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TREATISE
ON THE
CRIMINAL LAW
OF CANADA.
SECO3ST3D IE ID I T I O UST _
SAMUEL ROBINSON CLARKE, ESQ.,
AND
HENRY PIGOTT SHEPPARD, ESQ.,
OF O8GOODB HALL, BARRI8TM8-AT-LAW.
TORONTO :
T as c
31 A.VD 33 KIJ.-O STEEKT W«sr
1882.
Entered according to Act of the Parliament of Canada in the year of Our
Lord one thousand eight hundred and eighty-two, by
SAMUEL ROBINSON CLARKE,
in the office of the Minister of Agriculture.
PREFACE
TO THB
SECOND EDITION.
The favor with which the former edition of the CRIMINAL
LAW was received by the profession has induced the authors to
venture on a new edition.
They have condensed the work somewhat, and have embodied
in it both the decisions of the various provinces of the Dominion
and those contained in the English Law Reports down to the
end of the year 1881.
A collection of the cases determined in our criminal courts
cannot but be useful under a system of government like our
own, whose aim is the substitution of one criminal jurisprudence
and procedure for the somewhat diverse systems obtaining in the
different provinces at the time of confederation. Should this
work to any extent aid in this consolidation, the aim of the
authors will be accomplished.
S. R. C.
H. P. S.
OSGOODE HALL, TORONTO,
March 1st, 1882.
TABLE OF CONTENTS.
INTRODUCTORY CHAPTER
PABB.
The English Criminal Laws prevailing in the Dominion 1
Extradition 10
CHAPTER L
Crimes in General 49
CHAPTER H.
THE PERSONS CAPABLE OF COMMITTING CRIMES, AND THEIR SEVERAL
DEGREES OF GtJILT.
Infants 64
Persons non compotes mentis 66
Persons in Subjection to the Power of Others 68
Ignorance 70
Principals, in the First and Second Degrees 70
Accessories, Before and After the Fact... 75
CHAPTER IH
OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE PUBLIC
PEACE, OR THE PUBLIC RIGHTS.
Coinage offences r 80
Foreign Enlistment Offences 81
Seducing Soldiers or Sailors to Desert 86
Piracy 89
Customs Offences 92
Excise Offences 95
Compounding Offences 107
Offences by Persons in Office 108
Sale of Offices 110
Monopoly 115
Champerty and Maintenance 117 .
Bigamy 122
Libel 131
Riot 149
Forcible Entry or Detainer. „ 152
Nuisances 156
Obstructing the Execution of Public Justice 185
VI CONTENTS.
PAGE.
Escapes and Prison Breach 187
Parliamentary Offences 189
CHAPTER IV.
OFFENCES AGAINST THE PERSON.
Murder 192
Manslaughter 199
Justifiable Homicide 207
Excusable Homicide 208
Concealing Birth 208
Abortion 209
Rape 210
Assault and Battery 215
Kidnapping 224
CHAPTER V.
OFFENCES AGAINST PROPERTY.
Burglary 225
Robbery 231
Larceny 232
Stealing from the Person 252
Embezzlement 253
Obtaining by False Pretences 260
Receiving Stolen Goods 272
Forgery 275
Cheats and Frauds 287
False Personation 288
Malicious Injuries 289
Arson 291
Perjury 298
Conspiracy 309
CHAPTER VH.
Annotations of Miscellaneous Statutes 317
CHAPTER VIII.
Evidence 346
CHAPTER IX.
Pleading 382
CHAPTER X.
Practice . . 403
TABLE OF CASES CITED.
Abel, Ex parte 456
Adams, Ex parte 469
Agnew v. Stewart 431
Allan v. McHeffey 118
Allen v. L. & S. W. Ry. Co. 206
Allen v. Murray 10
Allen and Thompson 337
Allison, Re 105, 416
Andrew v. White 10
Andrews v. Wilson 133, 146
Anderson, Ex parte 39
Anderson v. RadclifFe 121
Anderson, Re 10, 14, 19, 20, 21,
26, 27, 29, 30, 34, 35, 36, 38,
39, 40, 43, 44, 192, 199, 296,
347, 374, 425, 426, 448.
Anderson v. Todd 1
Anonymous 149
Appleton v. Lepper 407, 413
Armstrong v. McCaffrey 437, 438
Arnold v. Rlaker 165, 166
Ashley v. Dundas 70, 205
Askin v. London District Coun-
cil 9, 108, 109
Aston v. Wright 377
Atalaya, The 85
Atty. Gen. v. Beaulieu 483
Boulton 183
Dockstader 478
Halliday 318
Laviolette 478
Mackintosh 317
Macpherson 478
and Myers 94
Niagara Falls
Inter. B'dgeCo. 182
Perry 181
Spafford 94
Walsh 94
Warner 10
Atwood v. Bosser 335
Aubrey q. t. v. Smith 8, 121
Baby q. t. v. Watson
122
Bailey's Case 449
Baker, Ex parte 481
Baker and Corp. of Saltfleet 172
Baldwin q. t. v. Henderson 8
Ballard v. Pope 109
Bancroft v. Mitchell 49
Barber v. O'Hara 451
Baretti v. Pirie 133
Barnaby v. Gardiner 457
Barrett, Re 96, 347, 467
Bartlett, Ex parte 472
Bartlett v. Pratt 165
Basterach v. Atkinson 167
Bateman v. Black 167
Bates, Re 420, 461
Battersbey v. Udell 319
Bazin and Crevier 468
Beasley q t. v. Cahill 8
Bedard, Re 190
Beebe, Re 22, 425, 426, 449
Belford v. Haynes 164, 167
Bennett v. Herring 122
Benns q. t. v. Eddie 8
Berryman v. Wise 404
Bigger, Re 451
Birmingham 97, 102, 355, 374
Blanchard v. Richer 141
Blossom, Ex parte 314, 447,
481, 482, 483, 506, 513
Boivin v. Vigneux 104
Boston and Lelievre 468
j Boswell and Loyd 153, 155
: Boucher, Re 419
| Boulton v. Fitzgerald 9
| Bouvier, Re 17
Boyer, Ex parte 463
Boyle, Re 454
Bradlaugh v. Reg. 384
Brash q. t. v. Taggart 472
Breakey v. Breakey 122, 124, 129
j Breeze, Ex parte 100
I Bright, Re 84
i Brisson v. Lafontaine
Brodeur, Ex parte 406
Brook, Re 475
Brook v. Brook 128
Bross v. Huber 159, 407
Brossoit v. Turcotte 141
Brown v. Dalby 50, 52
Vlll
TABLE OF CASES CITED.
Brown, Ex parte 44, 420
Cooper, Re 431
Brown and Gugy 1 56
Cooper v. Wellbanks 176
Brown v. Hirley 131
Corby v. McDaniel 8
Brown v. Maltby 495
Corignan v. Harbor Comrs.
Brown v. McKeel 182
Montreal 409, 424
Brown, Be 444
Cornwall v. Reg. 224, 393, 395,
Brown v. Shea 205
450, 452, 473
Browne v. Carter 357
Corp. of Montreal v. Doolan 216
Brydges, Ex parte 201,431
Corp. of Wellington v. Wilson 176
Budenberg and Roberts 446, 519
Corrivean, Ex parte 480
Burley, Re 19, 24, 29, 30, 31,
Corwin, Ex parte 399
32, 33, 34, 38, 40, 44, 47, 231
Cote, Ex parte 438
Burton, q. t. v. Young 357
Cotte, Ex parte 454
Bustin, Ex parte 10, 465
Counhaye, Re 29, 37
Butcher v. Butcher 152
Cousine, Ex parte 97
Butt v. Conant 472
Cousins v. Merrill 132, 379, 508
Coward v. Baddeley 216
C
Cox v. Lee 133
Crane v. Holland 512
Caldwell, Re 25, 29, 37, 30, 355
Crawford v. Beattie 385, 408
Campbell v. Flewelling 99, 425
Croft v. Stevens 145
Campbell v. Reg. 473,517
Cronyn v. Widder 6, 157
Carmichael, Re 431, 447, 453, 454
Crosby v. Leng 50, 51
Carpenter v. Stanley 340
Cross v. Richardson 378, 379
Carr v. Tannahill ' 117, 118, 120
Croukhite v. Sommerville 426
Carrick v. Johnston 162, 173
Crow, Re 405, 427, 428, 433
Caswell v. The St. M. & P. L.
Culton v. Carter 172
J. R. Co. 174
Culvillier v. Munro 190
Caudle v. Ferguson 204, 404, 407
Gumming, Ex parte 461
Caverley v. Caverley 234
Cuthbert v. The Commercial
Chancey v. Payne 102
Trav. Association 142
Chesapeake, Re 18, 24, 30, 32,
33, 38, 43, 44, 53
D
Chowne v. Baylis 52
Church, Ex parte 457
Dagenay v. Hunter 53
Clapp v. Lawrason 428
Daley, Ex parte 375, 471
Clarke v. Stevenson 346, 370
Daniels v. Tp. of Burford 112
Clarke, Re 83, 439
Dartnell, Re 109
Clarke q. t. v. Calkin 345
Davidson, Ex parte 479
Clarke v. Wilson 53
Davidson v. Boomer 10
Clemens, q. t. v. Bemer 335
Davies, Ex parte 469
Clifford v. Brandon 150
Davis v. Lennon 222
Cochran v. Lincoln 445
Davis v. Stewart 422
Colbeck v. Corp. of Brantford 174
Davison v. Duncan 140
Cole v. Maxwell 165, 170
Daw v. Metro. Board Co. 87
Coleman, Re 474
Dawkins v. Lord Paulet 136,
Coll, Ex parte 408
139, 142, 145
Complaint Bustard and Scho-
Dawson v. Fraser 425, 438
tield, Re 477
Deal, Re 105
Conklin, Re 392, 408, 410, 41 1,
Deercourt v. Corbishley 204
412, 478
Deguire v. Despins 1 10
Cormick v. Wilson 133, 146
Delaney v. Macnab, Rr 427, 446
Connolly v. Woolrich 129, 130
Delisle and Delisle 112
Connors v. Darling 404. 407, 415, 447
Demers 469
Content v. Lamontagne 430
Dennis v. Hughes 172
Cook, Ex parte 50
Derouin v. Archambault 141
Cooke v. Wildes 144
Devy v. Fabre 147
Coolan v. McLean 445
Dewernay, Ex part,e 454
TABLE OF GASES CITED.
IX
Dickenson v. Burrell 121
Dickson v. Crabbe 422, 428
Dillingham v. Wilson 6
Dimes v. Petley 159
Donelly, Be 105, 106
Donnelly, R* 419
Donogh, q. t. v. Longworth 334
Donovan. Ex parte 290
Doray, Ex parte 461
Dougall v. Beg. 511
Downing v. Capel 203
Doyle. Re 458
Drake, g. t. v. Preston 334
Drew v. Baby 159
Dnboird, Re 405
Duboird v. Boivin 406, 419
Dugdale v. Beg. 61
Dumonchel, Ex parte 339
Duncan, Ex parte 103, 461
Dunlop, Ex parte 412
Dunlop v. Rfg. 514
Durette v. Cardinal 141
Durragh, q. t. v. Paterson 334
Duval dlt Barbinas v. Beg. 379,
3SO, 508, 511, 515, 522
Dwight v. Ellsworth 107 !
E
Eagles, Ex parte 407,313,416
Eastabrook, Exparte 318, 461
Eastman v. Reid 417
East Nissouri v. Horseman 112
E. C. Ry. Co. v. Broom 13
Edwards v. Kerr 51
Egginton v. Lichfield 105
Elkin v. Janson 347
Elliott v. Richardson 121
Ellis v. Power 358
Evans v. Williams 318
Fabrique of Montreal, The, Ex
parte 461
Fairman v. Ives 138
Falconbridge q. t. v. Touran-
geau 413
Falkland Islands Co. v. Beg. 523
Farrer v. Close 116
Ferguson, Ex parte 459
Ferris v. Irwin 254, 256
Filiau, Ex parte 339, 468
Findon v. Parker 120
Fiset, Ex. parte 463
Fish v. Doyle 10
Flannagan v. Bishop Wear-
mouth 340
Foley v. Tucker 204
Foot* v. Bullock 9, 111
Forrester v. Clarke 206
Fortier v. Mercier 53
Foster, Exparte 46
Foster and Tucker 331
Fonrnier and Olivia 181
Frank v. Carson 129
Frank, Ex parte 381
Fraser v. Dickson 433. 47 5
Fraser, Be 107
Fredericton v. Beg. 4
Friel v. Ferguson 404, 407, 408, 413
Gage v. Bates 179
Ganong v. Fawcett 300
Gaston v. Wald 10
Gauntlet, The 82, 86
Gauthier, Ex parte 459
Genest v. Xormand 143
George v. Beg. 523
Georgian, Be 323
Georgian Bay Tr. Co. v. Fisher 10
Gibb v. Tilstone 521
Gilbert v. Campbell 434
Gilbert v. Gooderham 359
Gillespie v Wixon 9
Glass v. O'Grady 222
Glass v. Wigmore 188
Golding, Exparte 416
Goodhue, Be 5
Gordon v. Fuller 10
Gough v. Morton 447
Gould v. Cowan 244
Graham v. Crozier 141
Graham v. Grill 109
Graham v. McArthur 375
Grant q. t. v. McFadden 335
Grant v. Lockhead 467
Gray v. Reg. 499
Gugy, Ex parte 148, 476, 477, 479
Haacke v. Adamson
Hadley v. Perks
Hadley v. Taylor
Haidee, The
Hall v. Carty
Hall's case
Hall's estate, Be
Hallock v. Wilson
Hambly v. Fuller
422
205
169
410
275
364
124
10
10
Hamilton &N. W. Ry. Co., Be 4
Handock v. Baker 207
Hanna v. De Blaquiere 141
TABLE OF CASES CITED.
Hargreaves v. Deddanes 410
J
Harrington v. Long 120
Harris v. Cooper 130
Jackson v. Kassel • 303
Harrison v. Bush 137
James v. McLean 10
Harley. Ex parte 461
Jarvis, Ex parte 381
Harold v. Corp. of Simcoe 176
Jenner v. A'Beckett 132
Hartley v. Russell 120
Johansen, Ex parte 89
Hartly v. Hearns 10
Johnson v. Williston 434
Hartly v. Hindmarsh 377, 411
Johnston v. Boyle 171
Hartt, Ex parte 422
Johnstone v. Odell 390
Hawkeshaw v. District Council
Joice, Re 470
of Dalhousie 175
Jones v. Glassford 438
Hawkins, He 450. 451
Jones v. Ross 413
Hawkins v. Baker 166, 167
Jordan v. Gibbon 207
Hayle v. Hayle 51
Judge Re 475
Heaney v. Lynn 509
Julien v. King 390
Hearle v. Ross 10
Justices of York, Re 443, 445
Hearne v. Stowell 141
Hebert, Ex parte 97
K
Helps and Eno 442
Henderson v. Broomhead 136
Kalar v. Cornwall 373
Hennessey, Re 416
Keating and Lush 272
Henry v. Little 377
Keenahan q. t. v. Eglesoii 335
Herbert, Ex parte 462
Kellet, Re 459
Herbert q. t. v. Dowswell 404
Kelly v. Tinling 146
Hesketh v. Ward 10
Kelly 7. t. v. Cowan 335
Hespeler and Shaw 319, 336,
Kent v. Olds 441
457, 458
Kermott, Re 34, 39. 40
Hill v. Hogg 147
Kerrv. Brunton 117, 119
Hillary v. (lay 152
Kerr v. Burns 7
Hilton v. Eckersly 116, 117
Kerr v. Reg. 199
Hilton v. Woods 120
King v. Orr 482
Hodgins v. McNeil 9, 127, 128
Kirk patrick v. Asken 406
Hogle v. Hogle 298, 299
Knowlden v. Ret]. 486, 487
Hogue, Ex parte 95, 98, 99
Kokhine v. Snadden 524
Holder, Ex parte 406, 418
Konigs, Re 26, 35
Holliday v. Ontario Farmers'
M. Ins. Co. 141
L
Holltngham v. Head 346
Holman, Re 405
Lahayes, Ex parte 468
Honilston v. Parsons 336
Lai v. Stall 337
Hook, Ex parte 290
Lake, Re 466
Hooker v. Gurnett 109
Lalonde, Ex parte 457, 458
Hopkins v. Prescott 112
Lamirande, Ex parte 23, 32, 47, 275
Hornby v. Close 117
Lamothe v. Chevalier 53
Horseman v. Reg. 309, 312, 401
Lanier, Ex parte 458
Hough, Ex parte 463
Lang v. Gilbert 133
Howell, Ex parte 465
Langwith v. Dawson 406
Hudson v. McRae 410
Lapenotiere. Re 475
Hunt v. Bishop 122
Larouche v. Lenneux 407
Hunt v. Remnant 122
Lavoie, Ex parte 191
Hunter v. Daniel 120
Lawless v. A. E. Cotton Co. 144
Hunter v. Hunter 235
Lawrason v. Paul 157
Hunter, Re 441
Lawrence and King 181
Huron D. C. v. London D. C. 390
Leary v. Saunders 166
I
Leconfield v. Longsdale 181
Leete v. Hart 204
International, The 82, 86
Leonard, Ex parte 115, 422
jrvine, Ex parte 466
Leprophon v. Globenski 58
TABLE OF CASES CITED.
XI
Leroux, Ex parte 469
Leslie v. Hervey 341
Levien v. Reg. 472, 524
Levinger v. Reg. 319, 490, 491, 492
Lewis v. Levy 135, 136
Lewis, Re 23, 38
Lindsay, Ex parte 422
L'Institut Canadien v. Le Nou-
veau Monde . 131
Little v. Ince 58, 156, 159
Little v. Keating 333
Livingstone v. Massey 50
Lloyd v. Clark 8
Lord v. Turner 458, 469
Lord Wellesley's case 190
Lucas and McGlashan 49, 50,
53, 441
Lumley, Ex parte 406
Lusty v. Magrath 376
Lutterell v. Reynell 52
Lynden v. King 429
Lyons, Ex parte 466
Lyons, Re 10
II
Macdonald v. Hamilton and P.
D. P. L. Co. 173
Macdonald v. Stuckey 422
Macfarlane, Ex parte 460
Macfarlane v. Dewey 107
Madden, Re 519
Madden v. Farley 290
Maguire, Ex parte 480
Mansell v. Reg. 492
Marks v. Gilmour 10
Marry, ex parte 424
Marsh v. Keating 52
Marsh v. Loader 65
Marshall v. Platt 8, 158
Martin, Ex parte 32, 33, 36
Martin, Re 83, 84
Matthews, Ex parte 457
Maulson v. Commercial Bank 10
May q. t. v. Dettrick 8, 107
May q. t. v. Middleton 335
Mellor and Lush 136
Meloney v. Morrison 434
Mercer v. Hewston 10
Mercer v. Woodgate 165, 166, 169
Metcalf, q. t. v. Reeve 334
Mewburn v. Street 8
Meyer, Re 441, 442, 443, 445
McAdam v. Weaver 299, 303
McBride, Re 172
McCulloch, Ex parte 88
McCulloughv.McIntee 141, 143, 144
McCumber, Re 446
McCurdy v. Swift 52, 215, 224
McDermott, Re 523
McDonald v. Cameron 247
McDonald, Ex parte 103
McFarlane v. Lindsay 317
McGilvery v. Gault 97
McGinnes, Re 88
McGregor v. Scarlett 255, 426
McGuire v. Liverpool and L. A.
Co. 53
Mclnnes v. Davidson 432
Mclntee v. McCullough 144
Mclntyre v. McBean 143, 144, 192
McKay v. McKay 446
McKenzie v. Gibson 205
McKenzie v. Miller 8, 121
McKenzie v. Xewburn 439
McKinnon, Re 217, 221, 224,
3-27, 328, 410, 428, 450, 451,
455, 480
McLaren v. Caldwell 179
McLean and McLean 475
McLellan q. t. v. Mclntyre 335
McNab v. McGrath 291, 292, 293
McNelhs v. Gartshore 408
Messier, Ex parte 453
Miller v. Johnston 141
\1 illigan, Ex parte 117
Mills, Rr 97
Milner v. Gilbert 10, 304
Mitchell v. Brown 55
Mitchell v. Defries 223
Mitchell v. Thompson 154, 155
Moffatt v. Barnard 105, 339, 422
Moley, Ex parte 106
Monk, Ex parte 191
Montgomery, Ex parte 457
Montreal, Corp. of, v. Doolan 216
Moore v. Corp. of Esquesing 171
Moore v. Jarron 416
Moore, Re 418
Morasse v. Guevremont 190
Morisset, Ex parte 468
Morrison, Ex parte 170, 457,
461, 469, 470
Morrison v. McAlpine 10
Mosher v. Doran 469
Mountjoy v. Reg. 164
Mo wry, Ex parte 423
i Mulcahy v. Reg. 309, 312, 390,
396, 399, 488, 489, 490, 494,
498 499
Mulhern, Ex parte 290, 462
Mullins and Bellamere 99
Mulock, Re 434
Munro v. Abbot 292
Murphy v. Ellis 205
Murphy q. t. v. Harvey 335
Murphy, Re 440
Murray, Ex parte 472
Ill
TABLE OF CASES CITED.
Murray v. Dawson 179
Mutters, Re 246
Mytton v. Duck 164
N
Naiker v. Yettia 524
Nary v. Owen 404
Nash, Be 467
Neill v. McMillan 375, 376
Neill v. Taylor 53
Newton v. Harland 152
Noble v. Billings 496
Notman v. Reg. 506, 514
Nowlin, Ex parte 457
Nutt, Ex parte 421
0
O'Flagherty v. McDowell 320
Olivia v. Bissonnault 179
Ollard q. t. v. Owens 335
O'Neill v. Kruger 117
O'Neill v. Longman 117
0 'Regan Ex parte 462
O'Reilly q. t. v. Allan 335, 472
Orr, Ex parte 460
Ovens v. Taylor 224, 414, 437,
475, 518
Paige, Ex parte 422
Paige, Re 104
Painter v. Liverpool Gas Co. 414
Palmer, Ex, parte 463
Papin, Ex parte 5
Parker v. Elliott 163, 181
Parks, Ex parte 50, 76, 77, 96,
104, 347, 412
Parks v. Prescott 76
Parsons q. t. v. Crabbe 423
Pater, Re 476
Pease v. M'Aloon 50, 51, 52, 243
Peltier v. Miville 53
Perley v. Dibblee 180
Peters v. Cowie 340
Peters v. Irish 358
Petrin v. Larochelle 143
Philibert v. Lacerte 104
Phillips v. Eyre 62, 113, 114,
152, 318
Picton, Town of, v. McDonald 469
Pire and The Corp. of Dundas 115
Pi ton v. Lemoine 467
Plante, Ex parte 452
Poitevin v. Morgan 141, 142,
143, 144, 192
PMlard, Re 436
Pomeroy and Wilson 57, 448
Poole v. Huskinson 167
Pope, Re 104
Popham v. Pickburn 145
Port Whitby Ry. Co. v. Corp.
of Brantford 174
Porter's trusts, Re 124
Powell v. Williamson 115, 289, 407
Power v. Cauniff 158
Prefontaine, Ex parte 463
Price v. Perceval 109
Pringle v. Allan 10, 129
Prosser v. Edmonds 118
Prouse v. Corporation of Mari-
posa 168
Provost v. Masson 440
Purdy q. t. v. Ryder 10
Q
Queen's case, The 313
R
Ramsay, Re 523
Ramsay v. Reg. 438, 513
Ranney q. t. v. Jones 335
Rawnsley v. Hutchinson 444
Recorder, Re, and Judge D. C.
Toronto 113
Rectory of St. John v. Craw-
ford 519
Reeve v. Wood 340
Reg. v. Abbott 262
Abrahams 261, 394, 475
Adams 334, 457
Allan 187
Allen 90, 91, 106, 123,
319, 435, 436, 445
Alsop 302
Amer 505, 523
Anderson 90, 334
Archer 274
Ardley 264
Armstrong 319, 424
Aspinall 309, 310, 311
Atkinson 133, 151, 193,
302, 303, 304, 346,
347, 348, 398, 403
Aumond
Avery
Aylett
Baby
Bailey
Bain
Bake
Baker
Baldry
Balls
Bannerman
Barbeau
95
245
298
333, 383
227, 236
61
152
231
365
259
286
467
TABLE OF CASES CITED.
Xlll
Rtg. v. Barnes 10, 249, 337, 393
Barrett 213, 326
" Barrow 210
" Barthelmy 485
" Bathgate 92, 96, 386, 400
" Bayley 271
" Beale 213, 216
" Beavan 153, 369
Beckwith 355
Beekman 336
Beeston 369
" Bell 9, 130
" Bellingham 151
" Belyea 400, 401
Benjamin 75. 108, 491
" Bennett 58, 59, 108
Berchall 201
" Beny 68
Bertles 239, 261
Bertrand 380, 515, 518,
521, 523
Berube 353, 365, 372
Best 107,311,314
Beveridge 10, 319
Bienveuu 124, 125
Bird 218, 219
Black 5, 101
Blake 312
Blakeley 423
Blea^dale 24i
B. & L. H. Ry. Co. 180
Boardman 5, 49. 103
Bond 367
Boss 262
Boteler 410
Boucher 385
Boultbee 476
Boulter 308
Boulton 170
Bourdon 393
Bowers 255
Boyes 356, 359
Boyle 405, 427, 449, 452
Brackenridge 281
Bradshaw 4, 289, 444
Brady 262, 265, 266
Braithwaite 308
Bramley 243
Brawn 123
Bray 487
Breen 103
Brewster 76, 158, 160, 182
Brissac 312
Brittain 170
Broad 307, 400
Brooks 69
Brown 185, 2C9, 275,
276, 331, 317, 349,
359, 360, 371
Reg. v.
Brown and Street 162
Browne 25, 37
Bruce 158, 521
Bryans 62, 264, 291,
294, 372, 386, 387
Brydges 458
Brynes 480
Buchanan 57, 165
Bull 271
Bullock 290
Bulmer 267
Burdell 490
Burgon 262
Burrowes 228
Buttle 308
Button 315
Byderdike 117
Caisse 224
Caister 332
Callaghan 306
Campbell 75^ 102, 269, 276
Campion 330
Carlile 314
Carlin 84
Carpenter 260
Carrier 468
Carson 278, 280
Carter 250, 266, 284,
475, 511
Cassidy 94
Castle 338
Caswell 247, 417, 420,
441, 464
Cavanagh
Chadwick
Chalmers
Chamaillard
Chamberlain
Chambers
Chandler
Chapman
97, 98
128
341
499
485
282
4, 202, 318
257, 299
Charleeworth 355, 388,
389, 402, 502, 503, 513, 517
Charlotte Smith 373
Charretie 112
Chasson 350, 358, 368,
370, 491, 495
Child 297
Chipman 182
Chouinard 258
Christian 258
Christopher 238
Chubbs 346, 348
Chursou 203
Clancey 405
Claret and Longbridge,
Inhabitants of 175
Clark 505
Clarke 123, 514
XIV
TABLE OF CASES CITED.
Reg. v.
Clement 59, 307, 368, 401
Reg. v. Davidson 290, 410
"
Clennan 421
" Davies 238, 244
H
Clewes 366
Davis 223, 227, 266, 330
•
Gloss 279, 288
" Dawes 9
"
(Jlouter 353
" Dawson 284
(C
Cockburn 213
" Deane 165
M
Cockroft 360
" Denham 103
«
Cohen 69
" Dennis 471
"
Cokcly 154
Dent 288
< <
Colliiis 61
" Denton 54
«
Comrs. Highways 115
" Derrick 501
**
Connell 60
" Desjardins Canal Co.
Kl
Connolly 59, 213, 214, 216
175, 387, 508, 524
M
Connor 152, 154, 265, 385
" Dessemer 268
«
Cooke 246
" Dicks 69
M
«
Cooper 182, 258, 262, 372
Coote 363
" Dingman 218, 219
" Diniston 302
"
Corcoran 151
' Dixon 69, 238
M
Corporation of Louth 174
Corporation of Paris 158, 1 73
' Dogherty 290
' Dolan ' 273
«
Corp. of St. Saviour 183
' Donaghue 77
"
Cory 234
' Doty 302
«c
Cotte 343, 344
" Dougall 131, 143, 144
14
Coulter 493, 496, 497
147, 393, 491, 499
«
Courtney 302
Dowey 262
(C
Cowan 303
" Downes 203, 215
«
«
Coyle 510
Crab 262
Downey 198, 402
" Dring 274
'
Crabbe 451, 458
' Druitt 117
(
Cracknall 342
' Duff 125
'
Craig 277, 278, 287, 418, 507
' Duffield 117, 313
1
Cramp 209
Duffy 139
i
Craw 73
' Dunavey 415
t
<
(
Creamer 124, 130, 506
Cregan 218
Cridland 410
Cronan 216
4 Dunlop 159, 277, 278,
285, 286, 472
" . Dunning 305, 306
" Eagle 196
*
Cronin 295, 385, 392, 393
Eagleton 61, 264, 288
Crooke 279
Earnshaw 396
'
Crooks 477
' Ebrington 411
Cross 160
' Eccles 314
1
Croteau 483, 485
' Edwards 342
<
Cruse 69
' Egerton 370
c
Crutchley 194
' Eldershaw 65
'
Cudihey 484
' Ellis 464, 465
'
Cullum 256
' Elston 289
(
Cummings 54, 236, 253,
25 >, 257, 260, 383,
Elworthy 373
' Enoch 194
384, 387, 394, 401
' Erridge 474
( c
Cunard 486
' Esdaile 315
M
Curgerwen 125
' Esmonde 60, 74
c c
Currie 309, 472, 473
' Ess^ry 442
"
Curtley 70, 71, 72
' Essex 257
II
Cutbush 424
' Evans 263, 287, 338
Dale 264
' Eveleth 248
c t
M
Danger 266
Dant 201
' E wing 56, 238, 243, 268, 319
' Eyre 342
it
M
D'Aoust 510, 521
David 257
1 Falkingham 325
' Fallen 75
TABLE OF CASES CITED.
XV
Reg. v. Faneuf
216
Reg. v. Gillis
364
" Fanning
123
" Gilson
294
" Farley
431
" Clyde
236, 237
" Farrell
370
" Goate
279
" Farrington
294
" Godfrey
270
" Farrow
209
" Goff
59, 60
" Feare
495
" Golding 431,
461, 462
• Feithenheimer
" Goldsmith
385
' Fellows 312,
355, 357,
" Gollart
381
490, 504
" Goodard
302
' Fennell
364
" Goodman
296
' Fennety
198, 505
" Goodwin
80
' Ferguson
380, 395
" Gorbutt
389
' Fick 212, 213,
214, 379, 507
' Gordon 130, 165,
167, 520
' Field
362, 363
' Goss
264
' Finkle
364, 366, 367
' Gottey
107
' Firman
445
' Goucie
364, 365
' Firth
248
' Gough
232
Fisher
289
• Gould 32, 34, 41,
187, 276
' Fitzgerald
474
' G. T. R. Co.
168, 184
' Flannigan
414, 469, 470
' Grant
402
' Flattery
211
' G. W. R. Co. 167,
168,
' Fletcher
210, 213, 299
169, 175
' Flinton
340
" Green
249, 388
' Flynn
195, 383, 392
" Greenwood
294, 348
' Folville
175
' Gregory
62, 75
' Fontaine
125
' Griepe
302
" Forbes
1S5
' Griffiths
277
" Ford
113, 504
' Grindley
68
" Foreman
385
' Groombridge
65
" Foster
261, 371, 379
' G'rdians of Cam. Union 444
Foulkes
254
' Guay
372
' Frampton
272
' Guthrie 214, 216,
217, 394
' Frances
67
' Gzowski
184, 456
' Francis
232, 372
1 Hadfield
333
' Franz
71
' Hagar
333
' Fraser
357, 491, 506
" Hague
289
' Frawley
102, 468
" Haines
226, 454
' French 97,
98, 280, 2S7
" HaU 168, 172, 226,
232,
' Fretwell
197, 220
260, 315
' Frost
392, 393
" Halliday
354
' Fullarton
393
" Hambly
350, 351
' Furzey
151
" Hamilton 232, 347, 367
' Gagan
301
368, 396
' Gale
256
" Hammond 69,
107, 313
' Gallant
406
" Hapgood
60
' Gamble
189, 190, 392
" Hardy
333
' Ganes
218
" Harley
5 9
' Garbett
358
" Banner 216,
377, 390
' Gardner
265, 308
" Harper
280, 521
' Garner
366 ' Harris 81,
157, 187
Garrett
244
' Harrison
245, 477
' Gaylor
75
' Harshman 99, 100,
423, 466
' Gemmell
264
' Harvey
80
George
353
' Hassell
244
' Gerber
353
' Hathaway 255,
278, 394
' Gibbons
302, 405 « Hawtin
256
' Giles
264, 285, 286 ' Haystead
331
TABLE OF CASES CITED.
Hazleton
Healey
Heaton
Hellier
Heming
Hendry
Hennessy
Henshaw
Herbert
Hermann
Herod
Hersel
Hessell
Heustis
Hewit
Heywood
Hibbert
Hicklin
Higgs
Higham
Hilton
262
252, 503, 504
125
468
477
159
245
268
404
81
349
420
443
477
117
394
215
63, 133
228
411
74, 400
Hincks, Sir Francis 329, 330
Hind
Hoare
Hoatson
Hobson
Hodge
Hodgkiss
Hogan
Hogg
373
244
279
275
102
299, 307, 386
491
288, 289
Hoggard 97, 98,417, 457, 471
Holbrook 139
Holden 279
Holland 195
Holman 395
Holmes 360
Holroyd 57
Holt 110, 371
Hoodless 484
Hook 308
Home 53, 306
Hovey 23, 38
Howard 102
Howarth 336, 420
Howell 71, 315
Huber 160
Huddell 402
Hughes 69, 150, 200,
299, 302, 404
Hughson 153
Hulme 357
Humphrey 354
Hunt 117, 160, 162, 195, 400
Hunter 266
Huppel 262
Hutchinson 201
Hyams 226
Hyde 416, 468
Reg. v. Hynes 258, 319
44 Ingram 69, 430
44 Inhab. of Claret and
Longbridge 175
44 Ipstones 471
" Jackson 184, 250, 392
44 Jacobs 123, 313
4< Jarvis 365
" Jenkins 228, 373, 374
44 Jennings 249, 351
44 Jennison 261
44 Jerrett 352, 353, 361
44 Jessop 262
" Johnson 227, 252, 253.
341, 416, 422, 458, 481
44 Jones 257, 346, 347,
348, 349, 361,
362, 366, 378, 380
44 Jope 382, 383
44 Josephs 459
44 Jowle 459
44 Joy 508, 509
44 Jukes 97
44 Justices of Cumberland 411
44 Justices of Huron 519
44 Justices of Newcastle 460
44 Justices of Queen's 97, 100
44 Justices of Surrey 456, 457
44 Justices of Westmore-
land 474
44 Justices of York 519
44 Kay 281
44 Keeler 481
44 Keena 259
" Keith 282
44 Kelly 148, 149
44 Kennedy 200, 350, 351,
352, 379, 490, 498,
500, 501, 506, 512,
517, 518, 521.
Kenny 245
Kenrick 309, 315
Kilham 240, 266, 270
King 76, 97, 105, 353
Kinnersley
Kinsman
Kirkwood
Knight
Labadie
Lackey
Lacombe
Lafferty
Lake
Lambert
Lamere
Langton
Larkin
Latlock
316
91
282
175
294
219
491, 492
458, 459
102
257
500
380
393
258
TABLE OF CASES CITED.
XV11
Reg. v.
Lavey
Lavigne
Law
Leboeuf
Ledbetter
302
385
467
245
369
Lee 260, 261, 262, 308
Leech 268
Lees 163
Lennan 422, 423
Lennox 98
Lesley 90
Levecque 339, 448, 458
Levett 70
Levine 264 i
Levy 460
Lewis 314
Light 204
Ling 385
Lister 257
Littlechild 409, 410
Lock 211
Locost 229
Lord Mayor of London
155, 248
Lord Newborough 4?6
Louth, Corp. of 173
Lowenbruck 247
Lowrie 233
Luck 73, 510
Luke 284
Lumley 1 26
Lynch 73, 321, 322, 384
Lyons 297
Mabey 107
Macarty 314
Macdonald 304, 305, 306,
313
Madden 70, 124, 318, 354
Magee 220, 397
Magrath 387. 388. 389, 390
Mailloux 70, 371, 420,
486, 494, 495
Manning 69, 78, 294
March 295
Marcus 279
Marsden 207
Marshall 255
Marston 466
Martin 59, 67, 80, 156,
195, 265, 269, 276,
506, 507
Mason 57, 58, 103, 107.
•233. 299, 341, 395,
400, 404, 485, 508,
509, 512, 514
Massey 245, 361
Masters 271
Mathew 37, 343
Mawbery 310
Reg. v. Maxwell 304, 402
" Mayle 255
" Mayor of St. John 183
1 ' Mayor of Tewkesbury 70
" Me Allan 465, 471
" McAllen 458
" McCann 60, 61, 62
McConnell 97
" McConohy 510
" McCorkill 287, 433
" McCormack 6, 10
" McDonald 185, 269,283,
381, 472, 473
" McDougall 194
" McDowell 193, 196, 197, 508
" McElderry 147
" McEvoy 218
" McGowan 162, 184, 421
" McGrath 231, 233, 235,
241, 270, 323
" McGregor 176
" McHolme 48
" Mcllroy 348
" Mclntosh 299
" McKale 241
" McLaughlin 343, 401
" McLean 386, 393
" McLellan 510
" McLeod 398, 484
" McMahon 73, 321, 322
McMillan 101, 408
McXaney 470
McXaughton 66
McXevin _ 7 :
McPherson 60, 62
McQuarrie 269
McQuiggan 130
McWhinnie 97, 98, 99
Mead 373
Meakin 262
Mears 315
Mellish 256
Mellor 495, 497
Mercer 9, 57, 110, 111, 476
Messingham 273
Meyer 115, 156, 158,
159, 160, 172. 177
178, 181, 183, 405
Middleton 211, 238
Millar 370
Milledge 405
Miller 495
Mills 173. 264
Milne 407, 494
Moah 257, 279
Moodie 9, 70, 111
Morgan 241
Morris 68, 317, 389
xvm
TABLE OF CASES CITED.
Reg. v. Morrison 113, 393
Morston 466
Morton 15, 18, 29, 32,
34, 405, 415
Mosier 448, 449
Moylan 149
M. S. &L. Ry. Co. 114, 115
Mulholland 219, 430, 447, 453
Mullady 480, 483
Munro 326, 327, 464, 477
Murphy 312, 388, 481,
517, 518, 521, 523
Murray 302, 426, 465, 474
Muscot 308
Myott 337
Nasmith 325, 340
Naylor 267, 302
Neale 315
Negus 255
Newboult 296
Newton 124
Nichol 302
Nicholls 316
Nicol 441
Notman 496
Nott 419
Gates 268
O'Brien 251, 290, 317, 410
O'Leary 216, 407, 408, 433
Oliver 214, 224
O'Neill 223
Orr 446, 505
Osier 182, 183. 420
Ouellette 161
Oulton 470
Overton 302
Pah-mah-gay 354
Palliser 55, 343
Palmer 100
Paris, Corp. of 158, 173
Parker 284, 365, 369, 386
Parkinson 266
Parlee 98
Parsons 312, 509
Partis 276
Patoille 384
Pattee 379,511
Patterson 87, 88, 384
Patteson 491, 492
Pattoii 159, 318
Paxton 19, 46, 493, 499, 515
Payne 189, 352
Pearce 300
Pearson 410
Peclley 302
Pelletier 304, 307, 352
Peltier 373
Pembleton 289
Reg. v. Penson 123
" Perkins 151, 414, 416
" Perley 496
" Perry 209, 286
Peterman 464, 465
Phillips 150
Phipps 453
Piche 209, 454
Pickford 341
Pickup 261
Plummer 169
Plunkett 161
Pollman 315
Poole 242
Pope 343
Potter 343
Poulton 194
Powell 513
Pratt 181
Preston 285
Price 69, 71, 295
Prince 315, 235, 239,
240, 270
Proud 300, 3J7
Purdy 169
Quatre Pattes 510
Quinn 250, 251, 384,
392, 401, 495
Radley 249
Ramsay 435, 437
Rand 114
Rankin 164
Rea 126, 128
Reardon 274
Recorder of Wolver-
hampton 63
Redman 341
Reeve 365
Reeves 194
Reiffenstein 53
Reno 18, 30, 32, 33, 34,
35, 40, 41, 42, 45, 46, 429
Reno and Anderson 220
Reopelle 284
Rice 157, 326
Richards 369
Richardson 309
Richmond 338
Riley 244
Ritchie 484
Ritson 276
Roberts 61, 308, 314, 422
Robertson 243, 253, 329, 342
Robinson 37, 226, 234,
242, 264, 273,
275, 341, 367, 500
Roblin 9, 127, 128
Robson 245
TABLE OF CASES CITED.
XIX
Reg. v. Roddy 103, 106
Rl
j. v. Smith 68, 75, 77, 78,
" Roebuck 264, 372
124, 125, 152, 195,
Rogers 252
202, 219, 226, 229,
Rose 184, 505
230, 234, 247, 272,
" Ross 306, 42t>
27o, 290, 293, 298,
" Row 8, 302
325, 326, 341, 357,
" Rowlands 117
373, 374, 443, 450,
" Roy 287, 309, 310, 311,
458, 513
314, 400, 506
" Snelling 284
Rubidge 171, 505
' Snowley 256
Rushworth 283
' Soucie 385
" Russell 187, 226, 292,
South Holland 456
394, 399, 456
Southward 95
" Ryan 218
' Sparham 374, 378
" Ryland 202, 401
' Sparrow 220. 477
" Rymes 393
' Spelman 186
Sadbury 150
' Spence 164, 184, 504, 505
" Sage 482
' Spencer 297
" Silmon 201, 291
' Spriggs 226, 227
' Salter 63
Sprungli 385
' Sansome 365
Squires 70
' Satchwell 292
Stafford 100, 104
' Saundera 157, 249
Stainer 115, 257
' Scaife 480, 521
Stallion 291
' Schlesinger 302
Stanbury 268
' Schmidt 273
Stanger 479
' School 320, 322, 323, 395
Stannard 326
' Schram 6, 82, 485
St. Armour 475
' Scott 101, 150, 298, 419, 432
St. Denis 454
' Searle 67
St. Dennis 386
' Seberg 90
Steel 283
Seeker 9, 128
Steels 263
' Seddons 348, 355, 356
Stephens 76, 159, 183
' Sellis 194
Stevens 417
" Selsby 117
Stevenson 369
" Senecal 269, 393, 508
Stewart 278, 353
" Seward 309
Stimpson 410
" Sharp 91, 251
Stitt 210
" Shaw 67, 215, 308, 377,
St. Louis 247
408, 416
Stone 107
" Shea 396, 397
Strachan 97, 98, 105, 106
" Street 10
Stratton 315
" St. Saviour, Corp. of 183
Strip 365
' Shellard 312
Sullens 271
' Shepherd 117, 247
Sullivan 388, 513
' Sherlock 186
Swan 54
' Sherman 54, 55, 82, 86, 320
Swindall 201
' Shickle 234
Switzer 383, 391
' Shortiss 411
Sylvester 319
' Shuttleworth 188
Tailor's Com. 311
' Silvester 337
Taylor 60, 78, 96. 201,
Simmons 405, 406, 466
223, 224, 252,
' Simmonsto 124
290, 313, 314, 422
' Simpson 253, 456, 457, 473
Tefft 344
Sinnott 478, 516
Thomas 81, 254
' Sir Francis Hincks 329, 330
Thompson 148, 246,
' Skeet 71, 73
253, 316, 354, 484
1 Slavin 10, 73, 312, 320,
'
Thorley 256
321, 322, 323
.
TABLE OF CASES CITED.
Reg. v.
Thorn 283
Thurborn 236
Reg. v. Wightman 155, 462
Wilcock 283
'
Tierney 81, 382
Wiley 274
'
Tinning 319, 336
Wilkinson 148
'
Tisdale 75, 108
Willett 479
'
Tite 255
>
Williams 69, 102, 153,
'.
Todd 441
Tomlinson 298
, 287, 326, 327, 353, 412
' Williamson 479
•
Tongue 255
Wilshaw 368
'
Topez 90
Wilson 66, 81, 148,
tt
Topple 254
152, 209, 479
u
T. Str. Ry. Co. 56, 57
' Wolstenholme 257
it
Tower 347, 355, 356,
Woodcock 97, 98
359, 362, 386, 451
Woftman 407, 418
"
Townley 234, 235
Wright 67, 194, 245
"
Townsend 302, 452
' Yarrington 472
"
Trebilcock 236, 504
' Yeardon 224
(i
Tremblay 430
' Yeomans 335, 426
"
Trilloe 194
Young 10, 11, 12, 13,
"
Tubbee 11, 31, 40, 124
14, 18, 19, 20, 24,
"
Tufford 365
29, 30, 33, 34, 36,
"
Turner 315
38, 41, 44, 425
"
Tweedy 244, 387
Reid v. Inglis 9
"
Tyree 254
Reid v. Maybee 414
n
Tyson 302
Reid v. McWhinnie 416, 424
'•
Vail 469
Rennie v. Rankin 190
"
Van Aerman 46
Rex v. Allan 160, 163, 166, 167
"
Varley 81
Allen 65
"
Vendette 430
All Saints 407
"
Vincent 150, 309
Balme 187
"
Vonhoff 318, 499
Bates 479
"
Walker 300, 411
Benfield 131
"
Wallace 378
Bidwell 343
"
Walls 231
Birnie 204
"
Walsh 59, 93, 271
Birt 149
"
Walters 466
Blackson 394
"
Walton 253, 341
Boyall 57
"
Warburton 309, 310
Brimilow 65
u
Ward 158, 220, 221
Bruce 91
"
Wardroper 274
Burton 67
it
Washington 420, 444, 461
Butler 59
it
Watson 264, 267
Carlile 55, 58
"
Watts 234
Carroll 68
W. & D. P. & G. R. Co. 169
Webster 60, 305, 308, 398
Cartwright 59
Chillas 463
i
Wehlen 462, 465
Collison 71
'
Welch 289
Cooper 77, 78
'
Wells 10
Crewey 140
Welsh 81
Crisp 107
t
Welton 369
Cross 55
t
West 237
Western 301, 307, 392
Cummings 57
Davis 54, 56, 57
t
Wheeler 243, 484
De Berenger 314
Wheton 404, 406
Desgagne 470
'
White 73, 97, 103, 282,
Edwards 416
324, 396, 404, 431
Ellis 370
"
Whitehead 357
Elrod 130
"
Whittier 184
Fearnley 187
TABLE OF CASES CITED.
XXI
Rex v. Ferguson 99
Rex v. Sheriff of Niagara
437
Fitzgerald 481
Smith
377
Gash 187
Smyth
156
Gill 313
Solomons
54, 84
Foster 515
Sparling
419
Gingras 457, 458
Streek
515
Gordon 75
Sutton
64, 99
Greenacre 75 Thomas
68
Hall 84, 396 Tod
411
Haswell 189
Turner
347
Hawkeswood 279 Vanghan
110
Haynes 472 Wadsworth
108
Hazy 347 Wellings
369
Heaviside 462 Whitehead
437
Higgins 62, 207, 472, 481
Willshire
« 127
Higginson 66 Wright
57
Hodgson 360 Wroxton
128
Inhab. Hodnetta 128 Reynolds and Durnford
96
Inhab. St. Benedict 166 Richards Ex parte
457. 460
Ives 519
Richardson v. Can. West
Fire
Jackson 155
Ins. Co.
487
Johnson 54, 394
Rickaby, Ex parte
88
Jones 367, 480
Ridley v. Lamb
170
Jordan 65, 225. 2'29
Ritchie, Ex parte
10
Justices of Newcastle 463
Roberts v. Climie
102
Justices of Norfolk 443
Roberts v. Patillo
506
King 57
Robinson, Re
399
Kenrey 518
Rockwell v. Murray
207
Lawrence 225
Rogers v. Spalding
137
Lee 279
Rogers v. VanValkenburgh 205
Lewis 226
Rokeby v. Langston
303
Lord Abingdon 140
Rolle and Whyte
181
Lyons 279
Ronayne v. Wood
141
Mandesley 367
Rose v. Burke
444, 445
Marks 426
Rose v. Cuyler
372
Marquis of Devonshire 167
Rosenbaum, Re 16, 38, 39, 46
Martin 61
Ross v. Corp. of Portsmouth
Mason 305
179, 180
Meakin 68
Ross, Ex parte
423
Mclntyre 113
Ross q. t. v. Meyers
8, 121
McKenzie 519
Ross, Re 430, 437,
450, 453
McKreavy 9, 153, 154, 156
Rouleau, Ex parte
421
Nichols 464
Rousse, Ex parte
6, 9
O'Donnell 350
R6we v. Titus 158,
180, 181
Offord 66
Roy, Ex parte
469, 472
Osmer 186
Runciman v. Armstrong, Re 451
Owen 65, 225, 350
Russell, Ex parte
103
Pedley 159 j Ryalls v. Leader
134
Perrott 383
Ryalls v. Reg.
307, 386
Philips 65
Pollman 110
S
Eattislaw 464
Richards 56
Salvador
84
Robinson 58, 187
Sandiman v. Breach
319
Roderick 59
Scotia S. V. A. R., The
410, 455
Sainsbury 56, 57, 62
Scott v. Dickson
441
Sanderson 161
Scott v. Henderson
118
Scofield 62
Scott v. Reg.
233
XXII
TABLE OF CASES CITED.
Severn v. Reg. 101
Sewell v. Olive 377
Shaver v. Linton 142, 143, 144
Slack, Ex parte 100,424,449
Slater, Re 326, 449
Small v. G. T. R. Co. 158
Small v. McKenzie 134
Smith, Ex parte 110
Smith, Re 20, 23, 83, 85, 275,
278, 444
Smith v. Barnett 330
Smith and Council of Euphemia 172
Smith v. Hall 8
Smith v. McGowan 5
Smyth v. McDonald
Solr. Genl. v. Darling 95
Somers v. House 149
Somerville v. Hawkins 142
Spalding v. Rogers 163
Speaker of the Legislative As-
sembly of Victoria v. Glass 523
Spelman, Ex, parte 432, "456
Spelman v. Reg. 186
Spieres v. Parker 396
Spill v. Maule 143
Spires v. Barrick 222
Sprung v. Anderson 414
Stace v. Griffith 144, 145
Stacey v. Whitehurst 74
Stanley v. Jones 117
Stanton v. Andrews 131, 137,
138, 145
Stark v. Ford 10
Steel v. Smith 396
Stephens v. Meyer 216
Stewart, Re 459
Stewart and Blackburn 332
Stewart v. Rowlands 147
St. Gemmes v. Cherrier 406
Stiles v. Brewster 408
Stinson v. Browning 169
Stinson v. Pennock 10
St. Mary Newington v. Jacobs 1Q6
Stockdale v. Hansard 139
Stone v. Marsh 52
Stoness v. Lake 408
Sturt v. Blagg 149
Sullivan, Re 460
Taggard v. Innea 67
Taschmacker, Ex parte 16
Taylor v. Davy, Re 465
Taylor v. Golding 279
Taylor v. Marshall 107
Tench v. G. W. Ry. Co. 141, 142
Terrien, Ex parte 469
Thomas v. Pepin 435
Thomas v. Platt 298
Thompson, Ex parte 106, 344,
457, 458, 472
Thompson, Re 411
Thompson v. Bennett 10
Thompson and Durnford 374, 408
Thomson v. Leslie 375
Timson, Re
Tongue v. Tongue 128
Toronto and L. H. Ry. v.
Crookshank 5
Toronto S. V. A. R., The 221, 222
Torrance v. Smith
Totten v. Watson
Town of Pictou v. McDonald 469
Tracy, Re
Tremblay Ex parte 458
Trowley, Ex parte 406
Tunnicliffe v. Tedd
Turner v. Ringwood H. Board 176
U
Uniacke v. Dickson 1, 2, 6, 7, 8
Unwin v. Clark 70
Vaillancourt, Ex parte 459
Vallieres, Ex parte 459
Vanallen v. G. T. R. Co.
Vaughan, Ex parte 455
Vaughton v. Bradshaw 411
Vincent v. Sprague 52
W
Wadsworth v. Boulton 190
Wakeley v. Cooke
Walker v. Brewster 157
Wallace, Re 112, 436, 524
Walsh v. Nattrass 50, 51, 52
Walsby v. Auley
Ward's case
Warner v. Fyson 10, 81
Warner, Re 18, 19, 36, 40, 45, 390
Wason, Ex parte
Wason v. Walter 134, 140, 141, 143
Watson, Ex parte 139
Watson v. City of Toronto Gas
and Water Co. 156
Watts, Re 102, 457, 460
Weeks v. Boreham
Wellington, Corp. of, v. Wilson 176
Wellock v. Constantino 52
Wetmore v. Levi 494
Wheeler v. Me Williams 124, 128
Whelan v. McLachlin 179
TABLE OF CASES CITED.
XX111
Whelan and Reg. 182, 318, 379,
402, 488, 489, 493, 494, 496,
497, 498, 511, 512, 514, 515,
524
White, Exparte 103
White v. Garden 270
\Vhitehead, Ex parte 472
Whitehead v. Reg. 84
Whitfield v. S. E. Ry. Co. 131
Wildes v. Russell 112, 115
Williams, Exparte 421
Williams, Re . 16
Williams v. Bayley 107
Williams v. Robinson 50, 51, 52
Willoughby v. Egerton 512
Wilson, Ex parte 424, 431, 457
Wilson, Re 442
Wilson v. Corporation of St.
Catharines 117
Wilson v. Graybiel 99, 102
Wilt v. Lai 317, 336
Winning v. Fraser 380
Winsor v. Reg. 352, 353, 380,
388, 389, 499, 501, 502, 503,
504, 512, 517.
Winterbottom v. Lord Derby 165
Wood, Ex parte 408
Wood v. Dowiies 119
Woodhouse, Exparte 97
Wragg v. Jarvis 9
Wray v. Toke 97, 98
Yearke v. Bingleman 448, 521
Young v. Reg. 394
Young v. Woodcock 476
Zink, Exparte
42, 43, 44, 45
THE CRIMINAL LAW
INTRODUCTORY CHAPTER.
THE ENGLISH CRIMINAL LAWS PREVAILING IN THE DOMINION.
Colonies may be acquired either by occupancy, conquest
or cession ; the laws prevailing therein depending on the mode
of acquisition.
Where the acquisition is by occupancy, all English laws
applicable and necessary to the state and condition of the
colony are immediately in force, such as the general rules of
inheritance, and of protection from personal wrongs ; but
other provisions, applicable and peculiar to a people in a more
advanced state of civilization and artificial refinement, are
neither necessary nor convenient in a new and undeveloped
country, and therefore are not in force, (a)
In conquered colonies, the laws existing at the time of the
conquest, except such as are contrary to the laws of God,
remain in force until altered by the conquering power; it
being competent to the latter to impose on the subjugated
people such laws, imperial or otherwise, as may be thought
fit. (b)
In ceded colonies the same general law prevails as in con-
quered colonies, except in so far as the power of the Crown
may be modified by the treaty of cession.
(a) Uniaeke v. Dickson, 1 James, 300, per Hill, J., confirmed by Smyth
v. McDonald, 1 Oldright, 274 ; Doe dem Anderson v. Todd, 2 U. C. Q. B.
-84, per Robinson, 0. J.
(6) Doe dem Anderson v. Todd, 2 U. C. Q. B. 82.
A
2 1HE CRIMINAL LAW OF CANADA,
The Provinces of Ontario, Quebec, Nova Scotia, New Bruns-
wick and Manitoba are all colonies of the British Empire,
but it is not perfectly clear under what modes of acquisition
they can severally be classed. The country was originally
discovered and to some extent settled by the French, who
claimed the whole territory, from the Gulf of St. Lawrence to
the then unknown western wilds. By the Treaty of Utrecht,
signed in 1713, the present Provinces of Nova Scotia and New
Brunswick, then called Arcadia, were ceded to Great Britain;
and by the Treaty of Paris, concluded in 1703, the entire
territories claimed by the French, including the present Pro-
vinces of Ontario, Quebec and Manitoba, became the property
of the Imperial Crown.
As to the Provinces of Ontario, Quebec and Manitoba,
there seems little doubt but that their acquisition may be
ascribed to cession founded on conquest ; but as to Nova
Scotia, it seems to have been considered as a settled colony,
in other words, as acquired by occupancy, (c) a view which
is strongly supported by the fact that the laws of England,,
both civil and criminal, with certain limitations and restric-
tions, prevail therein, although never introduced by Imperial
statute or proclamation. If this be correct, New Brunswick
would fall within the same class, as, until 1784, it and Nova
Scotia formed but one Province.
The criminal law in the Provinces of Ontario arid Quebec
has been introduced by statute. By the Eoyal Proclamation
of 1763, the criminal law of England was made applicable
to the Province of Quebec, as there defined; and by the
Imperial statute, 14 Geo. III., c. 83, it was extended to the
whole of the present Provinces of Ontario and Quebec. This
statute, which took effect 1st May, 1775, after reciting the
benefits resulting from the use of the criminal law since its
introduction by the proclamation above referred to, enacted
that the same should continue to be administered and observed
as law, " as well in the description and quality of the offence
(<•) Uniacke v. Dickson, 1 James, 287.
INTRODUCTORY CHAPTER.
as in the method of prosecution and trial, and the punish-
ments and forfeitures thereby inflicted." In Ontario, however,
the 40 Geo. III., c. 1, was subsequently passed, introducing
the criminal law of England, as it stood on the 17th day
of September, 1792, " and as the same has since been re-
pealed, altered, varied, modified or affected by any Act of the
Imperial Parliament having force of law in Upper Canada,
or by any Act of the Parliament of the late Province of Upper
Canada, or of the Province of Canada, still having force of
law, or by the Consolidated Statutes i elating to Upper Canada,
exclusively, or to the Province of Canada."
With regard to the Province of Manitoba, prior to Con-
federation, several Imperial statutes were passed, making
provision for the trial of offenders. This legislation was com-
prised in three enactments, the 43 Geo. III., c. 138, the 1 & '2
Geo. IV., c. 66, and the 22 & 23 Vic., c. 26, the provisions of
which it is unnecessary to give, as all necessity for recourse to
them is obviated by subsequent colonial legislation.
By an Order in Council following the 33 Vic., c. 3, the
Province of Manitoba was formed out of the territories referred
to in the above statutes, and by a statute of the Parliament of
Canada (34 Vic., c. 14), the entire body of the modern criminal
law of England, as existing in the rest of the Dominion, has
been extended to that Province, (rf) Under the latter statute,
the Imperial enactments have been superseded as to Manitoba,
and the justices in that Province have the same power and
jurisdiction over persons charged with indictable offences
committed therein, as justices in other parts of the Dominion
have over persons committing offences within their several
jurisdictions ; and the court known as. the General Court
has power to hear, try and determine, in due course of law,
all treasons, felonies and indictable offences committed in any
part of the said Province, or in the territory which has now
become the said Province, (e) The Dominion Statute, 37 Vic.,
(d) See charge of Mr. Justice Johngon to the Grand Jury, Spring Assizes,
1871.
(e) 34 Vic., c. 14, 8. 2.
4 THE CRIMINAL LAW OF CANADA.
c. 39, moreover, extends to that Province certain Acts relating
to the prompt administration of justice in criminal matters,
which had been excepted from the operation of the 34 Vic.,
c. 14.
With regard to British Columbia, the 37 Vic., c. 42, extends
to that Province certain of the criminal laws now in force in
the other Provinces of the Dominion ; and section 5 grants
to the Supreme Court of British Columbia power to hear, try
and determine all treasons, felonies, and misdemeanors com-
mitted in any part of the Province.
By the British North America Act, 1867, the Provinces of
Ontario, Quebec, Nova Scotia, and New Brunswick, were
federally united into one Dominion, under the British Crown
(Manitoba, British Columbia, and Prince Edward Island,
having been subsequently admitted), with a constitution, to
a great extent a written one, and similar in principle to that
of England. Power is given to the Queen, by and with the
consent of the Senate and House of Commons, to make laws
for the peace, order, and good government of Canada, save in
so far as jurisdiction over certain matters is expressly given
to the local legislatures of the several Provinces. (/) The
right to legislate as to the criminal law, including the pro-
cedure in relation thereto, is vested in the Dominion Parlia-
ment, to the exclusion of the local houses, (g) Where, under
the terms of this Act, the power of legislation is granted to be
exercised exclusively by one body, the subject, so exclusively
assigned, is as completely taken from the others as if they had
been expressly forbidden to act on it, and if they do legislate
beyond their powers, or in defiance of the restrictions placed
upon them, their enactments are no more binding than rules
or regulations promulgated by any other unauthorized body. (7t)
When, however, the local legislatures have power to legislate
on any particular subject, their Acts with reference to the
(/) Fredericton v. The Queen, 3 S. C. R. 505.
(g) Reg. v. Bradshaw, 38 U. C. Q. B. 564 ; in re Hamilton and N. W. Ry.
Co., 39 U. C. Q. B. 93.
(h) Reg. v. Chandler, 1 Hannay, 548, per Ritchie, C. J.
INTRODUCTORY CHAPTER. 5
same are supreme as to the courts and people of the Province,
and cannot be objected to as contrary to reason or justice ; (i)
and in such case they may have power to make any viola-
tion of their provisions in relation thereto a crime even in
the technical sense of the term, and to enforce observ-
ance by the imposition of punishment, by way of fine or
imprisonment. (j) Thus it was held that under section 92 of
the British North America Act, Nos. 9 and 16, the Local
Legislature not only had the power, but the exclusive right
to legislate in relation to shop, tavern, and other licenses, in
order to raise a revenue, and that, having such right, they had
also power under No. 15 to enact that any person who, having
violated any of the provisions of the Act, should compromise
the offence, and any person who should be a party to such
compromise, should, on conviction, be imprisoned ic the com-
mon gaol for three months, and that such enactment was not
opposed to section 91, No. 27, by which the power to legislate
with reference to criminal law is assigned exclusively to the
Dominion Parliament. (&) But the punishment imposed by
the local legislatures cannot be cumulative. It must be
either fine, penalty, or imprisonment, not both fine and
imprisonment. (/) And it has been doubted whether they
have power to authorize imprisonment at hard labor, (m)
The criminal jurisdiction, then, in this country rests
entirely with the Dominion Parliament, saving in so far as
the power to erect acts or omissions into crimes is given to
the local legislatures as incident to their right of legislation
in civil matters, and as a means of enforcing their enactments ;
and saving, also, in so far as the Imperial Parliament may
see fit at any time to interfere in colonial affairs, which it
is perfectly competent to them to do, (ri) but which is little
(i) Re Goodhue, 19 U. C. Chy. 366. See also Toronto <L- L. Huron Ry.
Co. v. Crookshank, 4 U. C. Q. B. 318.
(j) Reg. v. Boardman. 30 U. C. Q. B. 555-6, per Richards, C. J.
(t) Ibid.
(1) Ex parte Papin, 8 C. L J. N. S. 122.
(m) Reg. v. Black, 43 U. C. Q. B. 192.
(n) Smith v. McGowan, 11 U. C. Q. B. 399 : Gabrvl \. Derbyshire, 1 U.
C. C. P. 4-22.
6 THE CRIMINAL LAW OF CANADA.
to be apprehended except with reference to foreign rela-
tions, (a)
It remains to be considered what Imperial statutes have been
held to have been introduced into the various Provinces of the
Dominion and the principle of theiradoption,premisingthat the
40 Geo. III., c. 1, did not introduce the English law into the
Province of Ontario to any other or greater extent than the
1.4 Geo. III., c. 83, had into the Province of Quebec ; and that
as to the extent of introduction, there is no material difference
between those "colonies of the Dominion in which it is held
to be in force on common law principles and those in which
it is so by an express statute or proclamation.
There is no precise or defined rule, nur any direct decision
as to what Imperial statutes extend to the colonies. This
must of necessity be left open for decision in each particular
colony and case by the courts, the ultimate forum being the
Privy Council, (p)
English statutes of general and universal application, regu-
lating the ordinary affairs of life, apply to the colonies, and
in some cases where an act is only impliedly made an offence
in England, (q) And an Imperial Act, though in force gener-
ally for the reason just stated, may be held inapplicable in
cases of a special nature, where the peculiar condition of the
country would render its enforcement inconvenient, (r) In
applying these rules, however, it is to be borne in mind, that
in the early settlement of a colony, when the local legis-
lature has been just called into existence, and has its atten-
tion engrossed by the immediate wants of the members of
the infant community in their new situation, the courts of
judicature would look naturally for guidance, in deciding
upon the claims of litigants, to the general laws of the
Mother Country, and would exercise greater latitude in the
(o) Reg. v. Schram, 14 U. C. C. P. 322.
(p) Uniacke v. Dickson, 1 James, 299, per Hill, J. ; ex parte Kousse, S.
L. C. A. 322, per Sewell, C. J. ; Dillingham v. Wilson, 6 U. C. Q. B. 0. S.
86, per Sherwood, J.
(q) Cronyn v. Widder, 16 U. C. Q. B. 361, per Robinson, C. J.
(r) Reg. v. McCormack, 18 U. C. Q. B. 131.
INTRODUCTORY CHAPTER, 7
adoption of them than they would be entitled to do as their
local legislature, in the gradual development of its powers,
assumed its proper position. And increasing lapse of time
should render the courts more cautious in recognizing Eng-
lish statutes which have not been previously introduced, (s)
It is suggested as even worthy of grave consideration
whether, after the existence of an independent legislature for
nearly a century, the adoption of Imperial enactments is not
rather the province of the legislature than of the courts, (t)
If, after the grant of a constitution and independent powers
of legislation, an English statute is introduced into a colony,
though afterwards repealed in England, it will still continue
to apply in the colony ; because the provisions of the re-
pealing statute, which are substituted for the repealed statute,
extend not to the colony. (?t)
There seems to be a distinction between the common and
statute law extending to the colonies. As a code colonists
have been disposed to adopt the whole of the former, with
the exception of such parts only as are obviously incon-
sistent with their new situation ; whilst far from being
inclined to adopt the whole body of the statute law, they
hold that such parts only are in force as are obviously
applicable and necessary for them. As respects the common
law, adoption forms the rule ; as regards the statute law, the
exception, (v)
In conclusion, we will give the more important English
criminal statutes which have been held to be in force in
this country, stating as far as possible the reasons for their
adoption.
Notwithstanding the 19 Vic., c. 49, passed in this Pro-
vince, the 12 Geo. II., c. 28, as to lotteries, is in force here ;
first, because it comes within our adoption of the criminal
(s) Uniacke v. Dickson. 1 James, 287, per ffaUburton, C. J.
(t) Ibiti.
(M) Kerr v. Burn*, 4 Allen, 609 ; following Jamex v. McLean, 3 Allen,
164.
(v) Uniacke v. Dicteon, 1 James, 289, per Haliburton, C. J.
8 THE CRIMINAL LAW OF CANADA.
law of England as it stood in 1792, and next, because this
statute and other statutes of the same nature, and resting on
the same footing, have been treated in our courts as being in
force. (?/;)
The statute 32 Henry VIII., c. 9, which prohibits the buying
of disputed titles, is in force in Ontario, as it constitutes part
of the criminal law of England adopted by the 40 Geo. III., c.
1. (a;) In the case of Shea v. Choat, (y) it was held that the
statute 5 Eliz., c. 4, is not in force in Ontario, but the statute
20 Geo. II., c. 19, is, though both statutes are of a date long
anterior to the introduction of the English law in this Pro-
vince. In giving judgment in this case, the learned Chief
Justice Robinson says in reference to the 5 Eliz., c. 4, that
"it cannot possibly admit of doubt that its provisions are
inapplicable to any state of things that ever existed here.
A clause here and there might be carried into effect in this
colony, or anywhere, from the general nature of their provi-
sions, but that is not sufficient to make such a statute part
of our law, when the main object and tenor of it is wholly
foreign to the nature of our institutions, and is therefore
incapable of being carried substantially and as a whole into
execution." (z)
The 28 Geo. III., c. 49, s. 1, as to perjury, is local in its
character, and therefore is not in force here, (a)
In Heg. v. Mercer (1) it was held that the 5 & 6 Edw. VI.,
c. 16, against buying and selling offices, is in force in this
country, under the 40 Geo. III., c. 1, as part of the criminal
(w) Uniacke v. Di kson, 1 James, 356-361 :see also as to lotteries and the
12 Oeo. II., c. 28 ; Corby v. McDaniel, 16 U. C. Q. B. 378; Marshall v.
Platt, 8 U. C. C. P. 189 ; Lloyd v. Clark, 11 U. C. C. P. 250, per Draper,
C. J. ; Mewburn v. Street, 21 U. C. Q. B. 306.
(x) Beasley q. t. v. Cahill, 2 U. C. Q. B. 320 ; see also Baldwin q. t. v.
Henderson, 3 U. C. Q. B. 287 ; Btnns q. t. v. Eddie, 2 U. C. Q B 286 ;
Aubrey, q. t. v. Smith, 1 U. C. Q. B. 213 ; May, q. t. v. Dettrick, 5 U. C. Q.
B. 0. S. 77 ; Ross, q. t. v. Meyers, 9 U. C. Q B. 284 ; Mc.Kenzie v. Milb-r,
6 U. C. Q. B. 0. S. 459 ; Smith v. Hall, 25 U. C. Q. B. 554.
(y)2U. C. Q. B 211.
(z) Ibid. 221
(a) Keg. v. Row, 14 U. C. C. P. 307.
(6) 17 U. C. Q. B. 602.
INTRODUCTORY CHAPTER.
law of England. The 49 Geo. III., c. 126, applies here, and ex-
pressly extends the 5 & 6 Edw. VI., c. 16, to the colonies, or
at least such of its provisions as are in their nature appli-
cable, (c) Probably the 3 Edw. I., c. 26, is in force here, (d)
The 1 W. & M., c. 18, s. 18, is in force here, notwithstand-
ing the Con. Stats. Can., c. 92, s. 18, and a person offending
against the former statute may be punished, (e)
The 32 Geo. III., c. 1, introducing the law of England as to
property and civil rights into the Province of Ontario, in-
cluded the law generally which related to marriage, that is,
the common and statute law of England applicable to the
state of things existing in this colony at the time the Act was
passed. The stat. 26 Geo. II., c. 33, being in force in England
when our stat. 32 Geo. III., c. 1, became law, was adopted, as
well as other statutes, so far as it consisted with our civil
institutions, being part of the law of England at that time
" relating to civil rights." It would seem, however, that the
llth clause of 26 Geo. II., c. 33, is not in force in this coun-
try. (/)
The 8 Henry VI., c. 9, 6 Henry VIII., c. 9, 8 Henry IV.,
c. 9, and 21 James I., c. 15, as to forcible entry, are in
force here; (g) so the 8 & 9 Wm. Ill, c. 27; (K) so the 33
Henry VIII., c. 20 ; (i) so the Mutiny Act, 25 Vic., c. 5, s.
72 ; (/) so by the 14 Geo. III., c. 83, the 9 Geo. I, c. 19, and
6 Geo. II., c. 35, which impose certain penalties on persons
selling foreign lottery tickets, have been made to form part
of the law of Quebec. (&)
(c) Reg. v. Mercer, 17 U. C. Q. B. 602; see also Reg. v. Jfoodie, 20 U.
C. Q. B. 389 ; Foott \: Bullock, 4 U. C. Q. B. 480.
(d) Askin v. London District Council, 1 U. C. Q. B. 292.
(e) Reid \. fnyli*, 12 U. C. C. P. 195, per Draper, C. J.
(/) Rt,/. v. Roblin, 21 U. C. Q. B. 352-5; Hodgins v. McNeil, 9 Grant,
305 ; 9 U. C. L. J. 125 ; Reg. v. Seeker, 14 U. C. Q. B. 604 ; but see Reg.
v. Bdl, 15 U. C. Q. B. 287.
(g) Boulton v. Fitzgerald, 1 U. C. Q. B. 343 ; Rex. v. McKreari/, 5 U. C.
Q. B. 0. S. 625.
(h) Wragg v. Jarvis, 4 U. C. Q. B. 0. S. 317.
(i) Doe dem Gillespie v. Wixon, 5 U. C. Q. B. 132.
(j) Reg. v. Dawes, 22 U. C. Q. B. 333.
(k) Ex parte Rousst, S. L. C. A. 321.
10 THE CRIMINAL LAW OF CANADA.
The 21 Geo. III., c. 49, prohibiting amusements and enter-
tainments on the Lord's Day has been held to be in force in
Ontario, though the propriety of the decision may be ques-
tioned. (I)
EXTRADITION,
For the purposes of this chapter, it may be said that where,
upon a requisition by the Government of Canada or the
United States, a person found within the territories of either
nation, charged with murder, assault with intent to commit
murder, piracy, arson, robbery, the utterance of forged paper,
or forgery committed within the jurisdiction of the other, is
delivered up to justice, pursuant to the Ashburton Treaty,
and the statutes passed to give effect thereto, the surrender
under such circumstances is called extradition.
Jurists are not unanimous on the question whether in the
absence of treaty stipulations there is any obligation recog-
nized between nations to make such surrender. But the
better opinion seems to be that, in an international point of
view, the extradition of criminals is a matter of comity, and not
of right, except in cases specially provided for by treaty, (m)
The law of England does not recognize it as an inter-
(l) Reg. v. Barnes, 45 U. C. Q B. 276.
See further on the general subject Hesketh v. Ward, 17 U. C. C. P. 667 ;
Merger v. Hewston, 9 U. C. C. P. 349 ; Heartly v. Hearns, 6 U. C. Q. B. 0.
S. 452 ; Torrance v. Smith, 3 U. C. C. P. 411 ; James v. McLean, 3 Allen,
164; Marks v. Gilmour, 3 Allen, 170; ex parte BiMtin, 2 Allen, 211 ;
fish v. Doyle, Draper, 328 ; Purdy q. t. v. Ryder, Taylor, 236 ; Reg.
v. Street, 1 Kerr, 373 ; Doe dem Allen v. Murray, 2 Kerr, 359 ;
Milner v. Gilbert, 3 Kerr, 617 ; Morrison v. Me Alpine, 2 Kerr, 36 ; ex
parte Ritchie, 2 Kerr, 75 ; Reg. v. McCormick, 18 U. C. Q. B. 131 ;
Pringle v. Allan, 18 U. C. Q. B. 575 ; Warner, v. Fyson, 2 L. C. J. 105 ;
Reg. v. Beveridge, 1 Kerr, 58 ; Attorney-General v. Warner, 7 CJ. C.
C. ' Q. B. 399 ; Lyons in re, 6 U. C. Q. B. O. S. 627 ; Hallock v. Wilson, 1
U. C. C. P. 28 ; Davidson v. Boomer, 15 U. C. Chy. 1, 218 ; Hambly v.
Fuller, 22 U. C. C. P. 141 ; Maulson v. Commercial Bank, 2 U. C. Q. B.
338 ; Stark v. Ford, 11 U. C. Q. B. 363 ; Hearle v. Ross, 15 U. C. Q. B.
259 ; Reg. v. Wells, 17 U. C. Q. B. 545 ; Andreiv v. White, 18 U. C. Q. B.
170 ; Reg. v. Slavin, 17 U. C. C. P. 205 ; Thompson v. Bennett, 22 U. C. C.
P. 393 ;' Gordon v. Fuller, 5 U. C. Q. B. 0. S. 174 ; Gaston v. Wald, 19 U.
C. Q. B. 586 ; Stinson v. Pennock, 14 U. C. Chy. 604 ; Georgian Bay
Transportation Co. v. Fisher, 27 U. C. Chy. 346.
(m) Re Anderson, 11 U. C. C. P. 61, per Richards. J. ; Reg. v. Young ;
9 L. C. J. 44, per Badgley, 3.
EXTRADITION. 11
national duty in the absence of treaty stipulations, and the
Habeas Corpus Act, 31 Car. II., c. 2, s. 12, in effect prohibits
it in the case of subjects, except fugitives from one part of
Her Majesty's dominions to another, (w)
As the same views were maintained by the United States,
the necessity for a treaty on the subject between that nation
and Great Britain was soon felt. Accordingly on the 19th of
November, 1794, Jay's Treaty, which, however, extended
only to murder and felony, was entered into. It continued
in force till the outbreak of the American war in 1812, when
its operation ceased, and from the conclusion of the treaty of
peace between Great Britain and the United States until the
passing of the 3 Wm. IV., c. 6, in 1833, the extradition of
criminals between the two countries rested entirely upon
state authority and the general law of nations, (o)
The first case in which the subject of extradition was
discussed in this couiitry was Re Fisher, (p) decided in 1827.
Jay's Treaty not then being in force in Quebec, the decision
proceeded on the general principles of international law.
The court held that the Executive Government had power to
deliver up to a foreign state a fugitive from justice charged
with having committed any crime within its jurisdiction.
In another case, in 1833, Lord Aylmer, then Governor of
Canada, refused to deliver up four prisoners for extradition,
saying the executive could not, in the absence of treaty or
legislation on the subject, dispense with the Habeas Corpus
Act ; but in the same year this defect was remedied iu
Ontario by passing the 3 Wm. IV., c. 6, Con. Stat., U. C., c: 96.
The extradition of criminals between the United States
and Canada is now regulated by the Ashburton Treaty or
Treaty of Washington, and the statutes passed to give effect
thereto. The treaty, which was passed for purely national
purposes, (q) was signed at Washington on the 9th of August,
(n) R>g. v. Tubbee, 1 U. C. P. R. 102-3, per Macaulay, C. J.
(o) See judgment of Macaulay, C. J. Beg. v. Tubbee, 1 U. C. P. R. 100-1.
(p)S. L. C. A. 245.
(q) Reg. v. Young, the St. Alban's Raid, 167, per Smith, J.
12 THE CRIMINAL LAW OF CANADA.
1842, by Lord Ashburton on behalf of Great Britain, and
Daniel Webster on behalf of the United States. The rati-
fications were exchanged at London on the 30th of October
following.
Immediately on its ratification, the necessity of legislation
for the purpose of carrying its provisions into complete effect,
was felt by each of the high contracting parties. The English
legislature, on the 22nd August, 1843, passed the 6 & 7
Vic., c. 76, entitled " An Act for giving effect to a Treaty
between Her Majesty and the United States of America, for
the apprehension of certain offenders."
