre-
Imp.), cited as
ossesses;" and
is there seems
onviction of an
ncludes an act
lere a prisoner
I get possession
there seems no
onvicted of an

isault? Greaves
iory ground for
,pt. Although
|t a battery on
jses him, yet it
|iere A. holds up
within reach of
,re. Is not the
Ive its beginning
lone which falls
led it be suffici-
[ointing a loaded
in order to point

In R. V. Ryland, 11 Cox, 101, it was held that under
an indictment for unlawfully assaulting and having carnal
knowledge of a girl between ten and twelve years of age
the prisoner may be convicted of the attempt to commit
that offence, though the child was not unwilling that the
attempt should be made.

In R. V. Hapgood, 11 Cox, 471, H. was indicted for
rape, and W. for aiding and abetting. Both were acquit-
ed of felony, but H. was found guilty of attempting to
commit the rape, and W. of aiding H. in the attempt.
The conviction was affirmed both as to W. and H. See
R, V. Bain, L. & C. 129, and note (a) thereto: R. v. Mayers,.
12 Cox, 311 : R. v. Barratt, 12 Cox, 498 : R. v. Dungey,
4 F. & F. 99.

Many cases of attempts to commit indictable offences
may now fall under s. 263, ante, which provides for the
puniijhment of any one who assaults any person with
intent to commit any indictable offence.

The prisoner wrote a letter to a boy of fourteen inciting
him to commit an unnatural offence : held, that this was
an attempt to incite to commit a crime, and a misdemeanour.
Any step taken with a view to the commission of a misde-
meanour is a misdemeanour ; per Lo^'d Denman in R. v.
Chapman, 1 Den. 432.

The attempt or inciting to commit a felony or a misde-
meanour is a misdemeanour: R, v. Martin, 2 Moo. 123 ; R. v.
Roderick, 7 C. & P. 795 ; Anon, 1 Russ. 85; R. v. Ransford,,
13 Cox, 9. See R. v. Gregory, 10 Cox, 459.

ArrKMPT CHARGED, FULL OfFENCE PrOVED.

7 IS* When an attempt to commit an offence is charged but the evidence'
establishes the commission of the full offence, the accused shall not be entitled
to be acquitted, but the jury may convict him of the attempt, unless the
court before which such trial is had thinks fit, in its discretion, to discharge
the jury from giving any verdict upon such trial, and to direct such person to
be indicted for the complete offence

2. Provided that after a conviction for such attempt the accused shall not
be liable to be tried again for the offence which he was charged with attempt-
ing to commit. R, S. C. c. 174, s. 184.
Ckim. Law — 52

m§

818

PROCEDURE.

[Sec. 713

Section 184, R. S. C. c. 174, upon which the above section
is based enacted that if upon a trial for a misdemeanour a
felony was also proved the prisoner was not therefore to be
acquitted. It was taken from the 14 & 15 V. c. 100, s. 12
of the Imperial Acts, upon which Greaves says : " This
section was introduced to put an end to all questions as to
whether on an indictment for a misdemeanour, in case upon
the evidence it appeared that a felony had been committed,
the defendant was entitled to be acquitted on the ground
that the misdemeanour merged in the felony : R. v. Neale,
1 Den. 36 ; R. v. Button, 11 Q. B. 929. The discretionary
power to discharge the jury is given in order to prevent
indictments being collusively or improperly preferred for
misdemeanours where they ought to be preferred for
felonies, and also to meet those cases where the felony is
liable to so much more severe a punishment than the mis-
demeanour, that it is fitting that the prisoner should be
tried and punished for the felony. For instance, if on an
indictment for attempting to commit a rape it clearly
appeared that the crime of rape was committed it would
be right to discharge the jury."

Formerly, where upon an indictment for an assault with
intent to commit rape a rape was actually proved, an
acquittal would have been directed on the ground that the
misdemeanour was merged in the felony : R. v. Harmwood,
1 East, P. C. 440 ; R. v. Nicholls, 2 Cox, 182 ; though in R.
V. Neale, 1 Den. 36, cited, ante, by Greaves, it was held
before this enactment that where a prisoner was indicted
for carnally knowing a girl between ten and twelve years
of age, and it was proved that he had committed a rape
upon her, he was not thereby entitled to be acquitted.

Offence charged Part only Proved.

713* Every count shall be deemed divisible ; and if the commission of
the offence charged, as described in the enactment creating the offence or as
charged in the count, includes the commission of any other offence the person
accused may be convicted of any offence so included which is proved, altliough
the whole offence charged is not proved ; or he may be convicted of an
attempt to commit any offence so included :

4 I

[Sec. 713

above section
sdemeanour a
herefore to be
V. c. 100, 8. 12

Sec. 713]

ATTEMPTS, ETC.

81'

says :

'This

questions as to
r, in case upon
3en committed,
on the ground
y : R. V. Neale,
3 discretionary
:der to prevent
y preferred for
! preferred for
ce the felony is
it than the mis-
goner should be
istance, if on an
rape it clearly
mitted it would

c an assault with
ally proved, an
ground that the
R. v. Harmwood,
\2 ; though in R.
ves, it was held
ner was indicted
,nd twelve years
ommitted a rape
e acquitted.

■ED.

d if the commission of
ating the offence or as
ther offence the person

|ich is proved, although
ly be convicted of an

2. Provided, that on a count charging murder, if the evidence proves
manslaughter but does not prove murder the jury maj- find the accused not
guilty of murder but guilty of manslaughter, but shall not on chat count find
the accused guilty of any other offence.

This is an extension of s. 191, c. 174, R. S. C. The
abolition of the distinction between felonies and misde-
meanours by itself alone extends very largely the number
of cases where a verdict may be given for another offence
than that one directly charged, as it has always been a
principle of the common law that upon a charge of an
offence composed of several ingredients the jury might, as
a general rule, convict of any offence included in the one
directly charged : R. v. Hollingberry, 4 B. & C. 330 ;
though on an indictment for a felony the jury could riot
convict of a misdemeanour. Where an indictment contains
divisible averments, as that the defendant " forged and
caused to be forged," proof of either averment is sufficient :
R. V. Middlehurst, 1 Burr. 400 ; and where a defendant is
charged with composing, printing and publishing a libel
he may be convicted of printing and publishing : R. v.
Williams, 2 Camp. 646 ; a verdict of manslaughter may
always be given, at common law, on a charge of murder,
" Because, say the books, manslaughter is included in the
charge of murder " : Fost. 328. Greater offences include
the lesser of a kindred character. On an indictment
founded on a statute the defendant can be found guiltj'' at
common law : 2 Hale, 191, 192 ; 1 Chit. 638 ; 2 Gabbett,
525. See R. v. Bullock, 1 Moo. 324 note ; R. v. Oliver, Bell,
287 ; R. V. Yeadon, L. & C. 81 ; R. v. Taylor, 11 Cox, 261.
Where the offence appears from the evidence to be of a
higher degree than is charged in the indictment it is in
the discretion of the court to discharge the jury, and to
direct another indictment to be preferred : 1 Chit. 639 ; but
if the offence charged is proved the court may receive a
verdict upon it ; the defendant cannot complain of having
been found guilty of a lesser offence than what he might
have been found guilty of on another indictment. But a
verdict for an offence of a hisfher dearee than the one

m'^'^

820

PROCEDURE.

[Sec. 713

charged can never be received. By s. 713 a verdict for
the attempt to commit any offence included in the offence
charged may be given, and on a count for murder no other
verdict can be given than for either murder or man-
slaughter ; or on a chai'ge of child murder for concealment
of birth ; s. 714 ; but, on an indictment for manslaughter, a
verdict may be given for any offence included in that
charge. See R. v. Bird, 2 Den. 94 ; R. v. Phelps, 2 Moo.
240 ; R. V. Ganes, 22 U. C. C. P. 185 ; R. v. Smith, 34
U. C. Q. B. 552.

On an indictment for stealing from the person a ver-
dict for stealing simply may be given : R. v. Sterne, 1
Leach 473 ; a conviction may be returned for any minor
offence which was substantially charged by the residue of
the indictment after striking out that portion of which the
defendant was acquitted: Commonwealth v. Murphy, 2
Allen Mass. 163 ; but the offence found must be the offence
proved : R. v. Gorbutt, Dears. & B. 166 ; R. v. Langmead,
L. & C. 427; R. v. Adams, 1 Den. 38; R. v. Rudge, 13 Cox, 17.

The following decisions on the repealed clause may be
usefully referred to for the construction of s. 713.

In a joint indictment for felony one may be found
guilty of the felony and the other of . ssault under this
clause : R. v. Archer, 2 Moo. 283. In an indictment for
felony a conviction cannot be given under this clause of an
assault completely independent and distinct, but only of
such an assault as was connected with the felony charged :
R. V. Guttridge, 9 C. & P. 471 ; and that case was followed
in R. V. Phelps, 2 Moo. 240, and in R. v. Bird, 2 Den. 94.
The case of R. v. Pool, 9 C. & P. 728, where Baron Gurney
held that if a felony was charged and a misdemeanour of
an assault proved the defendant might be convicted of the
assault although that assault should not be connected with
the felony, stands, therefore, overruled. In R. v. Boden, 1
C. & K. 395, it was held that on an indictment for assault-
ing with intent to rob, if that intent is negatived by the

Sec. 713]

ATTEMPTS, ETC.

821

jury, the prisoner may be convicted of assault under this
enactment. In R. v. Birch, 1 Den. 185, upon a case
reserved, it was held that upon an indictment for robbery
the defendant, under tKis clause, may be found guilty of a
common assault. The judges thought, upon consulting all
the authorities, that this enactment was not to be confined
to cases where the prisoner committed an assault in the
prosecution of an attempt to commit a felony, nor was it to
be extended to all cases in which the indictment for a
felony on the face of it charged an assault. See also
R. V. Ellis. 8 C. & P. 654. But they were of opinion that,
in order to convict of an assault under this section, the
assault must be included in the charge on the face of the
indictment, and also be part of the very act or transaction
which the crown prosecutes as a felony by the indictment.
And it was suggested that it would be prudent that all
indictments for felony including an assault, should state
the assault in the indictment.

In R. V. Greenwood, 2 C. & K. 339, it was held by
Wightman, J., that if on an indictment for robbery with
violence the robbery was not proved the prisoner could
not be found guilty of the assault only, unless it appeared
that such assault was committed in the progress of some-
thing which, when completed, would be, and with intent to
commit, a felony.

In R. V. Reid, 2 Den. 88, it was held by five judges that
the verdict of assault allowed by this clause must be for an
assault as a misdemeanour, and not for a felonious assault,
and this has never since been doubted.

In R. V. St. George, 9 C. & P. 483, the prisoner was
charged with attempting to fire a pistol with intent, etc.
The question was whether the prisoner could be convicted
of an assault committed with his hand prior to having
drawn out the pistol. Baron Parke held that the prisoner
could only be found guilty of that assault which was
involved in and connected with firinsf the pistol ; but that

1
m

^■\' li

I ;

*.'-;«*»■

822

PROCEDURE.

[Sec. 713

i'^-^

case is overruled : see R. v. Brown, 10 Q. B. D. 381 ; R. v.
Duckworth, 17 Cox, 495, [1892] 2 Q. B. 83.

In R. V. Phelps, 2 Moo. 240, the prisoner with others
was indicted for murder. It was proved that Phelps, in a
scuffle, struck the deceased once or twice and knocked him
down ; that after this Phelps went away to his own home
and took no further part in the affray ; that, about a
quarter of an hour afterwards, the deceased, on the same
spot, was a^ain assaulted by other parties, and received
then an injury of which he died on the spot. On these
facts the jury acquitted Phelps of the felony and found
him guilty of the assault. But the judges were unani-
mously o*" opinion that the conviction was wrong, as for a
verdict of assault under the clause mentioned the assault
must be such as forms one constituent part of the greater
charge of felony, not a distinct and separate assault as this
was.

In R. V. Crumpton, Car. & M. 597, Patteson, J., held that,
in manslaughter, a jury should not convict a prisoner of an
assault unless it conduced to the death of the deceased, even
though the death itself was not manslaughter. See also R.
v. Connor, 2 C. & K. 518.

In the case of R. v. Ganes, 22 U. C. C. P. 185, already
cited, the court followed the rule laid down by the majority
in R. V. Bird, and decided that a verdict of assault cannot
be given upon an indictment for murder or manslaughter.
It may be remarked that, in this case, Chief Justice Hagarty
distinctly said that his own individual opinion was wholly
with that of the minority in R. v. Bird, viz., that, in such
eases, a verdict of assault is legal.

In Quebec, in the cases of R. v. Carr (2nd case,) R. v.
Wright, R. V. Taylor, and upon indictments charging either
murder or manslaughter, verdicts of "guilty of assault"
have been given, and received, unquestioned.

In R. V. Walker (Salacia case,) Quebec, 1875, for man-
slaughter, Dorion, C. J., charged the jury that they were at
liberty to return a verdict of common assault.

Sec. 713]

ATTEMPTS, ETC.

823

Upon an indictment for rape, or for an assault with
intent to commit rape, a boy under fourteen may be con-
victed of a common assault or an indecent assault, though
not of an attempt to commit rape : R. v. Brimilow, 2 Moo.
122. See R. v. Waito, (1892) 2 Q. B. 600.

Upon an indictment for feloniously assaulting with intent
to murder, a verdict of common assault may be given : R. v.
Cruse, 2 Moo. 53; R. v. Archer, 2 Moo. 283

But to authorize such a verdict the felony cJ.arged must
necessarily include an assault on the person, and, for
instance, on an indictment for administering poison with
intent to murder, a verdict of assault cannot be given under
this clause. Nor can it be given on an indictment for bur-
glary with intent to ravish: R. v. Watkins, 2 Moo. 217 ;
R. V. Dilworth, 2 M. & Rob. 531 ; R. v. Draper, 1 C. & K.
176; but such a verdict may be given, if the indictment
charges an assault, and the wilfully administering of dele-
terious drugs : R. v. Button, 8 C. & P. 660 ; per Stephen,
J., '•' Poisoning is not an assault : R. v. Clarence, 16 Cox,
526.

In R. V. Cregan, 1 Han. (N. B.) 36, on an indictment for
murder, the jury found the prisoner guilty of an assault
only, but that such assault did not conduce to the death of
the deceased. The court held this conviction illegal and
not sustained by the statute.

In R. V. Cronan, 24 U. C. C. P. 106, the Ontario Court
of Common Pleas held that upon an indictment tor shoot-
ing with a felonious intent the prisoner, if acquitted of the
felony, may be convicted of a common assault, and that to
discharge a pistol loaded with powder and wadding at a
person, within such a distance that he might have been hit,
is an assault.

In R. V. Goadby it appears to have been held that a
verdict of assault cannot be received on an indictment for
feloniously stabbing with intent to do grevious bodily
harm, but this case seems very questionable, says Greaves,
note {d), 2 Russ. 63.

'>'»,«.

824

PROCEDURE.

[Sec. 713

'$'

A prisoner accused of assault with intent to rob may
be found guilty of a simple assault: R. v. O'Neill, 11 R. L.
334.

The case of R. v. Dungey, 4 F. & F. 99, where it was
held that after an acquittal upon an indictment for rape
the prisoner may be indicted for a common assault, is not
law in Canada, under ss. 631-713.

Held, that on an indictment for murder in the short
form given in schedule A. to c. 29, of 32 & 33 V., a prisoner
cannot be convicted of an assault under s. 51 of that
chapter ; held, also, that the fact of the prisoner's counsel
having, at the trial, consented that he could be convicted,
and requested the judge so to direct the jury, did not pre-
clude him from afterwards objecting to the validity of the
conviction on this ground : see R. v. Sirois, 27 N. B. Rep.
610 ; R. v. Mulholland, 4 P. & B. (N.B.) 512.

Greaves' following note to R. v. Phillips, 3 Cox, 226,
may be inserted here.

" It may admit of some doubt whether the construction
of 8. 11 of the 1 V. c. 85, is finally settled. The framer of
the clause probably intended that the clause should apply
to those cases where, upon an indictment for a felony,
including an assault, the jury should acquit on the ground
that the felony, although attempted, was not completed.
But if such were the intention the words do not so clearly
express it as they ought, as they authorize the jury to
convict ' of assault ' on any indictment for felony ' where
the crime charged shall include an assault.' These words
are so general that they might include any assault, whetlier
at the time of ihe felony charged or not ; and the learned
judges have therefore been obliged to put some limitation
upon them, and the proper limitation seems to be that
which has been put upon them by the very learned Baron
in R. V. St. George, namely that the assault must be an
assault involved in and connected with the felony charged ;
and it is submitted that it must be such an assault as is

Sec. 718]

ATTEMPTS, ETC.

825

ent to rob may
D'Neill, 11 R. L.

9, where it was
pitraent for rape
n assault, is not

ier in the short
33 v., a prisoner
r 8. 51 of that
jrisoner's counsel
lid be convicted,
iiry, did not pre-
e validity of the
)i8, 27 N. B. Rep.
2.

Hips, 3 Cox, 226,

the construction
The f ramer of
,use should apply
int for a felony,
it on the ground
not completed,
do not so clearly
rize the jury to
3r felony 'where
These words
assault, whether
and the learned
some limitation
3ems to be that
•y learned Baron
,ult must be an
felony charged ;
an assault as is

essential to constitute part of the crime charged. A felony
including an assault may be said to consist of the assault,
the intent to commit the felony, and the actual felony.
Thus in robbery there is the assault, the intent to rob, and
the actual robbery ; and in such a case it is submitted the
assault, of which the prisoner may i. r^ convicted, must be
such an assault as constitutes one step towards the proof
of the robbery. Upon this the question arises whether an
assault, where the jury negative any intention to commit
a felony, is within the section, and it is submitted that it is
not, as such an assault Cannot be said to be involved in or
connected with the felony charged in any manner whatso-
ever. It is true that an assault is included in the felony
but it is an assault coupled with an intent, and if the jury
negative the intent such an intent in no way tends to
prove the felony ; and it certainly would be a great
anomaly if the prisoner was indicted for a felony, and the
jury found he had no intention of con mitting a felony,
that he might be sentenced to three years' imprisonment
and hard labour, while if he had been indicted for the
offence of which he' was really guilty he could only be
sentenced to three years' imprisonment without hard labour^
R. V. Ellis, 8 C. & P. 654, therefore seems deserving of
reconsideration, and the more so as it was decided before
R. v. Guttridge, 9 C. & P. 471 ; R. v. St. George, 9 C. & P.
483; R. V. Phelps, Gloucester Sum. Ass. MSS. cited 1
Russ. 781. The intention, no doubt, was to punish attempts
to commit felonies including assaults, and it is to be
regretted that the provision, instead of being what it is,
was not that upon any indictm<^ nf for felony, if the jury
should think that the felony was not completed, they might
find the prisoner guilty of an attempt to commit the felony
charged in the indictment."

In that case of R. v. Phillips four persons were indicted
for a felony. Three were found guilty of the felony and
one of common assault.

826

PROCEDURE.

[Sec. 714

Verdict op Concealment op Birth on a Charge of Child Murder.

'3'14. If any person tried for the murder of any child is acquitted
thereof the jury by whose verdict such person is acquitted may find, in case it
so appears in evidence, that the child had recently been born, and that such
person did, by some secret disposition of such child or of the dead body of such
child, endeavour to conceal the birth thereof, and thereupon the court may pass
such sentence as if such person had been convicted upon an indictment for the
concealment of birth. R. S. C. c. 174. s. 188.

See s. 240 as to the offence of concealment of birth. —

Section 714 is taken from 24 & 25 V. c. 100, s. 60,
(Imp.), upon which Greaves remarks: "Cases have not
unfrequently occurred where endeavours have been made
to conceal the birth of children, and there has been no
evidence to prove that the mother participated in those
endeavours, though there has been sufficient evidence that
others did so, and under the former enactments, under
such circumstances, all must have been acquitted. The
present clause is so framed as to include every person
who uses any such endeavour, and it is quite immaterial
under it whether there be any evidence against the mother
or not."

Under the former enactments a person assisting the
mother in concealing a birth would only have been indict-
able as an aider or abettor ; but a person so assisting wouLl
come within the terms of this clause as a principal.

The terms of the former enactments were " by secret
burying or otherwise disposing of the dead body," and on
these terms many cjuestions had arisen : see R. v. Gold-
thorpe, 2 Moo. 240; R. v. Perry, Deal's. 471. Under thisj
clause " any secret disposition " is sufficient.

Under the former enactments the mother alone could
be convicted of this offence where she was tried for the
murder of her child. Under this clause any person tried
for the murder of a child may be convicted of this offence
whether the mother be convicted or not. The words " of
such child " are not in the Imperial Act.

Sees. 715, 716]

TRIAL OF RECEIVERS.

82r

Trial of Joint Heceivers.

715« If, upon the trial of «".vo or more persons indicted for jointly
receiving any property, it is proved that one or more of sach persons separately
receivetl any part or paHs of such property, the jury may convict, upon such
indictment, such of the said persons as are proved to have received any part or
parts of such property. R. S. C. c. 174, s. 200. 24-25 V. c. 96, s. 94, (Imp.).

See 8. 314, et aeq., as to the offence of receiving stolen
goods.

Proceedings against Receivers.

716. When proceedings are taken against any person for having
received goods knowing them to be stolen, or for having in his ix)!isession
stolen property, evidence may be given, at any stage of the proceedings, that
there was found in ;he possession of such person other property stolen within
the preceding period of twelve months, and such evidence may be taken into
consideration for the purpose of proving that such person knew the property
which forms the subject of the proceedings taken against him to be stolen :
Provided, that not less than three days' notice in writing has been given to the
person accused that proof is intended to be given of such other px'operty,
stolen within the preceding period of twelve months, having been found in his
possession ; and such notice shall specify the nature or description of such other
property, and the person from whom the same was stolen. R, S. C. c. 174,
8. 203. 34-35 V. c. 112, s. 19, (Imp.).

See 8. 314, et seq., for the offence of receiving stolen
goods.

The cases of R. v. Oddy, 2 Den. 264 ; R. v. Du-in, 1 Moo.
146 ; and R. v. Davis, 6 C. & P. 177 are not law since the
above enactment

Upon an indictment for receiving stolen goods evidence
may be given under this section that there \ms found in
the possession of the prisoner other property stolen within
the preceding twelve months, although such other property
is the subject of another indictment against him : R. v.
Jones, 14 Cox, 3.

In order to show guilty knowledge, under this section,
it is not sufficient merely to prove that " other property
stolen within the preceding period of twelve months " had
at some time previously been dealt with by the prisoner,
but it must be proved that such " other property " was
found in the possession of the prisoner at the time when he
is found in possession of the property which is the subject

828

PROCEDURE.

[Sees. 717-720

of the indictment : R. v. Drage, 14 Cox, 85 ; R. v. Carter,
15 Cox, 448. Warb. Lead. Cas. 183.

The Same after Previous Conviction.

"yiT. When proceedings are taken against any person for having
received goods knowing them to be stolen, or for having in his possession
stolen property, and evidence has be^ given that the stolen property has been
found in his possession, then if such person has, within five years immediately
preceding, been convicted of any offence involving fraud or dishonesty,
evidence of such previous conviction may be given at any stage of the proceed-
ings, and may be taken into consideration for the purpose of proving that the
person accused knew the property which was proved to be in his possession to
have been stolen : Provided, that not less than three days' notice in writing
has been given to the i)erson accused that proof is intended to be given of such
previous conviction ; and it shall not be necessary, for the purposes of this
section, to charge in the indictment the previous conviction of the person so
accused. R. S. C. c. 174, s. 204. 34-35 V. c. 112, s. 19 (Imp.).

See s. 314, et seq., as to the offence of receiving stolen

goods.

Evidence under Sections 4G0, et seq.

718« Upon the trial of any person accused of any offence respecting the
currency or coin, or against the provisions of Part- XXXV., no difference in
the date or year or in any legend marked upon the lawful coin described in the
indictment, and the date or year or legend marked upon the false coin
counterfeited to resemble or pass for such lawful coin, or upon any die, plate,
press, tool or instrument used, constructed, devised, adapted or designed for
the purpose of counterfeiting or imitating any such lawful coin, shall he
considered a just or lawful cause or reason for acquitting any such person of
such offence ; and it shall, in any case, be sufficient to prove such general
resemblance to the lawful coin as will show an intention that the c ninterfeit
should pass for it. R. S. C. c. 174, s. 205.

See s. 460, et seq., for offences relating to the coin. This
s. 718 is not in the English Act. It was s. 31 of 32 & 33 V.
c. 18 of Canada.

710« Verdict in case of liljel, see ante, under s. 302, p. 305.

Impounding Documents.

7/!0. Whenever any instrument which has been forged or fraudulently
altered is admitted in evidence the court or the judge or jierson who admits the
aame niay, at the request of any person against whom the same is admitted in
evidence, direct that the same shall lie impounded and kept in tiie custody
of some officer of thi' court or other proper iierson for such period and subject
to such conditions, as to the court, judge or person admitting the same seems
meat. R. S. C. c. 174, s. 208.

[Sees. 717-720
R. V. Carter,

erson for having
' in his possession
I property has been

years immediately
ud or dishonesty,
;age of the proceed-
o! proving that the

in his possession to
^8' notice in writing
I to be given of such
he purposes of this
ion of the person so
mp.)-

•eceiving stolen

offence respecting the
XV., no difference iu
, coin described in tlie
upon the false coin
r upon any die, plate,
kpted or designed for
lawful coin, shall be
ig any such person of
prove such general
that the c lunterfeit

lo the coin. This
l31o£32&33V.

I2, p. 305.

Sees. 721-723]

AMENDMENTS AT TRIAL.

829

This clause is not in the Imperial statutes. It was
originally taken from c. 101, s. 2, C. S. U. C ; see s. 569,

s-s. 5.

Destroying Counterfeit Coin.

781. If any false or counterfeit coin is produced on any trial for an
offence against Part XXXV. , the court shall order the same to be cut in pieces
in open court, or in the presence of a justice of the peace, and then delivered
to or for the lawful owner thereof, if such owner claims the same. R. S. C.
c. 174, s. 209.

See ss. 460, et seq., as to offences relating to the coin, and
s. 569, s-s. 6, as to search war'-ant. The repealed clause
applied to all courts. This one applies only to criminal

courts.

View.

7S2« On the trial of any person for an offence against this Act the court
may, if it appears expedient for the ends of justice, at any time after the
jurors have been sworn to try the case and before they give their verdict,
direct that the jury shall have a view of any place, thing or person, and shall
Ifive directions as to the manner in which, and the persons by whom, the place,
thing or person shall be shown to such jurors, and may for that purpose
adjourn the trial and the costs occasioned thereby shall be in the discretion
uf the court. R. S. C. c. 174, s. 171.

2. When such view is ordered, the court shall give such directions as seem
requisite for the purpose of preventing undue coumxunication with such jurors :
Provided that no breach of any such directions shall affect the validity of thB
proceedings. R. S. C. c. 174, ss. 171, 172.

This is more a re-enactment of the Imperial Act, 39 &
40 V. c. 18, s. 11, (for Ireland) than of s Ml, c. 174, R. S. C.
Qiwre, ii evidence is improperly received by ^ha jury
during such view : K v. Martin, i2 Cox, 204. View
ordered in R. v. Whalley, 2 Cox, 231 {see this case as to
i'orms); Anon, 2 Chit. Rep. 422. If witnesses accompany the
jury so as to give explanations to them the prisoner has a
right to be present : see R. v. Petrie, 20 O. R. 317.

Variance and Amendments at Trial.

733. If on the trial of any indictment there appears to be a variance
between the evidence given and the charge in any count in the indictraent,
either as found or as amended, or as it would have been if amended in con-
formity with any particular supplied as provided in sections six hundred and
fifteen and six hundred and seventeen, the court before which the case is tried
may, if of opinion that the accused has not been misled or prejudiced in his

.»•.'

830

PROCEDURE.

[Sees. 724, 725

S-.:

defence by such variance, amend the indictment or any count in it or any such
particular so as to make it conformable with the proof.

2. If it appears that the indictment has been i)referred under some other
Act of Parliament instead of under this Act, or under this instead of under
some other Act, or that there is in the indictment, or in any count in it. an
omission to state or a defective statement of anything requisite to constitute
the offence, or an omission to negative any exception which ought to have been
negatived, but that the matter omitted is proved by the evidence, the court
before which the trial takes place, if of opinion that the accused has not been
misled or prejudiced in his defence by such error or omission, shall amend tlie
indictment or count as may be necessary.

3. The trial in either of these cases may then proceed in all resjiects as if
the indictment or count had been originally framed as amended : Provided
that if the court is of opinion that the accused has been misled or prejudiced
in his defence by any such variance, error, omission or defective statement,
but that the effect of such misleading or prejudice might be removed by
adjourning or postponing the trial, the court may in its discretion make the
amendment and adjourn the trial to a future day in the same sittings, or
discharge the jury and postpone the trial to the next sittings of the court, on
such terms as it thinks just.

4. In determining whether the accused has been misled or prejudiced in
his defence the court which has tf" determine the question shall consider the
contents of the depositions, as well as the other circumstances of the case.

5. Provided that the propriety of making or refusing to make any such
amendment shall Ijo deemed a question for the court, and that the decision
of the court ujjon it may be reserved for the Court of Appeal, or may be
brought before the Court of Appeal like any other decision on a point of law.
R. S. C. c. 174, ss. 237, 238, 2S9. (Amended).

Amendment to be Endorsed.

724. In case an order for amendment as provided for in the next
preceding seofion is made it shall be endorsed on the record ; and all other
rolls and proceedings connected therewith shall be amended accordingly by tlie
proper officer and filed with the indictment, among the proper records of tlie
court. R. S. C. c. 174, s. 240.

FouMAL Record in Such Case.

*73«5. If it becomes necessary to draw up a formal record in any case in
which an amendment has been made as aforesaid, such record shall be drawn
up in the form in which the indictment remained after the amendment was
made, without taking any notice of the fact of such amendment having been
made. R. S. C. c. 174, s. 243.

These clauses are taken with alterations from the 1-i tS:
15 V. c. 100, of the Imperial statutes (Lord Campbell's Act),
in relation to which Greaves remarks : —

" This is one of the most important sections in the Act,
and, if the power given by it be properly exercised, will

[Sees. 724, 725
t in it or any such

under some other
5 instead of under
,ny count in it. an
lisite to constitute
ought to have been
evidence, the court
•cused has not been
m, shall amend the

in all respects as if
imended : Provided
nisled or prejudiced
lefective statement,
jht be removed by
discretion make the
;he same sittinprs, or
ings of the court, on

sled or prejudiced ii»
on shall consider the
mces of the case.
,g to make any sucli
md that the decision
f Appeal, or may be
on on a point of law.

ded for in the next
ecord ; and all other
|ed accordingly by tli«
hroper rect)rds of thi-

k'ecord in any cine ui
fecord shall be drawn
I the ameuduR'Ut wiis
Indment having been

from the 14 Ai
^ampboll'sAct),

lions in the Act,
exercised, will

Sees. 723-725]

AMENDMENTS AT TRIAL.

831

tend very materially to the better administration of crim-
inal justice. Formerly, if any variance occurred between
any allegation in an indictment, and the evidence adduced
in support jf it, the prisoner was entitled to be actjuitted.
This led to much inconvenience. It caused the multiplica-
tion of counts, varying the .^ tement in as many ways as it
was possible to conceive the evidence could support, and
thereby greatly increased the expense of the prosecution. It
sometimes led to the entire escape of heinous oft'enders, for it
happened in some cases that the grand jury were discharged
before the acquittal took place ; and though such acquittal
in many cases would not have operated as a bar to another
indictment, j^et the prosecutor chose rather to submit to
the first defeat than to prefer another indictment at a
subsequent assizes; and even in some cases an acquittal took
place under such circumstances that the prisoner was
enabled successfully to plead it in bar to another indict-
ment. Thus in Sheen'a case, 2 C. & P. G34, where the pri-
soner had been indicted for the murder of Charles William
Beadle, and acquitted on the ground that the name of the
deceased could not be proved, to a subsequent indictment,
which charged him with the murder of Charles William, he
pleaded the former acquittal, and that the deceased was as
well known by the name mentioned in the one indictment
as 1'^- the name mentioned in the other, and so the jury
found. This case clearly shows that the preferring a new
bill was not in all cases sufficient to prevent a failure of
justice in consequence of a variance ; and many like cases
have occurred."

" The provisions as to the amendment of variances in
criminal cases have been gradually extended. ' The first
statute which introduced the power of amendment was the
9 Geo. IV, c. 15, which empowered an}- judge at nisi, j^riiis,
or any court of oyer and terminer and general gaol deliv-
ery, to amend any variance, in cases of misdemeanour,
between any matter in writing or in print, and the recital
thereof on the record. After this statute h:ul been in opera-

*-■

J' i ^■■

832

PROCEDURE.

[Sees. 723-725

tion for the full period of twenty years, and no injurious
consequences had been found to arise from it, the 11 & 12
V. c. 46, 8. 4, empowered any court of oyer and terminer
and general gaol delivery to amend any variance, in any
ojfence whatever, between any matter in writing or in
print and the recital thereof on the record. And the pro-
visions of this Act were extended to the sessions, as far as
they are applicable to offences within their jurisdiction, by
•the 12&13 V. c. 45, s. 10."

" As these enactments only applied to variances between
matters in writing and the recortl a very numerous class
of variances was left unprovided for, and the first clause in
this Act was intended to apply to all such variances."

" It is to be carefully noticed, also, tiii,t an amendment
is only prohibited where the defendant may be prejudiced
in his defence upon the merits, not in his defence simply
(S. 723 is to be read, it is assumed, as if the words " upon
the merits " were therein inserted after " defence " in the
eighth line.) Indeed, wherever any variance occurs which
makes an amendment necessary it may be truly said that
the defendant may be prejudiced in his defence by making it,
for if the amendment be not made the defendant would be
entitled to be acquitted. The prejudice, therefore, to the
defendant, which is to prevent an amendment, is properly
confined to a prejudice in his defence upon the oiierits,
which plainly means a substantial, and not a formal or
technical, defence to the charge made against him."

"Wit \ reg.i:d to the cases in which an amendment
ought to Ve made or refr.': )d, as the questions whether the
variance ha material to the merits of the case, and whether
the defendant may be prejudiced in his defence on the
merits by making an amendment, are questions which must
necessarily depend on the particular charge and particular
circumstances of each case, it is impossible to lay down
any general rule by which the court may be guided in all
cases ; indeed it is very possible that the very same idon-

[Sees. 723-725

no injurious
the 11 & 12
^nd terminer
mce, in any
riting or in
And the pro-
ons, as far as
irisdiction, by

ances between
uraerous class
first clause in
iriances."

m amendment
be prejudiced
defence simply,
e words " upon
efence" in the
;e occurs which
truly said that
ce by making it,
idant would be
herefore, to the
ent, is properly
\on the iiierits,
jot a formal or
st him."
Ian amendment
Ins whether the
Ise, and whether
Idefence on the
Ions which musfc
and particular
lie to lay down
lv)e guided in all
lery same ideu-

Secs. 723-725]

AMENDMENTS AT TRIAL.

833

tical variance which ought unquestionably to be amended
in one case, ought just as clearly not to be amended in
another, as it may so happen that the amendment in the
one case could not possibly prejudice the prisoner in his
defence on the merits, but in the other might materially
prejudice the prisoner in such defence."

" Cases may easily be put where no doubt can exist that
the variance is not material to the merits, and that the
defendant cannot be prejudiced by an amendment in his
defence on the merits. For instance, a man steals a sheep
in the night out of a field, being ignorant at the time of
the name of the owner of the sheep ; in such a case it is;
very difficult to conceive that the name of the owner
can be material to the merits, or that the defendant
can be prejudiced in his defence by the name of the
owner being amended according to the proof. So, also, if ai
man were to shoot into a crowd and wound or kill an indi-
vidual, the name of such individual could hardly by possi-
bility be material. In each case, however, the court
must form its own judgment upon a consideration of the
whole facts of the case, and the manner in which the
variance is brought under its notice ; and it may not
unfrequently be material to see whether any such question-
has been raised before the committing magistrate ; for if the-
case has proceeded before the sitting magistrate without,
any such question being raised that may afford some
ground at least for concluding that the defendant did not .
consider the point material to his defence, and that it is.
not entitled to he so considered upon the trial."

" Before determining upon making an amendment the'
court sho\ild receive all the evidence applicable to the
particular point, otherwise it might happen that that which
appo.ared to be a variance upon the evidence at one stage
of the trial might afterwards be shewn to be no variance
by the evidence at a later period of the trial ; and if the
court were to amend on the evidence at the earlier period,
CuiM. Law— 53

834

PROCEDURE.

[Sees. 723-725

it would be obliged to direct an acquittal upon the evidence
at the subsequent period, for the clause gives vo 2)0wer to
amend the same identical imrticular more than once."

" Again, in order to ascertain whether the prisoner may
be prejudiced in his defence by the amendment, the court
ought to look, not only to the facts in evidence on the part
of the prosecution at the time when the amendment is
applied for, but also to the defence already set up, or
intended to be set up ; for which purpose it may, perhaps,
in some cases be necessary to examine a witness or two on
behalf of the defendant and the contents of the depositions-
s. 723 s-s. 4."

"It must be remembered that the question is one entire!}'
for the court, and that the court must decide it itself ; and,
generally speaking, where this is the case the court will
not determine the question before it on the evidence on one
side, but will permit the other side immediately to intro-
duce any evidence that may bear upon the question, so that
the whole facts relating to tl.e particular question may be
before the court at once."

" Thus — to mention an analogous case — where the plain-
tiff proposed to put in evidence an account signed by the
defendant, and the defendant proposed to exclude the
account, on the ground that it had been delivered to the
plaintiff, an attorney, in his character of attorney for the
defendant, Erie, J., held that the det'endant was entitleil
immediately to put in a letter, and call a witness to prove
that the account was so delivered, though the plaintiff' sca.se
was not closed : Cleave v. Jones, Hereford Summer Assizes,
1851. It must be noticed, also, that the power to amend
clearly does not extend to altering the charge in the indict-
ment from one offence to another offence. For instance, an
indictment for ' forging ' could not he altered into an
indictment for ' uttering,' nor an indictment for ' stealing '
into an indictment for ' obtaining by false pretenses.' "

' t

Sees. 723-725]

AMENDMENTS AT TRIAL.

835

" Equally clear is it that the amendment ought not to be
made so to apply to a ditferent transaction. Every offence,
however simple it may be, consists of a n'lmber of parti-
culars ; it must have time, and place, and its component
parts, all of which together constitute one individual
transaction. Now the real meaning of the clause is that,
provided you keep to the same identical transaction, you
may amend any such error as is mentioned in the clause as to
one or more of the particulars included in such transaction.
For instance, a burglary is charged in the house of James
Jones, in the parish of Winkill, and stealing the goods of
John Jeffs. The evidence shows that a burglary was com-
mitted in every respect as alleged, except that the goods
were the property of James Jeffs. There an amendment
would clearly be right. But suppose, instead of such a
case, it was proposed to prove a burglary at another time,
at another place in another man's house, and the stealing of
other goods; this clearly would not be a case for amendment.
The proper mode to consider the question is this : the grand
jur}'' have had evidence of one transaction upon which they
found the bill ; the case before the petty jury ought to be
contined to the same transaction, but if it is, it may turn
out that, either through insufficient investigation or other-
wise, the gi-and jury have been in error as to some particular
or other, and upon the trial the error is discovered. Now
this is just the case to which the clause applies. A civil
case may afford an apt illustration. The plaintiffs declared
on a promissor}' note for £250, made by tlie defeiuhmt,
dated the 9th of November, 1838, payable to the plaintiffs,
or their order, on deimind ; the defendant pleaded that he
did not make the note ; the plaintiffs proved on the trial a
^oint and several promissory note for £250, made by the
defendant and Jiis wife, dated the Gth of November, paj'-
able twelve months afterdate, with interest. There was no
proof of the existence of any other note. Although it was
objected that there was a material variance in the substan-
tial parts of the note, the date, the parties, and the period

i*i

836

PROCEDURE.

[Sees. 7J3-725

of its duration, it was held that the declaration was properly
amended so as to make it correspond with the note pro-
duced ; for it was a mere misdescription, and it was just
the case in which the Legislature intended that the discre-
tionary power of amendment should be exercised : Beckett
V. Button, 7 M. &. W. 157."

" The following appear to be the sort of variances which
are amendable. In an indictment for bigamy, a woman
described as a ' widow ' who is proved to be unmarried : R.
V. Deeley, 1 Moo. 303 ; or as 'Ann Gooding,' where the
register described her as ' Sarah Ann Gooding ' : R. v.
Gooding, Car. & M. 297. In an indictment for night poach-
ing describiPL,' a wood as ' The Old Walk,' its real name
being 'The Long Walk': R. v. Owen, 1 Moo. 118. In an
indictment for stealing ' a cow,' which was ' a heifer ' ■
Cookes case, 1 Leach, 105 ; ' a sheep," which turned out to
be 'a iarib': R. v. Loom, 1 Moo. 160; or 'ewe': R. v.
Ptiddifoot, 1 Moo. 247 ; ' a filly,' which was a ' mare ' : R. v.
Jones, 2 Russ. 364 ; ' a spade,' which turned out to be
the iron part without any handle : R. v. Stiles, 2 Russ. 316.
So in an indictment for a nuisance, by not repairing, or by
obstructing a highway, the termini of the highway might
be amended. So where an indictment alleges a burglary,
or house-breaking, in the parish of St. Peter, in the county
of W., and it appeal's that only part of the parish is situateil
in such county, the indictment may be amended : R. v.
Brook. Car. & M. 543 ; R. v. Jackson, 2 Russ. 49, 76."

" Such are some of the instances in which amendments
would clearly be right, but it is easy to suggest other cases
in which an amendment ought not to be made. Suppose,
on the trial of an indictment for stealing a sheep, evidence
were given of stealing a cow, or vice versa, or on an indict-
ment for stealing geese it were proposed to prove stealing
fowls ; these are cases in which no amendment ought to be
made ; it is impossible to conceive that the grand jury can
have made such a mistake, and the offence, though in law

[Sees. 723-725

1 was properly
the note pro-
id It was just
,hat the (liscre-
cisecl: Beckett

variances which
amy, a woman
unmarried : R.
intf,' where the
oocUng ' : R- V.
for night poach-
C' its real name
30. 118. In an
was ' a heifer ' ;
ch turned out to
or 'ewe': R. v.
a ' mare ' : R. v.
irned out to be
Itiles, 2 Russ. 316.
repairing, or by
. highway might
lieges a burglary,
Lr, in the county
parish is situated
amended : R. v.
Russ. 49, 76."
|hica amendments
iggest other cases
ir!ade. Suppose,
a sheep, evidence
■I, or on an indict-
to prove stealing
[iment ought to be
lie grand jury can

^ce, though inlaw

Sees. 723-725]

AMENDMENTS AT TRIAL.

837

X ^^veni judge, that the
an be prejudiced by an

the same, and liable to the same punishment, is obviously
as different as if it were different in law, and liable to a
different ijunislnnent."

"Many decisions have been rendered by the courts in
civil cases as to the instances in which amendments ought
to be made, and some of the principles laid down in those
decisions may form a useful gu' 'f^ in questions arising
under this clause, and they are, ti -refore, here introduced."

"It has been well laid down l
fairest test of whether a defend;;
amendment is this : ' Supposii j; the deh adant comes with
evidence that would enable him to meet the case as it stands
on the record unamended would the same enable him to
meet it as amended ' : ^9er Rolfe, B., Cooke v. Stratford, 13
M. kit W. 379. If whatever would be availaVtle as a de-
fence under the indictment, as it originally stood, would be
equally so after the alteration was made, and any evidence
the defendant might have would be equally applicable to
the indictment in the one form as in the other, the amend-
ment would not be one by which the defendant could be
prejudiced in his defence, or in a matter material to the
merits: Gurford v. Bayley, 3 M. & G. 781. If the transac-
tion is not altered by the amendment, but remains precisely
the same, the amendment ought to be allowed : Cooke v.
Stratford, 13 M. & W. 379. But if the amendment would
8uV)stitute a different transaction from that alleged it
ought not to be made : Perry v. Watts, 3 M. & G. 775 ;
Brashier v. Jackson, 6 M. & W. 549 ; and the court will
look at all the circumstances of the case to ascertain
whether the transaction would be changed by the amend-
ment. If the amendment woUld render it necessaiv to
plead a different plea the amendment ought not to be
made: Perry v. Watts, 3 M. «& G. 775 ; Brashier v. Jackson,
6 M. & W. 549."

" It was laid down in two cases of perjury, which were
tried some years ago, that amendments in criminal cases

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

M2.5

■iii

m 1,2.2

2.0

IL25 i 1.4

\^-

Photographic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. M5S0

(716) S73-4S03

ri^.

<ir^^

1"*? ' - -

838

PROCEDURE.

[Sees. 723-725

5.",

HXk

ll't^ ^''^

f tK ^.

Ni I- 1 ft

4- « t "^

ought to be made sparingly under the 9 Geo. IV. c. 15 ;
R. V. Cooke, 7 C. & P. 559 ; R. v. Hewins, 9 C. & P. 786.
These cases occurred at a time when amendments in crim-
inal cases were looked upon with great disfavour ; but the
opinion of the Legislature, evidenced by the 11 & 12 V.
c. 46, s. 4, the 12 & 13 V. c. 45, s. 10, and the present
statute, clearly is in favour of amendments being made in
all cases where the amendment is not material to the
merits, and the prisoner is not prejudiced by it. In civil
suits, the 9 Geo. IV. c. 15, and the 3 & 4 Wm. IV. c. 42,
8. 23, being remedial acts, have always received a liberal
construction ; Smith v. Brandram, 2 M. & G. 244 ; Smith
v. Knowlden, 2 M. & G. 561 ; Sainsbury v. Matthews,
4 M. & W. 343 ; and it has been held, that the fact of an
action being a harsh ^nd oppressive proceeding on the part
of a landlord, who was taking advantage of a forfeiture in
order to get possession of property on which the defendant
had laid out a large sum of money, was not a considera-
tion which ought to influence a judge against allowing an
amendment ; for if the amendment did not prejudice the
defendant in his defence it ought to be allowed : Doe d.

Marriott v. Edwards, 5 B. & Ad. 1065 "The

amendment must be made in the course of the trial, and
certainly before the jury give their verdict, because the
trial is to proceed and the jury are to give their opinion
upon the amended record : per Alderson, B., Brashier v.
Jackson, 6 M. &; W. 549. It would be better, indeed, in
all cases to make it immediately before any further evi-
dence is given, and where the amendment is ordered in the
coui-se of the case for the prosecution it certainly should
be made before the defence begins, for it is to the amended
record that the defence is to be made."

In England the provision re-enacted in s. 725, ante,
applies to all amendments including those made in virtue
of the enactment re-produced in s. 629, ante; but it is
clear that the substitution of the words " as afoi'esaid " in
the 8aid s. 725 of our Act for the words " under the provi-

'M-: ^

1 1

Sees. 723-725]

AMENDMENTS AT TRIAL.

839

sions of this Act " in the English corresponding clause has
the effect of rendering the enactment of s. 725 not appli-
cable to amendments made under the said s. 629, and that
in the case of such i n amendment having been made it
must so appear if a formal record has to be drawn up.

Sub-section 2 of s. 723 extends the power of amendment
to a very large extent. In practice, however, it may not be
acted upon frequently. If the indictment charges no
offence the courts will not replace the grand jury. And it
will not often happen that a case will come to trial before it
is discovered that the indictment is so defective that it
really charges no offence. Should that happen, all that
the counsel for the defence has to do, is not then to notice
the defect at all. If a verdict is given against his client
the objection will be open to him on arrest of judgment :
s. 733. The court, on that motion, will not have power to
make amendments of which no mention has been made
before the verdict.

Sub-section 5 of s. 723 makes the propriety of making
or refusing to make any such amendment a question for
the court : it does not seem clear how it could ever have
been a question for the jury.

The right to reserve a case upon such an amendment is
new. Any decision upon such a question was always held
not to be a question of law but one entirely in the discre-
tion of the judge

Greaves, in 3 Russ. 324, has the following additional
remarks on the English statute :—

" It has been well laid down by a very learned judge
(Byles, J., in R. v. Welton, 9 Cox, 297,) that a statute like
the 14 & 16 V. c. 100, should have a wide construction, and
should not be interpreted in favour of technical strictness,
and there are very strong reasons why a liberal construc-
tion should be made on such a statute. If a prisoner is
acquitted on the ground of a variance he may be again
more correctly indicted, and wherever this course is ttdopted

'«■■

€

l$h II

^15 I'M' *:,.„

•^r 1> ^H

840

PROCEDURE.

[Sees. 723-725

the effect of an acquittal on such a variance is to put both
the prosecutor and prisoner to additional trouble and
expense. And in case where no fresh indictment is pre-
ferred the result is that the costs of the prosecution are
thrown away, and an offender, possibly a very notorious
one, escapes the punishment he deserves. In every case
where an acquittal takes place in consequence of a variance
the court may order a fresh indictment to be preferred, and
the prisoner to be detained in prison or admitted to bail
till it is tried, and it may be well for the court, where a
variance occurs, to consider whether the prisoner might not
fairly be presented with the option either of having the
amendment made or of being indicted anew in a better
form."

In R. v. Bussel, 1 'Moo. 356, the prisoner consented to a
sentence though he had been unlawfully convicted, and the
court sentenced him accordingly.

WHEN THE AMENDMENT MUST BE MADE.

It had been laid down in R. v. Rymes, 3 C. & E. ?'26,
that an amendment should not be allowed after the counsel
for the defence has addressed the jury, but this case is now
no authority, and an amendment may be allowed after the
prisoner's counsel has addressed the jury : R. v. FuUarton,
6 Cox, 194.

But it must be made before verdict : R. v. Frost, Dears.
474 ; R. V. Larkin, Dears. 365 ; R. v. Oliver, 13 Cox, 588.

" Upon full consideration," says Greaves, 3 Russ. 329,
** it seems that the verdict is the dividing line. Any one
familiar with criminal trials must have met with cases
where variances have not been discovered until just before
the verdict is given, and the only limit to the time for
amendment is in the words ' on the trial,' and the trial is
clearly continuing until the verdict, as the power to amend
is given ' whenever on the trial ' there shall appear to be
any variance."

[Sec8, 723-725

is to put botli
1 trouble aud
ctment is pre-
jrosecution are
very notorious

In every case
ce of a variance
)e preferred, and
idmitted to bail
) court, where a
isoner migbt not
sr of having the
new in a better

er consented to a
onvicted, and the

S MADE.

88. 3 c. & K. n(i,

I after the counsel

^t this case is now

allowed after the

: B. V. FuUarton,

i. V. Frost, Dears.
fer, 13 Cox, 588.
Jives, 3 Buss. 329,
.g line. Any one
|e met with cases
until just before
to the time for
fi; and the trial is
he power to amend

[hall appear to be

Sees. 723-726

AMENDMENTS AT TRIAL.

841

" Before making an amendment the court should receive
all the evidence bearing upon the point ; and as this is a
question to be determined by the court, but is not to be
left to the jury, the evidence bearing upon it which may
be in the possession of the 'prisoner may be interposed
when the point arises in the course of the case for the
prosecution, and this is much the best course, as the court
is thereby enabled to dispose of the point at once ; indeed,
it is now settled that in all cases, whether civil or criminal,
where a question is to be decided by the court, the proper
course is for the judge to receive the evidence on both
sides at once, and then to determine the question."

DECISIONS ON THE STATUTE.

The clause gives no power to amend the same identical
particular more than once, and the court will not amend an
amendment : B. v. Barnes, L. B. 1 C. C. B. 45.

And when an indictment is amended at the trial the
court of Crown cases reserved cannot consider it as it
originally stood, but only in its amended form : E. v. Prit-
chard, L. & C. 34 ; B. v. Webster, L. & C. 77.

Under this statute, an amendment in the name of the
owner of stolen property, by substituting a different owner
than the one alleged, may be made at the trial : B. v. Vin-
cent, 2 Den. 464 ; B. v. Senecal, 8 L. C. J. 287 ; see Cornwall
, V. R., 33 U. C. Q. B. 106, and B. v. Jackson, 19 U. C. C. P.
280.

In B. V. Welton, 9 Cox, 297, the prisoner was charged
with throwing Annie Welton into the water with intent to
murder her ; there being no proof of the name of the child
it was held by Byles, J., that the indictment might be
amended by striking out " Annie Welton " and inserting
" a certain female child whose name is to the jurors un-
known." ..

An indictment alleged that a footway led from a turn-
pike-road into the town of Gravesend, but the highway was

V'- 1.»

I J

842

PROCEDURE.

[Sees. 723-725

'3i« I

a carriage way from the turnpike-road to the top of Orme
House Hill, and from thence to Gravesend it was a foot-
way, and the nuisance alleged was between the top of
Orme House Hill and Gravesend ; it was held that the
indictment might be amended by substituting a description
of a footway running from Orme House Hill to Gravesend
as this appeared to be the very sort of case for which the
statute provides : R. v. Sturge, 3 E. & 6. 734.

Where an indictment for perjury alleged that the crime
was committed on a trial for burning a bam, and it was
proved that the actual charge was one of firing a stack of
barley, it was held that the words stack of barley might be
inserted instead of bar^i : E. v. Neville, 6 Cox, 69.

Where the indictment stated that the prisoner had com-
mitted perjury at the hearing of a summons before the
magistrates charging a woman with being " drunk " where-
as the summons was really for being "drunk and
disorderly," the court held that it had power, under thig
statute, to amend the indictment by adding the words "and
disorderly": R. v. Tymms, 11 Cox, 645.

In an indictment for perjury the perjury was alleged to
have been committed at a petty sessions of the peace, at
Tiverton, in the county of Devon, before John Lane and
Samuel Garth, then respectively being justices of the peace
assigned to keep the peace in and for the said county, and
acting in and for the borough of Tiverton, in the said
county. It appeared by the proof that these gentlemen
were justices for the borough of Tiverton only, and were not
justices for the county. Blackburn, J., allowed the indict-
ment to be amended by striking out the words, the said
county, so as to make the averment be, " justices assigned
to keep the peace in and for, and acting in and for tlie
borough of Tiverton, in the said county." The court of
criminal appeal held that the judge had power so to amend :
R. V. Western, 11 Cox, 93.

The secretary of a friendly society, of which A. B. and
others were the trustees, was charged with embezzling

[Sees. 723-725

xe top of Orme
it was a foot-
en the top of
, held that the
ttg a description
11 to Gravesend
je for which the

dthat the crime
,am, and it was
firing a stack of
'6arl«2/ might be

:ox, 69.

)ri8oner had com-
mons before the
" drunk " where-
Qg "drunk and
power, under thia
ig the words "and

ary was alleged to
is of the peace, at
[e John Lane and
stices of the peace
said county, and
^rton, in the said
[t these gentlemen
)nly, and were not
ftUowed the indict-
|he words, the said
" justices assigned
ig in and for the
ty." The court of
)Owersotoamend:

lof which A. B. and
with embezzling

Sees. 723-725]

AMENDMENTS

TRIAL.

843

money belonging to the society. In the indictment, the
property was laid as of " A. B. and others," without alleg-
ing that they were trustees of the society : held, that the
indictment might be amended by adding the words, " trus-
tees of : " R. V Marks, 10 Cox, 367 ; see R. v. Senecal, 8
L. C. J. 287.

The description of an Act of parliament in an indict-
ment may be amended : R. v. Westley, Bell, 193.

In an indictment for larceny of property belonging to a
banking company the property was laid to be in the
manager of the bank ; the banking business was carried on
by a joint-stock banking company, and there were more
than twenty partners or shareholders. The judge amended
the indictment by stating the property to be in " W. (one
of the partners) and others : " held, that this amendment
was right : R. v. Pritchard, L. & C. 34, 8 Cox, 461.

But an amendment changing the offence charged to
another offence should not be allowed. Where the prisoner
was indicted for a statutable felonious forgery, but the
evidence only sustained a forgery at common law, the
prosecutor was not allowed to amend the indictment by
striking out the word " feloniously," and thus convert a
charge of felony into one of misdemeanour : R. v. Wright,
2 F. & F. 320.

So upon an indictment for having carnal knowledge of
a girl between ten and twelve years of age, it appearing by
the proof that she was under ten, Maule, J., held that the
indictment could not be amended : R. v. Shott, 3 C. & K.

206.

The words " felonious " or " feloniously," if omitted,
can never be allowed to be inserted : 1 Russ, 935, note (a)
by Greaves. An amendment altering the nature or quality
of the offence charged cannot be allowed.

When an indictment against two bankrupts alleged
that they embezzled a part of their personal estate to the
value of £10 — to wit, certain bank-notes and certain

'PI

f i

' •• '!

844

PROCEDURE.

[Sees. 723-725

monej'^s, and it rather seemed that the money converted
was foreign money, it was held that " moneys " meant
English moneys, and the court refused to amend the indict-
ment: R. V. Davison, 7 Cox, 158. But Greaves is of
opinion that the case seems to be one in which an amend-
ment clearly might have been made : 3 Russ. 327.

An indictment alleged that the prisoner pretended that
he had served a certain order of affiliation on J, Bell ; but
the evidence was, that the prisoner had said that he had
left the order with the landlady at the Chesterfield Arms,
where Bell lodged, he being out; it was held that this
variance was not amendable under the English statute, as
it was not a variance in the name or description of any
matter or thing named or described in the indictment : E.
v. Bailey, 6 Cox, 29.' But in Canada such a variance would
be amendable, being covered by the more general terms of
the statute.

A woman charged with the murder of her husband was
described as " A., wife of J. O., late of ," the judge

ordered this to be amended by striking out the word " wife,"
and inserting the word " widow : R. v. Orchard, 8 C. & P.
665.

Where, in an indictment for false pretenses, the words
" with intent to defraud " are omitted, the indictment is bad,
and cannot be amended under this statute : per Lush, J.,
R. V. James. 12 Cox, 127. The form given in form F. F.
schedule one under s. 611, ante, omits the words "with
intent to defraud."

An indictment charged the prisoner with stealing nine-
teen shillings and sixpence. At the trial, it was objected
by the prisoner's counsel that there was no case, for the
evidence showed that if the prisoner was guilty of stealing
anything it was of stealing a sovereign. Thereupon the
court amended the indictment by striking out the words
nineteen shillings and sixpence," and inserting in lieu thereof
" one sovereign." The jury found the prisoner guilty of

[SecB. 723-725

)ney converted
loneys" meant
lend the indict-

Greaves is of
hich an amend-
ss. 327.

r pretended that
, on J. Bell ; but
said that he had
hesterfield Arms,
a held that this
Inglish statute, as
Bscription of any
,e indictment : R.

a variance would
8 general terms of

,f her husband was

," the judge

it the word "wife."

irchard, 8 C. & P.

tetenses, the words
t indictment is bad,

[tute : per Lush, J.,
[iven in form F. F.
the words "with

with stealing nine-
Vial, it was objected
[as no case, for the
Is guilty of stealing
Ti. Thereupon the
ang out the words
ertinginlieuthei-eof

prisoner guilty ot

Sec. 726]

FORM OF RECORD.

845

stealing a sovereign: held, that the court had power to
amend under the 14 & 15 V. c. 100, s. 1 : R. v. Gumble,
12 Cox, 248.

The words " with intent to defraud " allowed to be struck
out of an indictment : R. v. Cronin, 36 U. C. Q. B. 342.

If an indictment for libel contains merely a general
allegation that the newspaper in which it appeared circu-
lated in the district of Montreal, an amendment for the
purpose of alleging publication in that District of the
special article complained of is not allowable : R. v. Hick-
son, 3 L. N. 139.

Where two or more names are laid in an indictment
under an alias dictum, proof of one only will be sufficient :
R. V. Jacobs, 16 S. C. R. 433.

Form of Record.

726> In iraking up the record of any conviction or acquittal on any
indictment it shall be sufiBcient to copy the indictment with the plea pleaded
thereto, without any formal caption or heading ; and the statement of the
arraignment and the proceedings subsequent thereto shall be entered of record
in the same manner as before the passing of this Act, subject to any such alter*
ations in the forms of such entry as are, from time to time, prescribed by any
rule or rules of the superior courts of criminal jurisdiction respectively, — which
rales shall also apply to such inferior courts of criminal jurisdiction as are
therein designated. R. S. C. c. 174, 8. 244.

There is no stnlutory enactment, in England, corre-
sponding to this OKii;, and there the caption has, yet, to be
entered of record immediately before the indictment, when
the record has to be made up in form.

The record of judicial proceedings in criminal cases is
always, in the first instance, taken down by the clerk of
the court in the way of short entries made upon his docket,
or of endorsements upon papers filed, and the like. When
he has to make the extended record, or record proper,
resort is had to these docket entries, to the documents filed,
and to the several endorsements upon them, which serve as
memoranda for him. The record, formally made up, is the
history or narration of the proceedings in the ca?e, stating :

■^*^^

«l

r ■ i

84C

PROCEDURE.

[Sec. 726

Ist. The court before which the indictment was found,
and where and when holden.

2ndly. The grand jurors by whom it was found.

3rdly. The time and place where it was found, and that
the indictment was found under oath.

{These three 'part'iculara formi the caption.)

4thly. The indictment.

5thly. The appearance or bringing in of the defendant
into court.

6thly. The arraignment.

7thly. The plea.

8thly. The j')inder in issue, or aiiniliter.

9thly. The award of the jury process.

lOthly. The verdict.

llthly. The allocutus, or asking of the defendant why
sentence should not be passed on him.

12thly. The sentence.

It is probably now only to prove autrefois acquit or
autrefois convict that it will be necessary to draw up a
fonnal record, as ss. 694, 695 and 743 take away the necessity
of so doing in the other cases where it could have been
wanted.

The necessity of a formal caption or heading to a made-
up record is taken away by section 726.

The caption of the indictment is no part of the indict-
ment itself, but only the style or preamble thereto, the
formal history of the proceedings before the grand jury:
2 Hale, 165 ; 1 Starkie, Cr. PI. 233 . 2 Hawk. 349 ; 1 Ciiit,
325 ; Archbold, 37 ; 1 Bishop. Cr. Proc. 655.

The form of the caption is as follows :

Dominion of Canada. 1 In the Court of Queen's Bencii,
Province of Quebec. / Crown Side.

District of Quebec. — Be it remembered, that at a tenn
of the Court of Queen's Bench, crown side, holden at the

S^-c. 726]

FORM OF RECORD.

847

the defendant why

sheading to a made-

city of Quebec, in and for the said district of Quebec, on
the day of , (the first day of the tervi,) in

the year of our Lord , upon the oatl»of {insert the

names of the grand jurors) good and lawful men of the
said district, now here sworn and charged to inquire for
our Sovereign L»dy the Queen, and for the body of the
said district, it is presented in the manner following, that
is to say : {this ends the caption).

Then the record continues to recite the indictment, etc.,
as follows, and by s. 726, raay commence here :

District of Quebec. — The Jurors for our Lady the Queen
present, that John Jones, on the fifth day of June, in the
year of our Lord one thousand eight hundred and seventy,
wilfully and unlawfully did kill and murder one Patrick
Ray, whereupon the sheriflf of the aforesaid district is com-
manded, that he omit not for any liberty in his bailiwick,
but that he take the said John Jones, if he may be found
in his bailiwick, and him safely keep to answer to the
murder whereof he stands indicted. And afterwards, to
wit, at the same term of the said Court of Queen's Bench,
before the said Court of Queen's Bench, on the said

day of , in the said year of our Lord

here cometh the said John Jones under the custody of
William Brown, Esquire, sheriff of the district aforesaid
(in whose custody in the gaol of the district aforesaid, for
the cause aforesaid, he had been before committed), being
brought to the bar here in his proper person by the said
sheriff, to whom he is here also committed. And he, the
said John Jones, forthwith being demanded concerning the
premises in the said indictment above specified and charged
upon him, how he will acquit himself thereof, saith that
he is not guilty thereof, and therefore he puts himself upon
the country. And the honourable George Irvine, Attorney-
General of our said Lady the Queen, who prosecutes for our
.said Lady the Queen in this behalf, doth the like. There-
fore let a jury thereupon immediately come before the said

! I

It'''

l/j;>'i/

n i i

848

PROCEDURE.

[Sec. 726

court of free and lawful men of the said district of Quel)ec,
by whom the truth of the matter may be the better known,
and who are«not of kin to the said John Jones, to recognize
upon their oath whether the said John Jones be guilty of
the offence in the indictment above specified or not guilty ;
because, as well, the said George Irvine, who prosecutes for
our said Lady the Queen in this behalf, as the said John
Jones have put themselves upon the said jury. And the
jurors of the said jury, by the sheriff for this purpose
empannelled and returned — to wit (naming the twelve)—
being called, come, who to speak the truth of and concerning
the premises being chosen, tried and sworn, upon their oath,
say that the said John Jones is guilty of the offence afore-
said on him above charged, in manner and form aforesaid
as by the said indictment is above supposed against him.
And thereupon it is forthwith demanded of the said John
Jones, if he hath or knoweth anything to say why the said
court here ought not, upon the premises and verdict afore-
said to proceed to judgment against him ; who nothing
further saith, unless he has before said. Whereupon, all
and singular the premises being seen and fully understood
by the said court here, it is considered and adjudged by the
said court here that the said John Jones be taken to the
common gaol of the said district of Quebec, from whence he
came, and that he be taken from thence to the place of execu-
tion, on Friday, the day of , next ensuing,
and there be hanged by the neck until he be dead ; and the
court orders and directs the said execution to be done on the
said John Jones in the manner provided by law.

If the defendant against whom an indictment has been
found happen to be present in court, or in the custody of
the court, he may at once be arraigned upon the indictment
without previous process : 1 Chit. 338 ; Archbold, 78.

Then the record, when made up, instead of the words
" whereupon the sheriff of the aforesaid district is com-
manded," etc., as in the above form, must read " Whei^e-

Sees. 727, 728]

JURY-PROCEEDINGS, ETC.

849

upon, to wit, on the said day of , at the same

term of the said Coui-t of Queen's Bench, before the said
Court of Queen's Bench here cometh the said John Jones
under the custody of William Brown, E8(|uire, sheriff of
the district aforesaid (in whose custody, in the gaol of the
diHtrict aforesaid, he stood before committed)," etc.

In the report of the case of Mansell v. R., Dears & B.
37.5, may be seen a lengthy form of a record with all the
proceedings on the challenges of jurors ; also in R. v. Fox,
10 Cox, 502 ; Whelan v. R., 28 U. C. Q. B. 2 ; Holloway
V. R., 2 Den. 289 ; and 4 Blacks. Appendix.

By s. 673 no formal adjournment need be entered.

In the case of Whelan v. R., cited supra, it was held in
Upper Canada that if, notwithstanding s. 52, c. 99, Con.
Stat. Can), (now s. 726 of this Code) a formal 2aption is
prefixed to the indictment this caption may be rejected if
it proves defective.

In R. V. Aylett, 6 A. & E. 247, note, and R. v. Marsh, 6
A. & E. 236, it was held that it is not necessary to name the
^'rand jurors in the caption.

Jury Retiring.

7'i7» If the jury retire to consider their verdict they shall be kept under
the charge of an officer of the court in some private place, and no person other
than the officer of the court who has charge of them shall be permitted to
speak or to communicate in uiiy way with any of the jury without the leave of
the court.

2. Disobedience to the directions of this section shall not affect the
validity of the proceedings : Provided that if such disobedience is discovered
before the verdict of the jury is returned the court, if it is of opinion that such
disobedience has produced substantial mischief, may discharge the jury and
direct a new jury to be sworn or empanelled during the sitting of the court, ot-
postpone the trial on such terms as justice may require.

Jury cnable to Agree.

788. If the court is satisfied that the jury are unable to agree upon their
verdict, and that further detention would be useless, it may in its discretion
discharge them and direct a new jury to be empanelled during the sittings
i)f the court, or may postone the trial on such terras as justice may require.

2. It shall not be lawful for any court to review the exercise of this dis-
cretion.

Crisi. Law— 54

n*m

850

PROCEDURE.

[Sees. 729-731

Proceedings on Sunday.

729- The taking of the verdict of the jury or other proceeding of the
court shall not be invalid by reason of its happening on Sunday.

See remark's, ante, under s. 675. S. 729 removes a
doubt that was raised in Winsor v. R., 10 Cox, 276 ; and R.
V, Cropper, 2 Moo. 18.