The 5th section of that statute gave the Parliament ot
this country supreme authority to enact laws, and effectually
carry out the provisions of the treaty within the limits of
our territory, (r) But colonial legislative action was allowed
only for the purpose of carrying into effect the objects of the
Imperial Act within the colonial jurisdiction, according to
the local circumstances and position of each colony and
dependency.
This delegated power of local legislation was therefore
absolute in its nature, but restricted in its purport and extent
by the objects of the Imperial Act. These objects once
secured by the local law, the procedure, or, in other words,
the machinery for obtaining its required purposes, was left
to the discretion of the local legislature, to be provided for
according to the circumstances and position of each colony ; (s)
and the procedure under the treaty may be changed by our
legislature, (t]
In pursuance of the powers thus conferred, provision was
afterwards made by our legislature for giving effect to the
treaty by the enactment of the 12 Vic., c. 19, (u) upon the
passage of which, the operation of the Imperial Statute 6 & 7
Vic., c. 76, was suspended by Order in Council, dated the
(r) Reg. v. Young, 9 L. C. J. 38, per Smith, J.
(«) Ibid. 45, per Badgley, J.
(t) Ibid.
(u) Con. Stat. Can. , c. 89.
EXTRADITION. 13
28th of March, 1850, and the suspension directed to continue
so long as our substituted enactment should remain in force.
This statute, after reciting certain inconveniences which had
arisen from the English Act, in effect enacted sections 2, 3,
O ' '
and 4 of the latter, with this addition, that section 2 of our
Act sanctioned a requisition from the United States, or "any
of such States."
No further change was made until the passing of the 23
Vic., c. 41, in 1860, which repealed the Con. Stats. U. C.,
c 96. In 1861, the 24 Vic., c. 6, was passed. This Act did
not require the Queen's proclamation, or an order of Her
Majesty in Privy Council, to give it effect, but had the force
of law here without either, (v) The statute was passed in
consequence of the legal complications arising in the Anderson \
case, (w) In order to avoid, if possible, the blunders of
ignorant and incompetent magistrates, the Act deprived
ordinary justices of the peace of the power to deal with
extradition offences, and vested it only in superior officers of
the courts, such as judges of the superior or county courts,
recorders, police or stipendiary magistrates. It repealed
the 1st, 2nd, and 3rd sections of the Con. Stat. Can., c. 89,
and substituted other provisions in lieu thereof. These
substituted sections applied only to the technical procedure
of the local law, by giving practical, improved, and additional
facilities for carrying out the law, and in this respect were
simply verbal amendments in codem sensu of the previously
existing enactments, (x) The Act has omitted the words
" any such States," which in the prior Acts were superfluous,
and their omission in this Act renders it more perfectly
conformable with the terms of the treaty and of the Imperial
Act, and with the delegated power of legislation by the
colonial legislature ; (y} for by the terms of the treaty and
the Imperial Act, "jurisdiction" and " territories" are synony-
(v) Reg. v. Young, 9 L. C. J. 29.
(w) 20 U. C. Q. B. 124.
(x) Reg. v. Young, 9 L. C. J. 48, per Badyley, J.
(y) Ibid. 49, per Badgley, J.
14 THE CRIMINAL LAW OF CANADA.
mous, and the addition of the words " or of any such States "
would be useless, as being, in fact, included in the general
aggregate expression "United States of America." (z)
These words are not in the Imperial Act, and it seems our
legislature exceeded its authority in introducing them into
the 12 Vic., c. 19. The mistake probably arose from a desire
more fully to explain that the word jurisdiction used in the
treaty was to extend over the several States in the same
sense in which it was used when applied to the United
States, (a) In this case it was strongly contended that these
words were necessary in the statute — that the jurisdiction
of the United States, and that of the several States, are
separate and independent of each other, and that the
omission of these words necessarily and intentionally re-
stricted the operation of the Ashhurton Treaty to offences
committed solely within the jurisdiction of the United States,
and that when the offence was committed within the limits
of any one of the States, it was not covered by the treaty.
The court, in holding as already shown, declared that the
surrender of persons for imputed crimes'can only be made by
the supreme executive authority of independent nations, and
that in the United States it existed in thrt supreme federal
legislature of the nation, and thus, as the object of the
treaty could only be attained by the national power, it did
not reside in any one of the United States. (6)
The Act also makes two alterations in the rules of pro-
cedure. The evidence produced before the magistrate was
not to be " sufficient to sustain the charge according to the
laws of this Province," but " such as, according to the laws
of this Province, would justify the apprehension and com-
mittal for trial of the person accused," etc. The language of
Eobinson, C. J., in the Anderson case, (c) shows that, accord-
ing to the proper construction of the treaty, the former
(z) Reg. v. Young, 9 L. C. J. 51, per Badgley, J.
(a) Reg. v. Young, ihf. St. A Iban's Raid, 169, per Smith, J.
(b) Ibid. 167-9, per Smith, J.
(c) Re Anderson, 20 U. C. Q. B. 168, per Robinson, C. J.
EXTRADITION. 15
expression has the same meaning as the latter ; and as the
12 Vic., c. 19, used the former only, probably it was amended
so as not to conflict with the treaty in this respect.
The other alteration is in the second clause, and consisted
in omitting the words, " or under tJie hand of the officer or
person having the legal custody thereof" (d)
The 31 Vic., c. 94, (e) the next statute on the subject, came
into operation on the 8th of August, 1868, and was passed
to extend the provisions of the 24 Vic., c. 6, to the whole
Dominion. (/) It is in substance the same as that statute
which it superseded and repealed, together with the Con.
Stat. Can., c. 89. So much of the first section of this Act
as is in the words following, that is to say, "or any Police
Magistrate or Stipendiary Magistrate in Canada, or any Judge
of the Sessions of the Peace in the Province of Quebec, or
any Inspector and Superintendent of Police empowered to act
as a justice of the peace in the Province of Quebec," \va>
repealed by the 33 Vic., c. 25.
This was the condition of our statute law at the time of
the passing of the Imperial Extradition Act, 1870, an enact-
ment that has given to our procedure a degree of uncertainty
which it would have been wise to have avoided. The statute,
after providing for the practice to be applicable to extradition
in general, in sec. 27, enacts that " The Acts specified in the
third schedule to this Act" (including the 6 & 7 Vic., c. 76)
" are hereby repealed as to the whole of Her Majesty's do-
minions ; and this Act (with the exception of anything
contained in it which is inconsistent with the treaties referred
to in the Acts so repealed; shall apply (as regards crimes
committed either before or after the passing of this ACL) in
the case of the foreign States with which those treaties are
made, in the same manner as if an Order in Council referring
to such treaties had been made in pursuance of this Act, and
(d) See 31 Vic., c. 94, s. 2.
(e) See Stat. 1869, Reserved Acts.
(/) R?g. v. Morton, 19 U. C. C. P. 21, per H',7*oij, J.
16 THE CRIMINAL LAW OF CANADA.
as if such order had directed that every law and ordinance
which is in force in any British possession with respect to
such treaties should have effect as part of this Act." Two
cases have arisen for adjudication in this country under the
above statute, one in Ontario, (g] the other in Quebec, (fi) in
which the section just quoted was held to render the Imperial
Act, as modified by our 31 Vic., c. 94, and 33 Vic., c. 25, the
governing enactment with regard to extradition of criminals
from this country to the United States; and the same statute
has also been held to be in force with reference to extradition
to France, (i) It had been thought that sec. 132 of the
B. N". A. Act, delegated to the Dominion Parliament full
authority to legislate for Canada with reference to treaties
between the Empire and foreign nations, and it was under
this impression that our 31 Vic., c. "94, was passed ; (/) and
it mio-ht be contended that the Extradition Act, 1870, being;
o o
general in its terms, and the powers conferred by the B.N.A.
Act on our Parliament being special, and an integral part of
our constitution, has not the effect of overriding sec. 132 of
that enactment, and therefore is not in force in this country.
It seems hardly reasonable that the provisions of a statute
which affect the constitution of the Empire should be held to
be annulled by general words. This point, however, was not
taken in either of the cases above, cited, and remains unde-
termined, so that at present the Extradition Act, 1870, must
be considered as part of the extradition law of this country.
And perhaps the Extradition Act, 1877, (k) passed by our
Parliament, which by its terms is to come into force pro-
vided the operation of the Imperial Extradition Act, 1870,
" shall have ceased or been suspended within Canada," might
be held to have the effect of obviating the difficulty referred to.
But these cases, though they determine that the Imperial
Act is in force in this country, throw but little light upon
(</) Re Williams, 7 U. C. P. R. 275.
(h) Rf, Rosenbaum, 18 L. C. J. 200.
(i) Ex parte Taschmacker, 6 R. L. 828.
(j) See remarks of Ramsay, J., in Re Rosenbaum, 18 L. C. J. 200.
(k) 40 Vic., c. 25, D.
EXTRADITION. 1 7
the manner in which it is to be read in connection with our
statute. The apparent object of the British Parliament in
passing the Act in question was to repeal the different statutes
which had, from time to time, been enacted with reference to
extradition, and to introduce a uniform procedure under all
treaties then made, or which might thereafter be entered into,
and at the same time to save all existing treaties in their full
integrity and force.- (/) A further provision is made by the
section above quoted for cases where, in any British posses-
sion any law or ordinance exists with respect to treaties in
force at the time of passing the Act.
But for'that section the operation of our 31 Vic. ,c. 94, and
33 Vic., c. 25, would have ceased, as they depended on the
Imperial statute, 6 & 7 Vic.,c. 76, which the Extradition Act,
1870, repeals. This action of the British Parliament in saving
existing colonial legislation, would seem to indicate an inten-
tion not to disturb our local procedure ; and if this surmise
be correct, the proper construction of the several enactments
would be to give precedence to our statute in all ca^es where
Imperial and Canadian legislation conflict.
As the statutes already mentioned are the only legislation
on the subject in this country, it follows that the Extradition
Act, 1870, in its integrity, is the code of procedure in extra-
dition from Canada to all foreign countries other than the
United States ; and with reference to that country the same
statute is in force, but modified by our colonial legislation
existing at the time of its passage.
In 1873 the statute 36 & 37 Vic., c. 60, was passed by the
Imperial Parliament, amending the Extradition Act, 1870 ;
but none of its provisions require particular mention in this
place.
Having discussed the various enactments relating to the
extradition of criminals, let us now consider how the treaty
and statutes are to be construed and carried out in order lo
(1) Re Bouv,er, 42 L. J. N. S. Q JB. 17.
B
18 THE CRIMINAL LAW OF CANADA.
effect the objects they were designed to accomplish. These
were the surrender by each country to the other of fugitives
from justice, charged with certain specified crimes ; (m) and
thereby to subject parties against whom a charge coming
within the treaty and statutes is sustained by evidence of
criminality to be put upon trial before the proper tribunal of
the country where the offence was committed; (n) anl thus
to prevent the failure of justice which would naturally result
from offenders in one country seeking refuge in the other,
and there being amenable to no punishment : for by the
principles of the common law pervading the jurisprudence
of both Great Britain ami the United States, crinles are un-
questionably considered local, and cognizable exclusively
within the country where they are committed, (o)
Extradition laws are to be interpreted by the law of
nations, in so far as the obligations created by them on the
part of one nation to another are concerned ; and the then
existing public law of both nations forms an essential part of
the national compact which is created by the passage of an
extradition treaty. Consequently, on the passing of our Ex-
tradition Acts, the public law of Great Britain, as well as
the public law of the United States, became incorporated
into the national compact, (p)
The words of this treaty should not be held to too narrow
a construction ; and if the words used to carry out a design of
general utility can properly be construed so as to give effect
to and not defeat that design, the larger construction must
ha adopted, (q) The treaty must be construed in a liberal
and just spirit; not laboring with legal astuteness to find
flaws or doubtful meanings in its words, or in those of the
legal forms required for carrying it into effect. Its avowed
object is to allow e ich country to bring to trial all prisoners
(m) Reg. v. Morton, 19 U. C. C P. 18, per Harjarty, C. J.
(n) Keg. v. Reno, 4 U. C. P. R. 299, per Draper, 0. J. ; the Chesapeake
case. 44. per Rib-hie, '.
(o) Ib'ul. 44, per Ritchie, J.
(p) Re(j. v. Young, the St. Alban'* Raid, 469, per Smith, J.
(q) Re Warner, 1 U. C. L. J. N. 8. 18, per Hagarty. J.
EXTRADITION. 19
charged with the expressed offences, and it is based on the
assumption that each country should be trusted with the trial
of offences committed within its own jurisdiction. We are
to regard its avowed object in construing its provisions, (r)
and should look to it for an indication of what was probably
meant by anything that may seem ambiguous in the language
of the statutes. (s)
The treaty applies to all persons being subjects of both
nations, and as well slaves as freemen, (t) The words of
the 31 Vic., c. 94, and of the Extradition Act, 1870, are
large enough to embrace all persons, subjects, denizens, or
aliens, who have committed the crimes enumerated in the
United States and who are found in Canada; and a British
subject committing one of the crimes enumerated in the
treaty within the jurisdiction uf the United States, and
afterwards fleeing to Canada, is subject to the provisions of
the treaty, and the statutes which provide for the surrender
of " all pardons " who, being charged, etc. (u) So a person
convicted of forgery, or uttering forged paper, in the United
Suites, who escapes to Canada after verdict but before judg-
ment, is liable to be surrendered, although, technically speak-
ing, after judgment or verdict of guilty, a man is incorrectly
spoken of as "charged with a crime" in the language of the
statute, (v) But political offenders have always been held
to be excluded from any obligation of the country in which
they take refuge to deliver them up, whether such delivery
is claimed to be due under friendly relationship or under
treaty, unless, in the latter case, the treaty expressly includes
them, (w)
The treaty, in express terms, includes seven different
offences, viz., murder, assault with intent to commit murder,
(r) Re Burley, 1 U. C. L. J. N. S. 49-50, per Hajarty, J. ; and see Reg.
v. Paxton, 10 L C. J. 216, per Dnimmond, J.
(*) Re Anderxon, 20 U. <J. Q. B. 160, per Robinson, C. J.
(t) Ibid 124; 11 U. C. C. P. 1.
(u) Re Barley, 1 U. C. L. J N. S. 34 : Ibid. 20.
(v) Re Warner, 1 U. C. L J N. S. 16.
(tc) Reg. v. Young, the St. Atari's Raid, 470, per Smith, J.
20 THE CRIMINAL LAW OF CANADA.
piracy, arson, robbery, forgery, and the utterance of forged
paper. These offences are not political but social, though
the governments of Great Britain and the United States
have made national laws for each respectively, thereby giving
them a municipal legal character, (x) The stipulations of the
treaty, with regard to the definitions of the crimes covered
by it, are to be carried out in conformity with the municipal
laws of both countries, in so far as they agree, (y)
The governments of these two countries, in making the
treaty, were dealing with each other upon the footing that
each had at that time recognized laws applicable to the
offences enumerated, and that these laws would not, in all
cases, be the same in both countries. The agreement to sur-
render to each other criminals of certain classes was based
upon the fact of the persons being criminals by the laws of
the country from which they came, provided the evidence of
criminality, according to the laws of the place where the
fugitive so charged should be found, would justify his appre-
hension and commitment for trial if the crime or offence had
been there committed, (z) In the case in which this principle
was enunciated, it was held that, as slavery was tolerated in
the United States, and the apprehension of a fugitive slave
was authorized by law, such slave could not lawfully resist
apprehension in older to gain his freedom, though our law
conferred it upon every man, and consequently, that a slave,
so resisting, might be guilty of murder, and not necessarily
of manslaughter only, (a)
So far as we in Canada are concerned, the treaty and
statutes are to be construed according to our laws in regard
O O
to the offences comprised within their provisions. In other
words, the offence must be one of those enumerated accord-
ing to our law, and the notions we entertain as to the
ingredients necessary to constitute it. (b)
(x) Reg. v. Young, 9 L. C. J. 44, per Badgley, J.
(y) Jbid., the St. Alban's Raid, 469, per Smith. J.
(2) Re Anderson, 20 U. C. Q. B. 190, per Burns, J.
(a) Ibid.
(b) Re Smith, 4 U. C. P. R. 215.
EXTRADITION. 21
But our law is not absolutely to govern as to the particular
offence in all its ingredients, and in relation to whatever
circumstances may have influenced the party in committing
it. Before this rule could prevail, there should be a similarity
between the law of the State from which the person has fled
and that of our country, in all the features and attributes of
the particular crime. To some extent it might be reasonable
to hold that the law of the two countries should be found
to correspond. For example, if it were the law of a State
that every intentional killing by a slave of his master, how-
ever sudden, should be held to be murder, without regard
to any circumstances of provocation, or of any necessity of
self-defence against mortal or cruel injury, then a fugitive
slave who, accoiding to the evidence, could not be found
guilty of murder without applying such a principle to the
case, could not legally be surrendered b}' the treaty. It can-
not, however, be held that, because a man could not, in the
nature of things, be killed in this country while he was
pursuing a slave, because there are not, and by law cannot
be. any slaves here, therefore a slave who has fled from a
slave State into this country, cannot be given up to justice
because he murdered a man in that State who was at the
time attempting to arrest him under the authority of the law,
in order to take him before a magistrate, with a view to his
being sent back to his master.
Under such circumstances, reference should be had to the
positive law of the slave State, to the conduct of the party
pursuing and the party pursued, to the knowledge of the
latter that the purpose for which it was desired to arrest
him was n-.it contrary to the law of the country, or to the
fact (if it should be so) that there was no apparent necessity
to inflict death in order to escape, (c)
There are several decisions in our own courts as to the
particular offences covered by the treaty. Among the
earliest and most important of these is the Anderson case, (d)
(c) Re Anderson, 20 U. C. Q. B. 170-1, per Robinson, C. J.
(d) Ibiil. 124.
22 THE CRIMINAL LAW OF CANADA.
In that case, A., being a slave in the State of Missouri,
belonging to one M., had left his owner's house with the
intention of escaping. Being about thirty miles from his
home, he met with D., a planter, working hi the field with
his negroes, who told A. that as he had not a pass he could
riot allow him to proceed; but that he must remain until
after dinner, when he, D., would go with him to the adjoin-
ing plantation, where A. had told him that he was going.
As they were walking towards D.'s house, A. ran off, and D.
ordered his slaves, four in number, to take him. During the
pursuit, D., who had only a small stick in his hand, met A.,
and was about to take hold of him, when A. stabbed him
with a knife, and as D. turned and fell, he stabbed him
again. D. soon afterwards died of his wounds. By the law
of Missouri, any person may apprehend a negro suspected of
being a runaway slave, and take him before a justice of the
peace. Any slave found more than twenty miles from his
home is declared a runaway, and a reward is given to whom-
soever shall apprehend and return him to his master. A.,
having made his escape to this country, was arrested here
upon a charge of murder; and the justice before whom he
appeared having committed him, he was brought up in the
Court of Queen's Bench upon a habeas corpus, and the evi-
dence returned upon a certiorari. It was contended that as
A. acted only in defence of his liberty, and upon a desire to
gain his freedom, there was no evidence upon which to
found a charge of murder, if the alleged offence had been
committed here, and that he could cot be demanded under
the treaty ; but the court held that the prisoner was liable
to be surrendered, for his right to resist apprehension must
be governed by the law of the place where the offence was
committed.
In Re Beebc (e) the court held that burglary is not an
offence within the meaning of the treaty, or the statutes passed
to give effect to the treaty.
(e) 3 U. C. P. R. 273.
EXTRADITION. 23
A prisoner was arrested in Ortario for having committed
in the United States the crime of forgery, by forging, coining,
counterfeiting, and making spurious silver coin; but the court
held that the offence as above charged does not constitute the
crime of forgery within the meaning of the treaty or Act, for
it was not forgery according to our law. (/) In ex parte E.
S. Lamirande, (g) the couit held that the making of false
entries in the books of a bank does not constitute the crime
of forgery according to the law of England or Canada, and
the prisoner, therefore, was not liable to be extradited on the
requisition of the French authorities under the Imp. statute
6 & 7 Vic., c. 75. But where a prisoner was charged with
having forged a resolution of a city council as to the issue of
bonds, by altering the amount for which the issue was author-
ized, and of having forged a bond of the said city, it was
held, on an application for his discharge, that the resolution
being an essential preliminary to the issue of the bond, and the
bond being an instrument which might be the subject of
forgery, although not executed in strict accordance with the
code of the State in which the bond was issued, there was
a prima facie case made out against the prisoner, and that he
should be remanded. (It)
In Re Lewis f(i) where the prisoner was charged with assault
with intent to commit murder, in that he had opened a railway
switch with intent to cause a collision, whereby two trains
did come into collision, causing a severe injury to a person on
one of them, it was held that this was not an assault within
the treaty.
It seems piracy, as used in the treaty, was intended to
apply to piracy in its municipal acceptation, cognizable only
by tribunals having jurisdiction either territorially or over
the person of the offender. If, however, it signify piracy in
its primary and general sense, as an offence against the law
(/) Rf. Smith, 4 U. C. P. R. 215.
(/7) 10 L. C. J. 280.
(h\ Reg. v. Hooey, 8 U. C. P. R. 345.
(t) 6 U. C. P. R. 236.
24 THE CRIMINAL LAW OF CANADA.
of nations, it can only come within the operation of the treaty
when a pirate, having gone into one or other of the countries,
and so made himself amenable to its courts, and after having
been there legally charged with the offence, has fled or been
subsequently found within the territory of the other, (j)
When an act assumes an international character, and is
sanctioned by the aggregate power of a nation claiming to
exercise belligerent rights, all private jurisdiction over it, as
regards individual responsibility, ceases, and it is beyond the
reach of the treaty or the statutes. In such case, reference
can only be had to the arbitrament of the sword. And an
offence cannot be divested of its international character, by
selecting from an act — referable for its approval or censure
only to the law of nations — a portion of, or an incident in,
such act, and then attempting to subject such portion or such
incident to trial by a municipal tribunal ; for the whole of
the details and incidents which in the aggregate constitute
a national or hostile act, must be taken together, (k) In
accordance with these principles, it was held that the St.
Alban's Eaid (the facts of which are given in the report) was
a hostile expedition, authorized by a Government entitled to
claim belligerent rights, and should be disposed of by inter-
national law, founded on the rights of belligerents, arid not
by a neutral judge, (ii)
This principle was also recognized in Hurley's case, (jj] In
the latter case, the counsel for the defence contended that
the act charged was committed by the prisoner while engaged
in an act of hostility duly authorized by the Confederate
States against the United States ; and no doubt, if this had
been established, the court would have discharged the
prisoner. But it was held that, under the circumstances of
the case as shown, as well on the part of the prosecution as
of the defence, the accused, who took the property of a non-
(j) The Chesapeake case, 44-5.
(k) Reg. v. Young, the St. Alban's Raid, 454, per Smith, J.
(ii) Ibid.
(jj) 1 U. C. L. J. N. S. 20 and 34.
EXTRADITION. 25
combatant citizen, by violence, from his person, was guilty of
robbery, and liable to be surrendered under the treaty. The
same principle was also very fully recognized in the most
important case of the Chesapeake, in New Brunswick. There
evidence was produced to establish an authority from the
Government of the Confederate States, as recognized bel-
ligerents, for the commission of the acts charged.
An accessory before the fact is liable to extradition, but not
an accessory after the fact, (kk}
Where the crime comes within the treaty, it is immaterial
whether it is, according to the laws of the United States, only
a misdemeanor and not a felony: our concern is to deal with
these foreign offences in our own countiy in like manner as
if they had been committed here — to enforce the treaty
effectually and in good faith, and to leave all questions of
municipal law between the foreign authorities and their
prisoners to be dealt with and settled by their own system,
with which, in that respective have nothing whatever to do. (I)
Having set out the cases in which the construction of the
treaty was involved, the procedure for giving effect thereto
will now be considered. This, as before stated, is governed
by the Imperial Extradition Act, 1870, as modified by our
31 Vic., c. 94, and 33 Vic., c. 23.
With reference to the warrant of arrest, the 31 Vic., c. 94,
sec. 1, as amended by the 33 Vic., c. 25, provides that any
Superior or County Court Judge, or any Recorder of a city
in Canada, or any Commissioner appointed for the purpose
by the Governor under the Great Seal, may issue such
warrant. The Extradition Act, 1870, by section 8, gives the
same power to "a Police Magistrate or any Justice of the Peace
in any part of the United Kingdom," and in section 1 7 pro-
vides that the Act shall " extend to every British possession
in the same manner as if throughout this Act the British pos-
sessions were substituted for the United Kingdom or England,
(kk) Reg. v. Browne, 6 App. 386.
(/) Re Caldiceil, 6 C. L. J. N. S. 227 ; 5 U. C. P. R.
217.
26 THE CRIMINAL LAW OF CANADA,
as the case may require," but with certain modifications, which
in many respects are inapplicable to Canada. The authority
to try extradition cases was formerly vested in police magis-
trates and justices of the peace, but that authority was
expressly taken from them by our legislature, as already
stated ; and a difficulty now raised by the above sections of
the Imperial Act, is whether they have the effect of re-
clothing magistrates and justices with the powers of which
they had been stripped.
It has been held in Quebec, on a construction of these sec- •
tions, (m) that a judge in sessions may take the preliminary
enquete in matters of extradition, and this apparently on the
ground that he is while so acting a justice of the peace.
However this may be, the Imperial Act, being permissive in
its terms, has not, it is submitted, the effect of ousting the
jurisdiction of our superior and county court judges under
our 31 Vic, c. "94.
When application is made to a judge or magistrate for a
warrant of arrest under the treaty, his first consideration, pro-
vided he have jurisdiction in other respects, should be, whether
the alleged offence is within its terms. But for the treaty and
the statutes, the proceedings by a magistrate, in respect of a
crime committed in the United States, by way of arresting
or committing the accused to prison, would be coram non
judice, and upon habeas corpus the prisoner would be entitled
to his discharge. The whole power to deal with a crime in
a foreign country is derived from the treaty and the statutes,
and there is no jurisdiction or power to take any proceedings
under the treaty, except for one of the offences mentioned
therein ; (n) and if the judge or magistrate does not find by
his warrant that one of these offences has been committed,
the whole case fails, and no legal power exists to correct or
supply the defect, (o)
(m) Re Konigs, 6 Jtevue Let/ale, 213, Q. B. 1874.
(n) Re Anderson, 11 U. C. C. P. 52-3, per Draper, C. J.
(o) Ibid. 68, per Hagarty, J.
EXTRADITION. 27
In considering, therefore, the right to arrest and detain, it
ought clearly to appear that the prisoner is charged with an
offence within the treaty. If doubtful whether it is one of
those enumerated or not — if, for instance.it is not clear whether
the offence alleged to have been committed amounts to murder
or manslaughter — that interpretation should be adopted which
is most in favor of the liberty of the accused; and as man-
slaughter is not mentioned in the treaty, the party should not
be arrested and detained, (p}
It was held in the Chesapeake case, that the magistrate
must have jurisdiction, judicially as well as territorially,
over the offence, and that if it were of such a character that
he would have no jurisdiction over it when committed in
this country, neither the treaty nor the statute authorized
an inquiry fur the purpose of committing the offender, when
his offence arose in the United States. This case, however,
was under the Imp. Stat. 6 <fe 7 Vic., c. 76, which only era-
powered any "justice of the peace or other persons" to act
under the treaty. The tendency of recent legislation in
Canada has been to vest this power in the superior magis-
tracy of the country ; and if it is still held that they must
have a judicial as well as territorial jurisdiction over the
offence, the jurisdiction is nevertheless very much enlarged;
unless, indeed, the Extradition Act, 1870, be held to have the
effect of enlarging our statutes in this respect.
The following case, which may still be useful, shows the
authority for appointing a magistrate to act under the 31
Vic., c. 94, the powers which the appointment confers, and
also that they are not affected by the circumstances that
another magistrate has, after hearing evidence, etc., dis-
charged the fugitive :
The prisoners were arrested at Toronto, under a warrant
issued by one M., on an information laid by B., charging
them with robbery, committed with violence, in one of the
(p) Re Anderson, 11 U. C. C. P. 62-3, per Richards, J.
28 THE CRIMINAL LAW OF CANADA.
United States of America, and stating the information to
have been laid before " the undersigned police magistrate in
and for the county of the city of Toronto, amongst other
counties appointed under and by virtue of the Act of the
Parliament of Canada, 28 Vic., c. 20, entitled," etc. The war-
rant of arrest described M. as police magistrate for all these
counties, naming them in full, and the warrant of commit^
ment as police magistrate for the county of Essex, amongst
other counties appointed under and by virtue of the above
Act (but no commission empowering him to act was pro-
duced on this application, which was for the prisoners' dis-
charge under a writ of habeas corpus). Under this warrant
the prisoners were conveyed to S., in the county of Essex,
and evidence was given there, before M., of the robbery in
question, consisting of certain depositions taken in the
United States, before a justice of the peace there, on
which an original warrant of arrest was issued by him.
These depositions had been taken, and warrant issued,
after the arrest at Toronto. On this evidence, the prisoners
were committed to custody, to await The warrant of the
Governor General for their extradition to the United States.
The prisoners, it seemed, had been previously arrested in
Toronto on the same charge, and been discharged by the
local police magistrate, after a lengthened investigation had
before him. It was held that this discharge did not prevent
another duly qualified officer from entertaining the charge
against them, on the same or on fresh Xaterials, and that the
failure of one magistrate, from mistake or otherwise, to commit
persons charged for extradition, cannot prevent the action
of another. It was held, also, that the 29 & 30 Vic., c. 51, s.
373 (now repealed and re-enacted by (Ont.) 32 Vic., c. 6, s.
11), only applied to any case arising in any town or city in
Ontario, and did not preclude M. from taking the informa-
tion of B. and issuing his warrant in Toronto, where there
was already a police magistrate ; for that the words of the
section merely excluded him from jurisdiction there in local
EXTRADITION. 29
cases, but did not apply to cases arising under the extradi-
tion laws.
It was further held, that the appointment of M. might
well have been made under 28 Vic., c. 20, for any one or for
all the counties of Ontario, including Toronto, and his power
made the same as a police magistrate in cities, except as
regarded purely municipal matters, and that this Act was
continued by (Out.) 31 Vic., c. 17, s. 4; but that as nothing
was suggested in any way impugning the possession by M. of
the authority to act, the ordinary rule must prevail, and the
warrant be treated as executed by an officer possessing such
authority, (q)
Under our statute, the 31 Vic., c. 94, a warrant might be \
issued in the first instance in this country, and the proceed- \
ings under the treaty and statutes initiated here, (?•) it not
being necessary that an original warrant should have been
granted in the United States; but section 10 of the Extra- /
dition Act, 1870, seems to require the foreign warrant to be /
issued at any rate before the commitment of the prisoner. /
It is not a condition precedent to the jurisdiction of the
magistrate that a requisition should be first made by the
Government of the United States upon the Canadian Gov-
ernment, or that the Governor General of Canada should
first issue his warrant requiring magistrates to aid in the
arrest of the fugitives, (s) If, however, a Secretary of State
should order a magistrate to proceed under the statute, his
jurisdiction cannot be impeached upon the ground that the
terms of the treaty have not been complied with. This
might be a reason for the Secretary refusing to make such an
order ; but having made it, and the magistrate having acted
under it, all the court has to do is to look at the statute
and see whether he had jurisdiction under it. (t)
(q) Reg. v. Morton, 19 U. C C. P. 9.
(r) He Anderson. 11 U. C. C. P. 53, per Draper, C. J. ; Reg. \. Morton,
19 U. C. C. P. 19, per Hagarty, J. ; Re Caldwed, 6 C. L. J. N. S. 227 ; 5
U. C. P. R. 217.
(*) Re Barley, 1 U. C. L. J. N. S. M ; Reg. v. Young, 9 L. C. J. 29 ;
Extraditioii Act, 1870, sec. 8.
(0 Re Counhaye, L. R. 8, Q. B. 416, per Blackburn, J.
30 • THE CRIMINAL LAW OF CANADA.
The judge or magistrate issuing the warrant for the appre-
hension of the offender, is the person before whom the evidence
in support of the charge must afterwards be heard, and who
must determine upon its sufficiency ; (u] but his decision is
not binding on the governor, and the latter may, notwith-
standing, order the prisoner's discharge ; (v) for the magistrate
must send or deliver to the governor a copy of all testimony
taken before him, that a warrant may issue upon the requisi-
tion of the United States for the surrender of the prisoner
pursuant to the treaty, (w) Nor is the opinion of the committing
magistrate conclusive on the prisoner ; for, if adverse to the
latter, he may still apply to the governor, whose decision
may possibly be influenced by considerations which a court
could not entertain, (x) And it seems doubtful whether it
was not the intention of the extradition statutes to transfer
to the governor exclusively the consideration of all the evi-
dence, that he might determine whether the prisoner should
be delivered up.
It may be observed here, that the surrender of persons for
imputed crimes can only be made by the supreme executive
authority of independent nations, (y) By the British North
America Act, 1867, s. 132, the Parliament and Government
of Canada shall have all powers necessary or proper for
performing the obligations of Canada, or of any Province
thereof, as part of the British Empire, towards foreign
countries, arising under treaties between the Empire and
such foreign countries. No doubt, the Ashburton Treaty is
covered by this clause, and that under it the Governor General
has power to deal with extradition cases to the exclusion of
the Lieutenant-Governors of the several Provinces.
(u) The Chesapeake case, 46 ; Re Anderson, 20 U. C. Q. B. 165-9, per
Robinson, C. J.
(v) Ibid. 189, per Burns, J. ; Reg. v. Reno and Anderson, 4 U. C. P. R.
295, per Draper, C. J.
(w) Re Burley, 1 U. C. L. J. N. S. 45, per Richards, C. J. ; Re Ander-
son, -20 U. C. Q. B. 165-189 ; see 31 Vic., c. 94, s. 1 ; also Extradition
Act. 1870, s 8.
(x) Reg. v. Reno and Anderson, 4 U. C. P. R. 295, per Draper, C. J.
(y) Reg. v. Young, the St. Alban's Raid, 167, per Smith, J.
EXTRADITION. 31
The surrender, also, must be by the Governor General, as
representing the Government. (2) Rut his power is confined
within the letter of the local law ; and he is powerless to
act against fugitives charged with the commission of any
other of the formidable list of offences, social and political,
not enumerated in the treaty, because these are not con-
tained within the local law. It seems, too, that the courts
may, to some extent, control or direct the action of the
Executive ; for when a party is committed under a magis-
trate's warrant, he may apply to any of the superior courts
or judges for a habeas corpus, and that the court in term, or
the judges in vacation, may determine whether the case be
within the treaty, and, if not, whether a legal power in
surrender the prisoner is, nevertheless, reposed in the Execu-
tive Government; and if so, then whether a case was
made out which entitled the Government to grant such sur-
render, (rt) The governor is not authorized to surrender the
prisoner until the expiration of fifteen days after his com-
mitment, (b) This provision was probably inserted in the
statute to give the prisoner an opportunity of having the
magistrate's decision reviewed on habeas corpus and ccrtiorari.
The fact that the person is charged with piracy committed
in the foreign country ought not to prevent the governor
from surrendering him on the charge made and proved in
this country. But if the charge in this country is robbery,
and the requisition on behalf of the government of the
foreign country be for his extradition for the crime of piracy,
he could not be surrendered under a warrant of commitment
for robbery. And if his surrender is demanded for any other
offence than the one for which he has been committed, it
must be refused, (c)
Looking at the statute, (d) we find that the commitment of
the prisoner is to be made upon such evidence as, according
(2) Reg. v. Tubbee, 1 U. C. P. R. 98.
(a) /6ik/
(6) Extradition Act, 1870. 8. 11.
(c) Re Burley, 1 U. C. L. J. N. S. 45-6, per Richards. C. J.
(d) Extradition Act, 1870, as. 10 and 17.
32 THE CRIMINAL LAW OF CANADA.
to the laws of the Province in which he has been apprehended,
would justify his committal for trial, if the crime of which
he is accused had been committed therein. This seems to
impose on the judge or magistrate the same duties as devolve
upon justices of the peace, on charges of indictable offences
committed within our own jurisdiction ; and when he would
commit for trial under a similar state of facts arising in this
country, he is bound to commit for trial under the treaty,
and our statutes passed to carry it out. (e) The authority
of the judge or magistrate does not extend beyond the
inquiry indicated by the statute ; (/) but he is bound to see
that the commitment for extradition is warranted by the
statute, and that the offence is sustained by evidence which
in our own courts would prima facie establish the crime
charged, (g) When such prima facie case is made, out, and
the^evidence in defence is not clear and conclusive, a jury is
the only constitutional tr i b u n aT w hie iTcan "CteteTmTn e whether
evidence offered to displace the impressiou which the prima
facie case is calculated to make, does or does not satisfactorily
displace it; and all questions of intent, or of fact or inference,
should be submitted to them, (h) The judge or magistrate,
therefore, should not go beyond a bare inquiry as to the
prima facie criminality of the accused, and should not
inquire into matters of defence which do not affect such
criminality ; such, for instance, as whether the prosecution
of the offender is barred by a statute of limitations in the
foreign country, or whether there is a probability of the
ultimate conviction of the prisoner therein, (i) Conflicting
or unsatisfactory evidence in answer to a strong prima facie
case, though perhaps properly receivable, would not justify
the magistrate in discharging the prisoner ; (/) for it is to be
(e) Re Burley, 1 U. C. L. J. N. S. 48, per Richards, C. J.
(/) Reg. v. Reno and Anderson, 4 U. C. P. K. 281.
(g) Reg. v. Morton, 19 U. C. C. P. 25, per Wilson, J. ; exparte Lamirande,
10 L. C. J. 2^0.
-(h) Reg. v. Gould, 20 U. C. C. P. 159, per Owynne, J.; the Chesapeake
case, 48.
(i) Exparte Martin, 4 C. L. J. N. S. 200, per Morrison, J.
r (j) Reg. v. Reno and Anderson, 4 U. C. P. K. 281.
EXTRADITION.
observed that he cannot try the case here, nor weigh
conflicting evidence, nor assume the functions of a jury by
deciding as to the credibility of witnes es. (k) In the Burley
case, the accused, on his examination before the magistrate,
admitted the acts charged, which prima facie amounted to
robbery, and alleged, by way of defence, matter of excuse
which was of an equivocal character and bore different
interpretations, and the court held that the magistrate could
not try the case, nor act on the explanatory evidence by way
of defence: but the prima facie evidence being sufficient
to justify the committal of the prisoner, the facts necessary
to rebut the prima facie case could only be determined by
the courts of the United States.
If there is not sufficient evidence of criminality, the
magistrate ought not to commit ; if there is, he ought, not-
withstanding the evidence is sufficient, if true, to prove an
alibi. If he discharges because the evidence pro and con. is
equally strong, and he cannot determine which side is telling
the truth, he is in error, because, in either of these cases, if
he pursued any other course, he would, for many purpos-s,
be assuming the functions of a jury, and, on a preliminary
investigation, trying the whole merits of the case, though
the inquiry was only instituted to ascertain whether the
evidence of criminality would justify the apprehension and
committal tor trial of the person accused. (/)
If the facts proved admit of different interpretations as to
the intent with which the prisoner acted, this is no ground
for refusing to commit for extradition, because the question
of intent is for the jury on the trial, (m) Thus, if the charge
is of assault with intent to commit murder, it is no objection
that the facts proved are as much evidence of other felonious
(i) Reg. v. Reno and Anderson, 4 U. C. P. R. 281; Re Burley, 1 U. C.
L. J. N. S. 34; Rfj. \. Young, tte St. Albaii's Raid, 449, per Smith, J.;
ex parte Martin, 4 C. L. J. N. S. 200, per Morrison, J.
(/) Rey. v. Reno and Anderson. 4 U. C. P. R. 299, per Draper, <J. J. : R*
Burley, 'l U. C. L. J. N. S. 46, per Richards, C. J.
(m) The Chesapeake cage, 48.
(
34 THE CRIMINAL LAW OF CANADA.
intents as of the intent to murder, (n) And if the evidence
presents several views, on any one of which there may be a
conviction, if adopted by the jury, the court is not called
upon to determine which of the views is best supported, but
may commit the prisoner for surrender, (o)
The magistrate should remember that the citizens of a
foreign country are entitled to precisely the same measure of
justice as our own people, (p) But he should not hesitate in
committing the prisoner for extradition from any fear that he
will not be fairly dealt with in the United States ; and, even
if he is satisfied that the prisoner will not be tried fairly and
without prejudice in the foreign country, he cannot refuse
to give effect to the statute by acting on such an assump-
tion, (q) But he must assume that courts in other countries
will be governed by the same general principles of justice
which prevail in our own courts, and that the prisoner will
have a fair trial after his surrender, (r) We are not to over-
look or forget for an instant that we are dealing with a
highly civilized people, most tenacious of their liberty, whose
laws are similar to our own, but administered with more of
the common law technicality than we have thought it ex-
pedient to retain, by which many avenues are left open for
criminals to escape which we have closed ; (s) so that a
prisoner is more likely to be acquitted in the United States
than here.
An information stating that the prisoner was apprehended
" on suspicion of felony " was held too general, as not con-
taining a charge of any specific offence, (t) The information
in this case was considered as for an ordinary offence, com-
mitted within our own jurisdiction. But it is no objection
(») Reg. v. Reno and Anderson, 4 U. C. P. R. 296, per Draper, C. J.
-, (o) Reg. v. Gould, 20 U. C. C. P. 154.
(p) Re Kermott, 1 Chr. Reps. 256, per Sidlivan, J.
(q) Re Anderson, 20 U. (J. Q. B 173, per Robinxon, C. J.
(r) Reg. v. Reno and Anderson, 4 U. C. P. R. 299, per Draper, C. J. ;
Re Burley, 1 U. C. L. J. N. S. 48, per Richards, C. J.
(«) Reg. v. Morton, 19 U. C. C. P. 25, per Wilson, J.
(t) Reg. v. Young, the St. Alban'n Raid.
EXTRADITION. 35
lo the information and complaint on which the magistrate
issues his warrant for the arrest of the party, in the first
instance, that the complainant was not an eye-witness of the
tacts to which he deposes, or that they are stated on infor-
mation and belief ; at least, the offender may be lawfully
brought before a justice, and detained a reasonable time,
until the proper evidence can be produced. (%)
In Re Kermoit (v) a question was raised, whether a com-
mittingmagistrate could detain a prisoner on evidence
amounting only to a ground of suspicion, for the purpose of
other evidence being imported into the case, so as to bring
it within the treaty ; but it was held that neither the treaty
nor the statutes contemplate the surrender of an accused
person upon mere suspicion, (w) But where a magistrate
was in receipt of telegrams from high persons in France and
England, informing the police and the Consul of France of
the escape of an individual whom they described, and also of
an affidavit of the German Consul, stating that he had reason
to believe him guilty, it was held that he was justified in
detaining him until the arrival of proof, (x) However this
may be, there is no doubt of the magistrate's power to detain
the prisoner when the evidence is clear and satisfactory as
to his guilt, and this even although he has been arrested
upon a void warrant. Thus, where a prisoner was committed
for extradition, it was held on habeas corpus that the material
question was, being in custody, whether a sufficient case was
made out to justify his commitment for the crime charged ;
that it was immaterial that the original information, warrant,
etc., were irregular and detective, if, on the hearing, sufficient
appeared to justify the commitment; that it would be absurd
to discharge the prisoner because the warrant might be void
when the evidence, on the hearing, would justify re-arresting
M:
(«) Re Anderson, 20 U. C. Q. B. 151, per Robimon, C.J. : Reg. v. Reno
and Anderson, 4 U. C. P. R. '287.
(v) 1 Chr. Rep. 253.
.(w) Ibut. 256.
(x) Re Konigs, 6 R. L. 213. Q. B.
36 THE CRIMINAL LAW OF CANADA.
him the next moment, and that the commitment must there-
fore be upheld, (y)
In Re Anderson, (z) it was held that, when a person is
brought before the court upon a writ of habeas corpus, and
the warrant of commitment upon which he is detained
appears on its face to be defective, the court before whom
the prisoner is brought has no authority to remand him, and
that such power is only possessed by the court, in virtue of
its inherent jurisdiction at common law, and does not extend
to proceedings under the Extradition Treaty and statutes.
But it has been held in Quebec that a Judge of Sessions,
when a prisoner is brought before him on the original
warrant ot arrest, has power to remand under the treaty and
statutes; and when the remand appointed no day for the
further examination of the prisoner, and an application was
made lor a habeas corpus (before the eight days after the
remand had expired), (a) on this ground, and on the ground
that the judge had no power to remand, the writ was refused,
the court holding that the power to remand was essential to
the performance of the magistrate's duties, and that the
irregularity in not fixing the day was unimportant, (b)
The provision in the statutes as to the evidence of crim-
inality being sufficient to justify the apprehension and
committal for trial, if the offence had been committed here,
merely furnishes a test as to the kind of 'evidence required, (c)
So far as regards the means of proof, there can be no doubt
that it is our law which must govern, according to the
provision in the statute. If, for instance, the law of the
States, or any of them, should admit a confession extorted
from a party by violence or threats, to be used against him
on a charge of an offence coming within the provisions of the
treaty, such evidence could not be admitted here, (d)
(y) Ex parte Martin, 4 C. L. J. N. S. 198.
(z) 11 U. C. C. P. 1.
(a) See 32 & 33 Vic., c. 30, a. 41.
(b) Rty. v. Young, the St. Alban's Raid, 15.
(c) Re Warner, 1 U. C. L. J. N. S 18, per Hagarty, J.
(d) Re Andervon, 20 U. C. Q. B. 169, per Robimon, C. J.
EXTRADITION.
37
The judge, or other person acting, may proceed upon
original viva voce testimony, in like manner as " if the crime
had been committed in this Province." He may, however,
also receive the original depositions, (e) or duly authenticated
copies thereof, on which the original warrant was issued in
the United States, in evidence of the criminality of the
accused. (/) But as the Extradition Statutes are enabling
Acts, there is no obligation on the part of the prosecutor to
produce such depositions, (g]
Under the third section of our statute, 31 Vic., c. 94, the
depositions that may be received as evidence of the crimin-
ality of the prisoner must be those upon which the original
warrant was granted in the United States, certified under the
hand of the person issuing it, and not depositions taken sub-
sequently to the issue of the warrant, or, not in any way
connected therewith, (h] But under the Imperial Extradition
Act. 1870, depositions duly authenticated aie receivable in
evidence, whether they are taken in the particular charge or
not, and whether taken in the presence of the accused or not,
it being left to the magistrate to give what weight he thinks
proper to depositions so taken, (i) And the depositions and
statements on oath, and the copies thereof, referred to in the
14th section of the Extradition Act, 1870, are made to include
affirmations and copies of such affirmations, (j)
As the statute permits depositions taken in a foreign court
to be used in lieu of oral testimony, when the case depends
wholly upon such depositions, we must be strict in seeing
that they are depositions coming clearly within the meaning
and provisions of the section, (k) and that the forms and
technicalities of the statute have been strictly complied
(e) Reg. v. Mathew, 7 U. C. P. R. 199 ; Key. v. Browne, 6 App. R. 386.
(/) Re CaldweU. 6 C. L. J. N. S. 227 ; 5 U. C. P. R. 217, per A. Wilson, J.
(g) Ibid. 227, per A. Wilson, J.
(A) Key. v. Roblnxon, 6 C. L. J. X. S. 98 ; 5 U. C. P. R. 189 : Reg. T.
Browne, 6 App. R. 38fi
(i) Re Counhaye, L. R. 8, Q. B. 410.
" (j) Extradition Act, 1873, 36 & 37 Vic., c. 60.
(i) Rey. \: Robinson, 6 C. L. J. X. S. 99, per Morrison, J.
88
THE CRIMINAL LAW OF CANADA.
with. (I) An affidavit sworn before a justice of the peace in
the United States, not being a copy of any original deposition*
properly certified, is not admissible as evidence, nor is the
objection cured by the consent of the prisoner's counsel, (m)
The evidence of a professional gentleman as to the law of
the United States is properly admissible before the magis-
trate, (n) But where the evidence against a prisoner of
having uttered a forged instrument was not otherwise suffi-
cient, th««court would not look at an indictment against him
found by the grand jury of an American court, (o) and a mere
copy of such an instrument is clearly inadmissible, (p)
In the St. Allan's Raid case, the examination of the wit-
nesses for the prosecution was conducted in the manner
prescribed by the 32 & 33 Vic., c. 30, s. 29 et seq., as to
offences committed here. The prisoner was allowed to cross-
examine the witnesses, and the depositions certified that he
had the opportunity of doing so. The voluntary statement
of the prisoner was taken, as by s. 31 of this statute, at the
request of the Crown counsel. The judge, however, declined
to express an opinion as to its legality. (q)
Previously to the passing of the Extradition Act, 1870, the
extent of the magistrate's authority to receive evidence on
behalf of the prisoner was not very clearly defined, although
the question had been discussed in several important
cases, (r)
But by section 9 of that statute it is provided that the
magistrate shall " hear the case in the same manner, and have
• the same jurisdiction and powers, as near as may be, as if
the prisoner were brought before him charged with an in-
dictable offence committed " here ; and " shall receive any
(1) He Lewis, 6 U. C. P. R. 236.
(m) Re Anderson. 20 U. C. Q. B. 183, per McLean, J.
(n) Ibid. 172, per Robinson, C. J.
(o) Reg. v. Howy, 8 U. C. P. R. 345.
(p) fie Rosenbaum, 18 L. C. J. 200 ; Reg. v. Browne,. 6 App. R. 386.
(q See also the Chesapeake case on these points.
(r) Reg. v. Young, the St. Alban's Raid ; the CJietapeake case ; Re Bur ley*
1 U. C. L. J. N. S. 34.
EXTRADITION. 39
evidence which may be tendered to show that the crime of
which the prisoner is accused or alleged to have been con-
victed is an offence of a political character, or is not an ex-
tradition crime."
Under this statute it has been held that the judge or
magistrate has no authority to hear the prisoner's defence,
but that in the exercise of his discretion he might hear any
evidence tendered to show that the offence was of a political
character or one not comprised in the treaty, or that the ac-
cuser was not to be believed upon oath, or that the demand
for the prisoner's extradition was the result of a conspiracy, (s)
In Re Caldwell, (t) the court held that the evidence of
an accomplice was sufficient to establish the charge for the
purpose of extradition, and that magistrates holding pre-
liminary examinations might undoubtedly act on the evi-
dence of an accomplice, as the matter in investigation is
merely whether the accused shall be put upon his trial or
not ; and when all questions as to how far the accomplice is
entitled to credit will be duly considered at the proper time.
It seems, also, the evidence of a slave may be received, (u)
If the prisoner is committed for surrender on insufficient
evidence, a judge in chambers will, on writs of h<
corpus and certiorari, order his discharge, (v)
It had been held by the Court of Queen's Bench, in Eng-
land, in the Anderson case, (ztf)after the judges of our courts
had refused to discharge the prisoner, that the Imperial courts
had jurisdiction to issue a writ of habeas corpus into this
country to bring up the body of Anderson, and they accord-
ingly granted the writ. This action of the English courts
caused much complaint in Canada, as being an unwarranted
interference witli our judicial prerogatives ; and to prevent
future proceedings of a like kind, the Imperial Statute 25
(s) Re Rosenbaum, 20 L. C. J. 165, Q. B.
(t) 6 0. L. J. X. S. 2-27 : 5 U. C. P. R. 217.
(u) Rr Ainlr*»n, 20 U. C. Q. B. 182, per McLean, J.
(v) Re Kermott, 1 Chr. Rep. 2o3.
(w) EJ: parte Anderson, 3 L. T. Reps. N. S. 622 : 7 Jur X. S. 122.
4(1 THE CRIMINAL LAW OF CANADA.
Vic., c. 20, was passed, which provides that no habeas corpus
shall issue out of any court in England to any colony or
foreign dominion of the Crown in which any courts exist
having power to issue and ensure the due execution of writs.
Some doubt was entertained under our 31 Vic., c. 94,
whether it was competent for the Superior Courts to inter-
fere in the case of an offender coming clearly within the
treaty, after the judge or magistrate who heard the evidence
had determined that, in his opinion, it sustained the charge,
and had transmitted to the governor a copy of the testimony
and committed the prisoner to gaol under the first section of
the Act, No provision is made by that statute for granting
a writ of habeas corpus, except in the case where the prisoner
has not been delivered up within two months after his com-
mitment; and although the necessity for a controlling power
in the superior courts was strongly felt, grave doubts were
expressed by several judges of high authority as to whether
any such power existed, (x) But by section 11 of the Extra-
dition Act, 1870, the police magistrate, on committing a
prisoner, shall inform him that he will not be surrendered
until after the expiration of fifteen days, and that he has a
right to apply for a writ of habeas corpus ; so that it wonld
seem that under this section, independently of the general
question, our superior courts have authority to exercise the
same control in extradition matters as they have over magis-
trates acting in the administration of the ordinary criminal
law.
The following case is important as to the sufficiency of the
evidence. The express car of a railway train, on one of the
roads in the United States of America, was broken into, and
plundered by five or more men, two or three of whom fired
at the conductor who was endeavoring to stop them as they
were moving off with the engine. The conductor was at the
(z) See Reg. v. Reno and Anderson, 4 U. C. P. R. 281 ; Re Anderson, 20
U. C. Q. B. 124 ; Re. Warner, I U. C. L. J. N. S. 16 ; Kcrmott's case, I
Chr. Rep. 253 ; Tubbee's case, 1 U. C. P. R. 98 ; Re Burley, 1 U. C.
L. J. N. S. 46.
EXTRADITION. 41
time about eight feet from the person who fired the first shot,
and the ball passed through his coat. This person was a
brother of Reno, one of the prisoners apprehended. The
express messenger swore to the identity of the prisoners, and
as to the identity of the person who fired the first shot. Tti3
prisoners were arrested in Canada, at the instance of the Express
Company, and demanded for extradition by the United
States authorities. The prisoners offered evidence on their
examination to prove an alibi. Draper, C. J. (in Chambers),
held that, under the circumstances of this case, there was
sufficient prima facie evidence of the criminality of the
prisoners to warrant a refusal to discharge them, and that
th^re was evidence to go to a jury to lead to the conclusion
that the intent of the prisoners was, at the time of shooting,
to commit murder. (?/)
The court above must be fully satisfied there is no legal
ground on which the decision of the magistrate can be supported
before it is reversed, (z) and it would seern that if in one
view of the evidence the court find the decision sustainable,
they ought not to interfere and reverse it. (a) Where the
prisoner was brought before a judge in General Sessions, on
the original warrant of arrest, and remanded before final
commitment, the court doubted their power to interfere by
habeas corpus until final commitment. (6)
The following case bears on the question of return to the
writ of habeas corpus :
Where, after the prisoners were committed by a justice
for extradition, a writ of habeas corpus, directed to a gaoler,
was sent to the Clerk of the Crown, with a return stating
that he held the prisoners under a warrant of committal
annexed, but was unable to produce them for want of means
to pay their conveyance. This return having been marked
by the clerk, " received and filed, 26th September, 1868," and
(y) Reg. v. Reno and Anderson, 4 U. C. P. R. 281.
(z) Reg. v. Gould, 20 U. C. U. P. 161, per Hagarty, J.
(a) Ibid.
(b) Reg. v. Young, the St. Alban's Raid, 15.
42 THE CRIMINAL LAW OF CANADA.
signed by him, a judge in chambers made an order allowing
these papers to be withdrawn, for the purpose of having
another return made. The prisoners were afteiwards pro-
duced, with the writ to which the foregoing return was
annexed, and another, stating that the prisoners were held
under the warrant already spoken of, and a subsequent
warrant, by which an alleged defect in the first was intended
to be cured. It was held that the first return was, in fact,
no return, merely alleging matters of excuse for not making
a return, and that, when a writ of habeas corpus is return-
able before a judge in chambers, the return cannot be filed
until it has been read before the judge, and that the second
return was the only one in this case, and, it having been
openly read, was duly filed, (c) The return might have been
amended if necessary, (d)
The commitment authorized by the Extradition Act is
peculiar, and should conform to our 31 Vic., c. 94. (e) It is
not a commitment for safe custody, in order that the party
may be afterwards brought to trial within our jurisdiction,
but a commitment for safe custody, there to await the warrant
of a Secretary of State for his surrender. (/) For it is not
the function of the magistrate to determine whether the
prisoner should be extradited, but to remand him and report
the facts to the proper executive authority, (g)
The warrrant of commitment should follow the terms of
the statute, and should use the technical term " murder" (or
as the case may be) in describing the offence, for although in
ordinary cases, where the crime under investigation has been
committed in our own country, the technical precision and
accuracy necessary in an indictment is not required in a
warrant, yet neither this rule, nor the reason for it, apply to
extradition cases. In the latter, there is only a special statu-
te) Rtg. v. Reno and Anderson, 4 U. C. P. R. 281.
(d) Ibid. 291, per Draper, C. J.
(c) Ex parte Zink, 6 Q. L. R. 260.
(/) Extradition Act, 1870, s. 10 ; ex parte Zink, supra.
(g) Ex parte Zink, 6 Q. L. R. 260.
EXTRADITION. 43
tory jurisdiction conferred on the magistrate, and, therefore,
the warrant in the execution of the statutory power, thus
limited, should adhere to the terms of the statute, in order
that it may appear clearly that the offence is one of those to
which the treaty and the statutes directly apply, (ti)
In the Anderson case, when before the Court of Common
Pleas, it was held that a warrant of commitment which used
the words, "did wilfully, maliciously, and feloniously stab
and kill," and omitted the word " murder," and " with malice
aforethought," and concluded by instructing the gaoler to
" there safely keep him (the prisoner) until he shall be thence
delivered by due course of law," instead of the words of the
Act, directing the prisoner to remain in gaol until his sur-
render, upon the requisition of the proper authority, or until
he should be discharged according to law, did not come within
the provisions of the treaty 01 statute, and was consequently
defective, (i)
If the warrant has not the proper statutory conclusion,
all that appears on its face is, that the prisoner remains in
custody for an offence alleged to have been committed by
him in a country over which our courts have no jurisdiction,
and without any explanation of the authority for such com-
mitment, or of the object of it ; and the prisoner would be
released on habeas corpus. (/) In ordinary cases, where
the offence is against the Queen's peace, and where the
court acts in virtue of its inherent jurisdiction as a court over
the offence, if the warrant of commitment appeal's to be de-
fective, but the depositions show that a felony has been com-
mitted, the court will look at the depositions, and remand
the prisoner, in order that the defect may be corrected. But
in extradition cases, as the authority of the court is derived
wholly from the treaty and the statutes, and by the latter the
(k) Re Anderson, 20 U. C. Q B. 162, per Robinson, C. J. ; 11 U. C. C.
P. 53-63 ; the Chesapeake case, 41.
(i) 11 U. C. C. P. 1 ; the Chesapeake case, 50.
ft) Re Anderson, 20 U. C. Q. B. 163, per Robinson, C. J. , ex parte Zink,
6 Q. L. R. 260.
44 THE CRIMINAL LAW OF CANADA.
duty of deciding on the sufficiency of the evidence is cast on
the committing magistrate, (&) they cannot look at the depo-
sitions, to ascertain whether the detention is warranted ; and
as they cannot remand the prisoner, (/) if the warrant of
commitment does not show a sufficient cause for the deten-
n of the latter, he must be discharged, (w)
A warrant of commitment, which does not show that the
magistrate, deemed the evidence sufficient, according to the
laws of the Province in which he has been apprehended,
to justify the apprehension and committal for trial of the
person accused, if the crime of which he is so accused had
been committed therein, is bad. (n) The warrant must show
that the offence was committed within the jurisdiction of the
United States, (o) But it need not set out the evidence
taken before the committing magistrate, nor show any pre-
vious charge made in the foreign country, or requisition from
the Government of that country, or warrant from the Governor
General of Canada, authorizing and requiring the magistrate
to act. (p) But a warrant of commitment which omitted to
state that the accused was brought before the magistrate or
that the witnesses against him were examined in his presence
was held to be bad on its face, and set aside, (q) The adju-
dication of the committing magistrate, as to the sufficiency
of the evidence for committal may, however, be stated, by
way of recital, in the warrant, (r)
A warrant of commitment, which directed the gaoler to
receive the body of W. H., " and him safely keep for examin-
ation," was held defective in not mentioning the day, or
limiting the time during which the prisoner was to be
confined, (s) But in this case the warrant was considered as
(k) Ante p. 30.
(I) Ante p. 25.
(ra) Re Anderson, 11 U. C. C. P. 1 et. seq.
(n) The Chesapeake case, 51 ; He Anderson, 11 U. C. C. P. 64, per
Richards, C. J. ; ex parte Zink, 6 Q. L. R. 260.
(o) The Chesapeake case, 4-45.
(p) Re Burley, 1 U. C. L. J. N. S. 34.
(q) Ex parte Brown, 2 L. C. L. J. 23, Q. B.
(r) Re Burley, supra,
(s) Reg. v. Young, the St. Alban's Raid, 5.
EXTRADITION. 45
for an offence committed in Canada. It was held, in one
case, that the words in an information and warrant of com-
mitment " did feloniously shoot at with intent, and in so
doing, feloniously, wilfully, and of malice aforethought to
kill and murder," involved "an assault with intent to commit
murder," within the language of the last Act, 31 Vic., c. '.'4.
and, therefore, they were not bad on that ground, though it
would have beeu more prudent to have followed the precise
description of the offence given by the statute, (t)
It is not indispensable that the authority of the magistrate
should be shown on the face of the warrant of commitment ;
and where the crime has been committed in a foreign coun-
try, and the committing magistrate has jurisdiction in even-
county in Ontario, the warrant is not bad though dated at
Toronto, the county mentioned in the margin being York, but
directed to the constables, etc. of the county of Essex, and
being signed by the police magistrate, as such, for the county
of Essex, (u)
But where the commital is in pursuance of a special
authority, the warrant must be special and must exactly
pursue that authority, (v)
In Re Warner (w) the court held that it is in the power
of a magistrate, acting under the treaty and statutes, after
issue of a writ of habeas corpus, but before its return, though
after an informal return, to deliver to the gaoler a second or
amended warrant, which, if returned in obedience to the
writ, must be looked at by the court, or a judge, before whom
the prisoner is brought ; and Hagarty, J., (x) thought that
although a magistrate, after his first warrant, transmitted
copies of the testimony to the Governor, or even after com-
mitting the prisoner in the first instance, he is not precluded
from issuing a second warrant in proper form against the
prisoner.
(t) Reg. v. Reno and Anderson, 4 U. C. P. R. 281.
(«) Ibid.
(v) Ex parte Zink, 6 Q. L. R. 260
(w) 1 U. C. L. J. N. S. 16.
(x) Ibid. 17.
4b THE CRIMINAL LAW OF CANADA.
Bail may be granted to extradition prisoners in a proper
case, as to other offenders. And where a prisoner was com-
mitted for extradition to the United States, as the court
would not sit at Montreal before the lapse of seven days
from the commitment, his counsel applied to the court at
Quebec by habeas corpus for bail, which was granted, (y) If
the prisoner is discharged on the hearing of the warrant of
arrest, there can be no bail required as a condition of such
discharge, (z)
A prisoner charged with forgery in Canada was arrested in
the United States and surrendered by the Government of
that country under the treaty, upon application for bail, on
the ground that there was no evidence of the corpus delicti.
It was held that the depositions taken in Canada expressly
charging the prisoner with forgery, followed by an application
for the prisoner's surrender and his surrender accordingly,
taken in connection with the fact that the evidence and
proofs on which he was committed for surrender in the States
must be held to be such as, under the treaty, to justify it
according to the laws there, were sufficient evidence, (a)
The warrant of the Governor General, requiring the extra-
dition of a prisoner from the United States for forgery, is no
proof that he was charged with or extradited for that crime, (b)
In Reg. v. Paxton (c) the question was raised, but not
decided, whether a party extradited from the United States
for forgery was liable here to be tried for any other offence
than the one for which he was surrendered.
The point carne up again in Re, Rosenbaum, (d) when it was
decided that he was so liable, and that section 3 and sub-
section 2 of the Imperial Extradition Act, 1870, being incon-
sistent with the subsisting treaty between Great Britain and
the United States, was not in force as to any application
(y) Ex parte Foster, 3 R. C. 46, Q. B.
(z) Reg. v. Reno and Anderson, 4 U. C. P. R. 295, per Draper, C. J.
(a) Reg. v. Vanaerman, 4 U. C. C. P. 288.
(6) Reg. v. Paxton, 10 L. C. J. 212.
(c) Ibid.
(d) 18 L. C. J. 200, Q. B.
EXTRADITION. 47
under such treaty. And it has been held in the United
States that whether or not a prisoner had been extradited in
good faith is a question for the two governments to determine,
and not the courts ; and the prisoner being, in fact, within
the jurisdiction of the court, he must be tried, (e)
The provisions of the treaty for the payment of the ex-
penses of the apprehension and delivery of the fugitive, by
the party making the requisition, can be literally carried out
by calling on the United States Government to pay such
expenses when they make the requisition and receive the
fugitive. By making the requisition they assume the respon-
sibility of paying the expenses of apprehending as well as
delivering him. (/ )
Only one case has arisen in this country under the treaty
between Great Britain aud France, ratified in 1843. In this
case it was held that, under the Imp. Stat. 6 & 7 Vic., c. 75,
passed to give effect to the treaty, the Consul-General of
France had no authority to demand the rendition of a fugitive
criminal, such consul not being an accredited diplomatic
agent of the French Government. That an informal transla-
tion of an acte de renvoi is not a judicial document equivalent
to the warrant of arrest, of which the party applying for
extradition is required to be the bearer, according to the
statute. That the evidence of criminality to support the
demand for extradition must be sufficient to commit for trial
according to the laws of the place where the fugitive is
ar'-ested, and not according to the law of the place where the
offence is alleged to have been committed. (</)
The Chesapeake case is the only one under the Imp. Stat.
6 & 7 Vic., c. 76. It was decided in 1864, before the
suspension of the statute in New Brunswick. The many
important points involved in this case have been given in
the foregoing pages.
(e) Clarke on Extradition, 2nd Ed. p. 75.
(/) Re Barley, I U. C. L. J. N. S. 45, per Richards, C. J.
(g) Ex parte Lamirande, 10 L. C. J. '280.
48 THE CRIMINAL LAW OF CANADA.
It may be observed, in conclusion, that the Imp. Stat.
6 & 7 Vic., c. 34, makes provision for the apprehension and
surrender to the authorities of the place where the offence
has been committed, of persons who have committed offences
either in the United Kingdom of Great Britain and Ireland,
or in any part of Her Majesty's dominions, whether or not
within the said United Kingdom, and who are found in any
place in the United Kingdom, or any other part of Her
Majesty's dominions, other than where the offence was
committed.
The provisions of this statute as between the United
Kingdom and the colonies, are very similar to those of our
own statutes in aid of the Ashburton Treaty. The enactment
only applies to treason, or some felon)', such as justices of
the peace in General Sessions have not authority to try in
England under the provisions of an Act passed in the sixth
year of the reign of Her Majesty, intituled "An Act to
define the jurisdiction of Justices in General Sessions of the
Peace." (h)
A person cannot under the 6 & 7 Vic., c. 34, be legally
arrested or detained here for an offence committed out of
Canada, unless upon a warrant issued where the offence was
committed, and endorsed by a judge of a superior court in
this country, (i) And such warrant must disclose a felony
according to the law of this country ; and the expression
"felony, to wit, larceny," would seem to be insufficient. (/)
(h) See s. 10.
(i) Reg. v. McHolme, 8 U. C. P. R. 452.
0') Ibid.
CRIMES IN GENERAL.
CHAPTER I.
CRIMES IN GENERAL.
In the present work it is proposed to treat in the first
place of the subject of crimes in general, and the distinctions
between a public and a private injury ; secondly, of the per-
sons capable of committing crimes, and their several degrees
of uuilt, as principals or accessories ; thirdly, of the several
species of crimes recognized by law ; after which will follow
annotations of the Canadian statutes on criminal law and
dissertations on the subjects of evidence, pleading and prac-
tice as developed in our own cases.
A crime is the violation of a right when considered in
reference to the evil tendency of such violation as regards
the community at large, (a)
Where, therefore, an Act declared that every person having
a distilling apparatus in his possession, without making a
return thereof as therein provided, should forfeit and pay a
penalty of $100, and rendered the apparatus liable to seizure
and forfeiture to the Crown, it was held that an iufringement
of this Act was a crime, (b)
The violation of a statute containing provisions of a public
nature, and more particularly so when that violation is spoken
of as an offence, and is punishable by fine, or imprisonment
as suhstitutionary for the fine, is a crime in law. (c)
When an offence is made a crime by statute, the proceed-
ings instituted for the punishment thereof are criminal pro-
ceedings, (d) An information by the Attorney-General for an
(a) Ste. Bla. Com., Bk. 6, p 94.
(b) R<t Lucax & McGlashan, 29 U. C. Q. B. 81 ; and see Reg. v. Boardman,
30 U. C. Q. B. 553.
(c) Ibvl. 2J U. U. Q. B. 92, per Wilson, J.
(d) Ibid. 92, per WiUon, J. ; Bancroft v. Mitchell, L. R. 2 Q. B. 555, per
Blackburn, J.
D
50 THE CRIMINAL LAW OF CANADA.
offence against the revenue laws is a criminal proceeding, (e)
although offences against the customs and excise laws are not
ordinarily treated as criminal but as merely penal in their
nature ; and the contingent liability to fine and imprison-
ment does not alter the character of the offence. (/) A pro-
ceeding to obtain an order of affiliation under the (N.B.) 1
Eev. Stat., c. 57, is not a criminal proceeding, in which the
party charged is punishable on indictment or summary con-
viction, (g) bastardy not being a crime punishable in this
manner, (h)
The doctrine that all crimes concern the public prevails to
such an extent, that by the policy of the law if a civil action
is instituted, and it appears on the evidence that the facts
amount to felony, the judge is bound to stop the proceedings
and nonsuit the plaintiff, in order that the public justice may
be first vindicated by the prosecution of the offender, (i)
The true ground of this rule is to prevent the criminal
justice of the country from being defeated, (/) and the prin-
ciple on which it rests is, not that the felony appearing con-
stitutes any defence to the action, but that by the rule of
law the civil remedy is suspended until the defendant charged
with the felony shall have been acquitted or convicted in due
course of law. (k) The rule applies, whether the plaintiff be
the party upon whose person the alleged felony was com-
mitted, or a person who can sustain his cause of action only
in virtue of a wrong done to him through another, by an act
which, as between the defendant and that other, constitutes
felony ; (/) and it seems the mle equally applies in an actim
against third persons, (m) The civil remedy is only suspended
(e) He Lucas & McGlashan, 89, per Richards, C. J.
(/) Exparte Parks, 3 Allen, 240, per Carter, C. J.
(g\ Ex parte Cook, 4 Allen, 506.
(A) Jbici.
(i) Walsh v. NcMrass, 19 U. C. C. P. 453 ; Brown v. Dolby, 7 U. C.
Q. B. 16U ; Livimjxtomv. Massey, 23 U. C. Q. B. 15ti ; Williams v. Robinson,
20 U. C. C. P. -'.)5 ; Pease v. M'Aioon, 1 Kerr, 111.
(j) Crosby v. Lew/, 12 Ea. 414, per Grose, J.
(k) Walsh, v. Matirass, 19 U. C. C. P. 454, per Gvrynne, J. : Brovmv.
Ualby, 7 U. C. Q. K 162, per Robinson, C. J.
(1) Walsh, v. Nattrass, supra, 455, per (,wt/iint>, J.
(m) Pease v. M 'Aloon, 1 Kerr, 118, per Parker, J.
CRIMES IN GENERAL. 51
until an acquittal or conviction after a bona fide prosecution
of the criminal charge. When either event takes place, as
the public justice will then be satisfied, the party may
proceed with his civil action, (ri) It has not been decided
whether a complaint to a justice of the peace, and statement
on oath of the facts, would or would not be sufficient prose-
cution, if the justice should decline to interfere ; but at all
events, it would be sufficient to prefer a bill before the grand
jury, who would of course ignore it if the prosecutor's evi-
ence negatived the felonious intent, unless there should ap-
pear grounds for suspecting connivance or collusion, (o) A
difference has been suggested between the case of a prior
conviction and that of an acquittal, namely, that the latter
may have been brought about by the defendant colluding
with the prosecutor, and it seems evidence would be admis-
sible to show this ; (p) and that it would suspend the action, (q)
If there be two acts, the one felonious and the other not,
and either one be sufficient to support the action, it may
proceed, notwithstanding the evidence of the felony ; (r) for
it seems that only an action brought to recover compen-
sation for an injury, resulting from the felonious act, is sus-
pended, (s) At all events, in case of seduction, unless the
loss of service, which is the gist of the action, directly springs
from the very act supposed to be felonious, the civil remedy
is not defeated, (f)
The question of felony or not cannot be tried by the jury,
in the civil action, even though the judge may have a doubt
on the evidence as to the facts showing a felony, (u) If a
prima facie case is made out, and the evidence, uncontradicted
(n) Walsh v. Nattrass, 19 U. C. C. P. 456, per Gurynne, J. ; Pease v.
M-Aloon, 1 Kerr, 117, per Parker. J. ; Edwards v. Kerr, 13 U. C. C. P.
25, per Draper, (J. ; Crosby v. Leng, 1*2 Ea. 409.
(o) Pease v. AT'Aloon, 1 Kerr, 117, per Parker, J.
(p) Crosby v. Lent, 12 Ea. 413-4, per Lord Ellenborough, C. J.
(q) Ibid.
(r) Walsh v. Nattrass, 19 U. C. 0. P. 457, per Gwynne, J.
(8) Hayle v. Hayle, 3 U. C. Q. B. O. S. 295.
(t) Ibid.
(u) Williams v. Robinson, 20 U. C. C. P. 255 ; Walsh v. NaUrau, 19 U. C.
C. P. 453 ; Pea* v. M'Aloon, 1 Kerr, 111.
52 THE CRIMINAL LAW OF CANADA.
and unexplained, would warrant a jury in convicting for the
felony, the judge should require the party to go before the
criminal tribunal, before pursuing his civil remedy, (v)
If the judge is not morally satisfied that a felony has been
committed, yet if the act were proved by only one witness
to have been feloniously done, arid there were no circum-
stances inconsistent with such evidence, nothing that could
make the disbelief of it otherwise than purely arbitrary, the
judge would not be wrong in nonsuiting the plain tiff.- (iff)
It is for the judge to decide whether the case shall go to the
jury in the civil acHon. (x) If the judge has reason for
doubting whether the act is felonious, but nevertheless allows
the case to go to the jury, and a verdict is found for the
plaintiff, it will not be set aside, as this will only be done in
the interests of public justice, (y)
We now proceed to notice the exceptions to the general rule
suspending the civil remedy in case of felony. Under the
Temperance Act of 1864, 27 & 28 Vic., c. 18, ss. 40 and 41,
the legal representatives of the party might have maintained
an action for damages against the inn-keeper, although the act
giving rise to the right of action was also a felony, and the
inn-keeper had neither been acquitted nor convicted, (z) So
by the Carrier's Act, (a) the plaintiff may reply that the car-
rier's servant feloniously broke the goods in respect of which
the action is brought, which will, if shown, entitle him to
recover, although the servant has not been prosecuted crimin-
ally, (b) So under the Con. Stat. Can., c. 78, the civil action
(v) Pease v. M' A toon, supra.
(w) Williams v. Robinson, 20 TJ. C. C. P. 256-7, per ffagarty, J. ; Brown
v. DaJby, 1 U. C. Q B. 162-3, per Robinson, (J. J. ; see also Vincent v.
Sprafftte. 3 U. C. Q. B. 283.
(a;) Wadxh v. Nattraxs, 19 U. C. C. P. 456, per Gtvynne, J. ; WiUiami v
Robinson, 20 U. C. 0. P. 255.
ConxtanMne, .
v. Sai/tin, 8 Jur. N. S. 1(>28.
(2) M,:0ttfdy v. Swift, 17 U. C. C. P. 12S.
(a) 11 ITBO IV. and I Wm. IV., c. 68, a. 8.
(h) McCtirdy v. Swift, supra, 136, per Wilson, J.
CRIMES IN GENERAL. 53
is maintainable, though the act causing the death amounts
to felony, and the party has neither been acquitted nor con-
victed ; (<•) and, lastly, neither this rule nor the reasons for
it apply to the Crown, (d) It is to be regretted that the
decisions in Quebec are quite adverse to those in the other
provinces on the above points. This is the only branch of
the criminal law upon which there is any serious conflict in
the decisions of the different provinces. It has been held in
Quebec that the civil remedy is not suspended when a felony
is disclosed in evidence, and this with reference to assault,
perjury, arson, rape, and felony in general, (e)
It is an established principle of the common law that all
crimes are considered local, and cognizable only in the place
where they were committed ; (/) but this rule has received
several modifications by various statutes.
By the term crime, in its stricter sense, is meant such
offences only as are punishable by indictment ; those of an
inferior character, punishable on summary conviction before
a justice of the peace, being usually designated offences, (g)
Crimes are divided into two classes, namely, felonies and
misdemeanors, (h) Felony is defined as an offence which
occasions a total forfeiture of either lands or goods, or both,
at the common law, and to which capital or other punishment
may be superadded, according to the degree of guilt, (i) All
crimes which are made felonies by the express words of a
statute, or to which capital punishment is thereby affixed,
become felonies, whether the word " felony " be omitted or
mentioned, (j) Where a statute declares that the offender shall,
under the circumstance^, be deemed to have feloniously com-
(c) McCurdy v. Swift, 17 U. C. C. P. 136, per A. Wilson, J ; Clarke v.
Wilson, Rob. Dig. 260.
(d) Reg. v. Rei/enstein, 6 U. C. L. J. N. S. 38 ; 5 U. C. P. R. 175.
(e) Dagenay v. Hunter, Rob. Dig. 128 ; Lamothe v. Chevalier, 4 L. C. R.
160 ; Fortier v. Merrier, Rob. Dig. 127 ; Peltier v. Miville, ibvl. ; McGvxrt
T. Liverpool and London Assurance Company, 1 L. C. R. 343; Neillv.
Taylor, 15 L. C. R. 102.
(/) The Chesapeake case, 44, per Ritchie, J.
(0) Ste. Bla. Com Bk. 6, p. 96.
(A) Re Lwa* d: McGlaxhan, 29 U. C. Q. B. 92, per Wilson, J.
(1) 4 Bla. Com. 95.
(j) Rusa. (Jr. 4th Ed. 78 ; Reg. v. Home, 4 Cox, C. C. 263.
54 THE CRIMINAL LAW OF CANADA.
mitted the act, it makes the offence a felony, and imposes all
the common and ordinary consequences attending a felony, (k)
So where a statute says that an offence, previously a mis-
demeanor, " shall be deemed and construed to be a felony,"
instead of declaring it to be a felony in distinct and positive
terms, the offence is thereby made a felony. (/) An enact-
ment that an offence shall be a felony, which was felony at
common law, does not create a new offence, (m) But an
offence shall never be made felony by the construction of
any doubtful and ambiguous words of a statute ; and, there-
fore, it it be prohibited under " pain of forfeiting all that a
man has," or of " forfeiting body and goods," or of " being at
the King's will for body, lands and goods," it shall amount to
no more than a high misdemeanor ; (?i) and though a statute
make the doing of an offence felonious, yet, if a subsequent
statute make it penal only, the latter statute is considered as
a virtual repeal of the former, so far as relates to the punish-
ment of the offence. (0) So if an offence be felony by one
statute, and be reduced to a misdemeanor by a later statute,
the first statute is repealed, (p) When a statute on which
the indictment is framed is repealed, after the bill has been
found by the grand jury, but before plea, the judgment must
be arrested ; (q~) and where a statute creating an offence is
repealed, a person cannot afterwards be proceeded against for
an offence within it, committed while it was in operation,
even though the repealing statute re-enacts the penal clauses
of the statute repealed, (r) If a later statute expressly alters
the quality of an offence, as by making it a misdemeanor
instead of a felony, or a felony instead of a misdemeanor, the
(k) Rex v. JoAnson, 3 M. & S. 556, per Bayley, J.
(I) Rex v. Solomons, M. 0. C. R. 292, overruling Rex. v. Cole, M. 0.
C. R. 11.
(m) Williams v. Reg., 7 Q. B. 253, per Pntteson, J.
(n) Russ. Cr. 79.
(o) Ibid. 79.
(p) Reg. v. Sherman, 17 U. C. C. P. 171, per A. Wilson, J. ; Rexv. Damt,
1 Leach, 271.
(q) Reg. v. Denton, 17 Jur. 453 ; Reg. v. Swan, 4 Cox C. C. 108.
(r) Reg. v. Cummings, 4 U. C. L. J. 187, per Macaulay, C. J.
CRIMES IN GENERAL. 55
offence cannot be proceeded for under the earlier statute ; (s)
or if a later statute again describes an offence created by a
former statute, and affixes to it a different punishment, vary-
ing the procedure, and giving an appeal where there was no
appeal before, the prosecutor must proceed for the offence,
under the latter statute, (t) If, however, in the case of a
common law misdemeanor, a new mode of punishment, or
new mode of proceeding, merely be directed, without altering
the class of the offence, the new punishment, or new mode
of proceeding, is cumulative, and the offender may be indicted
as before for the common law misdemeanor, (u) Where a
statute makes a second offence felony, or subject to a heavier
punishment than the first, it is always implied that such
second offence has been committed after a conviction for
the first ; (v) and where a statute makes an offence felony
which was before only a misdemeanor, an indictment will
not lie for it as a misdemeanor, (w) for the lesser offence
merges in the greater. But now, by the 32 & 33 Vic., c. 29 ,
s. 50, although a felony appears on the facts given in evi-
dence, a misdemeanor for which the party may be. indicted
will not merge therein, and the party may be convicted of
such misdemeanor. But the statute has no other effect than
to authorize a verdict of guilty on the indictment as it is
framed, although the evidence would warrant a conviction
for the higher offence. In other words, a party indicted for
misdemeanor cannot, under this clause, be convicted of any
felony that may be disclosed iu evidence, but only of the mis-
demeanor for which he is indicted, if included in the felony
proved ; and in accordance with this it has been held that a
defendant indicted for a misdemeanor, in obtaining money
under false pretences, could not, under the Con. Stat. Can.,
(«) Michdl v. Brown, 1 E. & E. 267 ; 23 L. J. (M 0) 53 ; Reg. v. Sher-
man, 17 U. C. C. P. 169, per A. Wikon, J. ; Rex v. Cro**, 1 Ld. Raym. 711,
3 Salt. 193.
(/) Mlchett v. Brown, supra.
(u) Rex v. Garble, 3 B. & Aid. 161 : Arch. Cr. Pldg. 17th Ed. 3 ; see alao
Reg. v. Palliser, 4 L. C. J. 276.
(v) Russ. Cr. 79.
(to) Rex v. Orona, \ Ld. Raym 711 ; 3 Salk. 193.
56 THE CRIMINAL LAW OF CANADA.
c. 99 s. 62, be found guilty of larceny, although the facts
would have warranted such finding, (x)
The word misdemeanor is usually applied to all those crimes
and offences for which the law has not provided a particular
name, (y) A misdemeanor is in truth any crime less than
felony, and the word is generally used in contradistinction
to felony, misdemeanors comprehending all indictable offences
which do not amount to felony, as perjury, battery, libels,
conspiracies, and public nuisances, (z) Misprision of felony
is concealment of felony, or procuring the concealment thereof,
whether it be felony at the common law or by statute, (a)
It is clear that all felonies and all kinds of inferior crimes
of a public nature, as misprisions, and all other contempts,
all disturbances of the peace, oppressions, misbehaviour by
public officers, and all other misdemeanors whatsoever of a
public evil example against the common law, may be in-
dicted ; (6) and it seems to be an established principle, that
whatever openly outrages decency, and is injurious to public
morals, is indictable as a misdemeanor at common law. (c)
If a statute prohibit a matter of public grievance, or com-
mand a matter of public convenience, all acts or omissions
contrary to the prohibition or command of the statute, being
misdemeanors at common law, are punishable by indictment*
if the statute specify no other mode of proceeding. (c£) But
no injuries of a private nature are indictable, unless they in
some way concern the king, (e)
A general prohibitory clause supports an indictment,
though there be afterwards a particular provision and a partial
(x) Reg. v. Swing, 21 U. C. Q. B. 523.
(y) Rnss. Cr. 79.
(z)Ibid. 79.
(a) Ibid. 79-80.
(6) RUBS. Cr. 80.
(c) Ibvl.
(d) Reg. v. Toronto Street Ry. Co., 24 U. C. Q. B. 457, per Draper, C.
J. ; Rex v. Davis, Say. 133 ; and see Rex v. Sainsbury, 4 T. R. 451 ; RUBS,
Cr. 80.
(e) Rex v. Richard*, 8 T. R. 634 ; Russ. Cr. 80.
CRIMES IN GENERAL. 57
remedy, (/) even though the act prescribes a summary mode
of proceeding; (g) and it is not in all cases necessary to
annex to it words showing that the intention was to make
it an indictable offence, if the statute be violated, (h) If an
Act of Parliament prohibits a thing being done under some
specific penalty, then that penalty is all that can be enforced,
but if in a different part of the statute certain consequences
are entailed upon the prohibited act, then that is cumulative
to the prohibition, and the act done contrary to the prjhibi-
tion may or may not, according to the subject dealt with, be
an indictable offence, (i) Where a statute forbids the doing
of a thing, the doing it wilfully, although without any cor-
rupt motive, is indictable, (j) If a statute enjoin an act to
be done, without pointing out any mode of punishment, an
indictment will lie for disobeying the injunction of the legis-
lature, (k) This mode of proceeding in such case is not taken
away by a subsequent statute, pointing out a particular mode
of punishment for such disobedience. (/) Where the same
statute which enjoins an act to be done contains also an en-
actment providing lor a particular mode of proceeding, as
commitment in case of neglect or refusal, it has been doubted
whether an indictment will lie. (m) But where a statute
only adds a further penalty to an offence prohibited by the
common law, there is no doubt that the offender may still be
indicted, if the prosecutor think fit, at the common law. (n)
An offence is not indictable where an Act of Parliament
has pointed out a particular punishment and a specific method
of recovering the penalty which it inflicts ; and the rule is
(/) Reg- v. Mason, 17 U. C. C P. 536, per Richards, C. J.; Rexv. BoyaO,
2 Burr. 832 ; Rex \. Wrtght, 1 Burr. 543 ; Reg. v. Buchanan, 8 Q. B. 883 ;
Arch. Cr. Pldg. 17th Ed. 2.
(g ) Pomeroy & W ilton, 26 U. C. Q. B 47-8. per Hagarty, J.
(k) Reg. v. Mercer. 17 U. C. Q. B. 632, per Burns, J.
ft Ibid.
(j) Rex v. Sainsbury, 4 T. R. 457 ; Reg. v. Holroyd, 2 M. & Rob. 339.
(k) Roc v. Davis, Say. 133; Reg. v. Price, 11 A. & E. 727 ; Reg. v.
Toronto Street Ry. Co., 24 U C. Q. B. 454.
(1) Rrx v. BoyaU, -1 Burr. 832; Russ. Cr. 87.
(m) Rex v. Cummings, 5 Mod. 179 ; Rex v. King, 2 Str. 1268.
<») Russ. Cr. 88.
58 THE CRIMINAL LAW OF CANADA.
certain that where a statute creates a new offence by pro-
hibiting and making unlawful anything which was lawful be-
fore, and appoints a specific remedy against such new offence
by a particular method of proceeding, that particular method
of proceeding must be pursued and no other, (o) On this
ground it was held that an indictment would not lie on the
3rd sub-section of s. 55 Con. Stats. Can., c. 6, against a
deputy returning officer for entering and recording in the poll
books the names of several parties as having voted, although
they had refused to take the oath required by law, the
offence being created by the statute, a particular penalty af-
fixed, and a specific remedy for enforcing it pointed out by
the 87th section of the Act. (p) Where the penalty is an-
nexed to the offence in the very clause of the Act creating it,
no indictment or other proceeding can be taken against the
person making default, (q) for the express mention of any
other mode of proceeding impliedly excludes that of in-
dictment, (r)
If a statute specify a mode of proceeding different from
that by indictment, then if the matter were already an in-
dictable offence at common law, and the statute introduced
merely a different mode of prosecution and punishment, the
remedy is cumulative, and the prosecutor has still the option
of proceeding by indictment at common law or in the mode
pointed out by the statute, (s) Therefore, where a Revenue
Act (15 Vic., c. 28, s. 68) provided that any penalty or for-
feiture inflicted under the Act should be recovered by action
of debt or information, and sec. 72 enacted that if any person
should assault any revenue officer in the exercise of his office
he should, on conviction, pay a fine not exceeding £100 nor
less than £50, which fine should be paid to the provincial
(o) Reg. v. Bennett, 21 U. C. C. P. 237, per Gait, J. ; Re,g. v. Mason, 17
U. C. C. P. 536, per Rictiards, C. J. ; Little v. Ince, 3 U. C. C. P. 542-3,
per Macaulay, C. J. ; see also Leprophon v. Globemki, Rob. Dig.
(p) Reg. v. Bennett, supra.
(q) Ibid. 238, per Gait, J.
(r) Rex v. Robinson, 2 Burr. 805 ; Rex v. Buck, 1 Str. 679.
(s) Rexv. Robinson, 2 Burr. 800 ; Rex v. Wigg, 2 Ld. Raym. 1163 ; Rex
v. Carlik, 3 B. & Aid. 161.
CRIMES IN GENERAL. 59
treasurer, and iu case of iiou-payment the offender should be
imprisoned for a term not exceeding twelve months nor less
than three months, at the discretion of the court ; the court
held that the Act only limited the discretion of the court as
to the amount of fine and imprisonment on conviction for an
assault under sec. 72, but did not alter the ordinary mode of
proceeding therefor by indictment, (t)
Where a person filling a public office wilfully neglects or
refuses to discharge the duties thereof, and there is no special
remedy or punishment pointed out by statute, an indictment
will lie, as there would otherwise be 110 means of punishing the
delinquent, (it) So an indictment will lie for neglecting or re-
fusing to administer the oath set forth in the Con. Stat. Can.,
c. 6, s. 55, at the request of the candidate or his agent, (v)
An attempt to commit a misdemeanor is a misdemeanor (w)
whether the offence was created by statute or existed at com-
mon law, (x) for when an offence is made a misdemeanor by
statute it is made so for all purposes, (y) So, inciting another
to commit a misdemeanor is in itself a misdemeanor, (z)
Therefore it was held that attempting to bargain with or
procure a woman falsely to make the affidavit provided for
by the Con. Stats. TJ. C., c. 77, s. 6, that A. was the father of
her illegitimate child, was an indictable offence, on the
ground that if the oath were taken and proven to be false, it
would have amounted to perjury under the Con. Stats. U. C.
c. 2, s. 15, or, at all events, to a misdemeanor, and inciting
another to commit perjury is a misdemeanor on the above
principle, (a) On an indictment for misdemeanor the jury
may find the prisoner guilty of any lesser misdemeanor that
(t) Reg. v. Walsh, 3 Allen, 54.
(«) Reg. v. Bennett, 21 U. C. C. P. 238, per Gait, J.
(v) Ibid. 238, per Gait, J.
(w) Reg. v. Connolly, 26 U. C. Q. B. 322, per Hagarty, J. ; Reg. v.
Martin, 9 C. & P. 213 ; Reg. v. Gof, 9 U. C. C. P. 438.
(x) Rex v. Butler, 6 C. & P. 368, per Patterson, J. ; Rex v. Roderick, 7 C.
& P. 795, Parke, B. ; Rex v. Cartwright, B.USS. & Ry. 107.
(y) Rex \. Roderick, supra, 795, per Parke, B.
(z) Reg. v. Clement, 26 U. C. Q. B. 297.
(a) Ibid.
GO THE CRIMINAL LAW OF CANADA.
is necessarily included in the offence as charged, (b) and
on an indictment for felony or misdemeanor the jury may
find the party guilty of an attempt to commit it, which is a
misdemeanor, (c) Under this statute (32 & 33 Vic., c. 29, s.
49) two prisoners may be convicted of misdemeanor, though
one is charged with attempting to commit a felony, and the
other as aiding and abetting him in the attempt. An indict-
ment charged H. with rape, and U. with aiding and abetting
•him in the rape, the jury having found H. and U. guilty of a
misdemeanor, H. of attempting to commit the rape, and U. of
aiding him in the attempt; it was held that they were both
properly convicted under the 14 & 15 Vic., c. 100, s. 9. (rf)
But upon this clause the defendant can only be convicted of
an attempt to commit the very offence with which he is
charged, (e) Nor can the jury convict under it of an attempt
which is made felony by statute, but only of an attempt
which is a misdemeanor. (/) But on an indictment for rape
the prisoner may be convicted of an attempt to commit the
rape, though the attempt is felony by statute, and the indict-
ment is in the ordinary form, (g) An attempt to commit a
felony is also a misdemeanor, (h) and an attempt to obtain
money under false pretences is a misdemeanor, (i)
The act of attempting to commit a felony must be imme-
diately and directly tending to the execution of the principal
crime, and committed by the prisoner under such circum-
stances that he has the power of carrying his intention into
execution, (j} Where, on an indictment for an attempt to
commit burglary, it appeared that the prisoners had agreed to
commit the offence on a certain night together with one C.,
(b) Keg v. Taylor, L. R. 1 C. C. R. 196, per Kelly, C. B.
(c.) Reg. v. Goff, 9 U. C. C. P. 438 ; 32 & 33 Vic., c. 29, s. 49.
(d) Reg. v. Hapgood, L. R. 1 C. C. R. 221.
(e) Reg. v. McPherson, Dears. & B. 197, 26 L. J. (M. C.) 134.
(/) Reg. v. Connell, 6 Cox, 178.
(g) Reg. v. Webster, 9 L. C. R. 196.
(A) Reg. v. Goff, 9 U. C. C. P. 438, per Draper, C. J. : Reg. v. Esmond*,
26 U. C. Q. B. 152.
(i) Reg. v. Goff. supra.
(j) Reg. v. McCann, 28 U. C. Q. B. 517, per Morrison, J. ; Rey. v.
Taylor, 1 F. & F. 511.
CRIMES IN GENERAL. 61
but C. was kept away by his father, who had discovered their
design. The two prisoners were seen about twelve o'clock
that night to enter a gate about fifty feet from the house ;
they came towards the house to a picket fence in front, in
which there was a small gate, but they did not come nearer
the house than twelve or thirteen feet, nor did they pass the
picket gate ; they then went, as was supposed, to the rear of
the house, and were not seen afterwards. About two o'clock
some persons came to the front door and turned the knob, but
went off on being alarmed and were not identified. The court
held that there was no evidence of an attempt to commit the
offence, no overt act directly approximating to its execution,
and that a conviction therefor could not be sustained, (t) If,
however, it had been proved that they attempted to enter the
house, and were either interrupted or surprised in doing so, and
made their escape, and that but for such surprise or interrup-
tion they could have carried out their design of stealing cer-
tain money said to be in the house, there would have been evi-
dence to go to the jury. (/) Its must appear upon the evidence
that the felony might have been completed had there been no
interruption. If, therefore, upon an indictment for attempt-
ing to commit a felony, by put. ing the hand into a woman's
pocket with intent to steal her property therein, it appears
that she had nothing iu her pockets, a conviction cannot be
sustained, (m)
The prisoner was indicted under 32 & 33 Vic., c. 21, s. 56,
for breaking and entering a shop, with intent to commit felony.
He was seen upon the root", where a hole was found broken
in, but there was no evidence of his having entered the build-
ing. The jury were directed that if they thought he broke
the roof with intent to enter the shop and steal, they might
find him guilty of an attempt. They accordingly convicted,
and the court held that the conviction was right, (n)
(i) R'.;j. v. McCann, 23 U. C. Q. B. 514.
(1) Ibkl. 516, per Morrison, J. ; see also Reg. v, Eagleton, 1 U. C. L. J.
179 ; D-iars. C. (J. 51-5 ; Rej. v. R^birts, ibid. 539 ; Rex v. Martin, 2 Mood.
C. O. 123 ; 9 C. & P. 213-215 ; Dujlile v. Reg. 1 E. & B. 435.
(m) Reg. v. Collins, L. & C. 471 ; 33 L. J. (M. C.) 177 ; 10 U. C. L. J. 308.
(n) iitg. v. Bain, 8 U. C. L. J. 279 ; L. & C. 129 ; 31 L, J. (M. C.) 88.
62 THE CRIMINAL LAW OF CANADA.
But attempting to commit a felony is clearly distinguish-
able from intending to commit it, for the bare wish or desire
of the mind to do an illegal act is not indictable. So long
as an act rests in bare intention it is net punishable by our
laws, (0) but immediately when an act is done the law judges
not only of the act itself, but of the intent with which it was
done, (p] and an act, though otherwise innocent, if accom-
panied by an unlawful and malicious intent, the intent being
criminal, the act becomes criminal and punishable, (q)
It has been held under the corresponding English section
of the 31 Vic., c. 72, s. 2, that the offence of soliciting and
inciting a man to commit a felony is, where no such felony
is actually committed, a misdemeanor only, and not a felony
under the Act, which only applies to cases where a felony is
committed as the result of the counselling and procuring
therein mentioned, (r)
The motives of a party, though unimportant in civil cases,
may be taken into account in criminal proceedings, (s) In
the latter, however, the maxim, actus non facit reum nisi mens
sit rea, does not hold universally. When a particular act is
positively prohibited by law, it becomes thereupon ipso facto
illegal to do it wilfully, and in some cases even ignorantly,
and a party may be indicted for doing it without any corrupt
motive, (t) Where a statute, in order to render a party
criminally liable, requires the act to be done feloniously,
maliciously, fraudulently, corruptly, or with any other ex-
pressed motive or intention, such motive or intention is a
necessary ingredient in the crime ; but where the enactment
simply prohibits the doing of an act, motive or intention is
immaterial so far as regards the legal liability of the party
(o) Mulcahy v. Reg., L. R. 3 E. & I. App. 317, per Willes, J.
(p) Reg. v. McCann, 28 U. C. Q. B. 516, per Morrixon, J. ; Reg.
McPhemon, 1 Dears & B. C. C. 197, per Cockburn, C. J. ; Rex v.
2 Ea. 5, per LK Blanc, J. ; Rex v. Scofield, Cald. 403.
(q) Reg. v. Aryans, 12 U. C. C. P. 172, per Hagarty, J.
(r) Reg. v. Gregory, L. R. 1 C. C. R. 77.
(«) Phillips v. Eyre, L. R. 6 Q. B. 21, per Willen, J.
(t) /tee v. Sainsbury, 4 T. R. 457, per Ashurst, J.
CRIMES IN GENERAL. 63
committing the forbidden act ; (u) and it would seem that a
party cannot exempt himself from criminal liability on the
ground that his object was lawful or even laudable, in com-
mitting an act simply prohibited by law ; (v) for the law
infers that every person intends the natural consequences of
his own act when that act is wrongful, injurious, and without
legal justification, (iv) The inference equally arises although
the party has an honest or laudable object in view, and he
will nevertheless be legally liable, unless the object is such
as, under the circumstances, to render the act lawful, (a;)
Misdemeanors differ from felonies in these particulars — the
crime is of an inferior degree, and the penal consequences are
not so severe ; secondly, all persons concerned in the com-
mission of a misdemeanor, if guilty at all, are principals, and
the law recognizes no degrees in their guilt.
With regard to the punishment of misdemeanors, it is a
general rule that all those offences less than felony which
exist at common law, and have not been regulated by any
particular statute, are within the discretion of the court to
punish, (y) and the punishment usually inflicted is fine and
imprisonment. (2) The punishment of felonies is generally
prescribed by statute.
(u)4C. L. J. N. S. 194.
(v) Beg. v. Hicklin, L. R. 3 Q. B. 360 ; Reg. v. Recorder of Wolverkamp-
ton, ; 18 L. T. Reps. N. S. 395.
(10) Reg. v. Hicklin, supra.
(x) Ibid. 375, per Blackburn, J. ; and see Reg. v. Salter, 3 Allen, 327, per
Carter, C. J.
(y) Russ. Cr. 92.
(z) Ibid.
64 THE CRIMINAL LAW OF CANADA.
CHAPTER II.
THE PERSONS CAPABLE OF COMMITTING CRIMES, AND THEIR
SEVERAL DEGREES OF GUILT.
As a prima facie criminal liability attaches on every person,
it is necessary to consider what defences may, in different
cases, be urged by different persons, as grounds of exemption
from punishment. The law requires an exercise of under-
standing and of will to render a person criminally responsible,
therefore a want or defect of either may be a good defence, (a)
Infants. — The general rule is, that infants under the age of
discretion are not punishable by any criminal prosecution
whatever, but the age of discretion varies according to the
nature of the offence, (b) Thus, in some misdemeanors and
offences that are not capital, an infant is privileged, by reason
of his nonage if under twenty-one ; for instance, if the offence
charged by the indictment be a mere nonfeasance, unless it
be such as he is bound to do by reason of his tenure, or the
like as to repair a bridge, (c) then, in some cases he shall be
privileged, if under twenty-one, because laches shall not be
imputed to him. (d) But if he be indicted for any notorious
breach of the peace, as riot, battery, or for perjury, cheating,
or the like, he is equally liable as a person of full age, because
upon his trial the court, ex officio, ought to consider whether
he was duli capax, and had discretion to do the act with which
he was charged, (e) The law as to an infant's liability is
more clearly defined with reference to capital crimes, though
their criminal responsibility does not so much depend upon
(a) Russ Cr. 6.
(b) Arch. Cr. Pldg. 16.
(c) Rex v. Sutton, 3 A. & E. 597.
(d) Arch. Cr. Pldg. 17.
(e) Ibid. 17.
PERSONS CAPABLE OF COMMITTING CRIMES. 65
their age as upon their judgment and intelligence. (/) But
within the age of seven years, no infant can be guilty of felony,
or be punished for any capital offence, for within that age
there is an irrebuttable presumption of law that he has no
mischievous discretion, (g) On attaining the age of fourteen
years, they are presumed to be dolicapaces, and capable of dis-
cerning good from evil, and are, with respect to their criminal
actions, subject to the same rule of construction as others of
more mature age. (h)
Between the age of seven and fourteen years, an infant is
deemed primi facie to be doli incapax, but malitia supplet
cetatetn, and this presumption may be rebutted by strong and
pregnant evidence of mischievous discretion, establishing it
beyond all doubt and contradiction. (?) "When a child be-
tween the ages of seven and fourteen years is indicted for
felony, two questions are to be left to the jury — first, whether
he committed the offence ; and secondly, whether at the time
he had a guilty knowledge that he was doing wrong, (j)
An infant under fourteen is presumed by law to be unable
to commit a rape, and therefore cannot be found guilty of it,
and this on the ground of impolency as well as the want of
discretion. This presumption, it seems, is not affected by
the 32 & 33 Vic., c. 20, s. 05 — making the offence complete
on proof oi penetration, without, evidence of emission, (k) Nor
is any evidence admissible to show that, in fact, the deieudant
had arrived at the full state of puberty, and could commit
the offence. (I) But he may be principal in the second degree
if he aid a id assist in the commission of the offence, and it
appear that he has a mischievous discretion, (rri)
( f) Russ. Cr. 7.
(#) Ibid. ; Marsh v. Loader, 14 C. B. N. S. 535.
(A) Arch. Cr. Pldg. Iti.
(t) Ibid.
(j) Rex v. Owen, 4 C. & P. 236.
(k) Rex v. Groombridge, 7 C. & P. 582.
(0 Rex v. Philips, 8 C. & P. 736 ; Rex v. Jordan, 9 C. & P. 118 ; Rexv.
Brimilow. ibid. 366 ; 2 Mood. C. C. 122.
(m) Rex v. Eldershaw, 3 C. & P. 396 ; see Rex v. Allen, 1 Den. C. C. 364 ;
Arch. Cr. Pldg. 17.
E
66 THE CRIMINAL LAW OF CANADA.
It seems a statute creating a new felony does not extend to
infants under the age of discretion, (n) and that statutes giv-
ing corporal punishment do not bind infants, but other and
general statutes do, if infants are not excepted. (0) And
where a fact is made felony, or treason, it extends as well to
infants, if above fourteen, as to others, (p)
An infant, being unable to trade, cannot be prosecuted
criminally for defrauding his crbdilors, as it cannot be con-
tended that the contracts of an infant for goods supplied in the
way of trade or for money lent are valid and result in deots,
so as to give rise to the relation of debtor and creditor, (r)
Persons non compotes met tis. — Every person, at the age of
discretion, is, unless the contrary be proved, presumed by law
to be sane, and to be accountable for his actions. But it there
be any incapacity, or defect of the understanding, as there can
be no consent of the will, so the act cannot be culpable, (s)
Where the deprivation of the understanding and memory is
total, fixed and permanent, it excuses all acts, so, likewise,
a man laboring under adventitious insanity is, during the
frenzy, entitled to the same indulgence, in the same degree,
with one whose disorder is fixed and permanent, (t) It seems
clear, however, that to excuse a man from punishment on the
ground of insanity, it must be proved distinctly that he was
not capable of distinguishing right from wrong at the time he
did the act, and did not know it to be an offence against the
laws of God and nature, (u) If there be a partial degree of
reason ; a competent use of it sufficient to restrain those pas-
sions which produce the crime ; if there be thought and de-
sign ; a faculty to distinguish the nature of action ; to discern
the difference between moral good and evil, — then he will be
responsible for his actions, (v)
(n) Unas. Cr 10.
(o) Dwarris, 51t>.
(p) Russ. Cr. 10.
(r) Reg. v. Wilson, L. R. 5, Q. B. D. 28.
(s) Arch. Cr. Pldg. 17.
(<) Ibid. 18 ; Beverley's Case Co. 125.
(u) Rex v. Offord, 5 C. & P. 168.
(v) Reg. v. McNaughton, 10 Cl. & Fin. 200 ; 1 C. & K. 130 n. ; Rex v.
Higginson, 1 C. & K. 129.
PERSONS CAPABLE OF COMMITTING CRIMES. 67
Where the intellectual faculties are sound, mere moral in-
sanity— where a person knows perfectly well what he is
doing, and that he is doing wrong, but has no control over
himself, and acts under an Uncontrollable impulse, — does
not render him irresponsible, (w) Whether the prisoner were
sane or insane at the time the act was committed is a ques-
tion of fact triable by the jury, and dependent upon the
previous and contemporaneous acts of the party.
Upon a question of insanity, a witness of medical skill
may be asked whether, assuming certain facts proved by
other witnesses to be true, they, in his opinion, indicate in-
sanity, (x) It is said that, as to the criminal liability of a
lunatic, the maxim is, actus non facit reum nisi mens sit rea. (y)
Imbecility, and loss of mental power, whether arising from
natural decay, or from paralysis, softening of the braiu, or
other natural cause, although unaccompanied by frenzy, or
delusion of any kind, constitutes unsoundness of mind,,
amounting to lunacy, within 8 & 9 Vic., c. 100. (2)
It is the duty of the Government to assume the care and
custody of persons acquitted of criminal charges on the
ground of insanity, and this power is vested in the Govern-
ment, independently of any statute, (a) The policy of the
law in detaining insane persons in custody is to prevent
them from committing the same offences again, (b)
The vice of drunkenness, which produces a perfect though
temporary frenzy, or insanity, will not excuse the commis-
sion of any crime ; and an offender under the influence of
iuloxication can derive no privilege from, a madness volun-
tarily contracted, but is answerable to the law equally as if he
had been in the full possession of his faculties at the time, (c)
(w) Rex \: Burton, 3 F. & F. 772.
(x) Reg. v. Frances, 4 Cox, 57, per Alderson B. and Cre«ncell, J. ; Reg. v.
Wright, R. & K. 456 ; Rtg. v. Searle, 1 M. & Rob. 75 ; Arch. Cr. Pldg. 19.
(y) Taggard v. Innes, 12 U. C. C. P. 77, per Draper, C. J.
(z) Reg. v. Shaw, L. R. 1 C. C. R. 145, 37 L. J. (M. C.) 112.
(a) Reg. v. Martin, 1 James, 322.
(6) Ibid. 324, per Bliss, J. ; see as to insane persons 32 & 33 Vic., c. 29
8. 99 et seq.
(c) Arch. Cr. Pldg. 18.
68 THE CRIMINAL LAW OF CANADA.
It has been said that, upon an indictment for murder, the
intoxication of the defendant may be taken i.ito considera-
tion as a circumstance to show that the act was not pre-
meditated, (d) But if the primary cause of the frenzy be
involuntary, or it has become habitual and confirmed, this
species of insanity will excuse the offender equally as the
other descriptions of this malady, (e)
A deaf mute, incapable of understanding the proceedings
at his trial, cannot be convicted, but must be detained as
non-sane. (/)
Persons in subjection to the power of others. — Tn general, a
person committing a crime will not be answerable if he was
not a free agent and was subject to actual force at the time
the act was done, (g) This exemption also exists in the
public and private relations of society ; public as between
subject and prince, obedience to existing laws being a suffi-
cient extenuition of civil guilt before a municipal tribunal ;
and private, proceeding from the matrimonial subjection of
the wife to the husband, from which the law presumes a
coercion which, in many cases, excuse} the wife from the
consequences of criminal misconduct. The private relations
which exist between parent and child, and master and servant,
will not, however, excuse or extenuate the commission of any
crime of whatever denomination ; for the command is void in
law and can protect neither the com in uider nor the instru-
ment, (h) In general, if a crime be committed by a, feme
covert in the presence of her husband, Uie law presumes that
she acted under his immediate coercion, and excuses her from
punishment, (i) But if she commit an ollence in the absence
of her husband, even by his order or procurement, her cover-
ture will be no defence ; (j) even though he appear at the
('1) Reg. v. Grindlry, J Russ. 8 ; Hex. v. Thim-i* 7 C. & P. 817 ; Rex. v.
Mealdu, ibid. 2J7 ; bin see Rex. v. Carroll, ibid. 145.
(e) Arch. Cr. Pldg. 18.
(/) Rag. v. Berry, L. R. 1 Q. B. D. 447.
(g) Kuss. Cr. 32.
(n) Arch. Or. Pl.lg. 22.
(i) Ibid 22 ; and see Reg. v. Smith, Dears. & R. C. C. 553.
(j) Ibid. 22 ; 2 Reach, C. C. 1102 ; Reg v. Morris, R. & R. 270
PERSONS CAPABLE OF COMMITTING CRIMES. 69
very moment after the commission of the offence ; and no
subsequent act of his, though it may render him accessory to
the felony of his wife, can be referred to what was done in
his absence, (k) This presumption, however, may be rebutted
by evidence ; and if it appear that the wife was principally
instrumental in the commission of the crime, acting volun-
tarily and not by restraint of her husband, although he was
present and concurred, she will be guilty and liable to punish-
ment. (I)
The protection does not extend to crimes which are mala
in se, and prohibited by the law of nature, nor to such as are
heinous in their character, or dangerous in their consequences ;
and, therefore, if a married woman be guilty of treason,
murder, or offences of the like description, in company with,
or by coercion of, her husband, she is punishable equally as
if she were sole. (?/i) So a married woman may be indicted
jointly with her husband for keeping a bawdy house, (?i) or
gaming house, (o) for these are offences connected with the
government of the house in which the wife has a principal
share, (p) According to the prevailing opinion, it seems the
wife may be indicted with her husband in all misdemean-
ors, (q) If a married woman incite her husband to the com-
mission of a felony, she is accessory before the fact, (r) But
she cannot be treated as an accessory for receiving her hus-
band, knowing that he has committed a felony, nor for con-
cealing a felony jointly with her husband, (s) nor for receiving
from her husband goods stolen by him. (<) And she will not
(k) Re<j. Y. Hughes, 1 Russ. 21.
(I) Reg. v. Cohen, 1 1 Cox, 99 ; Reg. v. Dicks, 1 Russ 19 ; Reg. v. Ham-
mond, Leach, 447 ; Arch. Cr. Pldg. 22.
(m) ibid. 23 ; see Reg. v. Cruse, 8 C. & P. 541 ; 2 Mood. C. C. 53 ; Reg.
v. Manning, 2 C. & K. 003 n.
(n) Reg. v. Williams, 10 Mod. 63, 1 Salk. 384.
(o) Reg. v. Dv-m, 10 Mod. 335.
(p) Arch. Cr. Pldg. 23.
(q) Ibid. 23 ; Reg. v. Ingram, 1 Salk. 384 ; but see Reg. v. Price, 8 C. *
P. 19. •
(r) Reg. v. Manning, 2 C. & K. 903 n.
(*) Arch. Cr. Pldg. 23.
(t) Reg. v. Brooks, Dears. C. C. 184; see Sea. v. Archer, 1 Mood. C.
C. 143.
70 THE CRIMINAL LAW OF CANADA.
be answerable for her husband's breach of duty, however
fatal, though she may be privy to his misconduct, if no duty
be cast upon her, and she is merely passive, (u)
Ignorance. — The laws can only be administered upon the
principle that they are known, because all persons are bound
to know and obey them, (v) A mistake, or ignorance of law,
is no defence for a party charged with a criminal act ; (w) but
it may be ground for an application to the merciful consider-
ation of the Government, (x) But ignorance, or mistake of
fact, may, in some cases, be a defence ; (y] as, for instance, if
a man intending to kill a thief in his own house, kill one of
his own family, he will be guilty of no offence, (z) But this
rule proceeds upon a supposition that the original intention
was lawful ; for if an unforeseen consequence ensue from an
act which was in itself unlawful, and its original nature
wrong and mischievous, the actor is criminally responsible
for whatever consequences may ensue, (a)
Principals in the, first and second degrees. — The general de-
finition of a principal in the first degree is one who is the
actor or actual perpetrator of the fact, (b) Principals in the
second degree are those who are present aiding and abetting
at the commission of the fact, (c) To prove a person an
aider or abettor, it must be shown either that he was actually
present aiding and in some way assisting in the commission
of the offence, or constructively present for the same purpose
— that is, in such a convenient situation as readily to come
to the assistance of the others, and with the intention of
doing so, should occasion require, (d) But there must be
(u) Reg. v. Squires, I Russ. 16 ; Arch. Cr. Pldg. 23.
(v) Reg. v. Moodie, 20 U. C. Q. B. 399, per Robinson, G. J. ; Reg. v.
Mailhux, 3 Pugaley, 493.
(w) R>g. v. Moodie, supra; Unwin v. Clark, L. R. 1 Q. B. 417 ; Reg. v.
Mayor of Tewkesbury, L. R. 3 Q. B. 635, per Blackburn, J.
(x) Reg. v. Madden, 10 L. C. J. 344, per Johnson, J.
(y) Unwin v. Clark. L. R. 1 Q. B. 417, per Blackburn, J.
(z) Reg. v. Levett, Cro. Car. 538. .
(a) Arch. Cr. Pldg. 24.
(b) Ibid. 7.
(c) Ibid. 8.
(d) Ashley v. Dundas, 5 U. C. Q. B. 0. S. 753, per Sherwood, J. ; Reg. Y
Cvrtley, 27 U. C. Q. B. 617, per Morrison, J.
PERSONS CAPABLE OF COMMITTING CRIMES. 71
some participation, for the fact that a person is actually
present at the commission of a crime does not necessarily
make him an aider or abettor. If one sees a felony is about to
be committed, and in no manner interferes to prevent it, he
does not thereby participate in the felony committed, so as
to render him liable as a principal in the second degree. It
should be proved that he did or said something showing his
consent to the felonious purpose, and contributing to its
execution, (e)
If a fact amounting to murder should be committed in
prosecution of some unlawful purpose, though it were but
a bare trespass, all persons who had gone in order to give
assistance, if necessary, for carrying such unlawful purpose
into execution, would be guilty of murder. But this applies
only to a case where the murder is committed in prosecution
of some unlawful purpose — some common design, in which
the combining parties were united, and for the effecting
whereof they had assembled. (/) Fur when the act of homi-
cide is not done with the concurrence of all those present,
there must be evidence of a precedent common purpose to
prosecute the unlawful enterprise, even to the extent of
extreme and deadly violence, (g) Even in case of felony,
there must either be a previous or present concurrence in the
act by all to render them liable, (h) otherwise none but the
party actually committing the act will be liable, (i)
In the Curtley case the prisoner C. was indicted for aiding
and abetting one M. in a murder, of which M. was convicted.
It appeared that, about six in the evening, the deceased was
with R. and his wife on the river bank at Amhertsburg, stand-
ing near a pile of wood. It's wife testified that she saw M.
standing behind the pile, who, on deceased going up to him,
(e) Reg. v. Curtley, 27 U. C. Q. B. 619, per Morrison, J.
(/) Ibid. 617, per Morrison, J.
(g) Ibid. 617, per Morrison, J. ; Rex v. Collison, 4 C. & P. 565 ; Reg. v.
Howeli, 9 C. & P. 437.
(h) Ibid. 617, per Morrison, J. ; Reg. v. Franz, 2 F. & F. 580.
(i) Ibid. 617, per Morrison, J. ; Reg. v. Skeet, 4 F. & F. 931 ; Reg. T.
Price, 8 Cox, C. C. 96.
72 THE CRIMINAL LAW OF CANADA.
struck deceased a blow with a stick, of which he ultimately
died. Some time after the stroke, deceased ran, when two
other men sprang out, and followed him ; but in a few
seconds two of them returned, and assaulted witness and R.,
her husband. She could not identify the prisoner. Two
other witnesses saw deceased running from the direction of
the wood pile, and across the road, when he fell over a stick
of timber. They saw a man, at the same time, come running
from the wood pile, and, as deceased got up, he struck him
with a stick, knocking him down, and again struck him on
the head, and then the man ran off to the north. One of
them identified this man as M., but the other did not know
him. One witness, B., swore that, about six on that evening,
deceased left his office with R. and his wife, and that, about
twenty minutes after, he saw the prisoner, with M. and
another, go into the vacant lot where the wood pile was, M.
having a stick in his hand, and heard M. sav to the others,
" Let us go for him." It was also proved by others that,
before the affray, the three were together near the wood pile
in question, and were also in a saloon, together about nine
o'clock afterwards. The prisoner was convicted on this evi-
dence, and a rule nisi was obtained for a new trial on his
behalf on the ground that there was no evidence to go to the
jury sufficient to justify his conviction. The rule was made
absolute, for there was no direct proof that the prisoner was
present when the blows were struck, or when the affray
began, and no evidence whatever that he and the others were
together with any common unlawful purpose, and the expres-
sion used by M., " Let us go for him," in the absence of evi-
dence that M. was alluding to the deceased, or that the
prisoner and M. were aware that the deceased was at the
wood pile, was unimportant per se, as indicating the intention
of the parties, and was obviously susceptible of different ap-
plications, (j)
Whenever a joint participation in an act is shown, or there
( j) Reg. v. Curtley, 27 U. C. Q. B. 613.
PERSONS CAPABLE OF COMMITTING CRIMES. 73
is a general resolution against all opposers, each person is
liable for every act of the others, in furtherance of the com-
mon design. (&) And if a number of persons are confederated
for an unlawful purpose, and in pursuit of their object commit
felony, any person present in any character, aiding and abet-
ting, or encouraging the prosecution of the unlawful design, is
involved in a share of the common guilt. (/)
But this doctrine will apply only to cases where the act
intended to be accomplished is unlawful in itself. For if the
original purpose is lawful and prosecuted by lawful means,
if one of the party commit a felonious act, the others will not
be involved in his guilt, unless they actually aided or abetted
him in the fact, (m) In other words, a felonious act com-
mitted by one person in prosecution of a common unlawful
purpose is the act of all, but if the purpose is lawful, the per-
son committing the act will alone be liable. By an unlawful
purpose is meant such as is either felonious, or if it be to com-
mit a misdemeanor, then there must be evidence to show that
the parties engaged intended to carry it out at all hazards, (n)
The act must also be committed in prosecution of the unlaw-
ful purpose, and be the result of the confederacy. (0)
A prisoner was convicted of unlawfully attempting to steal
the goods of one J. G. It appeared that he had gone with
one A. from Toronto to Cooksville, and examined J. G'.s store,
with a view of robbing it ; and that afterwards A. and three
others having arranged the scheme with the prisoner, started
from Toronto, and made the attempt, but were disturbed, after
one had gone into the store through a panel taken out by
them ; the prisoner saw them off from Toronto, but did not
go himself. It was held that as those actually engaged were
guilty of an attempt to steal, and as the evidence established,
• (k) Reg v. Slavin, 17 U. C. C. P. 203 ; Russ. Cr. 56.
(I) Reg. v. Lynch, 26 U. C. Q. B. 208 ; see also Reg. v. McMahon, 26 U. C.
Q. B. 195.
(m) Kuss. Cr. 56.
(n) Reg. v. Skeet, 4 F. & F. 931 ; see also Reg. v. Luck, 3 F. & F. 483 ;
Reg. v. Craw, 8 Cox, 335.
(o) Reg. v. White, R. & R. 99 ; Arch. Cr. Pldg. 950.
74 THE CRIiMINAL LAW OF CANADA.
the prisoner had counselled and procured the doing of that
act, and as such attempt was a misdemeanor, being an attempt
to commit a felony, the prisoner, under the 31 Vic., c, 72, s.
9, was properly convicted. ( p) This statute is clear, that if
the prisoner was accessory before the act, he could be indicted
as if he were personally present, (q)
So where J. and T. were driving a tr ap along the turnpike
road for a lawful purpose, and J. got out of the trap, went
into a field and shot a hare, which he gave to T., who had
remained in the trap. J. having been convicted of trespass
in pursuit of game, an information was laid under the 11 &
12 Vic., c. 43, against T., charging him with being present
aiding and abetting. On a case stated by the justices, it was
held that there was abundant evidence on which the justices
might have come to the conclusion that both were engaged
in a common purpose, and that T. was guilty, (r)
But where upon an indictment against E., H., and another
for stealing and receiving, it was proved that H. was walking
by the side of the prosecutrix, and E. was seen just previously
following her ; that the prosecutrix felt a tug at her pocket
and found her purse gone, and, on looking round, saw H.
walking with E. in the opposite direction, and saw H. hand-
ing something to him, and the jury, in accordance with the
direction of the presiding judge, found H. guilty of stealing
and E. of receiving, it was objected, that the jury should have
been told to find E. guilty of stealing or of no offence, as upon
the facts proved he was a principal in the second degree, aiding
and abetting, present, and near enough to afford assistance.
But the court held the charge and conviction were right,
Williams, J., being of opinion that the evidence did not show a
common purpose and intention ; while Wight/nan, J., thought
that the jury might very well have inferred concert, but they
had not done so, and their finding should not be disturbed, (s)
(p) Reg. v. Esmonde, 26 U. C. Q. B. 152.
(q) (bid. per Hagarty, J.
(r) Stacey v. Whitehurat, 13 W. R. 384.
(s) Reg. v. Hilton, 5 U. C. L. J. 70 ; Bell, 20 ; 28 L. J. (M. C.) 28.
PERSONS CAPABLE OF COMMITTING CRIMES. 75
Accessories before and after the fact. — An accessory before
the fact is he who, being absent at the time of the felony
committed, doth yet procure, counsel, command, or abet
another to commit a felony, (t) An accessory after the fact
is one who, knowing a felony to have been committed by
another, receives, relieves, comforts, or assists the felon, (u)
It is only in felonies that there can be accessories, for in mis-
demeanors all are principals, (v) By the 31 Vic., c. 72. s. 9,
aiders and abettors in misdemeanors are liable to be indicted,
tried, and punished as principal offenders.
There can be no accessories to a felony unless a felony
has been committed, (w) Ordinarily, there can be no acces-
sories before the fact in manslaughter, for the offence is
sudden and unpremeditated, (x) Where, however, the prison-
er procured and gave a woman poison, in order that she
might take it, and so procure abortion, and she did take
it in his absence and died of its effects, it was held that
he might be convicted as an accessory before the fact to the
crime of manslaughter, (y) There may, however, be acces-
sories after the fact in manslaughter, (z) The offence of an
accessory is distinguishable from that of a principal in the
second degree : the latter must be actually or constructively
present at the commission of the fact. But it is essential to
constitute the offence of accessory that the party should be
absent at the time the offence is committed, (a) On an in-
dictment charging a man as a principal felon only, he cannot
be convicted of the offence of being an accessory after the
fact. (6)
(0 Arch. Cr. Pldg. 11.
(u) Ibid. 14.
(v) Reg. v. Tisdale, 20 U. C. Q. B. 273, per Robinson, C. J. : Reg. v.
Campbell, 18 U. C. Q. B. 417, per Robinson, C. J. ; Reg. v. Benjamin, 4 U. C.
C. P. 189, per Macaulay, C. J.
(w) Reg. v. Gregory, L. K. 1 C. C. R. 77 ; 36 L. J. (M. C.) 60.
(z) Russ. Cr. 59.
(y) Reg. v. Gaylor, 1 Dears. & B. C. C. 288 ; see also Reg. v. Smith, 2
Cox, 233, per Parke, B.
(z) Russ. Cr. 59, n. ; see Rex. v. Greenacre, 8 C. & P. 35.
(a) Rex v. Gordon, 1 Leach, 515 ; Arch. Cr. Pldg. 11.
(b) Reg. v. Fallon, L. A C. 217 ; 32 L. J. (M. C.) 66.
76 THE CRIMINAL LAW OF CANADA.
The principle of law, both in civil and criminal cases
is that a person is liable for what is done under his pre-
sumed authority, (c) The owner of a shop is liable for any
unlawful act done therein in his absence by a clerk or assist-
ant in the ordinary course of business, for prima facie it
would be his act : but it would seem that if the act was
wholly unauthorized by him," and out of the usual course of
business, he might escape personal responsibility, (d) But
the agent is also liable for an unlawful act, although he may
have the express or implied authority of his principal for its
commission, (e) And a party who maintains a public nui-
sance as the agent of another, is a principal in the mis-
demeanor, and cannot justify on the ground of his agency. (/)
There seems, however, to be a great distinction between the
authority or procurement which will render a man liable
civilly and that which will render him liable criminally. In
the former, the authority must be strictly pursued ; but, in
the latter, the principal may be criminally liable, though the
agent deviate widely from his authority, (g) Thus the owner
of works carried on for his profit by his agents is liable to be
indicted for a public nuisance caused by acts of his work-
men in carrying on the works, though done by them without
his knowledge, and contrary to his general orders, (h)
So, in a prosecution for a penalty in selling liquor without
license, proof that the sale was made by a person in the
defendant's shop, in his absence, and without showing any
general or special employment of such peison by the defend-
ant in the sale of liquors, is sufficient prima facie evidence
against him. (i) So, the proprietor of a newspaper was held
indictable for a libel published therein, though he took no
actual share in the publication, and lived one hundred miles
(c) Reg. v. King, 20 U. C. C. P. 248, per Hagarty, C. J. ; see also Atty.
Gen. v. Siddon, 1 Tyr. 47.
(d) Ibid.
(e) Reg. v. Brewster, 8 U. C. C. P. 208.
( /) Ibid.
(g) Parkes v. Prescott, L. R. 4 Ex. 182, per Byks, J.
(A) Reg. v. Stephens, L. R. 1 Q. B. 702, 35 L. J. Q. B. 251.
(t) Ex parte Parks, 3 Allen, 237.
PERSONS CAPABLE OF COMMITTING CRIMES. 77
distant from the place of publication, and was confined to his
house by illness when the paper complained of appeared. (/)
Where the defendant was absent in New York, and his wife,
who was intrusted with the ordinary management of the de-
fendant's business in his absence, had a wild duck in her
possession, contrary to the Lower Canada Game Act, 22 Vic.,
c. 103, the court held that the defendant was responsible, on
the ground that the wife was acting as the agent of the hus-
band, and should be presumed to have his authority for the
illegal act complained of; and a conviction of the husband
(the defendant) and imposition of a penalty was consequently
sustained, (k)
Upon information for unlawfully selling beer, under 4 & 5
Win. IV,c. 85, s.!7,it was proved that the appellant's wife had
actually supplied the beer to three persons who had asked
the appellant for beer, and to whom he had said, whilst point-
ing to his wife, " You must ask her," it was held that upon
this evidence the conviction was right. In this case there
was an appeal against the decision of the justices. It was
argued that if the wife acted as agent for her husband, they
both ought to have been summoned and convicted together.
However, the court gave judgment for the respondent. (I)
It is conceived that the principles involved in the foregoing
cases will apply to principals and accessories in felonies. In
other words, that the authority or procurement which will in
misdemeanors render a man liable as a principal for the act
of his agent, will, in felonies, render him liable as an acces-
sory before the fact ; for it is a principle of law that he who
procures a felony to be done is a felon, (m)
The procurement may be personal, or through the inter-
vention of a third person, (n) It may also be direct by hire,
counsel, command, or conspiracy; or indirect, by evincing an
express liking, approbation, or assent to another's felonious
(j) Ex parte Parks, 3 Allen, 241, per Carter, C. J.
(k) Reg. v. Donaghue, 5 L. C J. 104.
(0 Reg. v. Smith, 5 U. C. L. J 142.
(m) Ru-ts. Or. 59.
(n) Rex v. Cooper, 5 C. & P. 535 ; Arch. Cr. Pldg. 11.
78 THE CRIMINAL LAW OF CANADA.
design of committing a felony, (o) But there must be some
sort of active proceeding on the part of the individual to
render him an accessory ; he must incite, procure or encourage
the act ; and the mere consent on the part of a prisoner to
hold stakes put up by two persons, who, having quarrelled,
had agreed to fight with their fists at a future time, was held
not to be such a participation as is necessary to constitute
him an accessory before the fact to the crime of manslaughter,
one of the combatants having died from wounds received iu
the fight, (p) The procurement must also 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, (q) So, if the accessory order or
advise one crime, and the principal intentionally commit
another, the accessory will not be answerable, (r) But it is
clear that the accessory is liable for all that ensues upon the
execution of the unlawful act commanded ; (s) and a sub-
stantial compliance with his instigation, varying only in cir-
cumstances of time or place, or in the manner of execution,
will involve him in the guilt, and, even when the principal
goes beyond the terms of the solicitation, yet, if in the event
the felony committed was a probable consequence of what
was ordered or advised, the person giving such orders or
advice will be an accessory to that felony, (t) A wife is not
punishable as accessory for receiving her husband although
she knew him to have committed a felony ; (u) for she is
presumed to act under his coercion. But no other relation
of persons can excuse the wilful receipt or assistance of
felons, (v)
(o) Hex v. Cooper, 5 C. & P. 535.
(p) Reg. v. Taylor, L. R. 2 C. C. R. 147.
(q) Arch. Cr. Pldg. 11.
(r) Ibid. 12.
(«) Ibid.
(t) Ruas. Cr. 62.
(») Reg. v. Manning, 2 C. & K. 903 n. ; Arch. Cr. Pldg. 14.
(v) Arch. Cr. Pldg. 14.
(w) Ibid. 15.
(x) Russ. Cr. 61 ; Dwarris, 518 ; and see 31 Vic., c. 72 ; Reg. v. Smith, L.
R. 1 C. C. R. 266 ; per Bovill, C. J.
PERSONS CAPABLE OF COMMITTING CRIMES. 79
To constitute the offence of accessory after the fact, it is
necessary that the accessory have notice, direct or implied,
at the time he assists or comforts the felon, that he had com-
mitt ed a felony ; and it is also necessary that the felony be
complete at the time the assistance is given, (w)
As to felonies created by statute, if an Act of Parliament
ordain an offence to be felony, though it mention nothing of
accessories before and after the fact, yet, virtually and con-
sequentially, those that counsel or command the offence are
accessories before the fact, and those who knowingly receive
the offenders are accessories after, (x) It is a maxim that
accessorius sequitur naturam sui principalis, and, therefore, an
accessory cannot be guilty of a higher crime than his prin-
cipal, (y)
The 31 Vic., c. 72, makes provision for the trial of acces-
sories before and after the fact. This statute alters the old
rule by which an accessory could not be brought to trial until
the guilt of his principal had been legally ascertained by con-
viction. By this act, accessories before the fact are triable in
all respects as principal felons ; and every principal in the
second degree is punishable in the same manner as the prin-
cipal in the first degree is punishable.
By s. 8, in the case of a felony wholly committed within
Canada, the offence of any person who is an accessory either
before or after the fact, to such felony, may be dealt with,
inquired of, tried, determined, and punished by any court
which has jurisdiction to try the principal felony, or any
felonies committed in any district, county, or place in which
the act by reason whereof such person shall have become
such accessory has been committed.
(y) Russ. Cr. 61.
80 THE CRIMINAL LAW OF CANADA.
CHAPTEE III.
OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE
PUBLIC PEACE, OR THE PUBLIC RIGHTS.
Coinage offences. — These offences are now regulated by the
32 & 33 Vic., c. 1 8. Where a prisoner ordered dies of a maker
impressed with the resemblance of the sides of a sovereign, and
the maker gave information to the police, who communicated
with the authorities of the mint, and the latter, through the
police, permitted him to give them to the prisoner, it was held
no lawful authority under section 24. (a) It is necessary in
the indictment to negative lawful authority or excuse, not-
withstanding that the burden of proof lies upon the accused ;
but the word "excuse" includes "authority," and therefore
the word " excuse" alone in an indictment under this section
is good. (5) A prisoner knowingly in possession of dies has
sufficient guilty knowledge to constitute felony, whatever his
intention as to their use may be, for there is nothing in the
act to make the intent any part of the offence, (c)
The 32 & 33 Vic., c. 29, s. 26, applies to a trial on an indict-
ment under s. 12 of the Coinage Act for feloniously having
in possession counterfeit coin after a previous conviction for
uttering counterfeit coin ; and, therefore, the previous convic-
tion cannot be proved until the jury find the prisoner guilty
of the subsequent offence ; (d) and a prisoner, indicted under
s. 12 of the Coinage Act for the felony of uttering, after a
previous conviction for a like offence, cannot be convicted of
the misdemeanor of uttering if the jury negative the previous
(a) Reg. v. Harvey, L. R. 1 C. C. R. 284.
(b) Ibid.
(c) Ibid.
(d) Keg. v. Martin, L. R. 1 C. C. R. 214 ; 39 L. J. (M. C.) 31 ; Reg. T
Goodwin, 10 Cox, 534, overruled.
OFFENCES AFFECTING GOVERNMENT, ETC. 81
conviction ; for felony and iiisde meaner are different things,
and on an indictment for one there can be no conviction for
the other, except by express enactment, (e) Where coin was
counterfeited to resemble smooth worn shillings the-i in cir-
culation, without any impression whatever upon them, it was
held to be a sufficient counterfeiting. (/) So a genuine sove-
reum filed at the edyes to such an extent as to reduce its
O *^
weight bv one twentv-fourth Dart and to remove the milling
J *. i *-^
almost entirely, and a new milling added in order to restore
the appearance of the coin, was held to be false and counter-
feit, (g] By the old law, the counterfeit coin must have ap-
peared to have that degree of resemblance to the real coin
that it would likely be received as the coin for which it was
intended to pass by persons using the caution customary in
taking money ; and the coin must have been in a complete
and perfect state, ready fur circulation. (A) Now, however,
by the 32 & 33 Vic., c. 18, s 32, the offence shall be deemed
complete although the coin was uot in a fit state to be uttered
or the counterfeiting thereof was not finished or perfected.
By sec. 30 any creditable witness may prove the coin to be
false or counterfeit, (t) The Imp. Act 16 & 17 Vic., c. 48,
is not in force here. (/) /But the Imp. Stat. 16 & 17 Vic., c.
102, respecting gold, silver, and copper coin, applies to this
country. (&)
In an indictment under sec. 22 of the Coinage Act, it
would seem to be necessary to allege that the coin was not
current by law in this province. (/)
Foreif/n enlistment, offences. — Tlie Imperial statute 33 & 34
Vic., c. 90, is now the governing enactment on this subject.
(e) Reg. v. Thomas, L. R. 2 C. 0. R. 141.
(/) Reg. v. WiUon, 1 Leach, 285 ; Reg. v. Welsh, ibid. 364 ; Arch. Cr.
Pldg. 745.
( g ) R?g. v. Hermann, L. R. 4 Q. B. D. 284.
(h) Reg. v. Varley, 2 W. Bl. 682; Reg. v. Harris, 1 Leach, 135; Arch.
Cr. Pldg 745.
(t) See also sec. 31.
(» See 32 & 33 Vic., c. 18, s. 36.
(k) Warner v. Fy<on, 2 L. C. J. 105.
(I) Reg. v. Titrney, 29 U. C. Q. B. 181.
F
82 THE CRIMINAL LAW OF CANADA.
It extends to the whole Dominion of Canada, including the
adjacent territorial waters, (ra) This statute is highly penal
in its character, (n) It, however, strengthens the hands of
the Government, and enables it to fulfil more easily than
heretofore that particular class of international obligations
which may arise out of the conduct of Her Majesty's sub-
jects towards belligerent foreign states with whom Her
Majesty is at peace.
It should be so construed as, on the one hand, to give, if
possible, due and full execution to its main purpose, and, on
the other hand, not to strain its provisions so as to fetter the
private commerce of Her Majesty's subjects beyond the ex-
press limits which the statute, for the general interests of the
public weal, has prescribed. (0)
The 59 Geo. III., c. 69, was in force here until the passing
of the former statute, the Provincial Act 28 Vic., c. 2, having
been passed in aid of it ; so that any provisions of the local
statute in conflict with the Imperial Act would not prevail
against the latter, (p) The local enactment will now stand
repealed in so far as it is repugnant to the Imp. 33 & 34
Vic., c. 90, but no farther. (§-)
But little judicial light has been thrown on the latter
statute, but several cases have been decided in our courts
under the old Act the results of which are given here.
A warrant of commitment, issued uuder the 59 Geo. Ill,
c. 69, is sufficiently certain if it charges the prisoner with
attempting or endeavoring to hire, retain, engage, or prevail
on to enlist as a soldier, in the land or sea service, for, or
uuder, or in aid of Abraham Lincoln, President of the United
States of America, and in the service of the Federal States
of America. The foregoing is also a sufficient description of
the foreign power in the warrant ; the power being one whose
(m) See sec. 2.
(n) The Gauntlet, L. R. 3 Ad. & EC. 388, per Sir R. PMllimore.
(o) The International, L. R. 3 Ad. & EC. 332, per Sir R. PhUlimore.
(p) Reg. v. Sherman, 17 U. C. C. P. 166 ; Reg. v. Schram, 14 U. C. C. P.
318.
(q) See sec. 2 ; see also Imp. Stat. 28 & 29 Vic., c. 63, a. 2.
OFFENCES AFFECTING GOVERNMENT, ETC. 83
existence the court is bound to notice judicially, and the
words relating to the Federal States being rejected as sur-
plusage. In such a warrant, it is not necessary to allege that
the accused is a British subject, the law presuming him to
be such until the contrary appears ; nor to negative a license
from Her Majesty the Queen to do the act or acts concerning
which the complaint is laid, (r) A direction to the gaoler to
keep the prisoner in the common gaol, " until he shall thence
be discharged by due course of law, or good and sufficient
sureties be received for his appearance," is sufficient — the
latter words being looked upon either as surplusage, or as a
valid direction, inasmuch as the magistrates having com-
mitted the prisoner for want of bail, it would be in the dis-
cretion of the magistrates or court ordering bail to fix the
amount.
" I," in the text of a warrant, may be read as " I and I,"
so as to read " given nnder my and my " hand and seal, etc.,
it being presumed that both magistrates use one and the same
seal, (s) A warrant of commitment reciting that Thaddeus
K Clarke " was this day charged (not saying upon oath)
before us," and without showing any examination by the
magistrates; upon oath or otherwise, into the nature of the
offence, and commanding the constables or peace officers of
the county of Welland to take the said Thaddeus K. Clarke
into custody, was held sufficient, (t) A warrant committing
the prisoner " until discharged by due course of law," suffi-
ciently complies with the statute, which provides for a com-
mittal until delivered by due course of law. A warrant
executed by two parties, and concluding " given under our
hand and seal," is sufficient, (u) A warrant of commitment,
reciting that F. M. was charged, on the oath of J. W., " for
that he (F. M.) was this day charged with enlisting men for
(r) Re Smith, 10 U. C. L. J. 247 ; but see re Martin, 3 U. C. P. R. 298
(s) He Smith, 10 U. C. L. J. 247.
(t) Re Clarke, 10 U. C. L. J. 331.
(u) Ibid.; see also re Smith, 10 U. C. L. J. 247.
84 THE CRIMINAL LAW OF CANADA.
the United States army, offering them $350 each as bounty,"
without charging any offence with certainty, was held bad. (v)
The third part of the seventh section of this Act, pro-
hibiting vessels irom engaging in ioreign service, is in the
alternative, and it is not necessary that the vessel should be
acting in the service of " any person or persons exercising, or
assuming to exercise, any powers of government in or over
any foreign state, colony, province, or part of any province
or people," if the vessel is " employed in the service of any
foreign state, or people, or part of any province or people." (w)
It has been doubted whether the jurisdiction conferred by
the 28 Vic. c. 2, is a general or a local one. (x)
A commitment under that statute, stating the offence as
follows : " For that he on, etc., at, etc., did attempt to procure
A. B. to serve in a warlike or military operation, in the ser-
vice of the Government, of the United States of America,
omitting the words " as an officer, soldier, sailor, etc.," is
bad. (T/)
A judgment for too little is as bad as a judgment for too
much, and a condemnation to pay $100 and costs — the statute
imposing $200 and costs — is bad. (z) So a commitment on
a judgment for the penalty and costs, not stating, in the body
of the commitment, or a renital in it, the amount of costs, is
bad. (a) But a warrant of commitment, on a conviction had
before the police magistrate for the town of Chatham, in
Ontario, under the 28 Vic., c. 2, averring that, on a (Jay named,
" at the town of Chatham, in said county, he, the said Andrew
Smith, did attempt to procure A. B. to enlist to serve as a
soldier in the army of the United States of America, contrary
to the statute of Canada in such case made and provided,"
and then proceeding, "and whereas the said Andrew Smith
was duly convicted of the said offence before me, the said
(v) Re Martin, 3 U. C. P. R. '298.
(w) Reg v. Carlin, the Salvador, L. R. 3 P. C. App. 218.
(x) Re Bright, 1 U. C. L. J. N. S. 240.
(y) Ibid.
(z) Ibid. ; Rex v. Salomon.'}, 1 T. R. 249 ; Whitehtad v. Reg. 1 Q. B. 582.
{a) Re Bright, 1 U. C. L. J. N. S. 240; Rex. v. Hall, Cowp. 60.
OFFENCES AFFECTING GOVERNMENT, ETC. 85
police magistrate, and condemned," sufficiently shows jurisdic-
tion, (b) A direction to take the prisoner " to the common
gaol at Chatham," the warrant being addressed " to the con-
stables, etc., in the county of Kent, and to the keeper of the
common gaol at Chatham, in the said county," is sufficient, (c)
And the adjudication as to the offence may be by way of
recital, (d) The words "to enlist t) serve" do not show a
double offence, and sufficiently describe that created by the
statute ; and such a warrant is not bad as to duration or
nature of imprisonment.
The commitment for the further time beyond six months
should be at hard labor, (e) The statute was intended to
allow both fine and imprisonment, or either, and it is not
compulsory to award both. So there is power to commit for
non-payment of costs. (/) The amount of costs was held
to be sufficiently fixed in a warrant of commitment, which,
in addition to S4.50 for costs, proceeded to give all costs and
charges of commitment, and conveying the prisoner to gaol,
amounting to the further sum of SI. (g) The statute inflicts
a penalty, "with costs," and in such case the costs of con-
veying the defendant to prison may be lawfully added. (Ji)
The intent is the material ingredient in the offence under
the Act being considered; and the mere tact that arms are
on board for the use of a foreign state against a nation at
peace with her Majesty, without showing such intent, is no
contravention of the Act. (i)
The object of the statute is to prevent warlike enterprises,
not commercial adventures. (/) And a steam tug which, in
pursuance of an agreement made between its master and the
officer in command of a vessel captured as prize, lying in
(b) He Smith, 1 U. C. L. J. X. S. 241.
(<•) Ibid.
(d) Ibid.
(?) Ibid.
(/) /Wrf-
(</) Ibid.
(A) Ibid.
(i) The Atalaya, 7 Q. L. K. 1.
(j) Ibid.
86 THE CRIMINAL LAW OF CANADA.
British waters, and under the direction of such officer, towed
the prize out of British waters for the ordinaiy towage re -
muneration, which was afterwards paid by the Consul-General
of the belligerent state in London, was held not liable to con-
demnation, though the master, who was one of the owners of
the steam tug, had reasonable cause to believe that the prize
was a prize of war, as it could not be said to have been em-
ployed in the military or naval service of the belligerent
state, (k) It would seem, however, that a ship employed in
the service of a foreign belligerent state to lay down a sub-
marine cable, the main object of which is, and is known to
be, the subserving the military operations of the belligerent
state, is employed in the military or naval service of that
state, within the meaning of the Act. (I) When a cause is
instituted against a ship in the Admiralty Court, for an offence
under this Act, the court may, with the consent of the Crown,
order the ship to be released on bail, (m)
Seducing soldiers or sailors to desert. — The Con. Stat. U. C.,
c. 100, has been repealed, and the 32 & 33 Vic., c. 25, is now
the governing enactment on this subject. The Imp. Mutiny
Act did not override the Con. Stat. U. C., c. 100; but the latter
was passed in aid of the former, and was in force, notwith-
standing the Imp. Mutiny Act. The two statutes were con-
strued as if they had been both Canadian, or both English
Acts, (n) The punishment by fine and imprisonment imposed
by the Provincial Act, however, stood abolished as long as
the Mutiny Act was in force, and the imprisonment could
in no case exceed six calendar months.
The power of trial by the Court of Oyer and Terminer,
under the Con. Stat. U. C., c. 100, was not taken away by
the Mutiny Act. It was, therefore, held no objection that a
defendant had been tried by a Court of Oyer and Terminer,
and sentenced to six months' imprisonment, and a fine of
(k) The Gauntlet, L. R. 3 Ad. & EC. 381.
(I) The International, L. R. 3 Ad. & EC. 321.
(m) The Gauntlet, L. R. 3 Ad. & EC. 319.
(n) Reg. v. Sherman, 17 U. C. C. P. 168, per J. Wilson, J. ; 169, per A.
Wilson, J.
OFFENCES AFFECTING GOVERNMENT, ETC. 87
10s. imposed ; for this was merely a nominal compliance with
the statute, and the court had power to pass the proper
judgment, if an improper one had been given, (o)
Although the 32 & 33 Vic., c. 25, in terms gives no power
of trial to a Court of Over and Terminer, yet section 5 of
that statute, by making every offence against it a misde-
meanor and punishable as such, would seem to continue the
jurisdiction over such cases in that tribunal. The offender
may also be convicted in a summary manner before any two
justices of the peace, on the evidence of one or more cred-
ible witness or witnesses, etc. Nothing in the Act shall be
construed to prevent any person being prosecuted, convicted,
and punished, under any Act of the Imperial Parliament in
force in Canada, (p)
The defendant was indicted under the Con. Stat. U. C.,
c. 100. s. 2, and convicted of receiving and concealing a
deserter from the Royal Navy. The Naval Discipline (Imp.)
Act, 29 & 30 Vic., c. 109, s. 25, authorizes a summary con-
viction before magistrates for this offence ; but the 101st sec-
tion expressly preserves the power of any court, of ordinary
civil or criminal jurisdiction, with respect to any offence
mentioned in the Act punishable by common or statute law
therefore, a defendant can be indicted and properly convicted
under the Provincial Act. (q) Where an indictment charged
that the defendant did receive, conceal, or assist " one W., a
deserter from the navy," the court inclined to think that this
was not sufficiently certain or precise ; for although acts
which would prove concealment must involve receiving, and
still more certainly assisting, yet there might be acts of
assistance quite apart from either concealment or receiv-
ing, (r) The Mutiny Act of 1867, 30 Vic., c. 13, has no
applicability to the above case. The provisions of that Act
(o) Keg. v. Sherman, supra. 166-172 ; Daw v. Metro. Board Co. 12 C. B.
N. S. 161 ;8Jur. N. S. 1040.
(p) See also 34 Vic., c. 32 ; 33 Vic., c. 19 ; and 36 Vic., c. 58.
(q) Reg. v. Patterson, 27 U. C. Q. B. 142.
(r) Ibid.
88 THE CRIMINAL LAW OF CANADA.
relate to soldiers, and to others only in regard to their con-
duct towards those who are soldiers within the meaning of
the Act. (*)
A warrant of commitment, in which it was charged that
the prisoner, on the 20th' June, 1864, "and on divers other
days and times," at the city of Kingston, did unlawfully
attempt to persuade one James Hewitt, a soldier in Her
Majesty's service, to desert, was held bad ; for it was impos-
sible to say, upon reading the warrant, how many offences he
had committed, or how the punishment was awarded for each
specih'c offence ; and if the prisoner were brought up again,
he would be unable to say whether he had been tried or not,
for he could not tell for which attempt he had already been
imprisoned. In this case the court held also that there was
no conviction to sustain the warrant of commitment, nor, in
fact, any conviction to sustain an imprisonment at all ; for if
the very words were used in the commitment which were
cited in the alleged conviction, the commitment could not be
sustained. (/)
When a soldier commits felony, by firing, without orders,
on a crowd of people, in the streets of a city, such conduct
being insubordinate, unsoldier-like, and to the prejudice of
good order and military discipline, he must first be held to
answer before the constituted tribunals in the colony proceed-
ing under the common law, before a military court, under the
Mutiny Act and the Articles of War, can legally take cogni-
zance of the charge, (u)
A volunteer is liable, by 29 & 30 Vic., c. 12, to be tried by
a court martial for misconduct while present at a parade of
his corps, though not actually serving in the ranks at the
time, (fl)
Section 125 of the Imperial Statute 36 Vic., c. 129, does
not modify or limit sec. 124 so as to restrict the application
(«) Reg. v Patterson, U. C. Q. B. 144, per Draper, C. J.
(t) Re McGinnes, 1 U. C. L. J. N. S. 15.
(u) Expa.te McCulloch, 4 L. C. R. 467.
(v) Ex parte Rickaby, 17 L. C. R. 270.
OFFENCES AFFECTING GOVERNMENT, ETC- 89
of that Act in relation to ships in the merchant service of
foreign countries to the offence of desertion only, but the
whole provisions of the Act apply to such foreign vessels,
so far as is consistent with existing treaties between Great
Britain and foreign countries, (w)
Piracy. — This offence at common law consists in commit-
ting those acts of robbery and depredation upon the high
seas which, if committed upon land, would have amounted
to felony there, (x) It was not a felony triable by jury at
common law, but was made so by the 28 Hy. VIII., c. 15,
and 11 & 12 Wm. III., c. 7. (y) These two statutes may,
perhaps, be treated as in force here, being part of the law of
England at the time of its introduction. In Canada, piracy
is, in fact, felony committed within the juiisdiction of any
Court of Admiralty ; for any felony punishable under the
laws of Canada, if committed within the jurisdiction of the
Admiralty Courts, may be dealt with, inquired of, tried, and
determined in the same manner as any other felony com-
mitted within that jurisdiction. (2)
The Imp. Stat. 12 & 13 Vic., c. 96, extends to the
Dominion, and makes further and better provision for the
trial of piracy than is inade-in and by the two former statutes,
and may, perhaps, to some extent, supersede them. Com-
missions were required for the trial of offences under the
earlier statutes, but it is conceived that the latter enactment
is in itself a sufficient authority for the trial of these offences,
and that commissions are now unnecessary. By that statute
jurisdiction is given to the colonial courts to try offences
cognizable in the Admiralty Court of England, so that in
this country the material inquiry in cases of piracy is as to
the jurisdiction of the Admiralty Courts.
The admiralty jurisdiction of England extends over British
vessels, not only when they are sailing on the high seas, but
(to) Ex part? Johansen, 18 L. C. J. 164.
(x) Russ. Cr. 144.
(y)Ibid.
(2) 32 & 33 Vic., c. 29, s. 136 ; see also 12 & 13 Vic., c. 96, *. 1.
90 THE CRIMINAL LAW OF CANADA.
also when they are in the rivers of a foreign territory, at a
place below bridges where the tide ebbs and flows, and where
great ships go, although the municipal authorities of the
foreign country may be entitled to concurrent jurisdiction.
And all seamen, whatever their nationality, serving on board
British vessels, are amenable to the provisions of British
law. (a)
An American citizen, serving on board a British ship,
causing the death of another American citizen, serving on
board the same ship, under circumstances amounting to man-
slaughter, the ship at the time being in the River Garonne,
within French territory, at a place below bridges, where the
tide ebbed and flowed, and great ships went. It was held
that the ship was within the Admiralty jurisdiction, and that
the prisoner was rightly tried and convicted at the Central
Criminal Court. (&)
On a trial for maliciously wounding on the high seas, it
was stated by three witnesses that the vessel on board which
the offence was alleged to have been committed was a British
ship, of Shields, and that she was sailing under the British
flag, but no proof was given of the register of the vessel, or
of the ownership. It was nevertheless decided that the
court had jurisdiction over the offence — first, because the
evidence was sufficient to prove that the vessel was a British
ve&sel ; secondly, because, even if it had appeared that the
vessel was not registered, the court would still have juris-
diction, as there is nothing in the Merchant Shipping Act to
take away that jurisdiction, and also by reason of s. 106 of
the latter Act, 1854, which provides that, as regards the
punishment of offences committed on board such a ship, she
shall be dealt with in the same manner as if she were a
recognized British ship, (c)
The prisoner was indicted for stealing three chests of tea
(a) Reg. v. Anderson, L. R. 1 C. C. R. 161 ; 38 L. J. (M. C.) 12 ; and see
Reg. v. Lopez, 1 Dears. & B. 1 C. C. 525 ; Reg. v. Lesley, 1 Bell, C. C.
220.
(6) Reg. v. Anderson, supra ; and see Reg. v. Allen, 1 Mood. C. C. 494.
(c) Reg. v. Seberg, L. R. 1 C. C. R. 264 ; 39 L. J. (M. C.) 133.
OFFENCES AFFECTING GOVERNMENT, ETC. 91
from a vessel, which sailed from London, on the high seas,
when the vessel was lying off Wampa, in China. The vessel
lay twenty or thirty miles from the sea. No evidence was
given of the flowing of the tide, or otherwise, where the vessel
lay. On a case reserved, the court held that the offence
was within the Admiralty jurisdiction, (d) Where the sea
flows in between two points of land in England, a straight
imaginary line being drawn from one point to the other, the
courts of common law have jurisdiction of all offences com-
mitted within that line, though it is said the Admiralty has
concurrent jurisdiction within the same, (e)
The great inland lakes of Canada are within the Admiralty
jurisdiction, and by the Imp. Act 12 & 13 Vic.,c. 96, there is
authority in our courts and magistrates to take cognizance of
an offence committed in the lakes, although in American
waters, in the same manner as if committed on the high seas.
The power may be exercised by all magistrates in the colony,
as if the offence had been committed in the waters within
the limits of the colony, and within the limits of the local
jurisdiction of the courts of criminal justice in the colony; (/)
for there is nothing in the statute to give any particular
functionary jurisdiction, or to make the offence of a local
nature, and, therefore, any magistrate in the province may
act. (g] If a robbery be committed on lakes, harbors, ports,
etc., in foreign countries, the Court of Admiralty indisputably
has jurisdiction, (h)
A British court has uo jurisdiction to punish a foreigner
for an offence committed on the high seas in a foreign ship,
against a British subject, (i) The 32 & 33 Vic., c. 20, s. 9,
makes provision for the trial in Canada of offences amount-
ing to murder or manslaughter committed upon the sea, (/)
(d) Rex v. Allen, 7 C. & P. 664 ; Reg. v. Sharp, 5 U. C. P. R. 138, per
A. Wilton, J.
(e) Ibid. 139, per A. Wilson, J. ; Rex v. Bruce, R. 4 R. 243.
(/) Reg. v. Sharp, 5 U. C. P. R. 135.
(g) Ibid. 140, per Wilson, J.
(k) Ibid. 139, per Wilson, J.
(it Reg. v. Kinsman, 1 James, 62.
(» See also c. 29, a. 9.