The closing of the term discharges the jury fix)m giving
a verdict, and the defendant may be tried again : Newton's
Case, 13 Q. B. 716 ; 3 Wharton, 3168.

That a witness is not sufficiently advanced in years or
religiously instructed to understand the nature of an oath,
if found out only after the jury has been sworn, is no ground
for discharging a jury and ordering the trial to be post-
poned : R. V. Wade, 1 Moo. 86 ; R. v. Oulaghan, Jebb, 270.
The case of R. v. White, 1 Leach, 430, does not support the
summary given by the reporter.

Jury de Ventre Inspiciendo.

730. If sentence of death is passed upon any woman she may move in
arrest of execution on the ground that she is pregnant. If such a motion is
made the court shall direct one or more registered medical practitioners to be
sworn to examine the woman in some private place, either together or succes-
sively, and to inquire whether she is with child of a quick child or not. If
upon the report of any o/theni it appears to the court that she is so with child
execution shall be arrested till she is delivered of a child, or until it is no longer
possible in the course of nature that she should be so delivered.

73 !• After the commencement of this Act no jury de ventre inspicmdo
«hall be empanelled or sworn.

This is the law in Ireland, 39 & 40 V. c. 78, s. 13, with
the exception of the words " in some private place" which, it
seems, were thought necessary in Canada. The oath to be
administered to the medical practitioner or practitioners
in open court may be as follows :

" You swear that you will search and try the prisoner
at the bar whether she be with child of a quick child or
not, and thereof a true verdict give according to your skill
and understanding. So help you God." Quick with
child is having conceived ; with quick child is when the
child is quickened : per Gurney, B., in R. v. Wycherley,

} jury fi'om giving

Sec. 732]

NOLLE PROSEQUI.

851

8 C. & P. 262 ; see R. v. Russell, 1 Moo. 356, and the

reporter's note to R. v. Wycherley, uhi supra. S. 730

would seem to allow of the execution of a pregnant woman

if the child has not quickened. That construction no court

would give however. The law of England does not punish

foeticide as a crime but it does not authorize it or legalise it.

As a jury of matrons always did, formerly, the medical

practitioner will always, when the woman is pregnant,

report that she is with child of a quick child. Enceinte

with a quick child, or quick with child, mean the same

thing, says 2 Hale, 413. After the woman has been

delivered, or when the time within which in the course of

nature she should have been delivered, has elapsed she

must be brought into court again to be sentenced de novo,

or that a day be fixed for her execution : 1 Hale, 368. She

could not, at common law, plead pregnancy a second time ;

but under s. 730 it seems that it could now be done.

Nolle Prosequi. (New).

7') 2. The Attorney-General may, at any time after an indictment has
been found against any person for any offence, and before judgment is given
thereon, direct the officer of the court to make on the record an entry that the
proceedings are stayed by his direction, and on such entry 'being made all such
proceedings shall be stayed accordingly.

2. The Attorney -General may delegate such power in any particular court
to any counsel nominated by him.

The words " Attorney-General " include the Solicitor-
General, s. 3.

On an indictment for a public nuisance or any offence of
a public nature, or in which the public have an interest, the
Attorney-General can proceed with the case if the private
prosecutor refuses or neglects to do so : R. v. Wood, 3 B. &
Ad. 657.

The Attorney-General may in his discretion, and should
as a general rule, not give such a direction at the request
of the defendant without hearing the private prosecutor, if
any there is: R. v. Allen, 1 B. & S. 850 ; 1 Chit. 479; see R.
V. Rowlands, 2 Den. 364.

Ht'"'>

:-':f ■

852

PROCEDURE.

[Sec. rs.')

A 'JioWe prosequi does not operate as an acquittal, and a
fresh indictment may be preferred ; but it puts an end to
the indictment upon which it is fyled: R. v. Mitchell, 3 Cox,
93, and cases there cited. There is no plea of lis pendens
or autrefois arraigned allowed in criminal cases, and that
an indictment for the same offence is pending is no bar.
The court will see that the defendant is not punished twice
or unjustly harassed : see R. v. Sirois, 27 N. B. Rep. 610.

Motion in Arrest op Judgment.

733. If the jury find the accused guilty, or if the accused pleads guilty,
the judge presiding at the trial shall ask him whether he has anything to say
why sentence should not be passed upon him according to law ; but the
omission so to ask shall have no effect on the validity of the proceedings.

2. The accused may at any time before sentence move in arrest of judg-
ment on the ground that the indictment does not (after any amendment which
the court is willing to and has power to make) state any indictable ofTence.

3. The court may in its discretion either hear and determine the matter
during the same sittings or reserve the matter for the Court of Appeal as
herein provided. If the court decides in favour .of the accused, he shall be
discharged from that indictment. If no such motion is made, or if the court
decides against the accused upon such motion, the court may sentence the
accused during the sittings of the court, or the court may in its discretion
discharge him on his own recognizance, or on that of such sureties as the court
thinks fit, or both, to appear and receive judgment at some future court or
when called upon. If sentence is not passed during the sitting, the judge of
iiny superior court before which the jierson so convicted afterwards appears cir
is brought, or if he waa convicted before a court of general or quarter sessions,
the court of general or quarter sessions at a subsequent sitting may pass
sentence upon him or direct him to be discharged.

4. When any sentence is passed upon any person after a trial had under
an order for changing the place of trial the court may, in its discretion, either
direct the sentence to be carried out at the place where the trial was had or
ordet the person sentenced to be removed to the place where his trial would
have been had but for such order, so that the sentence may be there carried
out.

Sections 743, et seq., provide for reserving a case for the
Court of Appeal. The court has no power to make any
amendment on a motion in arrest of judgment. S-s. 4
relates to a change of venue under s. 651.

The defendant, after conviction, may move at any time
in arrest of judgment before the sentence is actually pro-
nounced upon him. This motion can be grounded only on

Sec. 733]

MOTION IN ARREST OF JUDGMENT.

853

some objection arising on the face of the record itself, and
no defect in the evidence, or irregularity at the trial, can be
urged at this stage of the proceedings But uny want of
sufficient certainty in the indictment, as in the statement of
time or place (where material), or of the facts and circum-
stances constituting the offence, by omitting to state or
not stating definitely anything requisite to constitute the
offence, or by omitting to negative any exception which
ought to have been negatived or otherwise, will be a ground
tor arresting the judgment, if not amended before verdict
or cured by the verdict.

The court will, ex propria Tnotu, arrest the judgment)
even if the defendant omits to move for it, when it is
satisfied that the defendant has not been found guilty of
any offence in law. If a substantial ingredient of the
offence does not appear on the face of the indictment the
court will arrest the judgment : R. v. Carr, 26 L. C. J.
61. Judgment will also be arrested if the court does not
appear by the indictment to have had jurisdiction over the
offence charged : 8th Crim. L. Com. Report, 162 ; R. v.
Fraser, 1 Moo. 407 ; R. v. Lynch, 20 L. C. J. 187.

A party convicted of felony must be present in court, in
order to move in arrest of judgment ; so a party convicted
of a misdemeanour unless his presence be dispensed with
at the discretion of the court : 1 Chit. 663 ; Cr. L. Com.
Rep. loc. cit.

If the judgment be arrested the indictment and all the
proceedings thereupon are set aside and judgment of
acquittal is given by the court, but such acquittal is no
liar to a fresh indictment : Archbold, 170 ; 8th Cr. L. Com.
Rep. 163 ; 3 Bum, 58.

Section 245, c. 174, R. S. C. as to forma? defects cured by
verdict has not been re-enacted.

When the verdict is quashed for informalities, or any
other grounds than the real merits of the case, the entry on
the record should state it in these words, "and because it

A iK

854

PROCEDURE.

[Sec. 734

appears that the said indictment is not sufficient (or as the
case may be), therefore it is considered and adjudged that
the defendant go thereof without delay," so as to prevent a
plea of " autrefois acquit " : 1 Chit. 719.
See cases under next section.

JUDGMBNT NOT TO BE ARRESTED FOR FoRMAL DEFECTS.

734. .Judgment, after verdict upon an indictment for any oflFence wjainst
this Act, shall not be stayed or reversed for want of a similiter, nor by rpason
that the jury process has been awarded to a wrong officer, upon an insufficient
suggestion — nor for any misnomer or misdescription of the officer returnin"
such process, or of any of the jurors, — nor because any person has served ujx)!)
the jury who was not returned as a juror by the sheriff or other officer-
and where the offence charged is an offence creator! bv any statute, or subjected
to a greater degree of punishment by any statute, the indictment shall, afti^r
verdict, be held sufficient, if it describes the offence in the words of tlie
statute creating the offence, or prescribing the punishment, although they are
disjunctively stated or appear to include more than one offence, or otherwise.
R. S. C. c. 174, s. 240. 7 Geo. IV. c. 04, s. 21 (Imp.).

The repealed section applied to any indictable offence.
This one applies only to offences under the code.

See Heymann v. R., 12 Cox, 383, and R. v. Knight, 14
Cox, 31 as to aider by verdict and what defects are cureij
by verdict ; also Nash v. R., 9 Cox, 424.

Verdict will only cure defective statements. An alNo-
lute and total omission in the indictment is not cured bv
verdict : R. v. Bradlaugh, 14 Cox, (38. See R. v. Montiiiiiiv,
ante, p. 677.

No amendment allowed after verdict : R. v. Oliver, 13
Cox, 588.

In an indictment for perjury, alleged to have been com-
mitted in a certain cause, " wherein one Adrieu Girardiii,
of the Township of Kingsey, in the district of Arthabaska,
trader, and Thomas Ling, of the same place, farmer, ic/s
defendant." The omission of the words wai^ pldintif k
the description of the plaintiff held fatal, and conviction
• luashed: R. v. Ling. 5 Q. L. R. 350, 2 L. N. 410.

In an indictment for obstructing an officer of e.Kcise
under 27 & 28 V. c. 3 : held, that the omission in the indict-
ment of the averment that at the time of the obstruction

7 Is

[Sec. 734

lufficient {or as the

and adjudged that

so as to prevent a

tMAL DEKKCTS.

mt for any offencf ai)ahi4
a similiter, nor by reason
[ficer, upon an insufficient
n of the officer returning
ny person has served uiwn
3 sheriff or other officer ;
V any statute, or subjected
the indictment shall, aft^r
ence in the words of the
shment, although they are
1 one offence, or otlierwisK
J.).

ly indictable offence.
r the code.
,nd R. V. KmgU, U
at defects are cureil

atements. An abso-
iient is not cured by
See R. V. :Montininy,

iict: R. V. Oliver, 13

led to have been com-
mo Adrien Girardin,
I strict of Arthabaska,
[le place, farmer, vyi<
^rds wax pl(dntif\^
fatal and conviction
L. X. 410.
an officer of excise
Lnission in the indict-
[ne of the obstruction

Sec. 734]

DEFECTS CURED BY VERDICT.

855

iihe officer was acting in the discharge of his duty under the
authority of the said statute was not a defect of substance,
but a formal error, which was cured by the verdict : Spel-
ean V. R., 13 L. C. J. 154.

The defendant was indicted in the District of Beauhar-
nois for perjury committed in the District of Montreal, but
there was no averment in the indictment that he had been
apprehended or that he was in custody in the District of
Beauharnois at the time of finding the indictment : Held
bad, even after verdict: R. v. Lynch, 20 L. C. J. 187, 7 R. L.
553.

A defect such as the omission of the word " company "
in an indictment for embezzling money from the Grand
Trunk Railway Company of Canada is cured by verdict :
R. v. Foreman, 1 L. C. L. J. 70.

Defect in an indictment cured by verdict : R. v. Stans-
felcl, 8 L. N. 123; also in R. v. Stroulger, 16 Cox, 85.

An indictment too vague and too general in its language
is not cured by verdict : White v. R., 13 Cox, 318.

Under this clause, the tirst defect cured by verdict is the
want of a similiter. The similiter is the joinder in issue,,
contained in the record {see ante, under s. 726 for form of
a record) in these words : "And , who prosecutes for

our said Lady the Queen in this behalf, doth the like."

The second defect cured by verdict under this clause is
the wrongful award of the jury process upon an insufficient
sufwestion. The jury process is usually directed to the
isiieritl', but if one of the parties represents that the sherifl' is
interestetl, or of kin to one of the parties, or in any way
di.s(|ualitie'l to act in the case, an entry of this suggestion is
made on the back of the indictment hrst, and then on the
record, when it is made up formally; and then the jury
process is awarded to the coroner, if not dis(iualified, and if
disqualified then to two elisoi-s named by the court and
sworn, in which last case the return is tinal, and no challenge
to the array is allowed : Jervis, Coroners, 54; 1 Chit. 514;

856

PROCEDURE.

[Sec. 734

Wharton, Law Lexicon, Verbo "elisors;" Archbold, 154.
By the above clause these formalities cannot be questioned
or investigated after verdict, and no misnomer or misde-
scription of the officer returning the proc'ess or of any of the
jurors can invalidate the verdict: see now s. 666, and
remarks thereunder ; see s. 735, post.

This clause says thirdly that no motion in arrest of
judgment or writ of error will avail on the ground that
any person has served upon the jury who was not returned
as a juror by the sheriff or other officer : see Dovey v.
Hobson, 2 Marsh. 154; R. v. Brisebois, 15 S. C. R. 427.

The fourth and most important part of this section con-
sists in the words : " And where the offence charged is an
offence created by any statute, or subjected to a greater
degree of punishment by any statute, the indictment shall,
after verdict, be held sufficient, if it describes the offence in
the words of the statute creating the offence, or prescribino
the punishment, although they be disjunctively^ stated or
appear to include more than one offence, or otherwise "; see
ss. 611 to 626.

What is the meaning of these two last words " or other-
wise," is not clear. "Although they be disjunctively stated"
means "although the words be disjunctively stated " "as
unlawfully or maliciously " instead of " unlawfully and
maliciously."

The words " or appear to include more than one offence"
are not new law: see R, v. Ferguson, Dears. 427; R. v.
Hey wood, L. & C. 451; and remarks under s. 626, dnte.

The words "subjected to a greater degree of punish-
ment " mean greater than it was at common law.

The following decisions on the interpretation of the part
of this clause rendering valid, after verdict, indictments
describing the offence in the words of the statute creating
it, or subjecting it to a greater degree of punishment, may
be usefully inserted here.

Sec. 734]

DEFECTS CURED BY VERDICT.

857

In R. V. Larkin, Dears. 365, it was held that if an indict-
ment charging a felonious receiving of stolen goods does
not aver that the prisoner knew the goods to have been so
stolen, it is defective, and the defect is not cured by verdict.

An indictment under 14 & 15 V. c. 100, s. 49, for pro-
curing the defilement of a girl by false pretenses, false
representations or other fraudulent means, did not set
out or allege what were the false pretenses, false repre-
sentations or other fraudulent means. The defendant,
having been found guilty, brought a writ of error on this
ground, and the conviction was quashed : Howard v. R.,
10 Cox, 54. See now, s. 616, ante.

In R. V. Warshaner, 1 Moo. 466, an indictment for hav-
ing unlawfully in possession jive florins, was held sufficient
at^3r verdict, though not showing what florins were and
their value, it being a foreign coin, as the indictment de-
scribed the offence in the words of the statute creating it.

After verdict defective averments in the second count
of an indictment are cured by reference to sufficient aver-
ments in the first count : R. v. Waverton, 2 Den. 340.

Formerly, if in an indictment for obtaining property by
false pretenses it did not appear who was the owner of the
property so alleged to have been unlawfully obtained, the
detect was not cured by verdict, and notwithstanding the
above clause in such a case a conviction, upon a writ of error,
would have been quashed ; R. v. Bullock, Dears. 653 ; Sill.
V. R., Dears. 132 ; R. v. Martin, 8 A. &. E. 481.

In R. V. Bowen, 13 Q. B. 790, the indictment was for
obtaining by false pretenses, and did not contain the word
" knowingly *' with " unlawfully " but the court held the
conviction good after verdict, as the indictment was in the
words of the statute : see Hamilton v. R., 9 Q. B. 271 and
R. V. Martin, 8 A. & E. 481.

But an indictment for felony must always allege that
the act which forms the subject matter of the indictment

»'',i

858

PROCEDURE.

[Sec. 734

was done feloniously ; if an indictment for felony does not
contain the word " feloniously " it is bad, though in the
words of the statute creating the offence, and is not cured
by verdict : R. v. Gray, L. & C. 365.

If an indictment under s. 83 of the Larceny Act, c. 164,
R. S C, alleges the goods to have been " unlawfully
obtained, taken, and carried away, and that the receiver
knew them to have been unlawfully obtained " instead of
" unlawfully obtained by false pretenses " the indictment
is bad and not cured by verdict : see R. v. Wilson, 2 Moo. 52.

An indictment under the same section charged that de-
fendant " unlawfully did receive goods which had been
unlawfully, and knowingly, and fraudulently obtained by
false pretenses with intent to defraud, as in this count
before mentioned," but omitting to set out what the par-
ticular false pretenses were : held, that the objection, if at
any time valid, was cured by the verdict of guilty : R. v.
Goldsmith, 12 Cox, 479.

In R. V. Carr, 26 L. C. J. 61, the court quashed the
indictment on the ground of the omission therein of the
words " feloniously, wilfully, and of his malice afore-
thought," though the form given in the schedule of the
Procedure Act then in force for the offence created by the
clause under which the prisoner was indicted had not these
words. ,

There is a difference between an ind' tnient which is bad
for charging an act which as laid is no crime, and an
indictment which is bad for charging a crime defectively.
The latter may be aided by verdict, the former cannot : R.
V. Waters, 1 Den. 356 ; see ante, remarks under s. 629.

When an indictment is (juashed or judgment upon it
arrested for insufficiency or illegality thereof, the court will
order that a new indictment be preferred against the
prisoner, and may detain the prisoner in custody therefor;
1 Bishop, Cr. Proc. 739 ; 2 Hale, 237 ; 2 Hawk. 514 ; R v.
Turner, 1 ]\Ioo. 239 ; see Greaves' note in 3 Russ. 321.

[Sec. 734

■ felony does not
[, though in the
and is not cured

L'ceny Act, c. 164-,
jen "unlawfully
that the receiver
ained " instead of
" the indictment
rilson, 2 Moo. 52.
1 charged that de-

which had been
iently obtained by

as in this count
out what the par-
he objection, if at
ct of guilty : R. v.

court quashed the
sion therein of the

his malice afore-
le schedule of the
snce created by the

licted had not these

Itment which is bad
no crime, and an
crime defectively.
former cannot: R.

Is under s. 629.
judgment upon it

lem)f\ the court will

Iferred against the
„ custody therefor;

I2 Hawk. 514 ; K v.

In 3 Russ. 321.

.Sec. 734]

DEFECTS CURED BY VERDICT.

859

In R. V. Vandercomb, 2 Leach, 708, the jury, by the
direction of the court, acquitted the prisoners, as the charge
as laid against them had not been proved; but as it resulted
from the evidence adduced that another offence ha<l been
committed by the prisoners, and as the grand jury were not
discharged, the prisoners w^ere detained in custody in order
to have another indictment preferred ay^ainst them.

In R. V. Senjple, 1 Leach, 420, the court quashed the
jndictment, upon motion of the prisoner, upon the ground
of informality, but ordered the prisoner to be detained till
the next session : see also 1 Chit. 304.

So, upon a demurrer, if the defendant succeeds he only
obtains a little delay, for the judgment is that the indict-
ment be quashed, and the defendant will be detained in
custody until another accusation has been preferred against
him, except, of course, where the demurrer has established
that the defendant has not committed any legal offence
whatsoever, in which case he will be altogether discharged
from custody: 1 Chit. 442.

In R. V. Gilchrist, 2 Leach, 657, the prisoner was found
{(uilty of forgery, but, upon motion in arrest of judgment,
the court held that the indictment, being repugnant and
defective, the prisoner should be discharged from it, but
that as the objection went only to the form of the indict-
ment, and not to the merits of the case, the prisoner should
be remanded to prison until the end of the session to afford
the prosecutor an opportunity, if he thought fit, of preferring
another and better indictment against him : .see also R. v.
Pelfryman, 2 Leach, 563.

In Archbold, page 166, it is said : Upon the delivery
of the verdict, if the defendant be thereby acquitted on the
merits, he is forever free and discharged from that accusa-
tion, and is entitled to be immediately set at liberty, unless
there be some other legal ground for his detention. If he
be ac(iuitted from some defect in the proceedings, so that
the acquittal could not beplearled in bar of another indict-

'■I

■; r

*1-

iiil

860

PROCEDURE.

[Sees. 735, 73(5

ment for the same offence, he may be detained to be indicted
afresh. So in 1 Chit. 649, and R. v. Knevvland, 2 Leach.
721.

An indictment having been held bad on demurrer it was
quashed so that another indictment might be preferred, not
that defendants be discharged: R. v. Tierney, 29 U. C. Q. B.
181.

In R. V. Bulmer, Montreal, Nov., 1881, though the
indictment had been quashed on demurrer, the court refused
to liberate the prisoner, and ordered his detention till the
following term.

In R. V. Woodhall, 12 Cox, 240, the verdict was held to
be illegal, but the prisoners were bound over to appear at n
future session.

Certain Omissions as to Jurors not Fatal.

78S> No omission to observe the directions contained in any Act as
respects the qualification, selection, balloting or distribution of jurors, the
preparation of the jurors' book, the selectinj? of jury lists, the drafting jjanels
from the jury lists or the striking of special juries, shall be a ground for
impeaching any verdict, or shall be allowed for error upon appeal to be
brought upon any judgment rendered in any criminal case. R. S. C. c. 174,
s. 247. (Amended in 1893.)

This is a statute of Upper Canada extended to all the
Dominion. This clause does not take away the right of
challenging the array.

A conviction, not by a special jur}', in cases where the
statute enacts that an offence shall be tried by special jury,
is a nullity : R. v. Kerr, 26 U. C. C. P. 214.

Insanity.

TSO. Whenever it is given in evidence upon the trial of any i)erson
charged with any indictable offence that such person was insane at the time
of the commission of such offence, and such ijerson is acquitted, the jury shall
be required to find, specially, whether such person was insane at the time of
the commission of such offence, and to declare whether he is acquitted by it on
account of such insanity ; and if it finds that such person was insane at the
time of committing such offence the court before which such trial is had shall
order such person to be kept in strict custody in such place and in such inannei
as to the court seems fit, until the pleasure of the Lieutenant-Governor is
known. R. S. C;. c. 174, s. 252.

[Sees. 735, 7%

d to be iTirlidcd
viand, 2 Leach,

iemurrer it was
be preferred, not
y, 29 U. C. Q. B.

;81, though the
the court refused
etention till the

srdict was held to
\;er to appear at u

T Fatal.

ontained in any Act a^
tribution of jurors, the
lists, the draftnig panels
i, shall be a ground for
•ror upon appeal to bi-
ll case. R.S.C.C.174,

:tended to all the
laway the right of

In cases where the
led by special jury,
L4.

the trial of any lierson
L was insane at the tune
I acquitted, the jury 8hal
Las insane at the time of
L he is acquitted by It on
lerson was insane at the
Lh such trial is had shall
[place and in such manner
■ Lieutenant-Governor.^

Sees. 737-741]

INSANITY.

861

TST*. If at any time after the indictment is found, and hafore the verdict
H given, it appears to the court that there is sufflcient reason to doubt whether
the accused if then, on account of insanity, capable of conducting his defence,
the court may direct that an issue shall be tried whether the accused is or is
not then on account of insanity unfit to take his trial.

2. If such issue is directed before the accused is given in charge to a jury
for trial on the indictment such issue shall be tried by any twelve jurors. If
auch issue is directed after the accused has been given in charge to a jury for
trial on the indictment such jury shall be sworn to try this issue in addition to
that on which they are already sworn.

3. If the verdict on this issue is that the accused is not then unfit to take
his trial the arraignment or the trial shall proceed as if no such issue had been
directed. If the verdict is that he is unfit on account of insanity the court
shall order the accused to be kept in custody till the pleasure of the Lieutenant-
Governor of the ijrovince shall be known, and any plea pleaded shall be set
aside and the jury shall be discharged.

4. No such proceeding shall prevent the accused being afterwards tried on
auch indictment. R. S. C, c. 174, s. 252.

73§. If any person before the passing of this Act, whether before or
after the first day of July, one thousand eight hundred and sixty-seven, was
acquitted of any such offence on the ground of insanity at the time of the
commission thereof, and has been detained in custody as a dangerous person
by order of the court before which such person was tried, and still remains in
custody, the Lieutenant-Governor may make a like order for the safe custody
of such person during pleasure. R. S. C. c. 174, s. 254.

739* If any person charged with an offence is brought before any court
to be discharged for want of prosecution, and such person appears to be insane,
the court shall order a jury to be empanelled to try the sanity of such person,
and if the jury so empanelled finds him insane the court shall order such
person to be kept in strict custody, in such place and in such manner as to the
court seems fit, until the pleasure of the Lieutenant-Governor is known.
R. S. C. c. 174, 8. 256.

740. In all cases of insanity so found the Lieutenant-Governor may
make an order for the safe custody of the jjerson so found to be insane, in such
place and in such manner as to him seems tit. R. S. C. c. 174, ss. 253 & 257.

741> The Lieutenant-Governor, upon such evidence of the insanity of
any person imprisoned in any prison other than a penitentiary for an offence,
or imprisoned for safe custody charged with an offence, or imprisoned for not
finding bail for good behaviour or to keep the peace, as the Lieutenant-Governor
considers sufficient, may order the removal of such insane person to a place of
safe-keeping ; and such person shall remain there, or in such other place of
safe-keeping, as the Lieutenant-Governor from time to time orders, until his
complete or partial recovery is certified to the satisfaction of the Lieutenant-
Governor, who may then order such insane person back to imprisonment, if
then liable thereto, or otherwise to be dischareed. R, S. C. c. 174, s. 268.

,«».*

862

PROCEDURE.

[Sec. T41

It is said in 1 Russ. 29 : see E. v. Kear^*, 14 Cox, 148 .
" If a man in his sound memory commits a capital ufffnce,
and before arraignment for it he becomes mad, he ou^bt
not to be arraigned for it because he is not able to plead
to it with that advice and caution that he ought. And
if, after he has pleaded, the prisoner become mad he shall
not be tried, as he cannot make his defence. If, after he
is tried and found guilty, he loses his senses before judg-
ment, judgment shall not be pronounced, and if after
judgment he becomes of non-sane memory execution shall
be stayed ; for, peradventure, says the humanity of the
English law, had the prisoner been of sound memory he
might have alleged something in stay of judgment or exe-
cution. And, by the common law, if it be doubtful
whether a criminal who at his trial is, in appearance, a
lunatic, be such in truth or not, the fact shall be investi-
gated. And it appears that it may be tried by the jury
who are charged to try the indictment, or by an inquest of
office to be returned by the sheriff of the county wherein
the court sits, or, being a collateral issue, the fact may be
pleaded and replied to ore tenus, and a venire awarded
returnable instantcr, in the nature of an inquest of office.
See, now, s-s. 2 of s. 737. And if it be found that the
party only feigns himself mad, and he refuses to answerer
plead, he would formerly have been dealt with as one who
stood mute, but now a plea of not guilty may be entered."

The above sections on the procedure in the case of
insane prisoners are taken from the 39 & 40 Geo. III. c.
94, and the 3 & 4 V. c. 54.

Where, on a prisoner being brought up to plead, hi?
counsel states that he is insane, and a jury is sworn to try
whether he is so or not, the proper course is for the pri-
soner's counsel to begin the evidence on this issue, and
prove the insanity, as the sanity is always presumed: R. v.
Turton, 6 Cox, 385.

It has been seen, ante, under s. 668, that no peremp-
tory challenges are allowed on collateral issues.

[S»-c. 741

,ry, 14 Cox, 148

a capital uffpnce,
8 mad, he ouylit
Qot able to plead
he ougbt. And
)ine mad be shall
,nce. H. after he
jnses before judg-
ced, and if after
)vy execution shall
humanity of the
sound memory he
f judgment or ese-
if it be doubtful
s, in appearance, a
,ct Bhall be investi-
,e tried by the jury
or by an inquest ol
the county wherein
;ue, the fact may be
, a venire awarded
an inquest of olfice.
be found that the
refuses to answer or
lealt with as one who
ly may be entered."
,.ure in the case of
I39 & 40 Geo. in. c.

[ht up to plead, bi^
jury is sworu to try
[ouree is for the pri-
on this issue, and
[ays presumed: R.v.

leS. that no peremp"
i«al issues.

Sec. 741]

INSANITY.

863

The jury may judge of the sanity or insanity of the
prisoner from his demeanour in their presence without any
evidence : R. v. Goode, 7 A. & E. 636.

The jury »re sworn as follows : — "You shall diligently
inquire and true presentment make for and on behalf of
our Sovereign Lady the Queen, whether A. B., the prisoner,
be insane or not, and a true verdict give according to the
best of your understanding ; so help yoa God."

If a prisoner has not, at the time of his trial, from the
defect of his faculties sufficient intelligence to understand
the nature of the proceedings against him, the jury ought
to find that he is not sane, and upon such finding he may
be ordered to be kept in custody : R. v. Dyson, 7 C. & P.
305.

A grand jury have no right to ignore a bill against any
person on account of his insanity, either when the offence
was committed or at the time of preferring the bill, how-
ever clearly shown : R. v. Hodges, 8 C. & P. 195 ; 1 Russ.
32 ; Dickinson's Quarter Sessions, 476.

If at any stage of the trial it is thought that the pri-
soner has not sufficient intelligence to understand the nature
of the proceedings the jury should pass upon it under the
above s. 737 : R. v. Berry, 13 Cox, 189.

.»*>

! i,

■ (
'1'

5 * ' .

864

PROCEDURE.

[Sees. 742-743

PART LII.

APPEAL.

748. An appeal from the verdict or judgment of any court or judge
havinfir jurisdiction in criminal cases, or of a magistrate proceeding under
section seven hundred and eighty-five, on the trial of any person for an
indictable offence, shall lie upon the application of such person, if convicted, to
the Court of Appeal in the cases hereinafter provided for, and in no others.

2. Whenever the judges of the Court of Appeal are unanimous in deciding
an appeal brought before the said court their decision shall be final. If any of
the judges dissent from the opinion of the majority an appeal shall lie from
such decision to the Supreme Court of Canada as hereinafter provided.

Writ op Error Abolished— Cases Reserved.

743. ^"o proceeding in eiTor shall be taken in any criminal case begun qfter
the commencement of this Act :

2. The court before which any accused person is tried may, either during
or after the trial, reserve any question of law arising either on the trial or on
any of the proceedings preliminary, siibsequent, or incidental thereto, or arising
out of the direction of the judge, for the opinion of the Court of Appeal in
manner hereinafter provided.

3. Either tlie jirosecutor or the accused may during the trial either orally or
in writing apply to the court to reserve any such question as aforesaid, and the
court, if it refuses so to reserve it, shall nevertheless take a note of such objection.

4. After a question is reserved the trial shall proceed as in other cases.

5. If the result is a conviction the court may in its discretion respite the
execution of the sentence or postpone sentence till the question reserved has
been decided, and shall in its discretion commit the person convicted to prison
or admit him to bail with one or two sufficient sureties, in such sums as the
court thinks fit, to surrender at such time as the court directs.

6. If the question is reserved, a case shall be stated for the opinion of the
Court of Appeal.

Section 269 c. 174, R. S. C, is the repealed clause on
cases reserved.

Even in cases of misdemeanours, and where the prisoner
was on bail before his trial, the court is not bound to admit
the prisoner to bail during the pendency of a reserveil
case : R. v. Bird, 5 Cox, 11 ; see as to intermediate effects
of an appeal, s. 749, post.

[Sees. 742-743

Sees. 744-746]

APPEAL-CASE RESERVED.

865

Appeal When a Reserved Case Refused. {Xe7o).

,nt of any court or ]udge
ristrate proceeding under
ial of any person for an
uch person, if convicted, to
3d for, and in no others,
i are unanimous in deciding

3„ shall be final. I any of
ity an appeal shall lie from

hereinafter provided.

13 Reserved.
anycrininalcasebeyuno^fur

,„i9 tried may, either during
£ng either on the trial or on
^incidental thereto, or mm
,nof the Court of Appeal in

luring the trial either oraUy or
tuestion as aforesaid, amn/a
^\keanote of such objection.

proceed as in other ca^ses.
Lin its discretion respite tk
ftiU the question reserved hai
£eUo« convicted to pn«

fsurSes.insuchBUinsasthe

.court directs,
stated for the opinion of the

[he repealed clause on

and ^here the prisoner
liBnotboundtoadm

Ldency of a reserv^
1 to intermediate effecH

744* If the court refuses to reserve the question the party applying*
may, with the leave in writing of the Attorney-General, move the Court of
Appeal as hereinafter provided. The Attorney-General may in his discretion
give or refuse such leave.

2. The Attorney-General, or any person to whom such leave as aforesaid
is given, may on notice of motion to be given to the accused or prosecutor, as
the case may be, move the Court of Appeal for leave to appeal. The Court of
Appeal may upon the motion, and upon considering such evidence (if any) as
they think fit to require, grant or refuse such leave.

,3. If leave to appeal is granted a case shall be stated for the opinion of
the Court of Appeal as if the question had been reserved.

4. If the sentence is alleged to be one which could not by law be passed,
either party may without leave, upon giving notice of motion to the other side,
move the Court of Appeal to pass a proper sentence.

5. If the court has arrested judgment, and refused to pass any sentence,
the prosecutor may without leave make such a motion.

Evidence foe Court op Appeal.

745. On any apjieal or application for a new trial the court before which
the trial was had shall, if it thinks necessary, or if the Court of Appeal so-
desires, send to the Court of Appeal a copy of the whole or of such part as may
be material of the evidence or the notes taken by the judge or presiding justice
at the trial. The Court of Appeal may, if only the jxidge's notes arc sent and it
considers such notes defective, refer to such other evidence of what took place at
the tried as it may think fit. The Court of Appeal may in its discretion send
back any case to the court by which it was stated to be amended or re-stated.
R. S. C. c. 174, 8, 264.

Powers op Court op Appeal.

746. Upon the hearing of any appeal under the powers hereinbefore,
contained, the Court of Appeal may—

(a) confirm the ruling appealed from ; or

[h) if of opinion that the ruling was erroneous, and that there has been a"
mis-trial in consequence, direct a neio trial ; or

(c) if it considers the sentence erroneous, or the arrest of Judgment erroneous
ims such a sentence as ought to have been passed or set aside any sentence passed
by the court heloio, and remit tlie case to the couH below loith a direction to pass
the jjroper sentence ; or

(d) if of opinion in a case in which the accused has been convicted that
the ruling was erroneous, and that the accused ought to have been acquitted,
direct that the accused shall be discharged, which order shall have all the
effects of au acquittal ; or

((') direct a new trial ; or

(/) make such other order as justice requires : Provided tlmt no conviction
shall he set aside nor any new trial directed, although it appears that some evidence
ims improperly admitted or rejected, or that something not according to laio was
Grim. Law— 55

866

PROCEDURE.

[Sec. 746

done at the trial or some misdirection given, unless in the opinion of the Court of
ApiKol some substantial wronrf or miscarriage was thereby occasioned on the trial ;
Provided that if the Court of Appeal is of opinion that any cliallcnge for the
defence was improperly disallowed a new trial shall be granted.

2. If it ajypears to the Court of Ap2ieal that such wi-ong or miscarriage affected
some count only of the indictment the court may give separate directions as to each
count and may piass sentence on any coimt unaffected by such tvrong onniscarriage
ivhich stands good, or may remit t/ie case to the court helmv with directions to pass
such sentence as justice may require.

3. The order or direction of the Court of Appeal shall be certified under
the hand of the presiding chief justice or senior puisne judge to the proixr
officer of the court before which the case was tried, and suoh order or direction
shall be carried into effect. R. S. C. c. 174, s. 263.

The words "Court of Appeal" and "Attorney-General,"
defined, s. 3.

Writs of error are abolished in all the cases begun after
the commencement of this Act.

Only the grounds upon which the Court of Appeal are
not unanimous are open to the appellant in a criminal
case before the Supreme Court : per Eitchie, C. J., R. v.
Cunningham, Cass. Dig. 107.

A case should not be reserved on frivolous grounds:
R. V. Ferguson, Dears. 427 ; E. v. Tew, Dears. 429.

The passages of the above sections 742, et seq., which
are in italics, are those where it is thought that the law is
either altered, extended, or settled on doubtful points.

As heretofore, no question of practice, or on points left
to the discretion of the judge, and only questions of law,
can be reserved by the judge at the trial, or brought before
the Court of Appeal. The only exception to this rule is
contained in s-s. 5 of s. 723.

Section 783, post, which allows a judge to reserve his
final decision on questions raised at the trial of offences
under the code, applies now to all the Dominion. It
previously applied only to Ontario, but to all trials what-
ever. It seems to apply to all questions raised at the
trial, not only to questions of law.

Question whether there is sufficient evidence to support
charge cannot be reserved, being a question for the jury;

[Sec. 746

the opinion of the Court of
»6y occasioned on the trial :

that any cliallcnge for the

granted.

fong or miscarriage affected
'parate directions as to each
,y such wrong or viiscarriage
'lelmv with directions toims

eal shall be certified under
.uiane judge to the proiier
and such order or direction

•Attorney-General,"

the cases begun after

I Court of Appeal are

)ellant in a crimioal

Bitcbie, C.J., R. v.

n frivolous grounds:

sw, Dears. 429.

8 742, et seq., which

[ought that the law is

doubtful points.

jtice, or on pointa left

inly questions of lavr,

•ial, or brought before

iption to this rule is

judge to reserve his
the trial of offences
the Dominion. It
[ut to all trials what-
Vtions raised at the

it evidence to support
luestion for the jury;

Sec. 746]

APPEAL-CASE RESERVED.

867

whether there is any evidence is a question of law for the
judge : R. v. Lloyd, 19 0. R. 352.

The Imperial corresponding statute is 11 & 12 V. c. 78.
The statute gives no jurisdiction to the court of crown
cases reserved to hear a case reserved on a judgment on a
demurrer. There must have been a trial and a conviction
to give jurisdiction to this court : E. v. Faderman, 1 Den.
565 ; R. V. Paxton, 2 L. C. L. J. 162.

If a prisoner pleads guilty to the charge alleged in the
indictment no question of law can be reserved, as none can
be said to have arisen on the trial : R. v. Clark, 10 Cox,
338. But that case is overruled by R. v. Brown, 16 Cox,
715, 24 Q. B. D. 357.

In R. V. Daoust, 9 L. C. J. 85, the defendant having
been found guilty of felony, a motion for a new trial had
been granted by Mr. Justice Mondelet At the next term
of the court the prosecutor moved to fix a day for this new
trial before Mr. Justice Aylwin, who then reserved for the
court of crown cases reserved the question whether a second
trial could be had in a case of felony. The Court held
that the question was properly reserved, and that the
statute gave them jurisdiction to decide it : 10 L. C. J.
221. It may be doubted whether they had jurisdiction
before the second trial and conviction, if a second con-
viction there had been.

A question raised in the court below by a motion in
arrest of judgment is a question arising on the trial, and
properly reserved : R. v. Martin, 1 Den. 398, 3 Cox, 447 ;
R. v. Carr, 26 L. C. J. 61 ; R. v. Deery, 26 L. C J. 129 ;
R. v. Corcoran, 26 U. C. C. P. 134.

The statute gives jurisdiction to the court of crown
cases reserved to take cognizance of defects apparent on
the face of the record when questions upon them have
been reserved at the trial : R. v. Webb, 1 Den. 338.

What a jury may say in recommending a prisoner
to mercy is not a matter upon which a case should be

.v»<

868

PROCEDURE.

[Sec. 746

reserved. When the jury say guilty there is an end to
the matter ; that is the verdict, and a recommendation to
mercy is no part of the verdict : E. v. Trebilcock, Dears. &
B. 453.

The insufficiency of an indictment upon a motion to
quash is not a question that can be reserved : E. v. Gibson,
16 0. R. 704.

On a trial for murder the name of A. a juror on the
panel was called ; B. another juror on the same panel
appeared by mistake, answered to the name of A. and was
sworn as a juror. The prisoner was convicted and sen-
tenced to death. The next day this irregularity in the
jury was discovered, when the judge, being informed of it,
reserved the question as to the effect of the mistake on the
trial : held, by eight judges, against six that the conviction
must stand : R. v. Mellor, Dears. & B. 468. The judges
were divided on the question whether the court of crown
cases reserved had jurisdiction over the case.

The court expects cases reserved to be submitted in a
complete form, and will ordinarily refuse to send back a
case for amendment ; R. v. HoUoway, 1 Den. 370.

A case may be reserved after the trial, and even after
the sessions of the court are over : ss. 743 and 753 ; R. v.
Brown, 16 Cox, 715, 24 Q.B.D. 357 ; R. v. Smith, 38 U. C.
Q. B. 218; R. v. Mellor, Dears. & B. 468; R. v. Whit-
church, 16 Cox, 743. If the judge who presided at the trial
is unable to send up the case reserved any judge of the
same court may do it : R. v. Featherstone, Dears. 369.

When the case reserved is upon the evidence the whole
of the evidence should not be made part of the case, but
merely the material facts established by the eviderce : E.
v. Gibson, 16 0. R. 704.

New trial granted upon a case reserved : R. v. Brice,
15Q. L. R. 147.

Sec. 746]

APPEAL-CASE RESERVED.

869

trial, and even after
. 743 and 753 ; R. v.
I. V. Smith, 38 U. C.
. 468; R. V. Whit-
presided at the trial
■ed any judge of the
,one, Dears. 369.

jserved : R. v. Brice,

The defendant must be present when a motion is made
by his counsel to reserve a case : E. v. Murphy, 17 Q. L.
E. 306.

If a counsel shouid think that any material point raised
at the trial has been omitted in the case it would be pro-
per for him to communicate with the judge who reserved
the case, and suggest any amendment that in his judgment
may be necessary : E. v. Smith, Temple & Mews' Grim.
App. Cases, 214. Where a case reserved does not, in the
opinion of the counsel, fairly raise all the points that were
in issue, the proper course is to apply to the judge reserv-
ing to amend it : E. v. Smith, 1 Den. 510 ; see E. v. Win-
sor, 10 Cox, 276 ; E. v. Young, 14 Cox, 114.

The court will not send a case back for amendment on
the mere application of counsel, but will do so if on the
argument it appears that it is imperfectly stated : E. v.
Hilton, Bell, 20; E. v. Bourdeau, M. L. E. 7 Q. B. 176.
Where a case reserved has been re- stated by order of the
court an application, supported by affidavit, to have it
again re-stated will be refused. This court has no juris-
diction to interfere compulsorily with the judge's exercise
of his discretion : R. v. Studd, 10 Cox, 258.

The court must deal with the case as it is stated, and
upon the evidence returned by the judge : R. v. Brummitt,
L. & C. 9 ; see, now, b. 745. The Court of Appeal may
now order the stenographer's notes to be sent up.

By the express words of the statute the court of crown
cases reserved has its jurisdiction limited to the question
of law reserved and mentioned in the case sent up ; it has
no right to adjudicate on any other question : R. v. Tyree,
L. R. 1 C. C. R. 177; R. v. Blakemore, 2 Den. 410 ; R. v.
Smith, Temple and Mews' Cr. App. Cases 214 ; R. v. Shaw,
L. & C. 679.

So, in R. V. Overton, Car. & M. 655, on a crown case
reserved, it was held that the judges will not allow the

■"■ -J' .^r ; ; "■■I ^

870

PROCEDURE.

[Sec. 746

prisoner's counsel to argue objections that are apparent on
the face of the indictment unless they were reserved by
the judge, but will leave the prisoner to his writ of error.

The rule that a jury should not convict on the unsup-
ported evidence of an accomplice is a rule of practice only,
and not a rule of law, and questions of law only can be
reserved : R. v. Stubbs, Dears. 655, Warb. Lead. Cas. 12 ;
Contra, R. v. Smith, 38 U. C. Q. B. 218. But see later
case of R. v. Andrews, 12 0. R. 184.

The court of crown cases reserved cannot amend the
indictment : R. v. Garland, 11 Cox, 22i. Where an
amendment, without which the indictment was bad, had
been improperly made at the trial, after verdict, this court
ordered the record to be restored to its original state, and
a verdict of not guilty to be entered : R. v. Larkin, Dears.
365 ; see, now, s. 723, s-s. 5.

On the argument of a case reserved the counsel for the
defendant must begin : R. v. Gate Fulford, Dears. & B. 74.

On a motion for a new trial from a conviction for per-
jury : Held, that the trial (under a. 259 of the Procedure
Act, c. 174, R. S. C.) is not terminated until sentence is
rendered, and a " question which has arisen on the trial "
(which arises on the trial) does not necessarily mean a
question that was raised at the trial, but extends to one
that took its rise at the trial, and therefore a point not
raised by the defence may be reserved by the court : R. v.
Bain, 23 L. C. J. 327.

No reserved case can be had where no conviction: E. v,
Lalanne, 3 L. N. 16.

It is not necessary that the prisoner be present at the
he^nng of a reserved pase : R. v. Glass, 21 L. C. J. 245;
see Re Sproule, 12 S. C. R. 140.

Where the prisoner has been put on his trial on an
indictment containing six counts charging him with shoot-
ing with intent to murder, and was found guilty on the first

[Sec. 746

it are apparent on
were reserved by
lis writ of error.

vict on the unaup-
le of practice only,
)f law only can be
irb. Lead. Cas. 12 ;
L8. But 8ee later

cannot amend the
224. "Where an
ment was bad, had
ir verdict, this court
I original state, and
a. V. Larkin, Dears.

I the counsel for the
;ord, Dears. &B.74.

conviction for per-
,9 of the Procedure
id until sentence is
.risen on the trial "
necessarily mean a
but extends to one
lerefore a point not

by the court : R. v.

no conviction: R. v.

|er be present at the
iss, 21 L. C.J. 245;

on his trial on an
7ing him with shoot-
fnd guilty on the first

Sec. 746]

APPEAL-CASE RESERVED.

871

count, which verdict was afterwards set aside on a reserved
case for insufficiency of that first count: held, that he could
not be tried again ou the other counts, as they all referred
to the same act of shooting; prisoner discharged on plea of
autrefois acquit: E. v. Bulmer, 5 L. N. 92.

Held, that when a case reserved for the consideration of
the full court does not contain a question which, in the
opinion of the full court, it is essential to decide in connec-
tion with such case, it may be sent back for amendment:
R. V. Provost, M. L. E. 1 Q. B. 473.

A reserved case may be amended at the request of the
defendant during the argument thereon before the full
court, by adding the evidence taken at the trial : E. v. Eoss,
M. L. E. 1 Q. B. 227.

If illegal evidence has been allowed to go to the jury,
though without objection from the prisoner, the verdict must
be quashed if that evidence might have affected the verdict,
though apart from it there is sufficient evidence to support
the verdict. The law on this in criminal cases is what it
was in civil cases before the Judicature Act. The case of
R. v. Ball, E. & E. 132, reviewed ; E. v. Gibson, 16 Cox,
181. But now by s. 746 (/), it is expressly enacted that the
illegal admission or rejection of evidence is no ground to
set aside a verdict unless the Court of Appeal finds that
some substantial wrong has been occasioned thereby to the
defendant.

Challenging the array of the jury panel is not a matter
which can be reserved under C. S. U. C. c. 112 : E. v.
O'Rourke, 32 U. 0. C. P. 388.

But otherwise, if the question is one relating to the
proper constitution of the petit jury : E. v. Kerr, 26 U. C.
C. P. 214.

The decision of the judge in directing certain jurors to
stand aside is a question of law arising at the trial which
he can reserve : E. v. Patteson, 36 U. C Q. B. 129. But see

;- V

872

PROCEDURE.

[Sec. 747

i' 5 J;

E. V. Smith, 38 U. C. Q. B. 218; see K. v. Mellor, Dears. &
B. 468, cited ante, and Morin v. R., 18 S. C. R. 407, and
cases there cited.

A police magistrate cannot reserve a case for the opiniou
of a superior court, under C. S. U. C. c. 112, as he is not
within the terms of that Act : R. v. Richardson, 8 0. R. 651;
see ss. 742 and 900.

Challenge to the array is a question of law arising on
the trial which may be reserved. If Crown demurs to the
challenge, and judgment on demurrer is given, it becomes a
matter of record and cannot be reserved : R. v. Plant
7 Man. L. E. 537.

New Trial. (Ncio).

'74'y. After the conviction of any person for anij indictable offence the
court before which the trial takes place may, either during the sitting or after-
wards, give leave to the person convicted to apply to the Court of Appeal for
a new trial on the ground that the verdict was against the weight of evidence.
The Court of Appeal may, upon hearing such motion, direct a new trial if it
thinks fit.

2. In the case of a trial before a Court of General or Quarter Sessions such
leave may be given, during or at the end of the session, by the judge or other
person who presided at the trial.

Under this clause a condition precedent to any appli-
cation for a new trial in all offences whatever is the per-
mission of the court befo'*e which the conviction took place,
and, that permission being obtained, the Court of Appeal
grants or rejects the application as it thinks proper : s.
745 applies to applications for new trials. No new trial is
allowed to the crown. The only ground for the application
mentioned in this section is that the verdict was against
the weight of evidence. The application to the court
before which the trial took place may be made during the
sitting of the court or afterwards. The rule heretofore has
been that the defendant or defendants must be present in
court when the motion is made for a new trial, unless
some special ground be laid for dispensing with the rule :
R. v. Caudwell, 2 Den., 7iote a, 372, 1 Chit. 658 ; E. v.
Parkinson, 2 Den. 459 ; R. v. Fraser, 14 L. C. J. 245; E.
V. Hollingberry, 4 B. & C. 329.

Sees. 748-750]

" ^PEAL-NEW TRIAL, ETC.

87»

See R. V. Duncan, 7 Q. B. D. 198, Warb. Lead. Cas.
260, and cases there cited as to practice in England on
new trials.

New Trial by order op the Minister of Justice {New).

748. If "pon any application for the mercy of the Crown on behalf of
anv person convicted of an indictable offence, the ^linister of Justiee enter-
tains a doubt whether such person ought to have been convicted, he may,
instead of advising Her Alajesty to remit or commute the sentence, after such
inquiry as he thinks proper, by an order in writing direct a new trial at such
time and be/ore such court as he may think proper.

This is new. It virtually gives an appeal from the
courts to the Minister of Justice. The sentence, if for
imprisonment, is not suspended by the order of the
Minister of Justice under this clause, nor is provision made
to admit the person convicted to bail.

Intermediate Effects of Appe.\l. (New).

740« The sentence of a court shall not be suspended by reason of any
apjjeal, unless the court expressly so directs, except where the sentence is that
the accused suifer death, or whipping. The production of a certificate from
the officer of the court that a question has been reserved, or that leave has been
given to apply for a new trial, or of a certificate from the Attorney-General
that he has given leave to move the Court of Appeal, or of a certificate from
the Minister of Justice that he has directed a new trial, shall be a sufficient
warrant to suspend the execution of any sentence of death or whipping.

2. In all cases it shall be in the discretion of the Court of Appeal in
directing a new trial to order the accused to be admitted to bail.

Sub-section 2, it seems, applies as well to new trials
ordered under s. 746 as to new trials under s. 747.

Appeal to Supreme Court.

730. Any person convicted of any indictable offence, whose conviction
has been affinned on an appeal taken under section seven hundred and forty-two,
may appeal to the Supreme Court of Canada against the affirmance of such con-
viction; and the Supreme Court of Canada shall make such rule or order
thereon, either in affirmance of the conviction or for granting a new trial, or
otherwise, or for granting or refusing such application, as the justice of the
case requires, and shall make all other necessary rules and orders for carrying
such rule or order into effect : Provided that no such appeal can be taken if
the Court of Appeal is unanimous in affirming the conviction, nor unless
notice of apjjeal in writing has been served on the Attorney-General within
fifteen days after such affirmance or such further time as may be allowed by
the Supreme Court of Canada or a judge thereof.

2. Unless such appeal is brought on for hearing by the appellant at the
session of the Supreme Court during which sucii affirmance takes place, or the

( ,

I t-jTlRS ,1

< (

if !'

%■■

874

PROCEDURE.

[Sees. 751-753

seasion next thereafter if the said court is not then in session, the appeal xhall
be held to have been abandoned, unless otherwise ordered by the Supreme
Court or a judge thereof.

3. The judgment of the Supreme Court shall, in all cases, be final and
conclusive. 50-51 V. c. 50, s. 1.

See R. V. Cunningham, Cass. Dig. 107, and Amer v.
The Qaeen, 2 S. C. R. 592.

No Appeals to Privy Council.

Y«S1« Notwithstanding any royal prerogative, or anything contained in
The Interpretation Act or in The Suftreme and Exchequer Courts Act, no appeal
shall be brought in any criminal case from any judgment or order of any court
in Canadr, to any court of appeal or authority, by which in the United
Kingdom a,\.\ sals or petitions to Her Majesty in Council may be heard, ol V.
c. 43, s. 1.

The Privy Council has not hat! to pass yet on the
constitutionality of this clause.

PART LIII.

SPECIAL PROVISIONS.

732* Whenever any person in custody chartjed with an indictable ojfence
has taken proceedings before a judge or criminal court having jurisdiction in
the premises by way of certiorari, habeas corpus or otherwise, to have the
legality of his imprisonment inquired into, such judge or court may, with or
without determining the question, make an order for the further detention of
the ijerson accused, and direct the judge or justice under whose warrant lie is
in custody, or any other judge or justice, to take any proceedings, hear siicii
evidence, or do such further act as in the opinion of the court or judge may
best farther the ends of justice.

It is not clear what this enactment is intended for. It
seems to be out of place where it stands in the Act.

Decision 5Iay Be Reserved.

753. Any judge or other person presiding at the sittings of a court at
which any person is tried for an indictable offence under this Act, whether lie
is the judge of such court or is appointed by commission or otherwise to hold
such sittings, may reserve the giving of his final decision on questions raised

[Seo8. 751-753

laion, the appeal shall
ered by the Supreme

lU cases, be final and

)7, and Amer v.

anything contained in
■r Cimrts Ad, no appeal
nt or order of any court
which in the United
il may be heard. olV.

pass yet on the

Sees. 754-758]

PRACTICE IN

875

Iwith an iwUdable o-um
lirt having jurisdiction in
1 otherwise, to have the
[ge or court may, Kith or

the further detention of
fider whose warrant Ue is
[y proceedings, hear such

the court or judge may

Is intended for. It
in the Act.

Ithe sittings of a court at
\der this Act, whether he
Lion or otherwise to hold

Vision on questions raised

at the trial ; and his decision, whenever given, shall be considered as if given
at the time of the trial. R. S. C. o. 174, s. 209.

This, by the repealed clause, applied only to Ontario.
The words " under this Act " are new.

Practice in Ontario.

754. The practice and procedure in nil criminal cases and matters in the
High Court of Justice of Ontario which are net provided for in this Act, shall
be the same as the practice and procedure in similar cases and matters
heretofore. R. S. C. c. 174, s. 270.

It is not clear why a similar enactment for all the
provinces has been left out, though Parliament undoubt-
edly had grave reasons for it.

Courts in Ontario.

759. If any general commission for the holding of a court of assize and
nisijiriit", oyer and terminer or general gaol delivery is issued by the Governor-
General for any county or district in the province of Ontario, such commission
shall contain the names of the justices of the Supreme Court of Judicature for
Ontario, and may also contain the names of the judges of any of the county
courts in Ontario, and of any of Her Majesty's counsel learned in the law
duly appointed for the province of Upper Canada, or for the province of
Ontario, and if any such commission is for a provisional judicial district such
commisaion may contain the name of the judge of the district court of the said
district.

2. The said courts shall be presided over by one of the justices of the said
Supreme Court, or in their absence by one of such county court judges or by
one of such counsel, or in the case of any such district by the judge of such
district court. R. S. C. c. 174, s. 271.

756. It shall not be necessary for any court of General Sessions in the
province of Ontario to deliver the gaol of all prisoners who are confined upon
charges of theft, but the court may leave any such cases to be tried at the next
court of oyer and terminer and general gaol delivery, if, by reason of the
difficulty or importance of the case, or for any other cause, it appears to it
proper so to do. R. S. C. c. 174, s. 272.

757. If any person is prosecuted in .any division of the High Court of
Justice for Ontario for any indictable offence, by information there filed, or by
indictment there found or removed into such court, and appears therein in term
time in person, or, in case of a corixiration, by attorney, to answer to such infor-
mation or indictment, such defendant, upon being charged therewith, shall not
imparl to a f<jllowing term, but shall plead or demur thereto within four days
fnmi the time of his appearance ; and in default of his pleading or demurring
within four days as aforesaid judgment may be entered against such defendant
for want of a plea. R. S. C. c. 174, s. 273,

758. If such defendant appears to such information or indictment by
attorney, he shall not imparl to a following term^ but a rule, requiring him to

. iV7 ' f >|t

876

PROCEDURE.

[Sees. 769-701

■<? I

i 11 i.

plead, may forthwith be (riven and server!, and a plea to such information or
indictment may be enforced, or judgment in default may be entered in the
same manner as might Imve been done formerly in canes in which the defend-
ant had appeared to such information or indictment 1' attorney in a previous
term ; but the court, or any judge thereof, upon sufficunt cause shown for that
pur|)ose, may allow further time for such defendant to plead or demur to sunh
information or indictment. R. S. C. o. 174, s. 274.

YSO. If any prosecution for an iiulictaUf offence, instituted by the
Attorney-General for Ontario in the said court, is not brought to trial within
twelve months next after the plea of not guilty has been pleaded thereto, the
court in which such prosecution is depending, upon application made on belmlf
of any defendant in such prosecution of which application twenty days'
previous notice shall be given to such Attorney-General, may make an order
authorizing such defendant to bring on the trial of such prosecution ; aud
thereupon such defendant may bring on such trial accordingly unless a nolk
prosequi is entered to such prosecution. R. S. C. c, 174, s. 275.

The necessity of these last three sections is not clear.
They applied heretofore only to misdemeanours.

Special Pnovisioxs fok Nova Scotia.

"760. In the province of Nova Scotia a calendar of the criminal cases
shall be sent by the clerk of the Crown to the grand jury in each term, together
with the depositions taken in each case and the names of the different witnesses.
and the indictments shall not be made out, except in Halifax, until the grand
Jury so directs. R. S. C. c. 174, s. 270.

701 • A judge of the Supreme Court of Nova Scotia may sentence con-
victed criminals on any day of the sittings at Halifax, as well as in term time.
R. S. C. c. 174, s. 277.

Sees. 762-766]

SPEEDY TRIALS.

877

PART LIV.

SPEEDY TRIALS OF INDICTABLE OFFENCES.

708. The provisions of this part do not apply to the North-West Terri-
tories or the district of Keewatin. 52 V. o. 47, 8. 3.

703- In this part, unless the context otherwise requires, —
(rt) the expression " judge" means and includes, —

(i) in the province of Ontario, any judge of a count junior

judge or deputy judge authorized to act as chp nan i General

Sessions of the Peace, and also the judges of the pn stricts of

Algoma and Thunder Bay, and the judge of the distii *. ot ♦• 'iskoka
and Parry Sound, authorized i^espectively to act • ui the

General Sessions of the Peace ;

(ii) in the province of Quebec, in any district wherein there is a
judge of the sessions, such judge of sessions and in any district wherein
there is no judge of sessions but wherein there is a district magistrate,
such district magistrate, and in any district wherein there is neither a
judge of sessions nor a district magistrate, the sheriff of such district ;

(iii) in each of the provinces of Nova Scotia, New Brunswick and
Prince Edward Island, any judge of a county court ;

(iv) in the province of Manitoba the chief justice, or a puisne judge
of the Court of Queen's Bench, or any judge of a county court ;

(v) in the province of British Columbia the chief justice or a puisne
judge of the Supreme Court, or any judge of a county court ;

(h) the expression "county attorney" or "clerk of the peace " includes in
the provinces of Nova Scotia, New Brunswick and Prince Edward Island, any
clerk of a county court, and in the province of Manitoba, any Crown attorney,
the prothonotary of the Court of Queen's Bench, and any deputy prothonotary
thereof, any deputy clerk of the peace, and the deputy clerk of the Crown and
pleas for any district in the said province. 52 V. c. 47, s. 2.

764. The judge sitting on any trial under this part, for all the purposes
thereof and proceedings connected therewith or relating thereto, shall be a
court of record, and in every province of Canada, except the province of
C^uebec, such court shall be called " The County Court Judge's Criminal
Court " of the county or union of counties or judicial district in which the same
is heW.

2. The record in any such case shall be filed among the records of the
court over which the judge presides, and as part of such records. 52 V. c. 47,

S.4.

165. Every person committed to gaol for trial on a charge of being
guilty of any of the offences ivhich are mentioned in section Jlte hundred and

Hi
i

878

PROCEDURE.

[Sees, 766, 707

■ft

thirtn-nine as bein[/ loithin the jurisdiction of the General or Quarter Sessions of the
Peace, may, with his own consent (of which consent an entry shall then be made
of record), and subject to the provisions herein, be tried in any province under
the following provisions out of sessions and out of the regular term or sittings
of the court, whether the court before which, but for such consent, the said
person would be triable ff>r theoITence charged, or the grand jury thereof, is or
is not then in session, and if such person is convicted he may be sentenced by
the judge. 52 V. c. 47, s. 5.

706. Every sheriff shall, within twenty-four hours after any prisoner
charged as aforesaid is committed to gaol for trial, notify the judge in writing
that such prisoner is so confined, stating his name and the nature of the charge
preferred against him, whereupon, with as little delay as possible, sucli judge
shall cause the prisoner to be brought before him. 52 V. c. 47, s. 6.

VO?* The judge, upon having obtained the depositions on which the
prisoner was so committed, shall state to him,

{a) that he is charged with the offence, describing it ;

(b) that he has the option to be forthwith tried before such judge without
the intervention of a jury, or to remain in custody or under bail, as the court
decides, to be tried in the ordinary way by the court having criminal juris
diction.

2. If the prisoner demands a trial by jury the judge shall remand hira to
gaol ; but if he consents to be tried by the judge without a jury the county
solicitor, clerk of the peace or other prosecuting officer shall prefer the charge
against him for which he has been committed for trial, and if, upon being
arraigned upon the charge, the prisoner pleads guilty, the prosecuting officer
shall draw uj) a record as nearly as may be in one of the forms MM or NX in
schedule one to this Act; such plea shall be entered on the record, and the
judge shall jiass the sentence of the law on such prisoner, which sliall liiive the
same force and effect as if passed by any court having jurisdiction to try the
offence in the ordinary way, 52 V. c. 47, s. C.

UM.—{Si'ctio7i 767).

FORM OF RECORD WHEN THE PRISONER PLEADS NOT

GUILTY.
Canada, )

Province of , :>

County of . )

Be it remembered that A. B. being a prisoner in the gaol of
the said county, committed for trial on a charge of having
on day of , in the year , stolen, etc.,

{one cow, the property o/C. D., or as the case may be, statimj hrkjl])
the ofcr.ce) and having been brought before me [describe the jmhj;)
on tlie day of , in the year .

and asked by me if he consented to be tried before me without

[Sees. 766, 707

■al or Quarter Scssioiis of the.
m entry shall then be made
;ried in any province under
;he regular term or sittings
for such consent, the said
he grand jury thereof, is or
ed he may be sentenced by

ir hours after any prisoner

notify the judge in writing

Find the nature of the charge

lelay as possible, such judge

52 V. c. 47, s. 6.

Sec. 767]

SPEEDY TRIALS.

879

depositions on which the

bing it ;

fd before such judge without

dy or under bail, as the court

court having criminal juris-

le judge shall remand him to
Ige without a jury the county
officer shall prefer the charge
for trial, and if, upon being
guilty, the prosecuting officer
te of the forms UU or NX m
itered on the record, and the
prisoner, which shall have tlie
having jurisdiction to trytl.e

SONER PLEADS NOT

a prisoner in the gaol of

on a charge of having

,^^ , stolen, etc.,

faseuMybe,sUttin<ibrieilii

loteme{desvriln'theMi^

in the year

tried before me without

the intervention of a jury, consented to be so tried; and that
upon the day of , in the year , the said

A. B., being again brought before me for trial, and declaring
liimself ready, was arraigned upon the said charge and pleaded
not guilty ; and after hearing the evidence adduced, as well in
support of the said charge as for the prisoner's defence {or as the
cdsc may be) . I find him to be guilty of the offence with which he
IS charged as aforesaid, and I accordingly sentence him to {here
insert such sentence as the laic allows and the jiuhie thinks riyht), {or
I find him not guilty of the offence with which he is charged,
and discharge him accordingly).

Witness my hand at , in the county of ,

this day of , in the year

0. K.,

Judiie.

^Is.— {Section 767).

FORM OF RECORD WHEN THE PRISONER PLEADS GUILTY.

Canada, ^

Province of , }-

County of .J

Be it remembered that A. B. being a prisoner in the gaol of
the said county, on a charge of having on the day of

, in the year , stolen, etc., {one cow, the pro-

perty of C. D., or as the case niatj he, statinu briefly the ofence),
and being brought before me {describe thejudf/e) on the
day of , in the year , and asked by me if he

consented to be tried before me without the intervention of a
jury, consented to be so tried ; and that the said A. B. being
then arraigned upon the said charge, he pleaded guilty thereof,
whereupon I sentenced the said A. B. to {here insert such sentence
Its the law allows and the jiidye thinks riyht).

Witness my hand this day of

year

in the

0. K.,

Judye.

880

PROCEDURE.

[Sees. 708-773

1 •*?'

708. If one of two or more prisoners charged with the same offence
demands a trial by jury, and the other or others consent to be tried by the
judge without a jury, the judge, in his discretion, may remand all the said
prisoners to gaol to await trial by a jury. 52 V. c. 47, s. 8.

769. If under Part LV. (sec. 782), or Part LVI. (sec. 809), any person
has been asked to elect whether he would be tried by the magistrate or justices
of the peace, as the case may be, or before a jury, and he has elected to be tiied
before a jury, and if such election is stated in the warrant of committal for
trial, the sheriff and judge shall not be required to take the proceedings directed
by this part. 52 V. c. 47, s. 9.

2. But if such person, after his said election to be tried by a jury, has been
committed for trial he may, at any time before the regular term or sittings of
the court at which such trial by jury would take place, notify the sheriff that
he desires to re-elect ; whereupon it shall be the duty of the sheriff to proceed
as directed by section seven hundred and sixty-six, and thereafter the person
so committed shall be proceeded against as if his said election in the first
instance had not been made. 53 V. c. 37, s. 30.

TTO. Proceedings under this part commenced before any judge may,
where such judge is for any reason imable to act, be continued before any
other judge competent to try prisoners under this part in the same judicial
district, and such last mentioned judge shall have the same powers with
respei-t to such proceedings as if such proceedings had been commenced before
him, and may cause such portion of the proceedings to be repeated before liim
as he shall deem necessary. 53 V. c. 37, s. 30.

771. If, on the trial under Part LV. (sec. 782), or Part LVI. (sec. 809),
of this Act of any person charged with any offence triable under the provisions
of this part, the magistrate or justices of the peace decide not to try the same
sunmiarily, but commit such person for trial, such person may afterwards, with
his own consent, be tried under the provisions of tliis part. 52 V. c. 47, s. 10.

772. If the prisoner upon being so arraigned and consenting as aforesaid
pleads not guilty the judge shall appoint an early day, or the same day, for his
trial, and the county attorney or clerk of the peace shall subpcena the witnesses
named in the depositions, or such of them and such other witnesses as he thinks
requisite to prove the charge, to attend at the time appointed for suoii trial,
and the judge may proceed to try such prisoner, and if he be found guilty
sentence shall be passed as hereinbefore mentioned ; but if he be found not
guilty the judge shall immediately discharge him from custody, so far as
respects the charge in question. 52 V. c. 47, s. 11.

773. The county attorney or clerk of the peace or other prosecuting
officer may, with the consent of the judge, prefer against the prisoner a charge
or c'^argen for any offence or offences for which he may be tried under the
provisions of this part other than the charge or charges for which he has been
cc Tiniitted to gaol for trial, although such charge or charges do not appear or
are not mentioned in the depositions upon wh'ch the prisoner was so com-
mitted. 52 V. c. 47, s. 12.

[Sees. 708-773

with the same offence
sent to be tried by the
ay remand all the said

8.8.

I. (sec. 809), any person
he magistrate or justices
le has elected to be tiied
■arrant of committal for
! the proceedings directed

triedby ajury.hasbeen
■egular term or sittings of
ce, notify the sheriff that
y of the sheriff to proceed
and thereafter the person

said election in the first

d before any judge may,
be continued before any
part in the same judicial

Sees. 774-781]

SPEEDY TRIALS.

881

ve the same powers

with

ad been commenced before
J to be repeated before him

2), or Part L VI. (sec. 809),
riable under the provisions
decide not to try the same
erson may afterwards, with
.part. 52V.c.47,s.lO.

,xnd consenting as aforesaid
Ly.orthesameday, forliis
[hall subptena the witnesses
Vher witnesses as he thinks
ie appointed for such trial,
[and if he be found guilty
Id ; but if he be found not
from custody, so far as

jjeace or other prosecuting
tainst the prisoner a charge

L may be tried under the
[rges for which he has been
[r charges do not appear or

^ the prisoner was w com-

774. The judge shall, in any case tried before him, have the same power
as to acquitting or convicting, or convicting of any other offence than that
charged, as a jury would have in case the prisoner were tried at a sitting of
any court mentioned in this part, and may render any verdict which may be
rendered by a jury upon a trial at a sitting of any such court. 52 V. c. 47»
s. 13.

775. If a prisoner elects to be tried by the judge without the interven-
tion of a jury the judge may, in his discretion, admit him to bail to appear for
his trial, and extend the bail, from time to time, in case the court be adjourned
or there is any other reason therefor ; and such bail may be entered into and
perfected before the clerk. 52 V. c. 47, s. 14.

IIG- If a prisoner elects to be tried by a jury the judge may, instead of
remanding him to gaol, admit him to bail, to appear for trial at such time and
place and before such court as is determined upon, and such bail may be
entered into and perfected before the clerk. 52 V. c. 47, s. 15.

TIT. The judge may adjourn any trial from, time to time until finally
terminated. 52 V. c. 47, s. 16.

778. The judge shall have all powers of amendment which any court
mentioned in this part would have if the trial was before such court. 52 V..

c. 47, s. 17.

779. Any recognizance taken under section five hundred and ninety-
eight of this Act, for the purpose of binding a prosecutor or a witness, shall, if
the person committed for trial elects to be tried under the provisions of this
part, be obligatory on each of the persons bound thereby, as to all things
therein mentioned with reference to the trial by the judge under this part, as if
such recognizance had been originally entered into for the doing of such things
with reference to such trial : Provided, that at least forty-eight hours' notice in
writing shall be given, either personally or by leaving the same at the place of
residence of the persons bound by such recognizance as therein described, to
appear before the judge at the place where such trial is to be had, 53 V. c. 37,.
s. 29.

780. Every witness, whether on behalf of the prisoner or against him; •
duly summoned or subprenaed to attend and give evidence before such judge,
sitting on any such trial, on the day appointed for the same, shall be bound to
attend and remain in attendance throughout the trial ; and if he fails so to
attend he shall be held guilty of contempt of court, and may be proceeded
against therefor accordingly. 52 V. c. 47, s. 1 3.

Til. Upon proof to the satisfaction of the judge of the service of sub-
p<Bna upon any witness who fails to attend before him, as required by such
subpiena, and upon such judge being satisfied that the presence of such witness
before him is indispensable to the ends of justice, he may, by his warrant,
cause the said witness to be apprehended and forthwith brought before him to
give evidence as required by such subpoena, and to answer for his disregard of
the same ; and such witness may be detained on such warrant before the said
Crim. Law— 56

882

PROCEDURE.

[Sec. 781

jucl)?e, or in the common gaol, with a view to secure his presence as a witness ;
or, in the discretion of the judge, such witness may be released on recogni-
zance with or without sureties, conditioned for his appearance to give evidence
as therein mentioned, and to answer for his default in not attending upon the
said subpoena, as for a contempt ; and the judge may, in a summary manner,
examine into and dispose of the charge of contempt against the said witness
who, if found guilty thereof, may ue fined or imprisoned, or both, such fine not
to exceed one hundred dollars, and such imprisonment to be in the common
gaol, with or without hard labour, and not to exceed the term of ninety daj's,
and he may also be ordered to pay the costs incident to the execution of such
warrant and of his detetition in custody.

2. Such warrant may be in the form 00 and the conviction for contempt
in the form PP in sched\ile one to this Act, and the same shall be authority to
the persons and officers therein required to act to do as therein they are resiiec-
•tively directed. 52 V. o. 47, a. 19.

The words in italics in s. 781 are new.

00.— {Section 781.)

WARRANT TO APPREHEND WITNESS.
Canada,
Province of
County of

To all or any of the constables and other peace officers in
the said county of

Whereas it having been made to appear before me, that E. F.,
of , in the said county of , was likely to give

material evidence on behalf of the prosecution {or defence, as the
case may be) on the trial of a certain charge of {as theft, or as the
case may he), against A. B., and that the said E. F. was duly
subpoenaed {or bound under recognizance) to appear on the
day of , in the year , at , in the said

county at o'clock (forenoon or afternoon, as the case way he),

before me, to testify what he knows concerning the said charge
against the said A. B.

And whereas proof has this day been made before me, upon
oath of such subpoena having been duly served upon the said
E. F., {or of the said E. F. having been duly bound under
recognizance to appear before me, as the case may he) j and
whereas the said E. F. ha« neglected to appear at the triaJ and
place appointed, and no just excuse has been offered for sucii

[Sec. 781

i presence as a witness ;
be released on recogni-
jarance to give evidence
not attending upon the
, in a summary manner,
against the said witness
ed, or both, such tine not
ent to be in the common
the term of ninety days,
! to the execution of such

) conviction for contempt
ame shall be authority to
IS therein they are respec-

!W.

Sec. 781]

SPEEDY TRIALS.

888

WITNESS.

)tlier peace officers in

before me, thatE.F.,
,' was likely to give
^tion (or defence, «s f/if
Te of (rts theft, nr as thf
' said E. F. v?as duly
to appear on tbe

, in the said
oon, as the citse vunj he),
berning tlie said charge

made before me, upon
* served upon the said
[een duly bound under
\the case may he) ; and

appear at the trial and

' been offered for such

neglect : These are therefore to command you to take the said
E. F. and to bring him and have him forthwith before me, to
testify what he knows concerning the said charge against the
said A. B., and also to answer his contempt for such neglect.

Given under my hand this day of , in the

year

0. K.,
Jndye. ,

Vl^.— {Sections 582, 781.)

CONVICTION FOR CONTEMPT.
Canada,
Province! of , -

County of , .

Be it remembered that on the day of , in

tbe year , in the county of , E. F. is convicted

before me, for that he the said E. F. did not attend before me to
give evidence on the trial of a certain charge against one A. B.
of {theft, or as the case may be), although duly subpoenaed {or
bound by recognizance to rppear and give evidence in that
behalf, as the case may he) but made default therein, and has not
shown before me any sufficient excuse for such default, and I
adjudge the said E. F., for the said offence, to be imprisoned in
tbe common gaol of the county of , at , for the

space of , there to be kept at hard labour {and in case a

fim is also intended to be imposed, then proceed) and I also adjudge
that the said E. F. do forthwith pay to and for the use of Her
Majesty a fine of dollars, an i in default of payment,

that the said fine, with the cost of coUe m, be levied by distress
and sale of the goods and chattels of the said E. F. (or in case a
fine alone is imposed, then the clause of imprisonment is to be
omitted.)

Given under my hand at , in the said county of

, the day and year first above mentioned.

O.K.,

Judt/e,

884

PROCEDURE.

[Sees. 782, 78$

PART LV.

SUMMARY TRIAL OF INDICTABLE OFFENCES.

78S« In this part, unless the context otherwise requires, (a) the expres-
sion " magistrate " means and includes —

(i) in the provinces of Ontario, Quebec and Manitoba, any recorder, judge
of a county court, being a justice of the peace, commissioner of police, judge of
the sessions of the peace, police magistrate, district magistrate, or other func-
tionary or tribunal, invested by the proper legislative authority, virith power to
do alone such acts as are usually required to be done by two or more justices of
the peace, and acting within the local limits of his or of its jurisdiction ;

(ii) in the provinces of Nova Scotia and New Brunswick, any recorder
judge of a county court, stipendiary magistrate or police magistrate, acting
within the local limits of his jurisdiction, and any commissioner of ponce and
any functionary, tribunal or person invested by the proper legislative authority
with power to do alone such acts as are usually required to be done by two or
more justices of the peace ;

(iii) in the provinces of Prince Edward Island and British Columbia and
in the district of Keewatin, any two justices of the peace sitting together
and any functionary or tribunal having the powers of two justices of the
peace ;

(iv) in the North-West Territories, any judge of the Supreme Court of
the said territories, any two justices of the peace sitting together, and any
functionary or tribunal having the powers of two justices of the peace;

{b) the expression "the common gaol or other place of confinement," in
the case of any offender whose age at the time of his conviction does not, in
the opinion of the magistrate, exceed sixteen years, includes any reformatory
prison provided for the reception of juvenile offenders in the province in which
the conviction referred to takes place, and to which by the law of that province
the offender may be sent ; and

(c) the expression "property" includes everything included under the
same expression or under the expression "valuable security," as defined by this
Act, and in the case of any "valuable security," the value thereof shall be
reckoned in the manner prescribed in this Act. R. S. C. c. 176, s. 2.

78S. Whenever any person is charged before a magistrate ;

{a) with having committed theft, or obtained money or property by false
pretenses, or unlawfully received stolen property, and the value of the property
alleged to have been stolen, obtained or received, does not, in the judgment of
the magistrate, exceed ten dollars ; or

{I) with having attempted to commit theft ; or

(c) with having committed an aggravated assault by unlawfully and
maliciously inflicting upon any other person, either with or without a weapon

[Sees. 782, 783

Sec. 784]

SUMMARY TRIAL.

885

D OFFENCES.

le requires, (o) the expres-

litoba, any recorder, judge
issioner of police, judge of
magistrate, or other func-
e authority, with power to
by two or more justices of
r of its jurisdiction ;
r Brunswick, any recorder,
,r police magistrate^acting
commissioner of ponce and
proper legislative authority
luired to be done by two or

i and British Columbia and

I the peace sitting together,

rers of two justices of the

of the Supreme Court of
sitting together, and any

ustices of the peace;

place of confinement," in
his conviction does not, in
1, includes any reformatory

lers in the province in which
by the law of that province

ything included under the
security," as defined by this
the value thereof shall be
,S.C.c.l76, S.2.

:e a magistrate ;
money or property by false
md the value of the property
does not, in the judgment of

lassault by unlawfully and
ler with or without a weapon

or instrument, any grievous bodily harm, or by unlawfully and maliciously
wounding any other person ; or

{d) with having committed an assault upon any female whatsoever, or
upon any male child whose age does not, in the opinion of the magistrate,
exceed fourteen 'years, such assault being of a nature which cannot, in the
opinion of the magistrate, be suflficieritly punished by a summary conviction
before him under any other part of this Act, and such assault, if uiwn a female,
not amounting, in his opinion, to an assault with intent to commit a rape ; or

(e) with having assaulted, obstructed, molested or hindered any peace
officer orpubl'c officer in the lawful performance of his duty, or with intent to
prevent the performance thereof ; or

(/) with keeping or being an inmate, or habitual frequenter of any dis-
orderly house, house of ill-fame or bawdy-house : or

{<i) with using or knowingly allowmg any part of any premises under his
control to be used—

(i) for the purpose of recording or registering any bet or wager, or
selling any pool ; or

(ii) keeping, exhibiting, or employing, or knowingly allowing to be
kept, exhibited or employed, any device or apparatus for the purpose of
recording or registering any bet or wager, or selling any pool ; or
(h) becoming the custodian or depositary of any money, property, or valu-
able thing staked, wagered or pledged ; or

(i) recording or registering any bet or wager, or selling any pool, upon the
result of any political or municipal election, or of any race, or of any contest or
trial of skill or endurance of man or beast, —

the magistrate may, subject to the provisions hereinafter made, hear and
determine the charge in a summary way. R. S. C. c. 176, s. 3.

1'§4. The jurisdiction of such magistrate is absolute in the case of any
person charged with keeping or being an inmate or habitual frequenter of any
disorderly house, house of ill-fame or bawdy-house, and does not depend on the
consent of the person charf^ed to be triod by such magistrate, nor shall such
person be asked whether he consents to be so tried ; nor do the provisions of
this part affect the absolute summary jurisdiction given to any justice or
justices of the peace in any case by any other part of this Act. R. S. C.
c. i:6, 8. 4.

The words "within the police Hmits of any city in
Canada" were inserted in the repealed Act after the word
charged in the second line.

2. The jurisdiction of the magistrate is absolute in the case of any person
who, being a seafaring person and only transiently in Canada, and having no
permanent domicile therein, is charged, either within the city of Quebec as
hmited for the purjwse of the police ordinance, or within the city of Montreal
as 80 limited, or in any other seaport city or town in Canada where there is
such magistrate, with the commission therein of any of the offences hereinbe-
fore mentioned, and also in the case of any other jierson charged with any such

^-^^

886

PROCEDURE.

[Sees. 785-787

i !

offence on the complaint of any such seafaring person whose tewtimony is
essential to the proof of the offence ; and such jurisdiction does not depei'' -t
the consent of any such person to be tried by the magistrate, nor a\ \. such
person be asked whether he consents to be so tried. R. S. C, c. 176, s. 5.

3. The jurisdiction of a stipendary magistrate in the province of Prince
Edward Island, and of a magistrate in tlie district of Keewatin, under this
part, is absolute without the consent of the person charged. 52 V. c. 46, s, 1.

This sub-section extended to British Columbia by the
repealed Act.

ISS- If any person is charged, in the province of Ontario before a police
magistrate or before a stipendiary magistrate in any county, district or provi-
sional county in such province, with having committed any offence for which
he may be tried at a Court of General Sessions of the Peace, or if any person is
committed to a gaol in the county, district or provisional county, under the
warrant of any justice of the peace, for trial on a charge of being guilty of any
such offence, such person may, with his own consent, be tried before such
magistrate, and may, if found guilty, be sentenced by the magistrate to the
same punishment as he would have been liable to if he had been tried before
the Court of General Sessions of the Peace. R. S. C. c. 176, s. 7.

" 786. Whenever the magistrate, before whom any person is charged as
aforesaid, proposes to dispose of the case summarily under the provisions of
this part, such magistrate, after ascertaining the nature and extent of the
charge, but before the formal examination of the witnesses for the prosecution
and before calling on the person charged for any statement which he wishes to
make, shall state to such person the substance of the charge against him, and
(if the charge is not one that can be tried summarily without the consent of the
accused) shall then say to him these words, or words to the like effect : " Do
you consent that the charge against you shall be tried by me, or do you desire
that it shall be sent for trial by a iury at the (naniiny the court at which it can
probably soonest he tried) ; " and if the person charged consents to the ciiarge
being summarily tried and determined as aforesaid, or if the power of the
magistrate to try it does not depend on the consent of the accused, the magis-
trate shall reduce the charge to writing and read the same to such person, and
shall then ask him whether he is guilty or not of such charge. If the iierson
charged confesses the charge the magistrate shall then proceed to pass such
sentence upon him as by law may be passed in respect to such offence, subject
to the provisions of this Act ; but if the person charged says that he is not
guilty, the magistrate shall then examine the witnesses for the prosecution,
and when the examination has been completed, the magistrate shall inquire of
the person charged whether he has any defence to make to such charge, and if
he states that he has a defence the magistrate shall hear such defence, and
shall then proceed to dispose of the case summarily. R. S. C. c. 176, ss. 8 & 'i

78T. In the case of an offence charged under paragraph («) or (i) of sec-
tion seven hundred and eighty-three, the magistrate, after hearing the whole
case for the prosecution and for the defence, shall, if he finds the charge
proved, convict the person charged and commit him to tlie common gaol or

[Sees. 785-787

•son whose testimony is
ction does not deperT" "n
lagistrate, nor si .. such
R. S. C. c. 176, s, 5.

n the province of Prince

of Keewatin, under this

harged. 52 V. c. 46, s. 1.

h Columbia by the

. of Ontario before a police
y county, district or provi-
tted any offence for which
le Peace, or if any person is
visional county, under the
large of being guilty of any
isent, be tried before such
1 by the magistrate to the
if he had been tried before
C, c. 176, 9. 7.

m any person is charged as
ily under the provisions of
nature and extent of the
itnesses for the prosecution
;atement which he wishes to
;he charge against him, and
y without the consent of the
rds to the like effect : " Do
ried by me, or do you desiie
iwj the court at which it cmi
•ged consents to the chavge
laid, or if the power of the
it of the accused, the inagis-
;he same to such iwrson, and
iuch charge. If the ]xvm
then proceed to pass such
^pect to such offence, subject
charged says that he is not
Itnesses for the prosecution,
e magistrate shall inquire of
make to such charge, and if
(hall hear such defence, and
R.S. C. c. 176,ss. 8&'J.

^r paragraph («) or (M of ««•
fate, after hearing the whole
Vail, if he finds the charge
hrm to the common gaol jr

Sees. 788-792]

SUMMARY TRIAL.

887

other place of confinement, there to be imprisoned, with or without hard
labour, for any term not exceeding six months. R. S. C. c. 176, a. 10.

788. In any case summarily tried under paragraph (c), (d), (c), (f), (j),
(h) or {i) of section seven hundred and eighty-three, if the magistrate finds the
charge proved, he may convict the person charged and commit him to the
common gaol or other place of confinement, there to be imprisoned, with or
without hard labour, for any term not exceeding six months, or may condemn
him to pay a fine not exceeding, with the costs in the case, one hundred dol-
lars, or to both fine and imprisonment not exceeding the said sum and term ;
and such fine may be levied by warrant of distress under the hand and seal of
the magistrate, or the person convicted may be condemned, in addition to any
other imprisonment on the same conviction, to be committed to the common
gaol or other place of confinement for a further term not exceeding six months,
unless such fine is sooner paid. R. S. C. c. 176, s. 11.

7§9. When any person is charged before a magistrate with theft or with
having obtained property by false pretenses, or with having unlawfully re-
ceived stolen property, and the value of the property stolen, obtained or
received exceeds ten dollars, and the evidence in support of the prosecution is,
in the opinion of the magistrate, sufficient to put the iierson on his trial for the
offence charged, such magistrate, if the case appears to him to be one which
may properly be disposed of in a summary way, and may be adequately
punished by virtue of the iwwers conferred by this part, shall reduce the
charge to writing, and shall read it to the said person, and, unless such person
is one who can be tried summarily without his consent, shall then put to him
the question mentioned in section seven hundred and eighty-six, and shall ex-
plain to him that he is not obliged to plead or answer before such magistrate,
and that if he does not plead or answer before him, he will be cominitted for
trial in the usual course. R. S. C. c. 176, s. 12.

790. If the person charged as mentioned in the next preceding section
consents to be tried by the magistrate, the magistrate shall tiien ask him
whether he is guilty or not giiilty of the charge, and if such person says that
he is guilty, the magistrate shall '.hen cause a plea of guilty to be entered upon
the proceedings, and sentence hi n to the same punishment as he would have
been liable to if he had been convicted upon indictment in the ordinary way ;
and if he says that he is not guilty, the magistrate shall proceed as provided in
section seven hundred and eighty-six. 52 V. c. 46, a. 2.

791. If, in any proceeding under this part, it appears to the magistrate
that the offence is one which, owing to a previous conviction of the person
charged, or from any other circumstance, ought to be made the subject of pro-
secution by indictment rather than to be disjiosed of summarily, such maijis-
trate may, before the accused person has made his defence, decide not to
adjudicate summarily upon the case ; but a previous conviction shall not
prevent the magistrate from trying the offender summarily, if he thinks fit so
to do. R. S. C. 0. 176, 8. 14.

792. If, when liis consent is necessary, the iierson charged elects to be
tried before a jury, the magistrate shall proceed to hold a preliminary inquiry

.3:

888

PROCEDURE.

[Sees. 793-800

aa provided in Parts XLIV. and XLV., and if the i)erson charged is commit-
ted for trial, shall state in the warrant of committal the fact of such election
having been made. R. S. C. c. 176, a. 15.

798* In every case of summary proceedings under this part the person
accused shall be allowed to make his full answer and defence, and to have all
witnesses examined and cross-examined by counsel or solicitor. R. S. C. c. 170,

8.16.

•704. Every court held by a magistrate for the puriwses of this part shall
be an open public court.

795. The magistrate before whom any person is charged under the
provisions of this part may, by summons, require the attendance of any iwrson
as a witness upon the hearing of the case, at a time and place to be named in
such summons, and such magistrate may bind, by recognizance, all persons
whom he considers necessary to be examined, touching the matter of such
charge, to attend at the time and place appointed by him and then and there
to give evidence upon the hearing of such charge ; and if any person so sum-
moned, or required or bound as aforesaid, neglects or refuses to attend in
pursuance of such summons or recognizance, and if proof is made of such
person having been duly summoned as hereinafter mentioned, or bound by
recognizance as aforesaid, the magistrate before whom such jierson should have
attended may issue a warrant to compel his a.ipearance as a witness. R, S. C.
c. 176, s. 18.

TOf*. Every summons i3.^ued under the provisions of this paipt may be
served by delivering a copy f.f the summons to the person summoned, or by
delivering a copy of the summons to some inmate of such person's usual place
of alxxle apparently over six'.ern years of age ; and every i)erson so requii-ed by
any writing under the hand of any magistrate to attend and give evidence
&9 aforesaid shall be deemed to have been duly summoned. R. S. C. c. I'G.
s. 19.

797, Whenever the magistrate finds the offence not provco, he shall
dismiss the oliarge, and make out and deliver to the person charged a
certificate under his hand stating the fact of such dismissal. R. 8. C. c. 176,
s. 20. • .

798. Every conviction under this part shall have the same effect as a
conviction upon indictment for the same offence. R. S. C. c. 17C, s. 22.

799- Every person who obtains a certificate of dismissal or is convicted
under the provisions of this part, shall be released fi'om all furtlier or other
criminal proceedings for the same cause. R. S. C. c. 176, s. 23.

800. No conviction, sentence or proceeding under the provisions of this
part shall be quashed for want of fonn ; and no warrant of commitment uiwn
a conviction shall be held void by reason of any defect therein, if it is therein
alleged that the offender has been convicted, and there is a good and valid
conviction to sustain the same. R. S. C. c. 176, s. 24.

[Sees. 793-800

son charged it* commit -
le fact of such election

ier this part the person
defence, and to have all
)licitor. R. S. C. c. 17G,

urposes of this part shall

ti 19 charged under the
attendance of any person
and place to be named in
recognizance, all persons
jhing the matter of snch
y him and then and there
,nd if any person so sum-
8 or refuses to attend in
if proof is made of such
: mentioned, or bound by
m such person should have
nee as a witness. R. S. C.

(ions of this pa?t maybe
person summoned, or by

If such person's usual place

very i)erson so requii-ed by
attend and give evidence

Immoned. R. S. C. c. lib.

[ence not provco, he shall

Ito the person charged^ a

lismissal. R- S. C. c. 176,

(have the same effect as a
S. C. c. 17C, s. 22.

[i dismissal or is convicted
from all further or other
, 176, 8. 23.

Inder the provisions of this
Irant of commitment n\m

Let therein, if it is theren.

(there is a good and valid

B4.

Sees. 801-806]

SUMMARY TRIAL.

889

801* The magistrate adjudicating under the provi.sion8 of this part shall
tran-tmit the conviction, or a duplicate of a certificate of dismissal, with the
written charge, the deiMsitions of witnesses for the prosecution and for the
defence, and th« statement of the accused, to the next court of General or
Quarter Sessions of the Peace or to the court discharging the functions of a
<!0\irt of General or Quarter Sessions of the Peace, for the district, county or
place, there to be kept by the proiier officer among the records of the court.
R. S. C. c. 176. 8. 25.

802. A copy of such conviction, or of such certificate of dismissal,
certified by the proiier officer of the court, or proved to be a true copy, shall be
sufficient evidence to prove a conviction or dismissal for the offence mentioned
therein, in any legal proceedings. R. S. C. c. 176, s. 26.

803< The magistrate by whom any person has been convicted under the
provisions of this part may order restitution of the property stolen, or taken
or obtained by false pretenses, in any case in which the court before whom the
|)er9on convicted would have been tried but for the provisions of this jjart,
might by law older restitution. R. S. C. c. 176, s. 27.

See s. 838, post.

§04* Whenever any person is charged before any justice or justices of
the peace, with any offence mentioned in section seven hundred and eighty,
three, and in the opinion of such justice or justices the case is proper to be
disposed cf summarily by a magistrate, as herein provided, the justice or
justices before whom such person is so charged may, if he or they see fit,
remand such person for further examination before the nearest magistrate in
like manner in all respects as a justice or justices are authorized to remand a
person accused for trial at any court, under Part XLV., section five hundred
and eighty-six ; but no justice or justices of the iieace, in any prdlince, shall
so remand any person for further examination or trial before any such magis-
trate in any other province. Any [jerson so remanded for examination before
a magistrate in any city, may be examined and dealt with by any other magis-
trate in the same city. R. S. C. o. 176, ss. 28, 29 & 30.

805. If any person suffered to go at large, upon entering into such
recognizance as the justice or justices are authorized, under Part XLV. , section
five hundred and eighty-seven, to take on the remand of a person accused, con-
ditioned for his appearance before a magistrate, does not afterwards appear,
pursuant to such recognizance, the magistrate before whom he should have
appeared shall certify, under his hand on the back of the recognizance, to the
clerk of the peace of the district, county or place, or other proper officer, as
tiio case may be, the fact of such non-appearance, and such recognizance shall
be proceeded upon in like manner as other recognizances ; and such certificate
shiUl heprivm facie evidence of such non-apijearance without proof of the signa-
t'lreoflhe magistrate thereto. R. S. C. c. 176, s. 31.

806. Every fine and penalty imposed under the authority of this part
shall be paid as follows, that is to say : —

890

PROCEDURE.

[Sec. 807

(a) In the province uf Ontario, to the magistrate who imposed thr. same, or
to the clerk of the court or clerk of the peace, as the case may be, to be paid
over by him to the county treasurer for county purposes ;

('') In any new district in the i>rovince of Quebec, to the sheriff of such
district, as treasurer of the building and jury fund for such district, to fonn
part of such fund, — and if in any other district in the said province, to the
prothonotary of such district to be applied by him, under the direction of the
Lieutenant-Governor in Council, towards the keeping in repair of the court-
house in such district, or to be added by him to the moneys and fees collected
by him for the erection of a court-house and gaol in such district, so long as
such fees are collected to defray the cost of such erection ;

(d) In the provinces of Prince Edward Island, Manitoba and British
Columbia, to the treasurer of the province. R. S. C. c. 176, s. 32.

N07. Every conviction or certificate may be in the form QQ, RR, or SS
in schedule one hereto applicable to the case, or to the like effect ; and when-
ever the nature of the case requires it, such forms may be altered by omitting
the words stating the consent of the person to be tried before the magistrate,
and by adding the requisite words, stating the fine imposed, if any, and the
imprisonment, if any, to which the pers p convicted is to be subjected if the
fine is not sooner paid. R. S. C. c. 176, s. 33.

FORMS UNDER PART LV.

QQ.— {Section 807.)

CONVICTION.

Canada, '^

Province of • , J-
County of .J

Be it remembered that on the day of , in the

year , at , A. B., being charged before me,

the undersigned,

, of the said {city) (and consenting to

my trying the charge summarily), is convicted before me, for
that he, the said A. B., {etc., utatimj the nfence, and the time and
place when and where committed), and I adjudge the said A. B., for
his said offence, to be imprisoned in the , (and there kept

to hard labour) for the term of

Given under rny hand and seal, the day and year first above

mentioned, a*'' aforesaid.

J. S., [seal.]

J. P., f Name of coxmUj.)

Sec. 807]

sum:mary trial.

891

B.K—{Siftian 807.)

CONVICTION UPON A PLEA OF GUILTY,

Canada, ^

province of , I-

County of . J

Be it remembered that on the day of , in

the year , at , A. B. being charged before me,

the undersigned, , of the said fcitijj (and consenting to

my trying the charge summarily), for that he, the said A. B.,
(etc., stathifj the offence, and the, time and jdace uhen awl where
committed), and pleading guilty to such charge, he is thereupon
convicted before me of the said oti'ence ; and 1 adjudge him, the
said A. B., for hia said offence, to be imprisoned in the ,

(and there kept to hard labour) for the term of

Given under my hand and seal, the day and year first above
mentiouod, at aforesaid.

J. S., [seal.]

J. P., ( Xame of county.)

.1*

day of , in the

ng charged before me,

\uj) (and consenting to

)nvicted before me, for

lence, and the time and

[dge the said A. B., for

, (and there kept

SS.—f Section 807.)

CERTIFICATE OF DISMISSAL.

Canada,
Province of
County of

I, the undersigned, , of the city (or us the case nunj

he) of , certify that on the day of , in

the year , at aforesair", A. B., being charged

before me (and consenting to my trying the charge summarily),
for that he, the said A. B., (etc.,statinti the o fence chart led, and the
time and place when and where alleged to have been comnntted), I
did, after having summarily tried the said charge, dismiss the
same.

Given under my hand and seal, this day of »

in the year , at aforesaid.

J. S., [seal.]

.7. P., (Xame of county.)

892

PROCEDURE.

[Sees. 808-810

808. The provisions of this Act relating to preliminary inquiries before
justices, except as mentioned in sections eight hundred and four and eight
hundred and five and of Part LVIII., shall not apply to any proceedings
under this part. Nothing in this part shall affect the provisions of Part LVI.,
and this part shall not extend to persons punishable under that part so far as
regards offences for which such persons may be punished thereunder. R. S. C-
c. 17C, ss. 34 & 35.

PART LVI.

TRIAL OF JUVENILE OFFENDERS FOR INDICTABLE
t OFFENCES.

800. In this part, unless the context otherwise requires —

(a) The expression *' two or more justices," or " the justices" includes,—

(i) in the provinces of Ontario and Manitoba any judge of the county
court being a justice of the peace, police magistrate or stipendiary magis-
trate, or any two justices of the peace, acting within their respective
jurisdictions ;

(ii) in the province cf Quebec any two or more justices of the peace,
the sheriff of any district, except Montreal and Quebec, the deputy sheriff
of Gasije, and any recorder, judge of the Sessions of the Peace, police
magistrate, district magistrate or stiiiendiary magistrate acting within the
limits of their resjjective jurisdictions ;

(iii) in the provinces of Nova Scotia, New Brunswick, Prince Edward
Island, and British Columbia, and in the district of Keewatin, any func-
tionary or tribunal invested by the proper legislative authority with iwwer
to do acts usually required to be done by two or more justices of the i)eace;

(iv) in the North-west Territories, any judge of the Supreme Court of
the said territories, any two justices of the peace sitting together, and any
functionary or tribunal having the lowers of two justices of the peace ;

(b) The expression "the common gaol or other place of confinement"
includes any reformatory prison provided for the reception of juvenile offen-
ders in the province in which the conviction referred to takes place, and to
which, by the law of that province, the offender may be sent. R. S. C. c. 17'i
B. 2.

810. Every person charged with having committed, or having attempted
to commit any offence which is theft, or punishable as theft, and wlioae age, at
the i)eriod of the commission or attempted commission of such offence, does
not, in the opinion of the justice before whom he is brought or api^ars, exceed
the age of sixteen years, shall, upon conviction thereof in oiien court, ui)on his

[Sees. 808-810

inary inquiries before
1 and four and eight
V to any proceedings
ovisionsofPartLVL.
der that part so far as
thereunder. R- S. C-

Sees. 811-814] TRIAL OF JUVENILE OFFENDERS.

893

,R INDICTABLE

I requires —

the justices" includes -
a any judge of the county
Krate or stipendiary inagis-,
g within their respective

bore justices of the i«ace
Quebec, the deputy shenff

Ins of the Peace poke
lagistrate acting within the

-Brunswick, Prince Edward

tct of Keewatin, any func-
\ative authority with iK)wet
[more justices of the Face;
U of the Supreme Court of
be sitting together, and any
1-0 justices of the peace;

Lr place of confinement"
Ireceptionof juvenile offen-
■^red to takes place, and to

fy be sent. R.S.C.c.l..,

nitted, or having attemiited

Lb theft, and whose age. at

I- •„ of such offence, does
lission oi »u(-" ,

I brought or appears, exceed

Ireof in oi^n court, upon his

own confession or upon proof, before any two or more justices, be committed
to the common gaol or other place of confinement within the jurisdiction of
such justices," there to be imprisoned, with or without hard labour, for any
term not exceeding three months, or, in the discretion of such justices, shall
iorfeit and pay such sum, not exceeding twenty dollars, as such justices adjudge.
R. S. C. c. 177, 8. 3.

811. Whenever any person, whose age is alleged not to exceed sixteen
years, is charged with any offence mentioned in the next preceding section, on
the oath of a credible witness, before any justice of the peace, such justice may
issue his summons or warrant, to summon or to apprehend the person so charged
to appear before any two justices of the peace, at a time and place to be named
in such summons or warrant. R. S. C. c. 177, s. 4.

813* Any justice of the peace, if he thinks fit, may remand "for further
examination or for trial, or suffer to go at large, upon his finding sufficient
sureties, any such person charged before him with any such offence as afore-
said.

2. Every such surety shall be bound by recognizance conditioned for the
appearance of such person before the same or some other justice or justices of
the peace for further examination, or for trial before two or more justices of the
peace as aforesaid, or for trial by indictment at the proper court of criminal
jurisdiction, as tlie case may be.

3. Every such recognizance may be enlarged, from time to time, by any
such justice or justices to such further time as he or they appoint ; and every
such recognizance not so enlarged shall be discharged without !fee or reward,
when the person has appeared according to the condition thereof. R. S. 0.
c. 177, ss. 5, 6 & 7.

813. The justices before whom any person is charged and proceeded
against under the provision of this part before such person is asked whether he
has any cause to show why he should not be convicted, shall say to the person
so charged, these words, or words to the like effect :

" We shall have to hear what you wish to say in answer to the charge
against you ; but if you wish to be tried by a jury, you must object now to our
deciding upon it at once."

2. And if such person, or a parent or guardian of such person, then objects,
no further proceedings shall be had under the provisions of this part ; but the
justices may deal with the case according to the provision set out in Parts
XLIV. and XLV., as if the accused were before them thereunder. R. S. C.

c. 177, s. 8.

814. If the justices are of opinion, before the person charged has made
his defence, that the charge is, from any circumstance, a fit subject for prose-
cution by indictment, or if the person charged, upon being called upon to
answer the charge, objects to the case being summarily disposed of under the
provisions of this part, the justices sliall not deal with it summarily, but may
proceed to hold a preliminary inquiry as provided in Parts XLIV. and XLV.
(Ss. 553, 577).

894

PROCEDURE.

[Sees. 815-819

! I'

2. In case the accused has elected to be tried by a jury, the justices shall
state in the warrant of commitment the fact of such election having been made.
R. S. C. c. 177, 8. 9.

SIS* Any justice of the peace may, by summons, require the attendance
of any person as a witness upon the hearing of any case before two justices,
under the authority of this part, at a time and place to be named in such
summons. R. S. C. c. 177, s. 10.

S10« Any such justice may require and bind by recognizance every
person whom he considers necessary to be examined, touching the matter of
such charge, to attend at the time and place appointed by him and then and
there to give evidence upon the hearing of such charge. R. S. 0. c. 177, s. U.

817. If any person so summoned or required or bound, as aforesaid,
neglects or refuses to attend in pursuance of such summons or recognizance, and
if proof is given of such person having been duly summoned, as hereinafter
mentioned, or bound by recognizance, as aforesaid, either of the justices before
whom any such person should have attended may issue a warrant to coijipel
his appearance as a witness. R. S. C. o. 177, s. 12.

818. Every summons is& eel >r*°v the authority of this part may be
served by delivering a copy thereci ' h person, or to some inmate, a/ipar-
ently over sixteen years of age, at si. h ^ -m's usual place of abode, and every
person so required by any writing under the hand or hands of any justice or
justices to attend and give evidence as aforesaid, shall be deemed to have been
duly summoned. R. S. C. c. 177, s. 13.

81JI. If the justices, upon the hearing of any such case, deem the offence
not proved, or that it is not expedient to inftict any punishment, they shi
dismiss the persoi. charged, — in the latter case on his finding sureties for his
future good behaviour, and in the former case without sureties, and then make
out and deliver to the person charged a certificate in the form TT in schedule
one to this Act, or to the like effect, under the hands of such justices, stating
the fact of such dismissal. R. S. C. c. 177. s. 14.

FORMS UNDER PART LVI.

TT.— {Section 819.)

CERTIFICATE OF DISMISSAL.

Canada, ^ , justices of

Province of , j- the peace for the of

County of . J , {or if a recorder,

etc., I, a , of tlie of , as tkcase

may be), do hereby certify that on the day of >

[Sees. 815-819

a jury, the juBtioes shall
lection having been made.

,n3, require the attendance
r case before two justices.
)laoe to be named in such

ind by recognizance every
ed, touching the matter of
,inted by him and then and
vrge. R.S.0.0.177. S.11.

red or bound, as aforesaid,
immons or recognizance, and
y summoned, as hereinafter
1 eitherof the justices before
iV issue a warrant to coippel
12.

thority of this part may be
1 or to some inmate, a])par-
ual place of abode, and every

,nd or hands of any justice or
'shall be deemed to have been

Ly such case, deem the offence

It any punishment, they shall
on his finding sureties for his
ithout sureties, and then make
se in the form TT in schedule
lands of such justices, stating

Sec. 820]

TRIAL OF JUVENILE OFFENDERS.

895

LVI.

Imissal
the

, justices of

, {or if « recorder,

, as the crt««

day of

in the year , at , in the said of ,

A. B. was brought before us the said justices {or me, the said
), charged with the following offence, that is to say
{here state briefly the particulars of the charge), and that we, the
said justices, {or I, the said ), thereupon dismissed the

said charge.

Given under our hands and seals {or my hand and seal) this

said.

day of

, in the year

, at

J. P,
J. rt.

or S. J.

afore-

[SEAL.]

[seal.]
[seal.]

830. The justices before whom any person is summarily convicted of any
offence hereinbefore mentioned, may cause the conviction to be drawn up in
the form UU in schedule one hereto, or in any other form to the same effect,
and the conviction shall be good and effectual to all intents and purposes.

2. No such conviction shall be quashed for want of form, or be removed by
ctriiorari or otherwise into any court of record ; and no warrant of commit-
ment shall be held void by reason of any defect therein, if it is therein alleged
that the person has been convicted, and there is a good and valid conviction to
sustain the same. R. S. C. c. 177, ss. 16 & 17.

,in
A. B.

■{J}].— {Section 820.)

CONVICTION
Canada,
Province of
County of » J

Be it remembered that on the day of

the year , at , in the county of

is convicted before us, J. P. and J. B., justices of the peace for
the said county {or me, S. J., recorder, of the , of ,

or ai the case may he) for that he, the said A. B., did {specify the
ojf'ence and the time and place when and where tlie same was com-
mitted, as the case may be, but without setting forth the evidence),
and we, the said J. P. and J. B. {or I, the said S. J.), adjudge
the said A. B., for his said offence to be imprisoned in the

, {or to be imprisoned in the , and there kept at hard

labour), for the space of, {or we) {or I) adjudge the said

A. B., for his said offence, to foifeit and pay {hei'e state the penalty

^Wffi^™

896

PROCEDURE.

[Sees. 821-825

actualhj imposed), and in default of immediate payment of the
said sum, to be imprisoned in the , (or to be imprisoned

in the , and kept at hard labour) for the term of ,

unless the said sum is sooner paid.

Given under our hands and seals {or my hand and seal) the
day and year first above mentioned.

J. P. [seal.]

J. B. [seal.]

or S. J. [seal.]

831. Every person who obtains such certificate of dismissal, or is so
convicted, shall be released from all further or other criminal proceedings for
the same cause. R. S. C. c. 177, s. 15.

832. The justices before whom any person is convicted under the pro-
visions of this part shall forthwith transmit the conviction and recognizances
to the clerk of the peace or other proper officer, for the district, city, county or
union of counties wherein the offence was committed, there to be kept by the
proper oflBcer among the records of the court of General or Quarter Sessions of
the Peace, or of any other court discharging the functions of a court of General
or Quarter Sessions of the Peace. R. S. C. o. 177, s. 18.

823. Every clerk of the peace, or other proper officer, shall transmit to
the Minister of Agriculture a quarterly return of the names, offences and
punishments mentioned in the convictions, wth such other particulars as are,
from time to time, required. R. S. C. c. 177, s. 19.

884. No conviction under the authority of this part shall be attended
with any forfeiture, except such penalty as is imposed by the sentence ; but,
whenever any person is adjudged guilty under the provisions of this part, the
presiding justice may order restitution of property in respect of which the
offence was committed, to the owner thereof or his representatives.

See s. 838, post.

2. If such property is not then forthcoming, the justices, whether they
award punishment or not, may inquire into and ascertain the value thereof in
money ; and, if they think proper, order payment of such sum of money to the
true owner, by the person convicted, either at one time or by instalments, at
such periods as the justices deem reasonable.

3. The person ordered to pay such sum may be sued for the same as a debt
in any court in which debts of the I'ko amount are, by law, recoverable, with
costs of suit, according to the practice of such court. R. S. C. c. 177, ss. 20, 21
&22.

[Parliament, by this enactment, assumes the right to give a right of actiw
in the civil courts against minors.

835. Whenever the justices adjudge any offender to forfeit and pay a
pecuniary penalty under the authority of this part, and such penalty is not
forthwith paid they may, if they deem it expedient, appoint some future day

Seoa. 826-828] TRIAL OF JUVENILE OFFENDERS.

897

my hand and seal) the

of thi8 part shall be attended
imposed by the sentence; but,

the provisions of this part, the
[perty in respect of which the
his representatives.

Ing, the justices, whether they
I ascertain the value thereof in
Btof 8uch sun of money to the
[one time or by instalments, at

.be sued for the same as a debt

are, by law, recoverable, ^v.t

Ut. R.S.C.C. 177, 88.20,-1

right to give a right of adm

y offender to forfeit and pap
1 part, and such penalty IS n«
Ifent appoint some futnre day

for the payment thereof, and order the offender to be detained in safe custody
until the day so appointed, unless such offender gives security to'the satisfac-
tion of the justices, for his appearance on such day ; and the justice {justices ?)
may take such security by way of recognizance or otherwise in their discretion.
2. If at any time so <*ppolnted such penalty has not been paid, the same or
any other justices of the peace may, by warrant under the;, liands and seals,
commit the offender to the common gaol or other place of confinement within
their jurisdiction, there to remain for any time not exceeding three months>
reckoned from the day of such adjudication. R. S. 0. c. 177, ss. '23 & 24.

S26' The justices before whom any person is prosecuted or tried for any
offence cognizable under this part may, in their discretion, at the request of the
prosecutor or of any other person who appears on recognizance or summons to
prosecute or give evidence against such person, order payment to the prosecu-
tor and witnesses for the prosecution, of such sums as to them seem reasonable
and sufficient, to reimburse such prosecutor and witnesses for the expenses they
have severally incurred in attending before them, and in otherwise carrying on
Buch prosecution, and also to compensate them for their trouble and loss of
time therein, — and may order payment to the constables and other peace
officers for the apprehension and detention of any person so charged.

2. The justices may, although no conviction takes place, order all or any
of the payments aforesaid to be made, when they are of opinion that the per-
sons, or any of them, have acted in good faith. R. S. C. c. 177, ss. 25 & 26.

8^1- Every fine imposed under the authority of this part shall be paid
and applied as follows, that is to say : —

(a) In the Province of Ontario to the justices who impose the same or the
clerk of the county court, or the clerk of the peace, or other proper officer, as
the case may be, to be by him or them paid over to the county treasurer for
county purposes ;

(6) In any new district in the province of Quebec to the sheriff of such dis-
trict as treasurer of the building and jury fund for such district to form part oi
such fund, and in any other district in the province of Quebec to the protho-
notary of such district, to be applied by him, under the direction of the
Lieutenant-Governor in Council, towards the keeping in repair of the court-
house in such district or to be added by him to the moneys or fees collected by
hira for the erection of a court-house or gaol in such district, so long as such
fees are collected to defray the cost of such erection ;

(d) In the provinces of Prince Edward Island, Manitoba and British
Columbia to the treasurer of the province. R. S. C. c. 177, s. 27.

828. The amount of expenses of attending before the justices and the
compensation for trouble an d loss of time therein, and the allowances to the
constables and other peace officers for the apprehension and detention of the
offender, and the allowances to be paid to the prosecutor, witnesses and con-
stables for attending at the trial or examination of the offender, shall be ascer-
tained by and certified under the hands of such justices ; but the amount of
Crim. Law — 57

898

PROCEDURE.

.i...i.

[Sees. 829-832

the costs, charges and expenses attending any such prosecution, to be allowed
and paid as aforesaid, shall not in any one case exceed the sum of eight dollars.
2. Every such order of payment to any prosecutor or other person, after
the amount thereof has been certified by the proper justices of the peace as
aforesaid, shall be forthwith made out and delivered by the said justices or
one of them, or by the clerk of the peace or other proper officer, as the case
may be, to such prosecutor or other person, upon such clerk or officer bein<j
paid his lawful fee for the same, and shall be made upon the officer to whom
fines imposed "under the authority of this part are requi:-^ to ' paid over in
the district, city, county or union of counties in whi( .le . '3 was com-
mitted, or was supposed to have been committed, who, upon . ^ i of every
such order, shall forthwith pay to the person named therein, or to any other
person duly authorized to receive the same on his behalf, out of any moneys
received by him under this part, the money in such order mentioned, and he
shall be allowed the same in his accounts of such moneys. R. S. C. o. 177, ss.
28&29.

820* The provisions of this part shall not apply to any offence com-
mitted in the provinces of Prince Edward Island or British Columbia, or the
district of Keewatin, punishable by imprisonment for two years and upwards ;
and in such provinces and district it shall not be necessary to transmit any
recognizance to the clerk of the peace or other proper officer. R. S. C. c. 177,
8.30.

830* The provisions of this part shall not authorize two or more justices
of the peace to sentence offenders to imprisonment in a reformatory in the
province of Ontario. R. S. C. c. 177, s. 31.

S31. Nothing in this part shall prevent the summary conviction of any
person who may be tried thereunder before one or more justices of the peace,
for any offence for which he is liable to be so convicted under any other part
of this Act or under any other Act. R. S. 0. c. 177, s. 8, part.

PART LVII.

COSTS AND PECUNIARY COMPENSATION-RESTITUTION OF

PROPERTY.

83/8. Any court by which and any judge under Part LIV. or magistrate
under LV. by whom judgment is pronounced or recorded, upon the conviction
of any person for treason or any indictable offence, in addition to such sen-
tence as may otherwise by law be passed, may condemn such person to the
payment of the whole or any part of the costs or expenses incurred in and
about the prosecution and conviction for the offence of which he is convicted,

[Sees. 829-832

aaecution, tobeaUowed
she sum of eight doUars.

,r or other person, after
justices of the peace as
I by the said jvistices or
iroper officer, as the case
oh clerk or officer beins
upon the officer to whom
.ui:-Hjto' paid over in
• -^Q -3 was com-

wno, apon . _ i of every
d therein, or to any other
)ehalf , out of any moneys
1 order mentioned, and he
neys. R.S.C. 0.177, 88.

,pply to any offence com-
r British Columbia, or the
or two years and upwards;
necessary to transmit any
>er officer. R. S. C. c. 177,

ithorize two or more justices
,nt in a reformatory in the

summary conviction of any
rmore justices of the peace,
[victed under any other part

n, s. 8, part.

Sees. 833-834]

COSTS

899

ON-KESTITUTION

der Part LIV. or magistrate
Uorded, upon the conviction
Le, in addition to such sen.

Condemn such person to
or expenses incurred in and
„ce of which he is convicted,

if to such court it seems fit so to do ; and the payment of such costs and
expenses, or any part thereof, may be ordered by the court to be made out of
any moneys taken from such person on his apprehension (if such moneys are
his own), or may be enforced at the instance of any person liable to pay or
who has paid the same in such and the same manner (subject to the provisions
of this Act) as the payment of any costs ordered to be paid by the judgment
or order of any court of competent jurisdiction in any civil action or proceed,
ing may for the time being be enforced : Provided, that in the meantime, and
until the recovery of such costs and expenses from the person so convicted as
,,<. "ici, or from his estate, the same shall be paid and provided for in the
a_.ne manner as if this section had not been passed ; and any money which is
recovered in respect thereof from the person so convicted, or from his estate,
shall be applicable to the reimbursement of any person or fund by whom or out
of which such costs and expenses have been paid or defrayed : 33-34 V. (U. K.)
c. 23, s. 3.

Part LIV. is comprised between ss. 762 and 781, antey
speedy trials of indictable olfences ; and Part LV. between
88. 782 and 808, summary trial of indictable offences.

This section is new. The only case where costs could
previously be allowed in a criminal case was in assault by
8. 248, B. S. C. c. 174: see post, s. 834.

See K. V. Roberts, 12 Cox, 574.

Costs against a Prosecutor in a Case op Libel.

833* In the case of an indictment or information by a private prose-
cutor for 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. R. S. C. c. 174, ss. 153 & 154.

See ante, under s. 302. The costs against a defendant
are provided for by the preceding section.

Costs on Conviction for Assault.

834. If a person convicted o- . an indictment for assault, whether with-
er \vithout battery and wounding, is ordered to pay costs as provided in section
eight hundred and thirty-two he shall be liable unless the said costs are sooner
paid, to three months' imprisonment, in addition to the term of imprisonment,
if any, to which he is sentenced for the offence, and the court may, by warrant
in writing, order the amount of such costs to be levied by distress and sale of
the goods and chattels of the offender, and paid to the prosecutor, and the
surplus, if any, arising from such sale, to the owner ; and if such sura is so
levied, the offender shall be released from such imprisonment, R. S. C. c. 174,
83. 248 & 249 24-25 V. c. 100, ss. 74, 75 (Imp.).

. •(

,'!.

900

PROCEDURE.

[Sees. 835, 836

Taxation of Costs. {Xew).

S3S. Any costs ordered to be paid by a court pursuant to the foregoing
provisions shall, in case there is no tariflf of fees provided with respect to
criminal proceedings, be taxed by the proper officer of the court according to
the lowest scale of fees allowed in such court in a civil suit.

2. If such court has no «!ivil jurisdiction the fees shall bo those allowed in
civil suits in a superior court of the province according to the loicest scale.

Compensation for Loss of Property.

S36< A court on the trial of any {lerson on an indictment may, if it
thinks fit, upon the application of a7ij/ person aggrieved and immediately after
the conviction of the offender, award any sum of money, not exceeding one
thousand dollars, by way of satisfaction or compensation for any loss of profjerty
suffered by tlie cqipUcant through or by means of the offence of which such
person is so convicted ; and the amount awarded for such satisfaction or com-
pensation shall be deemed a judgment debt due to the person entitled to
receive the oame from the person so convicted, and the order for payment of
such amount may be enforced in such and the same manner as in the case of
any costs ordered by the court to be paid under section eight hundred and
thirty-two. 33-34 V. (U.K.) c. 23, s. 4.

" Property " defined, s. 3.

This section is new. It enables any person aggrieved
to get a judgment from the court, without a jury, for any
amount up to one thousand dollars against the party con-
victed, even where that court has no jurisdiction in civil
matters.

" The discretionary power given by this section is far
more extensive than the power conferred by 24 & 25 V. c. 96,
s. 100 (s. 838, post), and if it is exercised in every case to
which it may in strictness be applicable, will compel a
criminal court at the close of many trials for felony to enter
upon complicated inquiries involving the expenditure of a
large amoin^t of time and labour."

"It is probable, however, that criminal courts will
decline to exercise the powers thus conferred upon them
except in very simple cases, and will, in the majority of
instances, leave the applicant to enforce his rights by the
ordinary civil procedure."

"In the case of serious personal injuries, caused by a
felonious act, no compensation could be awarded under this
section in respect of the personal injuries. Aud even

Sees. 837, 838]

COMPEN .iTION.

901

jy this section is far
led by 2-1 & 25 V.c. 96,
Iciaed in every case to
[cable, will compel a
]ial8 for felony to enter
the expenditure of a

criminal courts will
conferred upon them
In, in the majority of
arce his rights by tlie

. injuries, caused by a
[be awarded under thi8

injuries. And even

where the personal injuries, caused by the felonious act,
had incapacitated the prosecutor from earning his liveli-
hood, it would seem that this would not be such a loss of
property as would form the subject of compensation under
this section " : Archbold.

Compensation to Purchaser op Stolen Property.

gSI' When any prisoner has been convicted, either summarily or other-
wise, of any theft or other offence, inohiding the stealinff or unlawfully obtain-
ing any property, and it appears to the court, by the evidence, that the prisoner
sold such property or part of it to any person who had no knowledge that it
was stolen or unlawfully obtained, and that money has been taken from the
prisoner on his apprehension, the court may, on application of such purch' ^er
and on restitution of the property to its owner, order that out of the money so
taken from the prisoner (if it is his) a sum not exceeding the amount of the
proceeds of the sale be delivered to such purchaser. R. S. C. c. 174, s. 251.

The words in italics are new. They are in conformity
with the remarks of the judges in R. v. Roberts, 12 Cox,
574.

The Imperial Act is 30 & 31 V. c. 35, a. 9. The
Imperial Act does not expressly provide for the case of
goods obtained by false pretenses. The section provides
frr the case of a sale only of the stolen property : see R. v.
Stancliffe, 11 Cox, 318 ; R. v. Roberts, 12 Cox, 574. .

Restitution ob" Stolen Property. {As amended in 1893).

838. If any person who is guilty of any indictable offence in stecding, or
hwwiii'jly rcceiciny, any property is indicted for such offence, by or on behalf
of the owner of the property, or his executor or administrator, and convicted
thereof, or is tried before a judge or justice for such offence under any of the
foregoing provisions and convicted thereof, the property shall be restored to
the owner or his representative.

2. In every such case the court or tribunal before which such person is
tried for any such offence shall have power to award, from time to time, writs
of restitution for the said property or to order the restitution thereof in a
summary manner ; and the court or tribunal may also, if it sees fit, a^vard
restitution of the property taken from th€ prosecutor, or any imtness for the
prosecution, by such offence although the person indicted is not convicted thereof if
the jury declares, as it may do, or if, in case the offender is tried without a jury, it
is proved to the satisfaction of the court or tribunal by whom he is tried, that such
prvperty belongs to such prosecutor or icitnesa, and that he was unlawfully deprived
(if it btj such offence.

3. If it appears before any award or order is made, that any valuable
security has been bi.ma fide paid or discharged by any person liable to the

902

PROCEDURE.

[Sec. 838

payment thereof, or, being a negotiable instrument, has been bonajiile taken or
received by transfer or delivery, by any i)er8on, for a just and valuable coiwi.
deration, without any notice or without any reasonable cause to suspect that
the same had, fcy ani/ indictable offence, been stolen, or if it appears that the
property stolen has been trans/erred to t /i innocent purchaser for value ivho han
acquired a laviful title thereto, the court or tribunal shall not award or order tlie
restitution of such security or property.

4. Nothing in this section contamed shall apply to the case of any prose-
cution of any trustee, banker, merchant, attorney, factor, broker or other
agent intrusted with the possession of goods or documents of title to goods, fur
any indictable offence under sections three hundred and twenty or three
hundred and sixty-three of this Act. R. S. C. c. 174, s. 250.

Sections 803 and 824 ante also provide for restitution
of stolen property in certain cases.

The words in italics in s-s 2 are not in the English
Act, 24 & 25 V. c. 96, s. 100.

The repealed clause covered property obtained by false
pretenses. The words in italics in s-s. S are new.

The prisoners were convicted of feloniously stealing
certain property. The judge who presided at the trial
made an order, directing that property found in the posses-
sion of one of the prisoners, not part of the property stolen,
should be disposed of in a particular manner : held, that
the order was illegal, and that a judge has no power, either
b}' common law or by statute, to direct the disposal of
chattels in the possession of a convicted felon, not belong-
ing to the prosecutor: R. v. Pierce, Bell, 235; R. v. Corpora-
tion of London, E. B. & E. 509.

The case of Walker v. Mayor of London, 11 Cox, 280,
has no application in Canada. In R. v. Stancliffe, 11 Cox,
818, it was held that the repealed section applied to cases
of false pretenses as well as felony, and that the fact that
the prisoner parted with the goods to a bona fide pawnee
did not disentitle the original owner to the restitutiou of
the goods : see 2 Russ. 355.

The court was bound by the repealed statute to order
restitution of property obtained by false pretenses and the
subject of the prosecution, in whose hands soever it was
found ; and so likewise of property received by a person

[Sec. 838

las been bona fide taken or
I just and valuable coiiHi.
ible cause to suspeci; that
or 1/ it appears that the
turchaser for value who km
lall not award or order the

J to the case of any prof<e-
r, factor, broker or other
ments of title to goods, fur
Ired and twenty or three
'4, 8. 250.

ovide for restitution

not in the English

rty obtained by false
i. 8 are new.

feloniously stealing
)re sided at the trial
V found in the posses-
)f the property stolen,
,r manner : hdd, that

has no power, either

ivect the disposal of
I ted felon, not belong-

L235; R.v. Corpora-

jondon, 11 Cox, 280,
I V. StanclilYe, 11 Cox,

Btion applied to cases
Ind that the fact that

. a bona fide pawnee
to the restitution of

paled statute to order

[ise pretenses and the

hands soever it was

Uccived by a person

Sec. 838] RESTITUTIOX OF STOLEN PROPERTY.

903

knowing it to have been stolen or obtained by fals^ pre-
tenses; but the order was strictly limited to property
identified at the trial as being the subject of the chhrge ;
therefore it did not extend to property in the possession of
innocent third persons which was not produced and identi-
fied at the trial as being the subject of the indictment : R.
V. Goldsmith, 12 Cox, 594.

An order of restitution of property stolen will extend
only to such property as is produced and identified in the
course of the trial, and not to all the articles named in the
indictment, unless so produced and ideiitified and in the
possession of the court : R. v. Smith, 12 Cox, 597.

It was held, on this clause : R. v. Atkin, 18 L. C. J. 213 ;
that the court will not give an order for the restitution of
stolen goods where the ownership is the subject of a dis-
pute in the civil courts : see R. v. Macklin, 5 Cox, 216.

Restitution can be ordered to the owner only : R. v.
Jones, 14 Cox, 528.

See 1 Hale, 543; 4 Blacks. 363.

A. Blenkarn took premises at 37 Wood street, and
wrote to the plaintiffs at Belfast ordering goods of them.
The letters were dated 37 Wood street, and signed A. Blen-
karn & Co. in such a way as to look like " A. Blenkiron &
Co.," there being an old established firm of Blenkiron &
Sons at 123 Wood street. One of the plaintiffs knew
something of that firm, and the plaintiffs entered into a
correspondence with Blenkarn, and ultimately supplied the
goods ordered, addressing them to "A. Blenkiron & Co., 37
Wood street."

The fraud having been discovered Blenkarn was indict-
ed and convicted for obtaining goods by falsely pretending
that be was Blenkiron & Sons.

Before the conviction the defendant had purchased some
of the goods bona fide of Blenkarn without notice of the
fraud, and resold them to other persons. The plaintiffs

904

PROCEDURE.

[Sec. 83i

a '

m ]&■ J

haviDg brought an action for the conversion of the goods :
Held, tha* the plaintiffs intended to^deal with Blenkiron &
Sons, and therefore there was no contract with Blenkarn ;
that the property of the goods never passed from the plain-
tiffs ; and that they were accordingly entitled to recover
in the action : Lindsay v. Cundy, 13 Cox, 583, 2 Q. B. D.
96, 3 App. Cas. 459.

The plaintiff had stolen money of the defendant, and
had been prosecuted for it but acquitted on a technical
ground. The plaintiff had, previously to the prosecution,
converted the money into goods, which were now in the
possession of the defendant as being the proceeds of the
money stolen from him by the plaintiff. The plaintiff
brought an action to claim the said goods. Held, that he
had no right of action : Cattley v. Loundes, 34 W. R. 139.

A thief's money in the hands of the police after his con-
viction is not a debt of the police to the thief, and cannot
be attached under garnishee proceedings : Bice v. Jarvis,
49 J. P. 264.

Under this section the court can order the restitution
of the proceeds of the goods as well as of the goods them-
selves, if such proceeds are in the hands of the criminal or
of an agent who holds them for him : R. v. The Justices,
16 Cox, 143, 196.

A man was convicted of stealing cattle, which he had
sold since in market overt and had been resold immediately
also in market overt, the purchasers being in good faith.
Restitution ordered to the person from whom they had
been stolen : R. v. Horan, 6 Ir. R. C. L. 293 ; but see now
8-s. 3 of 8. 838 ante.

M. was indicted for stealing $95 in bank notes and
acquitted. He applied to have ^37 in notes, found on his
person when arrested, returned to him which the prose-
cutor resisted. The statute of P. E. I., 6 Wm. IV. c. 22,
8. 38, enacts that " when a prisoner is not convicted the
court may, if it sees fit, order restitution of the property

Sec. 838]

RESTITUTION OF STOLEN PROPERTY.

005

[g cattle, which he had

j)een resold immediately

rs being in good faith.

from whom they had

3. L. 293; but see now

where it clearly appears to have been stolen from the
owner. When arrested prisoner had the money sewed up
in his trousers, and among the notes was a $5 note, bank
of N. B., $5 note, bank of Halifax, and a $5 note, bank of
Montreal. Prisoner said he put the money there to hide
it from the police. Prosecutor had sworn that he had
carefully counted the money before the robbery, and that
it included a $5 bank of N. B. note, and a $5 bank of Hali-
fax note.

Held, that the evidence was not sufficient to identify
, le notes as the prosecutor's, and the application must be
granted : The Queen v. Mclntyre, 2 P. E. I. Piep. 154.

A leading case on th's section in England is now Vil-
mont V. Bontley, 1 i; App. Cas. 471, Warb. Lead. Clas. 256»
which, however "i nuot be followed in Canada under s-s. S
of 8. 838, 'Uite.

}5 in bank notes aud
in notes, found on his
him which the prose-
J. I., 6 Wm. 1V.C.22,
[r is not convicted the
kution of the property

906

PROCEDURE.

[Sees. 839-841

■■)

PART LVIII.

SUMMARY CONVICTIONS.

8 39. In this part, unless the context otherwise requires —

(a) 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 a
XX)lice magistrate, a stipendiary magistrate and any person having the power
or authority of two or more juscices of the peace ;

(b) the expression "clerk of the peace" includes the proper officer of the
court having jurisdiction in appeal under this part, as provided by section
eight hundred and seventy-nine ;

(c) the expression "territorial division" means district, county, union of
counties, township, city, town, parish or other judicial division or place ;

(d) the expression "district" or "county" includes any territorial or
judicial division or place in and for which there is such judge, justice, justice's
court, officer or prison as is mentioned in the context :

(e) the expression "common gaol" or "prison" means any place otiier
than P' penitentiary in which persons charged with offences are usually kept
and detained in custody. R. S. C. c. 178, s. 2.

S40. Subject to any special provision otherwise enacted with respect to
such offence, act or matter, this part shall apply to —

(a) every case in which any person commits, or is suspected of having
committed, any offence or act over which the Parliament of Canada has legis-
lative authority, and for which such person is liable on summary conviction to
imprisonment, fine, penalty or other punishment ;

{b) every case in which a complaint is made to any justice in relation to
any matter over which the Parliament of Canada has legislative authority,
and with respect to which such justice has authority by law to make any
order for the payment of money or otherwise. R. S. C. c. 178, s. 3.

841. In the case of any offence punishable on summary conviction if no
time is specially limited for making any complaint, or laying any information
in the Act or law relating to the particular case, the complaint shall be made,
or the information shall be laid within six months from the time when the
matter of complaint or information arose, except in the North-west Territories,
where the time within which such complaint may be made, or such information
may be laid, shall be extended to twelve months from the time when the
matter of the complaint or information arose. 52 V. c. 45, s. 4.

The repealed clause extended the limitatiou of twelve
months to the territory east of Portneuf on the north shore
of the St. Lawrence.

[Sees. 839-841

Sees 842,843]

SUMMARY CONVICTIONS.

907

3 requires—

he peace and includes two
ve jurisdiction, and also a
r person having the power

s the proper officer of the
rt, as provided by section

3 district, county, union of

cial division or place ;

ncludes any territorial or

inch judge, justice, justice's

xt:

on " means any place other

ih offences are usually kept

nse

enacted with resjiect to

L or is suspected of having
lament of Canada has legis-
e on summary conviction to

lo any justice in relation to
la has legislative authority,

lority by law to make any

S. C. c. 178, s. 3.

Ln summary conviction if no
t, or laying any information
ho complaint shall be made,
hs from the time when the
1 the North-west Territories,
ye made, or such information
hs from the time when the
|V. c. 45, 8. 4.

limitation of twelve
luf on the north shore

§43. Every complaint and information shall be heard, tried, determined
and adjudged by one justice or two or more justices as directed by the Act or
law upon which the complaint or information is framed or by any other Act or
law in that behalf.

2. If there is no such direction in any Act or law then the complaint or
information may be heard, tried, determined and adjudged by any one justice
for the territorial division where the matter of the complaint or information
arose : Provided that every one who aids, abets, counsels or procures the com-
mission of any offence punishable on summary conviction, may be proceeded
against and convicted either in the territorial division or place where the prin-
cipal offender may be convicted, or in that in which the offence of aiding,
abetting, counselling or procuring was committed.

3. Any one justice may receive the information or complaint, and grant a
summons or warrant thereon, and issue his summons or warrant to comi^el the
attendance of any witnesses for either party, and do all other acts and matters
necessary preliminary to the hearing, even if by the statute in that behalf it is
provided that the information or complaint shall be heard and determined by
two or more justices.

4. After a case has been heard and determined one justice may issue all
warrants of distress or commitment thereon.

5. It shall not be necessary for the justice who acts before or after the
hearing to be the justice or one of the justices by whom the case is to be or was
heard and determined.

G. If it is required by any Act or law that an information or complaint
shall be heard and determined by two or more justices, or that a conviction or
order shall be made by two or more justices, such justices shall be present and
acting together during the whole of the hearing and determination of the case.

8. No justice shall hear and determine any case of assault or battery, in
which any question arises as to the title to any lands, tenements, heredita-
ments, or any interest therein or accruing therefrom, or as to any bankruptcy
or insolvency, or any execution under the process of any court of justice.
R. S. C. c. 178, ss. 4, 5, 6, 7, 8, 9, 12, and 73.

See s. 864, post, as to cases of assault.

t*43. The provisions of Parts XLIV. and XLV. of this Act relating to
compelling the appearance of the accused before the justice receiving an infor-
mation under section five hundred and fifty -eight, and the provisions resjiecting
the attendance of witnesses on a preliminary inquiry and the taking of evidence
thereon, shall, so far as the same are applicable, except as varied by the sec-
tions immediately following, apply to any hearing under the provisions of this
part : Provided that whenever a warrant is issued in the first instance against
a person charged with an offence punishable under the provisions of this part,
the justice issuing it shall furnish a copy or copies thereof, and cause a copy to
be served on the person arrested at the time of such arrest.

2. Nothing herein contained shall oblige any justice to issue any summons
|to procure the attendance of a t)er8on charged with an offence by information
laid before such justice whenever the application for any order may, by law, be
made ex parte. R. S. C. c. 178, ss. 13 to 17 and 21. Qucvve i

*>■''

i.r^

■<■,■ i

908

PROCEDURE.

[Sees. 844-847

M*;':.

844. The provisions of section five hundred and sixty-five relatinj? to the
endorsement of warrants shall apply to the case of any warrant issued under
the provisions of this part against the accused, whether before or after convic-
tion, and whether for the apprehension or imprisonment of any such person.
R. S. C. c. 178, s. 22. 52 V. c. 45, s. 4.

845. It shall not be necessary that any complaint upon which a justice
may make an order for the payment of money or otherwise shall be in writing,
unless it is so required by some particular Act or law upon which such com-
plaint is founded.

2. Every complaint upon which a justice is authorized by law to make an
order, and every information for any offence or act punishable on summary
conviction, may, unless it is herein or by some particular Act or law otherwise
provided^ be made or had without any oath or affirmation as to the tinith
thereof.