92 THE CRIMINAL LAW OF CANADA.
C'ubstoms and Excise offences. — These offences are now re-
gulated by the 40 Vic. c. 10. (k) Although section 81 of
that Act provides that persons removing goods from a bonded
warehouse shall incur the penalties imposed on persons for
smuggling, and by s. 76 of the same Act, smuggling is made
a misdemeanor, punishable by a penalty not exceeding $200,
or by imprisonment for a term not exceeding one year, or by
both, yet an indictment will not lie under s. 81, for the mis-
demeanor created by s. 76, for the 81st section does not
declare that the parties offending, etc., shall be deetned guilty
of the misdemeanor created by the 76th, and the clause cannot
be extended to the creation of a new crime by implication. (/)
It is unnecessary to allege, in the indictment for offences
against this Act, that the warehouse is a customs warehouse,
or one duly appointed and established according to the pro-
visions of the. law ; for the meaning of the word " warehouse"
is clearly defined by the Customs Act, and it would be
matter of proof as to whether the building alluded to comes
within that definition or not. Nor is it necessary to allege
that the goods had been marked and stamped in accordance
with the requirements of the Act, for the security of the
revenue of Canada, nor that the goods had previously been
duly entered for warehousing, in accordance with the pro-
visions of law, nor to allege by whom the goods were kept
in the warehouse, for not one of these statements -is required
by the statute; and, moreover, in official matters, all things
are presumed to have been properly done. An allegation
that the goods were fraudulently removed implies sufficiently
that they were not legally cleared from, etc. (m)
On a statute somewhat similar to the 40 Vic., c. 10, s. 91,
subsec. 2 (using, however, the words " information on oath
shall be given"), it was held that, to justify the breaking open
of a building, there should have been, first, a written intbrma-
(k) See as to customs 31 Vic., cs. 5, 6, 7, 43 & 44 ; also 33 Vic., c. 9 ; and
34 Vic., cs. 10 and 11.
(I) Reg. v. Bathgate, 13 L. C. J. 299.
(m) Ibid.
OFFENCES AFFECTING GOVERNMENT, ETC. 93
tion on oath ; and, second, the actual presence of the justice
at the breaking, so that the parties may understand the
demand for admittance comes from the justice, by virtue of
his legal authority, and magisterial character, (n)
Not opening a door, after a proper demand, is a sufficient
denial within the Act. If the breaking open is unlawful, and
the officer is concerned therein, he cannot justify the seizure
of smuggled goods found within the building ; but if a party ^
not concerned in the unlawful breaking, seized the goods, the
case might be different. It seems that an order to enter *;iven
to a police officer, present with the revenue officer, would be
sufficient, and that he would be presumed to be acting in
aid. (0) If the door be closed, and admission denied, then the
Act clearly intends that the justice should be the person to
demand admittance, and to declare the purpose for which the
entry is demanded. Possibly he might do this by the mouth
of the officer, but it should be done in such a way as to be
well understood as coming from the justice, by virtue of his
legal authority and magisterial character, (p)
An indictment for smuggling, under the (N". B.) Rev. Stat.,
c. 29, s. 1, charged, in the several counts (1) that the defend-
ant unlawfully landed alcohol, subject to duty, and thereby
smuggled the same ; (2) that defendant unlawfully landed
alcohol, subject to duty, without reporting lo the treasurer,
and thereby smuggled, etc. : (3) that the defendant landed
the alcohol without a permit, and thereby smuggled ; and (4)
that the defendant landed alcohol without paying the duties.
The indictment was held insufficient, as (1) the mere unlawful
landing of goods, without alleging any intent to defraud the
revenue, did not constitute the offence of smuggling; (2) merely
landing goods, without reporting them to the treasurer, or
without obtaining a permit, though it may subject the party
to a penalty, does not amount to smuggling ; (3) and the mere
landing of goods, without a previous payment of duty, is not
(n) Reg. v. Walsh, 2 Allen, 387.
(o) Ibid.
(p] Ibid. 391, per Carter, C. J.
94 THE CRIMINAL LAW OF CANADA.
a breach of the revenue laws, as the duty may be secured as
pointed out in the Act. The indictment must negative the
fact that the duties were secured, (q)
The colonial legislature has power to impose additional
grounds of forfeiture, for breach of the revenue laws, on goods
subject to forfeiture, under an Act of the Imperial Parlia-
ment, (r)
In the Atty. General v. Warner, (s) the question was raised,
but not decided, whether an information would lie under the
66th clause of the Imp. Act 8 & 9 Vic., c. 93, where the
party informed against was a person shown not to have trans-
ported or harbored the goods of another, but his own goods,
smuggled by himself, on his own account.
By this stat. 8 & 9 Vic., c. 93, gunpowder is prohibited
from being imported into the British possessions in America,
except from the United Kingdom, or some British possession.
Gunpowder coming from a foreign country was held not
liable to be proceeded against as a non-enumerated dutiable
article under the Provincial Revenue Act, 11 Vic., c. 1, for
being imported into the Province, at a place not a port of
entry, contrary to the Act 11 Vic., c. 2, s. 21 ; but that it
was liable to seizure and forfeiture, under the 17th section
of that Act, for being landed without entry at the Treasury, (t)
Spirits in casks less than 100 gallons were also held liable to
forfeiture, under the (N.B.) 11 Vic., c. 67, though the vessel
in which they were imported i3 over 30 tons register. (11)
In an information for the condemnation of goods as illegally
imported, it is allowable, under a plea that they were not
imported rrioda et forma, to show that the goods were landed
through stress of weather, (v)
In an information, at the suit of the Crown, for goods
seized at the Custom House, there must have been a substan-
(q Reg. v. CoKsidy, 4 Allen, 623.
(r) Atty. Oenl. and Myers, 2 Allen, 493.
(*) 7 U. C. Q. B. 399.
(t) Ibid.
(u) Atty. Ge.nl. v. Walsh, 2 Allen, 457.
(v) Atty. Oenl. v. Spa/ord, Draper, 320.
OFFENCES AFFECTING GOVERNMENT, ETC. 95
tive allegation that the goods were imported and brought in
in violation of the Custom House regulations, (w) It has
been held that the omission of the words " against the form
of the statute " is fatal, (x) The omission of these words is
probably cured by the 32 <fe 33 Vic., c. 29, s. 23.
In an information for a penalty under the Customs Act, 3
<fe 4 Wm. IV., c. 59, for knowingly harboring smuggled goods,
it was held that the stie.nter was a proper question for the
jury; and that in such information, the particular . illegal
act, as that the goods were imported without payment of
duties, etc., should be specified ; and that the information
should expressly show that the offence charge 1 to have been
committed was contrary to the form of the statute, and that
saying merely that the statute gives a right to the penalty
was not enough, (y)
If a quantity of smuggled goods be purchased at one time,
but seizures of them are made at different times, only one
penalty for harboring them can be recovered, (z)
An entry at the Custom House declared that the packages
contained articles not subject to duty, but some of them
contained contraband goods. This was held but one entry,
and that being false as to some of the packages, the goods
were not duly entered, and the whole were forfeited under
the (N.B.) 1 Rev. Stat,, c. 27, s. 10. (a)
A revenue inspector, suing in the Queen's name for penalties
under the 14 & 15 Vic., c. 100, was held not liable for costs,
because he came within the ordinary common law rule, ex-
empting the Crown from costs, (b)
The 34 Vic., c. 11, was passed for the purpose of preventing
corrupt practices in relation to the collection of the revenue.
Excise. — The excise is at present regulated by 31 Vic., c. 8,
as amended by 40 Vic., c. 12, and by the various statutes in
(w) Solr. Genl. v. Darling, 2 L. C. R. 20.
(x) Ibid.
(y) Reg v. Aumond, 2 U. C. Q. B. 166.
(z) Ibid.
(a) Reg. v. Southward, 3 Allen, 387.
(6) Ex parte Hogue, 3 L. C. K. 287.
96 THE CRIMINAL LAW OF CANADA.
force in the several provinces in relation to the sale of
liquors.
An indictment under sec. 143 of the first mentioned statute
for breaking a lock, etc., after other statements, alleged : In
which said warehouse certain goods for and in respect of which
a certain duty of excise was then and there by law imposed,
were then and there kept and secured, without the knowledge
and consent of the collector of inland revenue. It was held
that the redundant expression, " were then and there kept
and secured," made the words which form the gist of the
offence, " without the knowledge and consent of the collector
of inland revenue," apply apparently not to the opening of
the lock, but to the keeping and securing ot certain goods in
the warehouse, and was therefore bad. (c) The indictment
need not show the description of goods, nor that they are
subject to excise, nor by whom the goods were kept and
secured, nor that the goods were retained in any warehouse,
under the supervision of any officer of inland revenue, nor
that defendant opened a lock attached to a warehouse in
which goods were so retained, nor that the excise duty was
then and there unpaid, for all these allegations are mere
surplusage, (d)
A deputy revenue inspector may validly sign a plaint or
information for selling liquor without a license, (e) The
prosecutor is not bound to prove that the defendant has no
license, as he is not called on to prove a negative. (/)
It seems the Crown is not obliged, under Acts relating to
the excise, to proceed in the manner prescribed therein as a
private individual would be, unless expressly included, but
may institute proceedings in the superior courts by informa-
tion, (g)
(c.) R<-q. v. Bathfjate, 13 L. C. J. 303.
(d) Ibid. ; see also as to excise 31 Vic., cs. 49 & 50 ; 33 Vic., c. 9; and
34 Vic., c. 15.
(e) Reynolds and Durnford, 7 L. C. J. 228.
(J) Ex parte Parks, 3 Allen, 237 ; see post Evid ; re Barrett, 28 U. C.
Q. B. 561, per .4. Wilson, J.
(g) Reg. v. Taylor, 36 U. C. Q. B. 183, per A. Wilson, J.
OFFENCES AFFECTING GOVERNMENT, ETC. 97
In prosecutions for selling liquor without license, the better
opinion seems to be that the information should be under
oath, even where the statute does not expressly require it. (h)
If a form of conviction is given in the statute under which
the prosecution is had, it is sufficient if that form be followed,
even though, from a technical point of view, it is defective, (i)
But, in the absence of such statutory guide, gnat care is
required in the preparation of a conviction. It should show
whether the offence is for selling without license, or during
o o
prohibited hours, or in illegal quantities ; (J) if for selling
" by retail" it should so state it ; (&) if for selling during pro-
hibited hours, or not keeping up a proper signboard, should
aver that the defendant was properly licensed. (/) It seems
the time, (m) place, (n) and to whom sold, (o) should also be
stated ; and if there are any exceptions in the Act, they should
be negatived, (p) If tor a second or third offence, the pre-
vious convictions should be recited and proved, (q) But it is
not necessary to give the statute under which the conviction
takes place, (r) nor the kind or quantity of liquor sold, (s)
The terms "spirituous liquor" and "intoxicating liquors" are
convertible ; (t) and " at" the hotel, is equivalent to "therein
(A) Reg. v. McConnell, 6 U. C. Q. B. O. S. 629 ; but see ex parte Couxmc :
7 L. C. J 112.
(t) Reid v. Me Whinnic, 27 U. C. Q. B. 289 ; Reg. v. Strachan, 20 U. C.
C. P. 182.
(j) Reg. v. Haggard, 30 U. C. Q. B. 152; ex parte Woodhouse, 3
L. C R. 93.
(k) Ex parte Hebert, 18 L. C. J. 156.
(/) Rrg. v. French, 34 U. C. Q. B. 403 ; ex parte Birmingham, 2 P. t B.
564 ; McGUvery v. Gaulf, 1 P. & B. 641.
(m) Reg. v. French, 2 Kerr, 121 ; but see Reg. v. Justices of Queen's, 2
Pugsley, 485.
(n) Ex parte Hebert, 18 L. C. J. 156.
(o) fag. v. Cavanagh, 27 U. C. C. P. 537 ; but see Reg. v. Strachan, 20
U. C. C. P- 182.
(p) Re Mills, 9 U. C. L. J. 246 ; Reg. v. White. 21 U. C. C. P. 354 ; Reg.
v. Jukfs, 8 T. K. 542 ; Reg v. White, 21 U. C. C. P. 354.
(q) Reg. v. French, 34 U. C. Q. B. 403 ; Reg. v. Justices of Queen's, 2
Pugsley, 485.
(r) Reg. v. Strachan, supra ; Wray v. Toke, 12 Q. B. 492 ; Rex. v. Wood-
cork, 1 East, 146.
(«) Reg. v. King, 20 U. C. C. P. 246.
(t) Reid v. Me Whinnie, 27 U. C. Q. B. 289.
G
98 THE CRIMINAL LAW OF CANADA.
or on the premises thereof." (u) A conviction which described
the defendant as one " G. P. an innkeeper" was held bad, the
word "innkeeper" amounting only to a description of the
person, and not to an averment of his filling such a character ;
and the words "in and at his tavern" are held not to supply
the deficiency, as those words are consistent with ownership
without occupancy, (v) A conviction for that one H., on,
etc., " did keep his bar-room open, and allow parties to
frequent and remain in the same, contrary to law," was held
clearly bad as showing no offence, (w)
Where the statute limits the time within which proceed-
ings under it are to be taken, it is sufficient if it appear from
the statements in the conviction to have been begun in time
without any averment of the fact, (x) The information is
the commencement of proceedings for this purpose, (y) Under
R S. Ont., c. 181, it would seem to be unnecessary to show
such fact, as the clause of limitation is entirely distinct from
those creating the offences and imposing the penalties, (z)
A conviction which imposes a fine in excess of that allowed
by the statute under which it is made, is bad. (a)
An information charging several offences in the disjunctive
is bad, and the defect will not be cured by the confession of
the defendant. (6) The charge in a conviction must be
certain, and so stated as to be pleadable in the event of a
second prosecution for the same offence, (c)
The conviction must be of the offence charged in the infor-
mation, and not of a different offence, or of several offences
in the conjunctive, charged in the disjunctive, (d) Therefore,
(w) Reg. v. Cavanagh, 27 U. C. C. P. 537.
(v) Reg. v. Parlee, 23 U. C. C. P. 359.
(w) Reg. v. Haggard, 30 U. C. Q. B. 152.
(0) Reid v. McWhinnie, 27 U. P. Q. B. 289.
(y) Reg. v. Lennox, 34 U. C. Q. B. 28.
(z) Reg. v. Strachan. 20 U. C. C. P. 182; Wray v. Toke, 12 Q. B. 492 ;
Rex v. Woodcock, 1 East, 146.
(a) Reg v. Lennox, 26 U. C. Q. B. 141 ; Reg. v. French, 34 U. C. Q. B.
403.
(b) Ex parte Hogue, 3 L. C. R. 94.
(c) Reg. v. Haggard, 30 U. C. Q. B. 152.
(d) Ex parte Hogue, 3 L. C. R. 94.
OFFENCES AFFECTING GOVERNMENT, ETC. 99
a conviction adjudging the defendant guilty of the several
offences therein enumerated, and condemning him " for his
said offences " to but one penalty, is bad ; (e) and a convic-
tion against two jointly is bad, nor can one penalty be
awarded against two jointly, and such a conviction cannot
be amended. (/) A conviction will lie against a partner alone
foi selling liquor without license, lor all torts are several as
well as joint, (g)
When a conviction concludes contra formnm statuti, it
should first show something done which is contrary to the
statute, and the conclusion should follow properly from the
premises, otherwise a criminal charge would contain no
certainty at all. (Ji)
A conviction under 40 Geo. III., c. 4, for selling liquor
without license, was quashed, because, among other reasons,
it directed the defendant to pay the costs of the prosecution,
without specifying the amount, (i) But it was no objection,
Tinder the 29 & 30 Vic., c. 51, s. 254, that the costs of con-
veying the defendant to gaol, in the event of imprisonment
in default of distress, were specified, (j )
It is no ground for quashing a conviction that the informa-
tion stated the offence to be " selling liquor without license"
without the word "spirituous" or other word descriptive
of the quality of the liqu ir ; (k) but it has been doubted
whether such a clause would be sufficient in the conviction. (/)
It is no objection to state the offence as selling to divers per-
sons unknown to the informant, provided sales to particular
t persons be proved ; (m) at any rate, if no objection bj taken
by the prisoner to the variance; (n) and the statute as to
variances (o) would likely aid such defect.
(e) Ex parte Hogut, 8 L. C. R. 94.
(/) Rt.g. v. Sut'ton, 42 U. C. Q. B.
(g) Mullins and Bellamere, 7 L. C. J. 228.
(h) Wilton v. Graybiel, 5 U. C. Q. B. 229, per Robinson, C. J.
(i) Rfx v. Ferguson, 3 U. C. Q. B. 0. S. 220.
(j) Reid v. Me Whinnie, 27 U. C. Q. B. 289.
(k) Reg. v. Harshman, 1 Pugsley, 317.
(I) Campbell v. Flewdling, 2 Pugsley, 403.
(m) Reg. v. Harshman, supra.
(n) Ibid.
(o] 32 cfc 33 Vic., c. 31, a. 5.
100
THE CRIMINAL LAW OF CANADA.
The exact day ot selling need not be stated in the convic-
tion, (p)
Costs of commitment or conveying to gaol can only be
imposed when expressly authorized by statute ; and a convic-
tion granting such costs without authority is bad. (q) So a
conviction imposing, in default of fine, imprisonment without
legislative authority, would be quashed, (r)
A conviction for selling, &c., contrary to the Acts of Assembly,
and stating the titles of the Acts, is sufficiently certain, one
statute rendering the selling illegal and the other imposing
the penalty, (s)
An order of justices to condemn liquor with packages, &c.
is indivisible, and if bad in part, is bad altogether, (t) The
Ontario Act 44 Vic., c. 27, s. 9, if constitutional, authorizes
e destruction of the vessels containing the liquor as well as
the liquor itself.
Magistrates cannot, where a formal existing license is pro-
duced, go behind it for the purpose of inquiring whether cer-
tain preliminary requisites have been complied with before
its issue, (u) And the quashing of a by-law under which a
certificate has been granted, does not, it seems, nullify
license issued under it. (v)
Where the licensee to sell "in and upon the premises known
as," &c., cariied on the business of a tavern keeper in a house
at the front of a deep lot, for which house such license was
granted, was held properly convicted of selling liquor without
license on the lot in rear, which had for many years b
used as a fair ground, (w)
It is within the competence of the local legislatures tc
impose penalties for selling liquor without license, thougl
(p) Reg. v. Justices of Queen's, 2 Pugsley, 485.
(q) Reg. v. Hamhinan, supra.
(r) Ex parte Slack. 7 L. C. J. 6.
(s) Reg. v. Harshman, 1 Pugsley, 317.
(t) E£ parte Breeze. 3 Allen, 390.
(u) Retj. v. Stajfrord, 22 U. C. C. P. 177.
(v) Ibid.
(w) Reg. v. Palmer, 46 U. C. Q. B. 262.
OFFENCES AFFECTING GOVERNMENT, ETC. 101
;hey may be restricted as to the modes of enforcing them, (x)
But where the means provided for the recovery of such penal-
ties are ultra vires, the statute is void only to the extent of
.such excess, (y) In the Province of Ontario the sale of liquor
is at present regulated by R. S. 0., c. 181, as amended by 44
Vic., c. 27. The former statute consolidates and amends the
previous enactments on the subject, and makes ample pro-
jvision for amending and upholding convictions defective in
i point of form. It also contains clauses regulating the evidence
j necessary to be adduced in order to procure a conviction ;
I and gives, moreover, civil remedies to persons suffering as a
result of the improper supply of liquor to relatives and others.
Several cases have been decided under this statute and
those which it embodies, the results of which are given below.
Under s. 52, R.S.O. 181, the previous offence need not be
against the same license. That statute only authorizes the
alternative of fine or imprisonment for second offence, but
gives no power to imprison at hard labor for non-payment of
fine ; and a conviction bad in this respect cannot be amended
under s. 77, as it cannot be said that any other punishment
was intended. (z)
A brewer, licensed as such by the Government of Canada
under 31 Vic., c. 8, requires no license under above statute, (a)
It was held that 40 Vic., c. 13, the provisions of which are
in the main embodied in the R. S. O., c. 181, must be con-
strued either as providing that a wholesale license must be
taken out in municipalities where the Temperance Act of 1864
was in force, for the quantities to be sold therein under that
Act ; and making a sale thereof without license a contraven-
tion of sees. 24 & 25 of 37 Vic., c. 32, as a selling by wholesale
without license ; or as providing in addition that a sale in
such municipalities of the quantities prohibited by the
(x) Reg. v. McMillan, 2 Pugsley, 110.
(y) Ibid.
(z) Reg. v. Black, 43 U. C. Q. B 180.
(a) Severn v. Reg., 2 S. C. R. 70 ; Reg. \. Scott, 34 U. C. Q. B. 20.
102 THE CRIMINAL LAW OF CANADA.
Temperance Act should be a contravention of the said sees.
24 & 25 as a selling by retail without license. (&)
A conviction for an offence falling within the Canada
Temperance Act of 1864, improperly had under the Ont.
32 Vic., c. 32, was amended under 29 & 30 Vic., c. 50. (c)
And it has been held that, after a first conviction has been
returned to the Sessions, and filed, the justices, if they think
it defective, may make out and file a second, (d)
Section 51 of R. S. O., c. 181, which imposes the penalties,
omits all reference to a third offence (which was provided for
in the enactments of which it is a consolidation), though
such an offence is referred to in sec. 73, which deals with
the procedure, and in the forms of conviction given by the
Act. A conviction, therefore, for a third offence was quashed,
although the penalty imposed thereby might have been
inflicted for a second offence, (e) This omission is, however,
supplied by 44 Vic., c. 27, s. 5.
The servant of a keeper of an unlicensed tavern may be
convicted of selling in his master's absence; (/) and a married
woman, the lessee of premises where her husband sold liquor,
was held liable to conviction though not present when the
sale took place, (g]
The competency of the local legislature to delegate to the
commissioners power to regulate the number of licenses, or
otherwise to legislate with regard to the liquor traffic, has
been doubted, (h)
The purchaser of liquors is a competent witness to prove
its sale, (i)
A conviction of a registered druggist for selling spirituous
(6) Reg. v. Lake, 43 U. C. Q. B. 515.
(c) Re Walts, 5 U. C. P. R. 267.
(d) Wilson v. Graybiel, 5 U. C. Q B. 227 ; Cha.nf.ey v. Payne, 1 Q. 8. 712.
(e) Reg. v. Fraiolcy, 45 U. (.'. Q. B. 227.
(/) Reg. v. Williams, 42 U. C. Q. B. 462 ; Reg. v. Howard, 45 U. C. Q. B.
346 ; Reg. v. Campbell, 8 U. C. P. R. 55.
(g) Reg. v. Campbell, supra.
(h) Ibid. ; Reg. v. Hodge. 46 U. C. Q. B. 141 ; Roberts v. Climie, 46 U. C.
Q. B. 264.
(i) Ex parte Birmingham, 2 Pugsley & B. 564.
OFFENCES AFFECTING GOVERNMENT, ETC. 103
and intoxicating liquors by retail, to wit, one bottle of brandy
to one 0. S., at and for the price of SI. 25 without having a
license so to do as by law required, the said spirituous and
intoxicating liquor being so sold for other than strictly medi-
cinal purposes only was held valid, for the defendant was
not as a druggist authorized to sell without license, and it
was unnecessary for the prosecutor to show that he was not
licensed, or to negative any exemption or exceptions, (j}
But such conviction should aver that the sale was not made
on a requisition for medicinal purposes, (k)
Sec. 55 of R S. 0., c. 181, is within the competence of the
local legislature. (I)
An information under sec. 43, for selling liquor on Sunday,
is for a crime within R. S. 0., c. 62, so as to render the
defendant incompetent as a witness, (m)
Section 83 applies where the act complained of was done
either by the occupant or by some other person, (n)
Under the Canada Temperance Act, 1878, it has been held
necessary to prove before the magistrate that the second part
of the statute is in force, by the production of the gazette con-
taining the proclamation ; (0) but it may well be doubted
whether the court would not be found as a matter of law to
take notice whether such proclamation has issued.
Certiorari, on proceedings under this Act, is taken away, (p)
except in cases of want or excess of jurisdiction, (q)
It must be shown that the licenses have expired, (r)
Costs may be awarded on conviction, (s)
The Quebec License Act, 34 Vic., c. 2, is constitutional, (t)
(j) Reg. T. Denham, 35 U. C. Q. B. 503.
(k) Reg. v. White, 21 U C. C. P. 354.
(/) Reg. y. Boardman, 30 U. C. Q. B. 553 ; see also Rtg. v. Mason 17 U. C
C. P. 534.
(m) Rrg. v. Roddy, 41 U. C. Q. B. 291.
(n) Rtg. v. Breen, 36 U. C. Q. B. 84.
(o) Ex parte Russell, 4 Pugsley & B. 536.
(p) Ex parte Orr, 4 Pugsley & B. 67.
(q) Ex parte Ru&sel, supra.
(r) EJC parte McDonald, 4 Pugsley, & B. 542 ; ex parte White, 4 Pug sley
A B. 552.
(«) Ibid., per Palmer, 1.
(0 Ex parte Duncan, 4 Revue Leg. 228 ; 16 L. C. J 188.
104 THE CRIMINAL LAW OF CANADA.
There was no penalty which could be inflicted on a tavern-
keeper for allowing gambling in his house under the above
statute ; (u) this omission, however, is supplied by the 36
Vic., c. 3, s. 18.
In an action for recovery of a fine under sections 245 and
24*5 of the above Act, it is sufficient to allege and prove the
giving of drink by the candidate to an elector, without alleg-
ing or proving the existence of any improper motive, (v)
On a prosecution for a penalty for selling liquors without
license, proof that the sale was made by a person in the de-
fendant's shop in his absence, and without showing any
general or special employment of such person by the defend-
ant in the sale of liquors, was held in one case sufficient
prima facie evidence against him. (w)
Under the Quebec License Act, which constitutes -a tri-
bunal of two justices, it has been held that a conviction by
three is bad ; (x) and a conviction for selling liquor in the
house of another has, in the same province, been held bad. (y)
No appeal lies to the Queen's Bench on a conviction by
two justices under the Quebec License Act. (z)
The quashing of a by-law under which a certificate has
been granted, and license issued for the sale of spirituous
liquors, does not nullify the license under the R.S.O., c. 181 ;
and a conviction for selling without license cannot, therefore,
under these circumstances, be supported, (a)
Under this statute, a license to sell spirituous liquors
whether by wholesale or retail, is now necessary, either in the
case of a tavern or a shop ; and in the case of a shop, it must
not be consumed on the premises, or sold in quantities less
than a quart. Therefore, the sale of a bottle of gin, without
license, is contrary to law ; and it would seem that even if a
(u) Boivin v. Vigneux, 4 Revue Leg. 704.
(v) Philibert v. Lacerte, 3 Que. L. R. 152.
(w) Ex parte Parks, 3 Allen, 237.
(x) Re Paige, 18 L. C. J. 119.
(y) Ibid.
(z) Re Pope, 16 L. C. J. 169.
(a) Reg. v. Stafford, 22 U. C. C. P. 177.
OFFENCES AFFECTING GOVERNMENT, ETC. 105
license be necessary only on a sale by retail, the sale of a
bottle valued at sixty cents would be a sale by retail, (b)
Under an Imperial statute it was held that the handing
of beer, in a raug through an open window of the defendant's
premises to a person who, after paying for it, drank it im-
mediately, standing on the. highway as close as possible to
the window, was not a selling to be consumed on the premises
where sold, (c)
Where the conviction is for a fine — as a fine is imposed by
s. 51 for the first offence — it is rot necessary to specify
whether the conviction is for the first or second offence, as,
from the punishment awarded, the court would imply the
first offence ; and as the offence is selling liquor without
license, it is not necessary to state to whom the liquor was
sold. Section 68 of the Act provides that the magistrate
shall proceed in a summary manner, according to the pro-
visions, and after the forms, contained in and appended to
the Act of the Parliament of Canada, entitled, " An Act re-
specting the Duties of Justices of the Peace out of Sessions
in relation to Summary Convictions and Orders." It was
held, therefore, that the magistrate following a similar Act, in
awarding imprisonment in default of distress and commit-
ment, and conveying to gaol, was not acting illegally, and
that it was also sufficient for the conviction to follow the
forms given by same statute. (<X)
A conviction under this statute, alleging that defendant
sold spirituous liquors by retail, without license, stating
time and place, is sufficient, without specifying kind and
quantity, as this is a particular act, and it is enough to de-
scribe it in the words of the legislature, (e] Under the statute,
the owner of a shop is criminally liable for any unlawful act
done therein in his absence by clerk or assistant, as for in-
(6) Reg. v. Strachan, 20 U. C. C. P. 182.
(c) Re Deal, L. R. 3 Q. B. 8.
(d) Reg. v. Strachan, 20 U. C. C. P. 182 ; Re Allison, 10 Ex. 568, per
Park, B.; Mo/at v. Barnard, 24 U. C. Q. B. 499 ; Egginton v. Lichfield,
5 E. & B. 1U3.
(e) Re DoneUy, 20 U. C. U. P. 165 ; Reg. v. King, 20 U. C. C. P. 246.
106 THE CRIMINAL LAW OF CANADA.
stance, in this case, for the sale of liquor, without license, by
a female attendant. But it would seem, if the act of sale was
an isolated one, wholly unauthorized by him, and out of the
ordinary course of his business, he would not be liable. (/)
Where the depositions returned to the court by the con-
victing magistrate, under a certiorari, showed that there was
no evidence of a license produced before him, while the
affidavits filed, on the application to quash, stated that the
party had a license in fact, and produced evidence of it before
the magistrate, who, moreover, himself swore that he believed
a license was produced, but it was either not proved, or given
in evidence ; it was held that the return to the certiorari was
conclusive, and that the court could not go behind it. (g)
The informer is a competent witness, as he is expressly
made so by the statute ; (A) but the defendant cannot be
compelled to give evidence against himself, (i)
The penalties imposed by the 3 Vic., c. 47, for selling
liquor without license, are recoverable before the mayor of
Fredericton, under the Act of Incorporation, 14 Vic., c. 15,
s. 67. The mayor, being ex officio a justice of the peace,
may, in that character, proceed for the penalties which, by
the city charter, are made recoverable before the mayor, (j)
Under Con. Stats., L. C., c. 6, the convicting magistrate
has a discretionary power of giving any one of the three
Judgments mentioned in sec. 32, sub. -sec. 2, and sees. 38, 39
and 40. (k)
An appeal lies to the General Quarter Sessions of the
Peace from a conviction rendered by a judge of the Sessions
of the Peace in and for the city of Montreal, under s.50 of
this statute. (I) Under the same statute, the convicting
magistrate has the right to grant costs, either upon conviction
or dismissal of the prosecution, and this even to attorneys, (m)
(f) Re Donetty, 20 U. C. C. P. 165.
(g) Reg. v. Strachan, 20 U. C. C. P. 182.
(A) Ibid.
(») Reg. v. Roddy, 41 U. C. Q. B. 291.
(j) Reg. v. AUen, 2 Allenlic, 435.
(k) Ex part* Moley, 1 L. C. J. 1.
(I) Ex parte Thompton, 7, L. C. J. 10.
(m) Ex parte Moley, 1 L. C. J. 1.
OFFENCES AFFECTING GOVERNMENT, ETC. 107
In an appeal from a conviction for selling liquor contrary
to c. 22 of the (N.S.) Rev. Stat., the court allowed the original
summons to be amended, (n)
Compounding offences. — Compounding felony is where the
party injured, knowing the felon, takes his goods again, or
other amends, upon agreement not to prosecute. (0) It is a
misdemeanor at common law, punishable by fine and im-
prisonment, (p)
A prosecution is not the property of those that institute
it, to deal with it as they please. The public have a higher
interest in having redress rendered, and wrong punished,
to deter others from offending in like manner; (q) and in
general, a prosecution can only be compromised by leave of
the court. A prosecution for selling liquor without license
cannot be compromised without the leave of the court, (r)
Leave has been granted to compound a qui tarn action on the
32 Hy. VIII., c. 9, for buying a pretended title, on paying the
King's share into court, (s)
It is equally illegal to stipulate for the compromise of a
charge amounting to only a misdemeanor, if the offence is
one which is injurious to the community generally, and not
confined in its consequences to the prosecutor himself, as it
is to compromise a charge of felony, (t)
The 18 Eliz., c. 5, contains provisions against compounding
informations on penal statutes. But this statute does not
extend to penalties which are only recoverable by information
before justices. («)
(n) Taylor v. Marshall, 2 Thompson, 10,
(o) Rusa. Cr. 194-5.
(p) Arch. Cr. Pldg. 837. (
(y) Reg. v. Hammond, 9 Solr. Jour. 216, per Bramwell, B.
(r) He Prater, 1 U. C. L. J. N. S. 326, per A. Wilton, J. ; Reg. v. Mabey,
37 U. C. Q. B. 248.
(*) May q. t. \: Dettrick, 5 U. C. Q. B. O. S. 77. As to dtifling a
prosecution for felony, and the distinction between it and compounding
felony, see Williams v. Bayley, L. R. ; 1. E. & I. App. 200.
(t) Dvnght v. Ellsworth, 9 U. C. Q. B 540, per Robinson, C. J.
(u) Reg. v. Mason, 17 U. C. C. P. 534 ; Rex v. Crisp, 1 B. & Aid. 282 ;
Reg v. Mason, 17 U. C. C. P. 534 ; see also Reg. v. Stone, 4 C. 4 P. 379 ;
Reg. v. Gotley, R. & R. 84 ; Rrg. v. Best, 2 Mood. C. C. 125 ; Arch. Cr.
Pldg. 837 ; Macfarlane v. Deuxy, 15 L. C. J. 85 ; 32 & 33 Vic. c. 21,
B. 115.
108 THE CRIMINAL LAW OF CANADA.
Offences by persons in office. — An indictment lies against a
person who wilfully neglects or refuses to execute the duties
of a public office, (v) An indictment may be maintained
against a deputy returning officer at an election for refusing,
on the requisition of the agent of one of the candidates, to
administer the oath to certain parties tendering themselves as
voters, (w) But the omission of the name of the agent from
such indictment will vitiate it. (x)
An indictment charging a misdemeanor against a registrar
and his deputy jointly, is good, if the facts establish a joint
offence. A deputy is liable to be indicted, while the principal
legally holds the office, and even after the deputy himself
has been dismissed from the office, (y)
Extortion signifies the unlawful taking by any officer, by
color of his office, of any money or thing of value that is not
due to him, or more than is due, or before it is due. (z) This
offence is of the degree of misdemeanor, and all persons con-
cerned therein, if guilty at all, are principals, (a) Two or
more persons may be jointly convicted of extortion where they
act together and concur in the demand. Where two persons
sat together as magistrates, and one of them exacted a
sum of money from a person charged before them with a
felony, the other not dissenting, it was held that they might
be jointly convicted, (b) It is not necessary that the indict-
ment should charge the defendants with having acted cor-
ruptly, (e)
The courts do not quash indictments for extortion, but
leave the defendants to demur, (d)
The Stat. of West. 3 Edward I, c. 26, would seem to
apply here, (e)
(v) Reg. v. Bennett, 21 U. C. C. P. 238, per Gait, J.
(w) Ibid.
(x) Ibid.
(y) Reg. v. Benjamin, 4 U. C. C. P. 179.
(z) Russ. Cr. 208.
(a) Reg. v. Tisdale, 20 U. C. Q. B. 273, per Robinson, C. J.
(6) Reg. v. Tisdale, 20 U. C. Q. B. 273, per Robinson, C. J.
(c) Ibid.
(d) Ibid. 272, per Robinson, C. J. ; and see Rex v. Wadsworth, 5 Mod. 13.
(e) Askin v. London District Council, 1 U. C. Q. B. 292.
OFFENCES AFFECTING GOVERNMENT, ETC. 109
As to the fees which may be legally exacted by public
officers in different cases, it is a general rule that when a duty
is cast upon any one by Act of Parliament, and no remunera-
tion is provided for doing it, the party is to perform the duty
without remuneration. (/) A clerk of the peace is an officer
serving the Crown, and appointed to discharge public duties,
and he cannot charge fees for any service for the remunera-
tion of which no provision is made by statute or otherwise
expressly assigned to him by law ; (g) for it is a maxim of
law that no fee can be demanded tor services rendered in the
administration of justice, except such as can be shown to have
a clear legal origin, either as being specifically allowed in
some Act of Parliumaut, or as being sanctioned by some court
or officer that has been permitted by ancient usage to award
a fee for the service, (h)
All new offices erected with new fees, or old offices with
new fees, are within the Stat. 34 Edward T., for that is taliage
upon the subject, which cannot be done without common
assent by Act of Parliament, (t) A cbrk of the peace is not
entitled to any fee from the parties to a cause for striking a
special jury, (j) The table of fees established and promul-
gated by the courts, contains all the services for which clerks
ot the peace are entitled to charge, except that they are
entitled to fees in all cases where such fees are authorized
by Act of Parliament ; but no local tariff or user in particular
comuies can give any additional right. (&)
It would be illegal, as manifestly contrary to duty as well
as public policy, in a judge to take Irom the party in whose
favor he purposes to decide, an undertaking to indemnify
him against all the consequences of his decision. (/)
(/) Axkin v. Lwlon District Council, 1 U. C. Q. B. 295, per Robinson,
C. J. ; Graham v. Grill, 2 M. 4 S. 295.
(tl) Axiin v. London Dlstru-t Coun<H, 1 U. C Q. B. 292.
(h) Hooker v. Gu -nelt, 16 U C. Q. B. 183, per Robinson, C. J.; Price v.
Perceval. S. L. C. A. 189 ; the London S. V. A. R. 140.
(t) The London S. V. A. R. 140.
(j) Hooker v. Gurnett. 16 U. C. Q. B. 180.
(k) Re Dartndl, 26 U. C. Q. B. 430. See as to auditing accounts of the
clerk of the p -ace. re Poussett and Corporation of Lambton, 22 U.C.Q.B.80.
(1) BaUard v. Pope, 3 U. C. Q. B. 320, per Robinson, C. J.
110 THE CRIMINAL LAW OF CANADA.
A bailiff for overcharge is liable to fine and imprison-
ment ; (m) but in one case such a conviction was quashed, on
the ground that the magistrate permitted an amendment in
the information, and because no precise date of the offence
was given, (n^
The fees of office and taxes payable to the clerk of appeals,
Queen's Bench, belong to, and form part of, the revenue of the
Crown. (0)
Sale of offices. — It would seem that an indictment or infor-
mation lies at common law for the sale of a public office, on
the ground that public policy requires that there should be
no money consideration for the appointment to any office in
which the public are interested, and that the public will be
better served by having persons best qualified to fill offices
appointed to them ; and if money may be given to those who
appoint, or through whom an office may be obtained, it would
be a temptation to appoint improper persons, (p)
The office of sheriff is an office concerning the adminis-
tration or execution of public justice, and the sale of it is
illegal. The defendant agreed with R, then sheriff of the
county of Norfolk, to give him £500, and an annuity of £300
a year, if he would resign. R accordingly placed his resig-
nation in defendant's hands. The £500 was paid, and certain
lands conveyed to secure the annuity ; and it was further
agreed that in the event of the resignation being returned t
and R continuing to hold the office, the money should be
repaid, and the land reconveyed. But R. dii not undertake
in any way to assist in procuring the appointment for the
defendant. The latter having been appointed by the Govern-
ment in ignorance of the agreement, an information was filed
against him, and the court held that this was an illegal
transaction, as being, in fact, a purchase of the office, within
the 5 & 6 Ed. VI., c. 16, and that an information might be
(m) Deguire v. Despins, 6 Revue Leg. 736.
(n) Ex parte Smith, 6 L. C. R 488.
(o) Reg v. Holt, 13 L. C. R. 306.
(p) Reg. v. Mercer, 17 U. C. Q. B. 625 ; per M'Lean, J. ; and see Russ.
Cr. 214 ; Rex v. Vaughan, 4 Burr. 2494 ; Rex v. Pollman, 2 Camp. 229.
OFFENCES AFFECTING GOVERNMENT, ETC. Ill
sustained under this Act as for a misdemeanor ; but, at all
events, if not sustainable under this Act, the British Act 49
Geo. III., c. 126 clearly applied in this Province, and made
it a misdemeanor; (g) and it may well be doubted whether
the agreement would not have been an offence at common
law. (r) The ignorance of the Government as to the illegal
agreement was immaterial, (s)
In another case, a sheriff agreed with one 0. to give the
latter all the fees of his office, except for certain services
specified, in consideration of which 0. was to pay him £300
a year quarterly in advance, not out of the fees, but absolutely
and without reference to their amount. It was held that this
was a sale of the deputation of the office, and was clearly
prohibited by the 5 & 6 Ed. VI, c. 16, and 49 Geo. Ill, c. 126,
and that the effect of it was to forfeit the office upon convic-
tion under a proceeding by scire facias. (£) But if the defend-
ant in this case had agreed to pay his deputy a certain sum
of money annually for acting as his deputy, either in regard
to all his ministerial duties, or a part of them, or had agreed
to give him a certain portion of the fees, or to take from him
a certain portion of the fees, or a certain fixed sura annually
out of the fees, he would not have brought himself within
he statute, or done anything illegal (u)
The 49 Geo. Ill, c. 126, expressly extends the 5 & 6 Ed.
VI., c. 16, to the colonies ; at least such portions of it as are in
their nature applicable, (v) The former statute expressly ex-
tends the 5 & 6 Ed. VI, c. 16, to the office of sheriff: and any
act done in contravention of the latter statute is indictable,
though not expressly made so. (w)
An agreement whereby, after reciting that A. had carried
on the business of a law stationer at G., and had also been
(q) Reg. \. Mercer, 17 U. C. Q. B. 602.
(r) Ibid.
(») Ibid.
(t) RVJ. v. Moodie, 20 U. C. Q. B. 389.
(u) Ibid. 402, per Robinson, C. J. ; see also Foott v. BuUock, 4 U. C. Q. B.
480.
(v) Reg. v. Mercer, 17 U. C. Q. B. 602.
(v) Ibid.
112 THE CRIMINAL LAW OF CANADA.
sub- distributor of stamps, collector of assessed taxes, etc.,
there, and that he had agreed with B. for the sale o( the said
business, and of all his goodwill and interest therein, to 1 im,
for the sum of £300. A., in consideration of the said sum of
£300, agreed to sell, arid B. agreed to purchase, the said busi-
ness of a law stationer at G. ; and whereby it was further
agreed that A. should noi, at any time after the first of March
then next, carry on the business of a law stationer at G.,
or within ten miles thereof, or collect any of the assessed
taxes, but would use his utmost endeavors to introduce B.
to the said business and offices, is illegal a-id void, as being
a contract for the sale of an office within the 5 & 6 Ed. VL,
c. 16, and also within the 49 Geo. III., c. 126, which makes the
offences prohibited by the former statute misdemeanors, (x)
An arrangement by a clerk of the Crown to resign his office
in favor of his son, on condition of sharing the revenues and
emoluments of the office, is illegal and void, (y}
The Quarter Sessions is a competent tribunal to hear and
determine a charge, under 1 W. & M., c. 21, s. 6, against a
clerk of the peace for having '•' misdemeaned himself in the
execution of his office." Arid when the Quarter Sessions
have determined the charge, the superior court cannot
question the propriety of their decision, (z)
It seems that the treasurer of a municipality may be in-
dicted for an application of the funds clearly contrary to law,
even though sanctioned by a resolution of the council ; or for
.paying a member of the council for his attendance, (a)
A court of justice has power to remove its officers, if unfit
to be trusted with a professional status and character. If an
advocate, for example, were found guilty of crime, there is no
doubt the court would remove him. (b)
(x) Hopkins v. Prescott, 4 C. B. 578 ; and see Reg. v. Charretie, 13
Q. B. 447.
(y) Detis/e and Delixle, Dob. Dig. 89.
(z) Wildes v. Ru**ell, \,. R. 1, <J. P. 722.
(a) East Nissouri v. Horseman, 16 U. C. Q. B. 576 ; see also Daniels v.
Tp. ofBurford, 10 U. C. Q B. 478.
(6) Re Wallace, L. R. 1, P. C. App. 295, per Lord Westbury.
OFFENCES AFFECTING GOVERNMENT, ETC. 113
But an advocate who has advised a client to oppose a writ
of execution even by force, believing it to be null, cannot be
convicted on a criminal information for such advice, (c)
A criminal information will lie against an officer who mis-
conducts himself in the execution of his office. But such an
information will never be granted against a judge, unless the
court sees plainly that dishonest, oppressive, vindictive or
corrupt motives, influenced the mind, and prompted the act
complained against, (d)
On an application to file a criminal information against a
Division Court judge, for his conduct in imposing a fine, for
contempt, upon a barrister employed to conduct a case before
him, the court held that, even if his conduct were erroneously
treated by the judge as contemptuous, and, consequently, the
adjudicature of contempt would, on a full and deliberate
examination, be found incorrect, this would afford no ground
whatever for a criminal information, (e) It has been ques-
tioned whether a criminal information is proper in the case
of a judge of an inferior court of civil jurisdiction in rela-
tion to a matter over which he has exclusive jurisdiction. (/)
An attachment has been granted against commissioners
of a Court of Requests, for trying a cause in which they
were interested, (g) And where a magistrate acts in his
office with a partial, malicious, or corrupt motive, he is guilty
of a misdemeanor, and may be proceeded against by indict-
ment or criminal information in the Queen's Bench, (h)
It is a well-established maxim of law that no one shall be
a judge in his own cause, and the general rule applicable to
judicial proceedings is, that the judgment of an interested
judge is voidable, and liable to be set aside by prohibition,
error, or appeal, as the case may be. (i) In cases of necessity
(c) Rrg. v. Morrison, 3 Revue. Leg. 525.
(d) Re Recorder and Judge D. C. Toronto, 23 U. C. Q. B. 876.
(«) Ibid.
(/) Ibid. ; see also Reg. v. Ford, 3 U. C. C. P. 209.
(g) Rex v. Mclntyre, Taylor, 22.
(h) Burns. Jus., vol. iii. 144-5, ed. 13.
(t) PhUGps v. Eyre, L. R. 6 Q. B. 22, per WUes, J.
H
114 THE CRIMINAL LAW OF CANADA.
however, where all the judges having exclusive jurisdiction
over the subject matter happen to be interested, the objection
cannot prevail. And the objection does not apply to a party
claiming the protection of an Act of Parliament, though he
is a necessary party to its passing, as the governor of a
colony, there being no analogy between judicial and legisla-
tive proceedings in this respect, (j)
A direct pecuniary interest in the matter in dispute dis-
qualifies any person from acting as a judge in such matter, (k)
The' interest, however, which disqualifies at common law must
be direct and certain, not remote or contingent. (/) Thus,
the corporation of B. were the owners of water-works, and
were empowered by statute to take the waters of certain
streams, without permission of the mill-owners, on obtaining
a certificate of justices that a certain reservoir was completed
of a given capacity, and filled with water. An application
was made to justices accordingly, which was opposed by mill-
owners; but, after due inquiry, the justices granted the cer-
tificate. Two of the justices were trustees of a hospital and
friendly society respectively, each of which had lent money
to the corporation- bonds, charging the corporate funds.
Neither of the justices could, by any possibility, have any
pecuniary interest in these bonds ; but the security of their
eestui que trusts would be improved by anything improving
the borough fund, and the granting of the certificate would
indirectly produce that effect, as increasing the value of the
water-works. There was no ground to doubt that the justices
had acted bona fide; and the court held that the justices were
not disqualified from acting in the granting of the certificate,
and the court refused a certiorari for the purpose of quashing
it. (m)
The mere possibility of bias in favor of one of the parties
does not ipso facto avoid the justice's decision ; in order to
have that effect, the bias must be shown at least to be real.
(j) PhttUps v. Eyre, L. R. 6 Q. B. 22, per Willes, J.
(k) Reg. v. Rand, L. R. 1 Q. B. 232, per Blackburn, J.
(1) Reg. v. M. S. <k L. Ry. Co., L. R. 2 Q. B. 339, per Mellw; J.
(m) Rtg. v. Rand, L. R. 1 Q. B. 230.
OFFENCES AFFECTING GOVERNMENT, ETC. 115
But if a judge is really biassed in favor of one of the
parties, it would be very wrong in him to act, and it seems
the court would interpose in such case, (n)
It seems no objection to a justice that he is remotely con-
nected with one of the parties, so long as there is no consan-
guinity or affinity, (o)
If a person assault a justice, the latter might, at the time
of the assault, order him into custody ; but when the act is
over, and time intervenes, so that there is no present disturb-
ance, it becomes, like any other offence, a matter to be dealt
with upon proper complaint, upon oath, to some other justice,
who might issue his warrant ; for neither a magistrate nor a
constable is allowed to act officially in his own case, except
flagrante delictu, while there is otherwise danger of escape, or
to suppress au actual disturbance, and enforce the law while
it is in the act of being resisted, (p)
Monopoly. — A by-law passed under 31 Vic., c. 30, s. 44, for
exempting from taxation any person commencing any new
manufacture of the nature contemplated by the section, and
employing therein more than 81,000, and paying to operators-
more than $30 weekly, was held bad, for exempting new
manufactures in preference to old-established business, and
for exempting only those persons doing a specified amount of
business, (q) The giving to one person of a trade a benefit
which another of the same trade does not get also, is a mono-
poly of the worst description ; (r) and a by-law passed for
such a purpose would be void.
Rules in restraint of trade are not criminal, though they
may be void as against public policy, (s) Nor are strike.-
necessarily illegal, and their legality or illegality must depend
on the means by which they are enforced, and upon their
(*) Reg. v. Rand, L. R. 1 Q. B. 233, per Blackburn, J. ; Reg. v. Meyer,
L. R, i Q. B. D. na
(o) Reg. v. Comrs. Highways, St. Joseph, 3 Kerr, 583; see also on this
subject Wildes v. Ruvsell, L. R. 1 C. P. 722 ; ex parte Leonard, 1 Allen, 269
(p) Powell v. Williamson, 1 U. C. Q. B. 156, per Robinson, C. J.
(q) Pirie and the Corporation of Dundas, 29 U. C. Q. B. 401.
(r) Ibid. 407, per A. Wilson, J.
(*) Reg. v. Stainer, L. R, 1 C. C. R. 230, 39 L. J. (M. C.) 54
116 THE CRIMINAL LAW OF CANADA.
objects. They may be criminal, if part of a combination for
the purpose of injuring or molesting either masters or men, or
they may be simply illegal, as when they are the result of an
arrangement depriving those engaged therein of the liberty
of action. (0
The Trade Unions Act, 1872, (u) (35 Vic., c. 30) declares
that the purposes of any trade union shall not, by reason
merely that they are in restraint of trade, be deemed to be
unlawful, so as to render any member of such trade union
liable to a criminal prosecution for conspiracy, or otherwise
By 35 Vic., c. 31., D., every person who uses violence to
any person, or any property, or threatens or intimidates any
person in such a manner as would justify a justice of the
peace, on complaint made to him, to bind over the person
so threatening or intimidating to keep the peace, or who
•" molests" or " obstructs " any person in manner defined by
the Act, with a view to coerce such person — being a master,
to dismiss or cease to employ any workman; or, being a
workman, to quit any employment, or return work before
it is finished ; being a master, not to offer, or, being a work-
man, not to accept, any employment or work ; being a
master or workman, to belong to, or not to belong to, any
temporary or permanent association or combination ; being
a master or workman, to pay any fine or penalty imposed
by any temporary or permanent association or combination ;
being a master, to alter the mode of carrying on his busi-
ness, or the number or description of any persons employed
byhim — shall be guilty of an offence against the Act, and
shal 1 beliable to imprisonment, with or without hard labor
for a term not exceeding three months.
Any person shall, for the purposes of this Act, be deemed
to molest or obstruct another person in any of the following
cases : that is to say, (1) if he persistently follows such other
(t) Farrer v. Close, L. R. 4 Q. B. 612, per Hannen, J. ; Hilton v.
Eckersly, E. & B. 47.
(u) 35 Vic., c. 30.
OFFENCES AFFECTING GOVERNMENT, ETC. 117
person about from place to place; (2) if he 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 ;
(3) if he watches or besets the house or place where such
other person resides, or works, or carries on business, or
happens to be, or the approach to such house or place, or
if with two or more other persons he follows such other
person, in a disorderly manner, in or through any street or
road.
By the 32 A: 33 Vic., c. 20, s. 42. assaults in pursuance of
any unlawful combination or conspiracy to raise the rate
of wages, are punishable as misdemeanors.
These statutes, in a great measure, assimilate the law as
to trades unions and strikes to that existing in England.
Several cases have been decided in England, which may
assist in the construction of the Canadian statutes, (v)
A by-law of Fredericton, to regulate the public market,
required the stalls in the market to be leased annually, and
declared that the lessee of a stall should receive from the
mayor a license to occupy, and that any person occupying
without a license should be liable to a penalty. In a prose-
cution for the penalty the court held that the only question
was, whether the defendant had a license, (w)
Champerty and maintenance. — The offence of champerty is
defined in the old books to be the unlarwful maintenance of
a suit, in consideration of some bargain to have part of the
thing in dispute, or some profit out of it. (x) The object of
the law is not so much to prevent the purchase or assign-
ment of a matter in litigation, as such purchase or assign-
(v) See Keg. v. Byderdike, 1 M. & Rob. 179 ; R*<I. v. Rowlands, 2 Den.
364, 17 Q. B. 671 ; Reg. v. Duffield, 5 Cox, 404 ; Wahby v. Anley, 30 L. J.
(M. C.) 121 ; O'NeiU v. Longman. 4 B. & S. 376 ; O'tfeill v. Kruger, 4 B.
k S. 389 ; Reg. v. Druitt, 10 Cox, 592, 601-2 ; Reg. v. Shepherd, 11 Cox,
325 ; Reg. v. Seteby, 5 Cox, C. C. 495 ; Hilton v. Eckersly, 6 E. & B. 47-53 :
24 L. J. Q. B. 353 ; ffornby v. Close, L. R. 2 Q. B. 153 ; Reg. v. Hunt,
8 C. & P. 642 ; Reg. v. Hewit, 5 Cox, C. C. 162.
(10) Ex pane Milligan, 2 Allen, 583 ; see as to forestalling, Wilson v.
Corporation of St. Catharine*, 21 U. C. C. P. 462.
(z) Carrv. Tannahill, 31 U. C. Q. B. 223, per Morrison, J. ; Kerrv.
Brunton, 24 U. C. Q. B. 395, per Hagarty, J. : Stanley v. Jonet, 1 Bing, 369.
118 THE CRIMINAL LAW OF CANADA.
ment with th# object of maintaining and taking part in the
litigation, (y) All the cases of champerty and maintenance
are founded on the principle that no encouragement should
be given to litigation by the introduction of parties to
enforce those rights which others are not disposed to
enforce, (z)
The principles of the law of maintenance are recognized
and adhered to in the modern cases, (a) But the general
doctrines of the law are largely modified, and restrained in
their operation to cases where there is danger of oppression
or abuse ; (b) or where a man improperly, and for the purpose
of stirring up litigation or strife, or of profiting by it, encour-
ages others to bring actions, or make defences, which they
have no right to make, (c)
Champerty is punishable at common law. (d) It seems
the Crown is bound by the law on this subject. In Smyth v.
M' Donald, (e) it was held that the Crown must first eject the
occupant before selling land of which it is not in possession ;
and that neither the 32 Hy. VIII., c. 9, nor the ordinary
principles of the common law, allowed the conveyance of such
land by the Crown. (/)
The plaintiff' having recovered judgment against B. & P.
agreed with the defendant that, if such judgment, or any
portion of it, should be realized from property to be pointed
out by him, the defendant should have one-third of the amount
so realized. The agreement further provided that " all costs
that may be incurred in endeavoring to make the money to
be payable by him (the defendant^, if unsuccessful, and the
amount of such costs to be the first charge on any proceeds,
the net balance to be divided." Goods pointed out by the
(y) Carr v. Tannahill, 31 U. C. Q. B. 223, per Morrison, J.
(z) Ibid. 224, per Morrison, J. ; Prosser v. Edmonds, 1 Y. & C. 497.
(a) Carr v. Tannahill, supra, 227, per Morrison, J.
(b) Allan v. M'He/ey, 1 Oldright, 121, per Youn{f, C. J.
(c) Ibid. 122, per Young, C. J.
(d) Scott v. Henderson, 2 Thomson, 116, per Haliburton, C. J.
(e) 1 Oldright, 274.
(/) Scott v. Henderson, supra, 116, per Haliburton, C. J.
OFFENCES AFFECTING GOVERNMENT, ETC. 119
defendant having been seized, under the plaintiff's execution,
were claimed, and, on an interpleader issue, were found to
be the claimant's. The plaintiffs thereupon sued defendant
upon the agreement for their costs of defence in the inter-
pleader, etc., which they had been compelled to pay. It was
held that such agreement, if not champerty, was illegal, as
, being opposed to public policy and the due administration of
justice, (g)
Whether or no there must be a suit pending to constitute
maintenance does not seem perfectly clear. The argument
employed in Kerr v. Brunton, against the agreement being
maintenance, was, that no suit was pending about any
property, nor was it binding on the plaintiff to bring any
suit. The court did not actually decide that the agreement
amounted to maintenance in its strict sense, but held that, at
all events, it was a great misdemeanor in the nature of the
thing, and equally criminal at common law. (h) It would
seem, from Sprye v. Porter, (i) that the agreement in Kerr v.
Brunt&n was maintenance. In the former case, A., in con-
sideration of one-fifth of the property to be recovered, agreed
that, in case it should become necessary to institute proceed-
ings at law or in equity, he would furnish such information
and evidence as would ensure the recovery of the property ;
and Lord Campbell characterizes this as " maintenance in its
worst aspect," although no proceeding was actually com-
menced or pending.
The plaintiffs having tiled a bill for specific performance
of a contract by one R. to sell a certain mine to them, it
was agreed between the plaintiffs and T., one of the now
defendants, while such suit was pending, that certain per-
sons should purchase said mine from the plaintiffs ; that
they should deposit the money required for security for
costs which the plaintiffs had been ordered to give in said
suit, and pay all costs incurred, or to be incurred therein
(a) Kerr v. Bruntan, 24 U. 0. Q. B. 390.
(h) Woody. Dowries, 18 Ves. 125.
(») 7 E. & B. 58.
120 THE CRIMINAL LAW OF CANADA.
or any other suit brought or defended by them respecting
said mine, and pay all moneys due for the purchase thereof ;
and, lastly, to allot to each of the plaintiffs a twentieth
share therein, if they should succeed in getting a title
through the suit, and that they would settle all claims of
Messrs. E. & G. against the plaintiffs. The plaintiffs having
sued defendants on the last-mentioned covenant, the court
held upon demurrer to a plea setting out the transaction,
that the agreement was void for champerty and mainten-
ance, (j ) But the agreement of T. to purchase the mine,
though then in litigation, was not necessarily illegal, (k)
The agreement with respect to the costs, that T. should pay
them, and carry on the proceedings, was probably illegal. (I)
Had T. had any interest in the property at the time of the
purchase from the plaintiffs, the purchase or prosecution of
the suit would not have been illegal ; (ra) or had he then
had a claim which he believed gave him an interest in the
property, (n)
A sharing in the profits derived from the success of the
suit is essential to constitute champerty, (o) The plaintiff
agreed with a solicitor to give him a portion of the profits
arising from the successful prosecution of a suit to establish
his right to certain coal mines, upon being indemnified
against the costs of the proceedings, and the court held that
the contract amounted to champerty and maintenance, (p}
After verdict and before judgment, a plaintiff in eject-
ment assigned the subject-matter of the suit to his attorney,
as a security for money advanced by the attorney in
carrying on the suit and for other purposes, and for the
, (j) Carr v. Tannahill, 31 U. C. Q. B. 217.
(it) S. C. 31 U. C. Q. B. 209, per Wilson, J. ; Hamngton ». Long, 2 M.
& K. 593.
(1) Carr v. Tannahill, 31 U. C. Q. B. 209, per Wilson, J. ; Hunter v.
Daniel, 4 Hare, 431.
(m) Ibid. 420-430.
(n) Findon v. Parker, 11 M. & VV. 615 ; Carr v. Tannahill, supra, 210,
per A. Wilson, J.
(o) Hartley v. Russell, 2 S. & St. 244-252 ; Carr v. TannahiU, mpra, 210,
per Wilson, J.
(p) HiUon v. Woods, L, R. 4 Eq. 432.
OFFENCE? AFFECTING GOVERNMENT, ETC. 121
amount due to him for his professional services. It was
held, affirming the judgment of the Queen's Bench, that the
assignment was not void as against public policy, or by
reason of any of the statutes against champerty and main-
tenance ; (q) for the contract was confined to the payment
of a debt already due for costs subject to taxation ; and,
therefore, the attorney got nothing but a security for a just
debt
A conveyance, whether voluntary, or for valuable con-
sideration of property which the grantor has previously
conveyed by deed, voidable in equity, is not void on the
ground of champerty, (r) An agreement by a shareholder
in a company which is being compulsorily wound up, that,
in consideration of a pecuniary equivalent, he will support
the claim of a creditor, comes within the rule of law against
maintenance, because it is to uphold a claim to the dis-
turbance of common right. (*)
The 32 Hy. VIII., c. 9, as to selling pretended titles, is in
force here, (t) The intention of this statute, and the ground
of the principle of the common law, which is said to be fully
in accordance with it, was that a person claiming a right
which he knew to be disputed, should not sell a mere law-
suit, but should first reduce the right to possession and then
sell, (u) A person cannot be convicted on this statute merely
upon his own admission that he has taken a deed from a
party out of possession. Some evidence aliunde must be
adduced of the existence of such deed, (v)
Buying an equity of redemption in a mortgaged property,
of which the person selling has been out of possession for
many years, is not buying a disputed title within the
statute, (w)
(q) Anderson v. Radcliffe, 1 U. C. L. J. 23 (Ex Chr.) E. B. & E. 806-819.
(r) Dickenson \. Burrell, L. R. 1 Eq. 337.
(s) Elliott v. Richardson, L. R. 5 C. P. 748, per Willes, J.
(0 Ante p. 8.
(u) Ross q. t. v. Meyers, 9 U. C. Q. B. 288, per Robinson, C. J.
(v) Aubrey q. t. v. Smit/i, 1 U. C. Q. B. 213.
(tr) M'Kemie v. Miller, 6 U. C. Q. B. 0. S. 459.
122 THE CRIMINAL LAW OF CANADA.
In the province of Ontario by the R. S. OM c. 98, s. 5, the 32
Hy. VI II., c. 9, is to some extent repealed, and a person selling
a right of entry is protected from the penalties imposed by
the 32 Hy.VIII., c. 9 ; for he can no longer be looked upon as
selling a pretended right, when the law allows such right to
be the subject of legal conveyance, (x) But it would seem
that the statute is only repealed to the extent of permitting
a man to sell and convey a right of entry which is actually
subsisting in himself, and that the sale of a pretended right
which does not in fact exist is still within the statute, (y)
Moreover, the R. S. O., c. 98, applies only to rights of entry
as on a disseizin, (z)
The R. S. 0., c. 116, s. 7, renders choses in action assign-
able at law. This enactment conflicts in principle with the
32 Hy. VIII., c. 9, and it may be questioned whether a con-
viction would now be had under it.
Bigamy. — It might be contended from the language of the
32 & 33 Vic., c. 20, s. 58, that it only applies to the case of
a second marriage, and that the offence of polygamy, in its
ordinary acceptation, is not comprehended within its provi-
sions. Assuming that under this statute a person guilty of
polygamy cannot relieve himself from the penalties attaching
to bigamy, it may be a question, in the event of a plurality
of marriages, to which of them proof should be directed ;
whether any two of them, or the first and second, or all.
The 4 Ed. VI., stat. 3, c. 5, and 1 Jac. I., c. 11, may perhaps
apply here, except in so far as they are superseded by the
Colonial Act.
On trials for bigamy, the guilt or innocence of the de-
fendant depends upon the legality of the first marriage ; and
before the jury can convict him they must clearly see that
a prior legal marriage has in fact taken place, (a) It seems
(a;) Baby q. t. v. Watson, 13 U. C. Q. B. 53 It
(y) Ibid.
(z) Hunt v. Bishop, 8 Ex. 675 ; Hunt v. Remnant, 9 Ex. 635 ; Bennett T.
Herring, 3 C. B. N. S. 370.
(a) Breakey v. Breakey, 2 U. C. Q. B. 353, per Robinson, C. J.
.
•
OFFKN'CES AFFECTING GOVERNMENT, ETC. 123
that if the marriage is voidable merely, it will suffice to con-
stitute bigamy. (6) It has been held that though the second
marriage would have been void, as for consanguinity or the
like, the defendant is guilty of bigamy, (c) But the majority
of the judges of the Irish Court of Criminal Appeal have
held that to constitute the offence of bigamy, the second
marriage must be one which, but for the existence of the
previous marriage, would have been a valid marriage, (d)
This doctrine has been very materially modified in a late
case, (e) It is there laid down that it is the appearing to
'•.•:] tract a second marriage, and the going through the cere-
mony, which constitutes the crime of bigamy. (/)
Where a person already bound by an existing marriage,
goes through a form of marriage known to and recognized
by the law as capable of producing a valid marriage, for the
purpose of- a pretended and fictitious marriage, such person
is guilty of bigamy, notwithstanding any special circum-
stances which, independently of the bigamous character
of the marriage, may constitute a legal disability in the
parties, or make the form of marriage resorted to inappli-
cable to their particular case. Thus where the prisoner,
having a wife living^ went through the ceremony of mar-
riage with another woman who was within the prohibited
degrees of consanguinity, so that -the second marriage, even
if not bigamous, would have been void under the 5 & 6
Wm. IV., c. 54. s. 2, it was held that he was guilty of
bigamy, (g)
The material inquiry, therefore, in cases of bigamy, is as
to the validity of the alleged marriages, and the evidence
by which such validity may be established.
(6) Reg. v. Jacobs, 2 Mood. C. C. 140 ; Arch. Cr. Pldg. 886.
(c) Reg. v. Brawn, 1 C. k K. 144.
(d) Reg. v. Fanning, 10 Cox, 411 : see also Reg. v. Clarke, ibid. 474 ; Arch.
Cr. Pldg. 887.
(e) Reg. v. Allen, infra.
(/) See Reg. v. Brawn, supra, 144, per Lord Den man ; Reg. v. Penton,
5 C. & P. 412.
(g) Reg. v. Allen, L. R. 1 C. C. R. 367 ; Reg. v. Fanning, supra, di*»p-
proved.
124 THE CRIMINAL LAW OF CANADA.
Under the Con. Stat. U. C., c. 32, s. 6, a copy of an ex-
tract from the register of the marriage produced from the
proper custody, if signed and certified in compliance with
this clause, is sufficient evidence of the marriage, provided
some proof, either direct or presumptive, be given of the
identity of the parties, (h)
Evidence of reputation, or the presumption of marriage,
arising from long cohabitation, will not suffice on indict-
ments for bigamy, but there must be proof of a marriage in
fact, such as the court can judicially hold to be valid, (i)
The admission of the first marriage by the prisoner, un-
supported by other testimony, is sufficient to support a con-
viction for bigamy, (j) The prisoner's admission of a prior
marriage is evidence that it was lawfully solemnized, (k)
The first wife is not admissible as a witness to prove that
her marriage with the prisoner was invalid ; (1} and she
cannot be allowed to give evidence either for or against the
prisoner, (m) But, after proof of the first marriage, the
second wife may be a witness ; (n) for then it appears that
she is not the legal wife of the prisoner. (0)
On an indictment for bigamy, the witness called to prove
the first marriage swore that it was solemnized by a justice
of the peace, in the state of New York, who had power to
marry ; but this witness was not a lawyer or inhabitant of
the United States, and did not state how the authority was
derived, as by written law or otherwise. Although the
court, in their individual capacity, knew that justices of
(A) Re Hall's estate, 22 L. J. (Ch.) 177 j re Porter's trusts, 25 L. J. (Ch.)
688; Arch. Cr. Pldg. 884.
(t) Reg. v. Smith, 14 U. C. Q. B. 567-8, per Robinson, C. J. ; Breakey v.
Breakey, 2 U. C. Q. B. 353, per Robimon, C. J. ; and see doe dem Wtieeb-r
v. M' Williams, 3 U. C. Q. B. 165.
(j) Reg. v. Creamer, 10 L. C. R. 404.
(k) Reg. v. Newton, 2 M. & Rob. 503 ; Reg. v. Simmonsto, 1 C. & K. 164 :
Arch. Cr. Pldg. 885.
(1) Reg. v. Madden, 14 U. C. Q. B. 588 ; 3 U. C. L. J. 106 ; Reg. v.
Tubbee, 1 U. C. P. R. 103. per Macaulay, C. J.
(m) Reg. v. Bienvenu, 15 L. C. J. 141.
(n) Reg. v. Tubbee, xupra, 98.
(o) Reg. v. Madden, supra, 3 if. C. L. J. 106, per Robinson, C. J.
OFFENCES AFFECTING GOVERNMENT, ETC. 125
the peace had such power in the state of New York, and
that the evidence given was correct, yet they held it in-
sufficient, (p)
The production and proof of a deed executed by the
prisoner, containing a recital of his having a wife and child
in England, and conveying lands in trust for them, is not
sufficient evidence to prove a prior marriage, even when
coupled with evidence of statements made by him at the
time of execution to one of the trustees, to the effect that
he had quarrelled with his present wife, and had a lawsuit
with her ; that the place had been bought with his wife's
money, and he wished it to go to her ; the trustees never
having paid over anything to her, nor written to or heard
from her. (q)
In one case, where the prisoner relied on the first wife's
lengthened absence, and his ignorance of her being alive,
it was held that he must show inquiries made, and that he
had reason to believe her dead, or, at least, could not ascer-
tain where she was. or that she was living, more especially
where as in this case he had deserted her, and this notwith-
standing that the first wife has married again, (r)
In another case, when it was proved that the prisoner and
his first wife had lived apart for the seven years preceding the
second marriage, it was held incumbent on the prosecution
to show that during that time he was aware of her existence ;
and that in the absence of such proof, the prisoner was
entitled to an acquitaL (s) From these cases it would seem
that the circumstances connected with the separation, affect
materially the burden of proof.
On an indictment for bigamy, it is incumbent on the
prosecution to prove to the satisfaction of the jury that the
husband or wife, as the case may be, was alive at the date
(p) Reg. v Smith, 14 U. C. Q. B. 565.
(7) Reg. v. Du/, 29 U. C. C. P. 255.
{r) Reg. v. Smith, 14 U. C. Q. B. 565.
(a) Reg. v. Curgerwen, L. R. 1, C. C. R. 1 ; 35 L. J. (M. C.) 58 ; Reg. v.
Bienvenu, 15 L. C. J. 341 ; Reg. v. Fontaine, 15 L. C. J. 141 ; see also Reg.
r. Heaton, 3 F. & F. 819.
126 THE CRIMINAL LAW OF CANADA.
of the second marriage. This is purely a question of fact for
the jury to decide on the particular circumstances of the
case, and there is no presumption of law either that the
party is alive or dead, (i) Therefore, where, on a trial for
bigamy, it was proved that the prisoner married A. in 1836,
left him in 1843, and married again in 1847. Nothing was
heard of A. after the prisoner left him, nor was any evidence
given of his age. The court held that there was no presump-
tion of law either in favor of or against the continuance of
A.'s life up to 1847, but that it was a question for the jury,
as a matter of fact, whether or not A. was alive at the date
of the second marriage, (u) But when the case is brought
within the operation of the proviso in the 32 & 33 Vic., c.
20, s. 58, which exempts from criminal liability " any person
marrying a second time, whose husband or wife has been
continually absent from such person for the space of seven
years, then last past," there is no question for the jury, and
the prisoner is exonerated from criminal liability, though
the first husband or wife be proved to have been living at
the time when the second marriage was contracted. By this
proviso, the legislature sanctions a presumption that a person
who has not been heard of for seven years is dead; but the
proviso affords no ground for the converse proposition, —
namely, that when a person has been seen or heard of within
seven years, a presumption arises that he is still living, (v)
The prisoner having a wife living, was married to another
woman in the presence of the registrar, describing himself,
not as E. R., his true name, but as B. R. There was no evi-
dence to show that the second wife knew that his Christian
name was misdescribed. It was held, nevertheless, that the
prisoner was guilty of bigamy, for the presumption in favor
of marriage clearly imposed the burden of proving the in-
validity of the second marriage upon the prisoner, (w)
(t) Reg. v. Lumley, L. R. 1, C. C. R. 196 ; 38 L. J. (M. C.) 86.
(u) Ibid.
(v) Reg. v. Lumley, L. R. 1 C. C. R. 198, per Lush, J.
(w) Reg. v. Rea, L. R. 1 C. C. R. 365.
OFFENCES AFFECTING GOVERNMENT, ETC. 127
Where the prisoner had sucessively married A., B., C. and
D., on an indictment foi marrying D., C. being then alive, it
was held that, whether or not any evidence of the fact were
offered, it was for the jury to say whether A. was living at
the time of the prisoner's marriage with C. (x)
The common and statute law of England in relation to
marriage, as existing at the time of the enactment of the 32
Geo. III., c. 1, was introduced by this statute. The canon
law, so far as it was part of the law of England at that time,
was also introduced, with the 26 Geo. II, c. 33 ; 25 Hy. VIII.,
c. 22; 28 Henry VIII, c. 7; 28 Henry VIII, c. 16; and 32
Henry VIII., c. 38 ; so far as they remained in force in
England, (y)
Before the 26 Geo. II, c. 33, clandestine marriages, though
not void, were illegal, and subjected the parties to ecclesi-
astical censure : i. e., all marriages were required to be cele-
brated in facie ecclesice, and by banns or license, or if a minor,
by consent of parents, otherwise they were voidable in the
ecclesiastical courts. Such marriages were rendered void by
this statute, but the llth clause thereof, in which the avoid-
ing provision is contained, does not apply here. It is there-
fore illegal in this country, as it was in England before the
26 Geo. II., c. 33, to marry by license, where both or either
of the parties are under twenty-one, without the consent of
parents or guardians. But such marriages are not absolutely
void. They are, however, irregular, (z)
The Imp. Act 5 and 6 Wm. IV, c. 54, is one of convenience
and policv, and does not expressly, or by necessary intend-
ment, extend to the colonies. It is, therefore, not in force
here. This statute avoids all marriages celebrated between
persons within the prohibited degrees of consanguinity ;
and, under it, a marriage by a man with the sister of his
(x) Rex v. WiUshire, L. R. 6 Q. B. D. 366.
(y) Hodgins v. McNeil, 9 U. C. L. J. 126, per Eaten, V.-C. ; 9 Grant,
305 ; Reg. v. RobKn, 21 U. C. Q. B. 357 ; see 9 U. C. L. J. 1, as to the Eng-
lish marriage laws, when the 32 Geo. III., c. 1, was passed.
(z) Hodgins v. McNeil ; Reg. v. Roblin, supra.
128 THE CRIMINAL LAW OF CANADA.
deceased wife is absolutly void, (a) though solemnized abroad
between British subjects, in a country by the law of which
the marriage would have been valid. (&) This doctrine does
not apply here ; consequently the marriage of a man with
the sister of his deceased wife is not void, (c)
To render a marriage contracted by banns invalid, it
must be contracted with a knowledge by both parties that
no true publication of banns has taken place, (d)
It seems that if parties are married by banns, .it is no
objection that they are under age ; at all events, such was
the law in England prior to the 26 Geo. II,, c. 33. (e) As
the publication of banns in the open manner required gives
parents and guardians timely notice of the intended mar-
riage, and an opportunity of forbidding it, so that, if they
make no effort to prevent it, their consent may reasonably
be assumed, (/) it would not seem unreasonable to hold that
the marriage by banns of a minor should be valid. Where
banns have been published, and no dissent been expressed
by parents or guardians at the time of publication, the
husband being under age does not make the marriage void,
even by the English Marriage Act 26 Geo. II., c. 33. (g) It
is not necessary that marriages should be solemnized in a
church, or within any particular hours, (h)
The Imp. stat. 28 and 29 Vic., c. 64, declares that colonial
laws establishing the validity of marriages shall have effect
throughout Her Majesty's dominions. The 11 Geo. IV., c.
36, cured defects in the form of marriages solemnized by
justices of the peace before the passing of the Act. (i}
The 18 Vic., c. 129, indicates clearly that the former
statute was not intended to operate retrospectively, except
(a) Reg. v. Chadwick, 11 Q. B 173 ; 17 L. J. (M. C.) 33.
(6) Brook v. Brook, 3 Smale & G. 481.
(c) Hodgins v. McNeil, 9 Grant, 305 ; 9 U. C. L. J. 126.
(d) Reg. v. Rea, L. R. 1 C. C. R. 365, per Kelly, C. B. ; Rex v. Wrorton.
4 B. & Ad. 640 ; Tongue v. Tongue, 1 Moore, P. C. cases, 90.
(e) Rex v. Inhab. Hodnetts, 1 T. R. 99, per Lord Mansfield.
( f) Reg. v. Roblin, 21 U. C. Q. B. 454, per Robinson, C. J.
(g) Reg. v. Seeker, 14 U. C. Q. B. 604.
(h) Reg. v. Seeker, supra ; Con. Stat. U. C. c. 72, s. 3.
(i) Doe dem. Wheeler v. Me Williams, 2 U. C. Q. B. 77.
OFFENCES AFFECTING GOVERNMENT, ETC. 129
in the case of marriages solemnized by persons who before
that Act had authority to solemnize marriage. The 11
Geo. IV., c. 36, had two distinct objects, — first, to remove
difficulties which might arise in consequence of marriages
having been irregularly performed by persons who had
authority to marry; and, -secondly, to confer authority to
solemnize marriages upon ministers of certain religious
bodies, whose ministers had no such authority before that
Act was passed. The Act has retrospective force as to the
latter object only, (j)
The 23 Vic., c. 11, and 24 Vic., c 46, confirm and legalize
certain marriages therein mentioned. Chapters 46 and 47
of the 25 Vic. contain certain provisions as to registering
marriages and the offences connected therewith. Marriages
contracted in Ireland between -members of the Church of
England and Presbyterians celebrated by ministers not be-
longing to the Church of England are legalized by the Imp_
stat. 5 & 6 Vic., c. 26, and such marriages celebrated before
that Act was passed are legal marriages in this country, (k)
A written contract is not essential to the validity of a Jewish
marriage, which has been solemnized with all the usual forms
and ceremonies of the Jewish service and faith. Such mar-
riage is valid, though there exists in relation to it a written
contract which is not produced. (1} A case has been decided
in Quebec as to the marriage of a Lower Canadian by birth
with a squaw of the Cree nation, (m) In this case it was
held (inter alia) that a marriage contracted where there are
no priests, no magistrates, or civil or religious authority, and
no registers, is valid, though not accompanied by any re-
ligious or civil ceremony. An Indian marriage between a
Christian and a woman of that nation or tribe, is valid, not-
withstanding the assumed existence of polygamy and divorce
(j) Prinfjle v. Allan, 18 U. C. Q. B. 578, per Robinson, C. J.