3. Every complaint shall be for one matter of complaint only, and not for
two or more matters of complaint, and every information shall be for one
offence only, and not for two or more offences ; and every complaint or infor-
mation may be laid or made by the complainant or informant in person, or by
his counsel or attorney or other perscm authorized in that behalf. R. S. C.
c. 178, ss. 23, 24 and 26.

New.

840. No information, complaint, warrant, conviction or other proceeding
under this part shall be deemed objectionable or insufficient on any of the followiwj
grounds ; that is to say :

(a) that it does not contain the name of the person injured, or intended or
attempted to be injured ; or ,

(b) that it docs not state who is the owner of any property therein mentioned;
or

(d) that it dots not name or describe with precision any person or thing :

Providcil that the justice may, if satisfied that it is necessary for a fair trial,
order that a part'cular further describing such means, person, place or thitvibe
furnished by the prosecutor,

847. No objection shall be allowed to any information, complaint, sum-
mons or warrant for any alleged defect therein, in substance or in form, or for
any variance between such information, complaint, summons or warrant and
the evidence adduced on the part of the informant or complainant at the hearin?
of such information or complaint.

2. Any variance between the information for any offence or act punishable
on summary convicticm and the evidence adduced in supjjort thereof as to the
time at which such offence or act is alleged to have been con>mitted, shall not
be deemed material if it is proved that such information was, in fact, laid
within the time limited by law for laying the same.

3. Any variance between the information and the evidence adduced in^
support thereof, as to the place in which the offence or act is alleged to have
been committed, shall not be deemed material if the offence or act is proved to

[Sec8. 844-847

id sixty-five relating to the

any warrant issued under

bher before or after convic-

inment of any such person.

plaint upon which a justice
therwise shall be in writing,
law upon which such com-

thorized by law to make an
act punishable on summary
ticular Act or law otherwise
affirmation as to the truth

; complaint only, and not for
information shall be for one
,nd every complaint or infor-
or infonnantin person, or by
sed in that behalf. R. S. C.

conviction or other proceeding
tufficient on any of the foUowiwj

wrson injured, or intciuled or

\ny property therein vientioM;

the offence ^eas committed ; or
[sion any person or thing :

it is iieccssary for a fair trial,
[earn, person, place or thitvtU

i information, complaint, sum-
L substance or in form, or for
tint, summons or warrant and
t or complainant at the hearini;

Ir any offence or act punishable
Id in support thereof as to the
Jave been committed, Bhall not
Information was, in fact, laid

line.

land the evidence adduced in^

VnceoractisalleRedtohave

: the offence or act is proved to

Sees. 848-853]

SUMMARY CONVICTIONS.

909

have been committed within the jurisdiction of the justice by whom the
information is heard and determined.

4. If any such variance, or any other variance between the information,
complaint, summons or warrant, and the evidence adduced in support thereof,
appears to the justice present and acting at the hearing to be such that the
defendant has been thereby deceived or misled, the justice may, upon such .
terms as he thinks fit, adjourn the hearing of the case to some future day.
R.S.C. c. 178, 8. 28.

848» A summons may be issued to procure the attendance, on the head-
ing of any charge under the provisions of this part, of a witness who resides
out of the jurisdiction of the justices before whom such charge is to be heard,
and such summons and a warrmit issued to procure the attendance of a witness,
whether in consequence of refusal by such witness to appear in obedience to a
summons or otherwise, may be resijcctively served and executed by the con-
stable or other peace officer to whom the same is delivered or by any other
person, as well beyond aw within the territorial division of the justice who
issued the same. 51 V. c. 45, ss. 1 & 3.

849« The room or place in which the justice sits to hear and try any
complaint or information shall be deemed an open and public court, to which
the public generally may have access so far as the same can conveniently
contain them. R. S. C. c. 178, s. 33.

850. The person against whom the complaint is made or information
laid shall be admitted to make his full answer and defence thereto, and to have
the witnesses examined and cross-examined by counsel or attorney on his
behalf.

2. Every complainant or informant in any such case shall be at liberty to
conduct the complaint or information, and to have the witnesses examined
and cross-examined, by counsel or attorney on his behalf. R. S. C. c. 178,
8s. 34 & 35.

851. Every witness at any hearing shall be examined upon oath oi-
affirmation, and the justice before whom any witness appears for the purpose
of being examined shall have full power and authority to administer to every
witness the u.sual oath or aflirmation. R. S. C. c. 178, s. 30.

Sections 37 and 38 of c. 178 are left out.

853. If the information c complaint in any case negatives any exemp-
tion, exception, proviso or condition in the statute on which the same is
founded it shall not be necessary for the prosecutor or complains^ut to prove
such negative, but the defendant may prove the affirmative t.. ■eof in his
defence if he wishes to avail himself of the same. R. S. C. c. 178, 47.

§53. In case the accused does not appear at the time and place appointed
by any summons issued by a justice on information before him of the com-
mission (if an offence punishable on summary conviction, then if it apiiears to
the satisfaction of the justice that the summons was duly served u reasonable
time before the time apiwinted for appearance, such justice may proceed w
parte to hear and detennine the case in the absence of the defendant, as fully

*Li

910

PROCEDURE.

[Sees. 854-8

and effectually, to all intents and purposes, aj if the defendant had personal
appeared in obedience to such summons, or the justice may, if he thinks fi
issue his warrant as provided by section five hundred and sixty-throe of th
Act and adjourn the hearing of the complaint or information until the defem
ant is apprehended. R. S. C. c. 178, s. 39. ,

854- If, upon the day and at the place so appointed, the defendat
appears voluntarily in obedience to the summons in that behalf served upo
him, or is brought before the justice by virtue of a warrant, then, if the con
plainant or informant, having had due notice, does not appear by himself, hi
counsel or attorney, the justice shall dismiss the complain': or informatioi
unless he thinks proper to adjourn the hearing of the same until some other da
upon such terms as he thinks fit. R. S. C. c. 178, s. 41.

855. If both parties appear, either personally or by their respectiv*
counsel or attorneys, before the justice who is to hear and determine the com
plaint or information, such justice shall proceed to hear and determine the same.
R. S. C. c. 178, s. 42.

856- If the defendant is present at the hearing the substance of the
information or complaint shall be stated to him, and he shall be asked if he has
any cause to show why he should not be convicted, or why an order should not
be made against him, as the case may be.

2. If the defendant thereupon admits the truth of the information or com-
plaint, and shows no sufiBcient cau /? why he should not be convicted, or why
an order should not be made against him, as the case may be, the justice
present at the hearing shall convict him or make an order against him accord-
ingly.

3. If the defendant does not admit the truth of the information or com-
plaint, the justice shall proceed to inquire into the charge and for the purposes
of such inquiry shall take the evidence of witnesses both fo" the complainant
and accused in the manner provided by Part XL V. in the case of a prelimimry
inquinj ; Provided that the prosecutor or complainant is not entitled to ghe
evidence in rejJly if the defendant has not adduced any evidence other than aslo
his general character; provided further, that in a hearing under this section the
ioitnesses need not sign tlieir depositions. R. S. C. c. 178, ss. 43, 44, 45 & 46.

857. Before or during the hearing of any information or complaint the
justice may, in his discretion, adjourn the hearing of the same to a certain time
or place to be then appointed and stated in the presence and hearing of the
party or parties, or of their resijective solicitors or agents then present, but no
such adjournment shall be for more than eight days.

2. If, at the time and place to which the hearing or further hearing is
adjourned, either or both of the parties do not appear, personally or by his or
their counsel or solicitors resiiectively, before the justice or such other justice
as shall then be ther«, the justice who is then there may proceed to the hearing
or further hearing as if the party or parties were present.

3. If the prosecutor or complainant does not appear the justice may dismiss
the information, with or without costs, as to him seems tit.

[SeoB. 854-857

the defendant had personally
justice may, if he thinks fit,
idred and sixty-throe of this
information until the defend-

so appointed, the defendant
18 in that behalf served upon
f a warrant, then, if the com-
068 not appear by himself, his
the complain': or information
the same until some other day
8, 8. 41.

sonally or by their respective
o hear and determine the com-
lo hear and determine the same,

, hearing the substance of the
,, and he shall be asked if he has
(ted, or why an order sViouldnot

;ruth of the information or com-
ihould not be convicted, or why
s the case may be, the justice
[ke an order against him accord-

rath of the information or com-
the charge and for the purposes
lesses both fo' the complainant
\LV. in the ca.se of a preKmiMPj
\plainant is not entitled to jiie
led any evidence other than ask
\i a hearing under this section ifo
|C. c. 178, ss. 43, 44, 45 & 46.

ly information or complaint the
Ing of the same to a certain time
Tthe presence and hearing of the
Is or agents then present, but no
|dayB.

hearing or further hearing is
,,; appear, personally or by his ot

Ihe justice or such other jnstice

Ihere may proceed to the heamg

Ire present.

It appear the justice may disffiUs

|m seems tit.

Sees. 858, 859]

SUMMARY CONVICTIONS.

911

4. Whenever any justice adjourns the hearing of any case he may suffer
the defendant to go at large or may commit him to the common gaol or other
prison within the territorial division for which such justice is tlien acting, or
to such other safe custody as such justice thinks fit, or may discharge the
defendant upon his recognizance, with or without sureties at the discretion of
such justice, conditioned for his appearance at the time and place to which
such hearing or further hearing is adjourned.

5. Whenever any defendant who is discharged upon recognizance, or
allowed to go at large, does not appear at the time mentioned in the recog-
nizance, or to which the hearing or further hearing is adjourned, the justice
may issue his warrant for his apprehension. R. S. C. c. 178, ss. 48, 49, 50 & 51.

858. The justice, having heard what each party has to say, and the
witnesses and evidence adduced, shall consider the whole matter, and, unless
otherwise provided, determine the same and convict or make an order against
the defendant, or dismiss the information or complaint, as the case may be.
R. S. C. c. 178, 8. 52.

850* If the justice convicts or makes an order against the defendant a
minute or memorandum thereof shall then be made, for which no fee shall be
paid, and the conviction or order shall afterwards be drawn up by the justice
on parchment or on paper, under his hand and seal, in such one of the forms
of conviction or of orders from VV to AAA inclusive in schedule one to this
Act as is applicable to the case or to* the like efif act. R. S. C. c. 178, s. 53.

FORMS UNDER PART LVIII.

\\, ^(Section 859).

CONVICTION FOR A PENALTY TO BE LEVIED BY DISTRESS
AND IN DEFAULT OF SUFFICIENT DISTRESS, BY
IMPRISONMENT.

Canada, ")

Province of
County of

Be it remembered that on the day of , in

the year , at , in the^said county, A. B. is con-

victed before the undersigned, a justice of the peace for the said
county, for that the said A. B. (etc., statmj the o fence, and the
time and place when and uhere committed ), and I adjudge the said
A. B. for his said o£fence to forfeit and pay the sum of :$
istutintj the penalty, and also the compensation, if any), to be paid

'I ^

:fti

912

PROCEDURE.

[Sec. 85f

and applied according to law, and also to pay to the said C. D.
the sum of , for his costs in this behalf ; and if the

said several sums are not paid forthwith, (or on or before the
of next), * I order that the same be levied bv

distress and sale of the goods and chattels of the said A. B., and
in default of sufficient distress, ''' I adjudge the said A. B. to be
imprisoned in the common gaol of the said county, at
in the said county of , (there to be kept at hard labour,

if such is the sentence) for the term of , unless the said

several sums and all costs and r harges of the said distress (and
of the commitment and conveying of the said A. B. to the said
gaol) are sooner paid.

Given under my hand and seal, the day and year first above
mentioned, at , in the county aforesaid.

J. S., [seal] .

J. P., ( Name of counUj , .

* Or tvhen the issuing of a distress tear rant would be ruinom to
the defendant and his famihj, or it appears he has no goods whereun
to levij a distress, then instead of the words between the asteriskn * ''•
say, "inasmuch as it is now made to appear to me that the
issuing of a warrant of distress in this behalf would be ruinous to
the said A. B. and his family," (or, " that the said A. B. has no
goods or chattels whereon to levy the said sums by distress ").

WW.— (Section 859.)

CONVICTION FOR A PENALTY, AND IN DEFAULT OF PAY
MENT IMPRISONMENT.

Canada,
Province of
County of

Be it remembered that on the day of in the

year , at , in the said county, A. B. is convicted

before the undersigned, ^ a justice of the peace for the

said county for that he the said A. B. etc., stating the offenct,
and the time and place when and where it was committed J , and I
adjudge the said A. B. for his said offence to forfeit and pay the
sum of (stating the penalty and the compensation, if any)

to be paid and applied according to law ; and also to pay to the

Sec. 859]

SUMMARY CONVICTIONS.

918

•' ^ . [Sec. 850

0 pay to the said C. D.
his behalf ; and if the
h, {or on or before the
t the same be levied by
ts of the said A. B., and
Ige the said A. B. to be
iid county, at
be kept at hard labour,
, unless the said
of the said distress (and
lie said A. B. to the said

day and year first above

county aforesaid.
., [seal] .

r. P., (NameofcoitnUi>.
arrant would be ndnom to
rs he has no goods whereon
•ds between the asterish * ''

o appear to me that tlie
lehalf -would be ruinous to

hat the said A. B. has uo

laid sums by distress").

IN DEFAULT OF PAY
,IENT.

day of "^t^>^

(county, A. B. is convicted

Itice of the peace for the
[b. etc., .strttiHV the o/t'H«,
L it was committed), mil
jnce to forfeit andpaytiie
\lthecompemation,ifmi)
■ ; and also to pay to the

said C. D. the sum of for his costs in this behalf ; and

if the said sevei .1 sums are not paid forthwith {or, on or before
next), I adjudge the said A. B. to be imprisoned in the
common gaol of the said county, at , in the said county

of (and there to be kept at hard labour) for the term of

, unless the said sums and the costs and charges of
conveying the said A. B. to the said common gaol are sooner
paid.

Given under my hand and seal, the day and year first above
mentioned at , in the county aforesaid.

J. S., [seal.]

J. P., (Name of county ).

^i^.— {Section 859.)

CONVICTION WHEN THE PUNISHMENT IS BY IMPRISONMENT,

ETC.
Canada,
Province of
County of

Be it remembered that on the day of , in

the year , at , in the said county, A. B. is con-

victed before the undersigned, , a justice of the peace in

and for the said county, for that he the said A. B. {dc, stating-,
the offence, and the time and place when and where it tvas com-
mitted) ; 'and I adjudge the said A. B., for his said offence, to be
imprisoned in the common gaol of the said county, at , .

in the county of , (and there to be kept at hard labour)-

for the term of ; and I also adjudge the said A. B. ta^

pay to the said C. D. the sum of , for his costs in this:

behalf, and if the said sum for costs are not paid forthwith {or
on or before next,) then * I order that the said sum be

levied by distress and sale of the goods and chattels of the said
A. B. ; and in default of sufficient distress in that behalf, '^ I
adjudge the said A. B. to be imprisoned in the said common gaol
(and kept there at hard labour) for the term of , to

commence at and from the term of his imprisonment aforesaid »
unless the said sum for coats is sooner paid.
Crim. Law — 58

','' '

r-f..,.;

914

PROCEDURE.

[Sec. 859

Given under my hand and seal, the day and year first above
mentioned at , in the county aforesaid.

J. S. [seal.]

J. P., (Name of county.)

*0r when the iasmnij of a distress warrant would be ruinous to
the defendant and his family, or it appears that he has no <joods
Khereon to levy a distress, then, instead of the words between the
asterisks * * say, " inasmuch as it is now made to appear to me
that the issuing of a warrant of distress in this behalf would be
ruinous to the said A. B. and his family," {or, " that the said
A. B. has no goods or chattels whereon to levy the said sum for
costs by distress ").

YY.— Section 859.)

ORDER FOR PAYMENT OF MONEY TO BE LEVIED BY DISTRESS
AND IN DEFAULT OF DISTRESS IMPRISONMENT.

Canada,

Province of

County of

Be it remembered that on , complaint was made

before the undersigned, , a justice of the peace in and

for the said county of , for that {stating the facts entitlimj

the complainant to the order, with the time and place wlien and

where they occurred), and now at this day, to wit, on ,

at , the parties aforesaid appear before me the said

justice {or the said C. D. appears before me the said justice, but

the said A. B.. although duly called, does not appear by himself,

his counsel or attorney, and it is now satisfactorily proved to me

on oath that the said A. B. was duly served with the summons

in this behalf, which required him to be and appear here on this

day before me or such justice or justices of the peace for the

county, as should now be here, to answer the said complaint,

and to be further dealt with according to law) ; and now having

heard the matter of the said complaint, I do adjudge the said A.

B. to pay to the said C. D. the sum of forthwith {or on or

before next, or as the Act or law requires), and also to pay to

the said said C. D. the sum of for his costs in this

behalf ; and if the said several sums are not paid forthwith (or

[Sec. 859

and year first above

laid.

'seal.]

{Name of county.)

nt would be ndnous to
that he has no (joods
the tcords hetveen the

made to appear to me

1 this behalf would be
" lor, •* that the said

I levy the said sum for

; LEVIED BY DISTRESS
IMPRISONMENT.

, complaint was made
|tice of the peace in and
[stating the facts entitlwj
le and place tchen and
I, to wit, on >

,pear before me the said
jme the said justice, but
snot appear by himself,
tisfactorily proved to me
,rved with the summons ^
, and appear here on this
es of the peace for the
,er the said complaint,
plaw); and now having
k do adjudge the said A.
forthwith (or on or
,Mim), and also to pay to

for his costs m this
:e not paid forthwith (or

Sec. 859]

SUMMARY CONVICTIONS,

915

on or before next), then, =■' I hereby order that the same

be levied by distress and sale of the goods and chattels of the
said A. B. and in default of sufficient distress in that behalf * I
adjudge the said A. B. to be imprisoned in the common gaol of
the said county, at , in the said county of ,

and there kept at hard labour) for the term of , unloss

the said several sums, and all costs and charges of the said dis-
tress (and the commitment and conveyance of the said A. B.Jo
the said common gaol) are sooner paid.

Given under my hand and seal, this day of ,

in the year , at in the county aforesaid.

J. S., [seal.]

J. P., (Name of count ij.)
'^Or, H'lmi the ismintf of a distretis irarrant would he ruinous to
the defendant and his family, ur it apjwars he has no yoods wliereon
to levy a distress, tlien, instead of the words between the asterisks * *
my " inasmuch as it is now made to appear to me that the
issuing of a warrant of distress in this behalf would be ruinous
to the said A. B. and his family," (or •' that the said A. B. has
no goods or chattels whereon to levy the said sums by distress ").

ZZ.— {Section «59.)

ORDER FOR PAYMENT OF MONEY, AND IN DEFAULT OF PAY-
MENT IMPRISONMENT.

Canada,
Province of
County of

Be it remembered that on complaint was made

before the undersigned, , a justice of the peace in and

for the said county of . , for that {statiny the facts entitliny
the voiiiplainant to the order, with the time and place when and
where they occurred), and now on this day, to wit, on , at

, the parties aforesaid appear before me the said justice
{or the said CD. appears before me the said justice, but the said
A. B., although duly called, does not appear by himself, his
counsel or attorney, and it is now satisfactorily proved to me
upon oath that the said A. B. was duly served with the summons
in this hehalf, which required him to be and appear here this

fiil

916

PROCEDURE.

rSeo. Hb'J

day before me, or 3«ch justice or justices of the peace for the
said county, as should now be here, to answer to the said com-
plaint, and to be further dealt with according to law), and now
having heard the matter of the said complaint, I do adjudge the
said A. B. to pay to the eaid C. D. the sum of forthwith

{or on or before next, or as the Act or law requires), and

also to pay to the said CD. the sum of for his costs in

tkis behalf ; and if the said several sums are not paid forthwith
(or on or before next), then I adjudge the said A. B. to

be imprisoned in the common gaol of the said county at
in the said county of , (there to be kept at hard labour

if the Act ur Imv authorizes this) for the term of unless

the said several sums (and costs and charges of commitment
and conveying the said A. B. to the said common gaol) are
sooner paid.

Given under my hand and seal this day of

, in the year , at , in the county

aforesaid.

J. S., [seal. J

J. P., {Name of coxinUj).

AAA.— {Section 859.)

ORDER FOR ANY OTHER MATTER WHERE THE DISOBEYING
OF IT IS PUNISHABLE WITH IMPRISONMENT.

Canada,
Province of
County of

Be it remembered that on , complaint was made

before the undersigned, , a justice of the peace in and

for the said county of

, for that {statin;/ the facts vntitlmj

tlie complainant to the order, with the tiwe and place where and ivkn
tlu'u occurred) ; and now on this day, to wit, on , at

, the parties aforesaid appear before me the said justice
{or the said C. D. appears before me the said justice, but the
said A. B., although duly called, does not appear by himself, bis
counsel or attorney, and it is now satisfactorily proved to me,
upon oath, that the said A.B. was duly served with the summons
in this behalf, which required him to be r.nd appear here this
day before me, or such justice or justices of the peace for the said

rSec. HW

3 of the peace for the
9wev to the said com-
aing to law), and now
iaint, I do adjudge the
^ q{ forthwith

[it or law requires), and
for hi8 costs in
1 are not paid forthwith
Ijudge the said A. B. to
said county at ,

, be kept at hard labour
term of "»less

charges of commitment
said common gaol) are

J day of

in the county

,., [SEAL. J

p., (X«H?(i of county).

[here THE DISOBEYING
IMPRISO^'MENT.

, complaint was made
astice of the peace in and
lt(stathvj the fndH entitling

\e and pl<tce where and uia

to wit, on . at

before me the said justice

e the said justice, but the

[not appear by himself, his

ktisfactorily proved to me,
served with the summons

, be f.nd appear here this
.es of the peace for the said

Sees, 800, 861]

SUMMARY CONVICTIONS.

917

county, as should now be here to answer to the said complaint
and to be further dealt with according to law ; and now having
heard the matter of the said complaint, I do adjudge the said
A. B. to {ftere ntnte the matter required to he dime), and if, upon a
copy of the minute of this order being served upon the said A.B.,
either personally or by leaving the same for him at his last or
most usual place of abode, he neglects or refuses to obey the
game, in that case I adjudge the said A. B., for such his dis-
obedience, to be imprisoned in the common gaol of the said
county, at in the said county of , (there to be

Icept at hard labour, if the stutute ttiithorize.s this), for the term of
unless the said order is sooner obeyed, and I do also
adjudge the said A. B. to pay to the said C. D. the sum of

for his costs in this behalf, and if the said sum for costs ia
not paid forthwith (or on or before next), I order the

same to be levied by distress and sale of the goods and chattels
of the said A. B., and in default of sufficient distress in that
behalf I adjudge the said A. B. to be imprisoned in the said
common gaol (there to be kept at hard labour) for the space of
, to commence at and from the termination of his
imprisonment aforesaid, unless the said sum for costs is sooner
paid.

Given under my hand and seal, this day of ,

in the year , at , in the county aforesaid.

J. S., [seal.]

./. P., (Xauie of count I/.)

860. When aevei-al persons join in the commission of the same offence,
and uiK)u toiiviction thereof each is adjudged to pay a penalty which inchides
the value of the property, or the amount of the injury done, no further sum
shall l<' paid to the person agKrieved than such amount or value, and costs, if
any, and the residue of the penalties imposed shall be applied in the same
manner rs other penalties imposed by a justice are directed to be applied.
R. S. C. c. 178, 8. 5i.

861. Whenever any person is summarily convicted before a justice of
any offence against Parts XX. to XXX. inclusive or Part XXXVII. of this
Act and it is a first conviction, the justice may, if he thinks tit, discharge the
offender from his conviction ujxyn his making such satisfaction to the i)erson
aggrieved, for damages and costs, or either of them, as are ascertained by the
jiwtice. R. S. C. c. 178, s. 65.

918

PROCEDURE.

[Sfcc. W2

S09' If thn justice dismisHes the information or complaint he may, when
required so to do, make an order of diHrnisBal in the form BBB in schedule one
hereto, and he shall give the defendant a certificate in the form CCC in the
Naid schedule, which certificate, u|)on being afterwards produced, shall, with-
out further protif, be a bar to any subsequent information or complaint for tlm
same matter, against the same defendant. R. S. C. c. 178, s. 56.

BBB.— (Section 862.)

FORM OF ORDER OF DISMISSAL OF AN INFORMATION OR

COMPLAINT.

Canada, ^

Province of , [

County of . )

Be it remembered that on , information was laid

{or complaint was made) before the undersigned, , a

justice of the peace in and for the said county of , for

that fttc, as in the fiwiniwns of the defcwhintj and now at

this day, to wit, on , at , ( if at any ailjouniiiunt

insert liere : "to which day the hearing of this case was duly
adjourned, of which the said C. D. had due notice,") both
the said parties appear before me in order that I should hear aud
determine the said information {or complaint) {or the said A. B.
appears before me, but the said C. D., although duly called, does
not appear) ; [whereupon the matter of the said information [m-
complaint) being by me duly considered, it manifestly appears to
me that the said information {or complaint) is not proved, and]
( if the infoniKint or cotnpbtinant does not ajijieor, these wonl.s iimii
he oinitteil,) I do therefore dismiss the same, and do adjudge that
the said C. D. do pay to the said A. B. the sum of , for

his costs incurred by him in defence in his behalf ; and if the
said sum for costs is not paid forthwith {or on or before ),

I order that the same be levied by distress and sale of the oioods
and chattels of the said C. D., and in default of sufficient distress
in that behalf, I adjudge the said C. D. to be imprisoned in the
common gaol of the said county of , at , in the

said county of (and there kept at hard labour) for tlie

term of , unless the said sum for costs, and all costs aud

charges of the said distress (and of the commitment and convey-
ing of the said C. D. to the said common gaol) are sooner paid.

MMMMaHMHi

[Sec. H<)2

complaint he may, wlun
irm BBB in schedule one

in the form CCC in thu
du vroduoed, shall, with-
ition or complaint for the
c. 178, 8. 56.

Sf INFORMATION OR

SecH. ma-tm]

SUMMARY CONVICTIONS.

919

, information was laid
signed, - ^

anty of » ^°^'

M/^Aw/'«Ht; andnowat

, (if id nnii tuljounumnt
' of this case was duly
lad due notice,") both
that I should hear antl
laint) ("'• the said A. B.
hough duly called, does
^he said information ("i
[it manifestly appears to
int) is not proved, and]
apju'iir, these iv<mh vw;!
,Q, and do adjudge that
|he sum of > ^^'^

his behalf; and if the
or on or before )>

,8 and sale of the goods
^ult of sufficient distress
to be imprisoned in the
, at . i" the

at hard labour) fertile

costs, and all costs and
jmmitment and convey-
fn gaol) are sooner paid.

Given under my hand and seal, this day of

in the year , at , in the county aforesaid.

J. S., [SEAL.]

J. P., (Name of county ).

CCC— {Section 802.)

FORM OF CERTIFICATE OF DISMISSAL.

Canada,
Province of
County of

I hereby certify that an information {or complaint) preferred
by C. D. against A. B. for that f<ir., (is in the mmmonsi was this
day considered by me, a justice of the peace in and for the said

county of

Dated at
year.

, and was by me dismissed (with costs)

, this day of , in the

J. S.,

./. P.y (N<ime of county ).

863. Whenever, by any Act or law, authority ia f<iven to commit a
person to prison, or to levy any sum upon his goods or chattels by distress, for
not obeying an order of a justice, the defendant shall be served with a copy of
the minute of the order before any warrant of commitment or of distress is.
issued in that behalf ; and the order or minute shall not form any part of the
warrant of commitment or of distress. R. S. C. c. 178. s. 57.

864. Whenever any person unlawfully assaults or beats any other
person, any justice may summarily hear and determine the charge, unless at
the time iif entering upun t/ie investigatiim the jjerson agijrieoed or Vie person
accused objects thereto.

2. If such justice is of opinion that the assault or battery complained of is,
frwn any other circumstance, a fit subject for prosecution by indictment, he
shall abstain from any adjudication thereujwn, and shall deal with the case in
all resixicts in the same manner as if he liad no authority finally to hear and
determine the same. R. S. C. c. 178, s. 73.

See s. 842, s-s. 8, ante.

H65. If the justice, upon the hearing of any case of assault or battery
uiwn the merits where the complaint is preferred by or on behalf of the person
aggrieved, under the next preceding section, deems theotfence not to be proved,
or finds the assault or battery to have been justified, or so trifling as not to
merit any punishment, and accordingly dismisses the complaint, he shall
forthwith make out a certificate under his hand stating the fact of such dis-

920

PROCEDURE.

[Sees. 866-87 J

■m

a. •

t :,

missal, and shall deliver such certificate to the person against whom the
complaint was preferred. R. S. C. c. 178, s. 74.

§00. If the person against whom any such complaint has been preferred,
by or on the behalf of the person aggrieved, obtains such certificate, or, having
been convicted, pays the whole amount adjudged to be paid or suffers the
imprisonment, or imprisonment with hard labour, awarded, he shall be
released from all further or other proceedings, civil or criminal, for the same
cause. R. S. C c. 178, s. 75.

S07> In every case of a summary conviction, or of an order made by a
justice, such justice may, in his discretion, award and order in and by the
conviction or order that the defendant shall pay to the prosecutor or com-
plainant such costs as to the said justice seem reasonable in ;hat behalf, and
not inconsistent with the fees established by law to be taken on proceedings
had by and before justices. R. S. C. c. 178, s. 58.

8G8. Whenever the justice, instead of convicting or making an order,
dismisses the information or complaint, he may, in his discretion, in and by
his order of dismissal, award and order that the prosecutor or complainant
shall pay to the defendant such costs as to the said justice seem reasonable
and consistent with law. R» S. C. c. 178, s. 59.

SOO. The sums so allowed for costs shall, in all cases, be specified in the
conviction or order, or order of dismissal, and the same shall be recoverable in
the same manner and under the same warrants as any penalty, adjudged to be
paid by the conviction or order, is to be recovered. R. S. C c. 178, s. CO.

S70. Whenever there is no such iwnalty to be recovered such costs shall
be recoverable by distress and sale of the goods and chattels of the party, and
in default of distress, by imprisonment, with or without hard labour, tor any
term not exceeding one month. R. S. C. c. 178, p. 61.

811. The fees mentioned in the following tariff and no others shall be
and constitute the fees to be taken on proceedings before justices in proceed-
ings under this part : —

Fees to be taken by Justices of the Peace or tlieir Clerks.

I 0.

1. Information or complaint and warrant or summons 0 50

2. Warrant where summons issued in first instance 0 10

3. Each necessary copy of summons or warrant 0 10

4. Each summons or warrant to or for a witness or witnesses. (Only

one summons on each side to be charged for in each case, which
may contain any number of names. If the justice of the case
requires it, additional summonses shall be issued without

charge) 0 10

5. Infiivmatioii for U'arrant for witness and warrant 0 50

6. Each necessary copy of suvmvms or warrant for witness 0 10

7. For every recognizance 0 25

8. For hearing and deterniining case 0 50

9. // case lasts over two hours 1 00

[Sees. 866-87 1
Xierson against whom the

.mplaint has been preferred,
, such certificate, or, having
d to be paid or suffers the
,our, awarded, he shall be
ril or criminal, for the same

n, or of an order made by a
rd and order in and by the
y to the prosecutor or com-
easonable in ihat behalf, and
f to be taken on proceedmgs
i.

nvicting or making an order,
■ in his discretion, in and by
tie prosecutor or complainant
B said justice seem reasonable

in all cases, be specified in the
sesame shall be recoverable m
,s any iJenalty, adjudged to be
id. R. S. C. c. 178, s. CO.

to be recovered such costs shall
and chattels of the party, and
without hard labour, tor any

, f. 61.

, tariff and no others shall be
Us before justices in proceed-

[icc or tlieir Clerks.

O50
1'""^°"" 010

^"'=^'---;;;;;;;;;;;;;;; ow

ess or witnesses. (Only
for in each case, which
the justice of the case

Ull be issued without ^^^^^

. 050

f'"«"' 0 10

Yor witness

y... 0 50

100

Sec. 872] SUMMARY CONVICTIONS. 921

10. Where one justice alone cannot lawfully hear and determine the $ c.

case, the same fee for hearing and determining to be allowed to
the associate justice.

11. For each warrant of distress or commitment o 25

12. For making up record of conviction or order where the same is

ordered to be returned to sessions or on certiorari l OO

But in all cases which admit of a summary proceeding before a
single justice and wherein no higher penalty than 820 can
be imposed, there shall be charged for the record of convic-
tion not more than o 50

13. For copy of any other paper connected with any case, and the

minutes of the same if demanded per folio of 100 words 0 05

14. For every bill of costs when demanded to be made out in detail 0 10

(Items 13 and 14 to be chargeable only when there has been an
adjudication).

Constables' Fees.

1. Arrest of each individual upon a warrant 1 00

2. Serving summons 0 25

3. Mileage to serve summons or warrant, per mile (one way) necessarily

travelled 0 10

4. Same mileage when service cannot be affected, but only upon proof

of due diligence.

5. Mileage taking prisoner to gaol, exclusive of disbursements neces-

sarily exi>ended in his conveyance 0 10

7. Attending justices on trial in one or more cases, per hour 0 25

8. Mileage travelled to attend trial (when public conveyance can be

taken only reasonable disbursements to be allowed) one wa>j per

■iiile 0 10

9. Serving warrant of distress and returning same 1 00

10 Advertising under warrant of distress 1 00

11, Travelling to make distress or to search for goods to make distress,

when no goods are found (one loay) per mile 0 10

12, Appraisements, whether by one appraiser or more, 2 cents in the

dollar on the value of the goods.

13, ConiHiissioii on sale and delivery of goods, 5 cents in the dollar on

the net produce of the goods. 52 V. c. 45, s. 2 & Sch.

Witnesses' Fees.

1, Each iay attending trial 0 75

2. Milta'je travelled to attend trial (one tvay) per mile 0 10

87?J. Whenever a conviction adjudges a pecuniary jjenalty or comixinsa-
tion to be paid, or an order requires the payment of a sum of money, whether
the Act or law authorizing such conviction or order does or does not provide a
mode of raising or levying the penalty, compensation or sum of money, or of
enforcing the payment thereof, tlie justice by his conviction, or order after
adjudging payment of such penalty, compensation or sum of money, with or
without costs, may order and adjudge —

(a) that in default of payment thereof forthwith, or within a limited time,
such penalty, compensation or sum ef money shall be levied by distress and

922

PROCEDURE.

[Sec. 87^

sale of the tfoods and chattels of the defendant, and. if sufficient distress can-
not be found, that the defendant be imprisoned in the common (?aol or other
prison of the territorial division for whicli the justice is then acting, in the
manner and for the time directed by the Act or law authorizing such convic-
tion or order or by this Act, or for any period not exceeding three months, if
the Act or law authorizing the conviction or order does not specify imprison-
ment, or does not specify any term of imprisonment, unless such penalty,
compensation or sum of money and costs, if the conviction or order is made
with costs, and the expenses of the distress and of conveying the defendant to
gaol are sooner paid ; or

(b) that in default of payment of the said penalty, comiiensation or sum of
money, and costs if any forthwith or within a limited time, the defendant be
imprisoned in the common gaol or other prison of the said territorial division
in the manner and for the time mentioned in the said Act or law, or fur any
period not exceeding three months if the Act or law authorizins' the conviction
or order does not specify imprisonment, or does not specify any term of im-
prisonment, unless the said sums with the like costs and expenses are sooner
paid.

2. The justice making the conviction or order mentioned in the paragraph
lettered (a) of sub-section one of this section may issue a warrant of distress in the
form DDD or EEE, as the case requires ; and in the case of a conviction or
order under the paragraph lettered (&) of the said sub-section, a warrant in one
of the forms FFF or G(iG may issue ;

(a) if a warrant of distress is issued and the constable or peace officer
charged with the execution thereof returns (form III) that he can find no gtxxis
or chattels whereon to levy thereunder, the justice may issue a warrant of com-
mitment in the form JJJ.

3. Where by virtue of an Act or law so authorizing the justice by his con-
viction adjudges against the defendant payment of a penalty or compensation,
and also imprisonment, as punishment for an offence, he may, if he thinks fit,
order thai, the imprisonment in default of distress or of payment, as provided
for in this section, shall commence at the expiration of the imprisonment
awarded as a punishment for the offence.

4. The like proceeding may be had upon any conviction or order made a.<
provided by this section as if the Act or law authorizing the same had expressly
provided for a conviction or order m the above terms. R. S. C. c. 178, ss. 02.
fi6, 67 & 68.

BDD.—iSfction 872.)

WARRANT OF DISTRESS UPON A CONVICTION FOR A

PENALTY.

Canada, \

Province of , [

County of .)

To all or any of the constables and other peace officers in the
said county oi

Sec. 872]

SUMMARY CONVICTIONS.

923

sizing the justice by his con-
|f a penalty or compensation,

ice, he may, if he thinks fit,
Is or of payment, as provided

•ation of the imprisonment

conviction or order made as
Lingthe same had expressly

Irms. R. S. C. c. 178, ss. 62.

loNVICTION ¥0R A

Whereas A. B., late of , (labourer), was on this day

{or on last past) duly convicted before , a justice

of the peace, in and for the said county of , for that {stating-

tha offence, as in tlie conviction), and it was thereby adjudged that
the said A. B. should, for such his offence, forfeit and pay {dc,
(IK in the conviction), and should also pay to the said C. D. the
sum of , for his costs in that behalf ; and it was thereby

ordered that if the said several sums were not paid (forthwith)
the same should be levied by distress and sale of the goods and
chattels of the said A. B., and it was thereby also adjudged that
the said A. B., in default of sufficient distress, should be impri-
soned in the common gaol of the said county, at , in
the said county of (and there kept at hard labour) for

the space of

unless the said several sums and all costs

and charges of the said distress, and of the commitment and
conveying of the said A, B. to the said common gaol were sooner
paid ; * And whereas the said A. B., being so convicted as
aforesaid, and being (now) required to pay the said sums of

and has not paid the same or any part thereof, but

therein has made default : These are, therefore, to command

you, in Her Majesty's name forthwith to make distress of the

goods and chattels of the said A. B. ; and if within

days next after the making of such distress, the osaid sums,

icjether with the reasonable charges of taking and keeping the

distrc3s, are not paid, then to sell the said goods and chattels so

by you distrained, and to pay the money arising from such sale

unto me t'le convicting justice {or one of the convicting justices),

that I may pay and apply the same as by law directed, and may

render the overplus, if any, on demand, to the said A, B. ; and

if no such distress is found, then to certify the same unto me,

that such further proceedings may be had thereon as to law

appertain.

Given under ray hand and seal, this day of ,

in the year

in the county aforesaid.
J. S., [seal.]

,/. P., {Xilllli' i)f ntimUj).

ler peace officers in

924

PROCEDURE.

[Sec. 872

EEE.—{Sectiim 872.)

WARRANT OF DISTRESS UPON AN ORDER FOR THE
PAYMENT OF MONEY.

Canada,
Province of
County of

To all or any of the peace officers in the said county of ,

Whereas on , last past, a complaint was made before

, a justice of the peace in and for the said county, for
that (I'tr., OS in the order), and afterwards, to wit, on ,

at , the said parties appeared before {as in the

order), and thereupon the matter of the said complaint having
been considered, the said A. B, was adjudged to pay to the said
C. D. the sum of , on or before then next, and

also to pay to the said C. D. the sum of , for his costs in

that behalf ; and it was ordered that if the said several sums
were not paid on or before the said then next, the same

should be levied by distress and sale of the goods and chattels of
the said A. B, ; and it v/as adjudged that in default of sufficient
distress in that behalf, the said A. B. should be imprisoned in
the common gaol of the said county, at , in the said

county of (and there kept at hard labour) for the term of

, unless the said several sums and all costs and charges
of the distress (and of the commitment and conveying of the said
A. B. to the said common gaol) were sooner paid ; "^^ And whereas
the time in and by the said n-der appointed for the payment of
the said several sums of , and has elapsed, but

the said A. B. has not paid the same, or any part thereof, but
therein has made default : These are, therefore, to command
you, in Her Majesty's name, forthwith to make distress of the
goods and chattels of the said A. B. ; and if within the space of

days after the making of such distress, the said last
mentioned sums, together with the reasonable charges of taking
and keeping the said distress, are not paid, then to sell the said
goods and chattels so by you distrained, and to pay the money
arising from such sale unto me {or some other of the concietiniijin^-
tires, as the ease may he), that I ' >r he) may pay or apply the
same as by law directed, and may render the overplus, if any, on
demand to the said A. B. ; and if no such distress can be found,

[Sec. 872

Sec. 872]

SUMMARY CONVICTIONS.

925

RDER FOR THE

id county of .

plaint was made before
:or the said county, foi-
ls, to wit, on
3fore («« '■» ^'"

said complaint having
^dged to pay to the said
then next, and
, for his costs in
^i the said several sums
then next, the same
he goods and chattels of
,i in default of sufficient
should be imprisoned in
, in the said
„ labour) for the term of
md all costs and charges
nd conveying of the said
lerpaid; '^^ And whereas
inted for the payment of
has elapsed, but
or any part thereof, but
therefore, to command
to make distress of the
lid if within the space of
h distress, the said last
inable charges of taking
id, then to sell the said
|d, and to pay the money
Ltherofthi'concivtiHiiJii^-
\) may pay or apply the
|r the overplus, if any, on
)h distress can be found,

then to certify the same unto me, to the end that such proceed-
ings may be had therein, as to law appertain.

Given under my hand and seal, this day of

in the year , at , in the county aforesaid.

J. S., [SEAL.J

J. P., {Name of county.)

FFF.— {Section 872.)

WARRANT OF COMMITMENT UPON A CONVICTION FOR A
PENALTY IN THE FIRST INSTANCE.

Canada,
Province of
County of

To all or any of the constables and other peace officers in the
said county of , and to the keeper of the common

gaol of the said county of , at in the said

county of

Whereas A. B., late of , {luboiirer), was on this day

convicted before the undersigned , a justice of the

peace in and for the said county, for that {stating the ofence, as in
the conviction), and it was thereby adjudged that the said A. B.^
for his offence, should forfeit and pay the sum of
{etc., Its in the conviction), and should pay to the said C. D. the
sum of , for his costs in that behalf ; and it was thereby

further adjudged that if the said several sums were not paid
(forthwith) the said A. B. should be imprisoned in the common
gaol of the county, at , in the said county of

(and there kept at hard labour) for the term of , unless

the said several sums (and the costs and charges of conveying
the said A. B. to the said common gaol) were sooner paid ; And
whereas the time in and by the said conviction appointed for the
payment of the said several sums has elapsed, but the said A. B.
has not paid the same, or any part thereof, but therein has made
default ; These are, therefore, to command you, the said peace
officers, or any one of you, to take the said A. B., and him safely
to convey to the common gaol at aforesaid, and there to

deUver him to the said keeper thereof, togetlier with this pre-
cept ; And I do hereby command you, the said keeper of the

PROCEDURE.

[Sec. 8;

SKI

« '

said common gaol, to receive the said A. B. into your custod
in the said common gaol, there to imprison him (and keep hit
at hard labour) for the term of , unless the said severe

sums (and costs and charges of carrying him to the said commoi
gaol, amounting to the further sum of ), are soone

paid unto you, the said keeper ; and for your so doing, this shal
be your sufficient warrant.

Given under my hand and seal, this day of

in the year , at , in the county aforesaid.

J. S., [seal.]

J. P,, (Name of county.)

GGG.—(Sectmi 872.)

WARRANT OF COMMITMENT ON AN ORDER IN THE FIRST

INSTANCE.

Canada, )

Province of , I

County of . )

To all or any of the constables and other peace oflficers in the
said county of , and to the keeper of the common

gaol of the county of , at , in the said

county of

Whereas, on last past, complaint was made before

the undersigned , a justice of the peace in and for the

fiaid county of , for that (etc., an in the order), and after-

wards, to wit, on the day of , at A. B,

and C. D. appeared before me, the said justice (or as it /s in th
order) t and thereupon having considered the matter of the com-
plaint, I adjudged the said A. B. to pay the said C. D. the sum
of , on or before the day of then next,

and also to pay to the said C. D. the sum of , for his

costs in that behalf ; and I also thereby adjudged that if the
said several sums were not pa id on or before the day ot

, then next, the said A. B. should be imprisoned in
the common gaol of tl\5 county of , at , in the

said county of (and there be kept at hard labour) for

the term of , unless the said several sums (and the costs

and charges of conveying the said A. B. to the said common

[Sec. 872

L B. mto your custody
Lson him (and keep him
unless the said several
him to the said common
jf ), are sooner

your so doing, this shall

day of
e county aforesaid.

., [seal.]

\P„ {Name of county.)

^ ORDER IN THE FIRST

Sec. 872]

SUMMARY CONVICTIONS.

927

Other peace officers in the
the keeper of the common

in the said

pmplaint was made before
[f the peace in and for the
rts- in tlie order), and after-
,at A.B,

dd justice {or as it (n in f/"
ted the matter of the com-
ay the said C. D. the sum
day of then next,

lesumof ^^^'^^

Leby adjudged that if the

before the ^^P'

should be imprisoned in

, at . i" ^^'

. kept at hard labour) for

everal sums (and the costs

B. to the said commou

jraol as the case may hr) were sooner paid; And whereas the
time in and by the said order appointed for the payment of the
said several sums of money has elapsed, but the said A. 3. has
not paid the same, or any part thereof, but therein has made
default ; These are, therefore, to command you, the said peace
officers, or any of you, to take the said A. B. and him safely to
convey to the said common gaol, at aforesaid, and

there to deliver him to the keeper thereof, together with this pre-
cept ; And I do hereby command you, the said keeper of the
said common gaol, to receive the said A. B. into your custody in
the said common gaol, there to imprison him (and keep him at
hard labour) for the term of , unless the said several

sums (and the costs and charges of conveying him to the said
common gaol, amounting to the further sum of ), are

sooner paid unto you the said keeper ; and for your so doing, this
shall be your sufficient warrant.

Given under my hand and seal, this day of ,

in the year , at , in the county aforesaid.

J. S., [seal.]
-/. P., (Name of county.)

III.— {Section 872.)
CONSTABLE'S RETURN TO A WARRANT OF DISTRESS.

I, W. T., constable, of , in the county of ,

hereby certify to J. S., Esquire, a justice of the peace in and for
the county of , that by virtue of this warrant I have

made diUgent search for the goods and chattels of the within
mentioned A. B., and that I can find no sufficient goods and
chattels of the said A. B. whereon to levy the sums within
mentic'ned.

Witness my hand, this day of , one thousand

eight hundred and

W. T.

928

PROCEDURE.

[Sec. 8

333.— {Section 872.)
WARRANT OF COISIMITMENT FOR WANT OF DISTRESS.

Canada,
Province of
County of

To all or any of the constables and other peace officers in tt
county of , and to the keeper of the commo:

gaol of the said county of , at , i;

the said county.

Whereas (dc, as in either of the foreijointj distresH watranu
DDD or EEE, to tlie asterisk, "■' ami tJven thus) : And whereas
afterwards on the day of , in the year aforesaid

I, the said justice, issued a warrant to all or any of the peact
officers of the county of , commanding them, or any ol

them, to levy the said sums of and by distress

and sale of the goods and chattels of the said A. B. ; And whereas
it appears to me, as well by the return of the said warrant of
distress, by the peace officer who had the execution of the same,
as otherwise, that the said peace officer has made diligent searcli
for the goods and chattels of the said A. B., but that no sufficieut
distress whereon to levy the sums above mentioned could be found:
These are, therefore, to command you, the said peace officers,
any one of you, to take the said A. B., and him safely to convey
to the common gaol at , aforesaid, and there deliver him

to the said keeper, together with this precept : And I do hereby
command you, the said keeper of the said common gaol, to
receive the said A. B. into your custody, in the said common
gaol, there to imprison him (and keep him at hard labour) for
the term , unless the said several sums and all the costs

and charges of the said distress (and of the commitment and
conveying of the said A. B. to the said common gaol) amounting
to the further sum of , ar.; sooner paid unto you, the

said keeper : and for so doing this shall be your sufficient
warrant.

Given under my hand and seal, this day of

in the year , at , in the county aforesaid.

J. S., [seal.]
J. P., {Name of county.)

[Sec. m

Sec. 873]

SUMMARY CONVICTIONS.

929

ANT OF DISTRESS.

ev peace officers in the
B keeper of the commou

roioinu distresH icanunts,
uin thius) : And whereas.
in the year aforesaid,
3 all or any of the peace
imanding them, or any of
and by distress

esaidA.B.; And whereas
rn of the said warrant of
the execution of the same,
,r has made diligent search
\ B., but that no sufficient
mentioned could be found;
, the said peace officers, or
' and him safely to convey
laid, and there deliver him
cept: And I do hereby
he said common gaol, to
tody in the said common
L him at hard labour) for
eral sums and all the costs
d of the commitment and
1 common gaol) amounting
sooner paid unto you, the

ghall be your sufficient
[the county aforesaid.

Is., [SEAL-^
I/. P., (^'"'"^ '^^' '^"""''''*

873. When any information or complaint is dismissed with costs the
iuntioe may issue a warrant of distress on the goods and chattels of the prose-
cutor or complainant, in the form KKK, for the amount of such oosta ; and,
in default of distress, a warrant of commitment in the fonn LLL may issue :
Pa)vided that the term of imprisonment in such case shall not exceed one
month. R- S. C. o. 178, s. 70.

KKK.— {Section 873.)

WARRANT OF DISTRESS FOR COSTS UPON AN ORDER FOR
DISMISSAL OF AN INFORMATION OR COMPLAINT.

Canada,
Province of
District of

To all or any of the constables and other peace officers in the
said county of

Whereas on last past, information was laid {or com-

plaint was made) before , a justice of the peace in and

for the said county £of , for that {dc, as in the order of

disinissal) and afterwards, to wit, on , at , both

parties appearing before , in order that (I) should hear

and determine^the same, and the several proofs adduced to (me)
in that behalf, being by (me) duly heard and considered, and it
manifestly appearing to (me) that the said information {or com-
plaint) was not proved, (I) therefore dismissed the same and
adjudged that^the said C. D. should pay to the said A. B. the
sum of , for his][costs incurred by him in his defence in

that behalf ; and (I) ordered that if the said sum for costs was.
not paid (forthwith);the same should be levied on the goods and
chattels of the said C. D., and (I) adjudged that in default of
sufficient distressjin that behalf the said C. D. should be im-
prisoned in|the common gaol of the said county of ,
at , in" the^said county of , (and there kept
at hard labour) for the space of , unless the said sum
for costs, and all costs and charges of the said distress, and of
the commitmtnt and conveying of the said A. B. to the said
common gaol.^were sooner paid ; '* And whereas the said C. D.
being now required to pay to the said A. B. the said sum for
costs, has not paid the same, or any part thereof, but therein
has made default : These are, therefore, to command you, in
Grim. Law — 59

930

PROCEDURE.

[Sec. 873

Her Majesty's name, forthwith to make distress of the goods and
chattels of the said C. D., and if within the term of days

next after the making of such distress, the said last mentioned
sum, together with the reasonable charges of taking and keeping
the said distress, shall not be paid, then to sell the said goods
and chattels so by you distrained, and to pay the money arising
from such sale to (me) that (I), may pay and apply the same as
by law directed, and may render the overplus (if any) on demand
to the said C. D., and if no distress can be found, then to certify
the same unto we (or to any other justice of the peace for the
same county), that such proceedings may be had therein as to
law appertain.

Given under my hand and seal, this day of ,

in the year , at , in the county aforesaid.

I J. S., [seal.]

J. P., (Name of county.)

ItLL.— (Section 873.)
WARRANT OF COMMITMENT FOR WANT OF DISTRESS.
Canada,
Province of
County of
To all or any of the constables and other peace officers in the

said county of , and to the keeper of the common

gaol of the said county of , at , in the said

county of
Whereas {dc, as in foiin KKK to the asterisk, '^' and then
thus) : And whereas afterwards, on the day of ,

in the year aforesaid, I, the said justice, issued a warrant to all
or any of the peace officers of the said county, commanding
them, or any one of them, to levy the said sum of , for

costs, by distress and sale of the goods and chcttels of the said
C. D. ; And whereas it appears to me, as well by the return to
the said warrant of distress of the peace officer charged with the
execution of the same, as otherwise, that the said peace officer
has made diligent search for the goods and chattels of the said
C. D., but that no sufficient distress whereon to levy the sum
above mentioned could be found : These are, therefore, to corn-

it.

[Sec. 873

.83 of the goods and

erm of ^aya

said last mentioned

taking and keeping

sell the said goods
y the money arising
i apply the same as
3 (if any) on demand
bund, then to certify

of the peace for tht
be had therein as to

day of >

ounty aforesaid.

[seal.]
'., {^Name of county.)

ANT OF DISTRESS.

jr peace officers in the

fkeeper of the common

^1; , in the said

\he asterisk, '' and then

day of '

issued a warrant to all

county, commanding

lid sum of ' ^°^

Ld chattels of the said

Is well by the return to
[officer charged with the
It the said peace officer
Vnd chattels of the said
Lreon to levy the sum
are. therefore, to com-

Sec. 874]

SUMMARY CONVICTIONS.

931

mand you, the said peace officers, or any one of you, to take the
said CD., and him safely convey to the common gaol Df the
said county, at aforesaid, and tlioie deliver him to

the keeper thereof, together with this precept; And I hereby
command you, the said keeper of the said common gaol, to
receive the said C. D. into your cutorly in the said common
gaol, there to imprison hira (and k<<.^ \\;,:\ at hard labour) for
the term of , unless tV;^ ,aid si; n, and all the costs

and charges of the said distrep ; (and of the commitment and
conveying of the said C. D. to the said common gaol, amounting
to the further sum of ), are sooner paid unto you the

^aid keeper ; and for you so doing, this shall be your sufficient
warrant.

Given under my hand and seal, this day of ,

in the year , at , iu the county aforesaid.

J. S., [Seal.]
, ./. P., {Xame of County.)

§74. If after delivery of any warrant of distress issued under this part
to the constable or constables to whom the same has been directed to be
executed, sufficient distress cannot be found within the limits of the juris-
diction of the justice granting the warrant, then upon proof being made upon
oath or affirmation of the handwriting of the justice granting the warrant,
before any justice of any other territorial division, such justice shall thereupon
make an endorsement on the warrant, signed with his hand, authorizing the
execution of the warrant within the limits of his jurisdiction, by virtue of
which warrant and endorsement the jjenalty or sum and costs, or so much
thereof as has not been before levied or paid, shall be levied by the person
bringing the warrant, t)r by the person or persons to whom the warrant was
originally directed, or by any constable or other peace officer of the last
mentioned territorial division, by distress and sale of the goods and chattels
of the defendant therein.

2. Such endorsements shall be in the form HHH in schedule one to this
Act. R. S. C. c. ITS, s. 63.

HHH.— (.S«f/on 874.)

ENDORSEMF T IN BACKING A WARRANT OF DISTRESS.

Canada, )

Province of , l

County of . )

Whereas proof upon oath has this day been made before me
, a justice of the peace in and for the said county, that

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

I^|2j8 |2.5

40 12.0

12.2

1.8

|L25 ||l.4 |,.6

►

Photographic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. MSSO

(716) 872-4b03

^^4^'
^

Ci^

932

PROCEDURE.

[Sees. 875-878

the name of J. S. to the within warrant subscribed is of the
handwriting of the justice of the peace within mentioned, I
do therefore authorize W. T., who brings me this warrant,
and all other persons to whom this warrant was originally
directed, or by whom the same may be lawfully executed, and
also all peace officers in the said county of , to execute

the same within the said county.

Given under my hand, this day of , one

thousand eight hundred and

O.K.,
J. P., {Name of county.)

S79. Whenever it appears to any justice that the issuinf? of a distress
warrant would be ruinous to the defendant and his family, or whenever it
appears to the justice, by the confession of the defendant or otherwise, that
he has no fj^oods and chattels whereon to levy such distress, then the justice,
if he deems it fit, instead of issuing a warrant of distress, may commit the
defendant to the common gaol or other prison in the territorial division, there
to be imprisoned, with or without hard labour, for the time and in the manner
he would have been committed in case such warrant of distress had issued and
no sufficient distress had been found. R. S. C. o. 178, s. 64.

S70. Whenever a justice issues a warrant of distress as hereinbefore
provided, he may suffer the defendant to go at large, or verbally, or by a
written warrant in that behalf, may order the defendant to be kept and
detained in safe custody, until return has been made to the warrant of distress
unless the defendant gives sufficient security, by recognizance or otherwise,
to the satisfaction of the justice, for his appearance, at the time and place
appointed for the return of the warrant of distress, before him or before such
other justice for the same territorial division as shall then be there. R. S. C.
0. 178, 8. 65.

87T. Whenever a justice, upon any information or complaint, adjudges
the defendant to be imprisoned, and the defendant is then in prison under-
going imprisonment upon conviction for any other offence, the warrant of
commitment for the subsequent offence shall be forthwith delivered to the
gaoler or other officer to whom it is directed ; and the justice who issued the
same, if he thinks fit, may award and order therein that the imprisonment for
the subsequent offence shall commence at the expiration of the imprisonment
to which the defendant was previously sentenced. R. S. C. c. 178, s. 69.

878. Whenever a defendant gives security by or is discharged upon
recognizance and does not afterwards appear at the time and place mentioned
in the recognizance, the justice who took the recognizance, or any justice
who is then present, having certified upon the back of the recognizance the
non-appearance of the defendant, may transmit such recognizance to the
proper officer in the province appointed by law to receive the same, to be

[Sees. 875-878

ubscribed is of the
within mentioned, I
3 me this warrant,
rant was originally
wfuUy executed, and
, to execute

Sec. 870]

SUMMARY CONVICTIONS.

lay of

one

>., (Name of county.)

,at the isBuinK of a distress
hia family, or whenever It
Bfendant or otherwise, that
.h distress, then the iustice,
,{ distress, may commit the
he territorial division, there
• the time and in the manner
,n. of distress had issued and

178, 8. 64.

t of distress as hereinbefore
large, or verbally, or by a
defendant to be kept and
le to the warrant of distress
recognizance or oth«
^nce, at the time and plac^
psB, before him or before such

jhall then be there. R.».^-

bation or complaint, adjudges
Lt is then in prison unde ■
Ler offence, the warrant
£e forthwith delivered to h

f„d the justice who issued th
lein that the imprisonment for

a. R. S. C. c. 178, 8. ow.
bitv by or is d,.,charged upon
^SetLeandpl^.-^^
B recognizance, or any ]u
^ack of the recognizance J

'it euch recognizance to tn
C, to receive the same, to be

proceeded upon in like manner as other recognizances ; and such certificate
shall he prima facie evidence of the non-appearance of the said defendant

2. Such certificate shall be in the form MMM in schedule one to this
Act. The proper officer to whom the recognizance and certificate of default
are to be transmitted, in the province of Ontario, shall be the clerk of the
peace of the county for which such justice is acting, except in the district of
Nipissing as to which district the proper officer shall be the clerk of the peace
for the county of Renfrew ; and the Court of Gener:^! Sessions of the Peace
for such county shall, at its then next sitting, order all such recognizances to
be forfeited and estreated, and the same shall be enforced and collected in
the same manner and subject to the same conditions as any fines, forfeitures
or amercements imposed by or forfeited before such court ; and in the other
provinces of Canada, the proper officer to whom any such recognizance and
certificate shall be transmitted, shall be the officer to whom like recognizances
have been heretofore accustomed to be transmitted under the law in force
before the passing of this Act ; and such recognizances shall be enforced and
collected in the same manner as like recognizances have heretofore been
enforced and collected. R. S. C. c. 178, ss. 71 & 72.

UUU.— {Section 878.)

CERTIFICATE OF NON-APPEARANCE TO BE ENDORSED ON
THE DEFENDANT'S RECOGNIZANCE.

I hereby certify that the said A. B. has not appeared at the
time and place in the said condition mentioned, but therein
has made default, by reason whereof the within written recog-
nizance is forfeited.

J. S., [seal.]

J. P., {Name of county.)

§79. Unless it is otherwise provided in any special Act unde- ' 'ioh a
conviction takes place or an order is made by a justice for the p.;wyment of
money or dismissing an information or complaint, any person who thinks him-
self aggrieved by any such conviction or order, the prosecutor or complainant,
as well as the defendant, may appeal, in the province of Ontario, to the Court
of General Sessions of the Peace ; in the province of Quebec, to the Court of
Queen's Bench, Crown side ; in the provinces of Nova Scotia, New Brunswick
and Manitoba, to the county court of the district or county where the cause of
the information or complaint arose ; in the province of Prince Edward Island,
to the Supreme Court ; in the province of British Columbia, to the county or
district court, at the sitting thereof which shall be held nearest to the place
where the cause of the information or complaint arose ; and in the North-west
Territories, to a judge of the Supreme Court of the said territories, sitting
without a jury, at the place where the cause of the information or complaint
arose, or the nearest place thereto where a court is appointed to be held.

2. In the district of Nipissing such person may appeal to the Court of Gen-
err,! Sessions of the Peace for the county of Renfrew. 51 V. c. 46, s. 7. 52 V.
c. 45, 8. 6.

m.i

934

PROCEDURE.

[Sec. 880

Sub-section 2 extended by the repealed clause to the
district of Muskoka and others.

880. Every right of appeal shall, unless it is otherwise provided in any
special Act, be subject to the conditions following, that is to say : —

(a) If the conviction or order is made more than fourteen days before the
sittings of the court to which the appeal is given, such appeal shall be made to
the then next sittings of such court ; but if the conviction or order is made
within fourteen days of the sittings of such court, then to the second sittings
next after such conviction or order ;

(6) The appellant shall give to the respondent, or to the justice who tried
the case for him, a notice in writing, in the form NNN in schedule one to ihis
Act, of such appeal, within ten days after such conviction or order ;

(c) The appellant, if the appeal is from a conviction adjudging imprison-
ment, shall either remain in custody until the holding of the court to which the
appeal is given, 9r shall enter into a recognizance in the form OOO in the said
schedule with two suflScient sureties, before a justice, conditioned personally to
appear at the said court, and to try such appeal, and to abide the judgment of
the court thereupon, and to pay such costs as are awarded by the court ; or, if
the appeal is against any conviction or order, whereby only a penalty or sum
of money is adjudged to be paid, the appellant (although the order directs im-
prisonment in default of payment), instead of remaining in custody as aforesaid,
or giving such recognizance as aforesaid, may deposit with the justice convict-
ing or making the order such sum of money as such justice deems sufficient t»
cover the sum so adjudged to be paid, together with the costs of the conviction
or order, and the costs of the appeal ; and upon such recognizance being given,
or such deposit being made, the justice before whom such recognizance is
entered into, or deposit made, shall liberate such person, if in custody ;

{d) In case of an appeal from the order of a justice, pursuant to nection
five hundred and seventy-one, for the restoration of gold or gold-bearing quartz,
or silver or silver ore, the appellant shall give security by recognizance to the
value of the oaid property to prosecute his appeal at the next sittings of tlie
court and to pay such costs as are awarded against him ;

(e) The court to which s' • appeal is made shall thereupon hear and deter-
mine the matter of appeal a*- ice sucii order therein, with or without cost?
to either party, including cc ^ of the court below, as seems meet to the
court, — and, in case of the dismissal of an appeal by the defendant and the
aflSrmance of the conviciicn or order, shall order and adjudge the appellant to
be punished according to the conviction or to pay the amount adjudged by the
said order, and to pay such costs as are awarded,— and shall, if necessary, issue
process for enforcing the judgment of the court ; and whenever, after any such
deposit has been made as aforesaid, the conviction or order is affirmed, the
court may order the sum thereby adjudged to be paid, together with the costs of
the conviction or order, and the costs of the appeal, to be paid out of the money
deposited, and the residue, if any, to be repaid to the appellant ; and when-
ever, after any such deposit, the conviction or order is quashed, the court shall
order the money to be repaid to the appellant ;

[Sec. 880

aled clause to the

herwise provided in any
lat is to say :—

fourteen days before the
,h appeal shaU be made to
nviction or order is made
hen to the second sittmgs

or to the juatioe who tried
NN in schedule one to this
viotion or order ;

ddion adjudging inprum-
OK of the court to which ihe
a *he form 000 in the said
je.conditioned personally to
ad to abide the judgment of
awarded by the court; or, It
,reby only a penalty or Sinn
though the order dii^cts im-
ining in custody as afor&said,
osit with the justice convict-
ch justice deems sufficient to
th the costs of the conviction
ich recognizance being given,
whom such recognizance w
[person, if in custody ;

justice, pursuant to nection
of gold or gold-bearing quartz,
surity by recognizance to the
a at the next sittings of the

[st him ;
lall thereupon hear and deter.

.herein, with or withoucc«^^
elow as seems meet to the
.albi the defendant and th^

, and adjudge the appellant J.
y the amount adjudged by th

-and shall, if necessary, issue
'and whenever, after any su*
btion or order is affirmed, the
Ctogetherwiththecostso
ftbe'paidoutofthemon
I to the appellant; and wto
rder is quashed, the court shall

Sec. 880]

SUMMARY CONVICTIONS.

936

(/) The said court shall have power, if necessary, from time to time, by
order endorsed on the conviction or order, to adjourn the hearing of the appeal
from one sittings to another, or others, of the said court ;

(g) Whenever any conviction or order is quashed on appeal, as aforesaid,
the clerk of the peace or other proper officer shall forthwith endorse on the
conviction or order a memorandum that the same has been quashed ; and when-
ever any copy or certificate of such conviction or order is made, a copy of such
memorandum shall be added thereto, and shall, when oeriiified under the hand
of the clerk of the peace, or of the proper officer having the custody of the
same, be sufficient evidence, in all courts and for all purposes, that the convic-
tion or order has been quashed. .51 V. c. 45, s. 8. 53 V. c. 37, s. 24.

NNN.— (Section 880.).
NOTICE OF APPEAL AGAINST A CONVICTION OR ORDER.

To C. D., of , and , [tlie names and additions of the

paHies to tchom the notice of appeal is required to be given.)

Take notice, that I, the undersigned, A. B., of ,

intend to enter and prosecute an appeal at the next General
Sessions of the Peace {or other court, as the case may be), to be
holden at , in and for the county of , against a

certain conviction [or order) bearing date on or about the
day of , instant, and made by (you) J. S., Esquire, a justice
of the peace in and for the said county of , whereby I»

the said A. B. was convicted of having {or was ordered) to pay
, {here state the offence as in the conviction, information,,
or summons, or the amount adjudged to be paid, as in the order, a&
correctly as possible.)

Dated at , this day of , one thou-

sand eight hundred and

A. B.

Memorandum. — If this notice is ffiven by several defendants, or by
an attorney, it may be adapted to the case.

000.— {Section 880.)

FORM OF RECOGNIZANCE TO TRY THE APPEAL,

Canada, |

Province of , J«

County of . )

Be it remembered that on , A.B., of

and L. M., of , {rp-ocer), and N. 0., of

, {labourer),
, {yeoman),

936

PROCEDURE.

[Sec. 880

personally came before the undersigned , a justice of

the peace in and for the said county of , and severally

acknowledged themselves to owe to our Sovereign Lady the
Queen, the several sums following, that is to say, the said A.B.
the sum of , and the said L.M. and N.O. the sum of ,

each, of good and lawful money of Canada, to be made and
levied of their several goods and chattels, lands and tenements
respectively, to the use of our said Lady the Queen, Her heirs
and successors, if he the said A. B. fails in the condition
endorsed {or hereunder written).

Taken and acknowledged the day and year first above men-
tioned at , before me.

J. S.,

J. P. [Name of county).

The comdition of the within {or the above) written recogniz-
ance is such that if the said A.B. personally appears at the
(next) General Sessions of the Peace {or other court discharijincj
the functions of the Court of General Sessions, as the case may he),
to be holden at , on the day of , next,

in and for the said county of , and tries an appeal against

a certain conviction, bearing date the day of

{instant), and made by (me) the said justice, whereby he, the
said A. B., was convicted, for that he, the said A.B., did, on the
day of , at , in the said county of

, {here set out the offence as stated in tlie conviction) ; and
also abides by the judgment of the court upon such appeal and
pays such costs as are by the court awarded, then the said
recognizance to be void, otherwise to remain in full force and
virtue.

FORM OF NOTICE OF SUCH RECOGNIZANCE TO BE GIVEN TO
THE APPELLANT AND HIS SURETIES.

Take notice, that you, A. B., are bound in the sum of
and you L. M. and N. 0. in the sum of , each, that you

the said A. B. will personally appear at the next General Ses-
sions of the Peace to be holden at , in and for the said
county of , and try an appeal against a conviction {or
order) dated the day of , {instant) whereby you A. B.
were convicted of {or ordered, &c.), (stating nff'ence or the subject

[Sec. 880

, a justice of
, and severally
Sovereign Lady the
s to say, the said A.B.
N.O. the sum of
uada, to be made and
8, lands and tenements
y the Queen, Her heirs
fails in the condition

id year first above men-

I. P. {Name of county).

above) written recogniz-

ersonally appears at the

or other court dischariiinn

mions, as the case may he),

day of . ^^ext,

ad tries an appeal agains^

day of >

justice, whereby he, the

the said A.B., did, on the

, in the said county of

ted in tlui conviction) ; and

art upon such appeal and

awarded, then the said

remain in full force and

IzANCE TO BE GIVEN TO
IS SURETIES.

lound in the sum of
If , each, that you

lat the next General Ses-
1 , in and for the said

Isal against a conviction {or
histant) whereby you A. B.
lating offence or the .su6;<d

Sees. 881-883]

SUMMARY CONVICTIONS.

987

of the order shortly), and abide by the judgment of the court upon
such appeal and pay such costs as are by the court awarded, and
unless you the said A. B. personally appear and try such appeal
and abide by such judgment and pay such costs accordingly, the
recognizance entered into by you will forthwith be levied on you
and each of you.

Dated at , this day of , one thou-

sand eight hundred and

881- When an appeal against any summary conviction or decision has
been lodged in due form, and in compliance with the requirements of this part
the court appealed to shall try, and shall be the absolute judge, as well of the
facts as of the law, in respect to such conviction or decision ; and any of the
parties to the appeu^l may call witnesses and adduce evidence, whether such
witnesses were called or evidence adduced at the hearing before the justice or
not, either as to the credibility of any witness, or as to any other fact material
to the inquiry ; but any evidence taken before the justice at the hearing below,
signed by the witness giving the same and certified by the justice, may be read
on such appeal, and shall have the like force And effect as if the witness was
there examined : Provided, that the court appealed to is satisfied, by afHdavit
or otherwise, that the personal presence of the witness cannot be obtained by
any reasonable efforts, 53 V. c. 37, s. 25.

88S. No judgment shall be given in favour of the appellant if the appeal
is based on an objection to any information, complaint or summons, or to any
Warrant to apprehend a defendant issued upon any such information, com-
plaint or summons, for any alleged defect therein, in substance or in form, or
for any variance between such information, complaint, summons or warrant
and the evidence adduced in support thereof at the hearing of such information
or complaint, unless it is proved before the court hearing the appeal that such
objection was made before the justice before whom the case was tried and by
whom such conviction, judgment or decision was given, or unless it is proved
that notwithstanding it was shown to such justice that by such variance the
person summoned and appearing or apprehended had been deceived or misled,
such justice refused to adjourn the hearing of the case to some further day, as
herein provided. R. S. C. c. 178, s. 79.

883* In every case of appeal from any summary conviction or order had
or made before any justice, the court to which such appeal is made shall, not-
withstanding any defect in such conviction or order, and notwithstanding that
the punishment imix)8ed or the order made may be in excess of that which
might lawfully have been imposed or made, hear and determine the charge or
complaint on which such conviction or order has been had or made, ujion the
merits, and may confirm, reverse or modify the decision of such justice, or may
make such other conviction or order in the matter as the court thinks just,
and may by such order exercise any power which the justice whose decision is
appealed from might have exercised, and such conviction or order shall have
the same effect and may be enforced in the same manner as if it had been made

938

PROCEDURE.

[Sees. 884-88*

"fPfS.

]'i 3 1

by Huch justice. The court may also make such order us to costs to be paid by
either party as it thinks fit.

2. Any conviction or order made by the court on apiieal may ako be
enforced by process of the court itself. 53 V. c. 37, s. 26.

884* The court to which an appeal is made, upon proof of notice of the
appeal to such court havinpr been given to the person entitled to receive the
same, though such appeal was not afterwards prosecuted or en ten d, may, if
such appeal has not been abandoned according to law, at the same sittings for
which such notice vns given, order to the party or parties receiving the same
such costs and charges as are thought reasonable and just by the court, to be
paid by the party or parties giving such notice ; and such costs shall be recover-
able in the manner provided by this Act for the recovery of costs uiwn an
appeal against an order or conviction. R. S. C. o. 178, s. SI.

K85* If an appeal against a conviction or order is decided in favour uf
the respondents, the justice who made the conviction or order, or any other
justice for the same territorial division, may issue the warrant of distress or
commitment tor execution of the same, as if no appeal had been brought.
R. S. C. c. 178, s. 82.

880> No conviction or«order affirmed, or affirmed and ainended, in
appeal, shall be quashed for want of form, or be removed by certiorari into any
superior court, and no warrant or commitment shall be held void by reason of
any defect therein, provided it is therein alleged that the defendant has been
convicted, and there is a good and valid conviction to sustain the same.
R. S. C. c. 178, s. 83.

88T. No writ of certiorari shall be allowed to remove any conviction or
order had or made before any justice of the peace if the defendant has ajJiiealed
from such conviction or order to any court to which an appeal from such
conviction or order is authorized by law, or shall be allowed to remove any
conviction or order made upon such appeal. R. S. C. c. 178, s. 84.

888- Every justice before whom any person is summarily tried, shall
transmit the conviction or order to the court to which the appeal is herein
given, in and for the district, county or place wherein the offence is alleged to
have been committed, before the time when an appeal from such conviction or
order may be heard, there to be kept by the projier officer amcmg the records of
the court ; and if such conviction or order has been appealed against, and a
deposit of money made, such justice shall return the deposit into the said
court ; and the conviction or order shall be presumed not to have been appealed
against, until the contrary is shown.

2. Upon any indictment or information against any person for a subsequent
offence, a copy of such conviction, certified by the prop^ officer of the court, or
proved to be a true copy, shall be sufficient evidence to prove a conviction for
the former oflFence. R. S. C. c. 178, s. 8G. 51 V. c. 45, s. 9.

889. No conviction or order made by any justice of the peace and no
warrant for enforcing the same, shall, on being removed by certiorari be held
invalid for any irregularity, informality or insufficiency therein, provided that

[Sec8. 884-88*
.a9toco8t»tobepaidby

, on appeal may aUo be
J. 26.

ipon proof of notice of the
unentitled to receive the
,ecuted or entered, may, If
.w.attbesaroeBittmKufor
parties receiving the same
,nd just by the court, to be
such costs shall be recover-
recovery of costs uixjn an
178, 8. 81.

rder is decided in favour of
ction or order, or any other
;« the warrant of distre-m-
„ appeal had been brought.

. affirmed and a.nended, in
iemoved by certiorari mto any
fall be held void by reason of
that the defendant has been
fiction to sustain the same.

d to remove any conviction or
if the defendant has appealed
thich an appeal from su^
ai be allowed to remove anj
S. C. c. 178, 8. 84.

Ln is summarily tried, shall

T which the apW is bere,n

Lein the offence is alleged to

pal from such conv^-
Lr officer among the reco

I been appealed -S^"- ^f^.
Lm the deposit into the ^^
Led not to have been appealed

Inst any person for a subsequent
tepro^ officer of the court
rdenceTp-veaconvict>onfor

■-, c. 45, 8.9.

Ljusticeofthepeax^eandio

removed by cc.no.«rj^;^
Uciencytherem, provided

Sees. 890-892]

SUMMARY CONVICTIONS.

939

the court or judge before which or whom the question is raised is, upon perusal
of the depositions, satisfied that an oifence of the nature described in the
conviction, order or warrant, has been committed, over which such justice has
jurisdiction, and that the punishment imposed is not in excess of that which
might have been lawfully imposed for the said offence ; and any statement
which, under this Act or otherwise, would be sufficient if contained in a
conviction, shall also be sufficient if contained in an information, summons,
order or warrant : Provided that the court or judge, where so satisfied a»
aforesaid, shall, even if the punishment imposed or the order made is in excess
of that which might lawfully have been imijosed or made, have the like
powers in all respects to deal with the case as seems just as are by section eight
hundred and eighty-three conferred upon the court to which an appeal is taken
under the provisions of section eight hundred and seventynine. R. S. C.
c. 178 s. 87. 53 V. c. 37, s. 27.

890> The following matters amongst others shall be held to be within
the provisions of the next preceding section : —

(a) The statement of the adjudication, or of any other matter or thing, in
the past tense instead of in the present ;

(b) The punishment imposed being less than the punishment by law
assigned to the offence stated in the conviction or order, or to the offence which
appears by the depositions to have been committed ;

(c) The omission to negative circumstances, the existence of which would
make the act complained of lawful, whether such circumstances are stated by
way of exception or otherwise in the section under which the offence is laid, or
are stated in another section.

2. But nothing in this section contained shall be construed to restrict the
generality of the wording of the next preceding section. R. S. C. c. 178,

s. 88.

891- If an application is made to quash a conviction or order ma:^. '',y
a justice, on the ground that such justice has exceeded his jurisdiction, t.ie
court or judge to which or whom the application is made, may, as a conditipn
uf quashing the same, if the court or judge thinks fit so to do, provide that no
iiction shall be brought against the justice who made the conviction, or against
any officer acting under any warrant issued to enforce such conviction or order.
R, S. C. c. 178, 8. 89.

803. The court having authority to quash any conviction, order or other
proceeding by or before a justice may prescribe by general order that no
motion to quash any conviction, order or other proceeding by or before a
justice and brought before such court by certiorari, shall be entertained unlesa
the defendant is shown to have entered into a recognizance with one or more
sufficient sureties, before a justice or justices of the county or place within
which such conviction or order has been made, or before a judge or other officer,
as may be prescribed by such general order, or to have made a deposit to be
prescribed in like manner, with a condition to prosecute such writ of certiorari
at his own costs and charges, with effect, without any wilful or affected delay,,
and, if ordered so to do, to pay the person in whose favour the conviction,
order or other proceeding is affirmed, his full costs and charges to be taxed

,v V

■ f

940

PROCEDURE.

[SecH. 893-

9 ' ?

> !'

3 -,:

according to the course of the court where such conviction, order or proceed
i8 affirmed. R. S. C. o. 178, s, 90.

803< The Heoond section of the Act of the Parliament of the Uni
Kingdom, passed in the fifth year of the reign of His Majesty King George
Second, and chaptered nineteen, shall no longer apply to any conviction, or
or other proceeding by or before a justice in Canada, but the next precerl
section of this Act shall be substituted therefor, and the like proceedings n
be had for enforcing the condition of a recognizance taken under the »
flection as might be had for enforcing the condition of a recognizance tal
under the said Act of the Parliament of the United Kingdom. R. S. C. c. I
8. 91.

See R. V. Nunn, 10 P. R. Ont., 396, and R. v. Swalwe
12 0. R. 891, and preceding section.

894. No order, conviction or other proceeding shall be quashed or
aside, and no defendant shall be discharged, by reason of any objection tl
evidence has not been given of a proclamation or order of the Governor
Council, or of any rules, regulations, or by-laws made by the Governor in Com
in pursuance of a statute of Canada or of the publication of such proclamatii
order, rules, regulations or by-laws in the Canada Gazette ; but such proclaii
tion, order, rules, regulations and by-laws and the publication thereof shall
judicially noticed. 51 V. o. 45, s. 10.

80S* If amotion or rule to quash a conviction, order or other proceed!
is refused or discharged, it shall nut be necessary to issue a writ of proceden
but the order of the court refusing or discharging the application shall h
sufficient authority for the registrar or other officer of the court forthwith
return the conviction, order and proceedings to the court or justice from wh
or whom they were removed, and for proceedings to be taken thereon for
enforcement thereof, as if a procedendo had issued, which shall forthwith
done. R. S. C. o. 178, s. 93.

800* Whenever it appears by the conviction that the defendant I
appeared and pleaded, and the merits have been tried, and the defendant I
not appealed against the conviction, where an appeal is allowed, or if ap[)ea
against, the conviction has been affirmed, such conviction shall not afterwa
be set aside or vacated in consequence of any defect of form whatever, but '
construction shall be such a fair and liberal construction as will be agreeabh
the justice of the case. R. S. C. o. 178, s. 94.

897. If upon any appeal the court trying the appeal orders either pa
to pay costs, the order shall direct the costs to be paid to the clerk of the ii«<
or other proper officer of the court, to be paid over by him to the pen
entitled to the same, and shall state within what time the costs shall be pa
R. S. C. 0. 178, 8. 95.

898. If such costs are not paid within the time so limited, and I
person ordered to pay the same has not been bound by any recognizance o
ditioned to pay such costs, the clerk of the (leace or his deputy, on applicati
of the person entitled to the costs, or of any person on his behalf, and on pi

[Sees. 893-898
onviction, order or proceeding

he Parliament of the United
His Majesty King George the

apply to any conviction, order
anada, but the next preceding

and the like proceedings may
mizance taken under the Haul
edition of a recognizance taken
lited Kingdom. R.S.C.c.1.8,

)95, aud B. v. Swalvvell,
[1.

needing shall be quashed or set
bv reason of any objection that
,on or order of the Governors

,s made by the Governor xn Coumi
publication of such proclamation,

ruuU^ Gazette :hMt^nchvr^\m^^
,d the publication thereof shall b.

eviction, order or other proceeding
Lrytoissueawritofpro««o,
Urging the application shaU be a
or officer of the court forthwith to
L to the court or justice from ^vh J
edings to be taken thereon for tk
' issued, which shall forthwith b.

lonviction that the defendant h»*
Cn tried, and the defendant,
an appeal is allowed. orifappeaW
tch ^nviction shall not aftem>
fj defect of form whatever, but tfe
fconstructionaswillbeagreeableto

ving the appeal orders either party

fobepaidtotheclerkofthepeace

1^ o^er by him to the perso.

.^hat t^eSle costs shall beM

Lin the time so limited, and the
I abound by any recognizance..
Ca«e or his deputy, on applicaw
fcon on his behalf, and onW

S^-c. 898]

SUMMARY CONVICTIONS.

941

ment of any fee to which he is entitled, shall grant to the person so applying,
a certificate that the costs have not been paid ; and upon production of the
certificate to any justice in and for the same territorial divioion, such justice
may enforce the payment of the costs by warrant of distress in manner afore-
said, and in default of distress may commit the person against whom the
warrant has issued in manner hereinbefore mentioned, for any .arm not
exceeding one month, unless the amount of the costs and all costs and charges
of the distress and also the costs of the commitment and conveying of the
party to prison, if the justice thinks fit so to order (the amount thereof being
ascertained and stated in the commitment), are sooner paid. The said certifi-
cate shall be in the form PPP and the warrants of distress and commitment in
the forms QQQ and RRR respectively in schedule one to this Act. R. S. C.
c. 178, 8. 96.

PP?.— {Section 898.)

CERTIFICATE OF CLERK OF THE PEACE THAT THE COSTS OP
AN APPEAL ARE NOT PAID.

Office of the clerk of the peace for the county of

Title of the Appeal,
I hereby certify that at a Court of General Sessions of the
Peace,, {or ' other court dischaniinij the functions of the Court of
(kneral Sessions, as the case may be), holden at , in and

for the said county, on last past, an appeal by A. B.

against a conviction (or order) of J. S. Esquire, a justice of the
peace in and for the said county, came on to be tried, and was
there heard and determined, and the said Court of General Ses-
sions {or other court, as the case may be) thereupon ordered that
the said conviction (or order), should be confirmed (or quashed),
and that the said (appellant) should pay to the said (respondent)
the sum of , for his costs incurred by him in the said

appeal, and which sum was thereby ordered to be paid to the
clerk of the peace for the said county, on or before the
day ot {instant), to be by him handed over to the said

(respondent), and I further certify that the said sum for costs
has not, nor has any part thereof, been paid in obedience to the
said order. *

Dated at , this day of , one thousand

eight hundred and

G.H.,

Clerk of the Peace.

942

PROCEDURE.

[Seo. m

', 4 '

■;4 ■
i^ 1

QQQ.— (5er<ton 898.)

WARRANT OF DISTRESS FOR COSTS OF AN APPEAL AOAINSl
A CONVICTION OR ORDER.

Canada, \

Province of , >

County of , )

To all or any of the constables and other peace officers in tin
said county of

Whereas (&c., as in the nurranU of distress, DDD or EKE,
and to the end of the statement of the conviction or order, and thei
thus) : And Tvhereas the said A. B. appealed to the Court oi
General Sessions of the Peace {or other cotirt discharginy tht
Junctions of the Court of General Sessions, as the case may be), for
the said county, against the said conviction or order, in which
appeal the said A. B. was the appellant, and the said C. D. (or
J. S., Esquire, the justice of the peace who made the said con-
viction or order) was the respondent, and which said appeal
came on to be tried and was heard and determined at the last
General Sessions of the Peace {or other court, as the case may he)
for the said county, holden at , on , and the said

court thereupon ordered that the said conviction (or order)
should be confirmed (or quashed) and that the said (appellant)
should pay to the said (respondent) the sum of for his

costs incurred by him in the said appeal, which said sum was to
be paid to the clerk of the peace for the said county, on or be-
fore the day of , one thousand eight huudret
and , to be by him handed over to the said CD.; am
whereas the clerk of the peace of the said county has, on the
day of {instant), duly certified that the said
sum for costs had not been paid:* These are, therefore, to
command you, in Her Majesty's name, forthwith to make dis
tress of the goods and chattels of the said A. B., and if, within
the term of days next after the making of such distress, the
said last mentioned sum, together with the reasonable charges
of taking and keeping the said distress, are not paid, theu
to sell the said goods and chattels so by you distrained, and to
pay the money arising from such sale to the clerk of the peace
for the said county of , that he may pay and apply the
same as by law directed ; and if no such distress can be found,

[Sec. 898

AN APPEAL AGAINST
DER.

aer peace officers in the

distress, l>m or EKE.,

aiction or order, and tim

appealed to the Court of

her court discliargmi th^

,g, a$ the case may be), for

iction or order, in which

at, and the said C. D. (<»•

5 who made the said con-

and which said appeal

id determined at the last

,r court, as the case may be)

r,n , and the said

1 , on »

aid conviction (or order)
that the said (appellant)
the sum of for his

,al, which said sum was to

he said county, on or he-
thousand eight hundre
ver to the said CD.; and

,e aaid county has, on the
ly certified that the saul
These are, therefore, to
^e, forthwith to make dis-
said A. B.. and if, withiu
aaking of such distress, the

th the reasonable charges

.tress. are not paid, theu

bvyou distrained, and to

to the clerk of the peace

he may pay and apply lh«

(uch distress can be found,

Sec. 898]

SUMMARY CONVICTIONS.

943

then to certify the same unto me or any other justice of the
peace for the same county that such proceeding (proceedings)
may be had therein as to law appertain.

Given under my hand and seal, this day of

in the year , ftt , in the county aforesaid.

0. K., [SEAI..]

J. P., {Xttnie of county.)

RRR. {Section 898.)

WARRANT OF COMMITMENT FOR WANT OF DISTRESS IN

THE LAST CASE.

Canada, |

Province of , J-

County of . )

To all or any of the constables and other peace officers in the
said county of

Whereas {dr., as inform QQQ, to the asterisk '^'- and then thus) :

day of , in the

And whereas, afterwards, on the

year aforesaid, I, the undersigned, issued a warrant to all or any
of the peace officers in the said county of , commanding

them, or any of them, to levy the said sum of , for costs,

by distress and sale of the goods and chattels of the said A. B. ;
And whereas it appears to me, as well by the return to the said
warrant of distress Of the peace officer who was charged with the
execution of the same, as otherwise, that the said peace officer
has made diligent search for the goods and chattels of the said
A. B., but that no sufficient distress whereon to lew the said
sum above mentioned could be found : These are, therefore, to
command you, the said peace officer, or any one of you, to take
the said A. B., and him safely to convey to the common gaol of
the said county of , at aforesaid, and there

deliver him to the said keeper thereof, together with this
precept : And I do hereby command you, the said keeper of the
said common gaol, to receive the said A. B. into your custody in
the said common gaol, there to imprison him (and keep him at
hard labour) for the term of , unless the said sum and

all costs and charges of the said distress (and for the commit-
ment and conveying of the said A. B. to the said common gaol.

944

PROCEDURE.

[Sees. 899-9

amounting to the further sum of ), are sooner paid un

you, the said keeper ; and for so doing this shall be yoi
sufficient warrant.

Given under my hand and seal, this day of

in the year , at , in the county aforesaid.

0. K., [seal]
J. P., {Name of county.)

«<; \

^U i

(•

/■ I

800* -^M appellant may abandon his appeal by giving to the oppost
jmHi) notice in writing of his intention six clear days before the sitting of the cou
appealed to, and thereupon the costs of the appeal shall be added to the sum ifai
adjudged against the appellant by the conviction or order, and the justice ska
proceed on the conviction or order as if there had been no appeal, R. S. 0. {188}
c. 74, s. 8.

000- In this section the expression " the court " means and includes at
superior court of eriminal jurisdiction for the province in which the proceo
ings herein referred to are carried on.

2. Any person aggrieved, the prosecutor or complainant as well as tt
defendant, who desires to question a conviction, order, determination or othi
proceeding of a justice under this part, on the ground that it is erroneous i
point of law, or is in excess of jurisdiction, may apply to such justice to stal
and sign a case setting' forth the facts of the case and the grounds on which tl
proceeding is questioned, and if the justice declines to state the case, ma
apply to the court for an order requiring the case to be stated.

3. The application shall be made and the case stated within such time an
in such manner as is, from time to time, directed by rules or orders under se
tion five hundred and thirty-three of this Act.

4. The appellant at the time of making such application, and before a cai
is stated and delivered to him by ti>e justice, shall in every instance, enter in
a recognizance before such justi^o w any other justice exercising the san
jurisdiction, with or without surety or sureties, and in such sum as to the ju
tice seems meet, conditioned to prosecute his appeal without delay, and I
submit to the judgment of the court and pay such costs as are awarded by tl
same ; and the appellant shall, at the same time, and before he shall be entith
to have the case delivered to him, pay to the justice such fees as he is entitli
to ; and the appellant, if then in custody, shall be liberated upon the recogi
zance being further conditioned for his appearance before the same justice, i
such other justice as is then sitting, within ten days after the judgment of tl
court has been given, to abide such judgment, unless the judgment appealf
against is reversed.

5. If the justice is of opinion that the application is merely frivolous, bi
not otherwise, he may refuse to state a case, and shall on the request of tl
applicant sign and deliver to him a certificate of such refusal ; provided th
the justice shall not refuse to state a case where the application for thatpurpo
is made to him by or under the direction of Her Majesty's Attorney-Genet
of Canada, or of any province.

• [Sees. 899-900

) are sooner paid unto
ng this shall be your

day of »

5 county aforesaid.

Km [seal]

P., {Name of county.)

^ys before the sUting of the court

!haUheaddedtothesurn^fa..,

^ or ord,r,arul the justue Ml

leen no appeal. It.S.O.(m\

, court "means and includesany
prvince in which the proceed.

, or complainant as well aB the
'order, determination or other
^'g^undthatitiserroneou-n
Hvanoly to such iuatice to state
SeTd the grounds on whichte

[declines to state the ca^e. may
[case to be stated.

1 . •» ,««relv frivolous.*'*

LpUcation^smere^l ^j^^^

L, and shall on the req^^^^
late of such refusal provi

Lethe application for^^^^^^^^
I Her Majesty's Attorney

Sec. 90O]

SUMMARY CONVICTIONS.

945

6. Where the juotice refuses to state a case, it shall be lawful for the
appellant to apply to the court, upon an affidavit of the facts, for a rule calling
upon the justice, and also upon the respondent, to show cause why such case
should not be stated ; and such court may make such rule absolute, or discharge
the application, with or without payment of costs, as to the court seems meet ;
and the justice upon being served with such rule absolute, shall state a case
accordingly, upon the appellant entering into such recognizance as hereinbefore
provided.

7. The court to which a case is transmitted under the foregoing provisions
shall hear and determine the question or questions of law arising thereon, and
shall thereupon affirm, reverse or modify the conviction, order or determination
in respect of which, the case has been stated, or remit the matter to the justice
with the opinion of the court thereon, and may make such other order in rela-
tion to the matter, and such orders aa to costs, as to the court seems fit ; and
all such orders shall be final and conclusive upon all parties : Provided always^
that any justice who states and delivers a case in pursuance of this section shall
not be liable to any costs in respect or by reason of such appeal against his
determination.

8. The court for the opinion of which a case is stated shall have power, if
it thinks fit, to cause' the case to be sent back for amendment ; and thereupon
the same shall be amended accordingly, and judgment shall be delivered after
it has been amended.

9. The authority and jurisdiction hereby vested in the court for the
opinion of which a case is stated may, subject to any rules and orders of court
in relation thereto, be exercised by a judge of such court sitting in chambers^
and as well in vacation as in term time.

10. After the decision of the court in relation to any such case stated for
their opinion, the justice in relation to whose determination the case has been
stated, or any other justice exercising the same jurisdiction, shall have the same
authority to enforce any conviction, order or determination which has been
affirmed, amended or made by )«uah court as the justice who originally decided
the ca^ie would have had to enforce his determination if the same had not been
appealed against ; and no action or proceeding shall be commenced or had
against a justice for enforcing such conviction, order or determination by rear-
son of any defect in the same.

11. If the court deems it necessary or expedient any order of the court may

be enforced by its own process.

12. No writ of certiorari or other writ shall be required for the removal of
any conviction, order or other determination in relation to which a case i»
stated under this section or otherwise, for obtaining the judgment or determina-
tion of a superior court on such case under this section.

13. In all cases where the conditions, or any of them, in any recognizance'
I entered into in pursuance of this section have not been complied with, suohs
I fecognizance shall be dealt with in like manner as is provided by section eight
I hundred and seventy-eight with respect to recognizances entered into there-

1 under.

14. Any person who appeals imder the provisions of this section againstt
[ any determination of a justice from which he is entitled to an appeal under

Crim. Law— 60

946

PROCEDURE.

[Sees. 901-9

section eight hundred and seventy-nine of this Act, shall be taken to ha'
Abandoned such last mentioned right of appeal finally and conclusively and
fiH intents and purposes.

15. Where, by any special Act, it is provided that there shall be no appei
from any conviction or order, no proceedings shall be taken under this sectio
in any case to which such provision in such special Act applies. 53 V. c. 3;
«. 28, 42-43 V. c. 49, (Imp.).

001. Whenever a warrant of distress has issued against any persoi
'&nd such person pays or tenders to the peace officer having the execution of th
same, the sum or sums in the warrant mentioned, together with the amoun
'Of the expenses of the distress up to the time of payment or tender, the peac
officer shall cease to execute the same. R. S. C. c. 198 (178), s. 97.

2. Whenever any person is imprisoned for non-payment of any penaltj
•or other sum, he may pay or cause to be paid to the keeper of the prison it
which he is imprisoned, the sum in the warrant of commitment mentioned,
together with the amount of the costs and charges and expenses therein also
mentioned, and the keeper shall receive the same, and shall thereupon dis-
•charge the' person, if he is in his custody for no other matter. He shall also
Jorthwith pay over any moneys so received by him to the justice who issued the
warrant. R. S. 0. c. 198 (178), s. 98.

OOSt* Every justice shall, quarterly, on or before the second Tuesday in
each of the months of March, June, September and December in each year,
make to the clerk of the peace or other proper officer of the court having!
jurisdiction in appeal, as herein provided, a return in writing, under his
hand, of all convictions made by him, and of the receipt and application by]
him of the moneys received from the defendants, — which return shall include I
all convictions and other matters not included in some previous return, and]
shall be in the form SSS in schedule one to this Act.

2. If two or more justices are present, and join in the conviction, theyj
shall make a joint return.

3. In the province of Prince Edward Island such return shall be made tol
the clerk of the court of assize of the county in which the convictions are|
made, and on or before the fourteenth day next before the sitting of the i
court next after such convictions are so made.

4. Every such return shall be made in the said district of Nipissing, id
the province of Ontario,' to the clerk of the peace for the county of Renfrew|
in the said province. R. S. C. c. 178, s. 99. {Amended.)

5. Every justice, to whom any such moneys are afterwards paid, i
make a return of the receipts and application thereof, to the court having
jurisdiction in appeal as hereinbefore provided, — which return shall be filw
by the clerk of the peace or the proper officer of such court with the records o|
his office. R. S. C. c. 178, s. 100.

6. Every justice, before'whom any such conviction takes place or wdJ
receives any such moneys, who neglects or refuses to make such return thereofi
or wilfully makes a false, partial or incorrect return, or wilfully receives f
larger amount of fees than by law he is authorized to receive, shall incurj
penalty of eighty dollars, together \vith costs of suit, in the discretion of I'm

[SeOB. 901-902

,f shall be tal'e" *° ^f
i';:nd conclusively and to

,at there shall be no appeal
^Valcen under this -Uon
^ActapplieB. 53V.C.37,

^'^^tierSth the amount
Jk^- tender, ..e peace

„„ oavment of any penal y
non-payni« prison m

- *^^ ^^r^l -e'ntioned,
^^"'•'TS^^e therein alBO

^^'''ndsS thereupon di.
ame. and snai ^^^^ ^j^^

[tion thereof, to tne ^^

I ? *«Afe8 place or *

U conviction takP^^^^^^^l,

Sec. 903]

^TTMMARY CONVICTIONS.

947

court, which may be recovered by any person who sues for the same by action
of debt or information in any court of record in the province in which such
return ought to have been or is made. R. S. C. o. 178, s. 101.

7. One moiety of such penalty shall belong to the person suing, and the
other moiety to Her Majesty, for the public uses of Canada.

SSS.— (Section 902.)

Return of convictions made by me (or us as the case may he),
during the quarter ending

0 o

73
a
o

*- .

§1

so
<

2.1

o s
■S-d

- »

•So
o2

'3 u

If not paid, why not, and general obBervations
if any.

J. S., Convicting Justice,

J. S. and 0. K., Convicting Justices {us the case may be.)

ttOJI The clerk of the peace of the district or county in which any such
returns are made, or the proper officer, other than the clerk of the peace, to
whom such returns are made, shall, within seven days after the adjournment
of the next ensuing General or Quarter Sessions, or of the term or sitting of
such other court as aforesaid, cause the said returns to be posted up in the
court-house of the district or county, and also in a conspicuous place in the
oice of such clerk of the peace, or other proper officer, for public inspection,
and the same shall continue to be so posted up and exhibited until the end of
the next ensuing General or Quarter Sessions of the Peace, or of the term or
^ sittinsr of such other court as aforesaid ; and for every schedule so made and
exhibited by such clerk or officer, he shall be allowed such fee as is fixed by
competent authority. R. S. C. c. 178, s. 103.

m '

!*■<

vp"

->\tf^ Ajlv.-

'•^

' t
f

J-
4 *

r • *

MJi

948

PROCEDURE.

[Sees. 904-90

2. Such clerk of the peace or other ofiBcer of each district or county
within twenty days after the end of each General or Quarter Sessions of thi
Peace, or the sitting of such court as aforesaid, shall transmit to the Miniate
of Finance and Receiver-Greneral a true copy of all such returns made withii
his district or county. R. S. C. c. 178, s. 104.

The repealed clause also required publication in a news
paper.

004- All actions for penalties arising under the provisions of sectioi
nine hundred and two shall be commenced within six months next after th
cause of action accrues, and the same shall be tried in the district, county o
place wherein such penalties have been incurred ; and if a verdict or judgmen
passes for the defendant, or the plaintiff becomes non-suit, or discontinue
the action after issue joined, or if, upon demurrer or otherwise, judgmen
is given against the plaintiff, the defendant shall, in the discretion of tk
court, recover his costs of suit, as between solicitor and client, and shal
have the like remedy for the same as any defendant has by law in other cases
R. S. C. fc. 178, 8. 102.
f

OOS. Nothing in the three sections next preceding shall have the e£Fecl
of preventing any person aggrieved from prosecuting, by indictment, any
justice, for any offence, the commission of which would subject him to indict
ment at the time of the coming into force of this Act. R. S. C. c. 178, s. 105.

000. No return purporting to be made by any justice under this Ac
shall be vitiated by the fact of its including, by mistake, any convictions o
orders had or made before him in any matter over which any Provincia
Legislature has exclusive jurisdiction, or with respect to which he acted unde
the authority of any provincial law. R. S. C. c. 178, s. 106.

907". No information, summons, conviction, order or other proceedinj
shall be held to charge two offences, or shall be held to be uncertain on accuun
of its stating the offence to having been committed in different modes, or i
respect of one or other of several articles, either conjunctively or disjunctively
for example, in charging an offence under section five hundred and eight (
this Act it may be alleged that "the defendant unlawfully did cut, break, roc
up and otherwise destroy or damage a tree, sapling or shrub " ; and it shall m
be necessary to define more particularly the nature of the act done, or to stat
whether such act was done in respect of a tree, or a sapling, or a shrul
R. S. C. c. 178, B. 107.

The words " cut, break, root up " of the repealed s. If
c. 168, R. S. C. have been left out of s. 508, ante, and arj
consequently erroneously inserted in this clause. S. 109
relating to seal on documents by justices has not beej
re-enacted ; see Bond v. Conmee, 16 A. R. Ont. 398, coi[
firmed in Supreme Court, Afarch 20, 1890.

tS«=s. 904-907 I ■'''^' '^' «««J SUMMARY CONVICI.ons.

i publication in a news-

»08 E • ^^^

diary .a.is.rate.{h:stT:^s:„^t^^^^^^^ '"^'^^ ^^^i:z;j

order in the said courts durinir th« h^u ^^^'^ *°'* authority to ZT

l.ke punx,ses by any court in CanX or hwl"''^ '" "'^^"-^^^^nd^^^^
-ttings thereof. R. g. C. c. 178. s S "' ^^ *''« J^^fi^e^ thereof, during tl

stipendiary „.agistrate.wher;er:n; 4'^^^^^^^^^ diatric. LjJZl'H

*ny summons, warrant of execution or oZ " ^^^"^ *° *^« ''^ecution o
he due execution of the same bX^elt f ™"«^« »«»«! '^^ ^^^' '"ay erTri

theexecutionoftheprocessof^hetrurLrcts'^i^y-^

950

PROCEDURE.

[Sees. 910-914

PART LIX.

RECOGNIZANCES.

Render of Accused by Surety.

010. Any surety for any person charged with any indictable offence may
upon affidavit showing the grounds therefor, with a certified copy of the recog-
nizance, obtain from a judge of a superior court or from a judge of a county
court having criminal jurisdiction, or in the province of Quebec from a district
magistrate, an order in writing under his hand, to render such person to the
common gaol of the county where the offence is to be tried.

2. The sureties, under such order, may arrest such person and deliver him,
with the order, to the gaoler named therein, who shall receive and imprison
him in the: said gaol, and shall be charged with the keeping of such person
until he is discharged by due course of law. R. S. C. c. 179, ss. 1 & 2,

The words in italics are new.

Bail after Render.

911. The person rendered may apply to a judge of a superior court, or in
cases in which a judge of a county court may admit to bail, to a judge of a ]
county court, to be again admitted to bail, who may on examination allow or
refuse the same, and make such order as to the number of the sureties and the
amount of recognizance as he deems meet, — which order shall be dealt with in
the same manner as the first order for bail, and so on as often as the case
requires. R. S. C. o. 179, s. 3.

Discharge of Recognizance.

OlS. On due proof of such render, and certificate of the sheriff, proved
by the affidavit of a subscribing witness, that such person has been so rendered,
a judge of the superior or county court, as the case may be, shall order an
entry of such render to be made on the recognizance by the officer in charje
thereof, which shall vacate the recognizance, and may be pleaded or alleged in
discharge thereof. R. S. 0. c. 179, s. 4.

Render in Court.

013. The sureties may bring the person charged as aforesaid into the
court at which he is bound to appear, during the sitting thereof, and then, by
leave of the court, render him in discharge of such recognizance at any time
before trial, and such person shall be committed to gaol, there to remain until
discharged by due course of law ; but such court may admit such person to 1
for his appearance at any time it deems meet. R. S. C. c. 179, s. 5.

Sureties Not Discharged by Arraignment or Conviction.

014. The arraignment or conviction of any person charged and bound as
aforesaid, shall not discharge the recognizance, but the same shall be effectual

Sees. 915, 916]

RECOGNIZANCES.

951

L 'charged an afo«>Baidin^;J;

[the Bitting thereo • and th r^^ .

■ 8«ch recognizance at any
L^ to gaol, there to remain unti
K'ay^dUBUch person toU.
f R. S. C. c. 179, 8. 5.

[lONMKNT OR CONVICTIOJ!.

L„yper.onchargedan^^-i;
le, but the same shall been

for his appearance for trial or sentence, as the case may be ; nevertheless the
court may commit such person to fjaol upon his arraignment or trial, or may
require new or additional sureties for his appearance for trial or sentence, as
the case may be, notwithstanding such recognizance ; and such commitment
shall be a discharge of the sureties. R. S. C. c. 179, s. 6.

RlliHT OP SURKTY TO RENDER NOT AFFECTED.

9 IS. Nothing in the foregoing provisions shall limit or restrict any
right which a surety now has of taking and rendering to custody any person,
charged with any such offence, and for whom he is such surety. R. S. 0«
c. 179, 8. 7.

Entry of Fines, Etc., on Record and Recovery Thereop.

016. Unless otherwise provided, all fines, issues, amercementa and for-
feited recognizances, the disposal of which is within the legislative authority
of the Parliament of Canada, set, imposed, lost or forfeited before any court of
criminal jurisdiction shall, within twenty-one days after the adjournment of
such court be fairly entered and extracted on a roll by the clerk of the court,
or in case of his death or absence, by any other pe* 'on, under the direction of
the judge who presided at such court, which roll shall be made in duplicate
and signed by the clerk of the court, or in case of his death or absence, by such
judge.

2. If such court is a superior court of criminal jurisdiction one of such rolls
shall he filed with the clerk, prothonotary, registrar or other proper officer —

(a) in the province of Ontario, of a division of the High Court of Justice ;
(6) in the provinces of Nova Scotia, New Brunswick and British Columbia,
of the Supreme Court of the province ;

(d) in the province of Manitoba, of the Court of Queen's Bench of that
province ; and

(e) in the North-west Territories, of the Supreme Court of the said terri-
tories,—

on or before the first day of the term next succeeding the court by or
before which such fines or forfeitures were imposed or forfeited.

3. If such court is a court of General Sessions of the Peace, or a county
court, one of such rolls shall remain deposited in the office of the clerk of such:

court.

4. The other of such rolls shall, as soon as the same is prepared, be sent by
the clerk of the court making the same, or in case of his death or absence, by
such judge as aforesaid, with a writ of fieri facias and capias, according to the
form TTT in schedule one to this Act, to the sheriff of the county in and for
which such court was holden ; and such writ shall be authority to the sheriff for
proceeding to the immediate levying and recovering of such fines, issues,
amercements and forfeited recognizances, on the goods and chattels, lands and
tenements of the several persons named therein, or for taking into custody
the bodies of such parsons respectively, in cas<e sufficient goods and chattels,
lands or tenements cannot be found, whereof the sums required can be made ;

,4'
i. ■)

952

PROCEDURE.

[Sec. 0

and every person so taken shall be lodged in the common gaol of the count
until satisfaction is made, or until the court into which such writ is returfinl^l
upon cause shown by the party, as hereinafter mentioned, makes an ord«r
the case, and until such order has been fully compliKl with.

6. The clerk of the court shall, at the foot of each roll made out as here
directed, make and take an affidavit in the following form, that is to say :

"I, A. B. {describing his office), make oath that this roll is truly and careful
xaade up and examined, and that all fines, issues, amercements, recognizanc
and forfeitures which were set, lost, im))osed or forfeited, at or by the con
therein mentioned, and which in right and due course of law, ought to }
levied and paid, are, to the best of my knowledge and understanding, insertt
in the said roll ; and that in the said roll are also contained and expressed o
such fines as have been paid to or received by ni9, either in court or otlierwiw
without any wilful discharge, omission, misnomer or defect whatsoever, fl
help me God ; "

Which oath any justice of tiie peace for the county is hereby authorize
to administer. R. S. C. c. 179, ss. 8, 0 & 15.

Not applicable to Quebec.

^41 .:

II I ■^•
ti I. *■

>i. =

ITT .—{Section 016.)

WRIT OF FIERI FACIAS.

Victoria, by the Grace of God, &c.

To the sheriflf of , Greeting :

You are hereby commanded to levy of the goods and chattels
lands and tenements, of each of the persons mentioned in tli
roll or extract to this writ annexed, all and singular the de
and sums of money upon them severally imposed and chargec
as therein is specified ; and if any of the said several debts can
not be levied, by reason that no goods or chattels, lands
tenements can be found belonging to the said persons, respec
tively, then, and in all such cases, that you take the bodies
such persons, and keep them safely in the gaol of your coun
there to abide the judgment of our court {as the case wan '
upon any matter to be shown by them, respectively, or otherwia
to remain in your custody as aforesaid, until such debt
satisfied unless any of such persons respectively gives sufficiei
security for his appearance at the said court, on the return da
hereof, for which you will be held answerable ; and what you (
in the premises make appear before us in our court {an the ca.
may be,) on the day of , term next, and have the

[Sec. ok;

.ommongaolof thecmmty.
hichHUchwritUretuAable,
^eutionerl. makes an order ,n

lied with,
each roll made out as herein

inKfomi,thati8tosay:
thU roll b truly and carefully
,, ainei-cementH. rect,(n»7.ance.
forfeited, at or by the court
;e course of law, oupht to he
e and understanding, laserted
,o contained and expre^'-^d all
..either in court or otherwise,
,er or defect whatsoever. Ho

Sees. 917-!)li)]

RECOGNIZANCES.

953

county is hereby authorized

ACIAS.

ig-

■ of the goods and chattels,
persons mentioned in tbe
all and singular the debts
■ally imposed and charged,
the said several debts can-

oods or chattels, lands or
■0 the said persons, respec-
.Uat you take the bodies of
n the gaol of your county.
' court («.s the cnw mil H
a respectively, or otherwise
.rUaid. until such debt .
respectively gives sufficient
aid court, on the return day
.swerable; andvvhatyoudo

Ls in our court (.« the cm
' , term next, and have then

and there this writ. Witness, &c., G. H., clerk {m the case
iiifiy bi').

OrricEK TO Prepare Lists of Pkhsons Under Recoonizance Making

Defaclt.

917. If any person bound by recognizance for his appearance (or for
whose appearance any other person has become so bound) to prosecute or give
evidence on the trial of any indictable offnnce, or to answer for any common
assault, or to articles of the peace, makes default, the officer of the court by
whom the estreats are made out, shall prepare a list in writing, specifying the
name of every person so making default, and the nature of the offence in
respect of which such person, or his surety, was so bound, together with the
residence, trade, profession or calling of every such person and surety,— and
shall, in such list, distinguish the principals from the sureties, and shall state
the cause, if known, why each such iwrson did not appear, and whether, by
reason of the non-api^earance of such person, the ends of justice have been
defeated or delayed. R. S. C. c. 179, s..lO.

Proceeding on Forfeited Recoonizance not to be taken except on

Order of Judge, Etc.

91 8> Every such officer shall, before any such recognizance is estreated,
lay such list before the judge or one of the judges who presided at the court, or
if such court was not presided over by a judge, before two justices of the peace
who attended at such court, and such judge or justices shall examine such list,
and make such order touching the estreating or putting in process any such
recognizance as appears just, subject, in the province of Quebec, to the pro-
visions hereinafter contained ; and no officer of any such court shall estreat or
put in process any such recognizance without the written order of the judge or
justices of the peace before whom respectively such list has been laid. R. S. C.
c. 179, 8. 11.

Recognizance need not be Estreated in Certain Cases.

019. Except in the cases of persons bound by recognizance for their
appearance, or for whose appearance any other person has become bound to
prosecute or give evidence on the trial of any indictable offence, or to answer
for any common assault, or to articles of the peace, in every case of default
whereby a recognizance becomes forfeited, if the cause of absence is made
known to the court in which the person was bound to appear, the court, on
consideration of such cause, and considering also, whether, by the non-appear-
inoe of such person the ends of justice have been defeated or delayed, may
forbear to order the recognizance to be estreated ; and, with respect to all
recoprnizances estreated, if it appears to the satisfaction of the judge who
presided at such court that the absence of any person for whose appearance
any recognizance was entered into, was owing to circumstances which
rendered such absence justifiable, such judge may make an order directing
that the sum forfeited upon such estreated recognizance shall not oe levied.

2. The clerk of the court shall, for such purpose, before sending to the sheriff
any roll, with a writ of ,fieri facias and capias, as directed by section nine
hundred and sixteen, submit the same to the judge who presidec it the court,

:!'

954

PROCEDURE.

[SeoH. 920-9231

I •:

and such judge may make a minute on the said roll and writ of any Buch
forfeited recognizances and fines as he thinks fit to direct not to be levied ;
and the sheriff shall observe the direction in such minute written upon such
roll and writ, or endorsed thereon: and shall forbear accordingly to levy any
such forfeited recognizance or fine. R. S. C. o. 179, ss. 12 & 13.

Not applicable to Quebec.

Sale of Lands by Sheriff under Estreated Recognizance.

(ISO. If upon any writ issued under section nine hundred and sixteen,
the sheriff takes lands or tenements in execution, he shall advertise the name
in like manner as he is required to do before the sale of lands in execution in
other cases ; and no sale shall take place in less than twelve months from the'
time the writ came to the hands of the sheriff. R. S. C. c. 179, s. 14.

Not applicable to Quebec.

DiSCHAROE FROM CUSTODY ON GiVINO SECURITY.

021. If any person on whose goods and chattels a sheriff, bailiff or other
officer IS authorized to levy any such forfeited recognizance, gives security to
the said sheriff or other officer for his appearance at the return day mentioned
in the writ, in the court into which such writ is returnable, then and there to
abide the decision of such court, and also to pay such forfeited recognizance, or
sum of money to be paid in lieu or satisfaction thereof, together with all such
expenses as are adjudged and ordered by the court, such sheriff or officer shall
discharge such person out of custody, and if such person does not appear in
pursuance of his undertaking, the court may forthwith issue a writ of Jieri
facias and capias against such person and the surety or sureties of the person.
so bound as aforesaid. R. S. C. c. 179, a. 16.

Not applicable to Quebec.

Discharge of Forfeited Recognizance.

OSS. The court, into which any writ of fieri facias and capias issued
under the provisions of this part* is returnable, may inquire into the circum.
stances of the case, and may in its discretion, order the discharge of the whole
of the forfeited recognizance, or sum of money paid or to be paid in lieu or
satisfaction thereof, and make such order thereon as to such court appears just ;
and such order shall accordingly be a discharge to the sheriff, or to the party,
according to the oircumstances of the case. R. S. 0. c. 179, s. 17.

Not applicable to Quebec.

Return of Writ by Sheriff.

OSS. The sheriff, to whom any writ is dirpcted under this Act, shall
return the same on the day on which the same is made returnable, and shall
state, on the back of the roll attaohed to such writ, what has been done in the
execution thereof ; and. such return shall be filed in the court into which such
return is made. R. S. C. c. 170, s. 18.

Not applicable to Quebec.

[Seen. 920-923

roll and writ of any such
to direct not to be levied;
minute written upon such
.ar accordingly to levy any
. »8. 12 & 13.

kTED RECOOSIZANCK.
nine hundred and sixteen,
he shall advertise the same

8ftle of lands in execution m

lan twelve months from the-

I. S. C. c. 179, «. 14.

visa Security.
attels a sheriff, bailitf or other
.ecognizance, gives security to
eat the return day mentioned
.returnable, then and there to

such forfeited recognizance, or
thereof, together with all such
art, such sheriff or officer shall
ch person does not appear in
forthwith issue a writ of .fter.
urety or sureties of the perm

KCOONIZANCE.

ieri facias and capias issued

may inquire into the crcum.

X the discharge of the .hole

. paid or to be paid in heu cr
„nasto9«chcourtappearH3«st,

to the sheriff, or to the party,

S. C. c. 179, 8, 17.

BHBBIFI''.

[dirpcted under this Act^Jall
Lis made returnable, and shaj
■writ, what has been done mt
Vd in the court into which such

Sees. 924-926]

RECOGNIZANCES.

955

Roll and Return to be Thanbmitted to Minister op Finance.

984. A copy of such roll and return, certified by the clerk of the court
into which such return is made, shall be forthwith transmitted to the Minister
•)f Finance and Receiver-General, witli a minute thereon of any of the sums
therein mentioned, which have been remitted by order of the court, in whole
or in part, or directed to be forborne, under the authority of section nine
hundred and nineteen. R. S. C. c. 179, a. 19.

Not applicable to Quebec.

Appropriation op Monies Collected by Sherikk.
99fi. The sheriff or other officer shall, without delay, pay over all
moneys collected under the provisions of this part by him, to the Minister of
Finance and Receiver-General, or other person entitled to receive the same.
R. S. C. c. 179, H. 20.

Special Pkovihions for Quebec.

0S0> The provisions of sections nine hundred and sixteen and nine hun.
dred and nineteen to nine hundred and twenty-four, both inclusive, shall not
apply to the province of Quebec, and the following provisions shall apply to
that province only :

2. Whenever default is made in the condition of any recognizance lawfully
entered into or taken in any criminal case, proceeding or matter, in the pro-
vince of Quebec, within the legislative authority of the Parliament of Canada,
so that the penal sum therein mentioned becomes forfeited and due to the
Crown, such recognizance shall thereupon be estreated oi withdrawn from any
record or proceeding in which it then is— or where the recognizance lias been
entered into orally in open court— a certificate or minute of such recognizance,
under the seal of the court, shall be made from the records of such court.

(«) Such recognizance, certificate or minute, as the case may be, shall be
transmitted by the court, recorder, justice of the peace, magistrate or other
functionary before whom the cognizor, or the principal cognizor, where there is
a surety or sureties, was bound to appear, or to do that, by his default to do
which the condition of the recognizance is broken, to the Sujierior Court in the
district in which the place where such default was made is included for civil,
purposes, with the certificate of the court, recorder, justice of the peace,
magistrate or other functionary as aforesaid, of the breach of the condition of
such recognizance, of which and of the forfeiture to the Crown of the penal sum
therein mentioned, such certificate shall be conclusive evidence ;

(I) The date of the receipt of such recognizance or minute and certificate
by the prothonotary of the said court, shall be endorsed thereon by him, and
he shall enter judgment in favour of the Crown against the cognizor for the
(jeual sum mentioned in such recognizance, and execution may issue therefor-
after the same delay as in other cases, which shall be reckoned from the time
when the judgment is entered by the prothonotary of the said court ;

(c) Such execution shall issue upon fiat or prwcipe of the Attorney-General,,
or of any per<ton thereunto authorized in writing by him ; and the Crown shall
be entitled to the costs of execution and to costs on all proceedings in the case
subsequent to execution, and to such costs, m the discretion of the court, for the
entry of the judgment, as are fixed by any tariff.

956

PROCEDURE.

[Sec. 0

li ■;

;;<■■„ i

•■■• (

-J . <

■a

3. Nothing in this section contained »hall prevent the recovery of the hu
forfeited by the breach of any reougniicance from being recovered by Huit in tl
manner provided by law, whenever the sanie cannot, for any reaHon, I
recovered in the manner provided in thirf i«ection ; •

{a) In Buch cane the sum forfeited by the non-iierfonnance of the oont"
tions of Huch recognizance shall be recoverable, with cost^, by action in at
court having jurifidiction in civil oases to the amount, at the suit of the Attd
ney-6eneral of Canada or of Quebec, or other person or officer authorized
■ue for the Crown ; and in any such action it shall be held that the \)eTiK
suing for the Crown is duly empowered su to do, and that the conditions of tl
recognizance were not performed, and that the sum therein mentioned i
therefore, due to the Crown, unless the defendant proves the contrary.

4. In this section, unless the context otherwise requires, the expreH^ir
" cognizor " includes any number of oognizors in the same recognizano
whether as principals or sureties.

6. When a person has lieen arrested in any district for an offence coinmii
ted within the limits of the province of Quebec, and a justice of the ))eace In
taken recognizances from the witnesses heard before him or another justice (
the peace, for their api)earance at the next session or term of the court of con
petent criminal jurisdiction, before which such person is to undergo his tria
there to testify and give evidence on such trial, and such recognizances hav
been transmitted to the office of the clerk of such court, the said court ma
proceed on the said recognizances in the same manner as if they had bee
taken in the district in which such court is held. R. S. C. o. 170, ss. 21, i
and 23.

The mere failure of the party to answer, wheu called, i
the term subsequent to that in which he was arraigne
could not operate as a forfeiture of his bail: The Atty
General v. Beaulieu. 3 L. C. J. 117.

On an information against the bail or surety of a perso
charp;ed with subornation of perjury, held, that after th
accused has pleaded guilty to an indictment, no defau
can be entered against him, except on a day fixed for h
appearance, and that it is the duty of the court to estret
tld recognizances in cases like the present : K- v. Croteai
9 L. C. R. 67.

A recognizance taken before a police magistrate uQd(
82 & 33 V. c. 30, s. 44, (D.), omitted the words " to o^e'
Held, fatal, and that an action would not lie upon tl
instrument as a recognizance : R. v. Hoodless, 45 U. C Q. i
556.

[Hec. «20

ivent the recovery of thi- huiu

jeinf? recovered by Kvut in th«

cannot, for wiy reason. In,

ion-l>erformance of the oimdi-
with cost*, by action in any
,ount,atthe.uitoftheAttor.

,,er«on or officer authorized to
Hhall be held that the i*rs.m
and that the condition* of the
,e sum therein mentioned w,
It proves the contrary,
.rwise require., the expresnicm
ra in the same recognizance,

rdiHtrict for an offence commit.
„,andaju8ticeofthepeacelia«
before him or another justice of
,io„ or term of the court of com.
,h person is to undergo hi« trial,

Bl and such recognizances have

Buch court, the said court may

.e manner as if they had W^

[held. R.S.C. 0.1(0, S9. -1,-K

3 answer, wbeu called, iu
which he was arraigned
, of bis bail: The Mty.-

I bail or surety of a person
ury. held, that after the
, indictment, no default
pt on a day fixed for his
iv of the court to estreat
|epre8ent:R.v. Croteau,

» police magistrate unaer
Ited the words " to ovse :

1 ^ould not lie upon the
v.Hoodles8,45U.C.Q.B.

Sec. !)2«1

recoonizaxcf.s.

957

Held, that the forfeiture of a recognizance to appear was
a debt sufficient to sup^ ^rt the application for an attach-
ment under the Absconding Debtor's Act, and that such
writ may be granted at the suit of the crown, where the
defendant absconds to avoid being arrested for a felony : R.
V. Stewart, 8 P. R. Ont. 297.

A recognizance of bail put in on behalf of a prisoner,
recited that he had been indicted at the court of general
sessions of the peace for two separate offences, and the con-
dition was, that he should appear at the next sitting of said
court, and plead to such indictment as might be found
against him by the grand jury; at the next of said sittings,
the accused did not appear, and no new indictment was
found against him : Held, that the recitals sufficiently
showed the intention to be that the accused should appear
and answer the indictments already found, and that an
order estreating the recognizance was properly made : Re
Gauthreaux's Bail, 9 P. R. Ont. 81.

If no indictment is found, the non-appearance of th&
defendant does not forfeit the recognizance : R. v. Ritchie,.
1 U. C. L. J. (N. S.) 272.

■958

PROCEDURE.

[Sees. 927-930

PART LX.

FINES AND FORFEITURES.

Appropriation of Fixes, Etc.

037. Whenever no other provision is made by any law of Canada for
the application of any fine, penalty or forfeiture iini)osed for the violation of
a,ny such law, the same shall belong to the Crown for the public uses of
Canada.

2. Any duty, penalty or sum of money, or the proceeds of any forfeiture,
which is, by any Act, given to the Crown, shall, if no other provi-sion is made
respecting it, form part of the Consolidated Revenue Fund of Canada, and
shall be accounted for and otherwise dealt with accordingly. R. S. C. c. 180,
SS.2&4.

AppLio.vnoN OF Fines, Etc., by Order in Council.

9t(S« The Governor in Council may from time to time direct that any
fine, penalty or forfeiture, or any portion thereof, which would otlierwise
belong to the Crown for the public uses of Canada, be paid to any provincial,
municipal or local authority, which wholly or in part bears the exjienses of
administering the law under which such fine, jienalty or forfeiture is impo.^ed,
or that the same be applied in any other manner deemed best adapted to attain
the objects of such law and to secure its due administration. K. S. C. c. 180,
s. 3.

Recovery" of Penalty or Forfeitlke.

030' Whenever any pecuniary penalty or any forfeiture is imposed for
any violation of any Act, and no other mode is piv.scribed for the recovery
thereof, such penalty or forfeiture shall be recoverable or enforceable, witli
costs, in the discretion of the court, by civil action or proceeding at the i-uit of
Her Majesty only, or of any private party suing as well iar Her Majesty as
for himself — in any form allowed in such case by the law of that province in
which it is Ijrought — before any court having jurisdiction to the amount of the
penalty in cases of simiile contract — upon the evidence of any one credible
witness other than tlie jilaintiff or party interested ; and if no other provision
is made for tlie appropriation of any penalty or forfeiture so recovered or
enforced, one moiety shall belong to Her Majesty, and the other moiety shall
belong to the private party suing for the same if any, and if there is none, tlie
whole shall belong to Her Majesty. R. S. C. c. ISO, s. 1.

Limitation of Action.

030- No action, suit or information shall be brought or laid for any
penalty or forfeiture under any such Act except within two years after the
cause of action arises or after the offence is committed, unless the time is
otherwise limited by such Act. R. S. C. c. 160, s. 5.

[Sect. 927-030

Sees. (©1-933]

PUNISHMENT.

959

RES.

Etc.

. by any law of Canada for
Lmix)sed for the violation of
own for the public uses of

e proceeds of any forfeiture,
f 110 other provision is made
/^nue Fund of Canada, and
.ccordirgly. R. S.C.C.1S0.

DER IN Council.
time to time direct that any
reof, which would otherwise
da, be paid to any provincial,
n part bears the expenses of
halty or forfeiture is impo.^ed,
deemed best adapted to attani
ninistration. U. S. C. c. ISU,

loKFF.rrUKE.

■my forfeiture is imposed for
s prescribed for the recovery
pcverable or enforcea\)le, with
[on or proceeding at the suit ot
L as well for Her Majesty as
,V the law of that province in
.•i.,liction to the amount of tlie

, evidence of any one credible
ted ; and if no other provision

or forfeiture so recovered or
;y, and the other moiety sHa"

any, and if there is none, the

180, 8. 1.

llON.

ai be brought or laid fur .vny
,,t within two years after tie
committed, unless the t.uie i»

s. r7.

TITLE VHI.
PROCEEDINGS AFTER CONVICTIOX.

PART LXI.

PUNISHMENTS GENERALLY.

Punishment After Conviction only.
931 Whenever a person doing a certain act is declared to be guilty of
any offence, and to be liable to punishment therefor, it shall be understood
that such iierson shall only be deemed guilty of such offence and liable to such
punisliment after being duly convicted of such act. R. S. C. c. 181, s. 1.

Degrees in Punishment.

03/S- Whenever it is provided that the offender shall be liable to dif-
ferent degrees or kinds of punishment, the punishment to be inflicted shall,
subject to the limitations contained in the enactment, be in the discretion
of the court or tribunal before which the conviction takes place. R. S. C.
c. 1«1, s. 2.

Liability under Different Provisions.

033- Whenever any offender is punishable under two or more Acta or
two or more sections of the same Act, he may be tried and punished under
any of such Acts or sections ; but no person shall be twice punished for the
same offence. R. S. C. c. 181, s. 3.

This section enacts that where an offender is punishable
under two or more Acts, or two or more sections of the same
Act, he may be punished under either. This is taken from
the Imperial Code, but the Imperial Code went further, and
enacted that thereafter no offence should be indictable at
common law. This s. 933 of this Code leaves the common
law in force. The rule is, that if a common law misde-
meanour is made subject to a greater punishment by statute
it may still be proceeded against as a common law misde-
meanour ; but if a common law misdemeanour is made a
felony the misdemeanour has ceased to exist; and where an
ofi'ence punishable at common law is made by statute
punishable by a summary conviction both remedies exist :
Hamilton v. Massie, 18 0. R. 585; 2 Hawk. c. 25, s 4;

960

PROCEDURE.

[Sees. 934-93(j

R. V. Wigg, 2 Salk. 460; R. v. Wright, 1 Burr. 543 ; R. v.
Robinson, 2 Burr. 800; R. v. Carlile, 3 B. & Aid. 161;
R. V. Gregory, 5 B. & Ad. 555 ; R. v. Crawshaw, Bell, 303;
Bishop, Stat. Cr. par. 163 to 166 and s. 245 ; R. v. Dicken-
son, 1 Saiind. 135. Also per Williams, J., in Eastern
Archipelago Co. v. the Queen, 2 E. & B. 879 ; R. v. Adams,
Car. and M. 299; R. v. Dixon, 10 Mod. 335; R. v.
Buchanan, 8 Q. B. 883; R. v. Hall, 17 Cox, 278.

A prisoner should be able to gather from the indictment
whether he is charged with an otfence at the common law;
or under a statute or, if there should be several statutes
applicable to the subject under which statute he is charged,
per Esten, V.-C, R. v. Cummings, 15 U. C. Q. B. 16.

Fine Imposed Shall be in Discretion of Codrt.

034> Whenever a fine may be awarded or a penalty imposed for any
offence, the amount of such fine or penalty shall within such limits, if any, a$
are prescribed in that behalf, be in the discretion of the court or person pass-
ing sentence ur convicting, as the case may be, R. S. C. c. 181, s. 33.

^^1

PART LXII.

CAPITAL PUNISHMENT.

Punishment to be the Same on Conviction by Verdict or by Confessiox.

93>'S. Every one who is indicted as principal or accessory for any offence
made capital by any statute, shall be liable to the same punishment, whether
he is convicted by verdict or on confession, and this as locll in the case of acces-
sories as of principals. R. S. C. c. 181, s. 4.

Form of Sentence of Death.

036. In all cases where an offender is sentenced to death the sentenw
or judgment to be pronounced against him shall be, that he be hanged by tlie
neck until he is dead. R. S. C. c. 181, s. 5.

A judgment may be altered at any time during the
assizes ; and a reprieve may be granted or taken off by a

MiriHii

[Sec3. 934-93G

1 Burr. 543 ; R. v.

3 B. & Aid. 161 ;
Irawshaw, Bell, 303 ;
, 245 -, R. V. Dicken-
ims, J., in Eastern
3. 879 ; B. v. Adams,
OMod. 335; B. v.
,7 Cox, 278.
r from the indictment
5 at the common law;
d be several statutes
statute he is charged,
iU.C.Q.B. 16.

ETION OF COOKT.

or a penalty imposed for any

rwithin8«chlimitB,ifany,a.

on of the court or person pa...

R. S. C. c. 181. s. 33.

Sees. 937-942]

CAPITAL PUNISHMENT.

961

llENT.

.tVEBDICT OR BY CONFESSION.

Ll or accessory for any offence

rthesan.epunishrnent.wheh«

, this as well in the case of a.ca

Death.
Lenced to death the sentence
[l be, that he be hanged by the

It any time during the
[anted or taken off by a

judge, although the session may be adjourned or finished,

and this, by reason of common usage : 2 Hale, 4:12 ; Dyer,

205.

Report by the Ju::)ge.

937. In the case of any prisoner sentenced to the punishment of death,

the judge before whom such prisoner has been convicted shall forthwith make

a report of the case to the Secretary of State, for the information of the

Governor General ; and the day to be appointed for carrying the sentence

into execution shall be such as, in the opinion of the judge, will allow sufficient

time for the signification of the Governor's pleasure before such day, and if

the judge thinks such prisoner ought to be recommended for the exercise of

the royal mercy, or if, from the non-decision of any point of law reserved in

the case, or from any other cause, it becomes necessary to delay the execution,

he, or any other judge of the same court, or who might have held or sat in

such court, nuiy, from time to time, either in term or in vacation, reprieve

such offender for such period or periods beyond the time fixed for the execution

cif the sentence as are necessary for the consideration of the case by the Crown.

R. S. C. c. 181, s. 8.

Treatment of Persons Condemned to Death.

0S18- Every one who is sentenced to suffer death shall, after judgment,
be ccmfined in some safe place within the prison, apart from all other
lirisoners ; and no person except the gaoler and his servants, the medical
officer or surgeon of the prison and a chaplain or a minister of religion, shall
iiave access to any such convict, without the permission in writiusr of the
court or judge before whom such convict has been tried, or of the sheriff.
R. S. C. c. 181, s. 9.

Execution to be Private.

030- Judgment of death to lie executed on any prisoner shall be carried
into effect within the walls of the prison in which the offender is confined at
the time of execution. R. S. C. c. 181, s. 10.

Who May be Present.

tt-40. The sheriff charged with the execution, and the gaoler and medical
officer or surgeon of the prison, and such other officers of the prison and such
Iiersons as the sheriff requires, shall be present at the execution. R. S. C.
c. 181, s. U.

941. Any justice of the peace for the district, county or place to which
the prison belcmgs, and such relatives of the prisoner or other persons as it
seems to the sheriff proi^er to admit within tlie prison for the purpose, and any
minister of religion who desires to attend, may also be present at the execution..
U. S. C, s. 181, 8. 12.

Certificate of Death.

9-42. As soon as may be after judgment of death has been executed oni
the offender, the medical officer or surgeon of the prison shall examine the
liody of the offender, and shall ascertain the fact of death, and shall sign a.
Criu. Law— CI

962

PROCEDURE.

[Sec. 943

certificate thereof, in the form UUU in schedule one hereto, and deliver the
same to the sheriff.

2. The sheriff and the gaoler of the prison, and such justices and other
persons present, if any, as the sheriff requires or allows, shall also sipii a
declaration in the form VVV in the said schedule to the effect that judgment
of death has been executed on the offender. R. S. C. c. 181, ss. 13 & 14.

As to a false certificate of execution see s. ^68, ante.

FORMS UNDER TITLE VIII.

V\J\J. —{Sectio7i 942.)

CERTIFICATE OF EXECUTION OF JUDGMENT OF DEATH.

I, A. B., surgeon {or as the case may be) of the (describe the

prison), hereby certify that I, this day, examined the body of

G. D., on whom judgment of death was this day executed in the

said prison ; and that on such examination I found that the

said C. D. was dead.

(Signed), A. B.

Dated this day of , in the year

YYY.—iSectioti 942.)

DECLARATION OF SHERIFF AND OTHERS.
We, the undersigned, hereby declare that judgment of death
was this day executed on C. D., in the {describe the pmon) in our I

presence.
Dated this

day of
E. F., Sheriff of-

, in the year

L. M., Justice of the Peace for-

G. H., Gaoler of

&c», &c.

When Deputies mat Act.

943. The duties imposed upon the sheriff, gaoler, medical officer orl
surgeon by the two sections next preceding, may be and, in his absence, aliall
be performed by his Uwf«d deputy or assistant, or other officer or persbiil
ordinarily actinia for him, or co' iointly with him, or ditchargmg the duties of|
any such officer. R. S. Co. 181, s. 15.

[Sec. 913
,e hereto, and deliver the

i such justices, and other

allows, shall also sipu a

o the effect that judgment

3. c. 181, 88. 13 & W-

3ec3. 944-949]

CAPITAL PUNISHMENT.

Inquest by Coroner.

963

VIII-

DGMENT OF DEATH.

, be) of the {deserihe the
i examined the body of
'this day executed ^^^^«
Ration I found that the

(Signed), A- ^•
, in the year

AND OTHERS.

ethatiudg-ntofdeat^^

^Ae^mhe the prison) u. our

in the year
jace for

044. A coroner of a district, county or place to which the prison belongs,
wherein judgment of death is executed on any offender, shall, within twenty-
four hours after the execution, hold an inquest on the body of the offender ;
and the jury at the inquest shall inquire into and ascertain the identity of the
body, and whether judgment of death was duly e.xecuted on the offender; and
the inquisition shall be in duplicate, and one of the originals shall be delivered
to the sheriff.

2. No offioer of the prison and no prisoner confined therein shall, in any
case, be a juror on the inquest. R. S. C. c. 181, ss. 16 & 17.