(4) Brtakey v. Breakey, 2 U. C. Q. B. 349.
(/) Frank v. Caraon, 15 U. C. C. P. 135.
(*t) Connolly v. Woolnch, 11 L. C. J. 197.
130 THE CRIMINAL LAW OF CANADA.
at will which are no obstacles to the recognition by our courts
of a marriage contracted according to the usages and cus-
toms of the country ; and an Indian marriage, according to
the usage of the Cree country, followed by cohabitation and
repute, and the bringing up of a numerous family, will be
recognized as a valid marriage by our courts. («•)
A marriage in a foreign country between persons not being
British subjects, if invalid there, must be held invalid in this
country, though the parties have done all in their power to
make it a valid legal marriage. (0) The age of consent to
marriage in a woman is twelve, (p) and Tor a man fourteen.
If a boy under fourteen, or a girl under twelve contracts
matrimony, it is void, unless both husband and wife consent
to and confirm the marriage after the minor arrives at the age
of consent, (q)
In an indictment for bigamy committed in the United
States, it is necessary that the indictment should contain alle-
gations that the accused is a British subject ; that he is or
was resident in the province, and that he left it with intent
to commit the offence, (r) The words, "or elsewhere," in the
32 & 33 Vic., c. 20, s. 58, extend to bigamy committed in a
foreign jurisdiction, (s) It is immaterial whether the second
marriage takes place in Canada or in a foreign country, pro-
vided, if the second marriage take place out of Canada, the
accused be a subject of Her Majesty. (t) A soldier convicted
of bigamy is not thereby discharged from military service, (u)
It has been held that, under the 55 Geo. III., c. 3, a writ of
exigi facias against a person against whom an indictment for
bigamy has been found at the assizes, will be awarded by this
court upon the application of the prosecutor, without its being
applied for by the attorney-general, (v)
(n) Connolly v. Woolrich, 11 L. C. J. 197.
(o) Harris v. Cooper, 31 U. C. Q. B. 182.
(p) Reg. v. Bell, 15 U. C. Q. B. 287-9.
(q) Reg. v. Gordon, R. & R. 48 ; Arch. Cr. Pldg. 886.
(r) Reg. v. McQuiggan, Rob. Dig. 123-4.
(s) Ibid.
(t) See sec. 58.
(u) Reg. T. Creamer, 10 L. C. R. 404.
(v) Rex v. Elrod, Taylor, 120.
OFFKSCES AFFECTING GOVERNMENT, ETC. 131
Libel. — A libel upon an individual is a malicious defama-
tion of any person made public, either by printing, writing,
signs, or pictures, in order to provoke him to wrath, or to
expose him to public hatred, contempt, or ridicule, (w)
Wherever an action will lie for a libel, without laying
special damage, an indictment will also lie. (a:) An action
for libel lies against a corporation aggregate where malice in
law may be inferred from the publication of the words, (y)
It would seem also that a corporation may be indicted
by its corporate name, and fined for the publication of such
libel, (z) and an action for libel may be brought by one cor-
poration against another, (a) A joint action may be main-
tained against several persons for the joint publication of a
libel, (b) It seems also that an indictment or information
will lie against all persons concerned in the joint publication
of a libel, (c)
The Imperial statute 32 Geo. III., c. 60, is in force in
Canada, and consequently it is for the jury to say whether
under the facts proved there is a libel, and whether the de-
fendant published it. (cc)
Where the defendant published the following of and con-
cerning the plaintiff, — " Caution : To all persons who may be
entering into any arrangements with J. M. C. for his self-
action cattle and stock pump, who claims to have patented
the same in April last, I wish by this notice to caution the
public against having anything to do with Cousins or his
pumps, it being an infringement on my patent, which was
obtained by me in 1858. I intend to prosecute him imme-
diately. Beware of the fraud and save costs," — it was held
that this publication disclosed a libel on the plaintiff person-
(w) Arch. Cr. Pldg. 857-
(x) Arch. Cr. Pldg. 857 ; Stanton v. Andrew, 5 U. C. Q. B. O. S. 229,
per Macaulay, J.
(y} Whttfield v. S. E. Ry. Co., 4 U. C. L. J. 242 ; E. B. 4 E. 115.
(z) E. C. Ry. Co. v. Broom, 6 Ex. 314 ; Arch. Cr. Pldg. 7.
(a) L'Institut Canadien v. Le Nouteau. Monde, 17 L. C. J. 296.
(6) Brown v. Hirley, 5 U. C. Q. B. O. S. 734.
(c) Ibid. ; Rex v. Benfield, Burr. 980 : 5 Mod. 167.
(cc) Reg. v. DougaU, 18 L. C. J. 85.
132 THE CRIMINAL LAW OF CANADA.
ally, in the caution to all persons about to enter into arrange-
ments with the plaintiff for his pumps, against having any-
thing to do with plaintiff or his pumps, and in the words
" beware of the fraud," in relation to the infringement of the
patent, (d)
Where the plaintiffs were manufacturers of bags, and
manufactured a bag which they called the " bag of bags ; " and
the defendant printed and published concerning the plaintiffs
and their business the words following : " As we have not
seen the bag of bags, we cannot say that it is useful, or that
it is portable, or that it is elegant. All these it may be. But
the only point we can deal with is the title, which we trunk
very silly, very slangy, and very vulgar, and which has been
forced upon the notice of the public ad nauseam." It was
held on demurrer (by Mdlor and Hannen, J.J.) that it was a
question for the jury whether the words did not convey an
imputation on the plaintiffs' conduct in their business, and
whether the language went beyond the limits of fair criticism ;
by Lush, J., that the words could not be deemed libellous,
•either upon the plaintiffs, or upon the mode of conducting
their business, (e)
The defendant published in a newspaper an article respect-
ing the plaintiff as inspecting field-officer of volunteers and
militia, in which, after referring to a recent inspection of a
particular battalion, and stating that it was not often that
" an example of swearing and drunkenness was set by the
officers to their men," it was said it was very little to the
plaintiff's credit that " he appears before the volunteers as a
transgressor without apology of those laws of discipline and
good conduct, the observance of which he so strictly enjoins."
In another part, it was said, " we have been for some time
aware that the plaintiff was often incapable of attending to
his duty here and elsewhere, and now that his evil habits
appear to be entirely beyond his control, it is high time for
(d) Cousins r. Merrill, 16 U. C. C- P. 114.
(e) Jenner v. A' Beckett, L. R. 7 Q. B. 11.
OFFENCES AFFECTING GOVERNMENT, ETC. 133
the head of the department to deal with the case." Per
Draper, C. J., the publication complained of, without the aid
of any inuendo or explanation, is libellous. (/)
To charge a man with ingratitude is libellous, and such
charge may also be libellous, notwithstanding that the facts
upon which it is founded are stated, and they do not support
the charge, (g)
A written paper charging the plaintiff with having wrong-
fully taken the defendant's logs, sawing them up and selling
the lumber, is libellous, without any averment or proof that
larceny was thereby imputed, (h) So a written paper, charging
the plaintiff, an attorney, with being governed entirely by a
craving after his own gains, without regard to the interests
of his clients, and reckless of bringing them to ruin, is libel-
lous, (i) But it is not libellous to write of a man that his
outward appearance is more like that of an assassin than of
an honest man. (j)
The publication of any obscene writings is unlawful and
indictable, (k) The test of an obscene publication is whether
the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such
immoral influences, and into whose hands a publication of
this soyt may fall. (Z) It is no defence to an indictment for
such a publication that the object of the party was laud-
able ; (m) for, in case of libel, the law presumes that the
party intended what the libel is calculated to effect (ri)
It is now well established that faithful and fair reports
of the proceedings of courts of justice, though the character
of individuals may incidentally suffer, are privileged, and
that for the publication of such reports the publishers are
(/) Baretto v. Pirie, 26 U. C. Q. B. 469.
(<7) Cox v. Lee, L. R. 4 Ex. -284.
(A) Connick v. Wilson, 1 Kerr, 496.
(i) Andrews v. Wilson, 3 Kerr, 86.
(j) Lang v. Gilbert, 4 Allen, 445.
(4) Reg. v. HicUin, L. R. 3 Q. B. 360 ; 37 L. J. (M. C.) 89.
(1) Jbid. 371, per Cockbum, C. J.
(TO) Ibid.
(n) Reg. v. Atkinson. 17 U. C. C. P. 304, per./. Wilson, J.
134 THE CRIMINAL LAW OF CANADA.
neither criminally nor civilly responsible, (o) The immunity
thus afforded in respect to the publication of the proceedings
of courts of justice rests on a twofold ground : First, the
occasion is such as repels the presumption of malice, for they
are published without any reference to the individuals con-
cerned, and solely to afford information to the public for the
benefit of society. The other and broader principle on which
this exception to the general law of libel is founded is, that
the advantage to the community from publicity being given
to the proceedings of courts of justice is so great, that the
occasional inconvenience to individuals arising from it must
yield to the general good, (p)
As to the publication of ex parte proceedings of courts of
justice, such as before magistrates, and even before the
superior courts- - as, for instance, applications for criminal
informations — if an indictment were preferred for such pub-
lication, it would probably be held that the criterion of the
privilege is not whether the report was or was not ex parte,
but whether it was a fair and honest report of what had
taken place, published simply with a view to the information
of the public, and innocent of all intention to do injury to
the party affected, (q)
As to the privilege of reporting legal proceedings, the
dignity of the court cannot be regarded, but only the nature
of the alleged judicial proceeding which is reported. For
this purpose, no distinction can be made between a court pie
proudre and the House of Lords sitting as a court of justice,
But as to magistrates, if, while occupying the bench from
which magisterial business is usually administered, they,
under pretence of giving advice, publicly hear slanderous
complaints, over which they have no jurisdiction although
their names may be in the commission of the peace, a report
(o) Wason v. Walter, L. R. 4 Q. B. 87, per Cockburn, C. J. 38; L. J.
(Q. B.) 34 ; Ryalte v. Leader, L. R. 1 Ex. 296 ; 35 L. J. Ex. 185 ; but aeo
Small v. McKenzie, Draper, 188.
(p) Wason v. Walter, L. R. 4 Q. B. 87-8, per Cockburn, G. J.
(q) Ibid. 94, per Cockburn, C. J.
OFFENCES AFFECTING GOVERNMENT, ETC. 135
of what passes is as little privileged as if they were illiterate
mechanics assembled in an alehouse, (r)
The privilege accorded to a fair and impartial report of
proceedings in a public court of justice extends to pre-
liminary proceedings on a charge of an indictable offence
before a magistrate, sitting in an open police court, where
the proceedings terminate in the dismissal of the charge,
and where, the report keeping pace with the proceedings,
which occupy several days, is published in parts, in different
numbers of a newspaper, and a portion of it while the pro-
ceedings are pending. But the privilege does not extend to
comments by the reporter reflecting on any of the parties ;
as in an account of proceedings out of which an abortive
charge of perjury arose, to the statement that the evidence
of certain witnesses entirely negatived the story of the
defendant, and satisfied the court that he knew that it was
false, (s)
Proceedings before magistrates, under the 32 & 33 Vic.,
c. 31, "in relation to summary convictions and orders," in
which, after both parties are heard, a final judgment is
given, subject to appeal, are strictly of a judicial nature ;
the place in which such proceedings are held is an open
court ; (t) the defendant, as well as the prosecutor, has a
right to the assistance of attorney and counsel, and to call
what witnesses he pleases ; and both parties having been
heard, the trial and the judgment may lawfully be made
subject of a printed report, if that report be impartial and
correct, (u)
A magistrate, upon any preliminary inquiry respecting
an indictable offence, may, if he thinks fit, carry on the
inquiry in private, and the publication of any such pro-
ceedings before him would be unlawful ; but while he con-
tinues to sit foribiis apertis, admitting into the room where
(r) Lewis v. Levy, 4 U. C. L. J. 215, per Campbell, C. J. ; E. B. & E. 554.
(«) Ibid. 213 ; E. B. & E. 537.
(t) See sec. 29.
<«) Lewis v. Levy, 4 U. C. L. J. 215, per Campbell, C. J.
136 THE CRIMINAL LAW OF CANADA.
he sits as many of the public as can be conveniently accom-
modated, thinking that this course is best calculated for the
investigation of truth and the satisfactory administration
of justice, the court in which he sits is to be considered as
a public court of justice, (v)
The privilege of publishing judicial proceedings extends
to all parties concerned therein. The acts, words, or writ-
ings of judges of the superior or county courts, grand or
petty jurymen, or witnesses, are absolutely privileged, on
the ground that the law gives faith and credence to what
they do in the course of a judicial proceeding, (w)
An affidavit made in a judicial proceeding is privileged
on the established principle that no action will lie for words
spoken or written in the course of a judicial proceeding*
and this although the affidavit is libellous in its language,
and there is evidence of express malice, (x)
A letter, or report in writing, by a military officer, in the
ordinary course of his duty as such officer, is an absolutely
privileged communication, even if written maliciously, and
without reasonable and probable cause, (y)
A communication made bona fide upon any subject-matter
in which the party communicating has an interest, or in
reference to which he has a duty, is privileged, if made to a
person having a corresponding interest or duty, although
it contain criminatory matter which, without this privilege,
would be slanderous and actionable.
The defendant, with others, having presented a memorial
to the Secretary of State for the Home Department, setting
out certain acts done by the plaintiff, and complaining of his
conduct, and requesting his removal from the office of a
justice of the peace; the court held, in an action for libel
by the plaintiff against the defendant, the jury having found
bona fides, that the communication was privileged, since,
(v) Lewis v. Levy, 4 U. C. L. J. 216, per Campbell, C. J.
(w) Dawkins v. Lord Paulet, L. R. 5 Q. B. 103, per Cockburn, C. J.
(x) Henderson v. Broomhead, 5 U. C. L. J. 262 ; 4 Ex. N. S. 569.
(y) Dawkins v. Lord Paulet, L. R. 5 Q. B. 94, per Mettor and Lush, J. J.,
Cockburn, C. J., dissenting.
OFFENCES AFFECTING GOVEKNMENT, ETC. 137
being addressed to the Secretary of State, it was virtually
addressed to Her Majesty, for the removal of the plaintiff
from his office, and must be taken to be done bona fide with
a view of obtaining redress, and that the memorial was pro-
perly addressed to the Secretary of State, he having a cor-
responding duty to perform in the matter. (2)
An action for libel contained in communications made to
the executive Government, with a view of obtaining redress,
cannot, be sustained, unless it can be proved that the party
making them acted maliciously, and without probable
cause, (a)
A petition to the Lieutenant Governor, complaining of a
public grievance in regard to the conduct of cominissioueis
of the Court of Requests, and charging them with partiality,
corruption, and connivance at extortion, and highly defama-
tory in its language, signed by a great number of persons,
and praying for redress, is a privileged communication ; and
no action for libel will lie upon it, though the defendant has
circulated it, and been the means of obtaining signatures to
it of individuals who knew nothing of the facts stated in
such petition, and some of whom supposed it to be a matter
of a totally different description. (&)
The principle of the law laid down in the Bill of Rights,
1 Wm. & M., stat. 2, namely, that it is the right of the subject
to petition the Queen, and that all commitments and prose-
cutions for such petition are illegal, applies to the case of a
petition to the Governor, as representing the Queen. The
ground on which the principle rests applies as well to petitions
addressed to the head of the executive Government as to
either of the other branches of the legislature. But, in any
of these cases, evidence of malice, coupled with the know-
ledge that the statements were false, or the inference of
malice arising from the certain consciousness on the part of
the defendant that the statements were false, may, perhaps,
(2) Harrison v. Busk, I U. C. L. J. 156 ; 5 E. & B. 344.
(a) Rogtrs v. Spotting, 1 U. C. Q. B. 258.
(6) Stanton v. Andrew, 5 U. C. Q. B. 0. S. 211.
138 THE CRIMINAL LAW OF CANADA.
constitute so clear a case of flagrant and intentional abuse of
the right of petitioning as to destroy the privilege, and give
the injured party a claim to legal redress, (c)
Petitions to the Queen, or to any of her ministers, com-
plaining of the conduct of an individual, and containing
defamatory statements against him, are or are not privileged
communications, according to the motives and intention of
the petitioner in making them. If he fairly and honestly
makes statements in such petition prejudicial to any .person's
character, but which he believes to be true, and which are
made for the sole purpose of obtaining redress of what he
really considers an injury or abuse, his petition is privileged.
If he falsel)r and maliciously prefers a scandalous charge
against the individual in such a petition, with the intention
of committing an injury, instead of seeking redress, his
petition is not privileged. The legal presumption is always
in favour of the petitioner that he acts fairly and honestly,
unless the circumstances of the case afford some evidence of
an evil and malicious intention, in which case the question
of privilege is a fact for the jury to determine, under the
direction of the court.
The declaration in the Bill of Rights was intended for
the protection of petitioners applying to the Crown for the
redress of some supposed grievances of a public and general
character, and which is thought to be occasioned by some
existing law, order in council, proclamation, or other act of
the Government, or of any department of Government, but
not a petition by one individual against another. The
whole scope and spirit of the Bill of Rights points to public
and political rights. Private rights were left to the protec-
tion, and private injuries to the discretion, of the common
law, or to such other laws as might be made by parliament
in the ordinary course of legislation, (d)
(c) Stanton v. Andrews, 5 U. C. Q. B. 0.* S. 220, per Robinson, C. J.;
Fairman v. Ives, 1 D. & R. 252 ; 5 B. & Aid. 642.
(d) Stanton v. Andrews, 5 U. C. Q. B. 0. S. 221 ft seq., per Sherwood, i.
OFFENCES AFFECTING GOVERNMENT, LTC. 139
In consequence of the decision in Stockdcde v. Hansard, (e)
the 31 Vic., c. 23, was passed. Section 4 of this Act provides
that in any proceeding, civil or criminal, against a person
for publishing any report, paper, vote, or proceeding, by or
under the authority of the Senate or House of Commons,
the court or judge may stay all proceedings, on production
of a certificate, under the hand of the speaker or clerk of
the Senate or House of Commons, shewing the authority
for the publication. (/)
Where a presumptive case of publication, by the act of
any other person, by his authority, has been established, it
will be a good defence for the defendant to show that such
publication was made without his- authority, consent, or
knowledge, and did not arise from want of due care or
caution on his part, (g)
It would seem that s. 9 of this statute applies to private
and personal libel? only, (h)
Members of parliament are neither civilly nor criminally
liable for anything they may say in parliament, in the
course of any proceedings therein ; and, from motives of
the highest policy and convenience, ministers of the Crown
cannot be held liable for any advice given to th§ Sovereign,
however prejudicial such advice may be to individuals, (i)
But prior to the decision in Wason \. Walter, (j) there
was no authority that the publication of a debate in par-
liament was privileged. In this case, it was held that a
faithful report, in a public newspaper, of a debate in either
house of parliament, containing matter disparaging to the
character of an individual, which had been spoken in the
course of the debate, is privileged, on the same principle as
(«) 9 A. & E. 1 ; 2 Per. & D. 1.
{/) Stockdale v. Hansard, 11 A. & E. 297 ; 3 Per. & D. 346.
(g) Con. Stat. U. C., c. 103, s. 13 ; and see Reg. v. Holbrook, L. R. 3
Q. B. D. 60.
(h) Reg. v. Duffy, 2 Cox, 45.
(i) Dawloins v. Lord Paulet, L. R. 5, Q. B. 116-7. per MeUor, J.; see also
*.* part* Wason, L. R. 4 Q. B. 57i
(j) L. R. 4 Q. B. 73 ; 38 L. J. (Q. B.) 34.
140 THE CRIMINAL LAW OF CANADA.
an accurate report of proceedings in a court of justice is
privileged — namely, that the advantage of publicity to the
community at large outweighs any private injury resulting
from the publication.
The plaintiff presented a petition to the House of Lords,
charging a high judicial officer with having, thirty years
before, made a statement, false to his own knowledge, in
order to deceive a committee of the House of Commons,
and praying inquiry, and the removal of the officer, if the
charge was found true. A debate ensued on the presenta-
tion of the petition, and the charge was utterly refuted.
That was held to be a subject of great public concern, on
which a writer in a public newspaper had full right to
comment, and the occasion was therefore so far privileged
that the comments would not be actionable so long as a
jury should think them honest, and made in a fair spirit,
and such as were justified by the circumstances, as disclosed
in an accurate report of the debate, (k)
But all the limitations placed on the publication of the
proceedings of courts of justice, to prevent injustice to indi-
viduals, apply to parliamentary debates. A garbled or par-
tial report, or of detached parts of proceedings, published with
intent to injure individuals, will equally be disentitled to
protection ; and the publication of a single speech in parlia-
ment, for the purpose or with the effect of injuring an indi-
vidual, will be unlawful. (/) But such a speech is privileged,
if bona fide, published by a member, for the information of
his constituents, (m)
Whatever will deprive reports of proceedings in courts of
justice of immunity will apply equally to a report of proceed-
ings in parliament.
Independently of the orders of the House, there is nothing
(k) Wason v. Walter, L. R. 4 Q. B. 73 ; 38 L. J. (Q. B.) 34.
(I) Ibid. 94, per Cockburn, C. J. ; Rex v. Lord Abingdon, 1 Esp. 226 ;
Rex v. Greevey, 1 M. & S. 273.
(m) Davison v. Duncan, 7 E. & B. 229 ; 26 L. J. (Q. B.) 104 ; Wason v.
Walter, supra, 95, per Cockbum, C. J.
OFFENCES AFFECTING GOVERNMENT, ETC. 141
unlawful in publishing reports of parliamentary proceed-
ings. (TJ)
It has been held that ministers of religion in the Province
of Quebec are amenable to the courts of civil jurisdiction in
the same manner and to the same extent as other persons ;
and that an action of slander will lie against a Roman
Catholic priest for injurious expressions regarding private
individuals, uttered by him in his sermon, (o)
When a party acts in good faith, and not officially, in a
matter of business, in which he has a personal interest, and
is also employed by others, a letter written under such cir-
cumstances, though it contains a term in its gravest sense
libellous, is privileged, on account of his particular and legiti-
mate connection with the subject of which he was writing,
rebutting the presumption of malice ; and in the absence of
evidence of actual malice, he could not be prosecuted for
libeL ( p) The bona fides is made out when the privilege is
ascertained. The truth of the words is assumed to support
the privilege, and the defendant is not called upon to prove
it. (3)
The privilege which a communication receives must result
either from some right on the part of the defendant to say
what is complained of, or from a sense of duty, public or pri-
vate, legal or moral, under which the defendant is acting, (r)
But where the violence of the language, or the manner of
publication, is in excess of what the occasion justifies, the
privilege is gone, (s)
The proper meaning of a privileged communication is this :
that the occasion on which the communication was made
(n) Wason v. Walter, L. R. 4 Q. B. 95, per Coctburn, C. J.
(o) Derouin v. Archambault, 19 L. C. J. 157 ; see also Bro&oit v. Turcotte,
20 L. C. J. 141 ; Blanchard v. Richer, 20 L. C. J. 146.
(p) Hcama v. De Slaquiere, 11 U. C. Q. B. 310 ; Tench v. G. W. Ry. Co.,
33 D. C. Q. B. 8 ; Ronayne v. Wood, 5 Revue Leg. 301 ; Durette v. Cardinal,
4 Revue Leg 232.
(g) McCuflough v. Mclntee, 2 E. A A. 390.
(r) Poitevin v. Morgan, 10 L. C. J. 99, per Badgley, J. ; Hearne v. StoweU.
12 A. &E. 719-26,
(g) Graham v. Crozter, 44 U. C. Q. B. 378 ; MUlfr v. Johnston, 23
IT. C. C. P. 580 ; HoUiday v. Ontario Farmers' M. Ins. Co., 1 App. R. 483.
142 THE CRIMINAL LAW OF CANADA.
rebuts the inference prima facie arising from a statement pre-
judicial to the character of the plaintiff, and puts it upon him
to prove that there was malice in fact, and that the defendant
was actuated by motives of personal spite or ill-will, inde-
pendent of the occasion on which the communication was
made, (t]
The resolution of an incorporated association censuring
one of its members, is privileged, (u} And where the general
manager of a railway company dismissed the plaintiff, a
conductor, for alleged dishonesty, and by his directions
placards, describing the offence and stating the plaintiff's
dismissal, were posted up in the company's private offices for
the information and warning of the company's employees, it
was held a reasonable mode of publication, although the
notices had been seen by strangers, (v)
The proof .of express malice appears to consist, in all cases,
in showing mala fides in the defendant, and this renders him
liable, because, by the general rule applicable to such cases,
every person is bound for an intentional injury done by him
to another, (w)
To entitle matter otherwise libellous to the protection
which attaches to communications made in the fulfilment of
a duty, bona fides or honesty of purpose is essential ; and to
this again two things are necessary : first, that the com-
munication be made not merely in the course of duty but
also from a sense of duty ; and second, that it be made with
a belief of its truth, (x)
Where the libel is clearly a privileged communication, the
inference of malice cannot be raised on the face of the libel
itself; but intrinsic evidence of actual express malice must
be given, and it is not to be taken to be malicious although
(t) PoUevin v. Morgan, 10 L. C. J. 98, per Badgley, J. ; see also Shaver
v. Linton, 22 U. C. Q. B. 183, per Hagarty, J. ; Somerville v. Hawking,
10 C. B. 583.
(«) Cuthbert v. The Commercial Trav. Ass., 39 U. C. Q. B. 578.
(v) Tench v. G. W. Ry. Co. 35 U. C. Q. B. 8.
(w) Potiemn v. Morgan, 10 L. C. J. 98, per Badgley, J.
(x) Dawkins v. Lord Paulet, L. R. 5 Q. B. 102, per Cock
Cockburn, C. J.
OFFENCES AFFECTING GOVERNMENT, ETC. 143
it may turn out to be unfounded, but the plaintiff must also
prove the statement to be false as well as malicious, (y)
Malice, in its legal sense, means a wrongful act done inten-
tionally, without just cause or excuse, (z) By legal malice
is meant no more than the wrongful intention, which the law
always presumes as accompanying a wrongful act, without
any proof of malice in fact, (a)
For the purpose of proving express malice, the plaintiff
may show that the libel is really untrue ; but this alone will
not constitute express malice, but it may, along with other cir-
cumstances, raise an inference that express malice exists. (6)
Libellous expressions, used in a privileged communication,
may be evidence of actual malice for the jury ; but if taken
in connection with admitted facts, they are such as might
have been used honestly and bona fide by the defendant, the
judge may withdraw the case from the jury, and direct a
verdict for the defendant, (c)
The defendant, in a privileged communication, described
the plaintiff's conduct as " most disgraceful and dishonest."
The conduct so described was equivocal, and might honestly
have been supposed by the defendant to be as he described it.
The court held that the above words were not of themselves
evidence of actual malice, (d)
The question is not simply whether the act or fact stated
is true or untrue, but whether the defendant had reason
honestly to believe the act or fact to have been as he repre-
sented, (e) And the truth of the statement may not always
be justification, (f)
(y) Mclntyre v. McBean, 13 U. C. Q. B. 534. See also McCullougk v.
Mclntee, 13 U. C. C. P. 438 ; Shaver v. Linton, 22 U. C. Q. B. 183.
(z) Pottevm v. Morgan, 10 L. C. J. 97, per Badgley, J. ; Mcle v.ntyr
McBean, 13 U. C. Q. B. 542, per Robinson, C. J.
(a) Wason v. Walter, L. R. 4 Q. B. 87, per Cockburn, C. J.
(b) McCullouf)h v. Mclntee, 13 U. C. C. P. 441, per A. Wilson, J.
(c) Spill v. Mmle, L. R. 4 Ex. 232.
(d) Ibid.
(e) McCullough v. Mclntee, 13 U. C. C. P. 441, per A. Wilson, J. ; Har-
rison \. Busk, 5 E. & B. 344.
{/) Petrin v. Larochelle, 4 Revue Leg. 286.; Beg. v. Dmtgall, 18 L. C. J.
85 ; but see as to truth in actions against public officers, Genest v. Normand,
5 Revue Leg. 161.
144 THE CRIMINAL LAW OF CANADA.
When express malice is shown, by proving the libel false
as well as malicious, the defendant may still make out a good
defence, by showing that he had good ground for believing
the statement true, and acted honestly under that persua-
sion, (g) And acts of the defendant occurring immediately
after the publication may be given in evidence to show that
there was no malice.' (h)
Before it can become material for the jury to inquire
whether the defendant acted maliciously or not, the plaintiff1
must satisfy them that the defendant's' statements are not
true, and that he had no reasonable ground for believing
them to be true, (i)
It is matter of law for the judge to determine whether the
occasion of writing or speaking criminatory lauguage, which
would otherwise be actionable, repels the inference of malice,
constituting what is called a privileged communication. (/)
If, at the close of the plaintiff's case, there is no intrinsic or
extrinsic evidence of malice, it is the duty of the judge to
direct a nonsuit or verdict for the defendant, without
leaving the question of malice to the jury.
But whenever there is evidence of malice, either extrinsic
or intrinsic, in answer to the immunity claimed, by reason of
the occasion, a question arises which the jury, and the jury
alone, ought to determine ; (k) and the proper course then is
for the judge to ask the jury whether the matter was pub-
lished bonajide. If they come to the conclusion that it was,
then it is for the judge to say whether, under all the circum-
stances, it is or is not a privileged communication. (I) It is
wrong to leave to the jury whether an alleged libel is
(g) Mcliityre v. McBean, 13 U. C. Q. B. 534.
(h) Reg. v. Dougall, 18 L. C. J. 85.
(t) Mclnt.yre. v. McBean, 13 U. C. Q. B. 534.
(j) McCullough v. Mclntee, 2 E. &; A. 390.
(k) Shaver v. Linton, 22 U. C. Q. B 183, per Haqarly, J. ; Cooke v.
Wildes, a E. & B. 340 ; see also Poitevin v. Morgan, 10 L. C. J. 9!), per
Badgley, J. ; Lawless v. A. E. Cotton Co., L. R. 4 Q. B. 262 ; Mclntee T.
McCullough, 10 U. C. L. J. 238 (in E & A )
(I) Stace v. Griffith, L. R. 2 P. C. App. 428, per Lord Chelmaford.
OFFENCES AFFECTING GOVERNMENT, ETC. 145
contained in an official document and privileged communi-
cation, (m)
In some cases the presumption of privilege is altogether
conclusive, and the law will not allow any evidence to be
adduced to remove or impeach it. The regular and established
proceedings in parliament and in courts of justice are of this
character, and no action for libel can be supported upon any
part of their contents. The reasons given for this absolute
privilege are, first, that the safety and welfare of the com-
munity requires that all such public proceedings should be
perfectly unrestrained and free, and only subject to the
authority and discretion of the tribunals in which they take
place; second, that such tribunals possess the power of
expunging all defamatory matters, if irrelevant from the
proceedings, and of obliging the offending party to make
satisfaction, (n)
When a communication is not absolutely privileged, it is a
sufficient answer in point of law to say that it was malicious,
and made without reasonable and probable cause, (o)
The defendant, hearing that a tradesman had been hoaxed
by a letter written in his name, and ordering a certain
article, wrote to the tradesman a letter to the effect that,
in his opinion, the letter was written by the plaintiff. It
turned out that it was not ; but the jury found that the
defendant sincerely believed that it was ; and the court held
that, even if the letter was a libel, it was a privileged com-
munication, (p)
The defendant having published in his newspaper a report
read at a vestry meeting, containing a statement to the
effect that certain returns of the plaintiff, a medical man,
to the registrar under the statute, were wilfully false, such
report not having been published by the vestry, it was held
that the publication was not privileged. (#)
(m) Staee v. Griffith, L. R. 2 P. C. App. 428, per Lord Chelmsford.
(n) Stanton v. Andrevs, 5 U. C. Q. B. 0. S. 221, et seq., per Sherwood. J.
(o) Dawkin* v. Lord Paulft. L. R. 5 Q. B. 101, per Cociburn, C. J.
(p) Croft v. Stevens, 8 U. C. L. J. 280 ; 7 H. i N. 570.
(q) Popham v. PicUnim, 8 U. C. L. J. 335 ; 7 H. 4 N. 891 ; 31 L. J.
-Ex.) 133. J
146 THE CRIMINAL LAW OF CANADA.
A churchwarden having written to the plaintiff', the in-
cumbent, accusing him of having desecrated the church, by
allowing books to be sold in it during service, and by turning
the vestry room into a cooking apartment, the correspond-
ence was published without the plaintiff's permission, in the
defendant's newspaper, with comments on the plaintiff's con-
duct; it was held that this was a matter of public interest,
which might be made the subject of public discussion, and
that the publication was therefore not libellous, unless the
language used was stronger than, in the opinion of- the jury,
the occasion justified, (r)
A charge against the plaintiff, of wrongfully taking the
defendant's logs, sawing them into lumber, and selling it,
was contained in a letter written by the defendant to one
M., an intimate friend of his, who was a near relative to the
plaintiff, but in no way interested or concerned in business
with either party, with the avowed object of defendant's
availing himself of M.'s influence and good offices in his
controversies with the plaintiff, and to warn the plaintiff and
his mother against the consequences of lawsuits, and the
alleged interested motives of his attorney. M. being absent
from the country, the letter was opened by his agents and
relatives, and became public ; it was held that this was not a
privileged communication, (s)
It seems the 67th section of 32 & 33 Vic., c. 29, will
apply to cases of libel. In Hughes v. Dinwben, (t) to prove
that libels declared on were written by the defendant,
certain documents, admitted to be in his handwriting, were
used as standards of comparison. The plaintiff called several
witnesses, and, to support and strengthen such evidence, he
produced seven anonymous letters, generally relating to the
same matters as the libels declared on. This evidence was
admitted to prove malice, and the letters were also used as a
(r) Kelly v. Tinting, L. R. 1 Q. B. 699 ; 35 L. J. (Q. B.) 231.
(s) Connick v. Wilson, 2 Kerr, 496 ; ibid. 617 ; and see Andrews v. Wilson.
3 Kerr, 86.
(t) 32 L. T. Rep. 271.
OFFENCES AFFECTING GOVERNMENT, ETC. 147
comparison of the handwriting in dispute, and no objection
was made by defendant's counsel. It was held that these
seven anonymous letters were admissible — that they were
relevant to the issue to show malice ; but that, if a proper
objection had been made at the time of the trial, they could
not have been received as evidence of handwriting.
Upon an indictment for libel, published at defendant >•
instance, in a newspaper, it appeared that the editor, who
was not indicted, before inserting the libel, showed it to the
prosecutor, who did not express any wish to suppress the
publication, but wrote a reply, which was also inserted.
This was held not such a defence for the parties indicted as
to render a conviction illegal, (u)
In Quebec it has been held no defence to an action for libel
to say that the defendant, a newspaper proprietor, must give
his readers all the information he can on public matters ; or
that what was said of the plaintiff formed part of a general
report of the proceedings at a nomination ; or, that scenes of
violence took place at such nomination, concerning which the
public was desirous of being informed ; or that the article
had to be written in haste ; or that the information obtained
was from persons worthy of belief ; or that the article was
written with the sole object of giving information to the
public in the manner usually practised by newspapers
generally ; or that the plaintiff had not demanded a rectifica-
tion from the defendant; (v) or that a rumor existed to the
effect stated in the article complained of as libellous. («;)•
And it is no answer to an application for a criminal infor-
mation for libel, to say that the defendants had no personal
knowledge of the matter contained in the alleged libels, but
received them from persons whom they deemed trustworthy ;
that a certain newspaper (naming it) was controlled by the
applicant, who was an active politician, and had published a
(a) R*y. v. JfcElderry, 19 U. C. Q. B. 168 ; see, as to justification,
>.'• icart v. Hou-lami*, 14 U. C. C. P. 485 ; HM v. Hogg, 4 Allen, 108.
(v) Devy v. Fabre, 4 Q. L. R. 286.
(to) Reg. v. Douga.ll, 18 L. C. J. 85.
148 THE CRIMINAL LAW OF CANADA.
number of articles violently attacking one S., who was a can-
didate for a public office, and the libels in question were
published with a view of counteracting the effect of these
articles, and believing them to be true and without malice, (x)
The courts in this country, following the English decisions,
confine the granting of criminal informations for libel to the
case of persons occupying an official or judicial position, and
filling some office which gives the public an interest in the
speedy vindication of their character, or to the case of a
charge of a very grave or atrocious nature, (y) Therefore,
leave to the manager of a very large railway company to file
a criminal information for libel was refused, (z)
There should be no delay in making the application. The
complainant should come into court either during the term
next after the cause of complaint arose, or so soon in the
second term thereafter as to enable the defendant, unless
prevented by the accumulation of business in the court, to
show cause within that term ; and this without reference to
the fact whether an assize has intervened or not. (a)
The court, on such an application, is placed in the position
of a grand jury, and must have the same amount of infor-
mation as would warrant a grand jury in returning a true
bill. A grand jury would not be justified in returning a
true bill unless the libel itself were laid before them. There-
fore, the application for a criminal infprmation must be
rejected, unless the libel is filed with the affidavit on which
the -application is based. (5)
The denial on such an application should be as full, clear,
and specific as possible, and all the circumstances must be
laid before the court fully and candidly in order that they
may deal with the matter, (c)
(x) Reg. v. Thompson, 24 U. C. C. P. 252.
(y) Reg. v. Wilson, 43 U. C. Q. B. 583 ; but see Reg. v. Thompson, 24
U. C. C. P. 252.
(z) Ibid.
(a) Reg. v. Wilkinson, 41 U. C. Q. B. 1 ; Reg. v. Kelly, 28 U. C. C. P. 35.
(6) Bz parte Ougy, 8 L. C. R. 353.
(c) Reg. v. Wilkinson, 41 U. C. Q. B. 1.
OFFENVKS AFFECTING GOVERNMENT, ETC. 14i»
Under the Con. Stats. U. C., c. 103, a plea to an information
for libel must allege the truth of all the matters charged (cT)
The use of the inuendo in an indictment for libel is to
explain the evil meaning of the defendant when the words
are apparently innocent and inoffensive, or ambiguous.
The doctrine of taking words in their mildest sense is
applied only when the words, in their natural import, are
doubtful, and equally to be understood in one sense as
in the other, (e) It is for the court to say whether the
inuendo is capable of bearing the meaning assigned by it,
and for the jury to say whether that meaning was intended
and proved. (/)
Riot. — This offence is defined to be a tumultuous disturb-
ance of the peace, by three persons or more assembling
together, of their own authority, with an intent mutually
to assist one another against any one who shall oppose
them in the execution of some enterprise of a private
nature, and afterwards actually executing the same in a
violent and turbulent manner, to the terror of the people,
whether the act intended were of itself lawful or unlaw-
ful. (g)
The difference between a riot and an unlawful assembly
is this : the former is a tumultuous meeting of persons,
upon some purpose which they actually execute with vio-
lence, and the latter is a mere assembly of persons, upon a
purpose which, if executed, would make them rioters, but
which they do not execute, nor make any motion to exe-
cute, (h)
There is also an offence of a similar character, called a
rout This offence is distinguishable from an unlawful
assembly in this, that the parties actually make a motion
(d) Reg. v. Moylan, 19 U. C. Q. B. 521.
(«) Somers v. House, Holt, 39.
(/) Sturt v. JBlagg, 10 Q. B. 906 : Anonymotu, 29 U. C. Q. B. 462, per
WUson, J.
(g) Reg. v. KeUy, 6tT. C. C. P. 372, per Draper, C. J.
(h) fbid.: Rex v. Birt, 5 C. & P. 154.
150 THE CRIMINAL LAW OF CANADA.
to execute the purpose which, if executed, would make
them rioters, (i)
The case of Reg. v. Kelly (/) fully maintains the distinc-
tion between a riot and unlawful assembly. In this case,
the defendant was indicted for riot and assault, and the
jury found hirn guilty of a riot, but not of the assault
charged. The court held that a conviction for riot could
not be sustained, for the assault, the object of the riotous
assembly, had not been executed, but that the defendant
might have been found guilty of forming part of an unlaw-
ful assembly, (k]
It may be observed generally that all the parts of this
definition must be satisfied, in evidence, before the jury can
convict of riot. Three persons, or more, must be engaged
therein ; (/) it must relate to some private quarrel, only ;
for the proceedings of a riotous assembly, on a public and
general account, may amount to overt acts of high treason,
by levying war against the Queen, (m) The offence must
also be accompanied with some such circumstances either
of actual force or violence, or, at least, of an apparent ten-
dency thereto, as are naturally calculated to inspire people
with terror, such as carrying arms, using threatening-
speeches, turbulent gestures, etc. (n)
But it is not necessary that personal violence should have
been committed, (o) It is sufficient terror and alarm to
sustain the indictment if any one of the Queen's subjects
be in fact terrified, (p)
To some extent it is necessary that there should be a pre-
determined purpose of acting with violence and tumult ; and
if parties, met together on a lawful and innocent occasion,
(i) See Russ. Cr. 387 ; Reg. \. Vincent, 9 C. & P. 91.
(j) Supra.
(k) Ibid.
(1) Reg. v. Scott, 3 Burr. 1262 ; 1 W. Bl. 291 ; Reg. v. Sadbury, 1 Lord
Raym. 484 ; Salk. 593 ; Arch. Cr. Pldg. 841.
(m) Russ. Cr. 379.
(n) Reg. v. Hughes, 4 C. & P. 373 ; Arch. Cr. Pldg. 842.
(o) Clifford v. Brandon, 2 Camp. 369, per Mansfield, C. J. ; Russ. Cr. 379
(p) Reg. v. Phillips, 2 Mood. C. C. 252 ; C. & Mar. 602 ; Arch. Cr. Pldg
842.
OFFENCES \FFECTING GOVERNMENT, ETC. 151
become involved in a sudden affray, none are guilty but those
who actually engage in it, for the breach of the peace was
not part of their original purpose, (q) But it seems to be
immaterial whether the act intended to be done by the per-
sons assembling be in itself lawful or unlawful, (r)
Where a riot is proved to have taken place, the mere
presence of a person among the rioters, even although he
possessed the power of stopping the riot, and refused to
exercise it, does not render him liable as one of the rioters, (s)
In order to render him so liable, it must be shown that he
did something by word or act, to take part in, help, or incite
the riotous proceeding. (£) It is not necessary to constitute
a riot that the Eiot Act (u) should be read. Before the procla-
mation can be read, a riot must exist, and the effect of the
proclamation will not change the character of the meeting,
but will make those guilty of felony who do not disperse
within an hour after the proclamation is read, (v)
An assemblage of persons to witness a prize fight is an
unlawful assembly, and every one present and countenancing
the fight is guilty of an offence, (w)
By the common law, every private individual may lawfully
endeavor, of his own authority, and without any warrant
or sanction from a magistrate, to suppress a riot, by every
means in his power. He may disperse, or assist in dispers-
ing, those assembled, and stay those engaged in it from
executing their purpose, as well as stop and prevent others
whom he may see coming up from joining the rest. It is his
bounden duty to do this, and even to arm himself, in order
to preserve the peace, if the riot be general and dangerous.
If the occasion demands immediate action, and no opportunity
is given for procuring the advice or sanction of a magistrate,
(q) Russ. Cr. 381 ; Rvy. v. Corcoran, 26 II. C. C. P. 134.
(r) Ibid. 380.
(a) Reg, v. Atkinson, 11 Cox, 330, per Kelly, C. B.
(t) Ibid.
{u)31Vic.,c. 70.
(v) Reg. v. Furzey, 6 C. & P. 81.
(w) Reg. v. Bellingham, 2 C. & P. 234 ; Reg. v. Perking, 4 C. * P. 537 :
Arch. Cr. Pldg. 842-3.
152 THE CRIMINAL LAW OF CANADA.
it is the duty ol every subject to act for himself, and upon
his own responsibility, in suppressing a riotous and tumul-
tuous assembly, and. the law will protect him in all that he
honestly does in prosecution of this purpose, (x) This power
and duty devolve upon a governor of a colony, as well as
others, in case of riot and rebellion, (y) By the 31 Vic., c.
70, s. 5, persons suppressing a riot are justified, though the
death of a rioter may ensue. This is now the governing-
enactment as to riots throughout the Dominion.
forcible entry or detainer. — This offence is committed by
violently taking or keeping possession of lands and tenements
with menaces, force, and arms, and without the authority of
the law. (z) It is a misdemeanor at common law, and there
is no doubt an indictment will lie at common law for a
forcible entry, if accompanied by such circumstances as
amount to more than a bare trespass, and constitute a public
breach of the peace, (a)
The object of prosecutions for forcible entry is to repress
high-handed efforts of parties to right themselves ; (6) and
there seems now no doubt that a party may be guilty of a
forcible entry by violently and with force entering into that
to which he has a legal title, (c) And it is not necessary
that the force should be actual ; but if the occupant of the
lands have good reason to believe that sufficient force will be
used to compel him to leave, and he leaves accordingly, the
party menacing may be convicted of forcible entry, (d)
The stats. 8 Hy. IV., c. 9, 8 Hy. VI., c. 9, 6 Hy. VIII., c. 9,
and 21 Jac. I., c. 15, as to forcible entries, seem to be in force
in this country, (e)
(x) Phillips v. Eyre, L, R. 6 Q. B. 15, per WUles, J.
(y) Ibid.
(z) Russ. Cr. 421.
(a) Reg. v. Wilson, 8 T. R. 357 ; Reg. v. Bake, 3 Burr. 1731 ; Arch. Or.
Pldg. 851.
(b) Reg. v. Connor, 2 U. C. P. R. 140, per Robinson, C. J.
(c) Newton \. Harland, 1 M. & Gr. 644 ; Butcher v. Butcher, 7 B. 4 C.
399 ; 1 M. & R. 220 ; Hillary v. Gay, 6 C. * P. 248 ; Russ. Cr. 421-2.
(d) Reg. v. Smith, 43 U. C. Q. B. 369.
(e) Ante, p. 9.
OFFENCES AFFECTING GOVERNMENT, ETC. 153
Under these statutes, the party aggrieved by a forcible
entry and detainer, or a forcible detainer, may proceed by
complaint made to a local justice of the peace, who will
summon a jury, and call the defendant before him, and
examine witnesses on both sides if offered, and have the
matter tried by the jury. (/) The party may, however,
also proceed by action or by indictment at the General
Sessions. ( g) And if a forcible entry or detainer be made
by three persons, or more, it is also a riot, and may be pro-
ceeded against as such, if no inquiry has before been made
of the force. (A)
It has been held that the private prosecutor, on an indict-
ment for forcible entry or detainer, cannot be examined as
a witness, if the court may order restitution, (i) As this
disability, however, rests solely on the ground of interest,
it is, no doubt, removed in Ontario, at least, by the Con.
Stats. U. C., c. 32. If, since the forcible entry, the prose-
cutor has been restored to possession, he may be a wit-
ness, (j)
An inquisition taken before a justice is bad if it appears
to the court that the defendant had no notice, or that any
of the jury had not lands or tenements to the value of forty
shillings, for the 8 Hy. IV., c. 9, expressly requires that
persons who are to pass on such an inquisition should have
lands of that value. (&) The notice is not required by the
8 Hy. VI., c. 9, but the uniform course of criminal proceed-
ings renders it necessary that, before a person shall be found
a criminal, he shall be called upon to make defence ; and,
in addition to this principle, the courts have recognized
the propriety of notice in this proceeding, on the ground
that it would be wrong to put a person out of possession
(/) JSomoell andLoyd, 13 L. C. R. 10, per Maguire, J.
(g) Russ. Cr. 428.
(A) Ibid,
(i) Reg. v. Hughnon, Rob. Dig. 124 ; Reg. v. Beavan, Ry. & M. 242 ;
Rtg. v. Williams, 4 Man. & R. 471 ; 9 B. & C. 549.
(j) Rtg. v. Hughgon, supra.
(k) Rex v. McKreavy, 5 U. C. Q. B. 0. S. 620.
154 THE CRIMINAL LAW OF CANADA.
of his house or land upon a complaint of which he has no
knowledge. (/)
On an indictment for forcible entry or detainer of land,
evidence of title in the defendant is not admissible, (ra)
Where the defendants applied for delay, in order to give
evidence of title, but on the prosecutor consenting to waive
restitution in the event of conviction, they were compelled
to go to trial, and were convicted, a writ of restitution was
afterwards refused, though it seems it would in any case
have been improper to delay the trial for the reason
urged, (n)
An inquisition for a forcible entry, taken under 6 Hy.
VIII., c. 9, must show what estate the party expelled had
in the premises, and if it do not, the inquisition will be
quashed, and the court will order restitution, (o)
The 8 Hy. VI., c. 9, was construed to authorize restitution
only in cases where the person expelled was seized of an
estate of inheritance. The 21 Jac. I., c. 15, extends the
remedy to a tenant for years : and, in the opinion of Lord
Coke, the latter statute will apply to a tenant lor a term less
than a year, (p) When the inquisition finding a forcible
entry is quashed, the court, upon the prayer of the party
dispossessed under the justice's writ, must award a writ
of restitution to place him in possession, (q)
It was formerly held that where the prosecutor had been
examined as a witness, restitution should not be granted, (r)
This was because the evidence Act, 16 Vic., c. 19, excluded
any claimant or tenant of premises sought to be recovered in
ejectment. On an indictment for forcible entry, containing
two counts, one at common law and the other under the
statutes, the prosecutor alleging that he had a term of years
(1) Sex. v. McKreavy, 5 U. C. Q. B. O. S. 626, per Robinson, C. J.
(m) Reg. v. Cokely, 13 U. C. Q. B. 521.
(») Reg. v. Connor, 2 U. C. P. R. 139.
(o) Mitchell v. Thompson, 5 U. C. Q. B. O. S. 620.
(p) Rex v. McKreavy, supra. 625, per Robinzon, C. J.
(q) Ibid. 626, per Robinson, C. J.
(r) Reg. v. Connor, 2 U. C. P. R. 139.
OFFENCES AFFECTING GOVERNMENT, ETC. 155
in the land, there was a general verdict of guilty ; a writ of
restitution was refused, it appearing that the lease of the land
had expired, (s) Kestitution cannot be awarded to one who
never was in possession, or one who never has been dispos-
sessed. (£)
The Court of Queen's Bench had at common law no juris-
diction to issue a writ of restitution, except as part of the
judgment on an appeal of larceny, (u) But, by an equitable
construction of the statutes, it has now a discretionary power
to grant such writ, (v) A. defendant, having been con-
victed at the Quarter Sessions on an indictment for forcible
entry, was fined ; but that court refused to order a writ of
restitution, and the case was removed into the Queen's Bench
by certiorari, and a rule obtained to show cause why a writ
of restitution should not be issued; it was held in the dis-
cretion of this court either to grant or refuse the writ ; and,
under the circumstances, the verdict being against the charge
of the learned chairman, and he having declined to grant
the writ, and the prosecutor's case not being favored, it was
refused, (w)
The Court of General Sessions, where the indictment is
found, may, before trial, award a writ of restitution ; but it is
entirely in the discretion of the court to grant or refuse such
writ, (x)
But a justice out of sessions cannot award restitution on
an indictment, of forcible entry, or forcible detainer, found
before him by the grand jury, at the sessions. He can only
do so if seized of the case out of sessions, and after inquiry
before a jury, on a regular inquisition. The statement that
the justices in court, or out of court, may award a writ of
restitution only holds to the extent above-mentioned, (y)
(•*) Rex v. Jackson, Draper, 53.
(t) Boswell and Lloyd, 13 L. C. R. 11, per Magun-e, J.
(u) Reg. v. Lord Mayor of London, L. R. 4 Q. B. 371.
(v) Mitchell v. Thompson, 5 U. C. Q. B. O. S. 628, per Robinson, C. J.
(w) Reg. v. Wightman, 29 U. C. Q. B. 211.
(x) Boswll and Loyd, 13 L. C. R. 6.
(y) Ibid.
156 THE CRIMINAL LAW OF CANADA.
If an indictment is brought at common law for a forcible
entry, it is only necessary to state the bare possession of the
prosecutor ; but in such case no restitution follows the con-
viction, (s)
A mere trespass will not support an indictment for forcible
entry. There must be such force, or show of force, as is
calculated to prevent resistance, (a) But where the defend-
ant, and persons with him, having entered a dwelling-house
through an open door, and one of the persons having been
seen to push out the windows, the defendant himself taking
them off the hinges, it was held that a conviction for forcible
entry should not be disturbed. (6)
A wife may be guilty of a forcible entry into the dwelling-
house of her husband, and other persons also, if they assist
her in the force, although her entry, in itself, is lawful, (c)
Nuisances. — A nuisance is an injury to land not amounting
to a trespass. Nuisances are of two kinds, namely, public
or common, and private, (d)
To constitute a public nuisance, the thing complained of
must be such as, in its nature or its consequences, is a
nuisance, and an injury or damage to all persons who come
within the sphere of its operation, though it may be in
greater or less degree, (e)
Throwing noxious matter into navigable waters is a public
nuisance, and the person guilty thereof is liable to an indict-
ment for committing a public nuisance, or to a private action, at
the suit of any individual distinctly and peculiarly injured. (/)
So obstructions to navigable rivers are public nuisances. (#)
The collection of a crowd of noisy and disorderly people,
to the annoyance of the neighborhood, or outside grounds, in
which entertainments, with music and fireworks, are given
(2) Rex v. McKreavy, 5 U. C. Q. B. O. S. 629, per Sherwood, 3.
(a) Hex v. Smyth, 1 M. & Rob. 155 ; 5 C. & P. 201.
(6) Reg. v. Martin, 10 L. C. R. 435.
(c) Rex v. Smyth, 1 M. & Rob. 155 ; Arch. Cr. Pldg. 849.
(d) Little v. Jnce, 3 U. C. C. P. 545, per Macaulay, C. J.
(e) Ibid.; Reg. v. Meyers, 3 U. C. C. P, 333, per Macaulay, C. J.
(/) Watson v. City oj Toronto Gas and Water Co., 4 U. C. Q. B. 156.
(g) Brown and Qugy, 14 L. C. R. 213.
OFFENCES AFFECTING GOVERNMENT, ETC. 157
for profit, is a nuisance, for which the giver of the entertain-
ment is liable to an injunction, even although he has excluded
all improper characters from the grounds, and the amusements
within the grounds have been conducted in an orderly way,
to the satisfaction of the police, (fi)
It seems that a person who is annoyed by the noise of
horses kicking in a stable contiguous to his dwelling, and by
the stench from the manure, etc., cannot maintain an indict-
ment to remove it. (i)
All disorderly houses are public nuisances, and their keepers
may be indicted. (/) And a house to which men and women
resort for the purpose of prostitution, even where no indecency
or disorderly conduct is perceptible from the exterior, is a
disorderly house, (k)
In general all open lewdness, grossly scandalous, is indict-
able at common law, and it appears to be an established
principle that whatever openly outrages decency, and is
injurious to public morals, is a misdemeanor. (I)
The prisoners were convicted of indecently exposing their
persons in a urinal, open to the public, which stood on a
public footpath in Hyde Park, and the entrance to which
was from the footpath : it was held that the jury might well
find the urinal to be a public place, and that, therefore, the
conviction was good, (ra)
And an indictment charging the prisoner with keeping a
booth for the purpose of showing an indecent exhibition, and
in another count with showing for gain an indecent exhibition,
and in a third for showing an indecent exhibition in a public
place, was held to show sufficiently an indictable offence, (n)
By the 10 & 11 Wm. III., c. 17, all lotteries are declared to
be public nuisances, (o) Where, therefore, one hundred and
(h) Walker v. Brewstrr, L. R. 5 Eq. 25.
(i) Lawrason v. Paul, 11 U. 0. Q. B. 537, per Robinson, C. J.
(j) Rass. Cr. 442.
(k) Reg. v. Rice, L. R. I C. C. R. 21 ; 35 L. J. (M. C.) 93.
(I) Rass. Cr. 449.
(TO) Reg. v. Harris, L. R. 1 C. C. R. 232.
(n) Reg. v. Sawnders, L. R. 1 Q. B. D. 15.
(o) Cronyn v. Widder, 16 U. C. Q. B, 361, per Robin*on, C. J.
158 THE CRIMINAL LAW OF CANADA.
forty-nine lots of land were sold by lottery, the person getting
No. 1 ticket to have the tirst choice, it was held that this was
a lottery, though it did not appear there was any difference
in the value of the lots. The lottery consisted in having a
choice of the lots, and that choice was to be determined by
chance, (p) A sale of land by lot, in which there are two
prizes, comes within the Imp. stat. 12 Geo. II., c. 28. (q)
So the non-repair of a highway, or the obstruction thereof,
is a nuisance, indictable at common law. (r)
The proper remedy for a public nuisance is by indictment.
And where an obstruction of a navigable river is an injury
common to all the Queen's subjects who have occasion to use
the stream, and is, consequently, a public nuisance, a person
sustaining no actual particular damage cannot maintain an
action therefor, but the proper remedy is by indictment, (s)
An indictment is the proper remedy in all cases, except
when a charter, which is assumed to be a contract between
the parties obtaining it and the public that the road will be
constructed, and has been obtained to construct the road, and
the work has never been done, in which latter case the proper
remedy is mandamus.
The circumstance that the thing complained of furnishes,
on the whole, a greater convenience to the public than it
takes away, is no answer to an indictment for a nuisance, (i]
As to highways, the test, irrespective of the balancing of the
advantages against the impediments, is, whether the obstruc-
tion is prejudicial to the public to a degree amounting to a
nuisance in fact, that is, directly, however beneficial col-
laterally, (u) Though a nuisance is erected before any person
comes to live on or near the place, this does not prevent them
complaining of it, on afterwards coming there. (?;)
(p) Power v. Canni/, 18 U. C. Q. B. 403.
(q) Marshall v. Platt, 8 U. C. C. P. 189.
(r) Reg, v. Corporation of Paris, 12 U. C. C. P. 450, per Draper, C. -I.
(«) Small v. G. T. R. Co., 15 U. C. Q. B. 283.
(i) Reg. v. Bruce, 10 L. C. R. 117 ; Reg. v. Meyers, 3 U. C. C. P. 323,
per Macaulay, C. J. ; Reg. v. Ward, 4 A. & E. 384 ; 6 Nev. & M. 38.
(u) Reg. v. Meyers, 3 U. C. C. P. 323, per Macaulay, C. J. ; and see
Rowe v. 'Titus, 1 Allen, 326.
(v) Reg. v. Brewster, 8 U. C. C. P. 208.
OFFENCES AFFECTING GOVERNMENT, ETC. 159
In addition to the remedy by indictment, a nuisance may,
in certain cases, be abated by the parties affected thereby,
and this whether the nuisance is public or private, and
though on the soil of another, (w) But a private individual
cannot abate a public nuisance, unless by reason of some
special inconvenience or prejudice to himself, or an occasion
to require and justify it. (or) A boom stretched across a
floatable stream or river, in a place having relation to public
lands, is a public nuisance, and as such, may be abated by
any person, notwithstanding Con. Stats. Can., c. 23, s. 13, for
the latter only respects booms having reference to public
lands, (y)
Where the defendant neglects to abate the nuisance, the
court will compel its abatement through the sheriff. An
indictment had been preferred against the defendant, in a
previous term, for a public nuisance, and judgment obtained
ordering its abatement, and the court, on an affidavit that the
nuisance had not been abated, made a rule absolute for a
precept to the sheriff to abate it. (z) But an order requiring
the sheriff to do more than is necessary to abate, for example'
to destroy, and not simply remove gunpowder improperly
kept on the defendant's premises, is bad. (a)
A party is liable to fresh actions for continuing a nui-
sance, (ft) And it may be generally stated that when a
person is liable to an action for a nuisance, he may also be
indicted, (c)
There seems to be no authority for a justice convicting a
party summarily of a nuisance, and fining for the offence, (d)
And a conviction by a magistrate for obstructing a highway,
(w) Little v. Ince, 3 U. C. C. P. 545, per Macaulay, C. J.
(x) Ibid. 545, per Macaulay, C. J. : and see Dimes v. Petley, 15 Q. B.
276 ; Reg. v. Meytrs, supra, 333, per JJacaulay, C. J.
(y) Reg. v. Patton, 13 L. C. R. 311.
(2) Reg. v. Hendry, \ James, 105.
(a) Rey. v. Dunlop, 11 L. C. J. 186.
(b) Drev? v. Baby, 6 U. C. Q. B. O. S. 240, per Robinson, C. J.
(c) Rex v. Pedley, 1 A. & E. 822 ; Reg. v. Stephens, L. R. 1 Q. B. 702 ;
35 L. J. (Q. B.) 251,
(rf) Bross v. Huter, 18 U. C. Q. B. 286, per Robinson. C. J.
160 THE CRIMINAL LAW OF CANADA.
and order to pay a continuing fine until the removal of such
obstruction, was held bad, as unwarranted by any Act of
Parliament, (e)
Twenty years' user will not legitimate a public nui-
sance. (/) The maxim that no length of time will legalize
such nuisance generally holds ; (g} but as applied to a ques-
tion of dedication, equivocal in itself, after a lapse of thirty
years, without any public enjoyment, before or after suit, it
forms a proper subject to be taken into consideration, (h)
Highways exist both by land and water. In Ontario,
those by land have accrued to the public by dedication
of the Crown, in what is commonly termed allowances
for roads in the original survey of towns and townships ;
or by dedication of private individuals, or under the pro-
visions of the statute law, or by usurpation and long
enjoyment. Upon land, therefore, highways are estab-
lished only by some positive act, indicating the object and
its accomplishment. They are, it may be said, artificially
made, or only become such by acts in pais. It is otherwise
with navigable rivers and watercourses. They are natural
highways, pre-existing and coeval with the first occupancy
of the soil, and formed, practically, the first or original
highways, in point of actual use. (i)
Where the existence of certain streets as public high-
ways was shown by the work on the ground at the original
survey by the Crown, and by the adoption, on the part of
the Crown, of that work as exhibited on the plan thereof
returned, which adoption was established by the disposition
of lands according to that plan and survey : it was held
that these streets thereby became public highways ; and
although, prior to such adoption, the Crown would not
have been bound by either plan or survey, after such adop-
tion, it was. (/)
(f) Reg. v. Huber, 15 TJ. C. Q. B. 589.
(/) Keg. v. Brewster, 8 U. C. C. P. 208.
(g) Reg. v. Cross, 3 Camp. 227 ; 4 Bing. N. C. 183.
(h) Rex v. Allan. 2 U. C. Q. B. O. S. 105, per Macaulay, C. 3.
(i) Reg. v. Meyers, 3 U. C. C. P. 352, per Macaulay, C. J.
(;) Reg. v. Hunt, 17 U. C. C. P. 443, (in E. & A.)
OFFENCES AFFECTING GOVERNMENT, ETC. 161
For a period of nearly fifty years, there had been a tra-
velled road, irregular in direction and varied at times in its
course, crossing the defendant's land, which road was not
laid out by any proper authority, but used by the public
at pleasure, owing to the original allowances not having
been opened. During two years only statute labor had
been performed upon it, and when the regular allowances
were opened, defendant obstructed it, other similar roads in
the neighborhood having been closed in the same manner.
The court held that the road could not be considered a
highway, for the evidence showed not a perpetual dedi-
cation, but at most a permission to use until the proper
allowance was opened, when, if not before, the defendant
had a right to close it ; nor was it a highway under the
29 & 30 Vic., c. 51, s. 315, now superseded, for it could not
be said that statute labor had been "usually performed"
upon it ; and as it was, in fact, only a substitute for the
regular allowance, it might fairly be treated as "altered"
within the spirit of that clause when the allowance was
open, (k)
Where the defendant was convicted on an indictment
charging him with having obstructed a " highway " on
evidence which, as reported to the court, did not show that
the alleged highway had been established by a plan, filed
or signed by the owners of the adjoining lots, or by the
general user of the public, it having been used by one or
two persons only for a short time, or that any clearly
defined portion of land had been marked off and used ; but
there appeared to have been merely an open space, not
bounded by posts or fences, over which the owners of the
adjoining land had been in the habit of passing in the
carriage of goods, wood, etc., to the rear of the premises ; it
was held that there was not sufficient evidence to support
the conviction, and it was therefore quashed. (/) It has
(k) Reg. v. Plunkett, 21 U. C. Q. B. 536.
(t) Reg. v. Ouettette, 15 U. C. C. P. 2<iO ; see also Rex v. Sanderson. 3
U. C. Q. B. O. 8. 103, as to similar indictment under 50 Geo. III., c. 1.
162 THE CRIMINAL LAW OF CANADA.
been held, however, in New Brunswick to be unnecessary
for the commissioners of highways in laying out streets
under 5 William IV., c. 2, to put up fences or grade the road.
It is sufficient if a man can go upon the ground with their
return and plan, and discover where the street is, its course,
length and breadth, (m)
The roads of joint-stock companies were held not public
roads or highways, within the meaning of the old 22 Vic.,
c. 54, s. 336. (n)
Under Con. Stats. U. C. c. 54, s. 313, now repealed, the
fact of the government surveyor having laid out a road in
his plan of the original survey, would have made it a high-
way, unless there was evidence of his work on the ground
clearly inconsistent with such plan, (o)
A public road, laid out in the original survey of crown
lands, by a duly authorized crown surveyor, is a public
highway, though not laid out upon the ground.
After a road has once acquired the legal character of a
highway, it is not in the power of the Crown, by grant of
the soil, and freehold thereof, to a private person, to defeat
the public of their right to use the road. ( p)
The defendant being indicted for overflowing a highway
with water, by means of a mill dam maintained by him,
objected that there was no highway, and could be no convic-
tion, because the road overflowed, which was an original
allowance, had been in some places enclosed and cultivated.
It was used, however, at other points, and those who had
enclosed it were anxious that it should be opened and travelled,
which, they said, was impossible, owing to the overflow. The
overflow was at other parts than those so enclosed. It was
held by the court that the conviction was clearly right, and
the 335th section of the 29 & 30 Vic., c. 51, now superseded,
did not apply, because no other road had been in use in lieu
(m) Reg. v. McGowan, 1 Pugsley & B. 191.
(n) Reg. v. Brown ami Street, 13 U. C. C. P. 356.
(o) Carrick v. Johnston, 26 U. C. Q. B. 69 ; Reg. v. McGowan, 1 Pugsley
&B. 191.
(p) Reg. v. Hunt, 16 U. C. C. P. 145.
OFFENCES AFFECTING GOVERNMENT, ETC. lf>:>
of the proper allowance, nor had any road been established
by law in lieu thereof, (q)
The original public allowances for road made in the first
survey of a township continued to be public highways, not-
withstanding a new road deviating from any such allowance
might have been opened under the provisions of the statute
50 Geo. III., c. 1, or might have been confirmed as a highway
by reason of statute labor or public money having be^n
applied upon it. (r)
But where, in the original plan of a township, a piece ot
ground was laid out as a highway, which was subsequently
granted by the Crown, in fee, to several individuals, and was
occupied by them, and others claiming under them, for up-
wards of thirty years, and never had been used as a highway,
it was held that an indictment for a nuisance for stopping
up that piece of ground, claiming it as a highway, could not
be sustained, (s)
Where the Crown granted a lot of land on the bank of
Lake Ontario, and along the bank of the lake, and to Lake
Ontario, it was held that the Crown had power to grant the
beach up to high-water mark ; and in this case the grant
being to a private individual, and having conveyed to him
the land to the water of the lake, there was no common or
public highway along the beach, (t) The actual sea shore
may be granted by the Crown, and then there is no highway
over it : and even when ungranted, unless by dedication,
there is no highway against the will of the Crown. It would
seem that in grants of land in our waters having a river or
lake boundary, the grant extends to the water, and there is
no place between the land conceded and the water on which
to place the highway, (u)
A government survey will prevail in establishing a high-
(q) Reg. v. Lees, 29 U. C. Q. B. 221.
(r) Spotting v. Rogers, 1 U. C. Q. B. 269.
(«) Rex v. Allan, 2 U. C. Q. B. O. S. 90.
(t) Parker v. Elliott, 1 U. C. C. P. 470.
(«) Parker v. Elliott supra, 490, per Sulhvan, }.
164 THE CRIMINAL LAW OF CANADA.
way against the right of a party in possession, to whom a
patent afterwards issues, (v)
A highway, of which the origin was not clear, had been
travelled for forty years across the plaintiff's lot, the patent
for which was issued in 1836. The municipality, in 1866,
passed a by-law shutting up the road ; but no conveyance
was ever made to the plaintiff; but the court held that the
user for thirty years after the patent would be conclusive
evidence of a dedication against the owner, and that such
evidence was equivalent to a laying out by him, so that the
road, under Con. Stat. U. C., c. 54, s. 336, was vested in
the municipality, (w)
Under 4 & 5 Vic., c. 10, the district council could not open
u, new road, except by by-law; and where, therefore., no by-law
was shown, it was held that the road was not sufficiently
established, and upon the evidence there was nothing to
show dedication, (x)
Merely opening or widening a street, for the convenience
of the person doing it, or leaving land op-n where it is
immediately adjacent to a highway, and permitting the public
to use it, will not constitute a dedication, (y)
A. being owner of a large tract of land, laid out a plot for
a town at the mouth of the river B., upon the map of which
town a road was marked off, leading along the edge of the
river, to its mouth. The road was made originally at the
expense of A., but afterwards repaired and improved by
statute labor and public money, and holes filled up in the
part upon which the obstruction complained of was erected.
After indictment, and verdict of guilty, it was held that there
was sufficient evidence of intention to dedicate the street by
the plan, by user and the declaration of the owner to estab-
(v) Mountjoy v. Reg. 10 U. C. L. J. 122.
(w) Mytton v. Duck, 26 U. 0. Q. B. 61.
(z) Reg. v. Ranltin, 16 U. C. Q. B. 304.
(y)Belfordv. Haynes, 1 U. C. Q. B. 464; and see Reg. v. Spence, II
U. C. Q. B 31.
OFFENCES AFFECTING GOVERNMENT, ETC.
lish a dedication, and that the verdict of guilty was in accord-
ance with the evidence. (2)
In order to prove that a way was, in fact, public, evidence
was given of acts of user extending over nearly seventy years*
but during the whole period the land crossed by the way had
been in lease. The judge told the jury that they were at
liberty, if they thought proper, to presume fiom these acts a
dedication of the way by the defendant, or his ancestors, at
a time anterior to the land being leased : and the court held
the direction proper, (a)
A public highway may be established in this country by
dedication and user ; but if the question arises between the
public and the owner of the land, in a newly settled part ot
the country, stronger evidence, may be required than in a
more settled and populous neighborhood. A right reserved
to the Crown to enter on land at any time, and erect barracks,
batteries, etc., does not prevent a dedication of a part of the
land to the public for a highway. (5)
There may, in certain cases, be a limited or partial dedi-
cation of a road to the public. And a footway may be so-
dedicated, subject to the condition that the owners of the soil
are to plough it up, such a right being considered reasonable,
and not inconsistent with dedication, (c) So there may be a
dedication of a way to the public, subject to a right of the
owner of the land through which it passes to have a gate, at
certain seasons, run across it. (d)
The owner, who dedicates to public use, as a highway, a
portion of his land, parts with no other right than a right of
passage to the public over the lands so dedicated, and may
exercise all other rights of ownership not inconsistent there-
with ; and the appropriation made to and adopted by the
(z) Reg. v. Gordon, 6 U. C. C. P. '213.
(a) Winterbottom v. Lord Derby, L. R. 2 Ex. 316.
(b) Reg. v. Deane, 2 Allen, 233 ; Reg. v. Buchanan, 3 Kerr, 674 ; see
aa to dedication by the Crown, Cole v. Moxicdl, 3 Allen, 183.
(c) Arnold v. Blaker, L. R. 6 Q. B. 433 (Ex. Chr.); Mercer v. JToorf-
gat*, L. R. 5 Q. B. -2G • 39 L. J. (M. C.) 21, affirmed.
(d) Bartlett v Pratt, 2 Thomson, 11.
16ti THE CRIMINAL LAW OF CANADA.
public, of a part of the street, to one kind of passage, and
another part to another, does not deprive him of any rights, as
owner of the land, which are not inconsistent with the right
of passage by the public, (e)
In order to constitute a valid dedication to the public of a
highway, by the owner of the soil, it is clearly settled that
there must be an intention to dedicate, an animus dedicandi,
•of which the user by the public is evidence, and no more ;
and a single act of interruption by the owner is of much
more weight upon a question of intention than many acts of
enjoyment. (/)
Adoption by the public, and acquiescence, at least, if not
user, are most material ingredients to constitute a binding
dedication, (g)
The intention of the party to dedicate must be clear,
and time is considered an essential ingredient. The act or
.assent of the public must be manifest and complete, and
«ven then a subject cannot, by any spontaneous act of
appropriation, impose a highway upon the public. If a
highway, the public become bound to repair it, and, con-
sequently, their adoption or assent becomes important.
Such adoption and assent, in the case of allowances, are
waived by the expenditure of public money in opening or
repairing, the performance of statute labor, user, etc. ; but,
without some evidence of adoption by user, or other mani-
festation, an allowance for road at common law would con-
tinue an allowance only, and not a road in fact, (h) A
reservation inconsistent with the legal character of a dedi-
cation would be void, (i)
It seems there may be a public highway without its
(e) St. Mary Newington v. Jacobs, L. R. 7 Q. B. 53, per Mellor, J.
(/) Mercer v. Woodgate, L. R. 5 Q. -B. 32, per Hannen, J. ; Hawkins T.
jBaker, 1 Oldright, 423, per Des Barren, J. ; Leary v. Saunders, 1 Old-
right, 17.
(g) Rex v. lahah. St. Benedict, 4 B. & A., 447 ; 12 Ea. 192 ; Rex v. Allan,
2 U. C. Q. B. O. S. 103, per Robinson, C. J.
(h) Ibid. 103-4, per Macaulay, C. J.
(») Arnold \. Blaker, L. R. 6 Q. B. 437, per Kelly, C. B.
OFFENCES AFFECTING GOVERNMENT, ETC. 167
being a thoroughfare ; at all events, if a highway were
stopped at one end so as to cease to be a thoroughfare, it
would, in its altered state, continue a highway. The old
doctrine that a highway implied a thoroughfare, has been
so far modified by more recent decisions that there may be
in a square in a great city, lighted and paved at the public
expense, which the public, in fact, frequent, passing along
its three sides, or to the houses therein situate, a highway
in legal contemplation, although it is a cut de sac. (j)
But where such highway is claimed by dedication, the
acts or declarations relied on to support it must be clear
and unequivocal, with manifest intention to dedicate. There
is a difference between a cul de sac in the city and one in
the country ; much stronger acts being required to establish
a public highway by dedication in the latter than in the
former. The mere acting so as to lead persons to suppose
that a way is dedicated does not amount to a dedication, if
there be an agreement which explains the transaction. (&)
The question of dedication or no dedication is a question of
fact for the jury. (/)
Whether a certain road constitutes a highway or not
is generally a mixed question of law and fact, depending
much upon circumstances and the peculiar features of each
case, (ra) The expenditure of public money on a road laid
out thirty feet wide can only make it a public highway to
that extent, and will not have the effect of extending it to
'a highway four rods wide, (n) Where a road has been used
as a public highway, and the usual statute labor of the
locality done upon it from year to year, this will, in the
absence of explanation, establish the road as a public high-
0') Hawkins v. Baker, 1 Oldright, 419-24 ; Rex v. Marquis of Devonshire,
4 A. & E. 713, per Patteson, J.
(k) Ibid. 419 ; see also Pook v. Huskinson, 11 M. & W. 827 ; Bateman v.
Black, 18 Q. B. 870 ; 21 L. J. Q. B. 406.
(1) Belford v. Haynes, 7 U. C. Q. B. 464 ; Reg. v. Gordon, 6 U. C. C. P.
213 ; Reg. v. G. W. R. Co., 12 U. C. Q. B. 251, per Robinson, C. J.
(m) Rex v. Allan, 2 U. C. Q. B. O. S. 102, per Macaulay, J.
(n) Basterach, v. Atkinson, 2 Allen, 439.
168 THE CRIMINAL LAW OF CANADA.
way. (o) But where it appeared from the evidence that
statute labor had been performed on part of the road in
question, but only to a limited extent, and not from time
to time, so as to show it was a road " whereon the statute
labor hath been usually performed," it was held not suffi-
cient to establish the road as a public highway under the
22 Vic., c. 54. (p) Where about fifteen years before the
finding of the indictment the township council had built
a bridge on the road, and expended money thereon, and
statute labor had been done thereon, it was considered
under the authority of s. 313 Con. Stat. U. C., c. 54, that it
must be deemed a public highway, (q)
Nuisances to highways are of two classes : positive, as by
obstruction ; and negative, by want of sufficient repair.
Where a railway company, bound by their charter to restore
any highway intersected by their track "to its former state,
or in a sufficient manner not to impair its usefulness," con-
structed their road acioss a street which was sixty-six feet
wide, and connected the street again by a bridge across the
track forty feet two inches in width, it was held that the jury
might with propriety find this to be a sufficient compliance
with the Act, and that the defendants were not necessarily
guilty of a nuisance because the bridge was not of equal
width with the street crossed, (r)
But where a railway company, in passing over a highway,
had lowered the highway at the point of intersection so as to,
make it inconvenient and dangerous, this was held to be an
indictable nuisance, (s)
Where a street ran into a road allowance, but did not cross
it, and the defendants, being incorporated under 16 Vic., c.
190, for gravelling the road, so far lowered the level, in order
to get the grade prescribed by the statute, as to make the
(o) Reg. v. Hall, 17 U. C. C. P. 286, per J. Wilson, J.
(p) Ibid. 282, per J. Wilson, J.
(g) Prouse v. Corporation of Mariposa, 13 U. C. C. P. 560.
(r) Reg. v. G. W. R. Go., 12 U. C. Q. B. 250.
(s) Reg. v. G. T. R. Co., 17 U. C. Q. B. 165.