Burial ov the Body.

943. The body of every offender executed shall be buried within the
walls of the prison within which judgment of death is executed on him, unless
the Lieutenant-Governor in Council orders otherwise. R. S. C. c. 181, s. 18.

Certificate.

046. Every certificate and declaration, and a duplicate of the inquest
required by this Act, shall in every case be sent with all convenient speed by
the sheriff to the Secretary of State, or to such other officer as is, from time to
time, appointed for the purpose by the Governor in Council ; and printed
copies of such several instruments shall, as soon a.s possible, be exhibited and
shall, for twenty-four hours at least, be kept exhibited on or near the principal
entrance of the prison within which judgment of death is executed. R. S. C.
c. 181, 8. 20.

As to false certificate see s. 158, ante.

No Illegality from Certain Omissions.

947. The omission to comply with any provision of the preceding
sections of this part shall not make the execution of judgment of death illegal
in any case in which such execution would otherwise have been legal. R. S. C.
c. 181, 8. 21.

948. Except in so far as is hereby otherwise provided, judgment of
death shall be carried into effect in the same manner as if the above provisions
had not been passed. R. S. C. c. 181, s. 22.

Rules and Regulations.

949. The Governor in Council may, from time to time, make such rules
and regulations to be observed on the execution of judgment of death in every
priaon, as he, from time to time, deems expedient for the purpose, as well of
guarding against any abuse in such execution, as also of giving greater solem-
nity to the same, and of making known without the prison walls the fact that
such execution is taking place.

2. All such rul«B and regulations sliall be laid upon the tables of both
Houses of Parliament within six weeks after the making thersof, or, if Parlia-
ment is not then sitting, within fourteen days after the next meeting thereof.
li. 8. C. c. 181, 8S. 44 & 46.

The Imperial Act on capital executions ii 31 Y. c. 24.

964

PROCEDURE.

[Sees. 950, 951

Of course, when possible, it seems better that the sen-
tence of death, and, in fact, any sentence, be passed by the
judge who held the trial ; but it is not an absolute necessity,
and any judge of the same court may pronounce the
sentence : 2 Hale, 405 ; 1 Chit. 697 ; R. v. Camplin, 1 Den.
89, as cited in R. v. Fletcher, Bell, 65.

If a case reserved is undecided, or if a writ of error is
still pending, or if the Governor has not yet given his
decision upon the case, or if a woman sentenced to death is
pregnant, or if the prisoner becomes insane after the sen-
tence, a reprieve may be granted either by the Governor,
or any judge of the court where the trial was held, in term
or in vacation : 1 Chit. 758 ; 2 Hale, 412.

It is clear that if, from any mistake or collusion, the
criminal is cut down before he is really dead, and after-
wards revives, he ought to be hanged again, for the
judgment being " to be hanged by the neck till he be dead,"
is satisfied only by the death of the criminal : 1 Chit. 788 ;
2 Hale, 412.

'4i

PART LXIII.

IMPRISONMENT.

050. Every one who is convicted of any ofifence not punishable with
death shall be punished in the manner, if any, prescribed by the statute
especially relating to such offence. R. S. C. c. 181, s. 23.

051. Every person convicted of any indictable offence for which noT
punishment is specially provided, shall be liable ' :, 'mprisonment for ,n'i'.|
years.

2. Every one who is summarily convicted of any offence for which nJ
punishment is specially provided, shall be liable to a penalty not exceediua
Jifty dollars, or to imprisonment, with or without hard labour, for a term noj
exceeding six months, or to both. R. S. C. c. 181, s. 24 (as amended in 1893).

Imprisonment for life was the penalty for felonies by tU
repealed clause. By the above clauses, such felonies

[Sees. 950, 951

better that the sen-
ace, be passed by the
tn absolute necessity,

may pronounce the
R. V. CampUn, 1 Den.

jr if a writ of error is
las not yet given his
I sentenced to death is
, insane after the sen-
tther by the Governor,
trial was held, in term
, 412.

[stake or collusion, the
really dead, and after-
langed again, for the
de neck till he be dead,
. criminal: 1 Chit. 788;

Sec. 952]

IMPRISONMENT.

965

Int.

i„y Offence not P-i«l-ble with

181, 8. 23.

Indictable offence forjh^ -
Viable '. Imprisonment for n

Laofanyoffen^forv^;;
Lble to a penalty not e
thout hard labour, for a tern

%,«. 24 (as amended in 893.^

penalty for felonies by tbe
clauses, such felomeB a,

those enacted by s. 212, e. 32, and s. 94. c. 34, R. S. C.
are now punishable only by five years or a mere fine;
8. 958, post.

Twenty dollars and three months was the maximum on
summary convictions in the repealed clause.

Imprisonment for one calendar month how computed :
Migotti V. Colville, 4 Cv P. D. 233, 14 Cox, 263, 305 ;
Henderson v. Preston, 16 Cox, 445.

OSS. Every one who is convicted of an indictable offence not punishable
with death, committed after a previous conviction for an indictable offence, is
liable to imprisonment for ten years, unless some other punishment is directed
by any statute for the particular oflFence,— in which case the offender shall he
liable to the punishment thereby awarded, and not to any other. R. S. C.
c. ISl, s. 25. {Amended).

This is a singular piece of legislation if it means any-
thing. All and every one of the indictable offences for
which no special statutory punishment is provided,
whether falling under this code or otherwise, are to be
punished more severely if committed by one who has pre-
viously been convicted of an indictable offence. But for
those falling under the code, and where the punishment
is provided for, that is for every one of them, except a
few, where the punishment has been " clerically " for-
gotten, (ss. 113, 137, 143, 501, for instances), a previous
conviction of an indictable offence does not, as a rule,
render an offender liable to a greater punishment. Sec-
tion 356, which amends the law so as to limit it to
previous convictions for theft, and ss. 418 & 478 as to bur-
glary and offences against the coin are the only ones that
provide for a greater punishment after a previous convic-
tion. Why such a distinction ? Evidently, we have here
another piece of legislation by inadvertence. Bribery,
undue influence and subornation of personation at federal
elections, for instance, are under ss. 951 and 952 punishable
by five years penitentiary, and, if the offender has been
previously convicted of an indictable offence, by ten years.

966

PROCEDURE,

[Sees. 953-Oi

5 .ft, ,

A train conductor drunk on duty, or who allows an;
baggage or freight car to be placed in the rear of th
passenger cars (51 V. c. 29, ss. 291, 292) is likewise punisl)
able by five years penitentiary, and, upon a second convic
tion, by ten years, whilst the forgery of a custom hous
mark or brand is only punishable upon summary convictio,
by a two hundred dollars fine : s. 210, c. 32, B. S. C.

Minimum tekm of Imprisonment.

053. Every one whci is liable to imprisonment for life, or for any ten
of years, or otlier term, may be sentenced to imprisonment for any shorK
term : Provided, that no one shall be .sentenced to any shorter term of in
prisonment thai: the minimum term, if any, prescribed for the offence of whic
he is convicted. R. S. C. c. 181, s, 20.

Cumulative Punishments.

054* Wlien an offender is convicted of more offences than one, befoi
the s.ame court or person at the same sitting, or when any offender, under .-iii
tence or undergoing punishment for one offence, is convicted of any otlie
offence, the court or V)erson pussing sentence may, on the last conviction, direc
that the sentences passed upon the offender for his several offence-s shall tak
effect one after another. R. S. C. c. 181, s. 27.

See it. V. Wilkes, 4 Burr. 2677; R. v. Williamti, 1 Lertcl
530 ; li. V, Orton, 14 Cox, 436 and 546.

Penitenti.vhy, Etc.

035. Every one who is sentenced to imprisonment for life, or for a ter
of year.s, not leas than two, sh.all be sentenced to imprisonment in the penite
tiary for the province in which the conviction takes place.

2. Every one who is sentenced to imprisonment for a term less than t
years shall, if no other place is expressly mentioned, be sentenced to iniprisc
ment in the common gaol of the district, county or place in which the sentei
is pronounced, or if there is no connnon gaol there, then in that coimnon g
whicii is nearest to such locality, or in some lawful prison or place of confil
ment, other than a penitentiary, in w'hich the sentence of imprisonment n|
be lawfully executed.

3. Provided tiiat where any one is sentenced to imprisonment in a iiij
tentiary, and at the same sittings or term of the court trying him is senteiil
for one or more otiier offences to a term or terms of iui[)risonnient less tluiii f
years each, he may be sentenced for such sliorter terms to imprisonment in I
same penitentiary, such sentences to take effect from the termination of|
other sentence.

4. Provided further that any prisoner sentenced for iiny term by any il
tary, navnl or militia court-martial, or by atiy military or naval autli'f
under any Mutiny Act, may be sentenced to imprisonment in a iieniteiitil
and if such prisoner is sentenced to a term le.«s than two years, he may bef

[Sees. 953-955'

, or who allows any
I in the rear of the
c)2) is likewise punish-
upon a second convic-
y of a custom house
)'n summary conviction

0. c. 32. B. S. C.

iONMENT.

„nent for life, or for any tem
imprisonment for any Hhovter
;ed to any shorter term of un-
«cribed for the otfeuce of which

HEN'TS.

,nure offences than one before
r when any offender, under s.n.

.„ee, in convicted of any othe
,av, on the kst conviction clu-e
;„;U, several offence, shall take

K. V. Williams, 1 Leach,

I 5-16.

Etc.
..risonmentforlife.orforatem

J to imprisonment in the pemten.

II takes place.

sonment for a term less than t«-o
'toned, be sentenced to impnBon.

ror.lacei"wl»ehthesentenc

there then in that common gaol

S«l prison or place of c.u^
;h« sentence of imprisonment ma;

tencedtoimprisonnientinal*
,Uhe cc.urt trying hmi IS sc e

,,,„,, of iuiprisonment less tu
„rter terms to imprisonment, t
W from the termination of L-

,,tencedforanytermYanyj;
Iv any military or naval autWM

Li„^,risonmentinapeni^'-^
le;.stlian two years, he ma>i3t

Sec. 956]

REFORMATORIES.

967

tenced to impnsontnent in the common gaol of the district, county or place in
wliich the sontenco is pronounced, or in such other prison or place of confine-
nieiit as is pi-ovided by sub-section two of this section with respect to iwrsona
sentenced thereunder.

5. Imprisonment in a penitentiary, in the Central Prison for the province
of Ontario, in the Andrew Mercer Ontario Refonnatory for feuniles, and in
any reformatory i)ris(in for females in the province of Quebec, slmll bti with
hard labour, whether so directed in the sentence or not.

(i. Imprisonment in a common gaol, or a public prison, other than those
last mentioned, shall be with or witliuut hard labour, in the discretion of the
court or person passing sentence, if the offender is convicted on indictment, or
under the provisions of Parts LIV. or LV. (Ss. 762, 782), or before a judge
of tlie Supreme Court of the North-west Territories, and in otlier cases may be
with hard lalwur, if hard labour is part of the punishment for the offence of
which such offender is convicted —and if such imprisonment is to be with hard
labour, the sentence shall so direct.

7' The tenn of imprisonment, in pursuance of any sentence, shall, unless
otherwise directed in the sentence, commence on and from the day of passing
such sentence, but no time durinj,' which tlie convict is out on bail shall be
reckoned as part of the term of imprisonment to which he is sentenced.

8. Every one who is sentenced to imprisonment in any penitentiary, gaol,
or other public or reformatory prison, shall \w subject to the provisions of the
statutes relating to such penitt-utiary, gaol or prison, and to all rules and
regulations lawfully made witli respect thereto. R. S. C. c. 181, s. 28 ; 53 V.
c. 37, 8. 31.

Under s-s. 7, a confinement in a lunatic asylum does

not interrupt the sentence : Ev parte Armellini, 1-1 R. L.

311.

Reformatories.

030. The court or person before whom any offender whose age at the
time of his trial does not, in the opinion of the court, exceed sixteen years, is
convicted, whether summarily or otiicrwise, of any offence I'unishable by
iiiiprisonmeiit, may sentence such offender to imprisonment in any reformatory
prison in the province in which such conviction takes place, subject to the
provisions of any Act respecting imprisonment in such reformatory ; and such
iiujn-isonment shull be substituted, in sucli caie, for the imprisonment in the
penitentiary or other place of confinement by which the offender would
otherwise be punisliable under any Act or law relating thereto : Provided, that
in no case shall the sentence be less than two years' or more than five years'
confinement in such reformatory prison ; and in every case where the term of
iniiirisonment is fixed by law to be more than five years, then such imprison-
ment shall be in the penitentiary.

■-. Every person imprisoned in a reformatory sliall be liable to perform
such labour as is required of such person. R. S. C. c. 181, s. 29.

968

PROCEDURE.

[Sec^. 057, 938

PART LXIV.

WHIPI'ING.

957. Whenever wliii)i)ing may be awarded for any offence, the court
may sentence the offender to be once, twice or thrice whijjped, witliin the
limits of the prison, under the supervision of the medical officer of tiie j)riN'jn ;
and the number of strokes and tiie instrument with which tliey shall Ixj
inflicted shall be 8i)ecified liy the court in the'sentence : and, whenever
practicable, every whipping shall take i)lace not less than ten d,\ys before the
expiration of any term of imprisonment to which the offender )« sentenced for
the offence.

2. Whipping shall not be itiflicted on any female. R. S. C. c. ISl, s. 30.

PART LXV.

SURETIES FOR KEEPING THE PEACE, AND FINES.

©58. Every court of criminal jurisdiction and every magistrate uiid^T
Part LV. (s. 782) before whom any i)er.son shall be convicted of an offence and
shall not be sentenced to death, shall have power in addition to any sentence
i mposed ujwn such person, to require him forthwith to enter into his own
recognizances, or to give security to keep the peace, and be of good behaviour
for anil term not exceeding two years, and that such person in default shall be
imprisoned for not more than one year after the expiry of his imprisonnieiit
under his sentence, or until such recognizances are sooner entered into or sucli
security sooner given, and any person convicted of an indictable offence pun-
ishable with imprisonment for five years or less may be fined in addition to or
iin lieu of any punishment otherwise authorized, in v:hich case the stntinee
mail direct that in default of paijmtnt of his fine, the person so convicted situll
■be imprisoned \intil such fine is paid, or for a period not exccediwj live pcnn,
to commence at the end of the term of iviprisonment axmrded lij the sentinK
or forthwith as the case mail require. R. S. C. c. 181, s. 31. {As amendnlin
1S93).

The words in italics are new: see s. 934;, ante, as to
amount of fine when speciiiecl. " Security " defined by
Interpretation Act, E. S. C. c. 1.

[8tcs. t>57, OJii

Sec. 950] RECOGNIZANCE TO KEEP THE PEACE.

9G9

r any offence, the court
ice whippecl, within the
ical officer of the pris'ju ;
ith which they «hall !«
entence : and, whenever
than ten d:\ys before the
3 offender »« sentenced for

> R. S. C. c. ISl, ». 30.

Ice, and riNES.

ad every magistrate under
convicted of an offence and

^n addition to any sentence
•ith to enter into his own
■ and be of pood behaviour

person in default shall be
•xpiry of his iniprisoniueut
sooner entered into or such

i an indictable offence pun-
av be fined in addition to or

' ;•„ u-hich case the scnUnce
he person so convicted «/-«((
\iod not cxcccdinr, iive mnn,
ent awarded h!> the senta^^
ISl.s. 31. (Asamendidui

lec s. 93i, ante, as to
Security " defined by

Recounizanck to Keep the Peacu— Articles of the Peace. (.V-i'.-).

{A» amended in ISfi.J.)

030. Whenever any person is charged liefore a justice with an offenco
triable under Part LVIII. which, in the cpinion of such justice in directly
apainst the peace, and the justice after hearing tiie ease is watinfied of the guilt
of the .iccUHcd, and that the offence was committed under circumstances which
render it probable that the person convicted will be ag'ain guilty of the same or
some other offence against the peace unless he is bound over tu go(xl Ix'haviour,
such justice may, in addition to, or in lieu of, any other sfutencu which may
be imp<)!«ed upon the accused, require him furthwitii to enter int<i his own
recognizances {ncoijnizancc), or to give security to keep the peace and be of
good behaviour for any term not e.\ceediiig twelve months.

2. Ui)on complaint by or <jn behalf of any person that on account of
threats made by some other person or on any other .nccount, he, the com-
plainant, is afraid that such otlier person will do him, his wife or ciiild >.ome
personal injury, or will bum or set tire to his property, the justice before whom
such complaint is made may, if he is satisfied that the complainant has reason-
able grounds for his fears, require such other pers<jn to enter into his own
recognizances (rccofjnizance), or to give security, to keep the peace, and to be
of good behaviour, for a tenn not exceeding twelve months.

3 The provisions of Part LVIII. shall apply so far as the same are
applicable to proceedings under this section, and the complainant and defend-
ant and witnesses maj* be called and examined, and cro.ss-examined, and the
ccimi)lainant and defendant shall bo subject to costs as in the case of any other
complaint.

4. If any person so required to enter into his own recc^gnizances (recoimiz-
aace) or give security as aforesaid, refuses or neglects so to do, the same or any
other justice may order him to be imprixtmed fur anij term not cxcerdinij twelve
vi'mth.i.

o. The forms WWW, XXX and YYY, with such variations and
additions as the circumstances may require, may be used in proceedings under
this section.

The forms XXX and YYY, taken originally from 16 V.
c. 178 (for Upper Canada), are not in conformity with this
enactment.

As to articles of the peace, see Bacon's Abr. v. surety
of the peace ; Archbold's Quart. Sess. 2G8 ; Magisterial
Guide, Greenwood & Martin, 758 ; Clarke's Magistrates'
Manual, 2nd edit., 542.

No provision is made for the recourse against the sure-
ties where the principal breaks the peace within the time
specified.

" Security " defined. Interpretation Act, R. S. C. c. 1.

970

PROCEDURE.

[Sec. 95!)

WWW.— (.SVcf/V^i 959.)

COMPLAINT BY THE PARTY THREATENED, FOR SURETIES

FOR THE PEACE.

Canada,
Province of
County of

The information {or complaint) of C. D., of , in the

said county of , (hibnurer), {if pre/ern-d bi/ an attorney

oraffent, sin/ — by D. E., his duly authorized agent {or attorney),
in this behalf, taken upon oath, before me, the undersigned, a
justice of the peace, in and for the said county of , at

in the said county of , this day

of , in the year , who says that A. B., of

, in the said county, did, on the day of^

i (instant or last past), threaten the said C. D, in the
words or to the effect following, that is to say : {set them out,
with the circuimtunces under irhich t/ietf were ii.se<l) ; and that from
the above and other threats used by the said A. B. towards the
said C. D., he, the said C. D., is afraid that the said A. B. will
do him some bodily injury, and therefore prays that the said
A. B. may be required to find sufficient sureties to keep the
peace and be of good behaviour towards him, the said C. D. ;
and the said C. D. also says that he does not make this com-
plaint against nor require such sureties from the said A. B. from
any malice or ill-will, but merely for the preservation of his^
person from injury.

XXX.— {Section 959.)

FORM OF RECOGNIZANCE FOR THE SESSIONS.

Canada,
Province of
County of

Be it remembered that on the day of , in the

year . A. B. of {labourer), L. M. of

and N. 0. of , {butcher), personally came before (««) the

undersigned, {two) justices of the peace for the county of
and severally acknowledged themselves to owe to our Lady the
Queen the several sums following, that is to say : the said A. B.

[Sec. 959
, FOR SURETIES

Sec. 959]

RECOGNIZANCE TO KEEP THE PEACE.

971

, in the
■)V({ by an (tttonii'ii
igent (or attorney),
the undersigned, a
,y of » ^^

this 'lay

says that A. B., of

le ^ay 0**

he said C. D, in the
say : {set them out,
u<ed) ; and that from
id A. B. towards the
t the said A. B. will
1 prays that the said
uireties to keep the
lim, the said CD.;
not make this cora-
a the said A. B. from

preservation of his

E SESSIONS.

tyof .i»t^«

L. M. of

came before (««) the

the county of

owe to our Lady the

;o say : the said A. B.

the sum of , and the said L. M. and N. 0. the sum of

each, of good and lawful money of Canada, to be
made and 1. vied of their goods and chattels, lands and tenements
respectively, to the use of our said Lady the Queen, Her heir*
and successors, if he, the said A. B., fails in the condition en-
dorsed {or hereunder written).

Taken and acknowledged tho day and ye.^r first above men-
tioned, at . before us.

J. S.,
J. T.,
J. i'.'s {Xtiuie of' countif.)

The condition of the within {<»• above) written recognizance'
is such that if the within bound A. B., (of, ifcc), '■'■ appears at
the next Court of General Sessions of the Peace, {or other I'uurt
dischari/hifi the functions of the Court of General Semona), to be
holden in and for the said county of , to do and receive

what is then and there enjoined him by the court, and in the
meantime''^ keeps the peace and is of good behaviour towards Her
Majesty and her liege people, and specially towards C. D. (cf
&c.) for the term of now next ensuing, then the said

recognizance to be void, otherwise to stand in full force and

virtue.

The words between the asterisks ** to be used only where the priu-
cipal is recjiiired to appear at the sessions of such other court.

YYY.— {Section 959.)

FORM OF COMMITMENT IN DEFAULT OF SURETIES.

Canada,
Province of
County of . J

To all or any of the other peace otlicers in the county of

and to the keeper of the common gaol of the said county^
at , in the said couutv.

Whereas on the day of {inxtuHt), complaint

on oatli was made before the undersigned {or J. L., Esquire, a
justice of the peace in and for the said county of , by

C. D., of , in the said county, {labourer), that A. B., of

(i.<:c.), on the day of , at aforesaid, did

972

PROCEDURE.

[Sec. 960

threaten {d-c, follow to the end of complaint, as in form above, in
the past tense, then) : And whereas the said A. B. was this day
brought and appeared before me, the said justice {or J. L. Es-
quire, a justice of the peace in and for the said county of ),
to answer unto the said complaint ; and having been required
by me to enter into his own recognizance in the sum of ,

with two sufficient sureties in the sum of each, * as

well for his appearance at the next General Sessions of the
Peace (or other court dischanjiny the functions of the Court of
General Sessions, or as the case may he), to be held in and for the
said county of , to do what shall be then and there en-

joined him by the court, as also in the meantime '^^ to keep the
peace and be of good behaviour towards Her Majesty and her
liege people, and especially towards the said C. D., has refused
and neglected, and still refuses and neglects, to find such sure-
ties : These are, therefore, to command you, and each of you, to
take the said A. B., and him safely to convey to the (common
gaol) at aforesaid, and there to deliver him to the keeper

thereof, together with this precept : and I do hereby command
you, the said keeper of the said (common gaol), to receive the
said A. B. into your custody in the said (common gaol), there to
imprison him until the said next General Sessions of the Peace
(or the next term or sittiny of the said court discharyiny the functions
of the Court of General Sessions, or as the case may be), unless he,
in the meantime, finds sufficient sureties as well for his appear-
ance at the said Sessions (or court) as in the meantime to keep
the peace as aforesaid.

Given under my hand and seal, this day of

in the year , at , in the county aforesaid,

J. S., [seal.]

J. P., {Name of county,)

The words between the asterisks ** to be used when the recognizance
is to be so conditioned.

Notice When any one is Imprisoned for Want or Subetie^j.

000. Whenever any person who has been reqtiired to enter into a
recognizance with sureties to keep the peace and be of good behaviour has, on
account of his default therein, remained imprisoned for two weeks, the sheriff,
.gaoler or warden shall give notice, in writing, of the facts to a judge of a

[Sec. 960

, as in form above, in
I A. B. was this day
1 justice {or J. L- Es-
! said county of ),
having been required
in the sum of .

each, * as
>neral Sessions of the
nctions of the Court of
be held in and for the
1 be then and there en-
meantime - to keep the
s Her Majesty and her
said C. D., bas refused
;lects, to find such sure-
you, and each of you, to
convey to the (common
leliver him to the keeper
i I do hereby command
Lion gaol), to receive the
(common gaol), there to
I Sessions of the Peace
,diseharnin!i the functions

,e case may be), unless he,
,s as well for his appear-
n the meantime to keep

day of >

[e county aforesaid.

'., {Xawe of coiintii.)
lusedwhen the recognizance

Sec. 061]

DISABILITIES.

973

Superior Ccmrt, or to a judge of the County Court of the county or district in
which such gaol or prison is situate, and in the cities of Montreal and Quebec
tu a judge of the sessions of the peace for the district, or, in the North-west
Territories to a stipendiary magistrate,— and such judge or magistrate may
order tlie discharge of such person, thereuiwn or at a subsequent time, upon
notice to the complijinant or otherwise, or may make such other order as he
sees fit, respecting the number of sureties, the sum in which they are to be
bound and the length of time for which such person may be bound. R. S. C.
c. 181, s. 32. 51 V. c. 47. s. 2.

PART LXVI.

DISABILITIES. {Neiv).

061. If any person hereafter convicted of treason or any indictable
offence for which he is sentenced to death or imprisonment for a term exceeding
five years, holds at the time of such conviction any office under the Crown or
other public employment, or is entitled to any pension or superannuation
allowance payable by the public, or out of any public fund, such oflSce or
employment shall forthwith become vacant, and such pension or superannua-
tion allowance or emolument shall forthwith determine and cease to be
payable, unless such person receives a free i^ardon from Her Majesty, within
two months after such conviction, or before the filling up of such office or
employment, if given at a later period ; and such person shall become, and
(until he suffers the punishment to which he is sentenced, or such other
punishment as by competent authority is substituted for the same, or receives
a free pardon from Her Majesty) shall continue thenceforth incapable of
holding any office under the Crown, or other public employment, or of being
elected, or sitting, or voting, as a member of either House of Parliament, or of
exercising any^ight of suffrage or other parliamentary or municipal franchise.
33-34 V. (U. k.)c. 23, s. 2.

2. The setting aside of a conviction by competent authority shall remove
the disability herein imposed.

i-:l'

k'OR Want ov Suueties.

leen required to enter into a
Id be of good behaviour has,™
Led for two weeks, the sbeitf.
I of the facts to a judge of a

974

PROCEDURE.

[Sees. 902-90^

PART LXVII.

PUNISHMENTS ABOLISHED.
003- Outlawry iu criminal cases is abolished. (Nov).

003. Tlie punishment of solitary confinement or of the pillory shall not
\» awarded by any court. R. S. C. c. 181, s. 34.

904. There shall be no forfeiture of any chattels, which have moved to
or caused the death of any human being, in respect of such death. R. S. C.
«. 181, 8. 35.

By the common law, omnia qiue movent ad mortem sunt
Deo danda. Hence the word " deodand," which signified
a personal chattel which had been the immediate occasioQ
of the death of any reasonable creature, and which, in con-
sequence, was forfeited to the Crown, to be applied to pious
uses, and distributed in alms by the High Almoner.
Whether the death were accidental or intended, whether
the person whose chattel had caused the death participated
in the act or not, was immaterial. The cart, the horse,
the sword, or anything which had occasioned the death of
a human being, or the value thereof, was forfeited, if the
party died within a year and a day from the wound received.
And for this object the coroner's jury had to inquire what
instrument caused the death, and to establish the valae of
it. But the jury used to find a nominal value only, and
confine the deodand to the very thing or part of the thing
itself which caused the death, as, if a waggon, to one of the
wheels only: R. v. Eolfe, Fost. 266; 1 Hawk. 74; 1
Blacks. 300. This forfeiture, " which seemeth to have been
originally founded rather iu the superstition of an age of
extreme ignorance than in the principles of sound reason
and true policy," Fost. 266, was abolished in England on
the 1st day of September, 1846, by the 9 & 10 V. c. 62.

^■■■■iiaiip

[Sees. 9G2.9r,4

Sec. 905]

ATTAINDER ABOLISHED.

975

SHED.

Bd. (New)-

ent or of the pillory shall not

chattels, which have moved to
pect of such death. R. S. C.

movent ad mortem sunt
dand," which signified
;he immediate occasion
ure, and which, in con-
I, to be applied to pious
'f the High Almoner.
I or intended, whether
the death participated
The cart, the horse,
occasioned the death of
of, was forfeited, if the
■om the wound received.
ry had to inquire what
,0 establish the value o{
)minal value only, and
■ng or part of the thing
a waggon, to one of tbe
, 266; 1 Hawk. 71; 1
Ichseemeth to have been

iperstition of an age of
•cipi 'S of sound reason
olished in England on
tUe9i&10V.c.62.

Attainder Abousmed. (Neiv.)
003. From and after the passing of this Act no confession, verdict,
inquest, conviction or judpinent of or for any treason or indictable offence or
felo cle se shall cause any attainder or corrujjtion of blood, or any forfeiture or
escheat ; Provided that nothing in this section shall affect any fine or penalty
imposed on any person by virtue of his sentence, or any forfeiture in relation
to which special provision is made by any Act of the Parliament of Canada.
33-34 V. (U. K.) c. 23, ss. 1, G & 5. R. S. C. c. 181, ss. 30-37.

By the common law, a man convicted of treason or
felony stands attaint. By this attainder, he loses his civil
rights and capacities, and becomes dead in law, civiliter
mortuiis : 1 Stephens' Comm. 141. He forfeits to the King
all his lands and tenements, as well as his personal estate,
his blood is corrupted, so that nothing can pass by inheri-
tance to, from or through him : 4 Blacks. 380, 387. But
the lands or tenements are not vested in the Crown during
the life of the offender, ivithout office or office-found which is
a finding by a jury of a fact which entitles the Crown to the
possession of such lands or tenements : Wharton's Law
Lexicon.

p- ■; '

976

PROCEDURE.

[Sees. 966-tiG

PART LXVIII.

PARDONS.

006. The Crown may extend the royal mercy to any person sentencec
to imprisonment by virtue of any statute, although such person is imprisoned
for non-payment of money to some person other than the Crown.

2. Whenever the Crown is pleased to extend the royal mercy to any
offender convicted of an indictable offence punishable with death or otherwise,
and grants to such offender either a free or a ccmditional pardon, by warrant
under the royal sign manual, countersigned by one of the principal Secretaries
of State, or by warrant under the hand and seal-at-arms of the Governor
General, the discharge of such offender out of custody, in case of a fret
pardon, and the performance of the condition in the case of a conditional
pardon, shall have the effect of a pardon of such offender, under the great seal,
as to the offence for which such pardon has been granted ; but no free pardon,
nor any discharge in consequence thereof, nor any conditional pardon, nor the
performance of the condition thereof, in any of the cases aforesaid, shall
prevent or mitigate the punishment to which the offender might otherwise be
lawfully sentenced, on a subsequent conviction for any offence other than that
for which the pardon was granted. R. S. C. c. 181, ss. 38 & 30.

Commutation.

96T. The Crown may commute the sentence of death passed upon aiij
person convicted of a capital offence to imprisonment in the penitentiary foi
life, or for any term of years not less than two years, or to imprisonment in
any gaol or other place of confinement ffir any period less than two years, with
or without hard labour ; and an instrument under the hand and seal-at-arms ui
the Governor General, declaring such commutation of sentence, or a letter oi
other instrument under the hand of the Secretary of State or of tlie Under
Secretary of State, shall be sufficient authority to any judge or justice, having
jurisdiction in such case, or to any sheriff or officer to whom such letter or
instrument is addressed, to give effect to such commutation, and to do all such
things and to make such orders, and to give such directions, as are requisite
for the change of custody of such convict, and for his conduct to and delivery
at such gaol or place of confinement or penitentiary, and liis detention therein,
according to the terms on which his sentence has been commuted. R. S. C
c. 181, 8. 40.

UxDEUGoixG Sentence.

068- When any offender lias been convicted of an offence not punishahit
with death, and has endured the punishment to which such offender was
adjudged, — or if such offence is punishable with death and the sentence has
been commuted, then if such offender has endured the ijunishment to which
his sentence was commuted, the punishment so endured shall, as to tlie
offence whereof the offender was so convicted, have the like effect and conse-

[Sees. 966-110!;^

Sees. 969-972]

PARDON.

977

lercy to any person sentenced
igU such person is imprisoned
than the Crown,
end the royal mercy to any
tiable with death or otherwise,
mditional pardon, by warrant
me of the principal Secretaries
seal-at-arms of the Governor
of custody, in case of a free
I in the case of a conditional
1 offender, under the great seal,
„ granted; but no free pardoii,
uiy conditional pardon, nor the
. of the cases aforesaid, shall
;he offender might otherwise he
, for any offence other than that
. 181, ss. 33 & 39.

;tence of death passed upon any
somnent in the penitentiary for
L years, or to imprisonment in
,,eriod less than two years, with
der the hand and seal-at-arms ut
station of sentence, or a letter or
UaryofStateorof theLnder
toany judge or justice having

, officer to whom such letter or
commutation, and to do all ^uA
such directions, as are requisite

\\ for his conduct to and deliverv
itiary. and his detention therein,

has been commuted. K. &• ^

bucE.

Led of an offence not pmiishahle

Int to which such offender «.
Lh death and the sentence ha.

Lured the punishment to win

Int so endured shall, as to the
Id have the like effect and come-

quences as a pardon under the great seal ; but nothing herein contained, nor
the enduring of such punishment, shall prevent or mitigate any punishment
to which the offender might otherwise be lawfully sentenced, on a subsequent
conviction for any other offence. R. S. C. c. 181, s. 41.

See Leyman v. Latimer, 14 Cox, 51.

Undergoing Punishment a Bab to Another Prosecution.

OOO. When any person convicted of any offence has paid the sum
adjudged to be paid, together with costs, if any, under such conviction, or
has received a remission thereof from the Crown, or has suffered the imprison-
ment awarded for non-payment thereof, or the imprisonment awarded in the
first instance, or has been discharged from his conviction by the justice of the
peace in any case in which such justice of the peace may discharge such
person, he shall be released from all further or other criminal proceedings
for the same cause. R. S. C. c. 181, s. 42.

See 8. 866, ante, and 24 & 25 V. c. 100, ss. 44, 45 (Imp.).

This enactment applies only to summary convictions,
and creates a bar to ulterior criminal, not to civil proceed-
ings. See R. V. Miles, 17 Cox, 9, 24 Q. B. D. 423, Warb.
Lead. Cas. 230, and cases there cited.

Royal Pperogative.

970. Nothing in this part shall in any manner limit or affect Her
Majesty's royal prerogative of mercy. R. S. C. c. 181, s. 43.

Conuitional Release op First Offenders.

©Tl. In any case in which a person is convicted before any court of
any offence punishable with not more than two years' imprisonment, and no
previous conviction is proved against him, if it appears to the court before
which he is so convicted, that, regard being had to the youth, character, and
antecedents of the offender, to the trivial nature of the offence, and to any
extenuating circumstances under which the offence was committed, it is
expedient that the offender be released on probation of good conduct, the
court may instead of sentencing him at once to any punishment, direct that
he be released on his entering into a recognizance, with or without sureties,
and during such period as the court directs, to appear, and receive judgment
when called upon, and in the meantime to keep the peace and be of good
behaviour. •

2. The court may, if it thinks fit, direct that t'le offender shall pay the
costs of the prosecution, or some portion of the same, within such period and.
by such instalments as the court directs. 52 V. c. 44, s. 2.

972. The court, before directing the release of an offender under tli«
next preceding section, shall be satisfied that the offender or his surety has a
fixed place of abode or regular occupation in the county or place for which
the court acts, or in which the offender is likely to live during the period
named for the observance of the conditions. 52 V. c. 44, s. 4.

. Ckim. Law— G2

in'."

''■i-. m

;. ^r'

978

PROCEDURE.

[Sees. 97;

073* If a court having power to deal with 8uch offender in resjx
his original offence or any justice of the peace is satisfied by informatic
oath that the offender has failed to observe any of tiie conditions o
recognizance, such court or justice of the peace may issue a warrant fo
ajjprehension.

2. An offender, when apprehended on any such warrant, shall, il
"brought forthwith before the court having power to sentence him, be bro
before the justice i.^suing such warrant or boforo some other justice in an
the same territorial division, and such justice shall either remand hii
■warrant imtil the time at which he was required by his recognizance to a\
for judgment, or until the sitting of a court having power to deal witi
original offence, or admit him to bail (with a sufficient surety) conditiom
his appearing for judgment.

3. The offender when so remanded may be committed to a prison, e
for the county or place in or for which the just'-^e remanding him acts, 0
the county or jjlace where he is bound to appear for judgment ; anc:
warrant of remand shall order that he be brought before the court b(
which he was bound to appear for judgment, or to answer as to his con
since his release. 52 V. c. 44, s. 3.

074l> In the three next preceding secti 'ns the expression "court" m
and includes any superior court of criminal jurisdiction, any " judge" or c
within the meaning of Part LV., and any "magistrate" within the mea
of Part LVI. of this Act, 52 V. c. 44, s. 1.

:l I;

[Sees. 973, 974

V, offender in respect ot
'"^ fi rbv infcrmation on
'^^tcttncV.tion.^
lay I.-, warrant for U.

'^*«^''"rrj-S;emancUor
f, some other 3" ^ ^,i„^ V,y

clby^u«^^-^";neaUvitMns
^^'"'^Cety) conditioned on

•.,.r\ to a prison, either
becommittedto I ^^^^^j^^

' "^K, before the W' ^f"

■ „ "court" means
.i-nstbeexpreB^«^^^^^^^^„„,eo.n

^,u-isdicuon fny ^^ the meauiuj
"magistrate ^\l>'

.S.cs. 975-1)80] ACTIONS AGAINST JUSTICES, ETC.

979

TITLE IX.

ACTIONS AGAINST PERSONS ADMINISTERING THE
CRIMINAL LAW.

{)73. Every action and prosecution against any person for anything
imrpdrting to be dune in i)uvsuance of nny Act of the Parliament of Canada
relating to criminal law, shall, unless otherwise provided, bo laid and tried in
tlie district, county or other judicial division, where the act was committed
aiul not elsewhere, and shall not be commenced exct-pt within six months next
after the act committed. R. S. C. c. 185, s. 1.

976. Notice m writing of such action and of the cause thereof, shall be
given to the defendant one month at least before the commencement of the
action. R. S. C. c. 185, s. 2.

!)T7. In any such action the dfifendant may plead the general issue,
and give the provisions of this title and the sjjecial matter in evidence at any
trial had thereupon. R. S. C. c. 1;<5, s. 3.

018- No plaintiff shall recover in any such action if tender of sufficient
amends is made before such action brought, or if a sufficient sum of money is
paid into court by or on behalf of the defendant after such action brought.
R. S. C. c. 185, s." 4.

97f). If such action is commenced after the time hereby limited for
bringing tlie same, or is brought or tlie venue laid in any other place than
as aforesaid, a verdict shall be found or judgment shall be given for the
defendant ; and thereupon or if the jJaintiff becomes nonsuit, or discontinues
any such action after issue joined, or if upon demurrer or otherwise judgment
is given against the plaintiff, the defendant shall, in the discretion of the
1 court, recover his full costs as between solicitor and client, and shall have the
I like remedy for the same as any defendant has by law in other cases ; and
[although a verdict or judgment is given for tlie plaintiff in anj' such iiction,
[such plaintiff shall not have costs against the defendant, unless the judge,
Itefore whom the trial is had, certifies his approval of the action. R. S. C.
|c. 185, s. 5.

9§0. Nothing herein shall prevent the effect of any Act in force in any
province of Canada, for the protection of justices of the peace or other officers
Irom vexatious actions for things purporting to be done in the performance
If their duty. R. S. C. c. 185, s. 6.

I^i

980

PROCEDURE.

[Sees. 081,

TITLE X.

■■&.

, >.,f

,.1:

REPEAL, ETC.

9Sli The several Acts set out and described in schedule two to t
Act shall, from and after the date appointed for the coming into force of tl
Act, be repealed to the extent stated in the said schedule.

2. (As amended in 1893.) The provisions of this Act which relate to p
cedure shall apply to all prosecutions commenced on or after the day u]}
which this Act comes into force, in relation to any offence, whensoever co
mitted. The proceedings in resi^ect of any prosecution commenced before t
said date otherwise than under the Summary Convictions Act, shall, up
the time of committal for trial, be continued as if this Act had not be
passed, and after committal for trial shall be subject to all the i)rovisions
this Act relating to procedure, so far as the same are. applicable thereto. T
proceedings in respect of any prosecutions commenced before the said da
under the Summary Convictions Act, shall be continued and carried on as
this Act had not been passed.

Sub-section I of this a. 981 is intended to enact thi
the repeal of the divers Acts, described in schedule twi
shall come into force on the 1st of July, 1893, the da
fixed by s. 2, for the coming into force of the cod
A simple way to do so, and the usual way in statutor
language, would have been to merely enact that the seven
Acts mentioned in the schedule are repealed. The cod
and the repeal clause would then have come into fore
together; but, as the section reads, it is open to the construe
tion that whilst the code comes into force on the 1st c
July, the repeal of the divers Acts mentioned takes effec
only on the 2nd of July.

Forms.

9§2. The several forms in schedule one to this Act, varied to suit th
case or forms to the like effect, shall be deemed good, valid and sufticieut i
law. R. S. C. c. 174, a. 278 ; c. 178, s. 111.

These forms are inserted under the sections to wliicl
they respectively apply.

See also Interpretation Act: E. S. C. c. 1, s. 7, s-s. 44,
as to forms generally.

[Sees. 981, 982

Sec. 983]

APPLICATION OF THE ACT, ETC.

981

jribed in schedule two to this
or the coming into force of this
id schedule.

of this Act which relate to i)ro-
need on or after the day upun
;o any offence, whensoever com-
•osecution commenced before the
y Convictions Act, shall, up to
3d as if this Act had not been
, subject to all the jirovisions of
urne are. applicable thereto. The
commenced before the said day.
)e continued and carried on as if

intended to enact that
jcribed in schedule two,
of July, 1893, the date
into force of the code.
usual way in statutory
,ly enact that the several
^re repealed. The code
\n have come into force
it is open to the construe-
into force on the 1st of
iS mentioned takes effect

to this Act, varied to suit the
fmed good, valid and sufhcient in

ier the sections to wliicb
L S. C. c. 1, s. 7, s-8. ii'

Some of these forms ..e nothing but " snares to entrap
persons." The form of indictment, for instance, in sched-
ule one, FF d. {see under s. 611, ante), for the offence
provided for by s. 146, s-s. 2, cannot be followed. The
words " penal servitude " in it are nonsensical. There is
no such punishment in Canada. The form in the Imperial
draft Code of 1879 has been slavishly copied, without pay-
ing attention to the differences in the punishments in
England and Canada. The form for the offence provided
for by s. 241 is also totally wrong. There is no such
offence as doiiig actual bodily harm to any one with intent
to maim.

See R. V. Johnson, 8 Q. B. 102 ; R. v. Kimber, 3 Cox,
223. Compare Barnes v. White, 1 C. B. 192 ; in re Alli-
son, 10 Ex. 561; R. v. Sansome, 1 Den. 545 ; Egginton's
case, 5 E. & B. 100 ; Charter v. Greame, 13 Q. B. 216 ; R.
v. Bain, Ramsay's App. Cas. 191 ; R. v. Davis, 18
U. C. Q. B. 180; R. v. Shaw, 23 U. C. Q. B. 616; Mofifatt
V. Barnard, 24 U. C. Q. B. 498 ; R. v. Turner, 1 Moo. 239,
4 B. & Aid. 510 ; R. v. Bent, 1 Den. 157 ; R. v. Cox, 1
Leach 71 ; R. v. Ryan, 2 Moo. 15 ; R. v. Lewis, 2 Russ.
1067 ; R. V. Cummings, 16 U. C. Q. B. 15 ; R. v. McLaugh-
lin, 3 Allen, (N. B.), 159.

Appfjcation of the Act, Etc.

983. The provisions of this Act extend to and are in force in the Xorth-
West Territories and tlie district of Keewacin except in so far as they are
inconsistent with the provisions of the Xorth-West Territories Act or The
Keewatia Act and the amendments tliereto.

2. Nothing in this Act shall affect any of the laws relating to the govern-
ment of Her Majesty's land or naval force;>.

3. Nothing herein contained shall affect the Acts and parts of Acts in the
appendix to this Act. And in construinpr such parts reference may be liad to
the i'ei)ealed portions of tlie Acts of which respectively they form parts, as
well as to any sections of this Act which have be f a substituted therefor, or
whicli deal with like matters.

This s-8. 3 and the appendix, taken together, are not
always in accord with s. 981 atfd sched. 2. The latter one,
for instance, repeals the whole of c. 157 of the Revised
Statutes. The former enacts that one sub-section of it is

ll'*ft«i

.^|l

982

rUOCKDURE.

[Hcc.

in force. (This has since been remedied by the Araendme
Act of 1893). Two sections of c. 158, and two of e. 1G3 a
left unrepealed by sched. 2, but are not to be found in tl
appendix, though it is headed ** Acts and parts of Ac
which are not affected by this Act." Seven sections
c. 167 are left unrepealed by sched. 2, but six only cou
find place in the appendix. One sub-section of c. 173 is k
unrepealed by sched. 2, but there is no trace of it in tl
appendix. To compensate for it it would seem only thr
sections of 51 V. c. 41, are left unrepealed by sched. 2, whil
five sections of it are in the appendix. One section out
thirteen of 53 V. c. 37, left unrepealed by sched. 2 is n
in the appendix. It clearly was erroneously left unr
pealed, but this one error added to the other ones bho\
with what carelessness the whole work has been done.

Then the Act respecting the postal service is j'iven i
c. 36 of the Revised Statutes, iustead of c. 35 ; s. 86, ai
others of that Act have been left unrepealed whilst otli
penal sections have been repealed. S. 6 of 53 V. c. 37
left unrepealed, though re-enacted by s. 177 of the cod
Ss. 5, 6, 13, 1-1, & 15 of c. 151 E. S. C. are left unrei)eal
though re-enacted in ss. 117 & 118. S. 101 ot c.
R. S. C, is also left unrepealed, though re-enacted
8. 116. S. 102, c. 8, R. S. C, is left unrepealed, thoiu
re-enacted in ss. 329 and 503. S. 1 of c. 152, R. S. C,
left unrepealed though re-enacted by and clashing \\l
s. 113. S. 3 of c. 141, R. S. C. was left as unrepealed, b
it had been repealed in 181)0 by 53 V. c. 37, s. 41. Tl
Canada Evidence Act of 1893 has since repealed the who
of that c. 141.

SOHEDULK ONK.

983

lietl by tbe Araemlment
3, and two of c. 1G3 are
not to be found in tbe
.cts and parts of Acts
t." Seven sections of
1 2, but six only couUl
^b-sectionofc.misleft

is no trace of it in the
t would seem only tbree
3ealedby8cbed.2.wbilst
Idix. One section out of
lealed by sched. 2 is not
3 erroneously left unve-
to tbe other ones shows
work has been done,
postal service is «iven as
,tead of c. 85 ; s. 8G, and
unrepen.led whilst ciu'.r
.a. S. 6 of 53 V. c, 37 is
a by s. 177 of the coae.
S. C. are left unreneakl
118. S. 101 ot c. 50
though re-enacted w
„ left unrepealed, though
:i. 1 of c. 15-2, R. S. 0., ^
,d by and clashing with
■as left as unrepealed, but
, 53 V. c. 37, s. 41. le
since repealed the whole

SCHEDCJLB ONE.
FORMS.

See un<ler the various sections to which the forms
I'CKpectively apply.

SCHEDULE TWO.
ACTS REPEALED.

Acts

RKl'KALF.n.

Tiri,i:.

EXTECNT OP
KKI'KAIi.

C. S. li. c

r. 10

R S. C

c. ■^■rxn

34 All

((

41; An

((

43 An

Ii5 An

hi: An

Ul An

145 An

((

H;i An

147 An

((

148 An

149 An

((

l.'iirAn

V>2

All

Act rosi)i>i'tinK scHlitiims anil unl.iwful Asaocia-

tions iind nntUi

Act ri'spfiiinji tlic (lustonn.

Art ri'Sii'i'tiny tli'> Inl 'nl Ucvi^nue.

Act ro8iJ'.'jtiii)i; tlii! I'liatal S-'Vvi'jo.

Sees 1, 2, 3 A 4.

S.'C. il3.

Si'cs. 118 .t O'l.

Si'i'S. 7i( toyi. 83, 84,
SS, !)0, 91, !lii, l(i3,
107. 110 & 111.

Sec (12.

Act resppctiny (lovcriim iit Riilivnys
Act I'lSiiejtiii;^ till! Jtilitia laid Defouoo
Canailii

Act r. spcctins Indians

Act ri si)C(.'tini{ Immiiii'ation iinil Iinniiw. ints
Act rispi'ctinjf Wre. ks, t'asiiiltica iinil Salvage
Act respecting; Kxtra-jiulicial oatlw
Act ri'spee.timj Ai ' ■■:ior:es.
Act r S'.iectinR Trc. on and other OiTenccs against The whole \ct, ex-
the (Queen's aatli.uily. cept sees. 0 A 7.

Act n'spoctiiij,' Riots, unlawful assjinblies and
l)reac!:"s of th- peace The whole .\ct.

Act respecting the improper usj of firearms and Tic wliole Act, ex-
o'her weapons, ecpt see. 7.

Act respectini? tlio aeiziire of arms kept for dan- The whole \ct, ex-

Sec. 109.

S.'cs. 100 iss, 2) Alll.

Sec 37.

Sees. ;>') to 37.

S.M'S, 1 A 2.

Die wli)l(! .Vet.

Keioiis pui'pini's.

A:t respeetini^ Kxplosive Substances
Act reMjiectin.; the preserve.tioil of
Piibli-,: Jleetiiiys.

153 An Act r.'Siicctiiig frize-fighting.
i

154 An Act respecting Perjury.

155 An Act respectini; Escapes and Rescues,
150 An Act respeetini.r olfeiu-es ai^ainst Kjliiiion.
157 An Act re^peetin:,' o(f mio'S against I'ublic

• and i'ublic C'onveni.'uco.

158 An Act respecting Gainins,' houses.

Betting and

159' An

Act r.'specting Lotteries

1 selling,
lliO An Act respecting (i.iinbling in public conveyances
llil'An Act r. spoctinij- olll'iices relating to the Jjaw of

I Alarriawe. Tli

ce))* sei'S. 5 it 7.

The whole Act.
peace at Tlie whole .\ct, ex-
cept si'cs 1, -2 & 3.

Tim wliole .\ct ex-
cei)t sees 0,7 4 10.

The whole .\ct, ex-
ee))t sec. 4.

The whole .\ct.

The whole \ct.
Morals The whole .\ct, ex-
cept sec. 8, sub-
sec. 4 I as amended
in 18,131.

The wliol" .Vet, ex-
cept sees, y & 10.

Pool-

Tlie wliole .\ct.
The wliol" .Vet.

whole .Vet.

984

SCHEDULE TWO.
ACTS REVEkLED—Omdnuid.

R. 8. C. c. 102

<' 103

164
105
167

168
109

171

172

60-51

An Act reipecting ofTencet against the Person.
An Act rugpoctlug Llbrl.

An Act rospecting Larceny and similar otToncos.

An \ct respecting Forgery.

An Act 'especting otTunccs relating to the Coin.

An Act respecting irallcious injuries to Propertv.

An Act respecting oir'nces relating to the Army
and Navy

An Act respecting the protection of Property of Sea-
men in the Navy.

An Act respecting Cruelty to Animals.

173|An Act respecting Threats, Intimidation and other
otiences.

The whole Act.

The wliolo Act, ex-
cept sees. 6 it 7.

Thii whole Act,

The whole Act.

The whole Act, ex-
cept sues. 26 A 29
to 34 inclusive.

The whole Act

The whole Act, ex-
cept SBC. 9.

The whole Act.

The whole Act, ex-
cept sec. 7.

The whole Act, ex-
cept sec. 12 (8-8, 6),

174 An

176 An

177 An

178 An

179 An

180 An

181 An

Act respecting Procedure in Criminal Cases. 'The whole Act.
Act resp' cting the summary administration uf

Criminal Justice,

Act respecting Juvenile Ortenders.

Act respecting summary proceedings before
Justices of the Peace.
Act respecting Recognizances,
Act respecting Fines and Forfeitures.
Act respecting Punishments, Pardons and the|

I Commutation of Sentences
185 An Act respecting Actions against persons admin-

jThe whole .\ct.
iThe whole Act.

The whole Act.
The whole Act.
The whole Act.

IThe whole Act,

v. c. 33 An
4S|An
40^ An

48 An

49 An

The whole Act.

S 'C. 11.

The whole Act.

c. 29

42
43
44
45

An
An

An
An
An
An

istering the Criminal Law
Act to amend the Indian Act.
Act respecting Public Stores.
Act respecting the tconveyance of liquors on
board Her Majesty's Ships in Canadian Waters. |The whole Act.
Act to amend the Act respecting offences against
Public Morals and Public Convenience. [The whole Act.

Act to amend the Revised Statutes, Chapter one
hundred and seventy-three, respecting Threats, i
Intimidation and other oft'ences. ,The whole Act.

Act to amend the Law respecting Procedure in
Criminal Cases. The whole Act.

Act respocting Railways Sec. 297.

Act respecting the advertising of Counterfeit
Money. Tlie whole Act.

Act to amend the law relating to Fraudulenti
Murks on Merchandise. The whole Act, eX'

cept sees. 15,
I 18, 22 & 23.
Act respecting gaming in Stoci^s and Merchan-'

dise

The whole Act.

52 V. c. 22 An
" 25 An

" 40: An

Act further to amend the Law respecting Pro-
cedure in Criminal Cases. The whole Act,
Act furtlier to amend The Criminal Proce-
dure Act. The whole Act.
Act to amend Chapter one hundred and seventy-
eight of the Revised Statutes of Canada: The''
Summary Convictions Act IThe whole Act.
Act to amend the Revised Statutes of Canada,!
Chapter one hundred and eiglity-one, respecting!
Punishments, Pardons and the Commutation of;
Sentences jThe whole .V.t.
Act to amend the Revised Statutes, Chapter,
seventy-seven, respecting the safety of Ships |Sec. 3.
Act to amend the Revised Statutes respecting tliej
North-west Mounted Police Force. iSec. 4,
Act respecting Rules of Court in relation to,
Criminal Matters. iThe whole .\.ct.

16,

ntiuued.

orson.

irtVncoi.
e Coin.

EXTKNT OF
BKPKAIi.

Tho wholo Act.

Tho whole Act, ex-
cept mic8. U it 7.

Thi' whole Act,

Tho whole Act.

The whole Act, ex-
cept RUC8. 26 A 29
to 34 incluiivc.

The whole Act
) the Army Tho whole Act, ex-
cept sec. 9.

Property
) the A:

•erty of Sea-

The whole Act.
The wliole Act, ex-
cept sec. 7.
tn aud other The wholo Act, ex-
cept sec. 12 (s-8. 5).

a Cftses. The whole Act.

nistration of ^ , . t

,ThG whole .\ct.
The whole Act.

lings before' , , . .

The whole Act.

The wholo Act.
,, The whole Act.

ions and the.

The whole Act.

rsons admin-.

The whole Act.

S'C. 11.

'The vhole Act.

)f liquors on

dian Waters. jTho whole Act.

[■ences against , , . „.

'nee. iThe whole Act.

., Chapter one

ting Threats,' ....

' The whole Act.

Procedure In ....

The wholo Act.
Sec. 297.
f Counterfeit , , , »

llie whole Act.
Fraudulent! . i „.

;The whole Act, ex-
cept sees. 15, 1*1
I 18, 22 & 23.

Ind Merchan- , , , i

The whole Act.

The whole Act.
Tho whole Act.

The wh 5le Act.

Ispectlng Pro-

linal Proce-

and seventy-
anada : The

Is of Canada,
lie, respecting
hiniutatiou of, , , ,

'The whole \'i.

ites, Chapter;

■ of Ships See. 3.

•espBctius? the

|Seo. 4.
relation to, . , . .

iThe whole .Act.

SCIIEDULK TWO.
ACTS REPEALED— r ontinutJ.

985

Acts

KxTENT or

Bepeale

Kei'kal.

r.i> V.

41 An Act for tlie prevention nud suppresitiou of Com-

binations formed in restraint of Trudi>.

Tlie whole Act, ex-
coift sees. 4 A B.

42 An Act respecting Corrupt I'ractieei in Municipal

! Attairs.

The wholo Act.

44 An Act to permit thit conditional release of first

1 ott'enders in certain cases.

The whole Act,

45 An Act to amend The Summnrji Convlctionii
Act, Chapter one hundred and aeventy-eiglit of
the Itevised Statutes, and tlie Act amending tho

same.

The whole .\ct.

4G .An Act to amend The Suuimnrff Trials Act.

The whole Act.

47 An Act to make further ))roviBion respecting the

Speedy Trial of certain Indictable tJHences.

The wholo .\ct.

53 V.

10 Au Act to prevent the disilosure of oHlcial docu-

ments and iniormation.

The whole Act.

31 An Act respecting Uanl(s and Hanking.

Sec. 03.

37. An Act further to amend tho Criminal Law.

Tho wholo Act, ex-
cept sees. 1, 2, 0,
32, to end

38 An Act to amend the Public Stores Act.

The whole Act.

54-55 V.

23 An Act respecting Frauds upon tlie lioveniment.

Tho whole .Vet.

.f"^'

\M k.'

986

APPENDIX.

:i K

'■■ ' i; ■

! r

j \

I i

APPENDIX.

ACTS AND PARTS OF ACTS WHICH ARE NC
AFFECTED BY THIS ACT.

R. S. C. CHAPTER 50.

An Act respecting tlie North-west Territories.

101> In this section —

(a) The expression "improved arn." means and includes ;
arms except smooth bore shot guns ;

(<J) The expression "ammunition'' means fixed ammunition
ball cartridge.

2. Every person who, in the territories, —

(a) Witliout the pern\is:sion in wriiing (the proof of which sh;
be on him) of the Lieutenant-Governor, or of a commission
appointed by him to give sucli permission, has in his possession
sells, exchanges, trades, barters or gives to, or with any person, a
improved arm or ammuniiion, or —

(d) Having such permission, sells, exchanges, trades, barters
qives any such arm or ammunition to any person not lawfully auth(
ized to possess the same, —

Shall, on summary conviction before a judge of the Suprei
Court or two justices of the peace, be liable to a penalty not cxcef
ing two hundred dollars, or to imprisonment for any term not cxcce
ing six months, or to both.

3. All arms and ammunition which are in the possession of a
person, or whicli are sold, exchanged, traded, liartered or given to
with any person in violition of this section, shall be forfeited tot
Crciwn, and may be seized by any constable or otiier peace office
and any judge of the Supreme Court or justice of the peace may is;
a search warrant to search for and seize the same, as in the case
stolen goods.

4. The Governor in Council may, from time to time, make regu
tions respecting : —

{(i) The granting of perm:s.-.ion to sell, exchange, trade, hart
give or possess arms or ammunition ;

{^) The fees to be taken in respect thereof ;

APPENDIX.

987

[X.

WHICH ARE NOT
IIS ACT.

:r 50-

h-west Territories.

n." means and includes all
means fixed ammunition or

■les, —

ling (the proof of which shall
mov, or of a commissioner
;ion, has in his possession or
s to, or with any person, any

exchanges, trades, barters or
^ly person not lawfully author-
lore a judge of the Supreme

iable to a penalty not excee<r
Iment for any term not exceed-

li are in the possession of any
Iraded, bartered or given to or
ction, shall be forfeited to the
Ltable or other peace officer;
I- justice of the peace may issue
V^e the same, as in the case ot

lorn

time to time, make regula-

sell, exchange, trade, barter,

thereof ;

{(f) The disposition to be made of forfeited arms and ammuni-
tion.

5. The provisions of this section respecting the possession of
arms and ammunition shall not apply to any officer or man of Her
Majesty's forces, of the Militia force, or of the North-west Mounted
Police force.

6. The Governor in Council may, from time to time, declare
by proclamation tiiat upon and after a day therein named this section
shall be in force in the territories, or in any place or places therein in
such proclamation designated ; and upon and after such day but not
before the provisions of this section shall take effect and be in force
accordingly.

7. The Governor in Council may, in like manner, from time to
time, declare this section to be no longer in force in any such place or
places, and may again, from time to time, declare it to be in force
therein.

S. .\!! c Mirts, judges and justices of the peace shall take judicial
notice of any sir:h proclamation.

R. S. C. CH.'VPTER 146.

An Act respeetino- Treas(jn and other Offences against
the Queen's Authorit}'.

0- If any person, Jjeing a citizen or suliject of any foreign state
or country at peace with Her Majesty, is or continues in arms against
Her Majesty, within Canada, or commits any act of hostility therein,
or enters Canada with design or intent to levy war against Her
Majesty, or to commit any felony therein, for which any person
would, in Canada, be liable to suffer death, the Governor General may
order the assembling of a militia general court-martial for the trial of
such person, under T/ie Militia Act ; and upon being found guilty by
such court-martial of offending' against the provisions of this section,
such person shall l)c sentenced by such court-martial to suffer death,
or such other [)unishnient as the court awards.

7. Every subject of Her Majesty, within Canada, who levies war
against Her Majesty, in company with any of the subjects or citizens
of any foreign state or country then at peace with Her Majesty, or
enters Canada in company with any such subjects or citizens with

988

APPENDIX.

intent to levy war on Her Majesty, or to commit any such act o
felony as aforesaid, or who, with the design or intent to aid and assist
joins himself to any person or persons whomsoever, whether subject:
or aliens, who have entered Canada with design or intent to levy wa
on Her Majesty, or to commit any such felony within the same, ma;
be tried and punished by a militia court-martial, in the same manne
as any citizen or subject of a foreign state or country at peace will
Her Majesty may be tried and punished under the next preceding
section.

R. S. C. CHAPTER 148.

An Act respecting the improper use of Firearms anc

other Weapons.

T. The court or justice before whom any person is convicted 0
any offence against the provisions of the preceding sections, shal
impound the weapon for carrying which such person is convicted, an(
if the weapon is not a pistol, shall cause it to be destroyed; and if th(
weapon is a pistol, the court or justice shall cause it to be handed ovei
to the corporation of the municipality in which the conviction takei
place, for the public uses of such corporation.

2. If the conviction takes place where there is no municipality,
the pistol shall be handed over to the Lieutenant-Governor of th(
province in which the conviction takes place, for the public uses thereol
in connection with the administration of justice therein.

R.S. C. CHAPTER 149.

An Act respecting the Seizure of Arms kept for danger-
ous purposes.

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, lown
or place, in all cases with respect to the carrying into execution the
provisions of this Act, and with respect to all matters and tilings
relating to the preservation of the public peace under this Act, as
fully and effectually as if each of such justices was in the commission
of the peace, or was ex officio a justice of the peace for each of such
districts, counties, cities, towns or places.

APPENDIX.

989

commit any such act of
or intent to aid and assist,
tnsoever, whether subjects
esign or intent to levy war
lony within the same, may
artial, in the same manner

or country at peace with
under the next preceding

7. The Governor in Council may, from time to time, by procla-
mation, suspend the operation of this Act in any province of Canada
or in any particular district, county or locality specified in the procla-
mation ; and from and after the period specified in any such procla-
mation, the powers 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 proclamation this Act shall be revived and in force accordingly.

^I'b

I 148.
use of Firearms and

[18.

1 any person is convicted of
,ie preceding sections, shall
iuch person is convicted, and
t to be destroyed ; and if tlie
all cause it to be handed over
which the conviction takes
tion.

:re there is no municipality,
Lieutenant-Governor of the
ce, for the public uses thereof
justice therein.

R 149-
Arms kept for danger-

for any district county, city,

urrent jurisdiction as justices

er district, county, city, lown

carrying into execution the

;t to all matters and thingi

Ir.c peace under this Act, as

Istices was in the commission

If the peace for each of such

R. S. C. CHAPTER 151.

, ■ Act respecting the Preservation of Peace in the
vicinity of Public Works.

INTERPRETATION.

I. In this Act, unless the context otherwise requires, —

(a) The expression " this Act" means such section or sections
thereof, as are in force, by virtue of anv proclamation, in the place or
places with reference to which the Act is to be construed and
applied ;

(<^) The expression " commissioner" means a commissioner
under this Act ;

{c) The expression " weapon" includes any gun or other firearm,
or air-gun or any part thereof, or any sword, sword-blade, bayonet,
pike, pike-head, spear, spear-head, dirk, dagger, or other instrument
intended for cutting or stabbing, or any steel or 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 ;

{if) The expression "intoxicating liquor" means and includes
any alcoholic, spirituous, vinous, fermented or other intoxicating
liquor, or any mixed liquor, a part of which is spirituous or vinous,
fermented or otherwise intoxicating ;

{c) The expression "district county or place," includes any
division of any province for the purposes of the administration of
justice in the matter to which the context relates ;

(/) The expression " public work" means and includes any rail-
way, canal, road, bridge or other work of any kind, and any mining

■4

990

APPENDIX.

hi'

operation constructed or carried on by the Government of Canada, or
• of any province of Canada, or by any municipal corporation, or by
any incorporated company, or by private enterprise.

PROCLAMATION.

8. The Governor in Council may, as often as occasion requires,
declare, by proclamation, that upon and after a day therein named,
this Act, or any section or sections thereof, shall be in force in any
place or places in Canada in such proclamation designated, within the
limits or in the vicinity whereof any public work is in course of con-
struction, or in such places as are in the vicinity of any public work,
within which he deems it necessary that this Act, or any section or
sections thereof, should be in force, and this Act, or any such section
or sections thereof, shall, upon and after the day named in such
proclamation, take effect within the places designated therein.

2. The Governor in Council may, in like manner, from time to
time, declare this Act, or any section or sections thereof, to be no
longer in force in any such place or places,— and may again, from
time to time, declare this Act, or any section or sections thereof, to be
in force therein.

3. No such proclamation shall have effect within the limits of
any city.

4. All courts, magistrates and justices of the peace shall take
judicial notice of every such proclamation.

WEAPONS.

3. On or before the day named in such proclamation, every
person employed on or about any public work, to which the same
relates, shall bring and deliver up, to some commissioner or officer
appointed for the purposes of this Act, every weapon in his possession^
and shall obtain from such commissioner or officer a receipt for the
sime.

4. Every weapon found in the possession of any person employed,
as .aforesaid, after th: day named in any proclamation and within the
limits designated in such proclamation, may be seized by any justice
of the peace, commissioner, constable or other peace ofificer, — and
shall be forfeited to the use of her Majesty.

5. Every one employed upon or about any public work, within
the place or places in which this Act is then m force, who, upon or
after the day named in such proclamation, keeps or has in his
possession or under his care or control, within any such place, any

APPENDIX.

991

;ffect within the limits of
of the peace shall take

such proclamation, every

fvork, to which the same

commissioner or officer

weapon in his possession,

Ir officer a receipt for the

In of any person employed,
Vlamation and within the
be seized by any justice
■other peace officer,— and

any public work, within

en m force, who, upon or

j)n, keeps or has in his

Ithin any such place, any

weapon, shall incur a penalty not exceeding four dollars and not less
than two dollars for every such weapon found in his possession.

Section 117 of the code.

6. Every one who, for the purpose of defeating this Act, receives
or conceals, or aids in receiving or concealing, or procures to be
received or concealed, within any place in which this Act is at the
liiue in force, any weapon belonging to or in the custody of any person
employed on or about any public work, shall incur a penalty not
exceeding one hundred dollars and not less than forty dollars, and a
moiety of such penalty shall belong to the informer and the other
moiety to Her Majesty, for the public uses of Canada.

Section 117 of the code.

7. Any commissioner or justice of the peace, constable or peace
officer, or any person acting under a warrant, in aid of any constable
or peace officer, may arrest and detain any person employed on any
public work, found carrying any weapon, within any place in which
this Act is, at the time, in force, at such time and in such manner as,
in the judgment of such commissioner, justice of the peace, constable
or peace officer, or person acting under a warrant, affords just cause
of suspicion that it is carried for purposes dangerous to the public
peace ; and every one so employed, who so carries any such weapon,
is guilty of a misdemeanour,— and the justice of the peace or com-
missioner arresting such person, or before whom he is brought under
such a warrant, may commit him for trial for a misdemeanour, unless
he gives sufficient bail for his appearance at the next term or sitting
of the court before which the ofifence can be tried, to answer to any
indictment to be then preferred against him.

8. Any commissioner appointed under this Act, or any justice of
the peace having authority within the place in which this Act is at the
time in force, upon the oath of a credible witness that he believes that
any weapon is in the possession of any person or in any house or
place contrary to the provisions of this Act, may issue his warrant to
any constable or peace officer to search for and seize the same, — and
he, or any person in his aid, may search for and seize the same in the
possession of any person, or in any such house or place,

9. If admission to any such house or place is refused after demand
such constable or peace officer, and any person in his aid, may enter
the same by force, by day or by night, and seize any such weapon
and deliver it to such commissioner ; and unless the person in whose
possession or in whose house or premises the same is found, within
four days next after the seizure, proves to the satisfaction of such com-

r."i':

k
i

992

APPENDIX.

^^■i

missioner or justice of the peace that the weapon so seized was not ir
his possession nor in his house nor place contrary to the meaning ol
this Act, such weapon shall be forfeited to the use of Her Majesty.

10. All weapons declared forfeited under this Act shall be sold
or destroyed under the direction of the commissioner by whom or by
whose authority the same are seized, and the proceeds of such sale,
after deducting necessary expenses, shall be received by such com.
missioner and paid over by him to the Minister of Finance and
Receiver-General, for the public uses of Canada.

11. Whenever this Act ceases to be in force within the place
where any weapon has been delivered and detained in pursuance
thereof, or whenever the owner or person lawfully entitled to any such
weapon satisfies the commissioner that he is about to remove imme-
diately from the limits within which this Act is at the time in force
the commissioner may deliver up to the owner or person authorized
to receive the same, any such weapon, on production of the receipt
given for it.

18. Every commissioner under this Act shall make a monthly
return to the Secretary of State of all weapons delivered to him, and
by him detained under this Act.

INTOXICATING LIQUOR.

13. Upon and after the day named in such proclamation and
during such period as such 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 shall not extend to any person
selling intoxicating liquor by wholesale, and not retailing the same, if
such person is a licensed distiller or brewer.

14. Every one who, by himself, his clerk, servant, agent or other
person, violates any of the provisions of the next preceding section, is
guilty of an offence against this Act, and, on a first conviction, shallbe
liable to a penalty of forty dollars and costs, and, in default of pay-
ment, to imprisonment for a term not exceeding three months,— 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.

Section 118 of the code adds, with or without hard
labour.

APPENDIX.

993

apon so seized was not in
intrary to the meaning of
le use of Her Majesty.

der this Act shall be sold
jmissioner by whom or by
he proceeds of such sale,
je received by such com.

Minister of Finance and
nada.

in force within the place
,nd detained in pursuance
iwfuUyentitledtoanysuch

is about to remove imme-
A.ct is at the time in force,
wner or person authorized
^ production of the receipt

Act shall make a monthlv
ipons delivered to him, and

}UOR.

m such proclamation and
•emains in force, no person
ified in such proclamation,
nny matter, thing, profit or

my intoxicating liquor ; nor
loxicating liquor intended to

I not extend to any person
nd not retailing the same, if

lerk, servant, agent o. other
e next preceding section, b
on a first conviction, shallbe

losts, and, in default of pay-
leeding three months,-ana
[said penalty and the said
llso to further imprisonment

with or without hard

15' Every clerk, servant, agent or other person who, being in
the employment of, or on the premises of another person, violates or
assists in violating any of the provisions of the thirteenth section of
this Act, for the person in whose employment or on whose premises he
is, shall be equally guilty with the principal offender, and shall be
liable to the penalties mentioned in the next precedmg section.

16. If any p"- or es oath or affirmation •■■<■■ j any commis-

sioner or justice o. .he p^ , that he has reason to believe, and does
believe that any intoxicating liquor with respect to which a violation
of the provisions of the thirteenth section of this Act has been com-
mitted or is intended to be committed is, within the limits specified ia
any proclamation by which this Act has been proclaimed to be in
force, on board of any steamboat, vessel, boat, canoe, raft or other
craft, or in or about any building or premises, or in any carriage*
vehicle or other conveyance, or at any place, the commissioner or jus-
tice of the peace shall issue a search warrant to any sheriff, police
officer, constable or bailiff who shall forthwith proceed to search the
steamboat, vessel, boat, canoe, raft, other craft, building, premises,
carriage, vehicle, conveyance or place described in such search war-
rant ; and if any intoxicating liquor is found therein or thereon the
person executing such search warrant shall seize the intoxicating
liquor and the barrels, casks, jars, bottles or other packages in which
it is contained and shall keep it and them secure until final action is
had thereon.

2. No dwelling-house in which, or in part of which or on the
premises whereof, a shop or a bar is not kept, shall be searched,
unless the said informant also makes oath or affirmation that some
offence in violation of the provisions of the thirteenth section of this
Act has been committed therein or therefrom within one month next
preceding the time of making his said information for a search war-
rant.

3. The owner, keeper or person in possession of the intoxicating"
liquor so seized, if he is known to the officer seizing the same, shall be-
summoned forthwith by the commissioner or justice of the peace who
issued the search warrant to appear before such commissioner or jus-
tice of the peace ; and if he fails so to appear, or if it appears to the
satisfaction of such commissioner or justice of the peace that a vio-
lation of the provisions of the thirteenth section of this Act has
been committed or is intended to be committed, with respect to such
intoxicating liquor, it shall be declared forfeited, with any package in
which it is contained, and shall be destroyed by authority of the writ-
ten order to that effect of such commissioner or justice, and in his pre-
sence or in the presence of some person appointed by him to witness

Crim. Law— 63

if''!.

994

APPENDIX.

: 5 *

the destruction thereof ; and the commissioner or justice or the pers
so appointed by him, and the officer by whom the said intoxicati
liquor has been destroyed, shall jointly attest, in writing upon theba
of the said order, the fact thac it has been destroyed,

4. The owner, keeper or person in possession of any intoxicati
liquor seized and forfeited under the provisions of this section may
convicted of an offence against the thirteenth section of this Act wi:
out any further information laid or trial had, and shall be liable to t
penalties mentioned In the fourteenth section of this Act.

17. If the owner, keeper or possessor of intoxicating liqu
seized under the next preceding section is unknown to the ofific
seizing the same, it shall not be condemned and destroyed until t
fact of such seizure, with the number and description of the packaj;(
as near as may be, has been advertised for two weeks, by posting 1
a written or a printed notice and description thereof, in at least thr
public places of the place where it was seized.

2. If it is proved within such two weeks, to the satisfaction of tl
commissioner or justice by whose authority such intoxicating liqui
was seized, that with respect to such intoxicating liquor no violatit
of the provisions of the thirteenth section of this Act has been cor
mitted or is intended to be committed, it shall not be destroyed, b
shall be delivered to the owner, who shall give his receipt therefor
writing upon the back of the search warrant, which shall be returni
to the commissioner or justice who issued the same ; but if, after su(
advertisement as aforesaid, it appears to such commissioner or justii
that a violation of the provisions of the thirteenth section of this
has been committed or is intended to be committed, then such into
icating liquor, with any package in which it is contained, shall be
feited and destroyed, according to the provisions of the next prece
ing section.

18. Any payment or compensation, whether in money or secui
ties for money, labour or property of any kind, for intoxi eating liqu
sold, bartared, exchanged, supplied or disposed of, contrary to
provisions of the thirteenth section of this Act, shall be held to ha
been criminally received without consideration, and against la
equity and good conscience, and the amount or value thereof may
recovered from the receiver by the person making, paying or furnis
ing such payment or compensation ; and all sales, transfers, conve
ances, liens and securities of every kind, which either in whole 1
in part have been made or given for or on account of intoxicatir
liquor sold, bartered, exchanged, supplied, or disposed of contrary:
the provisions of the thirteenth section of this Act, shall be voi

APPENDIX.

995

,ner or justice or the person

^hom the said intoxicating
St, in writing upon the back

Jestroyed.

ssession of any intoxicating

Bions of this section may be
,th section of this Act wilh-
,d, and shall be liable to the
ion of this Act.
ssor of intoxicating liquor
, is unknown to the officer
.ned and destroyed until the
description of the packages,
for two weeks, by posting up
Ition thereof, in at least three

sized.

eeks, to the satisfaction of the

rity such intoxicating liquor

oxicating liquor no violation
Jon of this Act has been com
it shall not be destroyed

ai give his receipt therefor .
ant, which shall be veturne
d the same; but if, after sud

0 such commissioner or just^
■^thirteenth section of this A

,e committed, then such inm
chit is contained, shall be i^^
provisions of the next preced.

n, whether in money or secur.-
.; kind, for intoxicating IKI

^disposed of, contrary to *
I this Act, shall be held to h.

Isideration, and again^ a.
Lount or value thereo-^^

against all persons, and no right shall be acquired thereby ; and no
action of any kind shall be maintained, either in whole or in part, for
or on account of intoxicating liquor sold, bartered, exchanged, sup-
plied or disposed of. contrary to the provisions of the said section.

19. In any prosecution under this Act for any offence with
respect to intoxicating liquor, it shall not be necessary that any wit-
ness should depose directly to the precise description of the liquor
with respect to which the offence has been committed, or to the precise
consideration therefor, or to the fact of the offence having been com-
mitted with his participation or to his own personal and certain know-
ledge ; but the commissioner or justice of the peace trying the case,
so soon as it appears to him that the circumstances in evidence
softiciently establish the offence complained of, shall put the defend-
ant on his defence, and in default of such evidence being rebutted,
shall convict the defendant accordingly.

GENERAL PROVISIONS.

30. Any commissioner or justice of the peace may hear and
determine, in a summary manner, any case arising within his juris-
diction under this Act ; and every person making complaint against
any other person for violating this Act, or any provision thereof,
before such commissioner or justice, may be admitted as a witness ;
and the commissioner or justice of the peace before whom the exam-
ination or trial is had, may, if he thinks there was probable cause for
the prosecution, order that the defendant shall not recover costs,
although the prosecution fails.

21. All the provisions of every law respecting the duties of
justices of the peace in relation to summary convictions and orders,
and to appeals from such convictions, and for the protection of justices
of the peace when acting as such, or to facilitate proceedings by or
before them in matters relating to summary convictions and orders,
shall, in so far as they are not inconsistent with this Act, apply to
every commissioner or justice of the peace mentioned in this Act or
empowered to try offenders against this Act ; and every such com-
missioner shall be deemed a justice of the peace within the meaning
of any such law, whether he is or is not a justice of the peace for
other purposes.

S3. On the trial of any proceeding, matter or question under
this Act, the person opposing or defending, and the wife or husband
of such person, shall be competent to give evidence.

28. No action or other proceeding, warrant judgment, order or
other instrument or writing, authorized by this Act or necessary to

I?'"

■'>: siri i;f" I

996

APPENDIX.

carry out its provisions, shall be held void or be allowed to fail for
defect of form.

/SI. Every action brought against any commissioner or justice of
the peace, constable, peace officer or other person, for anything done
in pursuance of this Acl, bhall be commenced within six months next
after the alleged cause of action arises ; and the venue shall be laid or
the action instituted in the district or county or place where the cause
of action arose ; and the defendant may plead the general issue and
give this Act and the special matter in evidence ; and if such action
is brought after the time limited, or the venue is laid or the action
brought in any other district, county or place than as above prescribed,
the judgment or verdict shall be given for the defendant ; and in such
case, or if the judgment or verdict is given for ihe defendant on the
merits, or if the plaintiff becomes nonsuited or discontinues after
appearance is entered, or has judgment rendered against him on de-
murrer, the defendant shall be entitled to recover double costs.

R.S.C. CHAPTER 152.

An Act respecting the Preservation of Peace at Public

Meetings.

1. Any justice of the peace within whose jurisdiction any public
meetmg is appointed to be held, may demand, have and take of
and from any person attending such meeting, or on his way to
attend the same, any offensive weapon, such as firearms, swords,
staves, bludgeons, or the like, with which any such person is so armed,
or which any such person has in his possession ; and every such person
who, upon such demand, declines or refuses to deliver up, peaceably
and quietly, to such justice of the peace, any such ofTensive weapon
as aforesaid, is guilty of a misdemeanour, and such justice may there-
upon record the refus,il of such person to deliver 'jn such weapon, and
adjudge him to pay a penalty not exceeding eight dollars, — which
penalty shall be levied in like manner as penalties are levied under
the Act respecting summary proceedings before Justices of the Peace^w
such person may be proceeded against by indictment or information,
as in other cases of misdemeanour ; but such conviction shall not
interfere with the power of such justice, or any other justice of the
peace, to take such weapon, or cause the same to be taken from suet
person, without his consent and against his will, by such force as iS
necessary for that purpose.

APPENDIX.

997

,r be allowed to fail for

ommissioner or justice of
,erson, for anything done
■d within six months next
the venue shall be laid or

, or place where the cause
ead the general issue and
dence; and if such action

.nue is laid or the action
.than as above prescribed,

he defendant ; and in such
1 for the defendant on the
lited or discontinues after
endered against him on de-
ecover double costs.

152.

of Peace at Public

.hose jurisdiction any public
demand, have and take of

Meeting, or on his way to
, such as firearms, swords,
any such person is so armed,

Uon; and every such person

ases to deliver up, peaceably
E any such offensive weapon
[,' and such justice may there-
I deliver un such weapon, an
[ceding eight dollars,--wh.h

L penalties are levied under
\before Justices of the PemM
L indictment or information,
Lt such conviction Shan no
I or any other justice oft
t same to be taken from sue
ft his will, by such force as IS

? Upon reasonable request to any justice of the peace, to whom
any such weapon has been peaceably and quietly delivered as afore-
said, made on the day next after the meeting has finally dispersed,
and not before, such weapon shall, if of the value of one dollar or
upwards be returned by such justice of the peace to the person from
whom the same was received.

3. No such justice of the peace shall be held liable to return
any such weapon, or make good the value thereof, if the same, by
unavoidable accident, has been actually destroyed or lost out of the
possession of such justice without his wilful default.

':t*i

L 1

R. S.C. CH.\PTER 153.

An Act respecting Prize-fiohtir^i'.

6t 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 person within his
bailiwick or jurisdiction is about to engage as principal in any prize-
fight within Canada, he shall forthwith arrest such person and take
him before some person having authority to try offences against this
Act, r.nd shall forthwith make complaint in that behalf, upon oath,
before such person ; and thereupon such pe'son shall inquire into the
charge, and if he ij satisfied that the person so brought before him
was, at the time of his arrest, about to engage as a principal in a prize-
fight, he shall require the accused to enter into a recognizance, with
sufficient sureties, in a sum not exceeding five thousand dollars and
not less than 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 such 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
ren^iin until he gives such recognizance with such sureties.

?■. If any sheriff has reason to believe that a prize-fight is taking
place or is about to take place within his jurisdiction as such sheriff,
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 concerned in, or to attend any prize-fight within
Canada, he shall forthwith summon a force of the inhabitants of his
district or county sufiRcient for the purpose of suppressing and pre-

998

APPENDIX.

venting such fight, — and he shall, with their aid, suppress and. prevent
the same, and arrest all persons present thereat, or who come into
Canada as aforesaid, 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 commissioner 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.

R. S. C. CHAPTER 154.

A.r Act respecting Perjury.

See p. gS ante.

R. S. C. CHAPTER 157.

An Act respecting Offences against Public Morals anJ

Public Convenience.

C4) 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.

R.S. C. CHAPTER 167.

An Act respecting Offences relating to the Coin.

30> Any two or more justices of the peace, on the oath of a
credible person, that any copper or brass coin has been unlawfully
manufactured or imported, shall cause the same to be seized and
detained, and shall summon the person in whose possession the same
is found, to appear before them ; and if it appears to their satisfaction,

APPENDIX.

999

d, suppress and, prevent
real, or who come into
ore some person having
; dealt with according to
rompelled to enter into
provided, according to

of a county court, judge
istrate, police magistrate.
1, within the limits of his
immissioner, have all the
:t to offences against this

154.
'erjury.

157-

}t Public Morals aivl

ice.

|he laws of the province m

:h loose, idle or disorderly

the common gaol or other

of industry or correction,

Ison.

167.

lating to the Coin.

ke peace, on the oath of a
f coin has been unlawfully
[he same to be seized and
1 whose possession the sa-ne

Lpears to their satisfaction,

on the oath of a credible witness, other than the informer, th.at such
copper or brass coin has been manufactured or imported in violation
of this Act, such justice shall declare the same forfeited, and shall
place the same in safe keeping to await the disposal of the Governor
General, for the public uses of Canada.

30. If it appears, to the satisfaction of such justices, that the
person in whose possession such copper or brass coin was found,
knew the same to have been so unlawfully manufactu ed or imported,
they may condemn him to pay the penalty aforesaid with costs, a.d
may cause him to be imprisoned for a term not exceeding two months,
if such penalty and costs are not forthwith paid.

31. If it appears, to the satisfaction of such justices, that the
person in whose possession such copper or brass coin was found was
not aware of it having been so unlawfully manufactured or imported,
the penalty may, on the oath of any one credible witness, othr . .':.\n
the plaintiff, be recovered, from the owner thereof, by any pers' -n w o
sues for the same in any court of competent jurisdiction.

33> Any ofificer of Her Majesty's customs may seize any copper
or brass coin imported or attempted to be imported into Canada in
violation of this Act, and may detain the same as forfeited, to await
the disposal of the Governor General, for the public uses of Canada.

33> Every one who utters, tenders or offers in payment any
copper or brass coin, other than current copper coin, shall forfeit
double the nominal value thereof.

2. Such penalty may be recovered, with costs, in a summary-
manner, on the oath of one credible witness, othe»* than the informer,,
before any justice of the peace, who, if such pena!:-, .' d costs are not
forthwith paid, may cause the offender to be imprisoned for a term
not exceeding eight days.

34. A moiety of any of the penalties imijosed by any of the five
sections next preceding, but not the copr ei or brass coins forfeited
under the provisions thereof, shall belong to the informer or person
who sues for the same, and the other moiety shall belong to Her
Majesty, for the public uses of Canada.

4'%

R.S.C. CHAPTER 169.

An Act respecting Oifences relating to the Army and Navy.

9. One moiety of the amount of any penalty recovered under
any of the preceding sections shall be paid over to the prosecutor or

1000

APPENDIX.

person by whose means the offender has been convicted, and the othei
moiety shall belong to the Crown.

R.S.C. CHAPTER 172

An Act respecting Cruelty to Animals.

•7. Every pecuniary penalty recovered with respect to any such
ofTence shall be applied in the following manner, that is to say : one
moiety thereof to the corporation of the city, town, village, township,
parish, or place in which the offence was committed, and the other
moiety, with full costs, to the person who informed and prosecuted
for the same, or to such other person as to the justices of the peace
seems proper.

51 VICT. CHAPTER 41.

An Act to amend the Law relating to Fraudulent Marks on

Merchandise.

15* Any goods or things forfeited under any provision of this
Act, may be destroyed or otherwise disposed of in such a manner aa
the court, by which the same are declared forfeited, directs ; and thJ
court may, out of any proceeds realized by the disposition of sucH
goods (nil trade marks and trade descriptions being first obliterated!
award to any innocent party any loss he may have innocently susj
tained in dealing with such goods.

10. On any prosecution under this Act the court may ordel
costs to be paid to the defendant by the prosecutor, or to the proseT
cutor by the defendant, having regard to the information given by anj
the conduct of the defendant and prosecutor respectively.

18. On the sale or in the contract for the sale of any goods
which a trade mark or mark or trade description has been applied
the vendor shall be deemed to warrant that the mark is a genuiij
trade mark and not forged or falsely applied, or that the trade df
scription is not a false trade description within the meaning of th|
Act, unless the contrary is expressed in some writing signed by or (
behalf of the vendor and delivered at the time of the sale or contra|
to and accepted by the vendee.

APPENDIX.

1001

convicted, and the other

72.

to Animals.

with respect to any such
ianner.thatistosay: one

y town, village, township,

committed, and the other

informed and prosecuted

3 the justices of the peace

IK 41-

Fraudulent Marks on

lunder any provision of this

osed of in such a manner a

.d forfeited, directs ; and th

by the disposition of such

^tions being first obliterated

,e may have innocently sus-

s Act the court may order

K prosecutor, or to the prose^

[the information given by and

Ltor respectively.

ft for the sale of any goods to
Idescription has been apphed,

fthatthemarkisagenuH

Lplied, or that the traded

In within the meanmg of b
some writing signed by or
L time of the sale or contract

2S. The importation of any goods which, if sold, would be for-
feited under the foregoing provisions of this Act, and of goods
manufactured in any foreign state or country which bear any name
or trade mark which is or purports to be the name or trade mark of
any manufacturer, dealer or trader in the United Kingdom or in
Canada, is hereby prohibited, unless such name or trade mark is
accompanied by a definite indication of the foreign state or country in
which the goods were made or produced ; and any person who
imports or attempts to import any such goods shall be liable to a
penalty of not more than five hundred dollars, nor less than two hun-
dred dollars, recoverable on summary conviction, and the goods so
imported or attempted to be imported shall be forfeited and may be
seized by any officer of the Customs and dealt with in like manner as
any goods or things forfeited under this Act.

2. Whenever there is on any goods a name which is identical
with or a colourable imitation of the name of a place in ihe United
Kingdom or in Canada, such name, unless it is accompanied by the
name of the state or country in which it is situate, shall, unless the
Minister of Customs decides that the attaching of such name is not
calculated to deceive (of which matter the said Minister shall be the
sole judge) be treated, for the purposes of this section, as if it was the
name of a place in the United Kingdom or in Canada.

3. The Governor in Council may, whenever he deems it exped-
ient in the public interest, declare that the provisions of the two
sub-sections next preceding shall apply to any city or place in any
foreign state or country ; and after the publication in the Canada
Gazette of the Order in Council made in that behalf, such provisions
shall apply to such city or place in like manner as they apply to any
place in the United Kingdom or in Canada, and may be enforced
accordingly.

4. The Governor in Council may, from time to time, make regu-
lations, either general or special,, respecting the detention and seizure
of goods, the importation of which is prohibited by this section, and
the conditions, if any, to be fulfilled before such detention and seizure,
and may, by such regulations, determine the information, notices and
security to be given, and the evidence necessary for any of the pur-
poses of this section, and the mode of verification of such evidence.

5. The regulations may provide for the reimbursing by the in-
formant to the Minister of Customs of all expenses and damages
incurred in respect of any detention made on his information, and of
any proceedings consequent upon such detention.

|S?|

:fn::

■t,

lit

1002

APPENDIX.

6. Such regulations may apply to all goods the importation ol
which is prohibited by this section, or different regulations may be
made respecting different classes of such goods or of offences in rela-
tion to such goods.

7, All such regulations shall be published in the Canada Gaseth
and shall have force and effect from the date of such publication.

23. This Act shall be substituted for chapter one hundred and
sixty-six of the Revised Statutes, respecting the fraudulent marking
of merchandise, which is hereby repealed.

52 VICT. CHAPTER 41.

An Act for the Prevention and Suppression of Combination!'
formed in Restraint of Trade.

4. Where an indictment is found against any person for offences
provided against in this Act, the defendant or person accused shall
have the option to be tried before the judge presiding at the court at
which such indictment is found, or the judge presiding at any subse-
quent sitting of such court, or at any court where the indictment
comes on for trial, without the intervention of a jury; and in the even
of such option being exercised the proceedings subsequent theretc
shall be regulated, in so far as may be applicable, by The Speed)
Trials Act.

5. An appeal shall lie from any conviction under this Ar* by tli(
judge without the intervention of a jury to the highest court of appea
in criminal matters in the province where such conviction shall havi
been made, upon all issues of law and fact ; and the evidence taker
in the trial shall form part of the record in appeal, and for that pur
pose the court before which the case is tried shall take note of th(
evidence and of all legal objections thereto.

53 VICT. CHAPTER 37.
An Act further to Amend the Criminal Law.

ESCAPES AND RESCUES.

1. Section nine of chapter one hundred and fifty-five of th
Revised Statutes of Canada, An Act respecting Escapes and Rescues
is hereby repealed and the following section is substituted therefor:-

APPENDIX.

1003

oods the importation of
■rent regulations may be
)ds or of offences in rela-

ed in the Canada Gazette
: of such publication,
•hapter one hundred and
g the fraudulent marking

tl 41-

ression of Combinations

of Trade,
.inst any person for offences
,nt or person accused shall
ge presiding at the court at
dge presiding at any subse-
-ourt where the indictment
n of a jury; and in the event
■eedings subsequent thereto
applicable, by The Speedy

•iction under this Ac* by the
p the highest court of appeal
e such conviction shall have
ict ; and the evidence taken
in appeal, and for that pur-
tried shall take note of the
;o.

IR 37-
Ihe Criminal Law.

kcUES.

[ndred and fifty-five of the
lectins Escapes and Resciics^
lion is substituted therefor;-

"9. Every one who, being sentenced to imprisonment or deten-
tion in, or being ordered to be detained in, any reformatory prison,
reformatory' school, industrial refuge, industrial home or industrial
school, escapes or attempts to escape therefrom, is guilty of a misde-
meanour, and may be dealt with as follows : —

" The offender may, at any time, be apprehended without warrant
and brought before any magistrate, who, upon proof of his identity, —

"(^) In the case of an escape or attempt to escape from a reform-
atory prison or a reformatory school, shall remand him thereto for the
remainder of his original term of imprisonment oi detention ; or, —

"(^) In the case of an escape or attempt to escape from an
industrial refuge, industrial home, or industrial school, —

"(i) May re.nand him thereto for the remainder of his original
term of imprisonment or detention ; or, —

" (2) If the officer in charge of such refuge, home or school certi-
fies in writing that the removal of such offender to a place of safer or
stricter imprisonment is desirable, and if the governing body of such
refuge, home or school applies for such removal, and if sufficient
cause therefor is shown to the satisfaction of such magistrate, may
order the offender to be removed to and to be kept imprisoned, for
the remainder of his original term of imprisonment or detention, in
any reformatory prison or reformatory school in which by law such
offender may be imprisoned for a misdemeanour, — and when there is
no such reformatory prison or reformatory school, may order the
offender to be removed to and to be so kept imprisoned in any other
place of imprisonment to which the offender may be lawfully com-
mitted ;

"(<^) And in any case mentioned in the preceding paragraphs {a)
and {b) of this sub-section, or if the term of his imprisonment or
detention has expired, the magistrate may, after conviction, sentence
the offender to such additional term of imprisonment or detention, as
the case may be, not exceeding one year, as to such magistrate seems
a proper punishment for the escape or attempt to escape."

•2. Every one who, being sentenced to imprisonment or detention
in, or being ordered to be detained in any industrial refuge, industrial
home or industrial school, by reason of incorrigible or vicious conduct,
or with reference to the general discipline of the institution, is beyond
the control of the officer in charge of such institution, is guilty of a
misdemeanour, and may be dealt with as follows : —

1004

APPENDIX.

¥|

{a) The offender may, at any time before the expiration of hi
term of imprisonment or detention, be brought without warrant befoi
any magistrate, and if the officer in charge of such refuge, home c
school certifies in writing that the removal of such offender to a plac
of stricter imprisonment is desirable, and if the governing body (
such refuge, home or school applies for such removal, and if sufiicier
cause therefor is shown to the satisfaction of such magistrate, he ma
order the offender to be removed to and to be kept imprisoned, for th
remainder of his original term of imprisonment or detention, in an
reformatory prison or reformatory school in which by law such offendt
may be imprisoned for a misdemeanour ; and when there is no sue
reformatory prison or school the magistrate may order the offender t
be removed to and to be so kept imprisoned in any other place (
imprisonment to which the offender may be lawfully committed ;

(J>) The magistrate may, afttr conviction, sentence the offender t
such additional term of imprisonment, not exceeding one year, as t
such magistrate seems a proper punishment for the incorrigibl
conduct of the offender.

PUBLIC AND REFORMATORY PRISONS.

Certijiecl Industrial Schools, Ontario.

33« The Governor General, by warrant under his hand, may :
any time in his discretion (the consent of the Provincial Secretary
Ontario having been first obtained), cause any boy who is imprisonf
in a reformatory or gaol in that province, under sentence for an offen
against a law of Canada, and who is certified by the court, judge
magistrate, by whom he was tried to have been, in the opmion of su(
court, judge or magistrate, at the time of his trial, of or under
age of thirteen years, to be transferred for the remainder of his ter
of imprisonment to a certified industrial school in the province.

33. Where, under any law of Canada, any boy is convict(
in Ontario, whether summarily or otherwise, of any offence punisha
by imprisonment, and the court, judge, stipendiary or police mag
trate by whom he is so convicted is of opinion that such boy does
exceed the age of thirteen years, such court, judge or magistrate m
sentence such boy to imprisonment in a certifi »d industrial school
any term not e.xceeding five years and not less than two year
Provided, that no boy shall be sentenced to any such school uni(
public notice has been given in the Ontario Gazette and has not be
countermanded, that such school is ready to receive and maint:
boys sentenced under laws of the Dominion ; Provided also, that

APPENDIX.

1005

fore the expiration of his
■ht without warrant before
> of such refuge, home or
3f such offender to a place
if the governing body of
h removal, and if sufficient
jf such magistrate, he may
be kept imprisoned, for the

iment or detention, m any
which by law such offender

and when there is no such
,e may order the offender to

oned in any other place of
je lawfully committed ;
ion, sentence the offender to
jt exceeding one year, as to
hment for the incorrigible

rORY PRISONS.

>ools, Ontario.

•rant under his hand, may at

,f the Provincial Secretary of

36 any boy who is imprisoned

under sentence for an offence

Ttified by the court, judge or
,e been, in the opinion of such

1 of his trial, of or under the
Ifor the remainder of his term
school in the province.

Lada, any boy is convicted
Use, of any offence pumshable
[ stipendiary or police magis-
Union that such boy does not
ourt, judge or magistrate may
certifi-d industrial school for
,d not less than two years:
ted to any such school unless
,„-^C:«r.//i^ and has not been

>ady to receive and maintain
•mion; Provided also, that no |

such boy shall be detained in any certified industrial school beyond
the age of seventeen years.

Halifax Industrial School.

34. Section sixty-one of chapter one hundred and eighty-three
of the Revised Statutes, intituled An Act respecting Public and
Reformatory Prisons, is hereby repealed and the following substituted
therefor : —

"61. Whenever any boy, who is a Protestant and a minor
apparently under the age of sixteen years, is convicted in Nova
Scotia of any offence for which by law he is liable to imprisonment,
the judge, stipendiary magistrate, justice or justices by whom he is so
convicted may sentence such boy to be detained in the Halifax
Industrial School for any term not exceeding five years, and not less
than two years."

35. Section sixty-two of the said Act is hereby repealed and the
following substituted therefor : —

"63. No such sentence shall be pronounced unless or until
provision has been made by the municipality within which such con-
viction is had, out of its funds, for the support of boys so sentenced,
at the rate of not less than sixty dollars per annum for each boy."

St. Patrick's Home, Halifax.

36. Section sixty-five of the said Act is hereby repealed and the
following substituted therefor : —

" 65. Whenever any boy, who is a Roman Catholic and appar-
ently under the age of sixteen years, is convicted in Nova Scotia of
any offence for which by law he is liable to imprisonment, the judge,
stipendiary magistrate, justice or justices by whom he is so convicted
may sentence such boy to be detained in Saint Patrick's Home at
Halifax for any term not exceeding five years, and not less than two
years ; but no such sentence shall be pronounced unless or until
provision has been made by the municipality within which such con.
viction is had, out of its funds, for the support of boys so sentenced
at the rate of not less than sixty dollars per annum for each boy."

37. Section sixty-six of the said Act is hereby repealed and the
following substituted therefor : —

1006

APPENDIX.

"66. The superintendent, or head of the said home, may i
any time notify the mayor, warden or other chief magistrate of an
municipality, that no prisoners, beyond those already under sentenc
in such home, will be received therein ; and after such notification n
such sentence shall be pronounced in such municipality until notic
has been received by such mayor, warden or chief magistrate, froi
the said supermtendent or head, that prisoners will again be receive
jn the said home."

38. The six preceding sections shall not, nor shall any of then
come into force until the same shall have been proclaimed by th
Governor in Council.

39. The said Act is hereby further amended by adding at tli
end thereof the following sections : —

Part VI.

" MANITOBA.

"Manitoba Reformatory for Boys.

" 7§. If any boy, who, at the tune of his tiial, appears to th
court to be under the age of sixteen years, is convicted of any ofifenc
for which a sentence of imprisonment for a period of three months o
longer, but less than five years, may be imposed upon an adult cor
victed of the like ofifence, and the court before which such boy ts con
victed is satisfied that a due regard for the material and moral welfar
of the boy manifestly requires that he should be committed to th
Manitoba reformatory for boys, then such court may sentence
boy to be imprisoned in such reformatory for such term as the cou
thinks fit, not being greater than the term of imprisonment whic
could be imposed upon an adult for the like offence, and may furthe
sentence such boy to be kept in such reformatory for an indefinit
time after the expiration of such fixed term ; Provided, that the wlio
period of confinement in such reformatory shall not exceed five year
from the commencement of his imprisonment.

"79. If any boy, apparently under the age of sixteen years,
convicted of any offence, put»ishable by law on summary conviction
and thereupon is sentenced and committed to prison in any commo
gaol for a period of fourteen days at the least, any judge of any onec
the superior courts, or any judge of a county court, in any case occui
ing within his county, may examine and inquire into the circuni
stances of such case and conviction, and when he considers th

APPENDIX.

1007

the said home, may at
jr chief magistrate of any
se already under sentence
I after such notification no
li municipality until notice

or chief magistrate, from
ners will again be received

lot, nor shall any of them,
B been proclaimed by the

amended by adding at the

'y for Boys.

of his ti-ial, appears to the
i is convicted of any offence
a period of three months or
imposed upon an adult con-
lefore which such boy ts con-
e material and moral welfare
lould be committed to the
ch court may sentence tbe
.-y for such term as the court
erm of imprisonment which
,ike offence, and may further

•eformatory for an indefinite
m • Provided, that the whole
ry shall not exceed five years

iient.

. the age of sixteen years, is

law on summary conviction,

ted to prison in any common

least, any judge of any one Of

Lty court, in any case occur-
[nd inquire into the cucunv
Ind when he considers the

material and moral welfare of the boy requires such sentence, he may,
as an additional seritence for such offence, sentence such boy to be
sent either forthwith or at the expiration of his imprisonment in such
gaol, to such reformatory, to be there detained for the purpose of his
industrial and moral education for an indefinite period, not exceeding
in the whole five years, from the commencement of his imprisonment
in the common gaol.

80. Every boy so sentenced shall be detained in such reform-
atory until the expiration of the fixed term, if any, of his sentence,
unless sooner discharged by lawful authoritj', and thereafter shall,
subject to the provisions hereof and to any regulations made as here-
inafter provided, be detained in such reformatory for a period not to
exceed five years from the commencement of his imprisonment, for
the purpose of his industrial and moral education.

"§1. A copy of the sentence of the court, duly certified by the
proper officer, or the warrantor order of the judge or other magis-
trate by whom any boy is sentenced to confinement in such reform-
atory, shall be a sufficient authority to the sheriff, constable or other
officer who is directed, verbally or otherwise, so to do, to convey such
boy to the common gaol of the county where such sentence is pro-
nounced, and fo^ the gaoler of such gaol to receive and detain such
boy, until some person, lawfully authorized, requires the delivery of
such boy for removal to the reformatory.

•

" §3, If any boy sentenced to be confined in such reformatory is
in such a weak state of health that he cannot safely or conveniently
be removed to the reformatory, he may be detained in the common
gaol or other place of confinement in which he is, until he is
sufficiently recovered to be safely and conveniently removed to the
reformatory.

" 83. No boy shall be discharged from such reformatory at the
termination of his term of confinement, if then labouring under any
contagious or infectious disease, or under any acute or dangerous
illness, but he shall be permitted to remain in such reformatory until
he recovers from such disease or illness ; Provided that any boy
remaining in such reformatory for any such cause shall be under the
same discipline and control as if his term was still unexpired.

" 84. Any sheriff or other person having the custody of any
offender sentenced to imprisonment in the said reformatory, may
detain the offender in the common gaol of the county or district in
which such offender is sentenced, or other place of confinement in

'"A,

1008

APPENDIX.

which such offender is, until some person lawfully authorized in that
behalf requires such offender's delivery for the purpose of being con-
veyed to such reformatory.

"85. Whenever the time of any offender's sentence in such
reformatory, under any law within the legislative authority of the
Parliament of Canada, expires on a Sunday. :iuJi offender shall be
discharged on the previous Saturday, unless such offender desires to
remain until the Monday following."

40. The provisions of this Act in respect to the Manitoba
reformatory for boys shall not come into force until the same shall
have been proclaimed by the Governor in Council.

4 (

INDEX.

looa

fully authorized in that
e purpose of being con-

der's sentence in such
slative authority of the
. 5aJi offender shall be
such offender desires to

.spect to the Manitoba
,rce until the same shall
ouncil.

0'}

INDEX.

(The figures in this index refer to the pagen).

ABANDON—

child under two years of age, 149
definition of, in enactment, 149

ABATEMENT—

plea in, abolished, 752

ABDUCTION-

of woman for purpose of marriage or carnal knowledge, 289

form of indictment, 289
of heiress the same, 289

actual marriage or defilement not necessary to constitute offence, 290*
consent of heiress obtained by fraud, 291

detention against her will an offence though heiress consent at first, 291
offence not condoned by subsequent consent, 291

form of indictment, 290
of woman under twenty-one for purpose of marriage or carnal knowledge,

290 •

woman may be witness against offender though married, 292

form of indictment, 290
of girl under sixteen, 292

consent of girl and belief of offender as to her age immaterial, 292
offence may be committed by a woman, 293

form of indictment, 294
of children under fourteen, 295

form C'f indictment, 296

ABETTOR-28

See Aider and Abettor.

ABOLITION—

of distinction between felony and misdemeanour, 603

of plea in abatement, 752

of jury lie ventre inspiciendo, 850

of writ of error, 8G4

of outlawry, 974

of punishment by solitary confinement and the pillory, 974

of deodand, 974

of attainder, forfeiture and escheat as a conseriuence of conviction, etc., 974

ABOMINABLE CRIME—

committing, with human being, etc., 116
veiiiarks on, 117

fonn of indictment, 116
CiiiM. Law— 64

'I i

1010

INDEX.

ABOMINAJiLE CmUE—Cwitinued.
for bestiality, 118
attemjit to con.init, 118

fonn of indictment, 118
assault with intent to commit, 253

consent of child under fourteen no defence, 2'3
■extortion by threats to accuse of, 451
forms of indictment, 452, 453

ABORTION-

procuring, by administering drug, etc., 275
women procuring on herself, 27G »

6up|)lying means of procuring, 276
forms of indictment, 270-278

ABROAD-

offences committed, COC-611

ABSENCE-

of wife or husband for seven years, second marriage not bigamy, 279

ACCEPTA^X•E—

of bill of exchange, etc., forgery of, 512

ACCESSORY—

before the fact, a party to and guilty of offence, 28
defined, 30
may be indicted as principal, 28

alone or jointly with perpetrator, 29

may be convicted though principal acquitted, 29
•soliciting and inciting commission of offence indictable, though offenc

committed, 30
"oflftnce committed through innocent agent, 30
principals in second degree, 31

actual presence not necessary, 31
Abettor of person committing suicide guilty of murder as principal,
combining for unlawful purpose, 33
mere participation in the act not sufficient, 34
seconds to duel are principals in second degree, 35
all present abetting felony the like, 35
may be tried before principal is convicted, 35
distinction between aider and abettor and, 3() ,
how commission of offence may be procured, 37
none in treason, 38
in manslaughter, 38
After the Fact, 40
defined, 40

offence by married person, 40
not by merely suffering principal to escape, 41
nor by attending on felon in prison, 41
wife not, by receiving, etc., husband or vice versa, 40, 41
applies to no other relationship, 41
must have notice that offence was committed, 41

INDEX.

1011

fence, 253

not bigamy, 2T'J

,gent,

guilty

tcient, 34
i\d degree, 35

icted, 35
and, 36
:ocuied, 37

ACCESSOR Y—Co»)«iH ue7.

no conviotum as, on indictment as principal, t2
may be indicted jointly with principal, 42
receiver of stolen goods not, at common law, 42
to treason, 47
to murder, 225
punishment, COO
indictment of, 007

ACCOMPLICE-

none in i^rjury, 1)7

that evidence of, requires corroboration not a question that can
reserved, 870

AC(.'OUNTING—
false, by clerk, 419

ACQUITTAL-

on jjlea of autrefois acquit or convict, 715
when a bar to subsequent indictment, 718
must be by verdict,, on a trial, to be a bar, 721
of accused for insanity, custody, 8(51

ACQUITTANCE-

for receipt of money, etc., forgery of, 513

ACT-

expressiun "any" and "any other" defined, 1
definition of, as to offences conaected with trade, 5S0
criminal, construction of, 603
offences )>unishable under two or more, 059
ACTIOX— *

compounding penal, 104
civil, not suspended, G02
_ against juvenile offender, 896
of murder as prii^cipal, . ■ against persons administering criminal law, 970

time and place of, 079
notice of, 979
defence to, 979

tender or payment into court, 979
costs, 979

other remedies saved, 979
CTION QUI TAM-104
CTUS NON FACIT REUM-11, 504
DDRESS OF COUXSEL-
to jury on trial, how regulated, 757

counsel acting for attorney or solicitor-general entitled to reply, 757
when no evidence for defence, 757
when defence adduces evidence, 758
ou opening for prosecution, 758

summing up by Crown counsel when no evidence for defence, 760
fordt<fLii:e, 701

,nd marnage

\>l offence, 28

lescaije, 41

I4I

^ or vice mrsa, 40, 41

pmmitted, 41

■1... '9

i«HMl-lly|Mtf^Nftiri

1012

INDEX.

ADDRESS OF COUNSEL— Con<«rt«e(/.
bumnhng up by defence, TfJS
reply, 705
defendant's reply on evidence of proHecution in reply, 7(>0

ADJOURNMENT—

of preliminary inquiry, for variance, 044
of inquiry from time to time at discretion ot magistrate, G52
of trial, no formal necessary, 787
of trial, on amendment, 830
of speedy trial, 881

of trial on summary conviction proceedings, for variance, 900
of such trial in discretion of justice, 910
not for more tlian eight days, 910

ADMINISTRATION OF JUSTICE-

ConRUPTION AND DISOBEDIENCE—

corruption of judges or members of parliament, 77

peace officers, etc., 77
frauds upon the Government, 78

consequences of conviction, 80
breach of trust by public officer, 90
corruption in municipal affairs, 81
selling office, appointment, etc., 82
disobedience to statute law, 83
disobedience to orders of court, 83
neglccc of peace ofncei^ to supi^rese riot, 83
neglect to aid peace officer to suppress riot, 83
neglect to aid peace officer, 83
misconduct of officers, 84 *

obstructing peace officer, etc., 84
MisLKADiNG Justice—
perjury, 85

subornation of perjury, 86
pimishment for perjury, etc., 97
false oaths, 98

false affidavit out of province, 99
false statements, 99
fabricating evidence, 99
conspiracy to bring false accusation, 100
administering oaths without authority, 101
corrupting juries and witnesses, 104

attempting in any other way to obstruct course of justice, 104
compounding penal actions, 104
reward for recovery of stolon property, 105
unlawfully advertising reward, 106
false certificate of execution of sentence of death, 106
Escapes and Rescues —

being at large while under sentence, 107
assisting escajje of prisoners of war, 111

INDEX.

1013

3n in reply, 70»i
ot magistrate, 052

ga, for variance,

90t>

larliament, 77

riot, 83
jress riot, 83

ion, 100
liority, 101

ll04 . ,,,.

Obstruct course of iustice, 104

Iperty, 105

lo6

Intence of death, 106

Ince, 107
Ivar, 111

ADMINISTRATION OF JVfiTICE-ContinueJ.
breaking priHon, 111
attempt to break prison, etc., Ill
escape from prison, etc.. Ill
escape from lawful custody, 1 12
assisting escape in certain cases, 112

in other cases, 112
aidinBf escaiie from prison, 112
unlawful discharge of prisoner, 113
punishment for escai)e, 113

ADMIRALTY-

ofTences committed within the jurisdiction of, leave of Governor General

required for prosecution, 006
jurisdiction of, G07
offences within jurisdiction of, warrant, 632

ADMISSION-

to bail by jjistice, 605

after committal, 660
by prisoner at trial, 800
to bail under provisions for sjieedy trial, 8S1

ADULTERER-

killing by husband when committing adultery with wife is manslaughter,

161
killing in revenge after the act, murder, 162
with wife, stealing husband's goods, 316

1 ADULTERY-

an indictable offence in New Brunswick, 129

conspiracy to induce woman to commit, 12!)
form of indictment, 129

wife committing, may be guilty of stealing husb.and's goods, 317
lADVERTISEMENT-

of reward for return of stolen property, 100
lAFFIDAVIT—

perjury by false statement in, 98

false, out of Province where used, 99

justice, etc., unlawfully taking, 101
form of indictment, 102

evidence of authority of justice, 103

VFFIRMATION—
See Affidavit.

^FFRAY-

punishment for, 60

^gp:nt—

innocent, commission of offence by, 30
theft by, 341

form of indictment, 343
conversion by, of proiierty entrusted, 342

■'M

1014

INDEX.

AGENT— Cont intieif.

form of indictment, 343
misappropriation of money, etc., entrusted, 342

form of indictment, 344
punishment, 3Gi)

AGGRAVATED A8SAULT, 254
See Assault.

AGGREySTON—

foreign, by subject of peaceful state, 47

by British subject in company with foreigner, 48

AIDER AND ABETTOR—

is a party to and guilty of offence, 28
principals in second degree defined as, 31

presence at commission of offence may be actual or constructive, 33
presence during whole transaction not necessary, 32
participation in act necessary, 32
in suicide, 33
' unlawful combination, 33
seconds to duel, 35

may be tried before principal is convicted, 35
none in treason, 35

commission of offence, how procured, 37
in manslaughter, 38
assisting militiamen, etc., to desert, 50
at prize fight, G2

assisting escape of prisoners of war, 111
assisting escape from prison, 112
to suicide, 220

ALIEN—

not entitled to jury ik mtdidate liwjua', 771

ALLFGIANCE-

endeavour to seduce from, 49

ALLOC UTUS—

part of formal record, 84G
when to take place, 852

ALTER ATION-

of document, forgery, 510

ALTERNATIVE-

offences may be charged in the, 078

AMENDMENT-

on preliminary objections — "01

powers (if court for, 820

pr(»i>riety of mailing, may be reserved, 830

to be endorsed on record, S'.V^

formal record in case of, c?;jO

remarks on, 830

INDEX.

1015

e actual or constructive, 33
ecessary, 32

AMENDMENT— Con<i>iuc(/.
examples of, 836
test as CO prejudice by, 837
statute allowing to be liberally construed, 83'J
when it must be made, 830
decisions on the statute, 841

ANIMALS—

capable of being stolen, 337

killing, with intent to steal carcase, 341

stealing cattle, 373

stealing dogs, etc, 374

killing, 573-575

attempting to kill, etc., cattle, 579

other injuries to, 579

threats to injure cattle, 580

cruelty to, 587

See CliUELTY TO ANUfALS.

ANIMUS FURANDI, 325, 340
See Felonious Intent

APPEAL—

court of definition, 2

general provisions, 8G4

writ of error alxslished, 864

cases reserved, 804

when reserved ci|se refused, 805

evidence for court of, 865

powers of court of, 805

intermediate effects of, 873

to supreme court of Canada, S73

to privy council abolislied, 874

from summary convictioiii^, 933

APPEARANCE—

on preliminary inquiry, compelling, 627-629

APPREHENSION—

assault to resist or prevent, 254

of suspected deserter, 033

warrant in first instance for, on preliminary inquiry, 035

in one district for offence in another, 637

I APPRENTICE—

correction of by master, 27
duty iif master to provide for, 143
luniislnnent for neglect, 144
remarks t)n enai.'tuient, 145

form of indictment, 147
evidence on trial against master, 147
assault iiy master on, 151

form (jf indictment, 152

"''J'ii

'. .^i:''

1016

INDEX.

' <■;

^iil

AQUEDUCT-

wilfully destroying or damaging, 573

ARMS-

loaded, defined, 3

producir2" near, or aiming at. Her Majesty, 49

unlawful drilling to use of, 59

■carrying or selling, C5

selling or giving to minor, 66

having on person when arrested, 66

possessing with intent to do injury, 07

legal carrying of, 67

refusing to deliver, when attending public meeting, (iS

coming armed near meeting, 68

sale of, in North-west Territories, 69

And see Offensive Weapons.

FlKE-ARMS.

ARRAIGNMENT—

proceedings on, 751

refusal to plead, 752

siiecial provisions in treason, 755

ARRAY—

challenge to, 774

of grand jury, no challenge to, 752

ARREST—

of wrong person, justified, 15

by peace officer, justified, 10

without warrant, by any one of person found comiiutting offence, 17

by any one without warrant after commih.<ion of offence, 17

for major offence committed by night, 17

without warrant, by peace officer, or person found commii,ting offence, i;

without warrant, by any one, of person found committing offence by

night, 1,S
during flight, 18

statutory power of, not affected, 18
necessary force in making, li)
production of process or warrant if required, 19
notice of cause of arrest to be given, 19
consequence of failure to produce or give notice, 19
by peace officer, for major offence, necessary force to ])revent escape, 10
by private person the same, 20
by any one for minor offence, the like, 20
preventing escaiH; or rescue in major offence, 20

in minor offence, 20
of deserter, resisting execution of warrant for, 50
nssault to resist or i)revent, 254

form of indictment, 257
without warrant, for what offences lawful, 616

by private person, 619

INDEX.

1017

:|!lfl

'iiii'

•III'

rteetin^f, (>8

id ct>nimitting offence, 17
[on of oSence, 17

found committing offence, 17
found ODnnnitting offence by

jtice, 19
|y force to ])revent escai'e, 10

20
lor, 50

ARREST— Continued.

for contempt of court, 623
time, place and manner of, 624
And see Warrant,

ARREST OF JUDGMENT—

formal defects, none for, 701
motion for, 852

ARSON-

settinsr fire to buildings, etc , 558
remarks on, 558
attempt to commit, 563

form of indictment, 563
setting fire to crops, trees, etc., 564

attempt, 564
setting fire to forests, etc., 565

form of indictment, 505
threats to burn, 565

ARTICLES OF THE PEACE—

estreating recognizance for, 953
when ordered, forms, etc., 969
ASPORTATION—

necessary in theft, 320, 338

ASSAULT-

self -defence against unprovoked, 22

provoked, 23
provocation irtay be by blows, words or gestures, 23
accompanied witli insult, defence aganist, 24
in defence of moveable property, 24

real i)roperty, 25
on person entering on property under claim oi tbW'. 2'i
with intent, is an attempt, 43
on the (^ueen, 49
in committing piratical act, 75
definition of, 252
indecent, on females, 252

form of indictment, 252
witli intent to connnit sodomy, 253
indecent on males, 253

consent of children under fourteen, no defence, 253
occasioning actual bodily harm, 253

form of indictment, 253

AciGiiAVATKi) Assaults—

with intent to conmiit indictable offence, 254

form of indictment, 255
on public (jr peace ofticer m execution of his duty, 25 f

form of indictment, 255

evidence at trial. 2.55
with intent to resist or prevent apprehension, 254

form of indictment, 257

'Si!'

-.1

1018

INDEX.

ASSAULT— Continued.

on person executing process against lands, etc., 255

form of indictment, 257
at or near polling place, 255

form of indictment, 257
common, 259

form of indictment, 259

remarks on, 259
and battery, 260
mere words not an, 260
unlawful imprisonment an, 262
with intent to commit rape, 268

form of indictment, 272
with intent to carnally know, 27i

form of indictment, 274
by person armed with intent to rob, Hi

form of indictment, 445
with intent to rob, 447
form of indictment, 447

with intent to rape, etc., threatening to accuse of, 451
to pi-eventone working at trade, etc., 593

on ship, 595

buying grain, etc., 595
verdict of, on other charge, 819
costs on conviction for, 899
summary conviction, 919

ASSEMBLY—

for religious worship, disturbing, etc., 116

ASSEMBLY, UNLAWFUL— 52
See Unlawful Assembly.

ASSIGNMENT-

of property with intent to defraud creditors, 421

ASSIZES—

of Ontario, commission to judge of, S75

ATTAINDER-

abolishud, 974

ATTEMPT—

act done with intent to commit an offence is an, whether or not comniis

sion is possible, 42
sections of code relating to, 4i
remarks on, 43
to assault Her Majesty, 49
to induce person to take unlawful oath, 71

form ot indictment, 71
to iuHuence memlar of muuicipid council, ^2
to tib.-'.truct, etc., the Course of justice, 104
to break prison, 111

1¥1

i1r

tc, '2iJi»

accuse of, 4i)l
)3

121

IS an,

whether or not ciunn.s-

INDEX. lOlO*

ATTEMPT— Co>i*(ni(C(?.
to commit sodomy, 118

form of indictment, 118
by male to procure commission of indecent r.ot with a male, 121

form of indictment, 121
to defile women, 125

forms of indictment, 126
to carnally know idiot, etc., 130

form of indictment, 130
to commit murder, 212

forms of indictment, 213-223
to commit suicide, 228
to choke or drug, 239

forms of indictment, 230, 240
to injure by explosives, 241

forms of indictment, 242
to commit rape, 268

form of indictment, 268
to have carnal knowledge of girl under fourteen, 274
to commit arson, 563

form of indictment, 563
to set fire to crops, etc., 064
to damage by explosives, 565
to cast away hip, 570
to kill, etc., cattle, 579
to commit certain indictable offences, 'jOS
to commit statjitory offences, 5!18
verdict of, on indictment for offence, 811
full offence jn-oved, on indictment for, 817
to commit offence included in indictment, 818

ATTENDANCE—

^if witness on preliminary inquiry, .summons to procure, 645

service of summons, 646

warrant of summons not obeyed, 646

warrant in first instance, 647
of witness out of province, procuring, 648
of witness at trial, 791-703

at summary trial, 888

ATTORNEY—

fraudulently selling, etc., jiroperty under power of attorney, or converting-
proceeds, 342

dispiising of money, etc., contrary to direction, 342
l>unishment, 369

ATTORNEY-GENERAL—

definition of as used in code, 1

consent of, to prosecution required in certain cases, 612

applies to preliminary inquiry, 613
power to give consent catmot )»' delegated, 613
may prefer indictment for any ott't nee, 729
niay grant fiat fnv appeal cin refusal to, to reserve ca.'-e, 8' ."i

'ii"l

,.*sU •■

iflM|:.l

1020

IXDEX.

TV^i

AUTREFOIS ACQUIT, AUTREFOIS CONVICT-

l)lea of, 714

direction of court on issue, 715

remarks on, 715

form of plea, 71')

trial of issue, 716

form of replication to plea, 717

AYERMENT-C78, OSO, 818
See Indictment.

AVOWTERER-

theft by, 31f>

BAIL—

rule as to, (W,i)

after committal. Ofifi

by sui^erior court, GG7

application for, after committal, 667

idischarge of, warrunt of deliverance, 668

person under, arrest of when about to abscond, 668

when case reserved, 864

on order for new trial, 873

render of accused by surety, 950

BAILEE—

larceny by, 344

BALLOT-

stealing, etc., '373
forgery of election, 514
destroying, 580

B ANK-

stealing by officers of, 355

B ANKER-

expre-fsion in ode defined, 2

BANK OTJ-

forgi'.ig, 512

fou -iJ, possi'ssion of, 52')

engta ving, or making jtlate for engraving, 525

printing, etc., circular in likeness of, SS-i

BANK OlFICER-

stealing by, o.m

making out false dividend warrant, 532

BAPTISM-

forging register of, 512
destrcying, etc., registry of, 530
making false entry in register, i)30

INDEX.

1021

BAPTISM— Co7itmue(l

giving false certificate of registry, 530
uttering false oeitificate, 531

BARRATRY—

of ship, 570

attempt to commit, 570

BASTARD—

evidence at trial for murder of, 805

BATHING-

in public, 120, 141

BATTERY—

what constitutes, 2C2
when justified, 263

BAWDY HOUSE-
common, defined, 133
punishment for keejung, 134
being keeper or inmate of, 140
summary trial for, jurisdiction of magistrate absolute, SS"?,

BEGGAR—

is a loose, idle or disorderly person or vagrant, 140

BENCH WARRANT—

to compel appearance at trial, 736

BESETTING HOUSE—

to prevent person carrying on business, 591

BESTIALITY— 118

See Abominable Crime.

BETTING—

and pool-selling, 137

BETTING HOUSE—
common, defined, 134
punishment for keeping, 134

BEYOND THE SEAS—
offences committed, 633

BIGAMY—

whii' constitutes, 270
banishment for, 280

form of indictment, 280

BILL OF EXCHANGE-

forRery of, 512

BILL OF LADTNCt—

mcluded in expression of " document; of title to goods, ' 2"
forgery of, 512

Hp^

1022 INDEX.

BIRD—

Btealing, 374
injuring, 579

BIRTH-

neglect to obtain assistance in childbirth, 228

concealment of, 229

forging register, 512

destroying, etc., register of, 530

making false entry in registry, 530

giving false certificate of registry, 530

uttering false certificate, 531

verdict of concealment of, on indictment f t murder, 820

BLASPHEMOUS LIBEL—
punishment for, 114
triable at quarter sessions, 114

BOAT—

damaging by explosion, 573

BODILY HARM—

to apprentice, 1.51

causing, with intent to murder, 212

inflicting, with intent to maim, etc., 233

wounding, etc./ 237

by administering poison, 240

by explosives, 241

by setting man-traps, etc., 243

negligently causing, 249

causing, by furious driving, 240

assault occasioning, 253

BODILY INJURY—

negligence causing. 249

BODY CORPORATE-

officer, etc., of, destroying or falsifying b «iks, 418
promoter, etc., of, making fjtlse statement. 419
making or possessing means of forging bill paper of, 52r»

BOND—

included in definition of valuable seci'rity, 5
forging, 512

BOOKS OF ACCOUNT—

fraudulent entry in, 421
BOOM—

injuries to, 571

BOUGHT AND SOLD NOTES-

included in expression, "document of title to goods," 2

BREACH OF CONTRACT— 590

INDEX.

1023

nuvder, 820

ks, 418

paper of, 52r»
5

[to goods,'

BREACH OF THE PEACE-

proventing continuance or renewal, 20
arrest of peraoii found committing, 21
inciting Indians to commit, 63
lying in wait to provoke commission of, 08
See Riot.

Unlawful Assembly.

BREACH OF TRUST— *

by public officer, 80
wlien indictable, 344
punishment for, 417

BREAKING PRISON— 109-111

BRIBERY-

of judges, etc., 77

of peace officers, 77

of Government official, 78,

consequences of conviction, 80
in municipal affairs, 81
at elections, triable at Quarter Sessions, 005

BRIDGE—

injuries to, 573

BRITISH COLUMBIA—

meaning of "judge" in, in speedy trial provisions, 877

meaning of "magistrate" in summary trials, 884

api)lication of fines on summary trial, 889

meaning of "justices " in provisions for trial of juvenile offenders, 892

siiecial provisions as to trial of juvenile offenders in, 898

appeal from summary convictions in, 933

provisions as to estreat of recognizances, 951

BUCKET SHOPS—

Act against, 130

BUGGERY—

See Abominable Crime.

BROTHEL—

enticing woi^n or girl into, 125

BUILDING—

riotous destruction of, 57
riotous damage to, 58
stealing things fixed to, 376
setting fire to, 1)58

attempt, 563
threats to burn, 505
attempt to damage by explosives, 505
injuries to, by tenants, 581

BULLION-

g( lid or silver, unlawful ixjssession of, 550

;tjl' 'M

:i-

fWZ.

"•yiiii I'lmiiiiii

%■ ^

m m

1024 INDEX,

BUOY-

alterinff, removing, etc., 570

BURGLARY-

general remarks on, 436

definitions, 4(59

breaking place of worship, 470, 471

punishment for, 471

house-breaking, 475, 478

breaking shop, etc., 480, 4S3

being found in dwelling-house by night, 483

being found armed or disguised, etc., 484, 485

punishment after previous conviction, 488

local description in indictment, C72

BURIAL—

miscc.duct as to, 139
forging register of, or copy. 512
board, counterfeiting seal of, 522
destroying, or offences as to, 330, 531

CALENDAR MONTH—

in computipg time for punishment, 965

CANAL—

injuries to bank of, etc., 573, 574

CAPACITY—

to commit any offence, child under seven none, 7
of child between seven and fourteen, 7
of person of fourteen and upwards, presumed, 8
of boy under fourteen to commit rape, 8, 2(59

CAPITAL OFFENCES—
what are, G

Capital punjshment-

provisions resi)ecting, 960

CAPTIOX-

of indictment, not necessary, 845 «|

what is, 846

CARCASE—

killing animal to steal, 341

CARDS—

cheating at, 430

CARNAL KNOWLEDGE—

comi)lete on proof of any penetration, 6
bj' under fourteen cannot be guilty of, 8

procuring, or attempting to procure, of woman or girl under twentj
125

INDEX.

1025

485

;n none, i

juineil, 8
|8, 269

>uian or girl, 130

CARNAL KNOWLEDGE— Continiud.
the Hame by threats or intimidation, 12.')
or by false pretenses or represi'ntations, 125
attempting to have by stupefying woman or girl, ILT)
torni of indictment for procurmg, etc., 12G

for procuring by threats, 127
by false pretenses, 127
by stupefying, 127
of ward, pan nt or guardian procuring, 127
of girl under sixteen, householder ixTii cti>
cf idiot or imbecile, insane or deaf and dm
consent in such case no defence, 130

form of indictment, 130
of girl under fourteen, 274

fonn of indictment, 274

attempt, 274

consent not material, 274
abduction of woman with intent to marry or have, 28!)
abduction of heiress the same, 289

or of woman under twenty-one, 200

CASE-

statement of, by justices, 944

CASE KESERVED—

questions of law may be reserved, 864
case to be stated for Court of Apiteal, 804
appeal when court refuses to reserve, 8(5r>
evidence for Court of Appeal, 8(55
powers of Court of Appeal, 8(55
intermediate effects, 873
appeal to Supreme Court of Canada, 873
general remarks, 806

ICAT-

killing, etc., 580

ICATTLE-
detinition, 2
stealing, 373
killinpr, etc., 573

form of indictment, 575
attemi)t to kill, 579
threats to kill, 580
conveyance by railways, care of, 587
cruelty to, 587

pERTIFIt'ATE—

of warehouse keeper, included in expression "document of title to goods,

li woman or

girl under twentyoiw

of registration, in "document of title to lands," 2
false, of execution of death sentence, 106
of stock, forging, 512
Crim. Law— 65

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

|28 |2^
2.0

^ 111= ilM

$fk

%ys

Photographic

Sciences

Corporation

23 WIST MAIN SVREET

WEBSTER, N.Y. 14580

(716)872-4503

'''J si

-n

1026

INDEX.

CERTIFICATE— Cbn<m«ed.

of marriage, forging, 513 \'

of dockkeeper forging, 613

of registry of birth, etc., uttering false, 531

certified oot^ of dociunent, etc., forging, 631

of indictment for bench warrant, 736

of trial at which perjury was committed, 800

of previous conviction, 801

of witness, 802
of dismissal at summary trial, 888 ' ''-

at trial of juvenile offender, 894

rj,t summary conviction, 918, 919, 920

CERTIORARI—

court may make rules for, 602

not required in indictment ajgainst corporation, 727

not to lie when appeal is taken from summary conviction, 938

in summary conviction proceedings, 938, 939, 946

CHALLENGE-

by Crown, in libel, 305

to grand jury, not allowed, 752

to array, 774

to jurors, 777

in case of mixed juries, 786

in joint trial, 786

CHANCE MEDLEY-

what is, 2aV .

CHARGE-

by judge to jury, 767

CHASTISEMENT—

reasonable, by parent or master, justified, 27

CHEATING-

at play, 430

at common law, 430

CHEQUE-

forgery of, 512

CHILD-

under seven, cannot commit offence, 7

between seven and fourteen, when capable, 7

of fourteen and upwards, capacity presumed, 8

duty to provide necessaries for, 143

under two years of age, abandoning, 149

when, becomes a human being, 206

concealing birth of, 229

under fourteen, consent no defence to indecent assault, 263

under fourteen defiling, 274

attempt, 274
unborn, killing, 276

INDEX.

1027

Aion, 727

lary conviction,

(39, 946

i,27

Lble, 7
lumed, 8

Indecent assault, 253

CHILD— Con«tn«<d.

under fourteen, stealing, 296

evidence of, not under ocUA, 796 ,

bastard, trial for murder, 806 " ^ ti ;

trial for murder of, verdict may be for oonoeaUng birth, 826

CHILD MURDER- ,.

remarks on, 173 ' '

CHLOROFORM-

drugging by, with intent, 239 i ,

CHOKE— '

with intent to commit indictable offence, 239

CHURCH-

preventing clergymen o£Bciating in, 116
breaking and entering, 470, 471

CHURCHY ARD-

preventing burial in, 116

CIVIL REMEDY-

not affected by criminal offence, 602

CLERGYMAN—

obstructing in discharge of duty, 116

CLERK—

and servants, stealing by, 366
falsification of accounts by, 419
issuing false dividend warrants, 532

CODICIL-

included in expression "testamentary instrument," 6
stealing, 370
forgery of, 612
obtaining by forged, 624

COCK-PIT—
keeping, 587

COERCION-
of wife, 11
See Compulsion.

COIN-

offences relating to, 641

interpretation of terms, 641 ,

counterfeiting coins, etc., 642

dealing in and importing counterfeit, 644

copper, 645

exportation, 646

making instruments for coining, 666

bringing instrument into Canada, 649

clipi^ng current, 649

defacing current, 650

Ifi

1028

INDEX.

COIif—Cotitinucd.

possessing clippings, etc., 550

possessing counterfeit, 551

copper, offences respecting, 551

foreign, 552

counterfeit, uttering, 552 . v

uttering light coins, 554

uttering defaced, 655

uncurrent copper, uttering, 555

punishment after previous conviction, 555

uttering defaced, consent of Atty.-Gen. required for prosecution, 612

counterfeit, found under search warrant, 639

false or counterfeit, evidence on trial of, 801 <

trial for coinage offences, 828

counterfeit, destroying oft trial, 829

COMBINATION—

in restraint of trade, 589

COMMENCEMENT—

of prosecution, what is, 615

COMMISSION-

to examine witnesses, y94

COMMON ASSAULT—

definition, 259
punishment, .259

COMMUTATION OF SENTENCE-
COMMON LAW—

rules of, adopted, 7
offences under, 959

COMMON NUI3ANCE-
deiinitiou, 131
criminal, 133
not criminal, 133

COMPENSATION-

for loss of propertj', 900

to purchaser of stolen property, 901

COMPOUNDING FELONY-105

C JLSION—
jj threats, 9
of wife, 11

CONCEALING-

birth of child, 229

treasure trove, 329, 430

gold or silver to defraud partner, 34j

timber found adrift, 3S0 ^

documents of title, etc. , 393

lired for prosecution, 612

INDEX.

CONCEALING— Co>Umi«c(/.

anything capable of being stolen, 396
leeds, etc., 421

CONFESSION—

of accused, may be given in evidence, 657
punishment on, same as on verdict, 960

CONJUNCTIVE OR DISJUNCTIVE AVERMENTS-

when allowed, 678

on summary convictions, 948

CONSENT—

to infliction of death on one's self unlawful, 27
to indecent acts, 117, 121, 130, 252, 269
tr) abduction, 292, 293

CONSERVATORY—

stealinp plants, etc., in, 381
destroying same, 584

CONSPIRACY-

to kill or do bodily harm to Her Majesty, 46

to levy war with to depose Her Majesty, etc., 46

when treason, overt act of is overt act of treason, 47

to commit treasonable offence, 48

to intimidate legislature, 48

seditious, 72

to bring false .accusation, 100

to defile women, 129

to murder, 224

to defraud, 429

in restraint of trade, 593

in other cases, 596

indictment for, 680

CONSTABLE—

is a peace officer, 4

CONTEMPT—

of court, arrest without warrant for, 623
bj' witness at speedy trial, 881

CONTRACT—

criminal breach of, 590

CONTRIBUTORY NEGLIGENCE-

in manslaughter, 192

.. CONVERSION—

fraudulent, of property is theft, 339

I CONVICTION—

See PREVIOC8 Conviction.
Summary Conviction.

ICOPARTNER-

in i.iine, concealing gold or silver, 345

1029

IS:

if'' ■ *i»
&. t

u m

Jf i

1030

INDEX.