OFFENCES AFFECTING GOVERNMENT, ETC. 169
approach from this street impassable, it was held that they
were justified in so doing, and not guilty of a nuisance in
obstructing the street, or obliged to restore the approach, (f)
A fire lighted by a wheelwright for the purposes of his-
business, within fifty feet of the centre of the highway, such
fire being fed by lifting a lid in the wall on the outside of
the premises, is not a public nuisance within the Imp. 5 & 6-
Win. IV., c. 50, s. 72 ; for to constitute the act an offence
within this section, it must be shown that some injury is-
done to the highway, or some danger or annoyance is occa-
sioned to passengers in using it. (u)
When there has been a dedication of a highway to the
public, anything afterwards done by the owner interfering
with that right of way is a nuisance, (v)
The use of a velocipede on the sidewalk, though no one be
near it, may be an obstruction within the provisions of a
by-law that no person shall, by any vehicle, encumber or
obstruct the sidewalk. (10)
In Reg. v. Fralick, (x) it was held under the facts stated in
that case that the defendant, being the lessee of the ord-
nance department, had no right to obstruct the road leading
to the Niagara Falls Ferry, and that he was guilty of an
indictable nuisance in so doing. But where an allowance for
a road has never been opened as a public highway, the notice
and order required by the 9 Vic., c. 8, not being given, an
indictment for a nuisance in obstructing it cannot be
maintained, (y)
Where a waggon is left standing in the highway, the
owner cannot exempt himself from liability by showing that
the person injured thereby was drunk at the time of the
accident ; for it cannot be permitted to a person to place any
(<) Beg. v. W. <L: D. P. <fc G. R. Co., 18 U. C. Q. B. 49.
(«) Stinson v. Browning, L. R. 1 C. P. 321 ; and see Hadley v. TaylorT
ibid. 53.
(v) Mercer v. Woodgate, L. R. 5 Q. B. 31; per Blackburn, J.
(v>) Reg. v. Plummer, 30 U. C. Q. B. 41.
vx) 11 U. C. Q. B. 340.
(y) Reg. v. Purdy, 10 U. C. Q. B. 545 ; Reg. v. G. W. R. Co., 12 U. C-
Q. B. 250.
170 THE CRIMINAL LAW OF CANADA.
obstruction that he pleases in the highway, and to consider
himself responsible for no injury that may happen from it,
except to persons who are sober and vigilant in looking out
for nuisances that they had no reason to expect to find
there, (z)
If a road is laid out over land upon which a fence is
standing, it is the duty of the commissioners of highways to
remove the fence, and the owner of the land omitting to
do so is not punishable under the Act 5 Win. IV., c. 2, s.
16, as for obstructing or encroaching upon a highway, (a)
A conviction for obstructing a highway is bad unless it
appears on the face of it that the place was a public
highway. (6)
Where a person has sold lots according to a plan in which
a lane is laid out in the rear, he cannot afterwards shut up
such lane, and the fact that he had previously conveyed
portions of the land comprised in the lane would only affect
so much as he had thus precluded himself from giving up
to the public, and would not entitle him to close up the
whole, (c)
C. owned township lot 32, and H. lot 31, adjoining it on
the east. In 1856 H. laid out part of 31 with village lots,
according to a registered plan, which showed streets called
First, Second, Third and Fourth Streets, etc., running from
east to west across the block to the east limit of lot 32. In
1858 C. laid out the east part of lot 32 by a plan also regis-
tered, by which a street called Augusta Street ran north and
south, along the east side of 32, and from it streets ran
westerly numbered 1, 2, 3, 4, etc., corresponding to and a
continuation of First, Second, Third and Fourth Streets on
H.'s block, Augusta Street only intervening. Village lots
had been sold on street 4 in C.'s block, but none in Fourth
(2) Ridley v. Lamb, 10 U. C. Q. B. 354.
(a) Ex parte Morrison, 1 Allen, 203 ; and see Colt v. Maxwell, 3 Allen,
183.
(6) Keg. v. Brittain, 2 Kerr, 614.
(c) Reg. v. Boulton, 15 U. C. Q. B. 272.
OFFEN'CKS AFFK<TL\G (iOVERXMEST, ETC. 171
Street on H.'s land, and the closing of this last named street
would not shut out a purchaser of any lot from access to the
nearest highway ; it was held that under 24 Vic., c. 49, the
owner of H.'s block might, by a new survey and plan, close
up Fourth Street on his land, for the laying out a street
in continuation of it by C. did not make all one street, so as
to render the provision in that statute applicable ; and the
owner of H.'s block having been convicted at the Quarter
Sessions of a nuisance for so doing, on application to this
court ; and that he was therefore entitled to an acquittal (d)
The placing of a gate across a travelled road after the
public have been enjoying it for upwards of twenty years
can never have the effect of abolishing a highway. It
seems that a gate being kept across a public road is not
conclusive to show that the road is not a public one, as the
road may have originally been granted to the public,
reserving the right of keeping a gate across it to prevent
cattle straying, (e)
Where a road was laid out over land by the owners
thereof, and was so used by the public without interruption
for thirty or forty years, the court held that it had become
a public highway, and could not be stopped up by by-law
of the municipal council, particularly at the instance of a
purchaser of one of such owners of the lano), with know-
ledge too on his part of the existence of the road. (/)
A road had, for more than fifty years, been used as a
road between the townships of York and Vaughan, the
original road allowance between the townships being to
the north of it, and this road being, in fact, wholly within
the township of York and part of lot 25. The owner of
the lot had been indicted for closing up this road, and con-
victed in 1870 ; and the corporation of York then passed
a by-law to close it, reciting that there was no further
necessity for it, by reason of the road allowance. There
(d) Reg. v. Hubidge, 25 U. C. Q. B. 299.
(e) Johnston v. Boyle, 8 U. C. Q. B. 142.
{ f) Moore v. Corporation of Esquesing, 21 U. C. C. P. 277.
172 THE CRIMINAL LAW OF CANADA.
being in the facts above stated sufficient evidence of dedica-
tion and acceptance of this road as a highway, the court
held that it was a road dividing different townships, over
which the county council only had jurisdiction, and that the
by-law therefore was illegal. Such a road need not consist
of an original allowance, but may be acquired or added to
by purchase or dedication, (g)
To justify shutting up a highway under 1. Rev. Stat.
(N. B.), c. 66, the return of the commissioners must show,
either expressly or by necessary implication, that the road
is not required for the convenience of the inhabitants of
the parish. (7t)
The commissioner of crown lands has no authority to
open roads on lands granted by the Crown, and any money
expended for such purpose under authority so given, is not
public money, within 22 Vic., c. 54, s. 33 ; and the roads so
opened do not, therefore, become public highways under
that Act. (i)
A municipal corporation had power to open new roads
through any person's lands, under the restrictions in the
statute 12 Vic., c. 81, s. 31. (j) But a by-law of a muni-
cipal council for the alteration of an old road has been held
bad, in not assigning any width to the new road, (k)
At common- law, an ancient highway might be changed
by writ of ad quod damnum. But this writ only avails so
far as the rights of the Crown extend, and only in relation
to rights which the Crown may grant. (/)
To allow a public highway to become ruinous and out of
repair, is a nuisance indictable at common law. The party
on whom the obligation to repair is imposed, whether by
common law or otherwise, is indictable for breach of that
(g) He McBride, 31 U. C. Q. B. 355.
(h) Oultonv. Carter, 4 Allen, 169 ; as to by-law to close and sell road, see
Baker and Corporation of SaltjUeet, 31 U. C. Q. B. 386.
(i) Reg. v. Hall, 17 U. C. C. P. 282.
(j) Dennis v. hughes, 8 U. C. Q. B. 444.
(k) Re. Smith and Council of Euphemia, 8 U. C. Q. B. 222.
(I) Reg. v. Meyers, 3 U. C. C. P. 321, per Macaulay, C. J
OFFENCES AFFECTING GOVERNMENT, ETC. 173
obligation, ad commune damnum. (rn) Though a statute pro-
vides that the proprietors of a road shall not collect any tolls
thereon while out of repair, this does not suspend the com-
mon law right of indictment in case of non repair. (?i) Where
a common and public highway is impassable and out of repair,
although not from accident, casualty, or emergency, a person
using and passing along the highway may go through the
adjoiuing land, going no further from the highway than is
necessary, and returning thereto as soon as practicable, and
doing no unnecessary damage in that behalf, (o) It would
seem to make no difference whether the adjoining land be
sown with grain or not. (p)
Eoad companies owning public highways, and entitled to
tolls for the use thereof, are, upon the principles of the
common law, liable to an individual lawfully using the road,
and guilty of no fault on his part, for a special injury received
in consequence of the company permitting the road to be out
of repair ; and sucli want of repair is also a public nuisance
as respects the public at large, and the company may be liable
to an indictment therefor, (q)
Grantees of the Crown of public highways are indictable at
the suit of the public for default in repairing such highways,
although they are also liable to the Crown for the breach
of their covenant to that effect, contained in thj patent; and
this liability follows and accompanies the transfer of the pro-
perty, so as to make the purchaser of part, or mortgagee of
the residue, also indictable for the same cause, although it
O
has been expressly agreed between grantor and grantee, that
the former shall and the latter shall not be bound to repair.
To maintain an indictment against the defendant under such
circumstances it is not necessary that the government engin-
eer should have first condemned the road by a certificate, (r)
(m) Reg. v. Corporation of Paris, 12 U. C. C. P. 450, per Draper, C. J.
(«) Ibid. 445.
(o) Carrick v. Johnston, 26 U. C. Q. B. 65.
(p) Ibid. 68, per Hagarty, J.
(q) MacDonald v. Hamilton and P. D. P. L. Co., 3 U. C. C. P. 402.
(r) Keg. v. Mills, 17 U. C. C. P. 654.
174 THE CRIMINAL LAW OF CANADA.
A company having been formed under the provisions of
the Joint-Stock Road Act in several townships, including the
defendants, subsequently mortgaged said road to the counties
of Lincoln and Welland, which counties, at a later date, took
an absolute conveyance, and passed a by-law, by which they
assumed it as a county road. They afterwards passed a by-
law, requiring the respective townships (the defendant's being
one of them) through which the road passed to keep the same
in repair. On the trial, the defendants were found guilty.
On special case left to this court it was held that the road
never vested in or became a county road within the meaning
of the statute, but as one acquired by the county, as assignees
of the road company, and, as such assignees, they held the
same, with all the rights and subject to all the duties and
obligations which the law imposed upon the said company,
which constructed it, and that the county had no power to
divest itself of this obligation, and throw the duty of repair-
ing on the defendants, (s)
Where a road ran through the town of Whitby, and was
part of a macadamized road, made by the Government,
before the 13 & 14 Vic., c. 14, and afterwards transferred to
the plaintiffs, it was held that, under this statute, the cor-
poration of the town were clearly bound to keep in repair
that portion of it within their limits. (^
Municipal corporations are, under the R. S. O., c. 174, s.
491, bound to keep all highways in the township in repair,
and they have all necessary powers given to them for
enabling them to perform that duty, (u) The Con. Stats
U. C., c. 49, s. 84, provides that, after any road has been
completed, and tolls established thereon, the company shall
keep it in repair, (v)
The Des Jardins Canal Co. having been indicted for not
keeping in repair the bridge over their canal, where it
(s) Reg. v. The Corporation of Loiith, 13 U. C. C. P. 615.
(t) Port Whitby R. Co. v. Corporation Town of Whitby, 18 U. C. Q. B. 40.
(«) Colbeck v. Corporation of Brantford, 21 U. C. Q. B. 276.
(v) Caswell v. The St. M. <fc P. L. J. R. Co., 28 U. C. Q. B. 250, per A.
Wilson, J.
OFFENCES AFFECTING GOVERNMENT, ETC. 175>
crosses the highway, built for them by the Great Western
Railway Company, it was held that they, and not the
railway company, were bound to keep such bridge in repair;
and that evidence of the state of the bridge, a few days
before the trial, was admissible, not as proof of that fact,
but as confirming the other witnesses, who swore to its
state at the time laid in the indictment, and as showing
such state by inference, (w)
The members of a gas company, having parliamentary
powers to open streets, for the purpose of public lighting,
but having no similar powers for the purpose of conveying
gas to private houses, are liable to be convicted for a
nuisance, in obstructing the highway, if they open the
streets in order to lay down service pipes from the mains,
already laid down by them for public lighting, to the
houses of the adjacent inhabitants. An inhabitant who
directs such service pipes to be laid down to his house is
also similarly liable, (x)
Where a street, which was a public highway, had been
once put in good repair, but at the time of the passing of
the special Act was out of repair, it was held that the com-
missioners had no power, under s. 53, 10 & 11 Vic., c. 34, to
do the necessary repairs, and charge the expenses on the
adjoining occupiers, as the word " theretofore " in that
section is not restricted to the time of the passing of the
special Act, but is used in its ordinary sense, (y)
Where a highway, fifty feet in width, was set out under
the General Inclosure Act, 41 Geo. Ill, c. 109, but only
twenty-five feet were used as actual road, the sides being
allowed to grow up with trees, it was held that the right
(w) Reg. v. Dea Jardins Canal Co., 27 U. C. Q. B. 374 ; see as to repair
of hundred bridges within the English Highway Act, 1835, Reg. \. Inhab.
of Claret and Longbridge, L. R. 1 C. C. R. 237 ; as to repair of publi
buildings, Havikeshaw v. District Council of Dalhousi^, 1 U. C. Q. B. 590 ;
as to repair of roads in parishes, Reg. v. Folville, L. R. 1 Q. B. 213 ; 35
L. J. (M. C.) 154.
(x) Reg. v. Knight, 7 U. C. L. J. 23.
(y) Reg. v. Great Western R. Co., 5 U. C. L. J. 216.
176 THE CRIMINAL LAW OF CANADA.
of the public was to have the whole width of the road, and
not merely that part which had been used as the via trita,
preserved free from obstructions, and that such right had
not become extinguished by the fact that the trees had
been allowed to grow up within the fifty feet for the period
-of twenty-five years, (z)
A railway company which carried the highway across
and over their road by a bridge, were held bound under
Con. Stats. U. C., c. 66, s. 9, subs. 5, s. 12, subs. 4, to keep
in repair such bridge, and the fence on each side of it. (a)
The corporation of the county of Wellington, under 29
& 30 Vic., c. 51, s. 339, had exclusive jurisdiction over a
"bridge belonging to them " on the line of road and public
highway between two townships in the same county," and
having jurisdiction, the common law, irrespective of the
statute, would impose upon them the duty of repairing
'it, (6)
The word " between," in the 29 & 30 Vic., c. 51, s. 329,
must be construed in its popular sense ; and where a bridge
is constructed over navigable waters, and connects two
opposite shores, lying in different counties, such bridge is
between such two counties, and they are jointly answerable
for its maintenance, even though the counties, as respec-
tively containing the townships between the shores of which
the current flows, reach to the middle of the water, and are
divided only by the invisible untraceable line called medium
filum aquce. (c)
It was held not essential in a petition for survey under
12 Vic., c. 35, s. 31, that there should be a statement that
the necessary number of resident landholders have applied,
if, in fact, a sufficient number have joined, (d)
(z) Turner v. Ringwood H. Board, L. R. 9, Eq. 418.
(a) Vanallen v. G. T. R. Co., 29 U. C. Q. B. 436.
(b) Corporation of Wellington v. Wilson, 14 U. C. C. P. 299.
(c) Harrold v. Corporation o/Simcve, 18 U. C. C. P. 1 (in E. & A.) S. C.
16 U. C. C. P. 43, affirmed.
(d) C. S. U. C. c. 93, s. 6 ; Cooper v. Wellbanks, 14 U.C.C.P. 364 ; Reg. v.
McGregor, 19 U. C. C. P. 69.
OFFENCES AFFECTING GOVERNMENT, ETC. 177
As to public highways in the navigable rivers of this
country, the civil law prevailed in the whole Province of
Quebec until the division thereof in 1792. The 32 Geo. III.,
c. 1, which introduced into the Province of Ontario the law
of England as to property and civil rights, included the
law as to highways on roads and in streams. After the
passing of that Act, the civil law continued applicable to
Quebec. Although, in this Province, we have adopted the
law of England as to public highways, yet as in other cases
of our adoption of English laws, it only prevails here so far
as applicable to the state and condition of this country. It
is obvious that usage from time immemorial, which, in
England, is a material ingredient in determining whether a
river is a highway or not, could not be applied to any of
the inland waters in Ontario, unless presumed in relation
to the wandering tribes who may have roamed through this
part of North America, before its discovery by European
navigators, (dd)
The 32 Geo. III., c. 1, s. 3, superseded the former law of
Canada (or the civil law still prevailing in the Province of
Quebec), and in introducing the common law of England
must be taken proprio vigore to have rendered all navigable
waters, existing at the time of its introduction, publici juris,
and more especially if previously entitled to have been so
regarded under the abrogated law. (e)
This being a newly-discovered country, n'rst occupied
within the period of legal memory, and much of it even
within living memory, in the application of the common
law to it, positive usage immemorially, or from which prior
usage immemorially might be inferred, cannot be necessarv
to render a naturally navigable water-course publici Juris.
When our inland streams are proved to be, in fact and in
their natural state, navigable, they are prima facie public
highways by water. In this light, user or non-user is only
(dd) Reg. v. Meyers, 3 U. C. C. P. 313 et. sea., per Macaiday, C. J
(e) Ibid. 346, per Macaiday, C. J.
178 THE CRIMINAL LAW OF CANADA.
material as auxiliary evidence, contributory to the inquiry
whether a stream was or was not navigable from the be-
ginning ; but it does not therefore follow that it is the only
medium, or an indispensable circumstance in the proof. (/)
In the application of the common law to Ontario, the fact
of the natural capacity of the stream, and not the fact of
usage, is most material to be considered. It must, of course,
be determined by a court and jury, in each case as it arises,
whether a water course ever was, or continued to be, a
public highway, or a navigable stream, in the full and com-
prehensive meaning of the term, and, therefore, a public
easement. The question of law for the court being what
constitutes a public or navigable river, and whether there
was sufficient evidence thereof, or to repel it, the question
of fact for the jury being, whether, according to the data
laid down by the court, and the evidence, it was, in fact, so
navigable, (g)
As to the Province of Ontario, when our territory was
devoted to settlement, the use of all streams practicable for
navigation may be justly considered as dedicated to the
public use, upon the principles of — first, the civil, and after-
wards the common law ; so that, although not pre-occupied
by public use, they are to be looked upon as open to the
public, (ti)
In this country, streams which are not navigable con-
tinuously, but interrupted by occasional rapids, rocks,
shoals, or other natural obstructions, causing what are
called " portages," are, nevertheless, throughout those por-
tions not thus impeded, undoubtedly highways, (i)
Where a portion of water, forming part of Lake Ontario,
at extraordinary periods when the water of the lake was
pressed up at this particular part of it by strong winds,
admitted of scows passing over it, but the water was not
(/) Reg. v. Meyers, 3 U. C. C. P. 347, per Macaulay, C. J.
(H) Ibid. 348, per Macaulay, C. J.
(h) Ibid. 351, per Macaulay, G. J.
(i) Ibid. 352, per Macaulay, G. J.
OFFENCES AFFECTING GOVERNMENT, ETC. 179
more than four or five feet deep, and at ordinary times it was
quite shallow and fordable, it was held that this was not
navigable water, and that the Crown had a right to survey
and lay out a highway through this portion of water. (/)
It is impossible to hold that to be a natural stream or water
course, which could be obstructed by the act of ploughing
and harrowing laud, in the ordinary course of husbandry,
and a ditch in a person's land which may be so obstructed,
is iiot a natural stream or highway. (&)
It was thought that a creek, whose capacity in its natural
state, without improvement, during spring freshets would
not permit logs, timber, etc., to float and pass down, would
not be subject to public use as a navigable river, (/) but in a
case now pending in appeal, (11} it was held that streams
rendered so navigable by improvement were subject to the
public easement.
Navigable rivers are public highways, (m) It would seem
that the rule of the common law of England, as to the flux
and reflux of the tide being necessary to constitute a body of
water navigable, does not apply to our waters ; and it seems
that our large lakes, and navigable rivers, and inland waters
are to be viewed as navigable rivers at the common law. (71)
All rivers above the flow of the tide, which may be used
for the transportation of property, as for floating rafts and
driving timber and logs, and not merely such as will bear
boats for the accommodation of travellers, are highways by
water, and subject to the public use. In determining whether
a river is public or private, its mere capacity during the
spring freshets, or after heavy rains, to float down single
sticks of timber or logs is of itself a very uncertain criterion
of the public or private nature of the river, tor there is no
(j) Rons v. Corporation of Portsmouth, 17 U. C. C. P. 195.
(k) Murray v. Dawson, 19 U. C. C. P. 317, per Girynne, J.
(I) Whelan v. McLachlan, 16 U. C. C. P. 102.
(U) McLaren v. Caldweli, 1881.
(m) Gage v. Bate*, 1 U. C. C. P. 121, per Richards, C. J.; Olivia v.
Bissonnault, S. L. C. A. 524.
(n) Gage v. Bates, 1 U. C. C. P. 121, et seq., per Richards, C. J.
180 THE CEIMINAL LAW OF CANADA.
stream so small but which may at times suffice and be used
for driving down a log or piece of timber, and, therefore, its
breadth and its length and depth at ordinary times, and its
capacity for floating rafts, etc., are proper to be considered, (o)
In Esson v. McMaster (p) it was held that a river which
extended about twenty-eight miles into the country, and had
been long used for navigation of boats and canoes, and for
floating down logs and timber, was a common highway above
where the tide flowed. All rivers above the flowing of the
tide, and whether the property of the river be in the Crown
or in a subject, which afford a common passage, not only for
large vessels but for boats or barges, are, by the principles of
the common law, public highways, (q)
The defendants under their Act of Incorporation, 19 Vic.,
<3. 21, and as assignees of the Canada Company, claimed a
right to erect any works for improving the navigation of the
navigable river Maitland, and to be owners of the bed of the
stream ; but it was held that the powers given for that pur-
pose were distinct from those granted for the purposes of
their railway, and that, admitting the ownership, it was still
subject to the public right, and that any obstruction to the
highway or easement of the river for the purposes of navi-
gation, was indictable as a nuisance, (r)
An indictment will not lie for merely erecting piers in a
navigable river ; it must be laid ad commune nocentum, and
whether it was so or not must be decided by the jury, (s)
Where, on an indictment for a nuisance in obstructing the
North Sydenham River and Queen's highway, by erecting a
•dam near lot 16, 13th concession of Sornbra, the evidence
showed the river in question to be affected by the waters of
the St. Glair — to be navigable much higher up than the
defendant's dam at some seasons, and at all seasons for some
(o) Rowe v. Titus, 1 Allen, 326.
(p) 1 Kerr, 501.
(q) Ibid. 506, per Chipman, C. J. ; see also Perley v. Dibblee, 1 Kerr, 514.
(r) Reg. v. B. <fc L. H. Ry. Co., 23 U. C. Q. B. 208.
(«) Roatv. Corporation of Portsmouth, 17 U.C.C.P. 204, per A. Wilson, ,1.
OFFENCES AFFECTING GOVERNMENT, ETC. 181
miles above it ; that vessels and boats of a certain size had,
before the erection of the dam, passed without obstruction
to a point higher up the river thar the part where the dam
was erected, though it did not appear to have been used tx>
any great extent higher up the river than what was called
the Head of Navigation, a point below the darn : the court
held that upon such evidence the jury were warranted in
finding the stream to be a public navigable water-course, (t)
It would seem that the English rule that the land covered
by the waters of rivers, above the flux of the tide, belongs to
the riparian proprietors does not prevail here. In our waters
the grant extends to the water's edge, and the land covered
with water and ungranted is the property of the Crown, (u}
subject to the right of the public to pass over the water in
boats, and to fish and bathe therein, (v)
In an action for obstructing a river by erecting a mill-dam,
it is not a proper question for the jury whether the benefit
derived by the public from the mill is sufficient to outweigh
the inconvenience occasioned by the dam. (w) The provisions
of Magna Charta and other early statutes which prohibited
weirs apply only to navigable rivers, (x) Weirs in such rivers
are illegal, unless they existed before the time of Ed. I. (y)
The 5 & 6 Wm. IV., c. 50, s. 72, which imposes a penalty
on any person riding or driving by the side of any road, only
applies to footpaths by the side of roads, and not to footpaths
in general, (z)
Under 27 & 28 Vic., c. 101, s. 25, the owner is liable to a
penalty if cattle, sheep, etc., are found straying along any
highway, notwithstanding they are under the control of a
keeper at the time, (a)
(t) Reg. v. Meyers, 3 U. C. C. P. 305.
(«) Parker v. Elliott, 1 U. C. C. P. 489, per SuUivan, J. •
(v) Attorney General v. Perry, 15 U. C. <J. P. 329 ; see, however, Founwr
and Olivia, S. L. C. A. 427.
(w) Rovx. v. Titus, 1 Allen, 326.
(x) Leconfitld v. Lonsdak, L. R. 5 C. P. 657.
(y) Rolk and Whytf, L. R. 3 Q. B. 64.
(z) Reg. v. Pratt, L. R. 3 Q. B. 64.
(a) Lawrenc" and King, L. R. 3 Q. B. 345.
182 THE CRIMINAL LAW OF CANADA.
Three magistrates forming a part of the Court of Sessions,
by whom the return of a precept issued under c. 62 of the
revised statutes (N. B.) for laying out a road is to be decided,
are not the three disinterested freeholders contemplated by
that Act. (6)
The laying out of a public highway by commissioners of
highways under the Act 5 Wm. IV., c. 2, does not become
invalid by reason of the neglect of the commissioners to
deliver a return of such laying out within three months to
the clerk of the peace, as directed by the 15th section, this
being only a directory provision, (c)
A municipality prosecuting an indictment for obstructing
a highway is " the party aggrieved" within the 5 & 6 Wm.
IV., c. 11, s. 3. (d)
On an indictment for nuisance to a highway, if the facts
show it to be a proceeding substantially for the trial of a
civil right, the defendants may consent that the prosecutor
select three or four of them, and proceed only against the
latter, the other defendants entering into a rule to plead
guilty if those on trial are convicted. This course may be
adopted to prevent the charges of putting them all to
plead, (dd)
The Provincial Attorney-General is the proper person to
file an information in respect of a nuisance caused by inter-
ference with a railway, (e}
A party cannot justify as agent of another for maintaining
a public nuisance. (/) But an agent merely to let or receive
rents of premises is not liable for nuisance upon the same.
The case, may, however, be different where the agent is
clothed with power to let, repair, and in all respects act as
owner, (g) If the nuisance existed at the time of letting,
(b) }teg. v. Chipman, 1 Thomson, 292.
(c) Brown v. McKeel, 1 Kerr, 311.
(d) Reg. v. Cooper, 40 U. C. Q. B. 294.
(dd) Whelan v. Reg., 28 U. C. Q. B. 53, per A. Wilson, J.
(e) Attorney General v. Niagara Falls hiter. Bridge Co., 20 U. C. Ohy. 34.
(/) Reg. v. Brewster, 8 U. C. C. P. 208.
/0) Reg. v. Osier, 32 U. C. Q. B. 324.
OFFENCES AFFECTING GOVERNMENT, ETC. 183
*t »oth tenant and owner are liable ; if after the tenancy, only
the tenant, (h)
An indictment- will lie against the corporation of a rural
nmncipality for non-repair of a highway, although it is a front
road, of which each proprietor is bound to repair his frontage.
But in such case, where the corporation, after conviction,
causes the road to be repaired, a merely nominal fine will be
imposed, and costs, will not be awarded in favor of the prose-
. cutor. (i)
Where a corporation is bound by public law to repair a
highway, it is sufficient in an indictment for not repairing
to allege that the defendants " ought of right " to repair, etc.,
without setting out the particular ground of liability. (/)
An indictment which alleged that " the defendants or some
or one of them " had put up, etc., was held bad for uncer-
tainty, (k) And an allegation that a nuisance was near a
certain lot, when the evidence showed it to be an it, was held
a fatal variance. (/) This could now probably be amended
under the 32 & 33 Vic., c. 29, s. 71.
Although a proceeding by indictment for a nuisance is
criminal in form, the same evidence that would support a
civil action for an injury arising from the nuisance will sup-
port the indictment, (m)
In Reg. v. Rose (n) it was held that the minutes of the
boundary line commissioners produced in the case could not
be considered a judgment within the meaning of 3 Vic., c.
11, and that the defendant should therefore have been per-
mitted to give evidence contradicting such minutes. The
second section of this Act, which provides that every such
judgment shall be filed, is directory only, and the omission
to file will not affect the validity of the judgment. In New
Brunswick, under the 5 Wm. IV., c. 2, the return of the
(k) Reg. v. Oskr, 32 U. C. Q. B. 324.
(i) Reg. v. Corporation of St. Saviour, 3 Q. L. R. 283.
(j) Reg. \. Mayor of St. John, Stev. Dig. 398.
(i) Attorney General v. Boulton, 20 U. C. Chy. 402.
(t) Reg. v. Meyers, 3 U. C. C. P. 305.
(m) Reg. v. Stephen*, 2 U. C. L. J. N. S. 223 : 14 W. R. 859.
(n) 1 U. C. L. J. 145.
184 THE CRIMINAL LAW OF CANADA.
commissioners of highways properly made and tiled is evi-
dence of the laying out of the street, (o)
A conviction for nuisance to a highway is conclusive
against the defendant as to the existence of such highway,
and he cannot again raise the question on an indictment for
obstructing another part of the same highway, (p)
It was doubtful whether, after an indictment for nuisance
to a highway had been removed by certiorari, and tried at
the assizes upon a nisi prius record, and the defendants found
guilty, on a motion afterwards made in term for judgment
upon the conviction, the court could, under the 19 Vic., c. 43,
s. 31 6, give judgment out of term, (q)
After a verdict of acquittal on an indictment for nuisance
in obstructing a highway, tried at a Court of Oyer and
Terminer, the court will refuse a certiorari to remove the
indictment, with a view of applying for a new trial, or to
stay the entry of judgment so that a new indictment may
be prepared and tried without prejudice, and this though
the motion is made on the part of the Crown with the assent
of the Attorney General, (r) But the court will arrest the
judgment on an indictment for nuisance, so that a new in-
dictment may be preferred, (s)
After a verdict of acquittal on an indictment for nuisance
tried at the assizes, a motion was made with the concurrence
of the Attorney General, for a certiorari to remove the in-
dictment, with a view to obtain a new trial, but no ground
was shown by affidavit, and the new trial was moved for on
the same day, being the fourth day of term ; it was held that
there was nothing to warrant the ordering of a certiorari, and
that the motion for a new trial could not be entertained until
the court were in possession of the record, (t) When the
(o) Reg. v. McGowan, 1 Pugsley & B. 191.
(p) Reg. v. Jackson, 40 U. C. Q. B. 290.
(q) Reg. v. O. T. R. Co., 17 U. C. Q. B. 165, per Rolnmon, C. J. ; see also
29 & 30 Vic., c. 40, s. 4, at seq.
(r) Reg. v. Whittier, 12 U. C. Q. B. 214.
(«) Reg. v. Rose, 1 U. C. L. J. 145 ; Reg. v. Spence, 11 U. C. Q. B. 31.
(t) Reg. v. Gzowski, 14 U. C. Q. B. 591.
OFFENCES AFFECTING GOVERNMENT, ETC. 185
case is tried at the assizes, the motion for a new trial need
not be made within the first four clays of the ensuing term,,
for the rule of practice requiring a party to move for a new
trial within the first four days of a term only applies when
the trial has been on record emanating from this court, (u)
Obstructing the execution of public justice. — A person who
resists, assaults, or otherwise obstructs a constable or other
peace officer in the .execution of his duty, is liable to an in-
dictment, (v) And the fact that the defendant did not know
that the person assaulted was a peace officer, or that he was
acting in the execution of his duty, furnishes no defence, (w)
It is sufficient that the constable was actually in the execu-
tion of his dury at the time of the assault, (x)
Eefusing to aid and assist a constable in the execution of
his duty, in order to preserve the peace, is an indictable misde-
meanor at common law. In order to support such indictment
it must be proved that the constable saw a breach of the
peace committed ; that there was a reasonable necessity for
calling on the defendant for his assistance ; and that, when
duly called on to do so, the defendant, without any physical
impossibility or lawful excuse, refused to do so. It is no-
defence that the single aid of the defendant could have been
of no avail, (y)
But an indictment for refusing such aid, and to prevent an
assault made upon him by persons in his custody, with intent
to resist their lawful apprehension, need not show that the
apprehension was lawful, nor aver that the refusal was on
the same day and year as the assault, or that the assault
which the defendant refused to prevent was the same as
that which the prisoner made upon the constable ; neither is
it any objection that the assault is alleged to have been made
(u) Ibid. 592, per Robinson, C. J.
(v) Reg. v. McDonald, 4 Allen, 440.
(w) Reg. v. Forbes, 10 Cox, 362.
(x) Ibid.
(y) Reg. v. Brown, 0. & Mar. 314 ; Arch. Cr. Pldg. 684-5.
186 THE CRIMINAL LAW OF CANADA.
with intent to resist their lawful apprehension by persons
already in custody, (z)
Before a party can be guilty of the offence of obstructing
an officer in the execution of his duty, the latter must be
acting under a proper authority, (a)
But if the process is regular, and executed by a proper
officer, an obstruction, even by a peace officer, will be illegal
on the established principle that if one having a sufficient
authority issue a lawful command, it is not in the power of
any other, having an equal authority in the same respect, to
issue a contrary command, as that would legalize confusion
and disorder, (b)
In an indictment for obstructing an officer of excise, under
27 & 26 Vic., c. 3, the omission in the indictment of the
averment that, at the time of the obstruction, the officer was
acting in the discharge ol his duty, " under the authority of
27 & 28 Vic., c. 3," is not a defect of substance, but a formal
defect, which is cuied by verdict, (c) Where the indictment
is under ss. Ill and 112, for obstruction by threats of force
and violence, it is not necessary to set out the threats in the
indictment, for the gist of the offence is not the meaning of
the words, but the effect produced by them — namely, the
obstruction, (d)
And where a revenue officer, in seizing a distillery, had
also seized the outbuildings belonging to the same premises,
and the proprietor entered them by force, and in doing so
injured one of the employees of the Government ; it was
held that the proprietor had a right to enter, and that by
force if necessary, and that in doing so he had committed no
offence against the Government, (e)
Disobeying an order made by justices of the peace, at their
sessions, in due exercise of the powers of their jurisdiction,
(z) Reg. v. Sherlock, L. R. 1 C. C. R, 20 ; 35 L. J. (M. C.) 92.
(a) Russ. Or 570 ; Rex v. Osmer, 5 Ea. 304.
(6)Russ. Cr. 571.
(c) Spelman v. Reg., 13 L. C. J. 154.
(d) Ibid. 154, per Drummond, J.
(e) Reg. v. Spelman, 2 Revue Leg. 709.
AFFKCTIM; UOVEKNMEXT, ETC. 187
is an indictable offence. (/) And, on the same principle, if
an Act of Parliament give power to the Queen in Council to
make a certain order, and annexes no specific punishment to
the disobeying it, such disobedience is nevertheless an in-
dictable offence, punishable as a misdemeanor at common
Inw. (g) So disobedience to an order of one or more justices
is an offence punishable by indictment at common law. (h)
Every person mentioned iu the order, and required to act
under it, should, upon its being duly served upon him, lend his
aid to carry it into effect, (i)
Escapes. — An escape is where one who is arrested gains his
liberty, by his own act, or through the permission or negli
gence of others, before he is delivered by the course of the
law. (j) If the escape is effected by the party himself, with
force, it is usually called prison breach ; if effected by others,
with force, it is commonly called a rescue, (k) If a party iu
the custody of the law secure his own escape, though without
force, he is guilty of a high contempt, and punishable by tim-
and imprisonment. (/) If a prisoner go out through an open
door of his gaol, without using any force or violence, he is guilty
of a misdemeanor ; and it seems any person aiding him in such
escape is punishable as for a misdemeanor at common law. (m)
In order that an officer may be liable for an escape, the
party must be actually arrested, and legally imprisoned for
some criminal matter, (n) The imprisonment must also be
continuing at the time of the escape, and its continuance
must be grounded on that satisfaction which the public jus-
tice demands for the crime committed, (o) A voluntary
(/) Rey. v Russdl, 5 U.C.L.J.N.S. 132, per Cockburn, C. J. ; 17 W. R.
402 ; Russ. Cr. 573 ; Rex v. Robinson, 2 Burr. 799-800.
(g) Rex v. Harris, 4 T. R. 202 ; 2 Leach, 549.
(A) R<ix v. Balme, Cowp. 650 ; Rex v. Fear a ley, 1 T. R. 316 ; Reg. v. Gould,
1 Salk. 381 ; Russ. Cr. 574.
(t) Ibid. 575 ; Rex v. Gash, 1 Starkie, 41.
(» Russ. Cr. 581.
(t) Ibid.
(I) Ibid.
(m) Ibid.; Reg. v. Allan, 1 C. & Mar. 295.
(j») Russ. Cr. 582.
(o) Ibid. 583.
188 THE CRIMINAL LAW OF CANADA.
escape is where an officer, having the custody of a prisoner,
charged with and guilty of a capital offence, knowingly gi.ves
him his liberty, with intent to save him either from his trial
or execution. By this offence, the officer is involved in the
guilt of the same crime of which the prisoner is guilty, and
for which he was in custody. A negligent escape is where
the party arrested or imprisoned escapes against the will of
him that arrests or imprisons him, and is not freshly pursued,
and taken again, before he has been lost sight of. (p)
In the case of a voluntary escape, the officer has no more
right to retake the prisoner than if he had never had him in
his custody ; but in case of negligent escape, if the party
make fresh pursuit he may retake the prisoner at any time
afterwards, whether he finds him in the same or a different
county.
Where a prisoner, charged with a misdemeanor, after ex-
amination of witnesses, was verbally remanded until the
following day, in order to procure bail or in default to be
committed, and on that day the defendant negligently per-
mitted him to escape, for which he was convicted, it was held
that the prisoner was not in the custody of the defendant
merely for the purpose of enabling him to procure bail, but
under the original warrant, and the matter still pending be-
fore the magistrates, until finally disposed of by commitment
to custody, or discharged on bail, and that the conviction was
proper, (q)
It is the duty of the sheriff of the county in which a city
is, and not of the high bailiff of such city, to convey to the
penitentiary prisoners sentenced at the Recorder's Court, (r)
It seems that from the moment a prisoner is arrested,
until he has actually expiated his offence by serving the
full time of imprisonment, he is in the custody of the law
for the purposes of the foregoing offences, and a person in
(p) RUBS. Or. 583-4.
(q) Reg. v. Shuttleworth, 22 U. 0. Q. B. 372.
(r) Glass v. Wigmore, 21 U. C. Q. B. 37.
OFFENCES AFFECTING GOVERNMENT, ETC. 189
any way aiding in his escape, before full atonement made,
becomes particeps criminis. (s)
Prison breach seems now to be an offence of the same
degree as that for which the party was confined, (t) Im-
prisonment is no more than a restraint of liberty, and any
place, in which a party may be lawfully confined is a prison
within the statute, 1 Edward II., stat. 2, for it extends to a
prison in law as well as a prison in deed, (u) There must
be an actual breaking of the prison and not such force and
violence only as may be implied by construction of law. (v)
The breaking need not be intentional ; (w) but it must not
be from the necessity of an inevitable accident happening
without the contrivance or fault of the prisoner, (x)
The Prison Act, 1865, 28 & 29 Vic., c. 126, s. 37, which
prohibits the conveyance into any prison, with intent to
facilitate the escape of a prisoner, of certain articles or
" any other article or thing," includes a crowbar under the
latter words, (y)
Parliamentary offences. — Members of either House of Par-
liament are not criminally liable for any statements made in
the House, nor for a conspiracy to make such statements, (z)
An order for an attachment against a member of parlia-
ment is illegal and may be set aside, though no proceedings
have been taken upon it, by the issue of the process or
otherwise, (a) So the writ may be set aside before the
defendant is actually arrested upon it. (6) A member of
parliament was not liable for the penalty imposed by the
Con. Stat. Can., c. 3, s. 7, for sitting and voting without
having the property qualification required by law. The
penalty was only exigible from a person whose incapacity to
(*) Russ Cr. 607.
(0 1 Edward IL, Stat. 2.
(«} Rnss. Cr. 592.
(v) Ibid. 594.
(tc) Rex v. Haswll, Russ. A; Ry. 458.
(1) Russ. Cr. 594.
(y) Reg. v. Payne, L. R. 1 C. C. R. 27 ; 35 L. J. (M. C.) 170.
(2) Ex parte Wa*on, L. R. 4 Q. B. 573.
(a) Reg. v. Gamble, 1 U. C. P. R, 222.
<6) Ibid.
190 THE CRIMINAL LAW OF CANADA.
become a member was decreed by s. 5, and whose election is
radically null and void, (c) Members of provinicial parlia-
ments are privileged from arrest in civil cases for a period
of forty days, after the prorogation or dissolution of parlia-
ment and for the same period before the next appointed
meeting, (d) They have the same privileges in this respect
as members of parliament in England, (e) But this privi-
lege of exemption from arrest only extends to civil matters.
In cases of treason, felony, refusing to give surety of the
peace, all indictable offences, forcible entries or detainers,
libels, printing and publishing seditious libels, process to
enforce habeas corpus, contempts for not obeying civil process
if that contempt is in its nature or its incidents criminal,
and generally in all criminal matters there is no privilege
of exemption from arrest. (/) A member of a provincial
parliament held at Quebec, the place where he is resident,
arrested eighteen days after its dissolution for " treasonable
practices," and during his confinement elected a member of
a new parliament, is not entitled to privilege from such
arrest by reason of his election to either parliament, (g)
On motion for a writ of habeas corpus to produce the body
of a person claiming exemption from arrest on the ground
of the privilege of parliament, two papers purporting to be
two indentures of election are not sufficient evidence of his
being such member, to warrant the granting of the writ, (h)
After conviction for breach of privilege, in case of libel,
the court will not notice any defect in the warrant of com-
mitment, (i]
A prisoner committed by the House of Assembly to the
(c) Morasse v. Guevremont, 5 L. C. J. 113.
(d) Wadsworth v. Boulton, 2 Chr. Rep. 76 ; Rennie v. Rankin, 1 Alleli,
620 ; Reg. v. Gamble, 9 U. C. Q. B. 546.
(e) Reg. v. Gamble, supra ; but see CulvUlter v. Munro, 4 L. C. R. 146.
(/} Reg. v. Gamble, 9 U. C. Q. B. 552, per Draper, C. J. ; Lord Welleslcy'*
case, Russ. and M. 639.
(g) ReBedard, S. L. C. A. 1.
(h) Ibid.
(t) Re Tracy, S. L. C. A. 478.
OFFENCES AFFECTING GOVERNMENT, ETC. 191
common gaol " during pleasure " is discharged by proroga-
tion. (/)
Courts of law cannot inquire into the cause of commit-
ment by either House of Parliament, nor bail, nor discharge a
person who is in execution by the judgment of any other
tribunal ; yet if the commitment should not profess to be for
a contempt, but is evidently arbitrary, unjust and contrary
to every principle of positive law or natural justice, the court
is not only competent but bound to discharge the party, (k)
The courts have power to issue writs of habeas corpus in
matters of commitment by either House of Parliament, and
the commitment may be examined upon the return to the
writ. (0
Conspiracy to intimidate a provincial legislative body is
made felony by 31 Vic., c. 71, s. 5.
(j) Ex parte Monk, S. L. C. A. 120.
(k) Ex parte Lavoie, 5 L. C. R. 99.
(I) Ibid.
192 THE CRIMINAL LAW OF CANADA.
CHAPTER IV.
OFFENCES AGAINST THE PERSON.
Murder. — Where a person of sound memory and discretion
unlawfully killeth any reasonable creature in being, and
under the Queen's peace, with malice aforethought, either
express, or implied by law, the offence is murder, (a)
Malice is a necessary ingredient in, and the chief character-
istic of, the crime of murder. (&) The legal sense of the
word malice as applied to the crime of murder is somewhat
different from the popular acceptation of the term. When
an act is attended with such circumstances as are the ordin-
ary symptoms of a wicked, depraved and malignant spirit, a
heart regardless of social duty, and deliberately bent upon
mischief, the act is malicious in the legal sense, (c) In fact*
malice, in its legal sense, means a wrongful act done inten-
tionally, without just cause or excuse, (d) In general any
formed design of doing mischief may be called malice, and,
therefore, not such killing only as proceeds from premeditated
hatred or revenge against the person killed, but also in many
other cases, such killing as is accompanied with circum-
stances that show the heart to be perversely wicked is
adjudged of malice prepense and consequently murder, (e)
Malice is either express or implied. Express malice is
when one person kills another with a sedate, deliberate mind
and formed design, and malice is implied by law from any
deliberate cruel act committed by one person against another,
however sudden. (/)
(a) Arch. Cr. Pldg. 623.
(b) See Re Anderson, 11 U. C. C. P. 62, per Richards, C. J.
(c) Russ. Cr. 667.
(d) Mclntyre v. McBean, 13 U.C.Q.B. 542, per Robinson, C. J. ; Poitwin
v. Morgan, 10 L. C. J. 97, per Badgley, J.
(e) Russ. Cr. 667.
(/) Ibid..
MURDER. 193
On every charge of murder, where the act of killing is
proved against the prisoner, the law presumes the fact to
have been founded in malice, until the contrary appears, (g]
The onus of rebutting this presumption, by extracting facts
on cross-examination or by direct testimony, lies on the
prisoner, (h)
Persons present at a homicide may be involved in dif-
ferent degrees of guilt ; for where knowledge of some fact is
necessary to make a killing murder, those of a party who
have the knowledge will be guilty of murder, and those who
have it not of manslaughter only. A felonious participation
in the act without a felonious participation in the design will
not make murder. Thus if A. assault B. of malice, and they
fight, and A.'s servant come in aid of his master, and B. be
killed, A. is guilty of murder, but the servant, if he knew
not of A.'s malice, is guilty of manslaughter only, (i)
The person committing the crime must be a free agent, and
not subject to actual force at the time the act is done. Thus
if A. by force take the arm of B., in which is a weapon, and
therewith kill C., A. is guilty of murder but not B. But a
moral force, as a threat of duress or imprisonment, or even an
assault to the peril of life, is no legal excuse. (/) But if A
commit the act through an irresponsible agent, as an idiot or
lunatic, A. is guilty of murder as a principal, (k)
Murder may be committed upon any person within the
Queen's peace ; and consequently to kill an alien enemy
within the kingdom, unless in the heat and actual exercise
of war, is as much murder as to kill a regular-born British
subject. (/)
While an infant is in its mother's womb, and until it is
actually born, it is not considered such a person as can be
(g) Reg. v. McDowell, 25 U. C. Q. B. 112, per Draper, C. J. ; Reg. v.
Atkinson, 17 U. C. C. P. 304, per J, Wilson, J.
(A) Ibid.; Ross. Cr. 669.
(t) Russ. Cr. 669.
(j)Ibid.
(k) Ibid.
(I) Ibid. 670.
194 THE CRIMINAL LAW OF CANADA.
killed within the description of murder, (m) If a woman is
quick with child and any person strike her, whereby the
child is killed, it is not murder or manslaughter. By the 32
6 33 Vic., c. 20, s. 59, the unlawfully administering poison,
or unlawfully using any instrument, with intent to procure
miscarriage, is made an offence of the degree of felony, and,
by s. 60, whoever unlawfully supplies or procures any drugs
or other noxious thing for such purpose is guilty of a mis-
demeanor. A child must be actually born in a living state
before it can be the subject of murder, (n) and the fact of its
having breathed is not conclusive proof thereof. (0) There
must be an independent circulation in the child before it
can be accounted alive, (p) But the fact of the child being
still connected with the mother by the umbilical cord will
not prevent the killing from being murder, (q)
The killing may be effected by shooting, poisoning, starv-
ing, drowning or any other form of death by which human
nature may be overcome, (r) But there must be some ex-
ternal violence or corporal damage to the party, and if a
person, by working upon the fancy of another, or by harsh
and unkind usage, puts him into such passion of grief or
fear that he dies suddenly, or contracts some disease which
causes his death, the killing is not such as the law can
notice, (s) But it has been held in the Province of Quebec
that death caused from fear arising from menaces of personal
violence and assault, though without battery, is sufficient in
law to support an indictment for manslaughter, (t)
No act whatsoever shall be adjudged murder unless the
person die within a year and a day from the time the stroke
(m) Russ. Cr. 670 et seq.
(n) Reg. v. Poulton, 5 C. & P. 329.
(o) Reg. v. Sellis, 7 C. & P. 850 ; 1 Mood. C. C. 850 ; Reg. v. Crutchley,
7 C. & P. 814.
(p) Reg. v. Enoch, 5 C. & P. 539 ; Reg. v. Wright, 9 C. & P. 754.
(a) Reg v. Crutchley, supra; Reg. v. Reeves, 9 C. & P. 25 ; Reg. v.
Trilloe, 2 Mood. C. C. 26» ; Arch. Cr. Pldg. 625-6.
(r) Russ. Cr. 674.
(«) Ibid,
(t) Reg. v. McDougall, 4 Q. L. R. 350.
MURDER. 195
was received or cause of death administered, in the compu-
tation of which the whole day on which the stroke was
administered is reckoned the first, (u)
If a man has a disease which, in all likelihood, would
terminate his life in a short time, and another gives him a
wound or hurt which hastens his death, this will constitute
murder, for to accelerate the death of a person is sufficient, (v)
So if a man is wounded, and the wound turns to a gangrene
or fever from want of proper applications or from neglect,
and the man dies of the gangrene or fever, or if it becomes
fatal from the refusal of the party to submit to a surgical
operation ; (w) this is also such a killing as constitutes
murder, but otherwise if the death of the party were caused
by improper applications to the wound, and not by the
wound itself, (x)
If a person, whilst doing or attempting to do another act,
undesignedly kill a man, if the act intended or attempted
were a felony, the killing is murder ; if unlawful but not
amounting to felony, the killing is manslaughter. If a man
stab at A. and by accident strike and kill B., it is murder ; (y)
and if A., intending to murder B., shoot at and wound C.,
supposing him to be B., he is guilty of wounding C. witli
intent to murder him, for he intends to kill the person at
whom he shoots. (2)
When a man has received such a provocation as shows that
his act was not the result of a cool, deliberate judgment and
previous malignity of heart, but was solely imputable to
human infirmity, his offence will not be murder, (a) But mere
words or provoking actions or gestures expressing contempt
• T reproach, unaccompanied with an assault upon the person,
will not reduce the killing from murder to manslaughter.
(M) Russ. Cr. 700.
(r) Arch. Cr. Pldg. 625 ; R*<j. v. Martin, 5 C. & P. 130.
(ic) Rtg. \. Holland, 2 M. & Rob. 351 ; see also R>-g. v. Flunn. 16 W. R.
319.
(x) Arch. Cr. Pldg. 625.
(y) Reg. v. Hunt, 1 Mood. C. C. 93 ; Arch. Cr. Pldg. 635.
(z) Rfjj. v. Smith, 2 U. C. L. J. 19 ; Dears. 559 ; 25 L. J. (M. C.) 29.
196 THE CRIMINAL LAW OF CANADA.
though if immediately upon such provocation the party pro-
voked had given the other a box in the ear, or had struck
him with a stick or other weapon not likely to kill, and had
unfortunately and contrary to his expectation killed him, it
would only be manslaughter. (J) The giving of repeated
blows with a heavy stick would furnish some evidence of
malice.
By the light of modern authorities, all questions as to
motive, intent, heat of blood, etc., must be left to the jury
and should not be dealt with as propositions of law. (c)
P. (the prisoner) and D. (deceased) being brothers, were
in the house of the latter, both a little intoxicated. D. struck
his wife, and on P. interfering, a scuffle began. While it was
going on D. asked for the axe, and when they let go, P. went
out for it and gave it to him, asking what he wanted with it,
D. raised it as if to strike P., and they again closed, when the
wife hid the axe. When she came back P. was on the
deceased choking him. The wife then pulled P. off. P. then
got up, pulled off his coat, arid went outside and squared
himself and asked deceased to come out and fight, and said
he was cowardly. Deceased went on to the doorstep and
caught hold of the prisoner. They grappled and deceased
fell undermost, prisoner on him. While the scuffle was going
on D. struck P. twice. On getting up P. kicked him on the
side and arm, and then ran across the garden, got over a
brush fence into the road and dared D. three times to come
on, saying the last time that he would not go back the same
way as he came. D. seized a stick from near the stove, which
had been used to poke the fire with, and ran towards P. In
trying to cross the fence he fell to his knees, and P. came
forward and took the stick out of his hand. He got up, and
as he went over the fence towards P., the latter struck him
on the head with it. The wife entreated him to spare her
husband, but he struck him a second time when he fell,
(a) See Russ. Cr. 711 et scq.
(6) Reg. v. McDowell, 25 U. C. Q. B. 112, per Draper, C. J.
(<-\ JUd. 115, per Draper, C. J.; Reg. v. Eagle, 2 F. & F. 827.
MURDER. 197
and again while on the ground, from which he never rose.
P., in answer to the wife, said D. was not killed, and refused
to take him in, saying, " Let him lie there till he comes to
himself." P. and deceased had lived on friendly terms as
brothers should, except when under the influence of liquor.
It was held that the evidence was sufficient to go to the jury
to establish a charge of murder ; that if the death had been
caused by the kicks received before leaving the house, the
circumstances would have repelled the conclusion of malicer
and the jury should have been so directed ; but that whether
what took place at the fence was under a continuance of the
heat and passion created by the previous quarrel, was under
the circumstances a question for the jury, and was to be
determined by their finding or negativing malice, (d]
Killing in a sudden quarrel, where the circumstances afford
no ground for inferring malice, generally amounts to man-
slaughter only, but there are many authorities which establish
that, in the case of a sudden quarrel, when the parties
immediately fight, there may be circumstances indicating
malice in the party killing, when the killing will be murder, (e)
A married woman having become pregnant by the prison-
er, and having herself unsuccessfully endeavored to procure
a poison, in order to produce abortion, the prisoner, under
the influence of threats by the woman of self-destruction
if the means of producing abortion were not supplied to her,
procured for her a poison, from the effects of which, having
taken it for the purpose aforesaid, she died. The prisoner
neither administered the poison, nor caused it to be admin-
istered, nor was he present when it was taken, but he pro-
cured and delivered it to the deceased, with a knowledge of
the purpose to which the woman intended to apply it, and
he was accessory before the fact to her taking it for that
purpose. It was held that the prisoner was not guilty of
murder. (/)
(d) Reg. v. McDowell, 25 U. C. Q. B. 108.
(e) Ibid. 114, per Draper, C. J.
(/) Jfey. v. Fretwell, 9 U. C. L. J. 138 ; L. & C. 161 ; 31 L- J. (M. C.)
145 ; see 32 & 33 Vic., c. 20, s. 60.
198 THE CRIMINAL LAW OF CANADA.
Where, on an indictment for murder, the evidence of the
medical man who examined the body went to show that
he had not at all examined the brain, and that he exam-
ined the organs of the abdomen without cutting into any
of them ; that the fact of his having found the common
carotid artery and jugular vein severed, left him in no
doubt but that such severance had caused the death. Being
asked, on cross-examination, if he had examined the cavity
of the head — might not such examination have revealed
some other cause of death ? he replied : " There might have
been, but the probabilities are against it."
It was contended that the Crown was bound to give the
best evidence the case admitted of as to the cause of death,
and that, in the present advanced state of medical science,
the Crown should have placed itself, by medical exami-
nation of the brain, in a position to negative, beyond all
reasonable doubt, the hypothesis of death from any other
cause than that alleged ; but the court held that the evi-
dence was sufficient to justify a conviction, (g)
It was formerly necessary, in an indictment for murder,
to set forth the manner in which, or the means by which,
the death of the deceased was caused ; and where an in-
dictment charged the prisoner, being the mother of an
infant of tender age, and unable to take care of itself, with
feloniously placing it upon the shore of a river, in an
exposed situation, where it was liable to fall into the water,
and abandoning it there, with intent that it should perish,
by means of which exposure the child fell into the river,
and was suffocated and drowned, of which suffocation, etc.,
the child died ; it was held that, to support the indictment,
it was necessary to prove that the death was caused by
drowning or suffocation, (h)
The 32 & 33 Vic., c. 20, s. 6, uow provides that it shall not
be necessary, in any indictment for murder or manslaughter,
.(g) Reg. v. Downey, 13 L. C. J. 193.
(h) Reg. v. Fennety, 3 Allen, 132.
MANSLAUGHTER. 199
to set forth the manner in which or the means by which
the death of the deceased was caused ; but it shall be sufficient,
in any indictment for murder, to charge that the defendant
did feloniously, wilfully, and of his malice aforethought, kill,
and murder the deceased ; and it shall be sufficient in any
indictment for manslaughter, to charge that the defendant
did feloniously kill and slay the deceased.
It is necessary, in an indictment for murder, to state that
the act by which the death was occasioned was done feloni-
ously, and especially that it was done of malice aforethought,
and it must also be stated that the prisoner murdered the
deceased, (i)
The word " murder" in the indictment is emphatically a
term of art, (j ) and it would be insufficient, in an indictment
for murder, to state that the party did wilfully, maliciously,
and feloniously, stab and kill, because it is equally indispensa-
ble to use the artificial term " murder" as it is to state that
the offence was committed of '' malice aforethought." The
omission of either one of these expressions would render the
prisoner liable to a conviction for manslaughter only. (&)
In an indictment for wounding, with intent to murder, the
offence must be charged to have been committed by the
prisoner wilfully, maliciously, and of his malice aforethought,
and judgment would formerly have been arrested where the
indictment was defective in this respect. (/) "Whether such
omission would not now be aided by verdict is questionable.
The punishment of murder is death, (ra) The 32 & 33 Vic.,
c. 29, s. 106, and following sections, prescribe the manner in
which sentence of death is to be executed.
Manslaughter. — The general definition of manslaughter is
the unlawful and felonious killing of another, without any
malice either express or implied, (n) It is of two kinds : —
(») Re Anderson, 11 U. C. C. P. 62, per Richards, C. J. ; see also 32 4; 33
Vic., c. 29, s. 27, and sched. A.
(j) Ibid. 69.
(k) Ibid. 53.
(H Kerr v. Reg., 2 Rev. Critique, 238.
(m)32& 33 Vic., c. 20, s. 1.
(n) Re Anderson, 11 U. C. C. P. 63, per Richards, J.
200 THE CRIMINAL LAW OF CANADA.
(1) Involuntary manslaughter, where a man doing an un-
lawful act, not amounting to felony, by accident kills another,
or where a man, by culpable neglect of a duty imposed upon
him, is the cause of the death of another. (2) Voluntary
manslaughter is where, upon a sudden quarrel, two persons
fight, and one of them kills the other, or where a man greatly
provokes another, by some personal violence, etc,, and the
other immediately kills him. (o)
Manslaughter is distinguished from murder in wanting the
ingredient of malice ; and it may be generally stated th at
where the circumstances negative the existence of malice, in
the legal sense, and the killing is unlawful and felonious, it
will amount to manslaughter.
In a case where the deceased, who complained of being
robbed, suddenly, and without authority or license, entered
the house where the prisoner lodged. The latter was in a
bed-room below stairs, not armed with any deadly weapon,
but having the fragment of a brick, and the back of a chair,
in his hands. Immediately on the entry of the deceased the
prisoner retreated up stairs, and the deceased asked the
prisoner, who was then at the top of the stairs, if he had got
his (deceased's) money, to \vhich the prisoner replied : " If
you come bothering me about your money, I will do some-
thing to you," and immediately threw out of his hand a piece
of iron, several ieet long, being the handle of a frying pan,
which struck the deceased on the head, and fractured his
skull. The whole transaction occupied only a few seconds,
and was done in passion. In the opinion of the judges, this
was only a case of manslaughter. ( p)
The general doctrine seems well established, that that
which constitutes murder, when of malice aforethought,
constitutes manslaughter when arising from culpable negli-
gence, (q) And it would seem that the doctrine of con-
to) Arch. Cr. Pldg. 623.
(p) Reg. v. Kennedy, 2 Thomson, 203. »
(q) Reg. v. Hughes, 3 U. C. L. J. 153 ; 29 L. T. Rep. 266 ; Dears. & B.
248; 26 L. J. (M. C.) 202.
MANSLAUGHTER. 201
tributory negligence cannot apply so as to justify the
prisoner, (r)
It is culpable negligence for one who has a right to turn
out horses on a common, intersected by public paths, which
he knows are unenclosed, to turn out a vicious horse, know-
ing the propensities of the animal to kick, so that it may
kick persons passing along or close to the paths on the
common ; and where a child, standing upon a common, close
to a public path, was kicked by a vicious horse so turned
out, and death ensued, the prisoner, who turned him out,
was held guilty of manslaughter. It would seem that if
the child, at the time she was kicked, had been upon a part
of the common more remote from. the path, the prisoner's
offence would have been the same, (s)
And where three persons were guilty of a breach of duty
in tiring at a mark without taking proper precautions, all
three were held guilty of manslaughter, a boy having been
killed by a shot from one of them, (t)
But in order to render a person liable to the charge of
manslaughter for the act of another, there must be some
sort of active proceeding on his part. He must incite, pro-
cure or encourage the act. And the mere consent to hold
stakes for two persons, who have arranged to fight for a
wager, cannot be said to amount to such a participation
as is necessary to support such a conviction, one of the
combatants having died from the effects of the fight, (u)
Au indictment for manslaughter will not lie against the
managing director of a railway company by reason of the
omission to do something which the company by its charter
was not bound to do, although he had personally promised
to do it. (v)
The prisoner was convicted on an indictment charging him
(r) See Reg. v. Dant, infra ; Reg. v. Svnndatt, 2 C. &, K. 236 ; Reg. Y,
Hutchinson, 6 Cox, 555 ; but se« Reg. v. BerchaU, 4 F. & F. 1087.
(s) Reg. v. Dant, 13 W. R. 663 ; L, & C. 567 : 34 L. J. (M. C.) 119.
(t) Reg. v. Salmon, L. R. 6 Q. B. D. 79.
(u) Reg. v. Taylor, L. R, 2 C. (J. R. 147.
(v) Ex part* Brydges, 18 L. C. J. 141.
202 THE CRIMINAL LAW OF CANADA.
with neglecting to provide food and clothing for his child,
but omitting specifically to allege his ability to do so. The
court held that the ability to provide was implied, and there-
fore sufficiently averred in the use of the word " neglect." (w)
But where, in an indictment of a single woman, the mother
of a bastard child, for neglecting to provide it with sufficient
food, it was alleged that she neglected her duty, " during all
the time aforesaid being able and having the means to per-
form and fulfil the said duty ;" and as to that allegation, the
evidence was that she was cohabiting with a man who was
not the father, and there was no evidence of her actual
possession of means for nourishing the child, but it was
proved that she could have applied to the relieving officer of
the union, and that if she had done so she would have re-
ceived relief adequate to the support of the child and herself :
it was held that the allegation was not proved, and that the
conviction could not be supported, (x)
There is a distinction, however, between the cases of chil-
dren, apprentices and lunatics, under the care of persons
bound to provide for them, and the case of a servant of full
age; and in charges of causing death b\ insufficient supply of
food or unwholesome lodging in the latter, the jury must be
satisfied upon the evidence that the prisoner has culpably
neglected to supply sufficient food and lodging to the deceased
during a time when, being in the prisoner's service, she was
reduced to such an enfeebled state of body and mind as to be
helpless, or was under the dominion and restraint of the
prisoner, and unable to withdraw herself from his control, and
that her death was caused or accelerated by such neglect, (y)
The statute imposes a positive duty to provide adequate
medical aid when necessary, and if that duty be neglected by
a parent, and death ensue from that neglect, the parent is
guilty of manslaughter ; and this even though the parent may
(w) Reg. v. Ryland, L. R. 1 C. C. R. 99 ; 37 L. J. (M. C.) 10.
(x) Reg. v. Chandler, 1 U. C. L. J. 135 ; Dears. 453 ; 24 L. J. (M.C.) 109.
(y) Reg. v. Smith, 13 W. R. 816 ; 1 U, C. L. J. N. S. 164.
MANSLAUGHTER. 203
have bona fide believed it wrong to call in medical assist-
ance. However this latter consideration might affect the
question at common law, the statute is imperative, (z)
If a man kill an officer of justice, either civil or criminal'
such as a bailiff, constable, etc., in the legal execution of his
duty, or any person acting in aid of him, whether specially
called thereunto or not, or any private person endeavoring to
suppress an affray or apprehend a felon, knowing his authority
or the intention with which he interposes, the law will imply
malice and the offender will be guilty of murder, («) But
the officer must have a legal authority and execute it in a
proper manner, and the defendant must have knowledge of
that authority and indention ; (b) otherwise the killing will
amount to manslaughter only, (bfy
The 32 & 33 Vic., c. 29, s. 2, empowers a constable or
peace officer to apprehend, without warrant, any person found
committing an offence punishable either by indictment or
upon summary conviction. Where a person was supposed to
have obtained money by false pretences at 1 p. m. and was
not arrested until 10 p.m., it was held that the party was
<! found committing" the offence at 1 p. m. and might be
arrested, when found committing or after a pursuit imme-
diately commenced. But " immediately" means after the
commission of the offence and not after its discovery, for the
intention of the statute was that the criminal should be
apprehended immediately on the commission of the offence, (c)
Where an offence was committed in the county of G., and
warrants were issued for the arrest of the guilty parties,
persons from another county, who came to assist the constable
of the county of G. in making arrests, were held entitled to
the same protection as the constables, (d)
A person found committing an offence against the Larceny
(z) Reg. v. Doitmes, L. R. 1 Q. B. D. 25.
(a) Arch. Cr. Pldg. 640.
(6) Ibid.
(bb) See Infra.
(c) Downing v. Capel, L. R. 2 C. P. 461.
(d) Reg. v. Churson, 3 Pugsley, 546.
204 THE CRIMINAL LAW OF CANADA.
Act, 32 & 33 Vic., c. 21, may be immediately apprehended
by any person without a warrant, provided, according to the
rule laid down in Herman v. Seneschal, (e) and adopted in
Roberts v. Ordiard, (/) the person so apprehending honestly
believes in the existence of facts which, if they existed,
would have justified him under the statute 24 & 25 Vic., c.
96, s. 103. It is not necessary that an offence should have
been committed under the statute by any one; but the belief
must rest on some ground, and mere, suspicion will not be
enough. (#)
The Police Act (N. B.), 11 Vic., c. 13, s. 22, does not
authorize the arrest without warrant of known residents of
the place, (h)
In King v. Poe, (i) it was left undecided and in doubt
whether a magistrate has a right to arrest a person for a
misdemeanor committed in his view. Where there has been
no breach of the peace, actual or apprehended, a magistrate
has no right to detain a known person to answer a charge of
misdemeanor, verbally intimated to him, without a regular
information before him in his capacity of magistrate, that he
may be able to judge whether it charges any offence to which
the party ought to answer. (/)
A constable may arrest any one for a breach of the peace
committed in his presence, not merely to preserve the peace,
but for the purposes of punishment, (k) Therefore, where a
policeman saw a man, who was drunk, assault his wife, and
within twenty minutes after took him into custody, it was
held that the policeman was justified in so doing, notwith-
standing that the man had left the spot, where his wife was
saying he should " leave her altogether." (I)
(e) 11 W. R. 184 ; 13 C. B. N. S. 392.
(/) 12 W. R. 253 ; 2 H. & C. 768.
(g) Leete v. Hart, 4 U. C. L. J. N. S. 201.
(h) Foley v. Tucker, 1 Hannay, 52.
(t) 15 L. T. Rep. N. S. 37.
(j) Caudle v. Ferguson, 1 Q. B. 889 ; Rex v. Birnie, 1 M. & R. 160.
(k) Deercourt v. Corbishley, 1 U. C. L. J. 156.
(1) Reg. v. Light, 4 U. C. L. J. 97 ; Dears. & B. 332 ; 27, L. J. (M. C.) 1.
MANSLAUGHTER. 205
A constable may arrest a person without a warrant upon
a reasonable charge ; that is, upon probable information that
he has committed a crime, (m)
It would appear that a constable has nothing to do virtute
officii in a civil proceeding, and he can have no color or pre-
tence for acting without authority specially given by some
process, (ri)
It is the duty of a person arresting any one on suspicion
of felony to take him before a justice of the peace as soon
as he reasonably can ; and the law gives no authority, even
to a justice of the peace, to detain a person suspected but for
a reasonable time till he may be examined. (0) A private
person not being by office a keeper of the peace, or a justice
or constable, cannot arrest on suspicion of felony without
a warrant, but must show a felony actually committed, (p)
But if a person is prepared to show that there really has
been a felony committed by some one, then he may justify
arresting a particular person upon reasonable grounds of
suspicion that he was the offender, (q) The general rule
would seem to be that, at common law, if a felony were
actually committed, a person might be arrested without a
warrant by any one, if he were reasonably suspected of
having committed the felony ; and if a constable had reason-
able grounds for supposing that a felony had been committed ,
and reasonable grounds for assuming that a certain person
had committed the supposed felony, he might arrest him,
though no felony had actually been committed, (r) Neither
a constable nor any other could arrest a person merely on
suspicion of his having illegally detained goods, (s)
A clerk in the service of a railway company, whose duty
it is to issue tickets to passengers and receive the money, and
(mi Rogers v. Van Valkenburgh, 20 U. C. Q. B. 219, per Robinson, C. J.
(n) See Brown v. Shea, 5 U. (J. Q. B. 143, per Robinson, C. J.
(o) Ashley v, Dundax, 5 U. C. Q. B. O. S. 754, per Sherwood, J.
(p) Ibid.; McKtnzie v. Gibson, 8 U. C. Q. B. 100; Murphy v. EUis,
Stev. Dig. 115.
\q) McKenzif v. Gibson, supra, 102, per Robinson, C. J.
(r) Hadley v. Perks, L. R. 1 Q. B. 45«, per Blackburn. J.
(*) Hnd.
206 THE CRIMINAL LAW OF CANADA.
keep it in a till under his charge, has no implied authority
from the company to give into custody a person whom he
suspects has attempted to rob the till, after the attempt has
ceased, as such arrest could not be necessary for the protec-
tion of the company's property, (t ) It would see m that, if a
man in charge of a till were to find that a person was
attempting to rob it, and he could not prevent him from
stealing the property otherwise than by taking him into cus-
tody, the person in charge of the till might have an implied
authority from his employer to arrest the offender ; or if the
clerk had reason to believe the money had been actually
stolen and he could get it back by taking the thief into cus-
tody, and he took him into custody with a view of recovering
the property taken away, that also might be within the
authority of a person in charge of the till. But there is a
marked distinction between an act done for the purpose
of protecting the property by preventing a felony or of
recovering it back, and an act done for the purpose of
punishing the offender for that which has already been done.
The person having charge, etc., has no implied authority to
take such steps as may be necessary for the purpose of
punishing the offender. The principle governing the subject
is : there is an implied authority to do all those things that
are necessary for the protection of property entrusted to a
person, or for fulfilling the duty which a person has to
perform, (u)
Where a man is himself assaulted by a person disturbing
the peace in a public street, he may arrest the offender, and
take him to a peace officer to answer for a breach of the
peace, (v)
The fact that a party is violently assaulting the wife and
child of another is no legal justification for the latter, not
(t) Allen v. L. <t- S. W. Ry. Co., L. R. 6 Q. B. 65.
(u) Ibid. 68-9, per Blackburn, J.
(v) Forrester v. Clarke, 3 U. C. Q. B. 151.
MANSLAUGHTER. 207
being a peace officer, breaking into the house of the former
in order to prevent the breach of the peace, (w)
The prisoner assaulted a police constable in the execution
of his duty. The constable went for assistance and, after an
interval of an hour, returned with three other constables,
when he found that the prisoner had retired into his house,
the door of which was closed and fastened ; after another
interval of fifteen minutes, the constable forced open the
door, entered and arrested the prisoner, who wounded one
of them in resisting his apprehension. It was held that
as there was no danger of any renewal of the original
assault, and as the facts of the case did not constitute a
fresh pursuit, the arrest was illegal. (,/•)
A person unlawfully in another's house, and creating a
disturbance and refusing to leave the house, may be forcibly
removed, but, if he had not committed an assault, the cir-
cumstances do not afford a justification for giving him into
the custody of a policeman, (y)
In all cases above mentioned, if the officer has not a legal
O
authority or executes it in an improper manner, the offence
will be manslaughter only. But if there is evidence of ex-
press malice it will amount to murder, (z) So ignorance of
the character in which the officer is acting will reduce the
offence to manslaughter. But if a constable command the
peace or show his staff of office, this, it seems, is a sufficient
intimation of his authority (a)
Where the fact of killing is proved, the defendant may
rebut the presumption of malice arising therefrom, by prov-
ing that the homicide was justifiable or excusable.
Justifiable homicide is of three kinds : — 1. Where the
proper officer executes a criminal in strict conformity with
his sentence. 2. Where an officer of justice, or other person
(ic) Rockwell v. Murray, 6 U. C. Q. B. 412 ; Handcock v. Baker, 2 B. & P.
26'2.
(*) Reg. v. Marsden, L. R. 1 C. C. R, 131 ; 37 L. J. (M. C.) 80.
(y) Jordan v. Gibbon, 3 F. & F. 607.
(z) Arch. Cr. Pldg. 645-6.
(a) Ibid. 645 ; and see fox v. Higgina, 4 U. C. Q. B. O. S. 83.
208 THE CRIMINAL LAW OF CANADA.
acting in his aid in the legal exercise of a particular duty,
kills a person who resists or prevents him from executing
it. 3. Where the homicide is committed in prevention of
a forcible and atrocious crime, as, for instance, if a man
.attempts to rob or murder another and be killed in the
attempt, the slayer shall be acquitted and discharged, (b)
Excusable homicide is of two kinds : — 1. Where a man
doing a lawful act, without any intention of hurt, by
accident kills another, as, for instance, where a man is
working with a hatchet, and the head by accident flies off
.and kills a person standing by. This is called homicide per
infortunam or by misadventure. 2. Where a man kills
another, upon a sudden encounter, merely in his own de-
fence, or in defence of his wife, child, parent, or servant,
•and not from any vindictive feeling, which is termed homi-
cide se defendendo, or in self-defence, (c)
The 32 & 33 Vic., c. 20, s. 7, provides that no punishment
or forfeiture shall be incurred by any person who kills
.another by misfortune, or in his own defence, or in any
other manner, without felony.
Concealing Birth. — The 32 & 33 Vic., c. 20, sec. 62, repeals
.the 21 Jac. I.; and sec. 61 of the same statute enacts that
if any woman is delivered of a child, every person who, by
.any secret disposition of the dead body of the said child,
whether such child died before, at, or after its birth, en-
deavors to conceal the birth thereof, is guilty of a misde-
meanor.
A secret disposition, under this Act, must depend upon
the circumstances of each particular case ; and the most
complete exposure of the body might be a concealment. as, for
instance, if the body were placed in the middle of a moor
in the winter, or on the top of a mountain, or in any other
secluded place, where it would not likely be found. The
(b) Arch. Cr. Pldg. 623.
(c) Ibid. 623.
CONCEALING BIRTH — ABORTION. 209
jury must, in each case, say whether or no the facts show
that there has been such a secret disposition, (d)
The conduct of the prisoner, such as the denial on her
part that she has had a child, is important as showing the
intent with which a concealment, otherwise questionable
was made, (e)
If a woman endeavor to conceal the birth of her child by
placing the dead body under the bolster of a bed, and laying
her head partly over the body, intending to remove it to
some other place when an opportunity offers, it is an offence
within 9 Geo. IV., c. 31, s. 14. (/)
Abortion. — This offence is now regulated by the 32 & 33
Vic., c. 20, ss. 59 and 60. Upon an indictment for causing
abortion, it was proved that the woman requested the prisoner
to get her something to procure miscarriage, and that the drug
was both given by the prisoner, and taken by the woman, with
that intent, but the taking was not in the presence of the
prisoner. It produced a miscarriage. The court held that
a conviction upon the facts above was right, and that there
was an "administering and causing to be taken," within
the statute, though the prisoner was not present at the
time, (g)
What is a " noxious thing " within the statute, depends
on the circumstances of each particular case. In one case,
evidence that quantities of oil of juniper, considerably less
than half an ounce, are commonly taken medicinally without
any bad results, but that a half ounce produces ill effects,
and is to a pregnant woman dangerous, was held sufficient
from which a jury might infer that the latter quantity was
a " noxious thing " within the statute, (h)
(d) Reg. v. Brown, L. R. 1 C. C. R. 246-7 ; 39 L. J. (M.C.) 94, per BovM,
C. J. ; Reg. v. Piche, 30 U. C. C. P. 409.
(«) Reg. v. Picht, 30 U. C. C. P. 409.
< f) Reg. v. Perry, I U. C. L. J. 135 ; Dears. 471 ; 24 L. J. (M. C.) 137.
(g) Reg. v. Wilson, 3 U. C. L. J. 19 ; Dears. & B. 127 ; 26 L. J. (M. C.)
18 : see also Reg. v. Farrow; Dears. & B. 164.
(h) Reg. v. Cramp, L, R. 5 Q. B. D. 307.
B
210 THE CRIMINAL LAW OF CANADA.
And where it was in evidence that oil of savin in any dose
would be most dangerous to give t<> a pregnant woman ; that
the prisoner, with intent to procure abortion, had supplied a
woman in that condition with a bottle of Sir. James Clarke's
female pills, containing about four grains of that drug, and
that such a quantity would be very irritating : the court held
that there was a supplying of a " noxious thing." (i)
Rape. — This offence has been defined to be the having
unlawful and carnal knowledge of a woman by force, and
against her will, (j )
Upon an indictment for rape, there must be some evi-
dence that the act was without the consent of the woman,
even where she is an idiot. Where there is no appearance of
force having been used to the woman, and the only evidence
of the connection is the prisoner's own admission, coupled
with the statement that it was done with her consent, there
is no evidence for the jury. (&)
It was formerly held that where the woman consents to
the connection, through the fraud of the ravisher, the
act does not amount to rape ; (I) but the soundness of
this doctrine has lately been questioned in England, and
seems inconsistent with the modern doctrines to con-
sent in criminal law in general. The following propo-
sition, it is submitted, correctly sets out the law on the
subject : Where a person does or acquiesces in an act
through a misapprehension of the nature of that act, or of
the circumstances attending it, and that misapprehension
is either induced by the prisoner, or the prisoner, knowing
the mistake under which the other is laboring, takes advan-
tage of that mistake, there is no consent in law, but that
quality of crime is to be imputed to the prisoner of which
he would have been guilty had he done the act against the
expressed will of the other.
(i) Reg. v. Stitt, 30 U. C. C. P. 30.
( j) Russ. Cr. 904.
(k) Reg. v. Fletcher, L. R. 1 C. C. R. 39 ; 35 L. J. (M. C.) 172.
(1) Reg. v. Ba-i-row, L. R. 1 C. C. R. 156 ; 38 L. J. (M. C.) 20.
RAPE. 211
Thus, on an indictment for indecently assaulting two boys,
the judge left it to the jury to say whether the boys merely
submitted to the acts ignorant of what was going to be done
to them, or of the nature of what was being done, or if they
exercised a positive will about it and consented to the
prisoner's acts; and on a case reserved, the court held the
action right, (m)
And where the prisoner, a depositor in the Post Office
Savings Bank, in which 11s. stood to his credit, gave notice
in the ordinary form to withdraw that sum, and the clerk, at
the office of payment, referring by mistake to another letter of
advice for £8 16s. 10d., placed the latter amount upon the
counter and entered the same as paid in the prisoner's deposit
book, which sum thep risoner took up, animo furandi ; it was
held by a majority of the judges for conviction, that such a
delivery by the clerk under mistake, though with an intention
of passing the property, had not that effect, and that there
was a sufficient taking to warrant a conviction for larceny. («)
And in a case of rape, in which the authority of Reg. v.
Barrow (nri) was doubted, the prisoner professed Jo give
medical and surgical advice for money. The prosecutrix, a
girl of nineteen, consulted him with respect to an illness
from which she was suffering. He advised her that a surgical
operation should l>e performed, and under pretence of per-
forming it, he had carnal knowledge of her. She submitted
to what was done, not with any intention that he should
have sexual connection with her, but under the belief that he
was merely treating her medically and performing a surgical
operation, that belief being wilfully and fraudulently induced
by the prisoner. He was held guilty of rape. (0)
This case, it is true, differs from Iteg. v. Barrow in that
there the proseculrix knew the nature of the act and con-
sented to it under the mistaken belief that the person having
(m) Reg. v. Lock, L. R. 2 C. C. R. 10.
(») Reg. v. Afiddleton, L. R. 2 C. C. R. 38.
(nn) L. R. 1 C. C. R. 156 ; 38 L. J. (M. C.) 20.
(o) Reg. v. Flattery, L. R. 2 Q. B. D. 410.
212 THE CRIMINAL LAW OF CANADA.
connection with her was her husband, while here the mistake
was as to the nature of the act itself. But the distinction is
verbal rather than substantial ; and, besides, the principle of
Reg. v. Barrow conflicts with that of Reg. v. Middleton, which
embodies the approved doctrine on the subject in cases of
larceny.
Apart from all questions of consent fraudulently obtained,
the meaning of the phraseology in an indictment for rape
that the prisoner " violently, and against her will, feloniously
did ravish" the prosecutrix, is, that the woman has been quite
overcome by force or terror, accompanied with as much
resistance on her part as is possible under the circumstances,
arid so as to make the ravisher see and know that she is
really resisting to the uttermost. (00)
Thus, where, on an indictment for rape, the evidence of the
prosecutrix showed that the prisoner, having followed her
into the house, and, without her knowledge, bolted the door,
succeeded, after she had several times escaped from him, in
dragging and growing her upon the bed, where he had con-
nection with her, she making several attempts to get up, but
being too exhausted to do so, the prisoner avowing that he
had come on purpose, and, as she was in his power, he would
do as he pleased ; that she resisted as long as she could, and
then, before he had effected his purpose, screamed out, aud
•called to her child, who was outside ; being corroborated as
to the screams by the child, and by another witness, who
heard cries, manifestly those of the prosecutrix ; it also ap-
pearing that the husband of the prosecutrix had received a
letter from her, on the 20th of the same month in which the
rape was said to have been committed, which, it was alleged,
was on the 17th of that month, stating that the prisoner had
been at his house and abused her. It was held that this
evidence showed the woman was quite overcome by force or
terror, accompanied with as much resistance on her part as
was possible under the circumstances, and so as to have made
(' o) Reg. v. Ftck, 16 U. C. C. P. 379.
RAPE. 213
the ravisher see and know that she really was resisting to
the inmost, and sustained the language of the indictment, that
the prisoner " violently, and against her will, feloniously did
ravish " the prosecutrix. A conviction for rape was therefore
upheld, (p)
Where the prisoner forcibly had carnal knowledge of a girl
thirteen years of age, who, from defect of understanding, was
incapable of giving consent or exercising any judgment in
the matter, it was held that he was guilty of rape, and that
it was sufficient,* iu such a case, to prove that the act was
done without the girl's consent, though not against her
will, (q)
But in the case of rape of an idiot, or lunatic woman, the
mere proof of the act of connection will not warrant the
case being left to the jury. There must be some evidence
that it was without her consent, e. g., that she was incapable
of expressing assent or dissent, or from exercising any judg-
ment upon the matter, from imbecility of mind or defect of
understanding, and if she gave her consent from animal
instinct or passion, (r) or if from her state and condition he
had reason to think she was consenting, it would not be a
rape, (s)
A child, under ten years of age, cannot give consent to
any criminal intercourse, so as to deprive that intercourse of
criminality, under the 32 & 33 Vic., c. 20, s. 51. (t) And a
persou may be convicted of attempting to have carnal know-
ledge of such child, even though she consents to the acts
done, (u) But her consent will render the attempt no
assault, (v)
In the case of girls from ten to twelve, on a charge of
(p) Beg. v. Ftci, 16 U. C. C. P. 379.
(q) Reg. v. Fletcher, 5 U. C. L. J. 143 ; Bell, 63 ; 28 L. J. (M.C.) 85.
(r) Reg. v. Connolly, supra, 317.
(a) Reg. v. Barratt, L. R. 2 C. C. R. 81 ; Reg. v. Fletcher, L. R. 1 C.C.R.
39, explained.
(t) Reg. \. Connolly, *upra, 320, per Hagarty, J.
(u) Reg. v. Beak, L. R, 1 C. C. R. 10 ; 35 L. J. (M. C.) 60.
(r) Reg. v. Cockburn, 3 Cox, 543 ; Reg. v. Connolly, supra, 320, per
Hagarty, J.
214 THE CRIMINAL LAW OF CANADA.
assault, with intent to carnally know, or indecent assault, or
common assault, consent is a defence ; but the prisoner may
be indicted for attempting to commit the statutable misde-
meanor, not charging an assault, in which case it seems con-
sent is no defence. The proper course is to indict for attempt
to commit the statutable misdemeanor, for every attempt to
commit a misdemeanor is a misdemeanor, and where the
essence of the offence charged is an assault, the attempt,
though a misdemeanor, is no assault, (w)
By the 32 & 33 Vic., c. 20, s. 65, it is unnecessary, with
respect to these offences, to prove the actual emission of seed,
in order to constitute a carnal knowledge ; but the carnal
knowledge shall be deemed complete on proof of any degree
of penetration only.
In a case of rape, a statement made by the prosecutrix to
her husband and another person, that the defendant ravished
her, is not admissible, so far as it criminates the prisoner, (x)
The 32 & 33 Vic., c. 20, s. 56, provides that whosoever
unlawfully takes, or causes to be taken, any unmarried girl
being under the age of sixteen years, out of the possession
and against the will of her father or mother, or of any other
person having the lawful care or charge of her, is guilty of a
misdemeanor.
The prisoner met a girl in the street going to school and
induced her to go with him to a town some miles distant,
where he seduced her. They returned together, and he left
her where he had met her. The girl then went to her home,
where she lived with her father and mother, having been
absent some hours longer than would have been the case
if she had not met the prisoner. The latter made no inquiry,
and did not know who the girl was, or whether she had a
father or mother living or not, or that he was taking her
out of her father's possession ; but he had no reason to, and
(w) Reg. v. Connolly, 26 U. C. Q. B. 323, per ffagarty, J. ; see also
Reg. v. Guthrie, L. R. 1 C. C. R. 241 ; 39 L. J. (M. C.) 95 ; Reg. v. Oliver,
Bell, 287; 30 L. J. (M. C.) 12.
(x) Reg. v. Fick, 16 U. C. C. P. 379.
ASSAULT AND BATTERY. 215
did not, believe that she was a girl of the town. It was
held that the prisoner was not guilty of having unlawfully
taken the girl out of the possession of her father, under the
Imperial 24 & 25 Vic., c. 100, s. 55, which is analogous to our
own Act, for it did not appear that the prisoner knew or had
reason to believe that the girl was under the lawful care or
charge of her father or mother or any other person, (y)
But this decision seems questionable, for the statute does
not make knowledge an ingredient of the offence, and in a
later case on a similar charge, where it was proved that the
prisoner bona fide believed, and had reasonable ground for
believing, that the girl was over sixteen though in fact
under that age, it was held that the statute was express,
and that his belief would not affect his criminality, (z)
Assault and battery. — An assault is an attempt or offer
with force and violence to do a corporal hurt to another,
and a battery, which is the attempt executed, includes an
assault, (a) An assault is described as a violent kind of
injury offered to a man's person of a more large extent than
battery, for it may be committed by offering a blow. (6)
Whether the act shall amount to an assault must in every
case be collected from the intention. If a person interfere
in a fight to separate the combatants, this does not amount
to an assault, (c) So to lay onejs hand gently on another
whom an officer has a warrant to arrest, and to tell the
officer that this is the man he wants, is no battery. If the
injury committed were accidental and undesigned, it will
not amount to a battery, (d)
Using insulting and abusive language to a person in his
own office and on the public street, and using the tist in a
(y) Reg. v. Hibbert, L. R. 1 C. C. R. 184 ; 38 L. J. (M. C.) 61.
(c) Reg. v. Prince, L. R. 2 C. C. R. 154 ; and see Beg. v. Downfs, L. R.
1 Q. B. D. 25.
(a) Reg. v. Shaw, 23 U. C. Q. B. 619, per Draper, C. J.
(6) McCurdy v. Swift, 17 U. C. C. P. 139, per A. Wilson, J.
(f) Runs. Cr. 1025.
(d)fbid.
THE CRIMINAL LAW OF CANADA.
threatening and menacing manner to the face and head of a
person, amounts to an assault, (e)
A conductor on a train is not liable for an assault, in
attempting to put a person off the cars who refuses, after
being several times requested, to pay his proper fare; the
conductor, in endeavoring to put the person off, being success-
fully resisted, and the person paying his proper fare on the
conductor summoning others to his aid. (/)
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, (g)
A municipal corporation is liable for assaults committed
by its servants, such as policemen, when the assaults are
proved, and attempted to be justified by the corporation, (h)
If a warrant of commitment is good on its face, and the
magistrate issuing it had jurisdiction on the case, it is a jus-
tification to a constable executing it, and a person resisting
him is guilty of an assault, (t)
Where A., without any hostile intention, pulled the arm
of B., the superintendent of a fire brigade, the moment the
latter was engaged in directing the hose of the engine
against a fire, for the purpose of calling his attention to an
observation with the respect to the effect of the water upon
the flames, it was held that 'this was not such an assault as
would justify B. in giving A. into the custody of a police-
man, (j) There can be no assault where the party consents
to the act done, (k)
On an indictment that the prisoner, in and upon one D.r
a girl above the age of ten years, and under the age of
(e) Reg. v, Harmer, 17 U. C. Q. B. 555 ; Stephens v. Meyers, 4 C. & P.
350
(/) Reg. v. Faneuf, 5 L. C. J. 167.
(g) Reg. v. Cronan, 24 U. C. C. P. 106.
(h) Corporation of Montreal v. Doolan, 13 L. C. J. 71 ; 18 L. C. J. 124.
(i) Reg. v. O'Leary, 3 Pugsley, 264.
(j) Coward v. Baddeley, 5 U. C. L. J. 262 ; 4 H. & N. 478 ; 28 L. J. (Ex.)
260.
(k) Reg. v. Guthrie, L. R. 1 C. C. R. 243 ; 39 L. J. (M. C. ) 95, per Bovill,
C. J. ; and see Reg. v. Beale, ibid. 12, per Pollock, C. B. ; Reg. v. Connolly,
26 U. C. Q. B. 320, per Hagarty, J.
ASSAULT AND BATTERY. 217
twelve years, unlawfully did make assault, and her, the
said D., did then unlawfully and carnally know and abuse
against the form of the statute, etc. The offence of carnally
knowing the girl was disproved, but there was evidence
of an assault of an indecent and very violent character,
which was left to the jury, who found the prisoner guilty
of a common assault, and the question was whether they
could properly do so upon this indictment ; it was held that
the prisoner was properly convicted of a common assault,
on the ground that the indictment charged two distinct
misdemeanors, namely, an assault at common law, and the
statutory offence of unlawfully and carnally knowing and
abusing the girl ; that there being a distinct charge of an
assault in the indictment, the prisoner might be convicted
of it though the indictment also contained a charge of a
more serious offence, consequently the prisoner might be
found guilty of either offence. (/)
A charge of assaulting and beating is not a charge of
aggravated assault, and a complaint of the former will not
sustain a conviction of the latter, under 32 & 33 Vic., c. 32,
though when the party is before the magistrate, the charge of
aggravated assault may be made in writing, and followed by
a conviction therefor, (m)
The prisoner was found guilty at the Quarter Sessions, on
an indictment charging that she, on, etc., in and upon one B.,
in the peace of God and of our Lady the Queen then being,
unlawfully did make an assault and him, the said B., did
beat and ill-treat with intent him, the said B., feloniously,
wilfully, and of her malice aforethought, to kill and murder,
and other wrongs to the said B. then did, to the great damage
of the said B., against the form of the statute in such case
made and provided, and against the peace, etc. A count was
added for common assault. The evidence showed an attempt
to murder, but it was moved, in arrest of judgment, that the
(I) Reg. v. Guthrie, L. R. 1 C. C. R. 241.
(m) Re McKmnon, 2 U. C. L. J. N. S. 324.
218 THE CRIMINAL LAW OF CANADA.
sessions had no jurisdiction, for that it was a capital crime
within the Con. Stats. Can., c. 91, s. 5. The court held that
the indictment did not charge a capital offence under that
section, nor an offence against any statute, but charged in
each count an offence at common law, rejecting from the first
count the words " contrary to the statute" as surplusage, and
any other words which were insufficient to sustain a prose-
cution for felony under any statute, and that the conviction
might be sustained as for an assault at commpn law. (ri)
The 32 & 33 Vic., c. 29, s 51, provides that on the trial of
any person for any felony whatever, where the crime charged
includes an assault against the person, the jury may acquit
of the felony and find a verdict of guilty of assault against
the person indicted, if the evidence warrants such finding.
It is quite clear that this section only authorizes a verdict of
guilty of assault, when it is included in, and forms- parcel of.
the felony charged in the indictment. The words " crime
charged " mean the crime charged as felony in the indictment,
for the enactment only takes effect upon an acquittal, and
the assault, to fall within the Act, must be an integral part of
the felony charged, (o) Therefore, where on an indictment
for murder the jury found the prisoner guilty of an assault
only, and that such assault did not conduce to the death of
the deceased, it was held that the prisoner under such find-
ing could not be convicted of the assault, (p)
And where the prisoners were indicted for murder, and the
medical testimony showed burning to be the direct and only
cause of the death, but there was no evidence to connect any
of the prisoners with the burning, it was held that the prisoners
could not be convicted of an assault, for, although an assault
was proved, there was no evidence to show that it conduced
to the death, (q)
(») Reg. v. McEvoy, 20 U. C. Q. B. 344.
(o) Reg. v. Dingman, 22 U. C. Q. B. 283 ; Reg. v. Bird, 2 Den. C. C. 94.
(p) Reg. v. Grey an, 1 Hannay, 36 ; and see Reg. v. Ryan, ibid. 119, per
Ritchie, C. J.
(q) Reg. v. Ganes, 22 U. C. C. P. 185 ; following Reg. v. Bird, 2 Den.
C. C. 94 ; Beg. v. Dingman, 22 U. C. Q. B. 283.
ASSAULT AND BATTERY. 219
It was held, under the Con. Stats. Can., c. 99, s. 66, that
there could be no conviction for an assault, unless the indict-
ment charged an assault in terms, or a felony necessarily
implying an assault ; (r) and it has been doubted how far the
section under consideration, by providing that there may be
a conviction for assault, " although an assault be not charged
in terms," alters the law in this respect.
It would seem that in the cases of rape, robbery, stabbing
and the like, being all crimes which necessarily include an
assault, a prisoner, if acquitted of the felony, can clearly be
convicted of an assault, under this sectic-n, if the assault was
included in and conduced to the felony ; and as the charge
of either of these offences necessarily includes a charge of
assault, he could be so convicted even before the recent Act,
without any charge of assault in terms. And one would
naturally be led to think that on indictments for murder and
manslaughter, though the bare charge of these offences does
not show an assault, the prisoner might be convicted of an
assault under the Act though not charged in terms, if the
evidence showed an assault committed, in attempting to com-
mit the felony charged, or as parcel thereof. But it has
been held in several cases that on an indictment for murder
in the statutory form, not charging an assault, the prisoner
cannot be convicted of an assault ; (5) so that if the principle
of these decisions be adopted, the section has practically no
operation.
A case cannot be brought within this Act, by averring an
assault in the indictment which is not included in, and parcel
of, the felony charged. There can be no conviction of an
assault, unconnected with the felony charged. The Act only
dispenses with an express allegation of an assault, where the
felony is of such a nature, that the mere charge of it is also
a charge of an assault, (t)
(r) Reg. v. Dingman, supra.
(a) Reg. v. Smith, 34 U. C. Q. B. 552 ; Reg. v. MulhoUand, 4 Pugsley &
B. 512.
(0 See Reg. \. Dingman, 22 U. C. Q. B. 283 ; Reg. v. Bird, 2 Den. C. C.
94 ; Reg. v. Lackey, 1 Pugsley & B. 194.
220 THE CRIMINAL LAW OF CANADA.
Shooting with intent to murder involves an assault, (u)
An indictment charging the prisoner with having maliciously
assaulted J. M. and cut him with a knife, with intent to do
him grievous bodily harm, concluding contra formam statuti,
was held bad, for the means used were not set out with such
particularity, as necessarily to manifest the design, which
constituted the felony, and there was no allegation following
the words of the Act ; and it was also held that the convic-
tion could not stand for an assault, as the Act does not
operate to supply defects in indictments, (v)
Upon an indictment containing counts for assaulting and
maliciously inflicting grievous bodily harm, and a count for
.a common assault, after evidence of grievous injuries inflicted
by the prisoner, the judge told the jury that there was evi-
dence to go to them of grievous bodily harm, and that the
question of whether the prisoner intended to inflict grievous
bodily harm consequently did not arise. The jury found the
prisoner guilty of an aggravated assault, without premedita-
tion, under the influence of passion ; and it was held that the
assault was intentional in the understanding of the law ; that
upon the facts, the jury were justified in finding the defend-
ant guilty of an assault with grievous bodily harm, and that
the prisoner was properly convicted of that offence, (w)
An indictment charging a prisoner with shooting at A. B.,
with intent to do him grievous bodily harm, is well sup-
ported by evidence, showing that he fired a loaded pistol
indiscriminately into a group, intending to do grievous
bodily harm, and that he hit A. B. (x)
In construing the latter part of the 32 & 33 Vic., c. 20,
s. 19, we should read the section as though the term "mali-
cious" had been introduced. It is an essential element in a
conviction, under this section, that the act which caused
(u) Reg. v. Reno and Anderson, 4 U. C. P. R. 296, per Draper, C. J.
(v) Reg. v. Magee, 2 Allen, 14.
(w) Reg. v. Sparrow, 8 U. C. L. J. 55 ; Bell, 298 ; 30 L. J. (M.O.) 43.
(x) Reg. v. Fretwell, 33 L. J. (M. C.) 128 ; L. & C. 443.
(y) Reg. v. Ward, L. R. 1 C. C. R. 356.
ASSAULT AND BATTERY. 221
the unlawful wounding should have been done maliciously
as well as unlawfully, (y)
Thus the prosecutor and the prisoner were out at night,
in separate punts on a creek, in pursuit of wild fowl. The
prisoner, who was jealous of any one going there to shoot,
and had threatened to fire at birds, notwithstanding other
persons might be between him and them, discharged his
gun from a distance of twenty-five yards towards the punt,
in which the prosecutor lay paddling. At that moment the
prosecutor's punt slewed round, and the prosecutor was
struck by some of the shot and seriously wounded, where-
upon the prisoner rendered him help, assuring him that the
injury was an accidental result of the slewing round of the
punt. The night was light, and the boat visible fifty yards
off. No birds were in view. The two men had always been
on good terms, and the gun was fired, apparently, with the
intention of frightening the prosecutor away rather than
that of hurting him. The prisoner was indicted for the
felony of wounding, with intent to do grievous bodily harm,
but was found guilty of the misdemeanor of unlawfully
wounding, within the above section ; and it was held that
there was proof of malice which justified the conviction of
the prisoner, (z)
The Con. Stats. Can., c. 91, s. 37, applied only to common
assaults, (a)
No words of provocation whatever can amount to an
assault, (b) To constitute such an assault as will justify
moderate and reasonable violence in self-defence, there
must be an attempt or offer with force and violence to do a
corporal hurt to another, as by striking him with or without
a weapon, or presenting a gun at him, at such a distance
to which the gun will carry, or pointing a pitchfork at him,
standing within reach of it, or by holding up one's fist at
(z) Beg. v. Ward L. R. 1 C. C. R. 356.
(a) Re McKinnon, 2 U. C. L. J. N. S. 328, per A. Wilson, J.
(b) Tlie Toronto S. V. A. R. 170.
222 THE CRIMINAL LAW OF CANADA.
him, or by drawing a sword, and waving it in a menacing
manner, (c)
Where therefore some thirty persons, armed and riotously
assembled in front of the plaintiff's house, and apparently
in the act of breaking into it, threatened to break into it,
and assault, tar, feather and ride the plaintiff on a rail, it
was held that though the plaintiff believed they were going
to break into his house for this purpose, yet he could not
justify shooting at them with a pistol, without warning
them to desist and depart, but such request to depart would
not have been necessary, perhaps, if the aggressors had
been actually advancing upon the plaintiff in the attitude
of assaulting him, and still less if any of them had actually
struck him. (d)
The law is properly careful to exact that people shall
not on the mere apprehension of violence, which is not im-
mediately threatened, resort to desperate means of defence
and shed blood without necessity, though there may be
considerable provocation and some show of violence, and,
generally speaking, it must be left to the jury to ascertain
as a question of fact whether the means of resistance
adopted were justified by the nature of the attack, (e) If
more force and violence be used than necessary to expel a
party from a house, after he has been requested, and re-
fused to leave, it cannot be justified. (/) Although a party
may lawfully take hold of one who declines to leave his
house and put him 'out, yet he has no right to beat him
cruelly, not in order to make him go out, but to punish
him for not having done so. (g}
But there is a manifest distinction between endeavoring
to turn a person out of a house into which he has entered
quietly, and resisting a forcible attempt to enter ; in the
(c) The Toronto S. V. A. R. 178-9.
(d) Spires v. Barrick, 14 U. C. Q. B. 424, per Robinson, C. J.
(e) Ibid. 424, per Robinson, C. J.
(/) See Glass v. O'Grady, 17 U. C. C. P. 233.
(g) Ibid. 236, per J. Wilson, J. ; Davis v. Lennon, 8 U. C. Q. B. 591).
ASSAULT AND BATTERY. 223
former case a request to depart is necessary, in the latter
not. (?i)
Upon an indictment for assaulting a bailiff of a county
court, in the execution of his duty, the production of a
county court warrant for the apprehension of the prisoner
is sufficient justification of the act of the bailiff, in appre-
hending the prisoner, without proof of the previous pro-
ceedings authorizing the warrant, (i}
Moderate correction of a servant or scholar, by his master,
is not an assault. But a master has not by law a right< to
use force in the correction of any servant, bat an appren-
tice. The moderate correction of a servant, who is an
infant, may be justified, but the beating of a servant of full
age cannot, and will form a sufficient cause or excuse for
departure, or for discharge from service by a master, on
complaint. Wounding, kicking and tearing a person's
clothes do not fall within the scope of moderate correc-
tion, (j) School-masters have a right of moderate chas-
tisement against disobedient and refractory scholars ; but
it is a right which can only be exercised when necessary
for the maintenance of school discipline and the interests of
education, and to a degree proportioned to the nature of
the offence committed. Any chastisement exceeding this
limit, and springing from motives of caprice, anger or bad
temper, constitutes an offence punishable like ordinary
delicts, (k)
On an indictment charging an aggravated assault, or an
offence of a higher nature than an assault, but nevertheless
including it, the prisoner may be found guilty of a common
assault, for it is not necessary that matter of aggravation
stated in the indictment should be proved, and, if not proved,
the prisoner may be found guilty of the offence without
the circumstances of aggravation. (I) Thus a person, in-
(h) Reg. v. O'Neill. 3 Pugsley & B. 49.
(i) Reg. v. Davis, 8 U. C. L. J. 140 ; L. & C. 64 ; 30 L. J. (M. C.) 159.
(j ) Mitchell v. D^ria, -2 U. C. Q. B. 430, per McLean, J.
(k) Bruson v. Lafontaine.. 8 L. C. J. 173.
(t) Reg. v. Taylor, L. R. 1 C. C. R. 194 ; 38 L. J. (M. C.) 106.
224 THE CRIMINAL LAW OF CANADA.
dieted for inflicting grievous bodily harm and actual bodily
harm, may be convicted of a common assault ; (m) and a
charge of assault and beating would be sustained by proof
of an aggravated assault, as the aggravation is merely
matter of evidence, (n)
This offence is a misdemeanor (0) and is so punishable.
The punishment usually inflicted is fine, imprisonment and
sureties to keep the peace, (p) The Court of Quarter Sessions
has a general power to fine and imprison in case of assault, (q)
A charge of assaulting a bailiff in the execution of his
duty, being a misdemeanor, is triable at the sessions, (r)
An assault may, in certain cases, amount to a capital felony,
when, it is apprehended, it could not be tried at the sessions.
An assault may be accompanied by violence from which
death ensues, and then the offence would be either murder or
manslaughter. Or an assault may be accompanied with a
violation of the person of a woman against her will, in which
case it would be a rape, or though the purpose was not ef-
fected, the circumstances might be such as to leave no doubt
of an assault with intent to commit a rape, therefore an assault
may amount to a capital felony, or a felony, or a misdemeanor,
according to the circumstances with which it is accom-
panied, (s)
Kidnapping. — This offence is regulated by the 32 & 33
Vic., c. 20, s. 69. The intent referred to in that section refers
to the seizure and confinement in Canada, as well as to kid-
napping, and an indictment therefore charging such seizure
and confinement, without averring any intent, is defective, (t)
(m) Reg. v. Oliver, 8 U. C. L. J. 55 ; Bell, 287 ; 30 L. J. (M. C.) 12 •
Reg. v. Yeadon, L. & C. 81 ; 31 L. J. (M. C.) 70.
(n) Re McKinnon, 2 U. C. L. J. N. S. 329, per A. Wilson, J.
(o) See Reg. v. Taylor, L. R. 1 C. C. R. 194.
(p) Ovens v. Taylor, 19 U. C. C. P. 52, per Hagarty, J.; Reg. v. O'Leary,
3 Pugsley, 264.
(q) Ovens v. Taylor, supra, 49.
(r) Reg. v. Caisse. 8 L. C. J. 281.
(s) McCurdy v. Swift, 17 U. C. C. P. 139, per A. Wilson, J.
(t) Cornwall v. Reg. U. C. Q. B. 106.
OFFENCES AGAINST PROPERTY. 225
CHAPTER V.
OFFENCES AGAINST PROPERTY.
Burglary. — Burglary has been defined to be a breaking
and entering the mansion house of another in the night, with
intent to commit some felony within the same, whether such
felonious intent be executed or not. (a)
Both a breaking and entering are necessary to complete
the offence, and every entrance into the house, in the nature
of a mere trespass, is not sufficient. Thus if a man enter a
house by a door or window which he finds open, or through
a hole which was made there before, and steal goods, or draw
goods out of the house through such door, window, or hole,
he will not be guilty of burglary.(i) There must either be
an actual breaking of some part of the house, in effecting
which more or less actual force is employed, or a breaking
by construction of law, where an entrance is obtained by
threats, fraud, or conspiracy, (c)
An actual breaking of the house may be by making a hole
in the wall; by forcing open the door; by putting back,
picking or opening the lock with a false key ; by breaking
the window ; by taking a pane of glass out of the window,
either by taking out the nails or other fastening, or by draw-
ing or bending them back, or by putting back the leaf of a
window with an instrument, and even the drawing or lifting
of a latch. (d~)
Where the door is not otherwise fastened, the turning of the
key where the door is locked on the inside, or the unloosing
(a) Kuss. Cr. 1.
(b) Ibid. 2.
(c) Ibid.
(d) 2 Russ. Cr. 2-3 ; Rex v. Owen, 1 Lewin, 35, per Bayley, J . ; Rex T.
Laurence, 4 C. & P. 231 ; Rex v. Jordan, 7 C. & P. 432.
226 THE CRIMINAL LAW OF CANADA.
any other fastening which the owner has provided, will
amount to a breaking, (e)
If a man enters by a door or w.indow which he finds open,
or through a hole which was made there before, it is not
burglary. (/)
Where an entry was effected by taking out the glass from a
door it was holden to be burglary; (g) and where the defend-
ant pulled down the sash of a window which had no fasten-
ing, and was only kept in its place by the pulley-weight, it
was holden to be burglary, although there was an outer
shutter which was not put to. (h] So, where he raised a sash
window which was shut down close but not fastened, though
it had a hasp which might have been fastened. (»') And
where a window opening upon hinges and fastened with
wedges, but so that, by pushing against it, it could be opened,
was opened, it was holden to be burglary, (f) So, where a
party thrust his arm through the broken pane of a window,
and in doing so broke some more of the pane, and thus got at
and removed the fastening of the window and opened it, it
was holden to be a sufficient breaking, (k) Lifting up the
flap of a cellar usually kept down by its own weight is a suffi-
cient breaking for the purpose of burglary. (1} If a window
be partly open, but not sufficiently to admit a person, the
raising of it so as to admit a person is not a breaking of the
house, (w)
It is burglary if a man obtain entrance to a house by mean
of the chimney, for, though open, it is as much closed as th
nature of the structure will admit, (n) But an entry throng
a hole in the roof is not burglary, for a chimney is a necessar
(e) 2 Russ. Cr. 3.
(/) Ibid. 2 ; and see Rex v. Lewis, 2 C. & P. 628 ; Beg. v. Spriyys,
M. & Rob. 357.
(g) Reg. v. Smith, R. & R. 417.
(h) Reg. v. Hainex, R. & R. 451.
(i) Reg. v. Hyams, 7 C. & P. 441.
(j) Reg. v. Hall, R. & R. 355.
(k) Reg. v. Robinson, 1 Mood. 0. C. 377.
(I) Reg. v. Russell, 1 Mood. C. C. 377.
(m) Reg. v. Smith, 1 Mood C. C. 178; Arch. Cr. Pldg. 497.
(«) 2 Russ. Cr. 4 ; Rex v. Brice, R. & R. 450.
BURGLARY. 227
opening and requires protection, whereas if a man choose to
have a hole in the wall or roof of his house, instead of a
fastened window, he must take the consequences. (0)
As to breaking by fraud, where an act is done in fraudem
Itgis the law gives no benefit to the party, so that if thieves
obtain entrance under pretence of business, as to arrest a
suspected person or the like, if the other ingredients are also
in the offence, it will amount to burglary, (p)
It is also burglary if the entrance is obtained by conspiracy,
as if A., the servant of B., conspire with C. to let him in to
rob B., and accordingly A. in the night-time opens the door
and lets him in, it is burglary in both, (q)
But if a servant, pretending to agree with a robber, open
the door and let him in for the purpose of detecting and ap-
prehending him, this is no burglary, for the door is lawfully
open, (r)
There may also be a breaking in law where, in consequence
of violence commenced or threatened, the owner, either from
apprehension of the violence, or with a view to repel it, opens
the door through which the thief enters, (s) With respect to
the entry, any, even the least entry, either with the whole or
any part of the body, hand or foot, or with any instrument
or weapon introduced for the purpose of committing a felony,
will be sufficient, (t)
The 32 & 33 Vic., c. 21, s. 53, renders it a felony to enter
any dwelling-house in the night, with intent to commit any
felony therein, and thus dispenses with proof of a breaking
under this clause. Sec. 50 provides that whosoever enters the
dwelling-house of another, with intent to commit any felony
therein, or being in such dwelling-house commits any felony
therein, and in either case breaks out of the said dwelling-
house in the night, is guilty of burglary.
(o) Rex \. Sprifjytf, 1 M. & Rob. 357.
(p) 2 Russ. Cr. 9.
(q) Ibid. 10.
(r) Reg. v. Johnson. C. & Mar. 218.
(«) 2 Rues. Cr. 8.
(t) Ibid. 11 ; see Keg. v. Davis, R. & R. 499 \R-j. v. Bailey, R. & R. :J41.
228 THE CRIMINAL LAW OF CANADA.
Every house for the dwelling and habitation of man is
taken to be a dwelling-house in which burglary may be com-
mitted ; (u} and this dwelling-house formerly included the
outhouses, such as warehouses, barns, stables, cow-houses,
or dairy-houses, though not under the same roof or joining
contiguous to the dwelling-house, provided they were parcel
thereof. But now the 32 & 33 Vic., c. 21, s. 52, enacts that
such houses shall not be considered part of the dwelling-
house for the purpose of burglary, unless there be a com-
munication between such building and dwelling-house, either
immediate or by means of a covered and enclosed passage
leading from one to the other, (v)
Unless the owner has taken possession of the house by
inhabiting it personally or by some one of his family, it will
not have become his dwelling-house as applied to the offence
of burglary, (w) But the occasional or temporary absence
of the owner will not prevent it from being his dwelling-
house, (x) However, in these cases there must be an inten-
tion, on the part of the owner, to return to his house, animus
revertendi. (y)
' As to the time of committing the offence, it is settled that
in the daytime there can be no burglary, (z) If a house is
•entered in the daytime it is house-breaking and not burglary.
By the 32 & 33 Vic., c. 21, s. 1, it is enacted that so far
as regards the offence of burglary the night shall be con-
sidered to commence at nine o'clock in the evening of each
day, and end at six o'clock in the morning of the next suc-
•ceeding day.
The breaking and entering need not be both in the same
night, provided the breaking be with the intent to enter,
(u) 2 Russ. Cr. 15.
(v) See Reg. v. Burrow fs, 1 Mood. C. C. 274 ; Reg. v. Higgs, 2 0. & K.
322 ; Reg. v. Jenkins, R. & R. 224.
(w) 2 Russ. Cr. 21.
(x) Idid. 23.
(y) Ibid. 4 Bla. Com. 225.
(z) 4 Bla. Com. 224.
BURGLARY. 229
and the entry with the intent to commit a felony, (a) But
the breaking and entry must both be committed in the night-
time. If the breaking be in the day and the entry in the
night, or the breaking in the night and the entering in the
day, it is no burglary. (6)
As to the intent, the offence must be with intent to com-
mit some felony within the house, whether such felonious
intent be executed or not ; (c) and when the breaking is a
breaking out of the dwelling-house in the night there must
have been a previous entry with intent to commit a felony,
or an actual committing of a felony in such dwelling-house, (d)
If the entry were only for the purpose of committing a
trespass, the offence will not be burglary. But if a felony
be committed, the act will be prima facie pregnant evidence
of an intent to commit it. (e) And it is a general rule that
a man who commits one sort of felony, in attempting to
commit another, cannot excuse himself on the ground that he
did not intend the commission of that particular offence. (/)
But it makes no difference whether the offence intended
were felony at common law, or only created so by statute,
on the ground that, when a statute makes an offence felony,
it incidently gives it all the properties of felony at common
law. (g)
The offence of house-breaking is very nearly allied to that
of burglary, the principal distinctions between them being
that the latter is committed by night, the former by day ;
and by the express language of the statute, the breaking and
entering, in case of the former, must be accompanied with
some larceny, and an intent to commit a ielony is not suffi-
cient.
(a) Reg. \. Smith, R. & R. 417 ; see Reg. v. Jordan, 7 C. & P. 432 ; Arch.
Cr. Pldg. 490.
(b) Beg. v. Smith, *upra.
(c) Ante p. '2:25.
(d) Ante p. 227.
(e) See Reg. v. Locost, Kel. 30.
(/) 2 Russ. Cr. 41.
(g) Ibid. 43.
230 THE CRIMINAL LAW OF CANADA.
A man cannot be indicted for a burglary in his own house.
Therefore, if the owner of a house break and enter the room
of his lodger, and steal his goods, he can only be convicted of
larceny, (h)
The 32 & 33 Vic., c. 21, s. 54, makes it felony to break
and enter any building, and commit any felony therein, such
building being within the curtilage of a dwelling-house, and
occupied therewith, though such building is not part thereof,
according to the law of burglary. It is also felony for any
one, being in any such building, to commit any felony therein,
and break out of the same. Sec. 56 makes it felony to break
and enter any dwelling-house, church, chapel, meeting-house,
or other place of divine worship, or any building within the
curtilage, school-house, shop, warehouse or counting-house,
with intent to commit any felony therein ; and sec. 57 pro-
vides that whosoever is indicted for any burglary, where the
breaking and entering are proved at the trial to have been
made in the daytime, and no breaking out appears to have
been made in the night-time, or where it is left doubtful
whether such breaking and entering, or breaking out, took
place in the day or night-time, shall be acquitted of the
burglary, but may be convicted of the offence specified in
the next preceding section. By sec. 58, it shall not be avail-
able, by way of defence, for a person charged with the offence
specified in the next preceding section but one, to show that
the breaking and entering were such as to amount in law to
burglary, provided that the otfender shall not be afterwards
prosecuted for burglary upon the same facts ; but it shall be
open to the court, before whom the trial for such offence takes
place, upon the application of the person conducting the
prosecution, to allow an acquittal, on the ground that the
offence, as proved, amounts to burglary ; and if an acquittal
takes place on such ground, and is so returned by the jury
in delivering their verdict, the same shall be recorded, to-
(h) Arch. Cr. Pldg. 496.
ROBBERY. 231
gether with the verdict, and such acquittal shall not then
avail as a bar or defence upon an indictment for such burglary.
Bobbery. — This offence consists in the felonious taking of
money or goods, of any value, from the person of another,
or in his presence, against his will, by violence, or putting
him in fear of purpose to steal the same, (t)
Robbery is, in effect, larceny, aggravated by circum-
stances of force, violence, or putting in fear ; and a party
indicted for robbery may be convicted of larceny, as the
latter crime is included in the former, (j") Force is a neces-
sary ingredient in robbery, but not in larceny. (&)
Merely snatching property from a person unawares, and
running away with it, will not be robbery, (f) because fear
cannot, in fact, be presumed in such a case. The rule ap-
pears to be well established that no such sudden taking or
snatching is sufficient to constitute robbery, unless some
injury be done to the person, or there be a previous struggle
for the possession of the property, or some force used to
obtain it. (m)
The fear must precede the taking, for if a man privately
steal money from the person of another, and afterwards
keep it, by putting him in fear, this is no robbery, for the
fear is subsequent to the taking, (ri)
The goods must be of some value to the party robbed ;
and therefore, where the defendant compelled the prose-
cutor, by threats, to sign a promissory note for a sum of
money, it was holden by the judges not to be robbery,
because the note was of no value to the prosecutor, who
had not even a property in or possession of the paper on
which it was written. (0) Under such circumstances, how-
ever, the defendant might now be indicted for the felony
described in the 32 & 33 Vic., c. 21, s. 47.
(•) Re Burley, 1 U. C. L. J. N. S. 50, per J. Wilton, J.
(j) Reg. v. McGrath, L. R. 1 C. C. R. 210-11, per Blackburn, J.
(k)Ibid.
(1) Reg. v. Baker, 1 Leach, 290 ; Reg. v. Wall*, 2 C. & K. 214.
(m) Arch. Cr. Pldg. 413-14.
(») Ibid. 416.
(o) Ibid.; Reg. v. Smith, 2 Den. 449 ; 21 L. J. (M. C.) 111.
232 THE CRIMINAL LAW OF CANADA.
The goods must be taken either from the person of tiie
prosecutor, or in his presence, (p) and against his will. If
the party robbed consent to the robbery, the offence will
not be made out ; but it is sufficient to prove that the
goods were either taken from him by force and violence, or
delivered up by him to the defendant, under the impression
of that degree of fear and apprehension which is necessary
to constitute robbery, (q)
The goods must appear to have been taken animo furandi,
as in other cases of larceny ; and if a person, under a bona
fidd impression that the property is his own, obtain it by
menace, that is a trespass, but not robbery, (r)
An actual taking, either by force, or upon delivery, is
necessary — that is, it must appear that the robber actually
got possession of the goods. The goods must also be car-
ried away, as in other cases of larceny ; but if the property
be once taken, the offence will not be purged by the robbers
delivering it back to the owner, (s)
Upon an indictment for robbery, or for an assault with
intent to rob, in different counts, it has been held that the
prosecutor ought to elect upon which count he would pro-
ceed, (t) But now, on the trial of an indictment for rob-
bery, the jury may convict of an assault with intent to
rob, (u) so that the necessity of several counts in such case
is obviated, (v)
The proviso in s. 17 of the 32 & 33 Vic., c. 21, was in-
tended to meet a difficulty which arose in Reg. v. Skeen. (w)
Larceny. — Theft is wrongfully obtaining possession of
any movable thing which is the property of some other
person, and of some value, with the fraudulent intent
entirely to deprive him of such thing, and have or deal
s. " "
(p) See Beg. v. Francis, 2 Str. 1015 ; Reg. v. Hamilton, 8 C. & P. 49
(q) Arch. (Jr. Pldg. 416-17.
(r) Ibid. ; Reg. v. Hall, 3 C. & P. 409.
(«) Arch. Cr. Pld. 417.
(t) Reg. v. Gough, 1 M. & Rob. 71.
(u) 32 & 33 Vic., c. 21, s. 40.
(») Arch. Cr. Pldg. 70.
(w) Bell, 97 ; 28 L. J. (M. C.) 91.
LARCENY. 233
with it as the property of some person other than the
owner. (#) Larceny has been also defined as the wrongful
or fraudulent taking, and carrying away, by any person, of
the mere personal goods of another, with a felonious intent
to convert them to his (the taker's) own use, and make them
his own property, without the consent of the owner, (y)
The goods taken must, in the absence of any express
statutory enactment, be personal goods, for none other can
be the subject of larceny at common law. (z) Bonds, bills,
etc., being mere choscs in action, are not the subject of lar-
ceny at common law, for they are of no intrinsic value, (a)
But the 32 & 33 Vic., c. 21, s. 15, and following sections,
now render the stealing, destroying, cancelling, obliterat-
ing, or concealing of any valuable security, or of any deed
relating to land, or any record of any court of justice, or
other legal documents, felony.
The police court of Toronto is a court of justice within
the meaning of these sections. (6)
The indictment under these sections must particularize
the kind of valuable security stolen, (c)
When a note, which had been by mistake made out in
favor of the defendant, and on discovery of the error
returned by him unstamped and unendorsed, and after-
wards stolen by him, and by him stamped and endorsed, it
was held not a valuable security, (d)
A party cannot commit larceny of a bond made by
another person to himself, and, especially, he could not be
guilty of larceny in stealing a bond from the obligor
because a bond in the hands of the obligor could be of no
value to him, as a bond, under any possible circumstances ;
(x) Cr. Law Comrs. 3rd Rep.
(y) Reg. v. McGrath, L. R. 1 C. C. R. 209, per Kelly, C. B. ; 39 L. J.
(M. C.)7.
(z) Arch. Cr. Pldg. 316.
(a) Ibid. 317.
(b) Reg. v. Mason, 22 U. C. C. P. 246.
(c) Reg. v. Lowrie, L. R. 1 C. C. R. 61 ; 36 L. J. (M. C.) 24.
(d) Scctt v. Reg., 2 S. R. C. 349.
234 THE CRIMINAL LAW OF CANADA.
and when the 2 Geo. II., c. 25, was in force, no other than
a bond for the payment of money could be the subject of
larceny, (e)
Certificates treated and dealt with on the London Stock
Exchange, as scrip of a foreign railway, are "valuable
security " within the 7 & 8 Geo. IV., e. 29, s. 5, and the
subject of larceny. (/)
On an indictment for stealing a piece of paper, the de-
fendant could not be convicted of stealing an agreement,
though unstamped, for building certain cottages, the work
under which agreement was actually in progress, (g)
Larceny cannot be committed of things which are not the
subject of property, (/t) But partridges hatched and reared
by a common hen, while they remain with her, and from
their inability to escape, are practically under the dominion
and in the power of the owner of the hen, may be the subject
of larceny, though the hen is not confind in a coop, or other-
wise, but allowed to wander with her brood about the premises
of her owner, (i)
Dogs not being the subject of larceny at common law, are
not chattels within 7 & 8 Geo. IV., c. 29, s. 53, (j)
There is no absolute property in animals ferae naturae, but
only a special or qualified right of property— a right rationi
soli to take and kill them ; and when killed upon the soil,
they become the absolute property of the owner of the soil
When the thing is not, in its original state, the subject
of larceny, it is necessary that the act of taking should not
be one continuous act with the act of severance, or other act,
by which the thing becomes the subject of larceny, (k)
(e) Caverley v. Caverley, 3 U. C. Q. B. O. S. 341, per Robinson, C. J.
(/) Reg. v. Smith, 2 U. C. L. J. 59 ; Dears. C. C. 561.
(g) Reg. v. Watts, Dears. 326 ; 23 L. J. (M, C.) 56 ; see now 32 & 33 Vic.
c. 21, s. 15.
(A) Arch. Cr. Pldg. 318.
(i) Reg. v. Shickle, L. R. 1 C.C.R. 158 ; 38 L.J. (M.C.) 21 ; Reg. v. Gory,
10 Cox, 23, followed.
(j) Reg. v. Robinson, 5 U. C. L. J. 143 ; Bell, 34 ; 28 L. J. (M.C.) 58.
(k) Reg. v. Townley, L. R. 1 C. C. R. 317, per BoinU, C. J.
LARCENY. 235
Thus where poachers, of whom the prisoner was one,
wrongfully killed a number of rabbits upon land belonging
to the Crown, and placed the rabbits in a ditch upon the
same land, some of the rabbite in bags and some strapped
together ; having no intention of abandoning the wrongful
possession of the rabbits which they had acquired by taking
them, but placing them in the ditch as a place of deposit till
they could conveniently remove them, which they did about
three hours afterwards ; it was held that the taking of the
rabbits and the removal of them was one continuous act, and
that the removal was therefore not larceny. (/)
But if the goods vest in the owner, in the interval between
the severance and the removal, it is larceny. (TO) Potatoes
red from the soil, or dug and in pits, are clearly the
subject of larceny, (n)
The distinction between grand and petty larceny has been
abolished, and now all larcenies, whatever be the value of
the property stolen, shall be deemed to be of the same nature*
and shall be subject to the same incidents in all respects as
•uTanti larceny was before the distinction between grand and
petly larceny was abolished, (o)
There must be an actual or constructive taking of the
goods, on the ground that larceny includes a trespass, (p)
There must also be a carrying away ; but, as the felony lies
in the very first act of removing the property, the least
removing of the thing taken from the place where it was
before, with intent to steal it, is a sufficient asportation. (q)
There must also be an animus furandi : i. e.t a felonious
intent to take the property of another against his will. The
essence of the offence is knowingly taking the goods of another
against his will, (r) If the goods were taken with the consent
(1) Reg. v. Toumley, L. R. 1 C. C. R. 315.
(m) Ibid. 318, per Bramwtll, B.
(«) Hunter \. Hunter, 25 U. C. Q. B. 146, per Hagarty, J.
(o) 32 & 33 Vie., c. 21, s. '2.
(p) 2 Russ. Cr. 152.
(q) Ibid.; see also Reg. v. Toumley, L. R, 1 C. C. R. 319, per Black
burn, J.
(r) Reg. v. Jtfc&ro/A, L. R. 1 C. C. R. 210-11, per Blackburn, J.; see Reg.
T. Prince, L. R. 1 C. C. R, 150 ; 38 L. J. (M. C.) 8.
236 THE CRIMINAL LAW OF CANADA.
of the owner then the property would pass, and according to
a distinction to be afterwards pointed out, it would not be
larceny. If not taken feloniously, the taking would amount
only to a bare trespass.
Thus, where the prisoner's goods were seized under war-
rants of execution of a county court, and were in possession
of a bailiff, and the prisoner, with intent to deprive the
bailiff, as he supposed, of his authority, and so defeat the
execution, forcibly took the warrants from him, without
any intent otherwise to make use of them, it was held
that the prisoner was not guilty of larceny, (s) But in
such case the prisoner might be guilty of taking the war-
rants for a fraudulent purpose, within the meaning of the
32 & 33 Vic., c. 21, s. 18, by which the stealing of any
records is made felony, (t)
Returning the goods may be evidence to negative the
animus furandi at the time of taking them, but it is no
evidence that the prisoner intended to return them when
taken, (u)
As to larceny of lost property, the general rule seems to
be that if a man find goods that have been actually lost, or
are reasonably supposed by him to have been lost, and ap-
propriates them, with intent to take the entire dominion
over them, really believing, when he takes them, that the
owner cannot be found, it is not larceny ; but if he takes
them with the like intent, though lost, or reasonably sup-
posed to be lost, but reasonably believing that the owner
can be found, it is larceny, (v) It is necessary that the
prisoner, at the time of finding, should believe that the
owner can be ascertained, and without this, an intention to
appropriate, at the time of the finding, will not make the
(«) Reg. v. Bailey, L. R. 1 C. C. R. 347.
(t) Ibid.
(u) Beg. v. Cumminys, 4 U. C. L. J. 189, per Sprayge, V. C. ; Reg. Y.
Trebilcock, 4 U. C. L. J. 168 ; Dears. & B. 453 ; 27 L. J. (M. C.) 103.
(v) Reg. v. Tkurborn, 1 Den. 388 ; 2 C. & K. 831 ; 18 L. J. (M. 0.) 140 ;
affirmed in Reg. v. Glyde, L. R. 1 C. C. R. 139; 37 L. J. (M. C.) 107.
LABCENV. 237
prisoner guilty of larceny, though he ascertained the name
of the owner before converting to his own use 10)
In these cases the first consideration is the prisoner's
ground for believing that the goods were abandoned, (x)
There is a distinction between property which is lost or
abandoned, and that which is only mislaid. If property
is abandoned, any one may acquire a right against the
owner, (y) and, as above explained, a person may, in certain
cases, acquire a lawful title to lost property, and cannot,
therefore, be found guilty of larceny. But if property i>
only mislaid or left in some place of deposit or security, a
person fraudulently appropriating it is guilty of larceny.
Thus where a purchaser at the prisoner's stall left his purse
in it, and a stranger pointed out the purse to the prisoner,
supposing it to be hers, and reproved her for careless ness,
when she put it in her pocket, and afterwards concealed
it. and on the return of the owner denied all knowledge
<»t it. Upon .an indictment for larceny, the jury found that
the prisoner took up the purse, knowing that it was not bei
own, intending at the same time to appropriate it tj her
own use, but that when she took it she did not know who
\va* the owner. She was held properly convicted, and that
the purse so left was not lost property, (z)
Next, the prisoner must, at the time of finding, have the
means of ascertaining who the owner is, or reasonably believe
that he can be found.
Upon an indictment for stealing a note, it was found by
the jury that the note was lost by the prosecutor and found
by the prisoner. There was no evidence that the note had
any name or other mark upon it indicating to whom it
belonged, nor was there evidence of any other circumstances
which would disclose to the prisoner, at the time when he
found it, the means of discovering the owner. It was held
(w) Reg. v. Glyde, supra.
(x) Ibid. 144, per Cockburn, C. J.
See fifij. v. Glydf, supra.
(i Re-j. v. We*t, 1 U. C. L. J. 17 ; Dears. 402 ; 24 L. J. (M. C.) 4.
238 THE CRIMINAL LAW OF CANADA.
that he could not be convicted of larceny, although the jury
being asked whether, at or after the time of finding, he
believed that there was not a reasonable probability that the
owner could be found, had answered that he did believe the
owner could be traced, (a)
Lastly, there must be evidence of a felonious intention to
appropriate the property at the time of finding ; and evidence
of a subsequent intention is insufficient. (&)
Thus, where the prisoner, a depositor in a Post Office
savings bank, in which 11s. stood to his credit, gave notice
to withdraw 10s., and the clerk at the office of payment, by
mistake referring to a letter of advice for £8 16s. 10d., laid
the latter sum upon the counter, which the prisoner, animo
furandi, took up and appropriated to his Own use, it was held
that he was guilty of larceny, (c)
But where a post letter, directed to J. D., containing a
Post Office order, was misdelivered to J. D., one of the
prisoners, who took it to W. D., the other prisoner, who read
it to him. Upon hearing its contents, J. D. said that the
letter and order were not for him, when W. I), advised him,
notwithstanding, to keep the letter, and get the money.
Both prisoners accordingly applied at the Post Office, and
obtained the money. It was held that a conviction of the
prisoners for stealing the order must be set aside, (d) as
there was no animus furandi at the time of taking.
It has been already stated that every larceny involves a
trespass, and that the taking must be animo furandi and
invito domini. If the possession of the goods is lawfully
obtained, there can be no larceny, nor can there be any
larceny if the property in the goods is divested. The
property in goods can only pass by a contract, which re-
quires the assent of two minds ; but it is of the essence of
the offence of larceny that the property be obtained against
(a) Reg. v. Dixon, 2 U. C. L. J. 19 ; Dears. 580 ; 25 L. J. (M. C.) 39.
(b) Reg. v. Christopher. 5 U. C. L. J. 143 ; Bell, 27 ; 28 L. J. M. C.) :V>.
(c) Reg. v. Middleton, L. R. 2 C. C. R. 38 ; see also Re<j. v. EimtKj, •_'!
U 0 C P 523
(d) Reg. v. Davies, 2 U. C. L. J. 137 ; Dears. 640; 25 L. J. (M. C.) !H.
LARCENY. 239
the will of the owner. If, therefore, the owner intends to
part with the property, by virtue of which intention the
property would pass, there can be no larceny, however
fraudulent the means by which the property is obtained.
Or the law may be stated thus : When the prosecutor
does not intend to part with the right of property in the
goods or money taken by the defendant, or, in some cases,
does not intend to part with the possession of them until
they are paid for, and the defendant fraudulently gets pos-
session of them, contrary to the intention of the owner,
intending all the time not to pay for them, then the jury
may find the party guilty of larceny. But where the owner
voluntarily parts with the possession and property of the
goods, and intends to vest them in the defendant, because
he relies upon the defendant's promise to pay the money,
or bring other property or money in place of those vested
in him, then the prisoner cannot be convicted of larceny. («)
Where a servant is intrusted with his master's property,
with a general or absolute authority to act for his master
in his business, and is induced, by fraud, to part with his
master's property, the person who is guilty of the fraud,
and so obtains the property, is guilty of obtaining it by
false pretences, and not of larceny, because, to constitute
larceny, there must be a taking against the will of the
owner, or of the owner's servant, duly authorized to act
generally for the owner. But where a servant has no such
general or absolute authority from his master, but is merely
entrusted with the possession of his goods for a special or
limited purpose, and is tricked out of that possession by
fraud, the person who is guilty of the fraud, and so obtains
the property, is guilty of larceny, because the servant has
no authority to part with the property in the goods, except
to fulfil the special purpose for which they were entrusted
to him. (/)
(e) Reg. v. Berths, 13 U. C. C. P. 610, per Richards, C. J.
(/) Reg. v. Prince, L. R. 1 C. C. R. 150 ; 38 L. J. (M. C.) 8.
240 THE CRIMINAL IAW OF CANADA.
The cashier of a bank is a servant having such general
authority ; and if he is deceived by a forged order, and parts
with the money of the bank, he parts intending to do so with
the property in the money ; and the person knowingly pre-
senting such forged order is guilty of obtaining the money by
false pretences, and not of larceny, (g)
The 32 & 33 Vic., c. 21, s. 93, has amended the law on
this point. The subtle distinction between these offences,
which this Act intended to remedy, was, that if a person, by
fraud, induced another to part with the possession only of his
goods, it was larceny ; while, if with the property as well as
the possession, it was not. Qi)
The following case will serve to make clearer the distinc-
tion : —
The prisoner, with another man, went into the shop of the
prosecutrix, and asked for a pennyworth of sweetmeats, for
which he put down a florin. The prosecutrix put it into
the money drawer, and put down Is. 6d. in silver and five-
pence in copper, in change^ which the prisoner took up. The
other man said, " You need not have changed," and threw
down a penny, which the prisoner took up, and the latter
then put down a sixpence in silver and sixpence in copper
on the counter, saying " Here, mistress, give me a shilling
for this." The prosecutrix took a shilling out of the money
.drawer, and put it on the counter, when the prisoner said
to her, " You may as well give me the two-shilling piece;
and take it all." The prosecutrix took from the money
drawer the florin she had received from the prisoner, and put
that on the counter, expecting she was to receive two
shillings of the prisoner's money in exchange for it. The
prisoner took up the florin, and the prosecutrix the silver
sixpence and the sixpence in copper, put down by the
prisoner, and also the shilling put down by herself, and was
putting them into the money drawer, when she said she had
(g) Reg. v. Prince, supra.
(h) Reg. v, Kilham, L. R. 1 C. C. R. 263, per Bovill, C. J.
LARCENY. 241
only got one shilling's worth of the prisoner's money ; but at
that moment the prisoner's companion drew away her atten-
tion, and, before she could speak, the prisoner pushed his com-
panion by the shoulder, and both went out of the shop. It
was held that the transaction was not complete, and that the
property in the florin had not passed to or revested in the
prisoner, and, on that ground, he was rightly convicted of
larceny, (i)
A. acted as auctioneer at a mock auction. He knocked
down some cloth for 26s. to B., who had not bid for it, as A.
knew. B. refused to take the cloth, or to pay for it, and A.
refused to allow her to leave the room unless she paid. Ulti-
mately, she paid the 26s. to A. and took the cloth. She paid
the 26s. because she was afraid. A. was indicted for, and
convicted of feloniously stealing the 26s. It was held that
the conviction was right, because, if the force used to B.
made the taking a robbery, all the elements of larceny were
included in that crime ; and if not sufficient to constitute a
robbery, the taking of the money, nevertheless, amounted to
larceny, as B. paid the money to A. against her will, and
because she was afraid. (/)
A. & B., by false representations, induced C. to become the
purchaser of a dress for 25s. They then took one guinea out
of her hand, she being taken by surprise, and neither con-
senting nor resisting, and left with her a dress of considerably
inferior value, but refused to give her one which they had
promised to give, if she would buy that. Upon a case re-
served, as to whether the facts warranted a verdict of guilty
of larceny, it was held that they did ; the court being bound
to assume that it was part of the fraud to obtain the property
by a false sale ; and, if so, there was no contract, but a fraud,
whereby the felony was committed, (k)
A quantity of wheat, not the property of the prosecutors,
(t) Rey. v. McKale, L. R. 1 C. C. R. 125 ; 37 L. J. (M. C.) 97.
(j ) Rfg. v. JUcGrath, L. R. 1 C. C. R. 205 ; 39 L. J. (M. C.) 7.
(k) Beg. v. Morgan, 1 U. C. L. J. 37 ; Dears. 395.
242 THE CRIMINAL LAW OF CANADA.
having been consigned to their care, was deposited in one of
their storehouses, under the care of a servant, E., who had
authority to deliver only to the orders of the prosecutors, or
C., their managing clerk. The prisoner, a servant of the pro-
secutors, at another storehouse, by representation to E. that
he had been sent by C. for some of the wheat and was to take
it to the Brighton Eailway, which representation was entirely
false, obtained the key from E, and was allowed to remove
five quarters, which he subsequently disposed of for his own
use, the prisoner assisting to put the five quarters into the
cart, in which it was conveyed away, and going with it. The
prisoner was held guilty of larceny ; for the wheat was de-
livered to him for a special purpose, namely, to be taken to
the Brighton Eailway, and the property remained in the pro-
secutors throughout, as bailees. (I)
But where the servants of a glovemaker broke open a store-
room on their master's premises, and removed to another
room, in the same premises, a quantity of finished gloves,
with the intent of fraudulently obtaining payment for them,
as for so many gloves finished by themselves, it was held that
they were not guilty of larceny, because there was no inten-
tion to divest the property in the goods, (m)
Where a man having animus furandi obtains, in pur-
suance thereof, possession of the goods by some trick or
artifice, the owner not intending to part with his entire right
of property, but with the temporary possession only, this is
considered such a taking as to constitute larceny, (n)
Thus it was the course of business at a colliery, where coal
was sold by retail, to take the carts, when loaded, to a weigh-
ing machine in the colliery yard, where they were weighed,
and the price of the coal was paid. The prisoner having gone
to the colliery with a fraudulent intent, a servant of the pro-
secutor, upon the prisoner saying he wanted a load of the
(1) Reg. v. Robins, 1 U. C. L. J. 17 ; Dears. C. C. 418.
(TO) Reg. T. Poole, 4 U. C. L. J. 73 ; 27 L. J. (M. C.) 53 ; Dears. & B.
345.
(n) Arch. Cr. Pldg. 333.
LARCENY. 243
best soft coal, loaded prisoner's cart with soft coal, and went
away, leaving him to take it to be weighed and pay for it.
The prisoner then fraudulently covered over the soft coal
with slack, an inferior coal, and by this trick, and by saying
that the coal in the cart was slack, induced the weighing
clerk, who did not know that the cart contained soft coal, to
weigh it as slack, and charge the prisoner accordingly. It
was held that the prisoner had obtained possession of the
soft coal by a trick, and that he was properly convicted of
larceny. (0)
A policeman, late at night, met the prosecutor, who had
just parted from a prostitute, and told him that he must
go with him (the policeman) to gaol, for he was under a
penalty of £1 for talking to a prostitute in the street :
but if he would give him 5s., he might go about his-
business. The prosecutor gave him 4s. 6d., but, while he
was searching for the other 6d., the inspector came. It was
held to be no answer to the charge, that all the money had
not been obtained. The offence was a larceny, and was
also a menace within the meaning of the Act. ( p)
Where a porter was employed by the vendor of goods to-
deliver them to the vendee, but had no authority to receive
the money for them, and the vendee, nevertheless, volun-
tarily, and without solicitation, paid the porter : it was held
by a majority of the judges that a conviction for larceny
was not sustainable, (q) as the possession of the money was .
lawfully obtained.
In the case of bailment or contract of hiring, it must
have been made to appear that the animus furandi existed
at the time of receiving the chattel, and was not induced
by anything that happened afterwards. (?•)
But by the 32 & 33 Vic., c. 21, a 3, the law in this re-
(o) Reg. v. Bramley, 7 U. C. L. J. 331 : L. k C. 21.
(p) Reg. v. Robertson, 1 1 L. T. Rep. NT. S. 387 ; L. & C. 483 ; 34 L. J,
(M. C.) 35 ; see also Reg. v. Ewmg, 21 U. C. Q. B. 523, as to what con-
stitutes larceny.
(q) Reg. v. Wheeler, 14 W. R. 848.
(r) Pease v. McAloon, 1 Kenr, 116, per Parker, J.
244 THE CRIMINAL LAW OF CANADA.
spect has been altered, and in cases of bailment a felonious
intent, at the time of obtaining, is no longer necessary to
constitute larceny.
Even before this statute, although the goods had, in the
first instance, been obtained without a felonious intent, yet
if the possession of them was obtained by a trespass, the
subsequent fraudulent appropriation of them, during the
continuance of the same transaction, was a larceny, (s)
A man cannot, however, be convicted of larceny as a
bailee, unless the bailment was to redeliver the very same
chattel or money, (t)
The prisoner, a carrier, was employed by the prosecu-
tor to deliver in his (the prisoner's) cart a boat's cargo of
coals to persons named in the list, to whom only he was
authorized to deliver them. Having fraudulently sold
some of the coals, and appropriated the proceeds, he was
held to have been properly convicted of larceny as a
bailee, (u}
And a prisoner who hire|i a pair of horses from a livery
stable, to go to a particular place, and afterwards absconded
with them, not intending at first to steal, but, having accom-
plished the object of hiring, made up his mind to convert
them to his own use, was held properly convicted on an
indictment for larceny, in the ordinary form, (v)
But the lessee of a pawn who sells it, is not guilty of lar-
ceny, under the above clause, (w)
A, th3 proprietor of a quantity of broom-corn, delivered it
to B., under the agreement that when B. should have manu-
factured it into brooms, he should not sell them, but that
A.'s clerk should sell them on A.'s account ; that A. should
deduct his advances from the proceeds of the sale of the
(«) See Reg. v. Riley, Dears. 149 ; 22 L. J. (M. C.) 48 ; Arch. Cr. Pldg.
340.
(/) Reg. v. Hoare, 1 F. & F. 647 ; Reg. v. Garrett, 2 F. & F. 14 ; Reg v.
Hassell, L. & C. 58 ; 30 L. J. (M. C.) 175.
(u) Reg. v. Dames, 14 W. R. 679 ; 10 Cox, 239.
(v) Reg. v. Tweedy, 23 U. C. Q. B. 120.
(10) Gould v. Coivan, 17 L. C. K. 46.
LARCENY. 245
brooms, and B. should have the balance. B. supplied the
smaller material requisite in working up the broom-corn into
brooms. B. did not keep his agreement with A., but manu-
factured the brooms and converted them to his own use. It
was held that A's delivery of the broom-corn to B. was a bail-
ment to him, and that B.'s fraudulently coiif erting it to his
own use was larceny, in the terms of Con. Stats. Can., c. 92,
s. 55. (x)
Money is property of which a person can be bailee, so as
to make him guilty of felony if he appropriates it to his own
use. (y)
And when a clerk, in performance of his duty, places
money received by him in a safe, the property of his em-
ployers, his exclusive possession ot that money ceases, even
though the office containing the safe be his, and a subsequent
appropriation of any of that money will amount to larceny, (z)
It seems that a married woman may be a bailee within 32
& 33 Vic, c. 21, s. 3. (a)
If the goods of the husband be taken with the consent or
privity of the wife, it is not larceny ; (b) and this even though
she has been guilty of adultery, (c) Still, the fact of her
being an adulteress might go to show a revocation of her
authority to dispose of her husband's goods ; and if others
acted in concert with her in taking, that might amount to
larceny on the part of those others, (d)
And where the prisoner was indicted for stealing certain
chattels from his master, while in his employment, it was
proved that he went off with his master's wife, animo adul'vrii,
and knowingly took his master's property with him. On
objection for the prisoner that he was acting under the control
(z) Reg. v. Lebceuf, 9 L. C. J. 245.
(y) Reg. v. Massey, 13 U. C. C. P. 484.
(z) Reg. v. Wright, 4 U. C. L. J. 167 ; Dears. 4. B. 431 ; 27 L. J. (M. C.)
65 ; and see Reg. v. Hennessy, 35 U. C. Q. B. 603.
(a) Reg. v. Robson, L & C. 93 ; 31 L. J. (M. C.) 22 ; Arch. Cr. Pldg. 341.
(b) Reg. v. Harrison, 1 Leach, 47 ; Reg. v. Avery, 5 U. C. L. J.
Bell, 150 : 28 L. J. (M. C.) 185.
(c) Reg v. Kenny, L. R. 2 Q. B. D. 307.
(d) Ibid., per KMy, C. B.
246 THE CRIMINAL LAW OF CANADA.
•of its mistress, who could not be charged with stealing from
her husband, and that, therefore, the charge could not be
sustained, the court sustained the conviction, (e)
A servant and a bailee, at common law, are in a different
position, for a bailee has the possession of the goods entrusted
to him, a servant only the custody. (/) A servant, there-
fore, not having the lawful possession of his master's goods,
might be guilty of larceny independently of the statute.
And where a servant, whose duty it was to pay his
master's workmen, and, for this purpose, to obtain the
necessary money from his master's cashier, fraudulently
represented to the cashier that the wages due to one of the
workmen were larger than they really were, and so obtained
from him a larger sum than was, in fact, necessary to pay
the workmen ; intending at the time to appropriate the
balance to his own use, which he afterwards did ; it was
held that, whether the obtaining the money in the first
instance was larceny, or obtaining the money by false pre-
tences, the money, while it remained in the prisoner's cus-
tody, was the property and in the possession of the master,
the prisoner being the servant of the latter, and therefore
the appropriation of it by the prisoner was larceny, (g)
The 32 & 33 Vic., c. 21, s. 38, enacts that "Whosoever,
being a member of any copartnership, owning any money
•or other property, or being one of ^two or more beneficial
•owners of any money or other property, steals, embezzles,
<or unlawfully converts the same or any part thereof to hi*
•own use, or that of any person other than the owner, shall
be liable to be dealt with, tried, convicted and punished as
if he had not been or were not a member of such copart-
nership, or one of such beneficial owners."
This section has been held practically inoperative in the
Province of Quebec, as a partner, having a right, both of
(e) Re Mutters, 13 W. R. 326 ; L. & C. 511 ; 34 L. J. (M. C.) 54.
(/) Reg. v. Cooke, L. R. 1 C. C. R. 300, per SomU, C. J.
(g) Ibi4. 295 ; but see Reg. v. Thompson, 32 L. J. (M. C.) 57 ; L. & C.,
233.
LARCENY. 247
possession and property, in the joint goods, the elements
of larceny and its kindred offences are wanting, (h] This
technical difficulty is precisely the evil which the section
was intended to remedy, and according to Lord Coke's rule,
is the consideration which should determine its construction.
Previously to the passing of this section, it was held in
the same province, that a shareholder in an incorporated
company could not commit larceny from the company, nor
be guilty of obtaining its money by false pretences, on
the ground that he was a joint owner of its funds and pro-
perty, (i)
It would seem that a party cannot be convicted under the
32 & 33 Vic., c. 21, s. 26, for stealing fruit, "growing in a
garden," unless the bough of the tree upon which the fruit
was hanging was within the garden. It is not sufficient that
the root of the tree is within the garden, (j]
The 32 <fe 33 Vic., c. 21, s. 25, applies only to trees attached
to the freehold, not to trees made into cordwood. (k)
In estimating the amount of the injury, under section 21 of
same statute, the injury done to two or more trees may be added
together, provided the trees are damaged at one and the same
time, or so nearly at the same time as to form one continuous
transaction. (/)
Before the passing of the 32 <fe 33 Vic., c. 21, ss. 5 and 6,
it was necessary that there should be a separate indictment
for each act of larceny, or the prosecutor must have proved
that the articles were all taken at the same time, or at several
times so near to each other as to form parts of one continuing
transaction, otherwise the court would have put the prose-
cutor to elect for which act of larceny he would proceed, (m)
But by this statute, three different acts may now be proved on
one indictment for larceny. The question, whether the several
(h) Reg. v. Lowenbnick, 18 L. C. J. 212.
(i) Reg. v. St. Louia, 10 L. C. K. 34.
(j ) McDonald v. Cameron, 4 U. C. Q. B. 1 ; see 4 & 5 Vic., c. 25, s. 34.
(i) Reg. v. Caswett, 33 U. C. Q. B. 303.
(1) Reg. v. Shepherd, L. E. 1 C. C. R. 118 ; 37 L. J. (M. C.) 45.
(m) Reg. v. Smith, Ry. & M. 295 : Arch. Cr. Pldg. 315.
248 THE CRIMINAL LAW OF CANADA.
acts are several takings or only one, is the same as before
that statute, (n)
Before the section is applicable, it must be established that
there were takings at different times, within the six months,
which are to be calculated from the first to the last of such
takings, (o)
Where gas was stolen by means of a pipe, which was joined
to the main and always remained full, the gas being turned
off only at the burners, it was held to be a continuous
taking, (p)
The 32 & 33 Vic., c. 21, s. 112, provides for the punish-
ment of persons bringing into or having in their possession
in Canada, knowingly, any property stolen, embezzled, con-
verted or obtained by fraud or false pretences, in any other
country, in such manner that the stealing, etc., in like man-
ner in Canada would., by the laws of Canada, be a felony or
misdemeanor.
The Court of Queen's Bench had, at common law, no juris-
diction to issue a writ of restitution, except as part of the
judgment on an appeal of larceny. The 21 Hy. VIII., c. 11,
and 32 & 33 Vic., c. 21, s. 113, only confer this jurisdiction
on the court before whom the felon has been convicted, (q)
Where the defence to a charge of larceny was that the
goods were the prisoner's own, and the jury brought in a
verdict of not guilty, it was held to be a virtual finding
that the goods were not the property of the prosecutor, and,
therefore, that the presiding judge could not order resti-
tution, (r)
If, upon an indictment for stealing, as the servant of the
prosecutor, money alleged to be his property, it appears from
the evidence that the prisoner stole the money from him, but
that he was not his servant, the allegation in the indictment
(n) Reg. v. Firth, L. R. 1 C. C. R. 175, per Bovill, C. J.
(o) Ibid.; Reg. v. Bleasdale, 2 C. & K. 765.
(p) Reg. v. Firth, L. R. 1 C. C. R. 172 ; 38 L. J. (M. C.) 54.
(q) Reg. v. Lord Mayor of London, L. R. 4 Q. B. 371.
(r) Reg. v. Eveleth, 5 All. 201.
LARCENY. 249
that he was his servant may be rejected as surplusage, and
the prisoner may be convicted of simple larceny, (s)
An indictment charging the prisonei with stealing bank
notes " of the moneys, goods, and chattels of one J. B.
sufficiently lays the property in the notes as the words.
" moneys, got)ds, and chattels " may be rejected as surplusage
and the indictment would then read " bank notes of one J.
B." (t) As stealing bank notes is expressly made larceny,
their legal character, as chattels, or otherwise, is not in
question, because stealing them eo nomine is made felony. (w)
The prisoner was sent by his fellow- work men to their com-
mon employer to get the wages due to all of them. He
received the money in a lump sum, wrapped up in paper
with the names of the workmen and the sum due to each
written inside ; it was held that he received the money as
the agent of his fellow-workmen, and not as the servant of
his employer, and as the money belonged to the workmen, it
was wrongly described as the property of the employer, (v)
A boy of fourteen years of age, living with, and assisting
his father in his business without wages, at one o'clock in
the day succeeded his father in the charge of his father's
stall, whence some goods of the latter were stolen by the
prisoner: it was held that, in a count for larceny, the owner-
ship of the goods could not be laid in the boy ; for he was
not a bailee, but a servant, (w)
One C. was owner of an ox, and verbally gave it to his
son, in whose name it was laid as being the owner in the
indictment. There was no removal at the time of the gift,
nor delivery, nor change of possession, nor writing ; but the
ox was in the sou's possession at the time of the theft. On
a case submitted for the opinion of the court, it was held
that, to make a valid gift of personal property inter vivos, it
(s) Reg. v. Jennings, 4 U. C. L. J. 166 ; Dears. & B. 447.
(t) Reg. v. Saunders, 10 U. C. Q. B. 544 ?Reg. v. Radley, 2 C. A K. 974.
(u) Reg. v. Saunders, supra, 544, per Robinson, C. J.
(v) Reg. v. Barnes, L. R. 1 C. C. R. 45 ; 35 L. J. (M. C.) 204.
(w) Reg. v. Green, 3 U. C. L. J. 19 ; Dears. & B. 113 ; 26 L. J.
(M. C.) 17.
"250 THE CRIMINAL LAW OF CANADA.
is not necessary that there should be an actual delivery and
change of possession. It is sufficient to complete such a
•gift, that the conduct of the parties should show that the
•ownership of the chattel has been changed, or that there has
been an acceptance by the donee, and that therefore the pro-
perty was well laid in the indictment, (xj
The prisoner was indicted for stealing the cattle of R. M.
At the trial E. M. gave evidence that he was nineteen years
of age ; that his father was dead ; that the goods were
bought with the proceeds of his father's estate ; that his
mother was administratrix, and that the witness managed
the property, and bought the cattle in question. On ob-
jection that the property in the cattle was wrongly laid,
the indictment was amended by stating the goods to be the
property of the mother. The case proceeded, and no further
evidence of the administrative character of the mother
was given ; the county court judge holding the evidence of
R. M. sufficient, and not leaving any question, as to the
property, to the jury. On a case reserved, it was held that
there was ample evidence of possession in R. M., to support
the indictment, without amendment, (y) The conviction
on the amended indictment was not sustainable, as the
judge had apparently treated the case, as established by the
fact of the cattle being the mother's property in her repre-
sentative character, of which there was no evidence, nor
was any question of ownership by her, apart from her
representative character, left to the jury, (z)
Formerly, where goods stolen were the property of part-
ners or joint owners, all the partners or joint owners must
have been correctly named in the indictment, otherwise the
defendants would have been acquitted, (a) But now the 32
& 33 Vic., c. 29, s. 17, provides that it shall be sufficient to
name one of such persons, and to state the property to be-
(x) Reg. v. Carter, 13 U. C. C. P. 611.
(y) Reg. v. Jackson, 19 U. C. C. P. 280.
(z) Ibid.
(a) Reg. v. Quinn, 29 U. C. Q. B. 163, per Richard*, C. J.
LARCKNV. 251
long to the person so named, and another or others as the
case may be. The provisions of this statute must be strictly
complied with. (6) Where an indictment under the old 23
Vic., c. 37, s. 1, charged defendant with procuring certain
persons to cut trees, the property of A. B. & C., growing on
certain land belonging to them, and the evidence showed
that the land belonged to them and another or others as
tenants in common ; it was held that the conviction could
not be supported, (c) An indictment for breaking into a
church, and stealing vestments there, and describing the
goods stolen as the property of " the parishioners of the said
church," was held insufficient, and that they must be laid as
the property of some person or persons individually, (cc) But
having regard to the grounds of the decision in this case, and
the language of the 32 & 33 Vic., c. 29, s. 19, it is appre-
hended that an indictment, in the above form, would now be
sufficient.