CORONER-

inquisition of, 638, 732

inqueat after execution of death sentence, 963

CORPORATION-

indictment againat, 727

CORRECTION-

reasonable, of child, etc, 27
homicide by, 27, 190

CORROBORATION—

for what offences required, 795

CORROSIVE FLUIT>—

attempt to cause bodily injury by, 242

CORRUPTION-

of judges, etc., 77
' of officers prosecuting, 77
in municipal affairs, 81

COSTS-

in case of libel, 306

on speedy trial, 881

on trial of juvenile offenders, 897

in proceedings for indictable offences, 898

on conviction for assault, 899

taxation of, 900

on summary conviction, 920

Uriff of fees, 920

COUNSEL-757

See Addbbss of Counsel.

COUNT—

of indictment, what expression includes, 3
joinder of, 686 j .

COUNTERFEITING-
great seal, 621
seal of court, etc., 522

OOUNTY-
defined, 2

COURSE OF JUSTICE-

attempt to obstruct, 104

COURT OF APPEAL-

definition of, 2
See Appbal.

CREDITOR-

assigning property with intent to defraud, 421
false entries in books with intent, 421

I I

INDEX.

CRIMINAL RESPONSIBILITY-

proteotion from, for aote done, 12

See JUSTIWOATION AND EXOUSE.

CROPS—

setting fire to, 564
attempt, 664

CROWN CASES RESERVED-864
See Cask Reserved.

CUMULATIVE PUNlSHMENTS-96r>
CURTILAGE-

what 18, 469

CUSTOMS—

officer of. is a public officer, 4
forgmfir mark or brand, etc., of, 514

1031

DAM-

injuries to, 573

DEAD BODIES—

misconduct in respect of, 139

DEAF AND DUMB PERSON-

spduction of, 130

DEATH—

punishment of, when, 6

false entry in, 530
uttering false certificate of, 531
execution of sentence of, 960
DEBENTURES-
foiigery of, 612

[declaration-

voluntary, in lieu of oath, 98, 99

|deeds—

included in document of title to lands 2
concealing, 421 ' ^

forgery of, 512

bEFAMATORY LlBEL-296
K>ee LiBEt.

bEFICIENCY-

I general, when evidence of larceny m

PEFILEMENT-

of women, 125

conspiracy for, 129

II,
Iff

fill

'11

■]!i|.

jii,-:

•■|i|ii|i:

f
I

I,!, :ii

I ;

1032

INDEX.

DEFINITIONS-1

DE MEDIETATE LIXGU^—

jury abolished, 771

DEMURRER-

to indictment, 701

DEODAXD—

abolished, 974

DEPOSITION—

accused entitled to inspect, and have copy of, 751
of sick iierson, how taken, 794
of person abroad, 794
may be used at trial, 796

DESERT-DESERTER-49, 50, 633

DETAINER—

I forcible entry and, 60

DIRECTORS— ,

of company, offences by, 418, 419

DISABILITIES-
DISGUISE— '^

being disguised, when indictable, 485

DISOBEDIENCE—

to statute, 83

to orders of court, 83

DISORDERLY HOUSE-

is common bawdy-house, etc, 134
keeping, etc., 134, 140

DISTRICT-
definition of, 2

DIVIDEND WARRANT—

false, clerks issuing, 532

divisible averments, 686, 818
DOCK—

presence of prisoner in, 756
DOCUMENT—

of title to goods and lands, defined, 2

defined for purposes of forffory. 50;>
DOG-

stealing, 374

injuries to. 579

DOMESTIC ANIMALS—

stealing, 374
injuries to, 579

DRILLING—

unl.-vwful, otffMices as to, 59

of, 751

INDEX.

DRIVING- ■ ' -1)

furious, doing bodly harm by, 249

DROWN—

attempt to, 212 ' ' • . ;

DRUG-

administering to woman for purpose of carnal connection, 125
administering, with intent, 239
administering to procure abortion, 275

DRUNKENNESS-
no excuse for crime, 11

DUEL-

seconds to, are principals in second degree, 35
challenge to fight, 61
killing in, 179

DUTIES—

tending to preservation of life, neglect of, 143, 198

DWELLING-HOUSE—

preventing breaking and entering justified, 24
the like by night, 25

stealing in, 384 *

definition in burglary, 469

offences as to, 471, 475, 478, 483, 434
destroying, etc., 573
injuries to, by tenants, 581

DYING DECLARATION-

admissibility of, in evidence, 201

1033

ELECTION—

day of, assault on, 254

indictment, 257
documents of, stealing, 373

destroying, 580
doctrine of, as to different charges of theft, 686

ELECTRIC TELEGUAPH-
iujuries to, 569

ELECTRICITY-

breach of contract to supply, 590

I EMBEZZLEMENT-339, 340, 344

EMBRACERY-104

I ENGINE—

of railways, 245. 567

for working in mine, injury to, 573

'ii! ;fi!

i!( ':■■■■;

!':!: M

I! r" 1 .

t ;' I'

1 1

W pi.

'iff

<fi

1034

INDEX.

ENGRAVINO-

excheqner bill or note, 625 ^

ENLISTMENT-

forei|^ act of, in force in Canada, 62

ENTRY-

forcible, and detainer, 60

ERROR

writ of, abolished, 864
remarks ou, 866

ESCAPES AND RESCUES-
after committing offence, 18
from arrest for major offence, peace officer preventing, 10

private person preventing, 20
from arrest for minor offence, preventing, 20
or rescue in major offence preventing, iO

in minor offenge, 20
offences by, 107 to 113

ESTREAT-

of recognizance, 051

in Quebec, 035 x

EVIDENCE-

when to be corroborated, 705
of child not under oath, 705
in certain cases, 801, 800
And see Deposition.

EXAMINATION-

personation at, 538

EXCHEQUER BILLS-
deiined, 610, 525
forgery of, 525

EXCUSABLE HOMICIDE-
remarks on, 202

EXCUSE-7

See Justification and Exocse.

EXECUTION—

of sentence of death, 060

EXPLOSIVE SUBSTANCE-
definition, 2
offences by, 63
bodily injuries by, 241
damage to building, etc., by, 565, 573
consent of Attorney-General required for prosecution, 612
seized under search warrant, 638

EXPOSURE-

of person, 120, 141

INDEX.

1035

preventing, W
20

[or

prosecution, 612

EXTORTION—

by defamatory libel, 299
at oommon law, 422
robbery and, 444
by threats, 461, 454
EXTRA-JUDICIAL OATHS-101

FACTOR-

fraudulent dealing with goods, 424

FALSE EVIDENCE-

proouring death by, 97, 208

FALSE NEWS—
spreading, 73

FALSE PERSONATION-
of owner of property, 638
at examinations, 538
of owner of stock, 639

FALSE PRETENCES-

obtaining property by, 397 ,

punishment for, 398

remarks on, 398

obtaining valuable security by, 414

FALSE RECEIPTS-

in dealing with property, 421

FALSE SIGNALS-

exhibiting, to bring ship into danger, 570

1 FALSE WEIGHTS OR MEASURES-
aelling goods by, 430

I FEAR-

death caused by, 208

IFELO DE SE—

aiding and abetting, 226

FELONIOUS INTENT-

in theft, formerly required, 325

tELONY AND MISDEMEANOUR—
distinction between, abolished, 603

FEMALE—

seduction of, under promise of marriage, 124
passengers on vessels, seduction of, 124
idiot, etc., carnally knowing, 130 ,

indecent assault on, 252

rSNCE-
stealing, 380
injuries to, 582

>•' ■' ill

;i ■ m

§i

p. -■;;>? ;

■HI

fi^

,1.*;

1 ■■'j..L'fi

1030

INDKX.

FERAE NATUR/E-

aninialf), when capablu of being ttolon, 323, 337

FINDING-

Isroeny by, 32t)

FINDING OF INDICTMENT^
expreHflion defined, 2

FINE-

in disoretion of court when not fixml, iHU)
in addition or in lieu of punishment, 068

FINES AND FORFEITURES-

provisions re8i)eoting, i)58

FIRE-ARMS-

pomting at any person, 07

FISH-

1 destroying, in private waters, 574, 670

FIXTURES-

on buildings, stealing, 370
injury by tenant, 581
FOOD-

selling things unfit for, 133

FORCIBLE ENTRY-

imd detainer, CO

FOREIGN AGGRESSIONS-47

FOREIGN ENLISTMENT ACT—

in force in Canada, 52

FOREIGN SOVEREIGNS-
libol on, 73

FOREST—

setting fire to by negligence, 505

FORFEITURE-

fines and, 958

on conviction, abolished, 974

FORGERY-

general remarks, 489

provisions respecting, 509

definition, 510

punishment, 511

uttering, 521

possessing forged bank notes, 523

demanding property on forged instrument, 524

preparations for, 525

of certificates, 531

uttering false certificates, 531

of tra:l« marks, 5;i3

INDEX.

VOUGERY—Cuntiniied.

un trial for, evidence iniiat be corroborated, 795

oompariHon of writings on trial, 805
FORMAL OBJECTIONS-

to proceedings before indictment, 701

FORMALITIES-

previous to indictment, 729

FORM—

matters of, in summary convictions, 937

FORMS—

in schedule two to be valid, 980

FRAUD—

upon the Government, 78
in dealing with property, 418
in Government contracts, 690

FRAUDULENT INTENT-
remarks on, 493

FRAUDULENT MARKING OF MERCHANDISE-533

FRUIT-

stealing, 381
destroying, 584

FURIOUS DRIVING-
doing bodily harm by. 249

1037

I III'
II'

Lt, 524

GAMBLING—
in Htucks, 136
in public conveyance, 136
in stocks, evidence, 809

I GAMING HOUSE—
common, defined, 133
playing in, etc., 135

IGAOL-

included in term "prison," 4

common, defined for summary conviction, 906

JARDEN-
8tealing in, 381
destroying vegetables, etc., in, 684

PAS-

stealing, 322, 695

criminal, breach of contract to supply, 590

SASPE-

speoial provisions as to, 630

111'

l^ti

1 . "' \

i 'J

\ . .t

-J^ ,

-VJf

- '4?

1038 INDEX.

GATE-

stealing, 380

destroying or damaging, 682 \

GENERAL DEFICIENCY—

when evidence of larceny, 835

GIRL—

between fourteen and sixteen, seduction, 123

unlawfully defiling, 126

defilement, parent or gruardian procuring, 127 ^

householder permitting, 128
idiot, etc., carnally knowing, ISO
under fourteen, defiling, 274

attempt, 274
under sixteen, abduction, 292

GLASS—

fixed to building, stealing, 376

GOLD-

ofFences as to, 345, 382, 642

GOODS—

document of title to, defined, 2

in progress of manufacture, stealing, 1^9, 390

destroying, etc., 574
defined as to fraudulent marking of merchandise, 534

GOVERNMENT—
frauds upon, 78
frauds in contracts with, 590

GRAND JURY-

proceedii gs before, 729, 733

objections to constitution of, 762

no challe. ,,e to any of, 752

not to ignoie bill fur insanity of accused, 863

special provision as to Nova Scotia, 876

GRAND LARCENY-

and petit larceny, distinction abolished, 307

GRAIN—

false receipt for, 424

intimidation to prevent delay in, 595

GREAT SEAL-

forgery of, 521

GREENHOUSE-

stealing fruit, etc., in, 381
destroying, etc., same, 584

GRIEVOUS BODILY HARM-
• See Bodily Harm.

• )

"Sill

INDEX.

GUARDIAN—

seducing ward, 124

proouring defilement of ward, 127

duty to provide necessaries for ward, 143

GUILTY—

case can be reserved though prisoner pleads, 867

1039

123
127

i9, 390
irchandise, 534

1,863
L307

HABEAS CORPUS-

ad testificandum, abolished, 793
special provision, 874

HANDWRITING—

disputed, comparison with genuine, 805

HARBOUR—

injuries to, 573, 583

HARD LABOUR—

imprisonment in penitentiary, etc., to be with, whether in sentence or

not, 966
in other prison must be in sentence, 967

HAVING IN POSSESSION—
definition, 2

HIGH COURT OF JUSTICE—

of Ontario, is "Court of Appeal" and "Superior Court of Criminal
Jurisdiction," 2, 4

HIGH SiiJAS—

ofiences comn<itted on, 606

warrant for offence committed on, 632

HIGH TREA30N-46
See Trbason.

HOLES-

in ice, leaving ungfuarded, 250

1 HOLIDAY—

warrant may be executed on, 637

IHOMICIDE-

by neglecting natural duties, 143, 198

Imperial Commissioners' report on, 153

remarks on, 156

definition, 205

culpable, 206

And see Murder, Manslacghtbr.

ii-ii

1 '''

1040

INDEX.

HOP-BINDS—

destroying, etc., 574

HORSE—

included in term "cattle," 2

HOT-HOUSE—

stealing fruit, etc., in, 381
destroying same, 584

HOUSE- ^

See DWELLING-HOCSE.

HOUSE-BREAKING—
See Burglary.

HOUSE OF ILL-FAME-
See Bawdy-House.

HOUSEHOLDER-

permitting defilement of girl on premises, 128

HUSBAND AND WIFE—

compulsion of wife not presumed, 11

neither accessory after the fact for receiving, etc., the other after com

sion of oifence, 40
duty to provide necessaries, 143
search warrant for wife in house of ill-fame, 642

HUMAN REMAINS-

misconduct in respect of, 139

HYPOTHECATION-

fraudulent, of real property, 422

tf. :?.

ICE-

leaving hole in, unguarded, 250

IDIOT-

girl, seduction of, 130

IGNORANCE OF LAW—

not an excuse for crime, 11

IMMORAL BOOKS-
publishing, etc., 121
posting, 122

IMPARL-

aocused nut entitled to, etc., 710
special provision as to Ontario, 875

IMPERIAL STATUTES-

offenoes against, 6

INDEX.

1041

s,128

.ing. etc., the other after commis-

ftme, 642

IMPOUNDING DOCUMENTS-
procedure at trial, 828

IMPRISONMENT—

provisions as to, 964

INCEST— 119

provisions as to, 119

m Maritime Provinces, unrepealed statutes as to, 119

INCITING—

indictable, though o£Fence incited not committed, 30

to drive furiously whereby death is caused is manslaughter, 3S.

to mutiny, 49

Indian to riot, 63

or attempting to incite, 598

INDECENT ACTS— , n

punishment for, 120, 121
acts of gross indecency — 121, 141

i INDECENT ASSAULT—
on males, 121, 253
on females, 252
consent of child under fourteen no defence, 253

I INDECENT EXPOSURE— 120, 141

[indecent EXHIBITION-140

llNDIAN-

inciting to riot, 63
woman, prostitution of, 130

INDIAN GRAVES-

stealing things deposited in, 393

Indictment-

definition, 3

finding the, what expression includes, 2

provisions respecting, 070

in si^ecial oases, 681, 685-6

against corporations, 727

preferring, 728

special provision for^Nova Scotia, 876 t

^DORSEMENT-
of bill of exchange, etc., forging, 512, 513
of warrant, 637
of warrant for^witness, 649

IJFAMOUS CRIME-116
See Abominable Crime.

Gbiu. Law— 66

e,i-.

.■:,tf ;■

^ •

1042

INDEX.

INFANT—

child under seVetl cannot commit offence, 7
duty to provide necessaries for, 143
under two years of age, abandoning, 149
See Child.

INFEOTION-

oommunicating, ia not an assault, 263

INFORMATION—

included in expressions "indictment " and "finding the indictment," 2,
for common nuisance, 132, 133
biefore magistrate, 632 «

INLAND REVENUE-

officer of, is « public officer, 4
.fotging stamp of, 614, 526

INNOCENT AGENT—

For offence committed by, absent employer is principal in tUnt degree, 31

INNUENDO-

in libel, 305

INQUIRY-

preliminary, by magistrate, 627, 644

INQUISITION-
by coronor, 638, 732

INSANITY-

when an excuse for crime, 8
of prisoner, 860

INSULT-

repelling assault accompanied by, 24
provocation by, in homicide, 311

INTENT TO DEFRAUD-
in forgery, 493

INTERPRETATION-
of terms, 1

INTIMIDATION-

to prevent person doing lawful act, 591

and assault, 693

to prevent business, 596

INTOXICATING LIQUOR-
definition, 3

sale of, near public works, 69
taking on board Her Majesty's vessels, 70
giving to woman or girl in order to have carnal connection, 126

INDEX.

1043

gndi°S

the indictment," 2, 3

,i« principal in fitst degree. 30

leal

,roal connection, 125

JOINDER— ^

of counts, 686

of defendants, 696

of accessory and principal, 697

of offences, none on summary conviction prrioeedings, 908

JEOPARDY-

necessary to make conviction a bar, 715

no one to be put in, twice for an offence, 715

JOINT TENANTS-

how de&cribed in indictment, 681 .

JUDGE-

judicial corruption, 77

forging document issued by, 513

charge to jury, 767

JUDICIAL CORRUPTION-77

JUDICIAL DOCUMENTS-
stealing, 371
forgery of, 513

JURISDICTION-

of superior courts, 604

of courts of general or quarter sessions, 60

of the admiralty, offences within, 606

magisterial, 627

of courts, 728

in cases of libel against newspapers, 728

JURORS—

corrupting, 104
grand, evidence by, 734
not to separate on trial, 787
to have fire, etc., 787
I JURY-

addresses to, 757
charge, 767
polling the, 770
who qualified to serve ota, TTl
de medietate liagus^ abolished, 771
mixed, in Quebec, 772
in Manitoba, 774
challenging array, 7H
calling panel, 776

challenges apd directions to stand by, 777
challenge by Crown in libel eases, 786
challenges in case of mixed, 786
challenges in joint trials, 786
ordering talesi 767
saving clause as to, 787

ilii

•

■m

MW
'mm

Vii

i"i

■mv

i'lll

1044

INDEX.

JURY— Continued.

discharge of, 788 \

view by, 829 4

retiring to consider verdict, 849

unable to agree, 849

proceedings on Sunday, 850

de ventre inspioiendo abolished, 850
And see Gbans Jury.
JUSTICE- V

definition, 3

See Maqistrate.

JUSTICE OF THE PEACE—
term "justice " includes, 3
unlawfully administering oath, 101
functionaries exercising powers of two, 605<
And see Magistrate.

JUSTIFICATION OR EXCUSE—
common law rules as to, 7
children under seven, 7

between seven and fourteen, 7
insanity, 8
compulsion by threats, 9

of wife, 11 •

drunkenness, 11
ignorance of law, 11

"justified" and "criminal responsibility" explained^ 1?
execution of sentence, 12

process, 12

warrants, 14

erroneous sentence or warrant, 14
sentence or process without jurisdiction, 15
arresting wrong person, 15
irregular warrant or process, 16

arrest by peace officer for offence supposed to have been committed, 16
persons assisting peace officer, 17
arrest without warrant, 17
arrest after commission of offence, 17
arrest for major offence committed by night, 17
arrest by peace officer of person found committing offence, 17
arrest during flight, 18
necessary force may be used to arrest, 19
process or warrant to be produced if required and notice of cause of am

given, 19
effect of failure to produce or give notice, 19
peace officer preventing escape from arrest, 19
private person preventing escape, 20
necessary force may be used, 20
preventing escape or rescue in major offences — protection from criniini

responsibility, 20

INDEX.

1015

" explained^ 1?

JUSTIFICATION OR HXCXJSIl— Continued.

the same as to minor offences, 20 i : -

preventing breach of the peace, 20

arrest of person found committing breach of the pe^/oe, 21

peace officer receiving into custody party to breach of the peace, 21

suppression of riot by magistrates, 21
by any one, 21
necessary force may be used, 22

protection of persons subject to military law, 22

necessary force may be used to prevent commission of major offence, 22

self-defence, unprnvcked assault, 22
provoked assault, 23

provocation may be by blows, words or gestures, 23

force may be used to prevent insult, 24

one in possession of moveable property may resist taking by trespassers, 24

protection from criminal responsibility in defending possession of move-
able property, 24

one in unlawful possession not protected against owner, 24

necessary force to prevr it breaking and entering of dwelling-house may be
used, 24

and to prevent breaking and entering by night, 23

defence of real property against trespassers, 25

entry on house or land under assertion to title, 20

discipline of child, pupil or apprentice, 27
on board ship, 27

protection from criminal responsibility in performing surgical operation, 27

using force in excess of what is authorized, 27

consent to infliction of death no excuse, 27

act done in obedience to de facto law, 28

JUVENILE OFFENDERS-
trial of, 892
conditional release of, on first offence, 977

''ill

I m

'in

to have been committed, 16

KEEPER-

of penitentiary or prison is a " peace officer," 4

Lired and notice of cause of arrest

KEEWATIN-

for proceedings in, expression "Attorney -General" means Attorney-
General of Canada, 1
no 8i)eedy trial in, 877
summary trial in 884, 885
trial of juvenile offenders in, 892, 898

II 1

B—protection from criminal

KEY-

used by post office department, stealing, 372
stealing by means of, 389

1046 INDEX.

KIDNAPPINQ-

what oonatitutes, 268
remarks on, 258

form of indiotment, 268

KILLING-

by correction, 27,!190

by influence on the mind, 208

cattle, 341, 678

pigeons, 376

See Homicide, Mcbder.

©•

LAND-

document of title to, defined, 2

included in " valuable security," 6
stealing things fixed to^ 336
document of title to, stealing, 370
things fixed to, stealing, 876

LAND MARKS—

offences as to, 582

LARCENY—

Gknbkal Reuarks on— 307

the taking, 308

the carrying away, 320

the goods taken, 323

must be against owner's will or consent, 324-

intent required, 325

by finding. 329

evidence, etc., 332

general deficiency in books of clerk, 336
Provisions Respectino— 336

what things can be stolen, 337

animals capable of being stolen, 337

definition of theft, 338

theft of things under seizure, 340

theft by agent, 341
by attorney, 342
of proceeds under direction, 342
by co-owner, 346

by co-partners in mining claims, 345-
by husband and wife, 346
by clerks or servants, 355
by agents, etc., punishment, 369
by tenants or lodgerti, 370
of testamentary inutruments, 370
of judicial documents, 371
of post letter bags, etc., 372
of letters and other mailable matter, 37i}

INDEX.

1047

>nt, 32*

335

l,34!>

fttter, 372

LARCENY— Co»t<tnu«d. »

of election documents, 373 1 1

of railway tickets, 373

of cattle, 373

of dogs, birds, etc.. 374

of oysters, 375

of things fixed to buildings, 376

of trees, saplifigs, etc., 377, 378 '

of timber found adrift, 380
> of fences, styles, etc., 380

unlawful possession of trees, fences, etc., 380

of plants in gardens, 381
not in gardens, 382

of ores, minerals, etc., :W2
stealing from the person, 383
stealing in a dwelling-house, 334
stealing by pick-looks, etc., from any receptacle, 389
stealing goods in process of manufacture, 389
stealing in ships or from wharves, etc., 390
stealing wrecks, 392
stealing on railways, 392
stealing things in Indian grave, 393
destroying documents, .393
stealing promissory notes, 393
concealing anything capable of being stolen, 396
thief bringing into Canada anything stolen abroad, 396
punishment for, when not provided for, 397

when value exceeds $200 : 397
search warrant for things stolen, 638

three acts of, committed within six months may be tried together, 686
on indictment for, no verdict for obtaining by false pretenses allowed,

and vice versa, 719
summary trial, 884
trial of juvenile offenders, 892
compensation to purchaser of stolen property, 901
restitution of stolen property, 901

LAUDANUM-

administering, with intent to commit indictable offence, 239
LAW OF MARRIAGE-279

See Marriaqe.
LEAD-

on buildings, stealing, 376 .

LEASE -

of mine, fraud by holder of, 423
LEGISLATURE-

conspiracy to intimidate, 48
1 LETTER—

threats by, to murder, 222

stealing, 372

!, iiS;

; il

i ' ii

■"'ml
'Sfm

'Ml

■■f

■»!-

•1

; !

' - ;

1048

INDEX.

LETTER— CoTJtjni/ed.

falsely pretending to enclose money in, 417
demanding with menaces by, 449
causing person to receive, containing threat, 432
threatening by, to bum, 506
to injure cattle, 580

LETTERS PATENT-

forgery of, 513

LEVYING WAR- *

to depose Her Majesty or compel Her to change Her measures, 46

conspiring to, for such purpose, 46

subject of state at peace with Her Majesty, 47

British subject in company with same, 48

against Her Majesty, conspiring, 48

LIBEL-

seditious, 72
on foreign sovereign, 73
obscene, 121

defamatory, defined, 296
publishing, defined, 297

upon invitation, 297

in courts, etc., 297

parliamentary papers, 297
report of proceedings of parliament and courts, 297

public meetings, 297
fair discussion and comment, 298
seeking remedy for grievance, 298
answer to inquiries, 298
giving information, 298

responsibility of proprietor, etc., of newspaper, 298
selling libels, 299
when truth is a defence, 299
defamatory, extortion by, 29S
punishment, 300
general remarks and cases, 300
procedure on, 304, 305
former act unrepealed, 306
defamatory, not triable at quarter sessions, 605
indictments for, 679
against newspaiiers, jurisdiction, 728
evidence in certain cases, 810

LIME-

destroying fish in river by, 574

LIMITATION-

of time to commence proceedings in certain cases, 613
what is commencement of prosecution, 615
need not be pleaded in criminal cases, 615

INDEX.

1049

ige Her measurea, 46
17

iirts, 297

iper, 298

LIMITATION— Confmued. , ,

of time in uilenoes under Dominijn Elections Act, 615
in proceedings on summary conviction, 906
action against justice for not making returns of convictions, 948
action for penalty, 958
against persons administering the criminal law, 070

LIQUOR—

in package on railway, damaging, 567
See Intoxicating Liquor.

LOADED ARMS—
deKnition, 3

LODGER—

tenant or, stealing by, 370

LOOSE, IDLE AND DISORDERLY-

wliat persons are, 140
search \<rarrant, 644

LOST PROPERTY-
larceny by finding, 329

LOTTERIES-

pn)vi8ions respecting, 138

tickets for, etc., seized under search warrant, 643

LUCKI CAUSA-

alxluction of heiress, 289, 293
larceny need not be, 333
nor receiving, 351

LUNATIC— 8, 860

See Insanity.

111!! '

-'111

III:

605

In cases, 613

MACHINERY-

riotou* destruction of, 57

damage to, 58
wilful damage to, 674

remarks, 577

MAGISTRATE-

suppressing riot, 21 .

reading Riot Act, 56

duty of, if rioters do not disperse, 57

certain to have powers of two justices, 605

jurisdiction in indictable offences, 627

meaning of expression, in summary trial proceedings, 884

may try juvenile offenders, 892

jurisdiction in summary convictions, 906

actions against, 979

;l! 8:

I' 1 : ";

'lif'li

■■Ij!l

: !ih!

■ pi''

Il>

1060

INDEX.

MAIL-

definition, 6

offenoM M to, 372

■topping with intent to rob, 447

MAILABLE MATTER -
dt)finition,!6
■tealinff. 372

MAIM-

woiinding with intent, 233 ^

or wound a publio officer, 239

by explosivea, 241

one'B self to obtain charity, 432

cattle. 673

attempt, 679

MALE PERSON-

indecent assault by, 116, 121, 263

MALICE—

in murder, 153, 167
. in mischief, 667

MALICIOUS INJURIES-567
SeoMiaoHiKV.

MANSLAUGHTER—

remarks on, 181

provisions as to, 211

definition, 211

punishment for, 225

triable at Quarter Sessions, 605

conviction or acquittal for, a bar to subsequent indictment foe munder„7iri

coh>'iotion for, on indictment for murder, 819, 822

And see HotficiDE.

MURDBR.

MANTRAPS-

setting, with intent to do bodily harm, 243

MANUFACTORY-

destroying or damaging, 67, 58
stealing goods entrusted, etc., 389
fraudulently disposing of goods entrusted, 390
damaging goods in, 574, 577

MARINE STORES-
oifenoes respecting, 425
March warrant, 641

MARINE—

receiving, etc., regimental necessaries from, 428, 429

INDEX.

1051

MARRIAGE -

))igainy, 279

feigi."<l, 287

polygamy, 287

unlawfully Bolt<mnizing, 288

Bolemnizing an unlawful, 28S

abduction for purpose of, 280

lioenae or certificate, forging, 613

regiatfr of, destroying, etc., 530

false extracts and certificates of, .530, 531

MARRIED WOMEN-

See Husband and Wikk.

MASKED—

being, when indictable, 486

MASTER^

of ship, taking unseaworthy ship to sea, 261

consent of Minister of Marine required for prosecution, 612

ill

mt indictment fon murder, .TIB
[9,822

MASTER AND SERVANT-

criminal liability of master for acts of servant, 12

master may use reasonable force in correction of apprentice, 2t

neglect by master of natural duties, 143

assaults by masters on servants, 161

master may justify battery in defence of servant, 26S<

MATRONS-

jitry of, abolished, 850

MAYHEM—

when justifiable, 263

MEDICAL PRACTITIONER-

Biirgical o)x)ration by, 27
killing by, 196

MEETINGS-

public, offences respecting, 08
religious, disturbing, 116

MENACES—

Htealing in dwelling-house with, 384
sending letter demanding property with, 449
demanding with, 460

MENS REA- ^

necessary to offence, 11, 295

METAL-

on buildings, stealing, 376
stealing ore of, 382

iliii'li'

•iiiii

iilil

i.lllig

1052

INDEX.

MILITARY LAW-
definition, 3

protection of persona subject to, 22
code cannot affect government of Her Majesty's forces,

MILITIA-

enticing members of, to desert, 50
purchasing, etc., regimental necessaries, 428

MILL POND-

destroving flood gate of, 574 ^

MINERALS—
stealing, 382

MINES-

punishment for leaving unguarded, 250
concealing gold, etc., to defraud partner in, 345
stealing ore, etc., from, 382
fraud by lessee or licensee of, 423
mischief to, 572
search warrant, 642

MISADVENTURE—

homicide by, 205

MISBEHAVIOUR IN OFFICE-80

MISCARRIAGE—

attempt to procure, 275-276

MISCHIEF-

causing damage, 557

arson, 558

attempt to commit arson, 563

damage by explosives, 563
on railways, 567
injuries to telegraphs, 569
wrecking, etc., 570-571
to mines, 572
punishments, 573
injuries to cattle, etc., 579-580

to poll-books, 580

by tenants, 581

to land marks, 582

to fences, etc., 582

to harbours, 583

to trees, etc., 583-584
other injuries, 585

MISCONDUCT—

in office, 80

of officers entrusted with execution of writ, 84

-MISDEMEANOURS-

felony and, distinction abolished, 603

I t

INDEX.

i05a^

:n!nii

MISFEASANCE IN OFFICE— 80 , ,

MISPRISION—

of treason, 47

MORALITY, OFFENCES AGAINST-
unnatural offences, 116, 118
incest, 119

inflecent acts, 120, 121
publishing obscene matter, 121
posting immoral books, 122
seduction, 123, 124
unlawfully defiling women, 125-129
carnally knowing idiots, etc., 130
prostitution of Indian women, 130

MORTGAGE—

making fraudulent, 422
fraudulently concealing, 422

MOTION IN ARREST OF JUDGMENT— 852

MOTIVE—

not the same as intent, in criminal law, 11

need not be proved, in case of disobedience to statute, 53Qt

MI^XICIPALITY—
definition, 3

corruption in municipal affairs, 81
stealing by employees of, 355
employee of, refusing to srive up books, 369
stealing documents of election in, 373
destroying, etc., same, 580

MURDER—

remarks on homicide, 153

definitions, 210

provocation to reduce to manslaughter, 211

punishment fir, 212

attempts to commit, 'A2

threats by letter to, 222

conspiracy to, 224

accessory after the fact to, 225

by suicide, 226

no other offence can be joined in indictment for, 686

on indictment for, conviction only for murder or manslaughter, 819'-

MUTE—

sfihiction of deaf, 130

on arraignment, standing, 752

MUTINY-

iuciting tt), 49

sentence under Act of imprisonment, 966

! Illll! 1

111
■13!

■iiitH

■ ?'i : '■

, III:

i iiil i

:'::!!i(..

ili'illli

1054

INDEX.

NECESSARIES—

duty to provide wife, child, etc., with, 143
punishment for neglect, 144

NECESSITY—

homicide by, 10, 171
NEGATIVE AVERMENTS-

in indictments, 676, 677

on summary convictions, 909

JfEGLIGENCE—

death caused by, 144, 191, 198
contributory, in homicide, 192
causing bodily injury by, 245, 249
setting fire to forest by, 565

JfEW BRUNSWICK-

" Court of Appeal " in, 2

"Superior Court of Criminal Jurisdiction," 5

incest in, unrepealed statute, 119

adultery in , 129

speedy trials in, definitions, 877

summary trials, 884

trial of Juvenile offenders, 890

application of fines, 890

definitions, 892
application of fines generally, 897
appeal from summary convictions, 933
recovery of fines on estreated recognizance, 951

:new trial-

court may order, on case reserved, 865

when granted, 872

by order of Minister of Justice, 873

may be ordered by Supreme Court of Canada, 873

NEWS-

publishing false, 73

J^EWSPAPER—

defined in respect to libel, 3

advertising reward for return of stolen property in, 106

responsibility of proprietor of, 298

trial for libel must be in province where newipaper published, 305

indictment against, for libel must allege publication in the district, 845

:night-

or " night time " defined, 3

arrest of person committing offence by, 17, 18

defence of dwelling-house entered by^ 24

what is, in burglary, 457

breaking shop, etc., by, 480, 483

being found in dwelling house by, 483

'b«ing found armed at, withint«nt, 484

INDEX.

1055

Btty in, 106

rtpaper published, 305
ijlication in the district, 845

HflGWI— Continued. "

being masked or disguised, or in possession of house-breaking implements

at, 485
damaging any property by, 574
arrest without warrunt of person found committing oifence by, 618

of person loitering on highway by, 618

NIPISSING-

special provisions as to, in sections 878, 879, 902

NOLLE PROSEQUI— 851

NORTH WEST MOUNTED POLICE—
enticing members of, to desert, 50

NORTH-WEST TERRITORIES-

expression " Attorney -General " means Attorney-General of Canada

in, 1
Supreme Court of is a "Court of Appeal," 2

" Superior Court of Criminal Jurisdiction," 5
sale of arms in, 69
no speedy trials in, 877
summary trials, 884
trial of juvenile offenders, 892
application of fines, 951

limitation of time for proceedings on summary oonvictions, 906
imprisonment in, 967
code applies to, 981

NOT GUILTY-

plea of, on refusal to plead, 752

NOTARIAL ACTS—
forgery of, 511

NOTICE-

of cause of arrest, to be given on executing warrant or process, 19

in proceedings against receivers, 827

to surety in recognizance to prosecute, not required, 661

of indictment against corporation, 727

of motion for leave to appeal on case reserved, 865

of appeal to Supreme Court of Canada, 373

NOVA SCOTIA-

*' Court of Appeal " in, 2

" Superior Court of Criminal Jurisdiction," 6

incest, unre|)ealed statute in, 119

sijecial provisions as to indictable offences, 876

8i)eedy trial in. 877

summary trial, 884

trial of juvenile offenders, 892

application of fines, 890

definitions, 892
application of fines generally, 897
appeal from summary convictirns, 933
recovery of fines on estreated recognizance, 961

:i 3 „

'1 ! i

^11

ii%! 111!

i:*ls

!-':!il

ill 3'
'Mi

tkl

$■1 ^

i j'1 '

t:
i.

;5 '

1066

INDEX.

NUISANCE-

common, defined, 131

penalty for common, 133

of particular character, 133

selling things unfit for food, 133

common bawdy-house defined, 133

common gaming-house, 133

common betting-house, 134

punishment for keeping bawdy-house, etc., 134

offences as to gaming-house, 135

gambling in stocks, 136

public conveyance, 136
betting and pool selling, 137
lotteries, 138
misconduct in respect of dead bodies, 139

OATH-

to commit certain offences, 70, 72
administering without authority, 101

OBJECTION—

certain objections not fatal, €78

to indictment, how taken, 701

on summary convictions not fatal, 908

OBSCENE MATTER—

publishing, mailing, etc., 121, 122

OBSTRUCTION-

peace or public officer, etc., 84

of peace officer entering gaming house, 135

of railways, 567

OBTAINING—

by false pretenses, 397
passage by false ticket, 417
OFFENCES AGAISNT THE LAW OF MARRIAGE— 279

See Marriage.
OFFENCES AGAINST THE PERSON AND REPUTATION— 143
See Person.

OFFENCES AGAINST RIGHTS OF PROPERTY— 336
See Theft, False Pretenses, Forgery, Mischief.

OFFENCES AGAINST PUBLIC MORALS-IU.
See Public Morals.

OFFENCES AGAINST PUBLIC ORDER-46

See Public Order.

OFFENCES AGAINST RELIGION-114

F -e Religion.

VRRIAGE-279

sID REPUTATI0N-1«

lpERTy-336
RV, Mischief.

1-46

INDEX.

OFFENSIVE WEAPON—
definition, 4
unlawful use and possession of, 63

possession, 64

oarryinfT, 65

smugglers carrying, 65

carrying about the person, 67

at public meetings, etc., 68

near public works, 69

OFFICE-

selling, appointment, etc., 82
ofkial corruption, 77
disabilities by conviction, 80, 973

OFFICER—

judicial corruption, 77
employed in prosecutions, corruption of, 77
entrusted with execution of writ, misconduct of, 84
of justice, killing, 176
killing by, 178
And see Peace Officers.
Public Officers.

OFFICIAL CORRUPTION-77

OFFICIAL SECRETS-

unlawfuUy communicating, etc., 50, 51, 52

OIL WELL-

conveying water, etc., into unlawfully, 572

OMISSION—

to provide necessaries of life, 143
dangerous to life, duty to avoid, 144
to perform legal duties, homicide by, 191, 199-
See Neolioence.

ONTARIO-

" Cou\;t of Appeal " in, 2

*' Superior Court of Criminal Jurisdiction,'* 5

offences in certain parts of, 629

practice in, 875

provisions as to courts in, 875

speedy trials in, definitions, 877

summary trials in, definitions, 884

by magistrate in, 886

application of fines, 890
trial of juvenile offenders, definitions, 892

application of fines, 397
summary convictions, appeal, 933

returns in certain parts, 946
recovery of fines on estreated recognizance, 951
imprisonment in, special provisions, 967
Ckim. Law — 67

1067

r;iij

iii!

'1'! I|,

':!::!!!!

'I .'; ti i

.llll:'

1068

INDEX.

*'/

nil

.}' I"

ORCHARD-

stealing fruit, etc., from, 381, 382
destroying fruit, etc.. in, 684

ORDERS—

•of court, disobedience to, 83
for payment of money, forging, 512, 518
for delivery of goods, forging, 512, 518
for passage on railway, etc., 514

'ORE-

of metals, stealing irom mine, 382
indictment for stealing, 685

OUTLAWRY—

abolished, 974

OVERT ACTS—
in treason, 47
t limitation of time, 614

indictment must state, 679

special provisions as to indictment not to apply, 755

indictment not to apply, 755

OWNER—

definition,4

of any property against which offence is committed, may arrest offendei

618

OYSTER BEDS—

unlawful dredging, 337
indictment for, 681

OYSTERS-

capable of being stolen, 337
stealing, 375
indictment for, 681

PANEL-

of Jury, stealing, 371
See Challenok.

JCHY.

PARDON-

provisions as to, 976

PARENT—

may use reasonable force in correction of child, 27

duty to provide necessaries, 143

may justify battery in defence of child, 263, 264

PARLIAMENT-

levying war to intimidate, 46
conspiring to levy war to mtimidate 48,

committed, may arrest offender,

INDEX.

PARLIAMENT-Ccm<mMed.
disobeying act of, 83

publishing ^port of proceedings not libel. 297
PARTIES TO OFFENCES--28
See AocBssoRv.

Aiders and Abkttobs.
PARTNER—
theft by, 345

in mining claim, concealing gold, etc., 345
PAWNBROKER-

PEACE- " ' """' '" ''""'" ""' ''^'' '''
breach of, 52
articles of, 969

See Abtiolks of the Peace
Riot.

PEACE OFFICER-
defined, 4
justification in making arrest. 16-21

negect of, to suppress riot, 83
neglect to aid, 83

obstructing, in execution of duty 84
assault on, 254 ^'

arrest by, without warrant, 617, 619

PENALTY—

limitation of action for, 958

PENETRATION-

in carnal knowledge, 6, 269

PENITENTIARY

included in term "prison," 4
escape from, 112

imprisonment in, 966

[peremptory CHALLENGE-777
I bee Challenge.

PERJURY-

provisions as to, 85
subornation, 86, 96
punishment for, 97
lawful oath necessary, 88
mdictment, 89 •
evidence, 90
false oath is, 98

;:,3raS7'?'^'*'°''«Wal,98
lalse affidavit out of Province 99
false statements, 99 ^^'""^'^

1059

1060

INDEX.

TEUJIJBY— Continued.
fabricating evidence, 99
triable at Quarter SesBions, 605
provisions as to indictment, 680
when evidence must be corroborated, 795
evidence of child not under oath, 795
evidence of trial where committed, 800

PERSON-

definition, 4 <

stealing from the, 383

PERSON AND REPUTATION, OFFENCES AGAINST-
DuTiEs Tending to Preservation of Life—

duties — definition, 143

duty of parent, guardian, etc., 142

omissions dangerous to life, 144
) punishments, 144

abandoning infants, etc., 149

assaults by masters on servants, etc., 151
Homicide—

remarks, 153

definition, 205

when child becomes a human being, 205

culpable homicide, 206

procuring death by false evidence, 208

death within a year and a day,r208

killing by influence on the mind, 208

acceleration of death, 209

that death might have been prevented no excuse, 209>

treatment of^injury causing death, 209

Murder, Manslaughter, Etc.—

See Murder and Manslaughter.

Bodily Injuries, Etc.— 233
See Bodily Harm.

Assaults— 252

See Assault.

Rape and Procuring Abortion— 268

See Rape.
Abortion.
Offences Against Conjugal Rights, Etc.— 279

See Bigamy, Marriage, Abduction.

Defamatory Libel— 296
See Libel.

PERSONATION—

to obtain property, 538
at examinations, 538
of owner of stock, 539

INDEX.
PETIT LARCENY-

distinction between grand lareeny and, abolished, 307
PETIT TREASON-

what constituted, 205
PICKLOCK-

stealing by means of, 389
PICTURES-

obscene, selling, etc., 121
PIGEON-

capable of being stolen, 337
killing with intent, 376

PILLORY-

punishment by, abolished, 974
PIRACY— 74
PLACE—

district, county and. defined togethw, 2
PLANT-

stealing, 381, 382

destroying, 684

PLAY-

cheating at, 430

PLEA-

included in expression "indictment," 3

of justification in libel, 305

objections to indictment to be before, 701

to indictment, time, 710

in bar, 714

of corporation. 727

in abatement abolished, 752

refusal to plead, 752

I PLEDGE— '

unlawful, by attorney, etc., 342
|POISOX—

killing by, 174

attempt to murder by, 212

to cause bodily harm by, 240

administerinj? to procure abortion, 276

poisoning not an assault, 823
POLL-

challenge to, for favour, 779, 783

f>0LL-BOOKS—
stealing, 373
destroying, 580

fOLLiNG JURY-770

1061

III

if"

: II

' i'' i

;Mi!

i ./

i i:

1062

INDEX.

POLYGAMY—

provisions respecting, 287
POND-

mill-pond, damaging, 674

POOL SELLING—
betting and, 137

POSSESSION-

having in, defined, 2

of stolen goods, presumptive evidence of larceny, 33%

of stolen property, evidence on trial of receiver, 827

POST—

stealing, 380
damage to, 5<<)2

POST LETTER—

definition, 6

receiving stolen, 353
' stealing, 372
POST LETTER BAG—

definition, 6

receiving stolen, 363

stealing, 372

POST OFFICE—

definition, 6

stealing key nt, 372

forging postal stamps, 627

sections of act repealed, 983
POSTPONEMENT—

of trial, 710, 713

POWER OF ATTORNEY—

theft of property held under, 342
forgery of, 513, 523

PRACTICE—

of courts as to juries, saving clause, 787
in courts of Ontario, 875

PREGNANCY—

of woman sentenced to death, 850
PRESENTMENT—

included in term ** indictment," 3

PRESUMPTION-

of capacity to commit crime, person of fourteen and upwards, 8:

of sanity, 8

of compulsion of wife, none, 11

of larceny by possession of stolen goods, 333

PRETENSES-397

See False Pketenses.

PREVIOUS CONVICTION—

stealing domestic animals after, 374
stealing trees, etc., after, 378

INDEX.

PREVIOUS CONVICTIONS-Ccm<m«erf.
fences, etc., after, 380
plants, etc., in gardens, 381
not in srardens, 382
stealinflr after, 397
burglary, etc., after, 488
offence as to coin after, 5.55
damaging fences, etc., after, 582
trees, etc., 683
vegetables, etc., 684
indictment charging, 697
proceedings on, 791
proof of, 801, 802

may be given in evidence against receiver, 828
punishment after, 965

PRINCE EDWARD ISLAND-
" Court of Appeal " in, 2
"Superior Court of CriminalJurisdiction," 6
mcest m, unrepealed statute, 119 .
speedy trials in, definitions, 877
summary trials, special provisions, 886
trial of juvenile offenders, the same, 898
application of fines, 890
definitions, 892

general application of fines, 897
appeal from summary convictions, 897
return of convictions, 946
recovery of fines on estreated recogni^sanoes, 951
PRINCIPAL-

in first degree defined , 30
offence committed through agent, 30
m second degree defined, 31
all are, in treason, 35
See Accessory.

AiDEus AND Abettors.
PRISON—
definition, 4

escapes and rescues, 107, 113
See Gaol.

Penitkntiary.
PRISON BREACH-107.113
PRISONER-
removal of, 740
arraignment, 751
presence at trial, 756
statement of, to jury, 763, 764
procuring attendance of, as witness, 792
presence at taking evidence under commission, 794
statement of, before magistrate, evidence at trial, 80O

ill...

iii f:

i'lS,

lliii

.]'

;!?!:

F:.'ii

v-,.-

iili

If]

S.i

1064

INDEX.

PRISONERS OF WAR-

aasisting escape of, 111

PRIVY COUNCIL-
appeal to, abolished, 874

PRIZE FIGHT-

offences as to, 61, 62
PROCEDURE-

general provisions, 602

jurisdiction, 604 ^

procedure in particular oases, 606

compelling appearance of accused before justice, 627

procedure on appearance of accused, 644

indictments, 670

corporations, 727

preferring indictment, 728

removal of prisoners — change of venue, 740

arraignment, 751

trial, 766

appeal, 864

special provisions, 874

speedy trials of indictable offences, 877

summary trials of indictable offences, 884

trial of juvenile offenders for indictable offences, 892

costs and pecuniary compensation — restitution of proi)«rty,

summary convictions, 906

recognizances, 960

fines and forfeitures, 958

PROCEEDINGS AFTER CONVICTION-
punishments, 959

capital punishments, 966

imprisonment, 964

whipping, 068
sureties for keeping the peace, and fines, 968
disabilities, 973
punishments abolished, 974
par 'r>ns, 976

actions against magistrates, etc., 479
PROCESS-

ofiicer justified in executing, 12
erroneous, 14
irregular, 16

issued without jurisdiction, 15
PROCLAMATION—
under Riot Act, 56
unlawfully printing, 522
proof of, 522

PROCURING-

oommission of offence, 28

indecent act by a male on a male, 121

defilement of girl, etc., 126, 127

INDEX.

1065

ee, 627

ices, 892

m of proi)erty,

PROMISSOR\ NOTE- | ,

stealing, 393
obtaining execution of, by false pretenses, 414

by force, 448, 452
forgery of, S12, 616

PROPERTY—
definition, 4
defence of, 24

defence by one without claim of right not justified, 24
defence of real, 26

assertion of right to, how enforced, 26
stolen, compensation to purcha(<er, 900
restitution of stolen, 901

PROPERTY, OFFENCES AGAINST RIGHTS OF-307

PROSECUTION—

commencement of, what is, 616

PROSTITUTE—

procuring a girl or woman to become, 125
Indian woman, 130
loose, idle and disorderly person, 140
See Bawdy-Housk.

PROVOCATION-
to assault, 23

to reduce murder to manslaughter, 156, 161, 162, 182
provisions as to, 211

PUBLIC MEETINGS-

coming armed within two miles of, 68
lying in wait for person returning from, 68

PUBLIC OFFICER—
definition, 4
breach of trust by, 80
obutruoting, in execution of duty, 84
uasault on, 254

PUBLIC ORDER, OFFENCES AGAINST-
treasun, 46
levying war, 47
treasonable offences, 48
conspiracy to intimidate legislature, 48
asHaults on the Queen, 49
inciting to mutiny, 49
enticing soldiei > oi seamen to desert, 49
resisting warrant to search for deserter, 50
enticing militiamen, etc. to desert, 50

unlawfully obtaining or communicating official information, 51
breach of ottioial trust, 52

PUBLIC SERVICE—

persons in, unlawfully communicating oilicial information, 51, 52
stealing by persons, 356

1066

INDEX.

PUBLIC SERVICE— Continued.

refusal to deliver up books, etc., 369
false statement of receipts, etc., 421

PUBLIC STORES—

offences as to, 425

PUBLIC WORKS—
protection of, 69

PUBLIC WORSHIP—
disturbing, 115, 116

PUBLICATION—

of false news, 73, 74
of libel, 296, 297

QUALIFICATION-

of grand jurors, how attacked, 752
of jurors, 771

QUARRY-

punishment for leaving unguarded so as to endanger life, 250»

QUARTER SESSIO.^S-
jurisdiction of, 604

QUEBEC—

"Court of Appeal "in, 2

" Superior Court of Criminal Jurisdiction," 5

fraudulent seizures ol land in, 422

speedy trials in, definitions, 877

summary trials, 884

application of fines, 890
trial of juvenile offenders, definitions, 892

application of fines, 897
appeal from summary convictions, 933
estreated recognizances in, 951, 955
imprisonment in, special provisions, 967

QUEEN-

treason by killing, etc., 46
See Theason

QUI TAM ACTIONS, 104

; <l

RACE—

betting on, 137

RAFT—

breaking, injuring, etc. , 671

RAILWAY-

intentionally endangering safety nf persons on, 245
negligently endangering safety, 245
tickets, stealing, 373

ndanger life, 250>

INDEX.

-RAILWAY- Continued.
stealing on, 392
forging tickets, 514
mischief on, 567
damage to, with intent, 673
conveyance of cattle by, 587
breach of contract to carry mails by, 590
RAPE—

boy under fourteen years cannot commit 8 -^m
provisions respecting, 268 ^"™™«. «. -«*

RECEIPT—

false, warehouseman giving, 423
false, statements in certain 424
forgery of, 512, 520

RECEIVING STOLEN GOODS-

provisions as to, 347

stolen post letter, 363

other cases, 354

when receiving complete. 355

after restoration to owner, 35'>

proceedings and trial, 697, 827, 828

RECOGNIZANCE-
stealing, 371
provisions as to, 950
when and how estreated, 953
special provisions for Quebec, 965
to keep the peace, 969

RECORD—

s?etSl;'ir''^«^^""''-^-*-nV'3
form of, on trial on indictment, 846
RECORDER-

has powers of two justices, 605
can hold a summary trial, 884
can try juvenile offenders, 892

REFORMATORY-

term "prison "includes, 4
imprisonment in, 967

of deeds, false entry in, 511
of births, etc., forging, 512
forgmg public, 513
of court, forging entry in, 513
destroying, etc., any, 530
false extracts from, 530
littering false certificates of, 531
public, false entries in, 531

loer

II!

T ~

1068

INDEX.

HELTGION, OFFENCES AGAINST—
blasphemous libels, 114
interfering with, 115

HEPLICATION—

expression " indictment " includes, 3

HEPLY-

right of Attorney-Gfcneral to, 757
of counsel, 765
evidence in, 766

HEPRIEVE—

may be granted by court, 960,961

REQUESr-

for payment of money, forging, 513, 521

HESPITE-

ci execution of sentence, 960, 961

RESCUE-107

See Escapes and Rescues.

BESERVOIR—

damaging flood gate of, 574

RESTITUTION-

of stolen property. 901

RESTRAINT OF TRADE-

oifences as to, 589

REVENUE-

false statement of, by official, 421
stamps for, counterfeiting, etc., 626

RESVARD-

taking, for helping to recover stolen property, 105
for return of stolen property, advertising, 106

RING DROPPING-
trick of, 33, 312

RINGING THE CHANGES-

obtaining money by trick of, 311, 334

RIOT-

suppression of by magistrates, 21

by any one, 21
necessary force may be used, 22

jiersons subject to military law justified in obeying command to suppraii, 22
definition of, 55
punishment, 55
reading Riot Act, 56
destruction of building by, 57, 53

mVER-

navigable, damaging, 674

yingr command tj suppress, 22

INDEX.
ROAD—

turnpike, property in, how averred, 681
ROBBERY—
remarks on, 433
agrgravated, 444
punishment, 446

assault with intent to commit, 447
stopping mail with intent, 447
ROUT-

provisions as to repeal, 56

S.
SAILOR-

enticing to desert, 49
carrying arms, 67
buying, etc., necessaries of, 428

advance note of, not an order for payment of money 5ia
preventing from working on ship. 595 ^'

SALE-

of things unfit for human food, 133
fraudulent, of property, 422
by false weights, 431

SALE OF OFFICE-82
SALMON RIVER—

throwing lime in with intent to destroy fish, 574
SALVATION ARMY—

meetings of, not an unlawful assembly, 54
SANITY-

always presumed, 8

SEA-BANK—

damaging, etc., 573

SEAL-

great, forgery of, 521
of court, etc., forging, 522
formality of a, on magistrates' documents, 948
SEAMEN— 49
See Sailob.

SEARCH WARRANT-

provisions as to, 638
public stores, 641
gold, etc., 642
timber, etc., 642

liquors near Her Majesty's vessels, 642
Kirl m house of ill-fame, 642
gaming house, 643
vagrant, 644

1069<

^ir^^

1070 INDEX.

SECURITY—

valuable, defined, 5
See Valuable Sbccrity.

SE DEFENDENDO—
See Self Dkfknob.

SEDITIOUS OFFENCES—
unlawful oath^ 70
definition 72

SEDUCTION—

of girl between fourteen and sixteen, 123

under promise of marriage, 123

of ward, servant, etc. , 124

of female passengers on vessels, 124

SEIZURE-

thinjfs under, stealing, 319, 340
fraudulent, of land, 422

SELF-DEFENCE—

to repel unprovoked assault, 22

provoked assault, 23
from assault accompanied with insult, 24
committing homicide in, 202

SENTENCE—

lawful, officer justified in executing, 12
erroneous, execution of, 14
without jurisdiction, 15
of death, false certificate of, 106
on trial, special provision for Nova Scotia, 876
of death, form of, MQ
how carried out, 961

SEPARATE TRIALS-

when parties entitled to, 696.

SERVANT-

correction of, by master, 27

duty of master to provide necessaries for, 14;i

assaults on, 1.51

may justify battery in defence of master, 263

troublesome, renaoving from house by force, justifiable, 2J4

taking his master's food for feeding cattle not theft, 339

larceny by, 355

SESSIONS OF THE PEACE—
See QuAHTKK Sessions.

SEVERANCE OF DEFENCE—

parties entitled to, 696
separate challenges ou, 786

INDEX.

1071

SHERIFF—

is a "peace officer, "4
proclamation by, in case of riot, 56
challenge to array for partiality, etc.. of 774
duties of m executing sentence of delth,' 960
SHIP—

discipline on board of, justified, 27

placing, etc., explosives substance in sfiHin„ « .

murder, 212 ' ^"'"^^ ^'"^ *«• etc,, with intent to

with intent, 241

unseaworthy, sending or taking to sea, 251
steahng in, 390 '

setting fire to, 558

attempt, 563
attempt to damage, by explosives, 565
castmg away, etc., 570
destroying or damaging by explosives, 573
preventmg seaman, etc., from working on. 695

SHIPWRECKED PERSON-

definition, 4

previating, from saving his life, 250
SHOOTING-

attempt to murder by, 212

with intent to maim, etc., 233

at Her Majesty's vessels, 239
SHOP—

breaking and entering, 480
SIGNAL-

of railway interfering with, so as to endanger life 245

to endanger property, 567 '

marine interfering with, 570

SIMILITER-

in caption of record, 846

judgment not arrested for want of, 854
SMUGGLERS-

carrying offensive weapons, 65
SOCIETY—

unlawful, 70, 71

SODOM Y-1 16

See Abominable Crime.

50LICITING-

to commit offence, 30
to murder, 224

See AccEssoRv.

Aider a.\d AaETTor..

-■.—.«. .„^m

1072

INDEX.

SOLICITOR GENERAL—

expression " Attorney General " includes, 1

SOLITARY CONFINEMENT—
punishment by, abolished, 974

SOVEREIGN—

treasonable offences against, 46
See Thbason.

SPEEDY TRIALS—

of indictable offences, provisions for, 877

SPRING GUNS—

and man-traps, setting, 243

STACK—

of com, etc., setting fire to, 661
of grain, etc., threats to bum, 565

STAMP—

included in expression "property," 4
counterfeiting, 526, 527

STATEMENT—

ly prisoner to jury, 761

STATEMENT OF CASE—

by judge for Court of Appeal, 864
by justices for review, 944

STATUTE-

imperial, offence against, 6
disobedience to, 83

STAY OF EXECUTION-

of sentence of death by pregnant woman, 850
on judge's report, 961

STEALING-

See Larceny.

STEAMBOAT—

ticket for passage on, stealing, 373
forging, 514

STENOGRAPHER'S NOTES, 655, 715, 869

STILE-

stealing, 380
destroying, 582

STOCK—

included in term " valuable security," 5
transfer, etc., of, forging, 512
personating owner of, 539

STOLEN GOODS—

See Reobivino Stolen Goods.

INDEX.

STORES-42r)

See Public Stores.
STRANGLING—

attempt to coinmit murder by, 212
with intent to commit offence, 28!)

STUT'EFYING—

Kirl or women with intent to have carnal connection, 12:.
with intent to commit indictable offence, 239
SLTBORNATION OF PERJURY-85

See Perjury.
Sl'BPCENA—

for witnytis on preliminary inquiry, 645
out of i)rovince, f)48

srBSEQUENT OFFENCE-
See Pkevious Conviction.
SITFFOCATIXG—

attempt to commit murder by, 212

with intent to commit indictable offence, 2.S!)
SriCIDK—

abettor in, guilty of murder as nrincipal, ;«

aiding and abetting, 22G

SlFxMMARY CONVICTION-

in'oceedings on, <io(j

SLTMMARY TRIALS-

of indictable offt^nced, provision for, 884
not limited to cities, 885.

smiMoxs—

for iippearance of accused, 032. 634
SlfNDAY-

warrant may be issued and executed on, r.3(!
jury may return verdict on, 850

SITPERIOR COITKT OF CRIMINAL JURISDIUTIUN-

definition, 4
jurisdiction of, (504

SUPREME COURT OF CANADA-

appeals to, 873

SURETIES—

of bail, rendering, iJ50

for keepnig the peace, etc., 968

articles of the peace, 969

SURGEON-

when justified in tjerforming ojjeration, 27
See Medical Phactitionkr.
SURVEYOR-

removing landmark placed by, 582
C'uiM. Law— 68

1073

1074

INDEX.

'Is

'^M

' '-Q

■ »

mntB^M

^'t^^s

^Bmjib

:
(

T.
TAKING-

necessary in theft, 308

TALES-

ordering on trial, 786

TELEGRAPH—

damage to, 56!^!

TELEPHONE—
damage to, 5(39

TENANT-

atealing fixtures, 370
injury to building by, 581

TENANT IN COMMON—

theft by, 345

indictment may name one as owner of property, 081

TENDER-

of payment, on distress warrant,

TERMS-

used in code, explanation of, 1

TERRITORIAL DIVISION-
definiti(ni, 5

TESTAMENTARY INSTRUMENT—

definition, 5

stealing, 370

forgery of, 512

forged, obtaining probate by, 524

THEFT-

See Larceny

THREATS-

compulsion by, when an excuse, 9

procuring connection with girl or woman by, 12(!

to murder, 222

extortion by, 451, 454

to burn, 565

to injure cattle, 580

articles of the jieace for, 969

THRESHING MACHINP]—

damage to, 577

TICKETS-

railway, etc., stealing, 373

forging, 514 /

INDEX.
TIMBKR-

found adrift, stealing, 380

destroying, etc., 571

ttearch warrant for, 642
TIM?:-

limitation of, for prosecution, 013

TITLK-

of Act, 1

to goods, document of, defined 2
to lands, 2 '

See Document of Title
TRADE— '■

conspiracies in restraint of, 58!)

combinations in restraint of, jjso
TRADE MARKS-

forgery of, 533, 5;«

TRADE UXION-

not unlawful, 589

TRAIXING-

unlawful, to use of arms, 5!)
TRAVERSE-

to indictments, 710, 711

TREASON—

iiccessories after the fact to 47

indictment for, Jl^9'''^"^**'**^''^*P'^'*««"-ith Her Alaje.ty, 4,S
si>ecial i)rovisions as to trial, 7.55
TRKASOXABLE OFEEXCES-

conspiracy, etc., to dis,>ose Her Majesty, 48

to le^•y war against, or compel Her ilaiesfv f .

^o .'"timidate tlu- Parlian.ent of "re S frc" r^' "''«• .'"ensures, 48

!" •"'I'.ce foreigners to invade Her M ".^ts^"^ " "'' '^'^"''''' ^^
iiulictnient for, 079 ^Hajesty s dominions, 48

TRi:ASrRE-TROVE-

ciincealing, 329

conspiracy to conceal, 430
TRKK.S-

stealing, 377, 377, 378

unlawful possession, 38o

<l.-stroyi„g or damaging, 583
TRKSPASS-

"'^cessary force may In. used to resist, 24, 25

1075

1076

INDEX.

TRIAL-

<m indictment, 75(5
speedy trial, t>77
nummary trial, 884
(»f juvenile offenders, 892
See New Trial.

TRICK-

larceny by, 311, 334

obtaining by false pretenses, 399

TRUST—

breach of, by public oificer, 80
criminal breach of, 417

TRUSTEE-

expression defined, .5

TURNPIKE-

road, property in how laid in indictment, (581

UNDERTAKINCi-

for payment of money, forging, 5!1>
seaman's advance note is, 519

UNDERWRITERS—

setting fire to, etc., ship with intent to defraud, ^>iV£

UNDUE INFLUENCE-

to obtain favours from (Government, 78
municipality, 81

UNLAWFUL ASSEMBLY-

definition, 52
punishment for, 5(5

UNLAWFUL COMBINATION-

in restraint of trade, r)89

UNLAWFUL CONSPIRACY-

nieaning of term "unlawful," 59ti

UNLAWFUL DISCHARGE—

of prisoner, IV-i

UNLAWFUL DRILLING-

and training to use of amis, 59

UNLAWFUL OATHS-

to commit certain offences, 70
eonii)ulnion against, 72
administering, 101

UNLAWFUL SOCIETIES -70, 71

UNLAWFUL WOUNDIN(;-237

INDEX.

UNNATURAL OITKNCK-
provisions reHpecting, llti
See ABOMr.VAHLR Cui.mk.

(rXSKA WORTHY SHIPS-

sending and taking to nea, '2')l
UTTKRTNO-
intent in, .504

forged document, ;-)21, 523, '>3n, .531
counterfeit coin defined, .541

provisions as to, 541, .552, 554, 5,55

1077

V.
VAURAXT-

10086 idle and disorderly persons defined as, 140
search warrant for, (i44

VALUATiLK SECURITY-

definition, 5, 3!)4

stealing from post letter, .-^72

stealing from the perscjn, SH3

stealing, in dwelling house, 384

destroying, etc., 3'J3

obtaining execution of, by false pretense, 414
c'ompelhng execution of, by force, 448
extortion of, by letter, 44!)

by threats, 451, 4,54
forgery of, 513

VART XCE-

a»i'.;.'?ing at tri.al for, 82!>
in summary convictions, DOS
VK(4ETARLE PRODUCTS-

stealing (nnn garden, etc., 381, SH2
destroying in garden, etc., 5.S4'
VENIRE I)E NOVO-

Not provided for in code.
VEXUE-

-tfences counnittwl on transit, etc., (;*>7
sr-itement of, in indictment, 671
jurisdiction of courts, 728
<3hange of, 740

VEKDICT-

J"'!^'e n..t bound to accept first, 770

ot attempt when allowed, 811

;vh,.n atten.pt charged full offence proved, 817

for a nunor ntf.,,ee included in offence charged 818

-f concahn-nt of birth on charge of child nmrder S2«

1078

INDEX.

VERDICT -Con<mMfrf.

jury retiring to consider, 84t>

muy be taken on Sunday, 84{(

judgment not arreHted fur formal defects in, K54

VESSELS—
See Ship.

VEX \TI01TS INDICTMENTS-

provisions now extended to all cases, 721>

VIADUCT-

damuging with intent, 573

VIEW-

by jury on trial, 82!t

VOLUNTARY ESCAPE—

V hat is, 108

VOLUNTARY OATHS-

adniinistering, 101

WALL-

of the Hea, etc., damaging, 573

WAR—

levying by subject of state at iteace, 47
prisoners of, assisting escaix*, 111

WAREHOUSE—

keejjers of, giving false receipts, 42,S, 424
breaking and entering, 480, 4S.3

WARRANT-

officer justified in executing, 14

irregular, Ifi
arrest without, in wliat cases, (il(i

remarks on, 018
for offence out of jurisdiction, (»30

on the high seas, ()32
for apprehension of offender, (VST)
execution of, etc., 03(i
search warrants, (i3H

special cases. Ml, (543

for vagrant, C44
for witness, (]4(J-G48
of remand on inquiry, (552
of commitment, 65!)
of deliverance, (5(58

fr: arrest of jx-rson about to abscond, (5(58
Ind'a, included in expression "document of title of prufxls,":
doc.:, the same, 2

INDEX.

fordeliveryof^cHxlHtheIilce,2
forflrery of, flig, 51;,

\VARRANT OF ATTORNKY-
stealing, 371

^^^««^),^7.*^0RPAYMKNT-

'"cluded mexpresHio.,.. valuable-

forgery of, 518 '^amaWe security, " 5

WEAPON-

See Offensivk Wjjapo.v
WEIGHTS AND MEASURES-

fal«e, selling goods by. 430
WHARF-

stealing goods from, 330
WHIPPING-

punishment of, 968
WIF.^:—

c-npulsion of not presumed, 11

not accessory after the fact bv r • •

of offence, 40, 41 '"'* ^^ ''^^'^'ving, ,tc.. husband after .
duty c f hM«band to provide „« ■ ^^nnnission

^^^-^inggo..3ofhur.r3r5"s^"

Sin;:To"^"*'^'^'--*-"ent'. include,
forgery of, 512

forged, obtaining probate by, 524
WITCHCRAFT-

I'retending to pmctice, 433
WITXES8--

I'rmiring attendancf' of of .■
'^' '-'J. to remain in atL idiri' thr^'J"'"'^^' '''
. compelling attendance "S^ "''""^''"»*' ' »1
«ick, ev dence t«I-«„ '

-tofCanrd:,;J4 ""'""'^•^'■-'"^
WOMAN, OFFE.VCF>^ w..r

J'KM.VtE,

Rape.
WOOD-

«t'tting fire to, 5«4

I WOOLEN GOODS-
Btealing, 889

>fiiii.iii!wiimwn

-"I^PP>^

1080

INDEX.

WORDS—

provocation to assault by , 23
kiUins by, 156, 165, 182

WOUNDING—

with intent to murder, 212

to maim, etc., 233
unlawful, 237 v

public officer in execution of duty, 239
and robbery, 444

WREOK-
definition, 6
stealing, 392
causing, 570
preventing saving of, i>71

av'rit— . , . «,

misconduct of officei- entrusted with executum, b4
stealing, 371
of election, stealing, 373
destroying, 580

WRIT OF error—

abolished, 804

WRITING-

definition, 6

destroying, falsifying, etc., by director.^, etc., 418

by clerks, 419
included in term "document " as to forgery, 509

YARN—

cotton, stealing, etc., 3S.1

4417 4

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Books

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

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

See other formats