S. and C., carmen of the Great Northern Railway Com-
pany, left the station in Middlesex, to proceed to Woolwich,
in Kent, with one of the company's waggons, and, before
starting, the usual oats, etc., for provender for the horses
were given out to them and placed in the waggon in nose-
bags ; at Woolwich, they took the nosebags from the waggon
and delivered them to B., an ostler, for 6d. Upon an indict-
ment at the Middlesex Sessions against S. and C. for stealing
the oats, etc., and B. for receiving, they were foiind guilty.
It was held that the case was within 7 Geo. IV., c. 64,
s. 13 ; (d) and that though the offences were committed in
Kent, the prisoners might be tried in Middlesex, (dd)
The prisoner stole a watch at Liverpool, and sent it by
rail to a confederate in London, and it was held that the
constructive possession, which is equivalent to the actual
(b) Reg. v. Quinn, 29 U. C. Q. B. 163, per Richards, C. J.
(c) Ibid. 158.
(cc) Reg. v. O'Brien, 13 U. C. Q. B. 436.
(d) See 32 & 33 Vic., c. 29. s. 9.
(dd) Reg. v. Sharp, 1 U. C. L. J. 17 ; Dears. C. C. 416.
252 THE CRIMINAL LAW OF CANADA.
possession, still remained in the prisoner, and that, under
the Imp. 24 & 25 Vic., c. 96, s. 114 (by which the prisoner
may be indicted where he has. the property in his possession,
though stolen in another part of the United Kingdom), lie
was triable at the Middlesex Sessions, (e)
Where a count for larceny charges the stealing of a great
number of things, a general verdict of guilty will be sup-
ported by evidence that any one of the things mentioned
has been stolen, notwithstanding there is no evidence as to
the rest, (ee)
If larceny be committed by a lodger, the goods may be
described as the property of the owner or person letting to
hire. (/)
Stealing from the person. — To constitute a stealing from
the person, the thing stolen must be completely removed
from the person, (ff)
To constitute an attempt to steal, some act must be done
towards the complete offence. Feeling a coat-tail to ascer-
tain if there is anything in the pocket, is not an attempt to
do the act of picking the pocket, for it may be that nothing
was found to be in it, and therefore the prisoner does not
proceed to the commission of the act itself, and, if there is
nothing in the pocket, even putting the hand into it has
been held not to be an attempt to steal, (g)
The prosecutor carried his watch in his waistcoat pocket,
the chain attached passing through a buttonhole of the
waistcoat, and being there kept from slipping through by
a watch key. The prisoner took the watch out of the
pocket, and drew the chain out of the buttonhole, but, hi^
hand being seized, it appeared that, although the chain and
key were drawn out of the buttonhole, the point of the
key had caught up another button, and was thereby sus-
(e) Reg. v. Rogers, L. R. 1 C. C. R. 136 ; 37 L. J. (M. C.) 83.
(ee) Reg. v. Johnson, 4 U. C. L. J. 49 ; 1 Dears. & B. C. C. 310.
(/) 32 & 33 Vic , c. 21, s. 75 ; see Reg. v. Healey, 1 Mood. C. C. 1.
( ff ) 2 Russ. Or. 359.
(g) Reg. v. Taylor, 8 C. L. J. N. S. 55, per Sergeant Cox.
STEALING FROM THE PERSON" — EMBEZZLEMENT. 253
pended. It was held that the evidence was sufficient to
warrant a conviction for stealing from the person, (gg)
In order to bring a case within the 32 & 33 Vic., c. 21. s.
44, as to obtaining property by threats, the demand, if suc-
cessful, must amount to stealing, and to constitute a menace,
within that section, it must be of such a nature as to unsettle
the mind of the person upon whom it operates, and to take
away from his acts that element of voluntary action which
alone constitutes consent ; it must, therefore, be left to the
jury to say whether the conduct of the prisoner is such as
to have had that effect upon the prosecutor. (Ji)
Where a policeman professing to act under legal authority
threatens to imprison a person, on a charge not amounting
to an offence in law, unless money be given him, and the
person, believing him, gives the money, the policeman may
be indicted under that section, although he might also have
been indicted for stealing the money, (i)
Demanding, with menaces, money actually due is not a
demanding with intent to steal (j)
Embezzlement. — This offence is defined to be the act of
appropriating to himself that which is received by one
person in trust for another. (&) But in this large sense it
was not criminal at common law. nor has it been rendered
so by statute. The legislature, however, has from time to
time specified different classes of cases, all coming within
the meaning of the term embezzlement in the above sense,
which it has declared to be criminal. (I)
Embezzlement, in its usual and more limited acceptation,
imports the reception of money belonging to the master or
employer of him who receives it in the course of his duty,
(gg) Reg. v. Simpson, 1 U. C. L. J. 16 ; Dears. 621 ; 24 L. J. (M. C.)7 :
see also Reg. v. Thompson, 1 Mood. C. (J. 78.
(h) Reg. v. Walton, L. & C. 288 ; 32 L. J. (M. C.) 79.
<i> Rerj. v. Robrrtson, L. k C. 483; 34 L. J. (M. C.) 35.
(j)-Reg. v. Johnson, 14 U. C. Q. B. 569.
(*) Reg. v. Cumndngs, 4 U. C. L. J. 183, per Blake. Oh.
(I) Ibid.
254 THE CRIMINAL LAW OF CANADA.
and the fraudulent appropriation of that money before it
gets into the possession of the master, (m)
To constitute the crime of embezzlement, there must be an
employment as clerk or servant.
Thus the prisoner, not having been in the employ of the
prosecutor, was sent by him to one M. with a horse, as to
which M. and the prosecutor, who owned the horse, had had
some negotiations, with an order to M. to give the bearer a
cheque if the horse suited. Owing to a difference as to the
price, the horse was not taken and the prisoner brought him
back. Afterwards, on the same evening, the prisoner, without
any authority from the prosecutor, took the horse to M. and
sold it as his own property, or professing to have the right to
dispose of it, and received the money, giving a receipt there-
for. It was held that the employment had ceased, and that
when the prisoner received the money he received it for his
own use and not as clerk or servant of the prosecutor, and
that therefore a conviction for embezzlement could not be
sustained, (ri)
But where a " charter master," who received a certain sum
for every ton of coal he raised, was also allowed to sell coal
for his employer, the owner of the colliery, it being the
prisoner's duty to pay over the gross money received on such
sales, he being subsequently allowed a poundage thereon : he
was held guilty of embezzlement for having converted money
received for coal to his own use, and neglected to account for
it. (o)
A person who receives no remuneration for his services, is
not a clerk or servant within the Act ; (p) but that character
may be established if the party is entitled to recover for his
services on a quantum meruii. (q)
A mortgagor, though strictly a tenant at sufferance, cannot
(»i) Ferris v. frwin, 10 U. C. C. P. 117, per Draper, C. J.
(n) Reg. v. Topple, 3 Russell & C. 566.
(o) Reg. v. Thomas, 1 U. C. L. J. 37 ; 6 Cox, C. C. 403.
(p) Reg. v. Tyree, L. R. 1 C. C. R. 177 ; 38 L. J. (M. C.) 58.
(q) Reg. v. Fvulkes, L, R. 2 C. C. R. 150.
STEALING FROM THE PERSON — EMBEZZLEMENT. 255
be convicted of embezzlement in relation to the mortgaged
property, (r)
It seems from the cases that a commercial traveller,
whether paid by commission or salary, who is under orders
to go here and there, is a clerk or servant within the mean-
O *
ing of the statute ; (s) and this, though at liberty to take
orders for others, (t) It is a question for the jury whether a
pei son is a clerk or servant, (it)
The employment to receive money may be sufficient, though
receiving money is not the prisoner's usual employment, and
though it may have been the only instance of his having
been so employed, (u)
The chattels, moneys or valuable securities must be re-
ceived from third persons; if from the employer himself, if
any offence, it will amount to larceny, (v) This distinction-
is, however, of little practical importance, as section 74 of the/
statute under consideration provides that persons indicted for
embezzlement may be convicted of larceny, and vice versa.
The money or securities must be received in the name, or
for, or on account of the employer.
Thus, where the prisoner was apprenticed to a baker, and
had authority from his master to deliver bills for bread to
customers and receive the money, and in payment of one
account took a bank cheque payable to his master's order,
upon which he forged his master's name and received the
money from the bank : it was held that the money received
never having been the property of his employer, but the
property of the bank — the forgery not operating to discharge
the bank — was not received for or on account of the master,
and that therefore the person was not guilty of embezzle-
ment (w)
(r) McGregor v. Scarlett, 7 U. C. P. R. 20.
(*) Arch. Crim. Pldg. 448; Reg. v. Afayle, 11 Cox. 150; Reg. v.
Marshall, 11 Cox, 490 ; but see Reg. v. Bowers, L. R. 1 C. C. R. 41 ; 35
L. J. (M. C., 206 ; Beg. v. Negus, L. R. 2 C. C. R. 34.
(0 Reg. v. Tite, 7 U. C. L. J. 331 ; 30 L. J. (M. C.) 142.
(U) See Reg. v. Negus, L. R. 2 C. C. R. 34.
(u) Reg. v. Tongue, 8 U. C. L. J. 55 ; Bell, 289 ; 30 L. J. (M. C.) 49.
(v} Reg. v. Cummings, 4 U. C. L, J. 182 ; 16 U. C. Q. B. 15.
(to) Reg. v. Hathaway, 6 Allen, 382.
256 THE CRIMINAL LAW OF CANADA.
So where the prisoner, the captain of a barge in the ex-
clusive service of its owner, to whom the prisoner was bound
to account for all its earnings, and having no authority to
take any other cargoes than those appointed for him, took on
board a certain cargo, though ordered not to carry it but to
bring the vessel back empty, and received the freight there-
for, and appropriated it to his own use, not professing to
receive it for his master, and on being charged with disobe-
dience to orders, declared that the vessel had come back
empty ; it was held that the money was not received for or
on account of his master within the meaning of the Act. (x)
But where a clerk, whose duty it was to endorse cheques
and hand them over to the cashier of the company in whose
employ he was, endorsed several cheques and obtained money
for them from friends of his own, and paid the proceeds over
to the cashier, saying he wished them to go against his salary,
which was overdrawn : on conviction, it was held that such
proceeds were received on account of the company, and that
the prisoner was therefore rightly convicted, (y)
The former statute, Con. Stat. Can., c. 92, rendered it
necessary that the prisoner should have received the money
" by virtue of such employment," and that the money was
so received must have appeared in evidence ; (z) but those
words are omitted in the present enactment on the subject,
so it is apprehended that if a clerk or servant receive money
for his master and embezzle it, he may now be convicted of
embezzlement, although it was neither his duty to receive
it, nor had he authority to do so. (a)
The statute applies whether the employer be an indi-
vidual or a corporation ; and it has been held that friendly
societies, though some of their rules may be in restraint of
(x) Reg. v. Outturn, L. R. 2 C. C. R. 28.
(y) Reg. v. Gale, L. R. 2 Q. B. D. 114.
(z) See Reg. v. Tkorley, 1 Mood. C. C. 343 ; Reg. v. Hawtin, 7 C. & I'.
281 ; Reg. v. Mellish, R. & R. 80 ; Reg. v. Snowley, 4 C. & P. 390 ; Ferri*
v. Irwin, 10 U. C. C. P. 116.
(a) See Arch. Cr. Pldg. 453.
EMBEZZLEMENT. 257
trade, are entitled to the protection of the criminal law
over their funds. (6)
Where the property was laid on a trustee of a savings
bank, it was held not enough to show1 merely that the
trustee acted as such on one occasion, without producing
evidence of his appointment, (c)
Where a fund belonging to the late Trinity House was
vested by statute in the master, deputy-master and wardens
of the Trinity House of Montreal, the property was held
properly laid in Her Majesty, (d)
It is no defence to an indictment for embezzlement that
the prisoner intended to return the money fraudulently
appropriated ; (e) nor that he had entered the sum appro-
priated in his master's ledger. /(/) And omitting to credit
a sum received, but charging it as paid away, for the frau-
dulent purpose of concealing an appropriation, is ample to
support a conviction, (c/) But the prisoner must be shown
to have received some particular sum, (h) and a general
deficiency of account will not alone ground a conviction, (i)
There have been several decisions, both in England and in
this country, under the 32 & 33 Vic., c. 21, s. 76, and fol-
lowing sections, relating to frauds by persons intrusted, the
results of which are given below.
As to intrusting. — The defendant, an attorney, was em-
ployed to raise a loan of money on mortgage, of which he
was to apply a part in paying off an earlier mortgage, and
hand over the rest to the mortgagor. He prepared the
(b) Reg. v. Stainer, L. R. J. 1 C. C. R. 230 ; 39 L. R. (M. C.) 64.
(c) Reg. v. Essex, 4 U. 0. L. J. 73 ; Dears. & B. 371 ; 27 L. J. (M.C.) 20.
(rf) Reg. v. David, 17 L. C. J. 310.
(e) Reg. v. Cummings, 4 U. C. L. J. 189, per Spragge, V. C.
(/) Reg v. Lister, 3 U. C. L. J. 18 ; Dears. & B. H9 ; L. J. (M.C.) 26.
(g) Reg. v. Cummings, supra.
(h) Reg. v. Chapman, 1 C. & K. 119, per Williams, J. ; Reg. v. Jones. 7
<'. & P. 833, perBolland. B. ; Reg. v. Wolstenholme, 11 Cox, 313, per Brett,
•i. ; but see Reg. v. Lambert, 2 Cox, 309, per Erie, J. ; Reg. v. Moah,
Dears. 626 ; 25 L. J. (M.C. ) 66.
(i) Reg. v. Jones, 8 C. & P. 288, per Alderson, B. ; Reg. v. Cummings,
4 U. C. L. J. 185, per Draper, C. J.
258 THE CRIMINAL LAW OF CANADA.
mortgage deed, received the mortgage money, and handed
over the deed to the mortgagee in exchange. He then mis-
appropriated a part of the money to his own use. It was
held that he was hot " intrusted" for any of the purposes
mentioned in sections 76 or 77. (f)
And an agent who properly receives money by check pay-
able to his own order, and deposits the same in his own bank,
and fails to pay over, is not indictable under section 78 for
having securities for special purpose without authority to
negotiate. (&)
The words " or other agent " do not extend the meaning
of the previous clause, "banker, merchant, broker, attorney/'
but only signify persons, the nature of whose occupation
was such that chattels, valuable secuiities, etc., belonging to
third persons would, in the usual course of their business,
be intrusted to them. (/)
Where the prisoner, a stock and share broker, wrote to
the prosecutrix, stating that he had purchased certain bonds
for her, and enclosed a contract note with the letter, and
the prosecutrix, in reply, sent the following : " I have just
received your note and contract note for three I shares
(those mentioned in the prisoner's letter), and enclose a
cheque for £336 in payment ;" and the prisoner never paid
for the bonds, but in violation of good faith appropriated
to his own use the proceeds of the cheque. It was held that
the letter of the prosecutrix was a direction in writing within
section 76, and that the prisoner was properly convicted, (wt)
The power of attorney mentioned in section 78 must be
a written one, and a merely verbal authority will not bring
the defendant's act within the scope of that section, (ri)
On an indictment under the corresponding English section
of the 32 & 33 Vic., c. 21, s. 73, it appeared that the prisoner
was a member of a copartnership. It was his duty to receive
(/) Reg. v. Cooper, L. R. 2 C. C. R. 123.
(k) Reg. v. Tatlock, L. R. 2 Q. B. D. 157.
(1) Reg. v. Hynes, 13 U. C. Q. B. 194.
(m) Reg. v. Christian. L. R. 2 C. C. R. 94.
(») Reg. v. Chouinard, 4 Q. L. R. 220.
EMBEZZLEMENT. 259
money for the copartnership, and once a week to render an
account, and pay over the gross amount received during
the previous week, which was usually received in a number
of small sums from day to day. He was indicted for em-
bezzling three different sums, amounting, in the aggregate,
to £3 13s., received into his possession on the 5th, 12th,
and 17th days of December, 1870, respectively, being within
six months from the first to the last of the said receipts.
It appeared, in evidence, that the said aggregate sum was
received by ten small payments for the first and second
weeks respectively, and eleven small payments in the third
week ; and it was held that the prisoner might be properly
charged with embezzling the weekly aggregates — that three
acts of embezzlement of such weekly aggregates, within six
months, might be charged and proved under one indictment,
and that evidence of the small sums received during each
week was admissible, to show how the weekly aggregates
were made up. (0)
But if a man receives a number of small sums, and has
to account for each of them separately, only three instances
of failure to account can be proved under one indictment.
In the above case, the prisoner might have been indicted
for embezzling any of the separate small sums received by
him. (p)
The 32 & 33 Vic., c. 29, s. 25, does not justify an allegation
in an indictment of the embezzlement of money when a
cheque only has been embezzled, and there is no proof that
the prisoner has even cashed it. (q) But if the cheque is
turned into money, the prisoner may be indicted for em-
bezzling the money ; and, upon such indictment, the em-
bezzlement of the cheque, and conversion of it into money
may be shown, or the prisoner may be indicted for the em-
bezzlement of the cheque, (r)
(o) Reg. v. Batta, L. R. 1 C. C. R. 328.
(p) Ibid. 332-3, per Cockburn, C. J. •
(q) Reg. v. Keena, L. R. 1 C. C. R. 113 ; 37 L. J. (M. C.) 43.
(r) Ibid. 114, per Cockburn, C. J.
260 THE CRIMINAL LAW OF CANADA.
In Reg. v. Bullock, (s) it was held, under the facts shown
in the case, that the money was not improperly charged to
be the money of the county of Essex, though it was received
for the township of Maidstone, within the county, and was to
be accounted for to it by the county ; for, from the moment
of payment, the county was responsible for the money, and
had a special property in it.
A person who is nominated and elected assistant overseer,
under the 59 Geo. III., c. 12, s. 7, by the inhabitants of a
parish in vestry, and who is afterwards appointed assistant
overseer by the warrant of two justices, and performs the
duties of an overseer, is well described in an indictment
for embezzlement as the servant of the inhabitants of the
parish, (t)
It has been held that the form of indictment, given by
the Con. Stats. Can., c. 99, s. 51, was only applicable to em-
bezzlement under c. 92, s. 42. (u)
In an indictment for embezzlement, where the offence
relates to any money, or any valuable security, it shall be
sufficient to allege the embezzlement to be of money, without
specifying any particular coin or valuable security ; and such
allegation, so far as regards the description of the property,
shall be sustained by proof of the embezzlement of any
amount, although the particular species of coin, or valuable
security, of which such amount was composed, is not proved,
etc. (v)
False pretences. — The law as to false pretences has been
construed, of late years, in a much more liberal spirit than
formerly ; (w) still cases of considerable technical difficulty
sometimes arise, so that a discussion of the various elements
of the offence is' necessary.
First, there must be a false pretence of an existing fact, and
a mere promise to do an act will not suffice,
Is) 19 U. C. Q. B. 513.
•ft) Reg. v. Carpenter. L. R. 1 C. C. R. 23 ; 35 L. J. (M. C.) 169.
(it) Req. v. Cummings, 4 U. C. L. J. 182 (in E. & A.)
» 32 & 33 Vic., c. 21, s. 73 ; see Reg. v. Hall, 3 Stark, 67 ; R. & R. 463.
i »') Reg. v. Lee, 23 U. C. Q. B. 340, per Hayarty, J.
FALSE PRETENCES. 261
Thus, procuring a promissory note, by a promise to give
the prosecutor $600 ou what he would have out of the pro-
ceeds of the note, when discounted, is not sufficient to sustain
a conviction, (x)
And where D. was to pay for all goods supplied to the
prisoner to the amount of a certain promissory note held
by the prisoner against D., the amounts supplied to be en-
dorsed on the note ; and the prisoner obtained goods without
producing the note, saying he would bring it down and
have the amount endorsed in a day or two, but intending
not to do so nor to pay for the goods. The prisoner having
been found guilty, was held to have been improperly con-
victed, (y)
But inducing a person to buy certain packages by repre-
senting that they contained good tea, when three-fourths of
their contents were, to the prisoner's knowledge, not tea at
all, but a mixture of substances unfit to drink, is a false
representation of an existing fact, (z)
So the selling of a railway pass, good only to carry a
particular person, and which the purchaser could not use
except by committing a fraud upon the railway company,
and at the risk of being at any moment expelled from the
train, is a false pretence within the statute, (a)
So a false representation by a.married man that he is
single, thereby inducing a single woman to part with her
money to him, for the purpose of furnishing a house, is a
false pretence ; and one false fact by which money is ob-
tained is sufficient to support an indictment, although it
may be united with false promises which would not of
themselves do so. (b)
The giving a cheque does not amount to a representation
that there is money of the drawer's at the bank indicated,
(x) Beg. v. Piciup, 10 L. C. J. 310.
(y) Res v. Bertie, 13 U. C. C. P. 607.
(z) Rf.g. v. Foster, L. R. 2 Q. B. D. 301.
(a) Reg. v. Abrahams, 24 L. C. J. 325.
(6) Reg. v. Jennison, 9 U. C. L. J. 83 ; 6 L. T. Reps. N. S. 256 : 31 L. J.
(M. C.) 146 ; Reg. v. Lee, 23 U. C. Q. B. 340, per Hagarty, J.
\
262 THE CRIMINAL LAW OF CANADA.
but it is a representation of authority to draw, or that it is
a valid order for payment of the amount, (c)
The false representation by a person that he is in a large
way of business, whereby he induces another to give him
goods, is a false pretence, (d) So also is the obtaining a loan
upon the security of a piece of land, by falsely and fraudu-
lently representing that a house is built upon it. (e) And
threatening to sue on a note which the prosecutor had made
in favor of the prisoner, and which the prisoner had nego-
tiated but pretended he was still the holder of, and thereby
induced the prosecutor to pay, is a false pretence. (/)
And under the more recent decisions, the execution of a
contract, between the same parties, does not secure from
punishment the obtaining of money under false pretences in
conformity with that contract, (g)
Fraudulently misrepresenting the amount of a bank note,
and thereby obtaining a larger sum than its value in change,
is obtaining money by false pretences, although the person
deceived has the means of detection at hand, and the note
is a genuine bank note, (ti)
And where a prisoner obtained money and goods, by pre-
tending that a piece of paper was the bank note of an exist-
ing solvent firm, knowing that the bank had stopped payment
forty years before, he was held guilty of false pretences, (i)
But the fact that a bank note was the note of a private bank,
which had paid a dividend of 2s. 4d. on the pound, and
no longer existed, and that a neighboring bank would not
(c) Reg. v. Hazleton, L. R. 2 C. C. R. 134.
(d) Reg. v. Cooper, L. R. 2 Q. B. D. 510 ; Reg. v. Crab, 5 U. C. L. J.N. S.
21, per Ketty, C. B.; 11 Cox, 85.
(e) Reg. v. Burgon, 2 U. C. L. J. 138 ; Dears. & B. 11 ; 25 L. J. (M. C.)
105; Reg. v. Huppel, 21 U. C. Q. B. 281.
(/) Reg. v. Lee, 23 U. C. Q. B. 340.
(g) See Reg. v. Abbott, 1 Den. 173 ; 2 C. & K. 630 ; Reg. v. Boss, Bell,
208 ; 29 L. J. (M. C.) 86 ; Reg. v. Meakin, 11 Cox, 270; Arch. Cr. Pldg.
473
(h) Reg. v. Jessop, 4 U.C.L.J. 167 ; Dears. & B. 442 ; 27 L. J. (M.C.) 70.
(t) Reg. v. Dowey, 16 W. R. 344 ; 37 L. J. (M.C.) 52 ; and see Reg. v.
Brady, 26 U. C. Q. B. 14.
FALSE PRETENCES. 263
change it, was held not sufficient from which to infer that
the note was of no value whatever. (/)
Upon an indictment alleging that the prisoner obtained a
coat, by falsely pretending that a bill of parcels of a coat of
the value of 14s. 6d., of which 4s. 6d. had been paid on
account, was a bill of parcels of another coat of the value of
22s., which the prisoner had had made to measure, and that
10s. only were due, it was proved that the prisoner's wife had
selected the 14s. 6d. coat for him, at the prosecutor's shop,
subject to its fitting on his calling to try it on, and had paid
4s. 6d. on account, for which she received a bill of parcels
giving credit for that amount. On the prisoner's calling to
try on the coat, it was found to be too small, and he was
then measured for one, which he ordered to be made, to cost
22s. ; and on the day named for trying on that coat he
called, and the coat was fitted on by the prosecutor, who had
not been present on the former occasion ; and the case stated
that the prisoner, on the coat being given to him, handed
10s. and the bill of paicels for the 14s. 6d. coat, saying,
" There is 10s. to pay," which bill the prosecutor handed to
his daughter, to examine, and upon that the prisoner put
the coat under his arm, and, after the bill of parcels referred
to had been handed to him with a receipt, went away. The
prosecutor stated that, believing the bill of parcels to be a
genuine bill, and that it referred to the 22s. coat, he parted
with that coat on payment of the 10s., which otherwise he
should not have done. It was held that there was evidence
to go to the jury, and that the conviction was right, (k)
Where a prisoner, who had been discharged from A.'s
service, went to the store of 0. and 3., and representing him-
self as still in the employ of A., who was a customer of O.
and S., asked for goods in A.'s name, which were sent to A.'s
house, where the prisoner preceded the goods, and, as soon
as the clerk delivered the parcel, snatched it from him, saying,
"This is for me; I am going in to see A.;" but instead of doing
(j) Reg. v. Evans, 6 U. C. L. J. 262 ; Bell, 187 ; 29 L. J. (M.C.) 20.
{*) Rey. v. Steels, 16 W. R. 341.
264 THE CRIMINAL LAW OF CANADA.
so, walked out of the house with the parcel. It was held
that the prisoner was rightly convicted of having obtained
the goods from O. and S. under false pretences. (I)
The false pretence may be of a past or an existing fact, (m)
It would seem that indefinite or exaggerated praise, upon
a matter of indefinite opinion, cannot be made the ground of
an indictment for false pretences, (n)
But where the prisoner induced the prosecutor to purchase
a chain from him, by fraudulently representing to him that
it was 1 5 carat gold, when, in fact, it was only of a quality a
trifle better than 6 carat, knowing at the time that he was
falsely representing the quality of the chain, it was held that
the statement was not mere exaggerated praise, nor relating
to a mere matter of opinion, but a statement as to a specific
fact within the knowledge of the prisoner, and a false pre-
tence, (o) It would seem, from this case, that a specific repre-
sentation of quality, if known to be false, is within the
statute, (p)
Not only is a false pretence of an existing fact necessary,
but the prosecutor must have been induced to part with his
property in consequence thereof ; (q) and if the money is
parted with from a desire to secure the conviction of the
prisoner, there is no obtaining by false pretences, (r)
And where the defendant made false representations to the
prosecutor, and thereby induced him to sell his horses to
him, but the prosecutor afterwards, on learning the falsity of
the representations, entered into a new agreement in writing
(1) Reg. v. Robinson, 9 L. C. R. 278.
(m) Reg. v. Gemmcll, 26 U. C. Q. B. 314, per Hagarty, 3. ; Reg. v. Giles,
11 L. T. Rep. N. S. 643 ; 10 Cox, 44.
(n) Reg. v. Goss, Bell, 208 ; 29 L. J. (M.C.) 90, per Erie, C. J.; Reg. v.
Bryan, Dears. & B. 265; 26 L. J. (M. C.) 84 ; see also Reg. v. Watson,
Dears. & B. 348; 27 L. J. (M. C.) 18, per Erie, J.; Reg. v. Levine, 10
Cox, 374.
(o) Reg. v. Ardley, L. R. 1 C. C. R. 301.
(p) But see Reg. v. Eagleton, 1 U. C. L. J. 179 ; Dears. 515 ; 24 L. J.
(M. C.) 158. •
(q) Reg. v. Gemmell, 26 U. C. Q. B. 312.
(r) Reg. v. Mills, 29 L. T. Reps. 114 ; Dears. & B. 205 ; 26 L. J. (M. C.)
79 ; Reg. v. Gemmell, 26 U. C. Q. B. 315, per Hagarty, J. ; see also Reg.
v. Dale, 7 C. & P. 352 ; Reg. v. Roebuck, Dears. & B. 25 ; 25 L. J. (M. C.)
101.
FALSE PRETENCES. 265
with the prisoner ; it was held that the subsequent dealings
repelled the idea that the prosecutor had parted with his
property in consequence of the false pretence, (s)
The false pretence must be the proximate cause of the loss.
Thus an indictment for obtaining from A. $1,200 by false
pretences, was not supported by proof of obtaining A.'s
promissory note for that sum, which A. afterwards paid be-
fore maturity, inasmuch as it was an engagement or promise
to pay at a future date, and, though remotely, the payment
arose irom the false pretence ; yet immediately and directly
it was made, because the prosecutor desired to retire his note,
and did so before it became due, and though the false pre-
tences on which the note was obtained might be said to be
continuing, they were not, according to the evidence, made or
renewed when the note was paid, (t)
And where a person, by falsely representing himself to be
another person, induced another to enter into a contract with
him for board and lodging, and was supplied accordingly
with various articles of food : it was held that the obtaining
of the goods was too remotely connected with the false repre-
sentation to support a conviction, (u)
But a conviction for obtaining a chattel by false pretences
is good, although the chattel is not in existence at the time
the pretence is made, provided the subsequent delivery of
the chattel is directly connected with the false pretence. (•»)
The test is the continuance of the pretence down to the time
of delivery, and the direct connection between the pretence
and delivery, (w)
It is essential that there should be an intention to deprive
the owner wholly of the property in the chattel, and an
obtaining by false pretences the use of a chattel for a limited
time only, without an intention to deprive the owner wholly
(a) Reg. v. Connor, 14 U. C. C. P. 529.
(t) Reg. v. Brady, 26 U. C. Q. B. 13.
(«) Reg. v. Gardner, 2 U. C. L. J. 139 ; Dears. & B. 40 ; 25 L. J. (M.C.>
100 ; see, however, comments on this case in Reg. v. Martin, L.R. 1 C.C.R,
"6, infra.
(v) Reg. v. Martin, L. R. 1 C. C. R. 56 ; 36 L. J. (M. C.) 20.
(w) Ibid. 60, per B&vUl, C. J.
266 THE CRIMINAL LAW OF CANADA.
of the chattel, is not an obtaining by false pretences within
the statute, (x)
But it is none the less a false pretence that the prisoner
intended to, and did in fact pay over the money to the person
properly entitled, if, by the false pretence, he attained a
personal end ; as where an attorney, who had been struck
off the rolls, obtains money out of court under such circum-
stances as amount to a false pretence practised on the court,
so that he may retain his costs thereout, (y) And it seems
the offence would have been the same whatever the prisoner's
object, (z)
Although inducing a person to execute a mortgage on his
property, (a) or to sign an acceptance to a bill of exchange, (b)
it not appearing that the paper on which it was drawn
belonged to the prosecutor, is not obtaining from him a
valuable security within the meaning of section 93 of the
Act, yet the offence is indictable under sec. 95.
It is not necessary that the pretence should be in words ;
the conduct and acts of the party will be sufficient without
any verbal representation.
Thus, an indictment alleging that the prisoner was in the
employ of V. as a Leaver of coals, and was entitled to 5d. for
every tub filled by him, and that, by unlawfully placing a
token upon a tub of coals, he falsely pretended that he had
filled it, whereby he obtained 5d., was held to disclose a false
pretence, (c)
And a person who tenders another a promissory note of a
third party in exchange for goods, though he says nothing,
yet he should be taken to affirm that the note has not to
his knowledge been paid, either wholly, or to such an extent
as almost to destroy its value, (d)
(x) Reg. v. Kilham, L. R. 1 C. C. R. 261 ; 39 L. J. (M.C.) 109.
(y) Reg. v. Parkinson, 41 U. C. Q. B. 545.
(2) Ibid.
(a) Reg. v. Brady, 26 U. C. Q. B. 13.
(b) Reg. v. Danger, Dears. & B. 307 ; 26 L. J. (M. C.) 185.
(c) Reg. v. Hunter, 16 W.R. 343 ; 10 Cox, 642 ; Reg. v. Carter, ibid. 648.
(d) Reg. v. Davis, 18 U. C. Q. B. 180 ; Reg. v. Brady, 26 U. C. Q. B. U.
FALSE PRETENCES. 267
The crime of obtaining goods by false pretences is complete,
although, at the time when the prisoner made the pretence
and obtained the goods, he intended to pay for them when it
would be in his power to do so. (e)
Formerly, if on an indictment for obtaining, etc., by false
pretences, it was proved that the property was obtained in
such a manner as to amount to larceny, the defendant was
entitled to an acquittal, the misdemeanor being merged in
the felony (/)
The true meaning of this clause is, that, if the obtaining
by false pretences is proved, as it is laid in the indictment-
the defendant is not entitled to be acquitted of the mis-
demeanor, simply because the case amounts to larceny, (g)
The effect of the statute seems to be merely to prevent
the operation of that rule by which a misdemeanor merged
in a felony, when the facts disclosed the latter crime. It is
apprehended that a party could not be convicted under this
clause, unless there was sufficient proof of an obtaining by
false pretences.
Upon an indictment containing several counts for ob-
taining money under false pretences, the evidence went to
show that the defendant had, by fraudulent misrepresen-
tations of the business he was doing in a trade, induced the
prosecutor to enter into a partnership agreement, and ad-
vance £500 to the concern ; but it did not appear that the
trade was altogether a fiction, or that the prosecutor had
repudiated the partnership. The question for the court
being whether, upon such evidence, the jury were bound to
convict the defendant, it was held that he was entitled to
an acquittal, as it was consistent with the evidence that
the prosecutor, as partner, was interested in the money
obtained, (h)
(e) Reg. v. Naylar, L. R. 1 C. C. R. 4 ; 35 L. J. (M. 0.) 61.
(/) 32 & 33 Vic., c. 21, s. 93.
(g) Reg. v. Bulmer, L. & C. 476 ; 33 L. J. (M. C.) 171 ; 9 Cox, 492;
Arch. Cr. Pldg. 483.
(A) Reg. v. Watean, 4 U. C. L. J. 73: Dears. & B. 348; 27 L. J.
<M. C.) 18
268 THE CRIMINAL LAW OF CANADA.
Where a defendant, on an indictment for obtaining money
by false pretences, has been found " guilty of larceny," the
court had no power, under the Con. Stats. U. C., c. 112, s.
3, to direct the verdict to be entered as one of " guilty,"
without the additional words, " of larceny." (i)
A letter, containing a false pretence, was received by the
prosecutor through the post, in the borough of C. ; but it
was written and posted out of the borough. In consequence
of that letter, he transmitted through the post, to the writer
of the first, a Post Office order for £20, which was received
out of the borough ; and it was held that, in an indictment
against the writer of the first letter, for false pretences, the
venue was well laid in the borough of C. (j )
Where the venue, in an indictment for obtaining sheep
by false pretences, was laid in county E., where the person
was convicted, and it appeared that the sheep had been
obtained by the prisoner in county M., and that he con-
veyed them into county E., where he was apprehended ; it
was held that he had been indicted in a wrong county. (&)
Our form of indictment for obtaining money by false pre-
tences does not require the pretences to be set out, but simply
that the prisoner, " by false pretences, did obtain," etc. It i*
apprehended that it will be sufficient to follow the statutory
form, and that the false pretence of an existing fact need not
be set out. (I)
To sustain an indictment for obtaining, or attempting to
obtain, money by false pretences, the indictment, if not in
the statute form, must state with certainty the pretence of a
supposed existing fact.
Thus, a statement that prisoner pretended to H. P. (the
manager of T.'s business) that H. P. was to give him 10s.,
and that T. was going to allow him 10s. a week, was held in-
sufficient, (m)
(i) Reg. v. Ewing, 21 U. C. Q. B. 523.
(j ) Reg. v. Leech, 2 U. C. L. J. 138 ; Dears. 642 ; 25 I,. J. (M. C.) 77.
(Tc) Reg. v. Stanbury, 8 U. C. L. J. 279 ; L. & C. 128 ; 31 L. J. (M. C.) 88.
(1) See Reg. v. Gates, 1 U. C. L. J. 135 : Dears. 459 ; 24 L. J. (M. C. )
123 ; Reg. v. Deanemer, 21 U. C. Q. B. 231.
(.1) Reg. v. Henshaw, L. & C. 444 ; 33 L. J. (M. C.) 132.
FALSE PRETF.NT 269
A municipality having provided some wheat for the poor,
the defendant obtained an order for fifteen bushels, described
as "three of golden drop, three of fife, nine of milling wheat."
Some days afterwards he went back, and represented that
the order had been accidentally destroyed, when another was
<nven to him. He then struck out of the first order "three
O
of golden drop, three of fife," and, presenting both orders,
obtained, in all, twenty-four bushels. The indictment charged
that the defendant unlawfully, fraudulently, and knowingly,
by false pretences, did obtain an order from A., one of the
municipality of B., requiring the delivery of certain wheat,
by and from one C., and, by presenting the said order to C.,
did fraudulently, knowingly, and by false pretences, procure
a certain quantity of wheat, to wit, nine bushels of wheat
from the said C., of the goods and chattels of the said muni-
cipality, with intent to defraud. It was held that the indict-
ment was sufficient in substance, and not uncertain or double,
but in effect charging that defendant obtained the order, and,
by presenting it, obtained the wheat by false pretences, (n)
An indictment, charging that defendant, by false pretences,
did obtain board of the goods and chattels of the prosecutor,
was held bad, the term " board " being too general (0)
An indictment for obtaining by false pretences goods and
chattels, or a chattel of the prosecutor, not defining them or
it, would be insufficient. There must be the same particu-
larity as in larceny, that the party may know certainly what
he is charged with stealing, or obtaining by false pretences, (p)
The prosecutor is not bound to deliver to the defendant the
particulars of the crime charged against him. (q)
An indictment, for obtaining money or goods by false pre-
tences, must have stated whose the money was, or goods
were, (r) But the allegation of ownership is rendered unne-
R*g. v. Campbell, 18 U. C. Q. B. 413.
Reg. v. Mc<Juarrie, 22 U. C. Q. B. 600.
(p) Ibid. 601, per Draper, C. J.
(?) Reg. v. Senecal, 8 L. C. J. 286.
Reg. v. McDonald. 17 U. C. C. P. 638, per A. Wilson, J.; Beg. v.
Mart in,' S A. & E. 481.
270 THE CRIMINAL LAW OF CANADA.
cessary by the 32 & 33 Vic., c. 21 , s. 93. By the same section,
a general allegation that the party accused did the act, with
intent to defraud, is sufficient, without alleging an intent to
defraud any person.
An allegation in a count for obtaining a cheque, describing
it " for the sum of £8 14s. 6d. of the moneys of William
Willis," sufficiently describes the ownership of the cheque,
for the words " of the moneys " may be rejected, (s)
Having treated specifically of the offences of larceny, em-
bezzlement, and the obtaining of money by false pretences, we
proceed to point out the distinctions between them. It is of
the essence of the offence of larceny that the property be taken
against the will of the owner, (t) If taken by the consent of
the owner, for instance, if he intends to part with the property,
no larceny will be committed.
In false pretences the property is obtained with the
consent of the owner, the latter intending to part with his
property. (?*) The crime is constituted by the pretence that
something has taken place, which, in fact, has not. (v) It,
therefore, necessarily differs from larceny, in the fact the
property in the chattel passes to the person obtaining it, and
that the owner is induced to voluntarily part with his pro-
perty, in consequence of some false pretence of an existing
fact, made by the person obtaining the chattel. But the
crime of obtaining money by false pretences is similar to
larceny in this, that, in both offences, there must be an inten-
tion to deprive the owner wholly of his property in the
chattel, (w)
Embezzlement consists in obtaining the lawful possession
of goods, etc., without fraud or any false pretence, as upon a
contract, or with the consent of the owner, in the ordinary
course of duty or employment, or independently of such em-
is) Reg. v. Godfrey, 4 U. C. L. J. 167 ; Dears. & B. C. C. 426.
(t) Reg. v. Prince, L. R. 1 C. C. R. 154, per Bovill, C. J.
(u) See White v. Garden, 10 C. B. 927, per Talfourd, J.
(v) Reg. v. McGrath, L. R. 1 C. C. R. 209, per Kelly, C. B.
(w) See Reg. v. KiUiam, L. R, 1 C. C. R. 261.
FALSE PRETENCES. 271
ployment, and subsequently converting the goods, with a
felonious intent to deprive the owner of his property therein.
It differs from larceny in this, that the possession of the
goods, etc., is lawfully obtained, in the first instance, without
the ingredient of trespass, and the converson takes place
while the privity of contract exists between the parties. The
acquisition of lawful possession, in the first instance, is the
constituent feature of this offence, and, according to the
doctrines of the common law, no larceny could be committed
by a bailee or other person, whose original title was lawful,
until the privity of contract was determined. A carrier could
not be convicted of larceny unless he " broke bulk," and the
reason was that the act of " breaking bulk " was an act of
trespass in the carrier, by which the privity of contract was
determined. Now, however, the carrier is guilty of larceny,
although he do not break bulk or otherwise determine the
bailment, (x)
The distinction between larceny and embezzlement may
be illustrated by the case of a clerk or servant, whose duty
it is to receive money for, or on account of, his master. An
appropriation before the money, etc., comes into the actual
possession of the master, as if a clerk in a shop, on receiving
money, puts it into his pocket before putting it into the till,
would be embezzlement, (y) But if the money is put in the
till, or otherwise becomes actually in the master's possession
before appropriation, and is, in the act of appropriation,
taken out of the possession of the master, this is larceny at
common law.
But these distinctions are not of such practical importance
as formerly, for now, in either of the above cases, whether
the indictment be framed for larceny or embezzlement, the
defendant may be convicted of the offence proved in evi-
dence, (2) and a person indicted for obtaining money by
(x) See 32 & 33 Vic. , c. 21, s. 3.
(y) Reg. \. Bull, 2 Leach, 841 ; Reg. v Bayley, 2 Leach, 835 ; Reg. v.
Sullen*, 1 Mood. C. 0. 129 ; Reg, v. Walsh, R. & R. 218 ; Reg. v. Masters,
1 Den. 332 ; 2 C. & K. 930 ; 18 L. J. (M. C.) 2.
(2) See 32 & 33 Vic., c. 21, s. 74.
272 THE CRIMINAL LAW OF CANADA.
false pretences may be convicted of that offence, although
the facts proved also show a larceny, (a)
Receiving stolen goods. — This offence was punishable at
common law only as a misdemeanor, even when the princi-
pal had been found guilty of felony in stealing the goods; (b)
and the mere receipt of stolen goods did not, at common
law, constitute the receiver an accessory, but was a misde-
meanor, punishable by fine and imprisonment, (c) unless he
likewise received and harbored the thief, (d)
There must be a stealing of goods, and the stealing must
be a crime, either at common law or by statute, before a
party is liable to be convicted of receiving, (e)
A conviction of the principal for embezzlement is sufficient
to warrant a conviction of the receiver, by virtue of the
express words of sec. 100 of the 32 & 33 Vic., c. 21. (/)
The goods must be stolen goods at the time of their receipt .
Thus where four thieves stole goods from the custody of a
railway company, and afterwards sent them in a parcel, by
the same company's line, addressed to the prisoner. During
the transit the theft was discovered, and on the arrival of the
parcel at the station for its delivery, a policeman in the
employ of the company opened it, and then returned it to
the porter, whose duty it was to deliver it, with instructions
to keep it until further notice. On the following day the
policeman directed the porter to take the parcel to its address,
where it was received by the prisoner, who was afterwards
convicted of receiving the goods, knowing them to be stolen.
Upon an indictment, which laid the property in the goods
in the railway company, it was held, (g) that the goods had
got back into the possession of the owner, so as to be no
(a)32& 33 Vic., c. 21, s. 93.
(b) 2 Russ. Or. 542.
(c) Ibid. 554.
(d) Reg. v. Smith, L. R. 1 C. C. R. 270, per Bomll, C. J.
(e) Ibid. 266 ; 39 L. J. (M. C.) 112.
(/) Heg. v. Frampton, Dears. & B. 585 ; 27 L. J. (M. C.) 229 ; Arch. Cr.
Pldg. 436.
({/) By Martin, B., and Keating and Lush, JJ.; dissentientibus, Erie, C.J.,
and Mellor, 3.
RECEIVING STOLEN GOODS. 273
i.iuger stolen goods, and that the conviction, on that ground,
was wrong, (h)
Again, stolen goods were found in the pocket of the thief
by the owner, who sent for a policeman. The policeman
took the goods, and the three went together towards the
shop of A., where the thief had previously sold stolen goods.
When near it, the policeman gave back the goods to the thief,
who was sent, by the owner, to sell them where he had sold
the others. The thief then went alone into A.'s shop and,
sold the goods to him, and returned with the proceeds to the
owner. It was held that, under these circumstances, A. could
not be convicted of receiving stolen goods, for when the goods
came to the prisoner's hands, they were not stolen goods, (i)
On an indictment for stealing and receiving a mixture, it
appeared that the thief had stolen two sorts of grain, and
then mixed them, and sold them to the prisoner : it was held
that the latter (the receiver) could not be convicted on such
an indictment, for th3 indictment charged a receiving of a
mixture, which had been stolen, knowing it, i.e. the mixture,
to have been stolen, but the only evidence showed that pure
oats and pure peas were stolen, and afterwards mixed and
sold to the prisoner — so that the one prisoner did not steal a
mixture, and the other did not receive, as the indictment
alleged, a mixture which had been stolen, for the mixture
had not been stolen, (j)
Previously to the 32 & 33 Vic.,c. 21, s. 103, if two defend-
ants were indicted jointly for receiving, a joint act of receiv-
ing must have been proved in order to convict both ; (k) but
that statute now extends to cases, where, upon an indictment
for a joint receipt, it is proved that each of the prisoners
separately received the whole of the stolen property at
different times, the one receipt subsequent to the other ; and
it makes no difference whether the receipt was direct from
(h) Reg. v. Schmidt, L. R. 1 C. C. R. 15 ; 35 L. J. (M. C.) 94.
(t) Keg v. Dolan, 1 U. C. L. J. 55 : Dears. 463 ; 24 L. J. (M. C.) 59.
(j) Reg. v. RobiAton, 1 U. C. L. J. N S. 53 ; 4 F. & F. 43.
(t) Beg. v. Me&ingham, 1 Mood. C. C. 257.
R
274 THE CRIMINAL LAW OF CANADA.
the thief, or from an intermediate person. There is no dis-
tinction between separate receipts of the whole, and of part
of the property ; (I) and, under s. 102, there is no distinction
between separate receipts at the same time and separate
receipts at different times, (m)
The goods stolen must be received by the defendant, and
though there be proof of a criminal intent to receive, and a
knowledge that the goods were stolen, if the exclusive posses-
sion still remains in the thief, a conviction for receiving can-
not be sustained, (n) It is also necessary that the defendant
should, at the time of receiving the goods, know that they
were stolen. (0)
Where a husband and wife are indicted for receiving, it is
proper that the jury should be asked whether the wife re-
ceived the goods either from or in the presence of her hus-
band, and where the question was not put, and both husband
and wife were convicted, the court quashed the conviction of
the wife, (p)
Where, on a joint indictment against husband and wife for
receiving goods with a guilty knowledge, the indictment
found specially that the wife did so receive, and that the
husband " adopted the wife's receipt," it was held that the
latter words were not equivalent to a verdict of guilty
against the husband, (q)
Upon an indictment for feloniously receiving a hat and a
watch, it was proved that, in consequence of information re-
ceived from L. (the thief), a constable went to a room in a
lodging house, where the prisoner slept, and, in a box in that
room, found the stolen hat. The prisoner produced it at
once, and admitted that L. had brought it there, but denied
any knowledge of the watch. On the following day he was
taken into custody, and after he had left the house, he told
(1) Reg. v. Reardon, L. R. 1 C. C. R. 31 ; 35 L. J. (M. C.) 171.
(m) Reg. v. Reardon, L. R. 1 C. C. R. 32, per Pollock, G. B.
(n) Reg. v. Wiley, 2 Den. 37 ; 20 L. J. (M. C.) 4 ; Arch. Cr. Pldg. 436.
(o) Jbid. 437.
(p) Reg. v. Wardroper, 6 U.C.L.J. 262 ; 1 Bell, C.C. 249 ; see also Reg. r.
Archer, 1 Mood C. U. 143.
(q) Reg. v. Drmg, 4 U. C. L. J. 26 ; Dears. & B. 329.
FORGERY. 275
the constable that he knew where the watch was, but did
not like to say anything about it before the people in the
house. The watch was not found at the first place to whi^h
he took the constable, but he afterwards sent a boy for it, and
the boy having brought it to him, he gave it to the constable.
This was held sufficient evidence to go to the jury of a feloni-
ous receiving, (r)
On an indictment for feloniously receiving goods, knowing
them to have been stolen; it is unsafe to convict a party as
receiver on the evidence of the thief, unless it is confirmed,
for otherwise it would be in the power of a thief, from malice
or revenge, to lay a crime on any one against whom he had a
erudge. (s)
Forgery. — This offence is defined as the fraudulent making
or alteration of a writing to the prejudice of another man's
right, (t) or as a false making, or making malo animo, ot any
written instrument, for the purpose of fraud and deceit, (u)
Forgery takes a very wide range, and includes within it
fraudulent acts and fabrications, of various descriptions and
classes, effected in the numberless ways to which the evil
ingenuity of crime can resort, (v) But it is said that the
offence consists in the false making of an instrument pur-
porting to be that which it is not, and not the making of an
instrument purporting to be that which it really is, but
which contains false statements ; and that telling a lie does
not become a forgery, because it is reduced to writing, (w)
The instrument must carry, on the face of it, the sem-
blance of that for which it is counterfeited, and not be
illegal in its very frame, though it is immaterial whether,
if genuine, it would be of validity or not. (x)
(r) Reg. v. Hobson, 1 U. C. L. J. 36 ; Dears. C. C. 400.
(s) Reg. v. Robinson, 1 U. C. L. J. N. S. 53 ; 4 F. & F. 43.
(t) Rt Smith, 4 U. C. P. R. 216, per A. Wilton, J. ; and see Reg. v.
Smith, 1 Dears. & B. 566.
(u) Hall v. Carty, 1 James, 385, per Bliss, J.
(v) Ibid.
(w) Ex parte Lamirande, 10 L. C. J. 290, per Drummond, J.
(x) Reg. v. Brotcn, 3 Allen, 15 per Carter, C. J.
276 THE CRIMINAL LAW OF CANADA.
On the above principles, the forging or uttering, in this
country, a writing purporting to be a bank note, issued
by a foreign banking company, amounts to the crime of
forgery, though it is not proved that the company had
power, by charter, to issue notes of that description ; (y) it
being shown that the note carried on its face the semblance
of a bank note, issued by such company, and there being
nothing in its frame to show it illegal. Even if the ille-
gality were a defence, the onus of proving it would lie on the
prisoner, (z) It is no objection that the note is payable in
such foreign country, (a)
A person, having an order for delivery of wheat for the
support of the poor persons in a municipality, is guilty of
forgery, if he materially alters the order, so as to increase
the quantity of wheat which is obtainable thereunder, with
intent to defraud, (b)
So it is forgery to execute a deed in the name of, and as
representing, another person, with intent to defraud, even
though the prisoner has a power of attorney from such
person, but fraudulently conceals the fact of his being only
such attorney, and assumes to be principal, (c)
But a man who gives a cheque as his own, merely signing
a fictitious name, and not intending to pass it off as the
cheque of a person other than himself, is not guilty of
forgery, (d)
It is forgery, both at common law and within the mean-
ing of the 32 & 33 Vic., c. 19, s. 23, to make a deed fraudu-
lently, with a false date, when the date is a material part
of the deed, although the deed is, in fact, made and executed
by and between the persons by and between whom it pur-
ports to be made and executed, (e)
(y) Rtg. v. Brawn, 3 Allen, 13.
(z) Ibid. 15, per Carter, C. J.; Beg. v. Partis, 40 U. C. Q. B. 214.
(a) Ilnd.
(b)Reg. v. Campbell, 18 U. C. Q. B. 416, per Robinson, C. J.
(c) Reg. v. Gould, 20 U. C. C. P. 159, per Owynne, J.
(d) Reg. v. Martin, L. R. 5 Q. B. D. 34.
(e) Reg. v. Ritson, L. R. 1 C. C. R. 200 ; 39 L. J. (M. C.) 10.
FORGERY. 277
It was the duty of the prisoner, a railway station master,
to pay B. for collecting and delivering parcels ; and the com-
pany provided a form in which the charges were entered
by the prisoner under the heads of " Delivery " and " Col-
lecting " respectively. The prisoner having falsely told B.
that the company would not pay for delivering, but only
for collecting, continued to charge the company for collect-
ing and delivering ; and in order to furnish a voucher, after
paying B.'s servant the sum entered in the form for collect-
ing, and obtaining his receipt, in writing, for that amount,
without either his or B.'s knowledge, put a receipt stamp
under his servant's name, and put therein, in figures, a
larger sum than he had paid, being the aggregate for col-
lecting and delivery. This was held a forgery. (/)
Where, on an indictment for forgery, it appeared that a
promissory note had been drawn by the prisoner, payable,
two months after date, to the order of one J. S., and after-
wards endorsed by said S. : the prisoner then altered the
note, by making it payable three months after date, and
discounted it at the bank of British North America, in Lon-
don, Ontario. The jury having convicted him of forgery,
on motion for a new trial, on the ground that the forgery or
uttering, if any, was a forgery of or the uttering of a forged
endorsement, the note having been made by the prisoner
himself, and that there was no legal evidence of an intent
to defraud, it was held that the altering of the note while
it was in his own possession, after endorsement, was a
forgery of a note, and not of an endorsement, and that the
passing of the note to a third party, who was thereby de-
frauded, was sufficient evidence of an intent to defraud, (g]
The instrument must be made with intent to defraud,
which is the chief ingredient in the offence; (h) and the
(/) Beg. v. Griffith, 4 U. C. L. J. 240 ; Dears. & B. 548 ; 27 L. J .
(M. C.)205.
(g) Reg. v. Craig, 7 U. C. C. P. 239 ; Reg. v. McNerin, 2 Rente Left. 711.
(A) 2 Russ. Cr. 774 ; Reg. v. Craig, supra, 244, per Draper, C. J : ftnj.
v. Dvnlop, 15 U. C. Q. B. 119, per Robauon, C. J.
278 THE CRIMINAL LAW OF CANADA.
writing of a signature in sport, without any intention to
defraud, or pass it off as genuine, is not a forgery. (*')
A man may draw a promissory note for any sum he
pleases, and in favor of any person, and payable to him, or
to his order, or to bearer, and on demand, or at any time
after date, at any place, and, so long as it remains simply
as his own promissory note, in his own possession, and
charging no other person but himself with liability, he may
alter it, at his own free will, in all or any particulars. But
that right of alteration ceases when another person becomes
interested in the note, either by acquiring it as his own
property, or by becoming a party to or responsible for its
payment ; and an alteration then made, prejudicial to any
such person, and under circumstances which afford ground
for inferring an intention to defraud, is a criminal act. It
would seem that, even after another person becomes a party
to the note — if, for instance, the note was made by the
prisoner, and endorsed by another, but still retained in the
hands of the prisoner, and not uttered as genuine, there
would be nothing to establish the intention to defraud, and
the prisoner could not be convicted of forgery, (j)
Sending a telegraphic message in the name of another,
authorizing the receiver to advance money to the sender,
is a forgery. (^)
The act of " forging, coining, etc., spurious silver coin,"
does not constitute the crime of forgery. (I)
Under the 32 and 33 Vic., c. 19, s. 51, the indictment need
not allege an intent to defraud any person, (m) Nor is it
necessary to prove an intent to defraud any particular per-
son, but it is sufficient to prove that the party accused did
the act charged, with intent to defraud, (n)
(i) Reg. v. Dunlop, 15 U. C. Q. B. 119, per Robinson, C. J.
(j) Reg. v. Craig, 1 U. C. C. P. 241, per Draper, C. J.
(k) Reg. v. Stewart, 25 U. C. C. P. 440.
(1) Re Smith, 4 U. C. P. R. 215.
(m) See Reg. v. Hathaway, 8 L. C. J. 285 ; Reg. v. Carson, 14 U. C. C. P.
309.
(n) 32 & 33 Vic., c. 19, s. 51.
FORGERY. 279
It is also immaterial whether any person is actually de-
defrauded by the forgery, (o) If, from circumstances, the
jury can presume that it was the defendant's intention to
defraud, it is sufficient to satisfy the allegation in the in-
dictment, even though, from circumstances unknown to the
defendant, he could not, in fact, defraud the prosecutor, (p)
The making of a false instrument is forgery, though it may
be directed by statute that such instrument shall be in a
certain form, which, in the instrument in question, may not
have been complied with, the statute not making the informal
instrument absolutely void, but it being available for some
purposes, (q) Upon the same principle, a man may be con-
victed of forging an unstamped instrument, though such
instrument can have no operation at law. (r)
But it seems that an indictment for forging a note or
agreement, which is declared by law to be wholly void, can-
not be maintained, if the instrument, on its face, affords evi-
dence that it comes within the statute declaring it void. («)
A false letter of recommendation, through the uttering of
which to a chief constable the prisoner obtained a situation
as constable, is the subject of forgery at common law. (t)
But a forgery must be of some document or writing ;
therefore, the painting of an artist's name in the corner of a
picture, with the intention to pass it off as the original pro-
duction of that artist, is not a forgery, (u) And where a bill,
sent to a person without any drawer's name, for his accept-
ance, and the endorsement of a solvent third person, and
returned with the acceptance and a fictitious endorsement, is
(o) Reg. v. Crooke, 2 Str. 901 ; Beg. v. Goate, 1 Ld. Raym. 737.
(p) Reg. v. Holden, R. & R. 154 ; Reg. v. Marcus, 2 C. & K. 356 -Jteg.
Y. JHoats&n, ibid. 111.
(q) Rex v. Lyons, Rusa & Ry. 255.
(r) Rex v. Hawkeswood, 1 Leach, 257 ; Rex v. Lee, ibid. 258 n.; Taylor
v. Qolding, 28 U. C. Q. B. 201, per Richard*, C. J.
(s) Taylor v. Golding, 28 U. C. Q. B. 202, per Richards, C. J.
(0 Reg. v. Moah, 4 U. C. L. J. 240 ; Dears, ft B. 550 ; 27 L. J. (M. C.)
204.
(«) Reg. v. Closs, 4 U. C. L. J. 98 ; 1 Dears. 4 B. 460.
280 THE CRIMINAL LAW OF CANADA.
not a forgery of a negotiable security, though it might be a
forgery at common law. (v)
An agreement in the following form : —
"GLANFORD, Jany. 29, 1864.
" I, John Hostine, do agree to William Carson, of Warstead
Plymp, the full right and privilege of all the white oak and
elm and hickory lying and standing on lot 26, south part, on
the third concession of Plymp, for the sum of thirty dollars,
now paid to Hostine by Carson, the receipt whereof is hereby
by me acknowledged.
"JOHN HOSTINE."
may be considered as a contract or agreement for the sale of
timber, and parol evidence, of the surrounding circumstances,
at the time it was written, would be admissible to explain
it ; and, at all events, should it fail as an agreement, it is
clearly a receipt for the payment of money within the Con.
Stats. Can., c. 94, s. 9. (w)
The prisoner was secretary of a friendly society, called the
Ancient Order of Foresters, having branches in various towns.
A member of this society, having paid up all his dues, wished
to obtain a " clearance," or certificate that he had made such
payments, in order that he might be entitled to membership in
a branch of the society in another town. The prisoner, having
received the dues and fees for the clearance, neglected to pay
them over to the proper officer, and forged the signature of
the latter to a clearance ; it was held that the clearance was
not an acquittance or receipt for money within the correspond-
ing English section of the 32 & 33 Vic., c. 19, s. 26. (x)
The prisoner was indicted under the Imperial 24 & 25 Vic.,
c. 98, s. 24, for feloniously making, by procuration, in the
name of one A., a security for money, to wit, £417 13s.,
without lawful authority or excuse, with intent to defraud.
The document forming the subject of the indictment was in
the following form : —
(v) Reg. v. Harper, L. R. 7 Q. B. D. 78.
(w) Reg. v. Carson, 14 U. C. C. P. 309.
(x) Reg. v. French, L. R. 1 C. C. R. 217 , 39 L, J. (M. C.) 58.
FORGERY. 281
" THORNTON, October, 1867.
" Received of the South Lancashire Building Society the
sum of four hundred and seventeen pounds 13s. on account
of my share, No. 8071.
" p. p. SUSY AMBLER,
"£417 13s. WM. KAY."
It was held that this document, though in form a mere
receipt, given by a depositor to the Building Society, might
properly be described in an indictment as a " warrant,"
" authority," or " request," for the payment of money, if, by
the custom of the society, such receipts were, in fact, treated
as warrants, authorities and requests, for the payment of
money, (y)
The 16th section of this statute, which is somewhat analo-
gous to the 32 & 33 Vic., c. 19, ss. 19 and 20, extends to the
engraving, in England, without authority, of notes purporting
to be notes of a banking company, carrying on business in
Scotland only, notwithstanding s. 65 enacts that nothing in
the Act contained shall extend to Scotland. (2)
Upon an indictment under 1 Wm. IV., c. 66, s. 18, for
engraving upon a plate part of a promissory note, purporting
to be pait of the note of a banking company, it was proved
that the prisoner, having cut out the centre of a note of the
British Linen Banking Company, on which the whole promis-
sory note was written, had procured to be engraved upon a
plate merely the Eoyal Arms of Scotland and the Britannia
which formed part of the ornamental border, but placed upon
the plate in the same manner as they are found in a complete
note of the company. It was held that the plate so engraved
satisfied the words of the section. That the ornamental
border of such a note is part of the note within the section,
as " note " is there used in the popular sense. That, in order
(y) Reg. v. Kay, L. R. 1 C. C. R. 257 ; 39 L. J. (M. C.) 118.
(a) Reg. v. Brackenridge, L. R. 1 C. C. R. 133 ; 37 L. J. (AL C.) 86.
282 THE CRIMINAL LAW OF CANADA.
to ascertain whether that which was engraved purported,
within the section, to be part of a note, extrinsic evidence
was admissible to the jury, and they might compare it with
a genuine note of the company, (a)
An endorsement, " per procuration J. S.," signed in the
defendant's own name, was held on the repealed statute, 11
•Geo. IV., and 1 Wm. IV., c. 66, s. 3, not to be forgery, though
the defendant falsely alleged that he had authority from J.
S. to endorse, (b) It would however, be felony within the
31 & 32 Vic., c. 19, s. 27.
So, by s. 47 of this statute, the forgery of an instrument
in this country, payable abroad, or the uttering of an instru-
ment in this country, forged, and payable abroad, is made an
offence within the meaning of the Act. (c)
When a prisoner, being pressed for payment of a debt,
obtained further time to pay, by giving, as security, an I 0 U,
in the following form : —
" NOVEMBER 21st, 1870.
" I O U thirty-five pounds (£35).
" ARTHUR CHAMBERS.
"GEORGE WlCKHAM."
and purporting to be signed by the prisoner, and another
whose signature was forged by the prisoner ; it was held that
this was an " undertaking for the pay merit of money " within
24 & 25 Vic., c. 98, s. 23, the corresponding English section
of the 32 & 33 Vic., c. 19, s. 26. (d) And there being a con-
sideration for the I 0 U, the fact that it did not appear was
of no consequence ; for the consideration of a guarantee need
not be shown on its face, (e)
The following instrument was held to be a promissory note
for the payment of money within s. 3. of the 10 & 11 Vic.
c. 9:—
" The President, Directors and Co. of the Montreal Bank
(a) Reg. v. Keith, 1 U. C. L. J. 136 ; Dears. 486 ; 24 L. J. (M. C.) 110.
(6) Beg. v. White, I Den. 208 ; 2 C. & K. 404 ; Arch. Cr. Pldg. 579.
(c) See Reg. v. Kirkwood, 1 Mood. C. C. 311.
(d) Rey v. Chambers, L. R. 1 C. C. R. 341.
(e) Ibid.; see 26 Vic., c. 45.
FORGERY. 283
promise to pay five dollars, on demand, to W. Martin, or
bearer.
" A. SIMPSON, Cashier,
" WM. GANN, Pres.
M MONTREAL, June 1, 1853."
for a forged paper, purporting to be a bank note, is a promis-
sory note within the meaning of the statute, and it is equally
so if there is no such bank as that named, the bank intended
being erroneously described in the instrument (/)
A country bank note for the payment of one guinea, "in
cash or Bank of England notes," was holden not to be " a
promissory note for the payment of money" within the 2
Geo. IL, c. 25, for it was necessary that such a note should
be for the payment of money only, (g) Such a case is now
provided for by the 32 & 33 Vic., c. 19, s. 15.
Under s. 26, the forgery of a request for the payment ot
money is made felony, though it was formerly no offence, (k)
A forged magistrate's order for a reward for appreheoding
a vagrant, which appeared upon the face of it to be defective,
as not being under seal or directed to the constable, etc., was
holden not to be within the former statute ; for, without these
requisites, it was nothing more than the order of a mere
individual, which the treasurer was not bound to obey, (t)
Such orders would be authorities or requests within the
above section.
An instrument in the following form : —
" $3.50. CARRICK, April 10, 1863.
" JOHN MCLEAN, tailor, please give Mr. A. Steel to the
amount of three dollars and fifty cents, and by doing you will
oblige me.
" (Signed) ANGUS McPHAiL."
is an order for the payment of money, and not a mere re-
quest, (j ) But an instrument as follows : —
( f) Reg. v. McDonald, 12 U. C. Q. B. 543.
(g) Reg. v. WUcocL, 2 Russ. 498 ; Arch. Cr. Pldg 579.
(A) See Reg. v. Thorn, 2 Mood. C. C. 210 ; C. t Mar. 206.
(t) Reg. v. Ruehworth, R. & R. 317 ; Arch. Cr. Pldg. 583.
(/) Reg. v. SteeL 13 U. C. C. P. 619.
284 THE CRIMINAL LAW OF CANADA.
" RENFREW, June 13, 1860.
" MR. McKAY, — Sir, would you be good enough as for to
let me have the loan of $10 for one week or so, and send it,
by the bearer immediately, and much oblige your most
humble servant,
" (Signed), J. ALMIRAS, p.p."
was held not an order for the payment of money, within the
Con. Stats. Can., c. 94, but a mere request. (&)
" MR. WARREN, — Please let the bearer, William Tuke,
have the amount of ten pounds, and you will oblige me,
" B. B. MITCHELL,"
is an order for the payment of money, within this statute,
and not a mere request ; (/) but it would not be a warrant
for the payment of money, within the meaning of the
statute. (M) The true criterion as to the instrument being
an order or not, is, whether the person to whom it is di-
rected could recover the amount on payment, (n)
A writing not addressed to a particular person by name,
or to anyone, may be an order for the payment of money,
within the statute, if it be shown by evidence that it was
intended for such person, or for whom it was intended. (0)
Thus where the order was for $15, in favor of "bearer or
R. R." and purported to be signed by one " B," and the
prisoner in person presented it to M., representing himself
to be the payee and a creditor of " B ;" it was held that it
might fairly be inferred to be intended for M., and a con-
viction for forgery was sustained, (p)
An indictment will not lie for forging or altering the
(k) Reg. v. Reopelle, 20 U. C. Q. B. 260.
(I) Reg. v. Tuke, 17 U. C. Q. B. 296.
(m) Ibid. 298, per Robinson, C. J.
(A) Ibid. 299, per Robinson, C. J. ; Reg. v. Carter, 1 Cox, C. C. 172 ;ibid.
241 ; Reg. v. Dawson, 3 Cox, C. C. 220.
(o) Reg. v. Parker, 15 U. C. C. P. 15 ; Reg. v. Snelling, 6 Cox, 230 ; I
Dears. 219.
(p) Reg. v. Parker, 15 U. C. C. P. 15 ; Reg. v. Smiling, 6 Cox, 230 ; 1
Dears. 219.
FORGERY. 285
Assessment Bx>ll for a township, deposited with the clerk, (q)
This would probably now be an offence within the 32 & 33
Vic., c. 19.
An indictment for forgery of a note was held defective, in
not stating expressly that the note was forged, or that the
defendant uttered it as true, (r)
Until the provincial statute, 9 Vic., c. 3, the old rule of the
criminal law of England prevailed, that the party by whom
a forged instrument purported to be signed, was not compe-
tent to prove the signature to be forged, and any one who
might, by possibility, receive the remotest advantage from
the verdict was equally excluded. But the objection was
founded on the ground of interest, and, if the witness were
divested of such interest, he became competent, (s)
The 10 & 11 Vic., c. 9, re-enacted the provisions of the
'.' Vic., c. 3, and the 16 Vic, c. 19, Con. Stats. U. C., c. 32,
removed the incapacity of crime or interest. This latter
statute did not supersede the former, and both are founded
on the same principle, namely, to prevent the exclusion of
witnesses, on the ground of interest in the subject-matter of
inquiry, the first being applicable to inquiries relative to
forgery, the latter, general, and also removing the disqualifi-
cation attached to a conviction for crime, (t)
The 32 & 33 Vic, c. 19, s. 54, and c. 29, s. 62, now embody
all the provisions of the former enactments on these points.
Where the prisoner was indicted for forging an order fer
the delivery of goods, and on the trial the only witnesses
examined were the person whose name was forged and the
person to whom the order was addressed, and who delivered
the goods thereon, and, there being no corroborative evidence,
it vas held, that, under the proviso in the 10 & 11 Vic, c.
(q) Reg. v. Preston, 21 U. C. Q. B. 86.
(r) Reg. v. Dunlop, 15 U. C. Q. B. 118.
(*) Reg. v. Giles, 6 U. C. C. P. 86, per Draper, C. J.
«) Ibid. 86, per Draper, C. J.
286 THE CRIMINAL LAW OF CANADA.
9, s. 21, there was not sufficient evidence to support a con-
viction, (u)
Where, on an indictment for forgery of the prosecutor's
name as endorser of a promissory note, the prosecutor swore
that he was a marksman, and had on several occasions en-
dorsed notes for the prisoner, sometimes allowing the prisoner
to write his name, and sometimes making his mark, and the
only evidence offered in corroboration was that of the prose-
cutor's son, to the effect that his father was a marksman ; it
was held (v) that such corroboration was sufficient to warrant
a conviction, (w) But the court were not unanimous in their
decision, and the authority of the case may well be doubted.
Furthermore, it has been held in Quebec, that the corro bo-
ration of the evidence of an interested witness cannot be
based on something stated by that witness, (x)
The offence of forgery is not triable at the Quarter Ses-
sions, (y)
Great care was formerly requisite in describing the instru-
ment in an indictment for forgery, but now it is sufficient to
describe the same by any name or designation, by which the
same may be usually known, or by the purport thereof, with-
out setting out any copy orfac simile thereof, or otherwise
describing the same or the value thereof. (2)
It is not necessary, in an indictment for forgery, to allege
an intent to defraud any particular person, but it is sufficient
to allege that the party accused did the act with intent to
defraud, (a)
Where goods were obtained by false pretences, through
the medium of a forged order, the uttering of which was
felony, the indictment must formerly have been for the felony,
(u) Reg. v. Gilex, 6 U. C. C. P. 84. As to what is sufficient corrobora"
tion, see Reg. v. McDonald, 31 U. C. Q. B. 337.
(v) Cameron, J. dissenting.
(w) Reg. v. Bannerman, 43 U. C. Q. B. 547.
(x) Reg. v. Perry, 1 L. C L. J. 60.
(y) Reg. v. McDonald, 31 U. C. Q. B. 337 ; Reg. v. Dunlop, 15 U. C. Q. B.
118.
(2) 32 & 33 Vic., c. 19, s. 49.
(a) See a. 51.
CHEATS AND FRAUDS. 287
otherwise an acquittal would have been directed on the ground
that the misdemeanor was merged, (b)
In an indictment for forging a receipt, it must be alleged
that such receipt was either for money or goods, etc., as men-
tioned in the Con. Stats. Can., c. 94, s. 9. (e)
Where the instrument is set out in haze verba, in an indict-
ment for forgery, the description of its legal character is
surplusage, and unnecessary, (d)
It is no defence to ail indictment for forging a note, that
the prisoner may have expected, and fully intended, to pay it
when it became due. (e)
The offence of forgery, at common law, was only a misde-
meanor, and it fell within the general class of cheats. (/)
Cheats and frauds. — These offences at common law con-
sisted in the fraudulent obtaining the property of another, by
any deceitful and illegal practice or token, short of felony,
which affects, or may affect, the public, or such frauds as are
levelled against the public justice of the realm, (g) But
every fraud on private individuals is not a penal offence, (h)
In the case of forgery, it was sufficient that the party
might be prejudiced by the false instrument, but nothing
could be prosecuted as a cheat at common law without an
actual prejudice, which was an obtaining on the statute 3&
Hy.VIII. (t)
If a person, in the way of his trade or business, put, or
suffer to be put, a false mark or token upon any article, so as
to pass off as genuine that which is spurious, if such article
be sold by such false token or mark, the person so selling
may be indicted for a cheat at common law, but the indict-
ment must allege that the article was passed off by means of
such false token or mark.
(b) Reg. v. Evans, 5 C. & P. 553 ; but see now 32 & 33 Vic., c. 20, a. 50.
(c) Reg. v. McCorkiU, 8 L. C. J. 283.
(d) Reg. v. Carson, 14 TJ. C. C. P. 309 ; Reg. v. William*, 2 Den. C. C. 61
(e) Reg. v. Craig, 1 U. C. C. P. 244.
(/) 2 Ross. Or. 709 et seq.
(g) Reg. v. Roy, 11 L. C. J. 94, per Drummond, J.; and see 2 Ross. Cr.
613.
(h) Reg. \: Roy, 11 L. C. J. 89.
(i) 2 Rugs. Cr. 613 ; Ward's case, 2 Str. 747.
288 THE CRIMINAL LAW OF CANADA.
Where an indictment alleged that the prisoner, being a
picture dealer, knowingly kept in his shop a picture whereon
the name of an artist was falsely and fraudulently painted,
with intent to pass the picture off as the original work of the
artist whose name was so painted, and that he sold the same
to H. F., with intent to defraud, and did thereby defraud him,
but without stating that the picture was passed off by means
of the artist's name being so falsely painted, it was held that
such painting of the artist's name was putting a false token
on the picture, and that the selling by means thereof would
be a cheat at common law, but that the want of such last
averment was fatal. (/)
Where a person contracts to deliver loaves of bread, of a
certain weight, at a certain price, the delivery of a less quan-
tity (i. e., less in weight) than that contracted for, is a mere
private fraud, and not indictable, if no false weights or tokens
have been used, (k)
False personation. — Falsely personating a voter at a muni-
cipal election is not an indictable offence. Our statute law
contains no provision on the subject, nor is it an offence at
common law. (I) It is different, however, with regard to
parliamentary elections, for by 37 Vic., c. 9, s. 74, it is enacted
that " a person shall, for all purposes of the laws relating
to parliamentary elections, be deemed to be guilty of the
offence of personation, who, at an election of a member of
the House of Commons, applies for a ballot paper in the
name of some other person, whether such other name be that
of a person living or dead, or of a fictitious person, or who
having voted once at any such election, applies at the same
election for a ballot paper in his own name."
To complete the offence of inducing a person to personate
a voter, it would seem not necessary that the personation
should be successful, and a conviction for the offence was
(j) Reg. v. Gloss, 4 U. C. L. J. 98 ; Dears. & B. 460 ; 27 L. J. (M. 0.) 54.
(k) Reg. v. Eagleton, 1 U. C. L. J. 179 ; Dears. 515 ; 24 L. J. (M. C.) 158.
(1) Reg. v. Hogg, 25 U. C. Q. B. 66 ; Reg. v. Dent, 1 Den. C. C. 159.
MALICIOUS INJURIES.
held good, though it did not set out the mode or facts of the
inducement, (m)
It would seem that in an indictment for this offence there
should be an averment negativing the identity of the defend-
ant with the voter suggested to be personated, (n)
Malicious injuries. — Injuring or destroying private pro-
perty is, in general, no crime, but a mere civil trespass, over
which a magistrate has no jurisdiction, unless by statute. (0)
The 32 & 33 Vic., c. 22, contains provisions respecting
malicious injury to property ; but, to bring a case within this
statute, the act must have been wilfully or maliciously
done, (p) But the malice, to be proved, need not have been
conceived against the owner of the property, in respect of
which it shall be committed, (q) And where a man does
an act to an animal which he knows may prove fatal, not
from ill-will towards the owner or animal, but simply to
gratify his depraved tastes, such act is malicious within the
statute, (r) But where the prisoner threw a stone at a crowd
intending to hit one or more of them, but not intending to
injure the window, it was held that there was no malice,
actual or constructiva (s) On principle, one would have
thought that the malice would have been transferred to the
window.
It would seem to be necessary to allege that the property
injured is the property of another person, (t)
It is not necessary that the damage done should be of a
permanent kind. Plugging up the feed pipe of a steam engine
is an offence within s. 1 9 of this Act (u)
It was held under the former statute, 4 & 5 Vic., c. 26,
s. o, the words of which were not so comprehensive as the
(m) Reg. v. Hague, 12 W. R. 310.
(») Reg. v. Hogg, 25 U. C. Q. B. 68, per Hagari-,. J.
(o) Powell v. Williamson, 1 U. C. Q. B. 155, per Robinson, C. J.
(p) Powett v. Williamson, supra ; Reg. v. Eteton, 5 All 2.
(q) See. 66 ; Reg. v. Bradshaw, 38 U. C. Q. B. 564 ; Reg. v. Elston. 5 All. 2.
(r) Reg. v. Welch, L. R. 1 Q. B. D. 23.
(«) Reg. v. Pembleton, L. R. 2 C. C. R, 119.
(t) Reg. v. Eliton, 5 AIL 2.
<u) Reg. v. Fuher, L. R. 1 C. C. R. 7 ; 35 L. J. (M. C.) 57.
S
290 THE CRIMINAL LAW OF CANADA.
present statute, that an apparatus for manufacturing potash,
consisting of ovens, kettles, tubs, etc., was not a machine or
engine, the cutting, breaking, or damaging of which was
felonious, (v)
If the defendant sets up and shows a bona, fide claim of
title to land, the jurisdiction of the magistrate is ousted, (w)
even though he believe the claim to be ill-founded, (x)
Under s. 45 of the 32 & 33 Vic., c. 22, upon an indictment
for maliciously wounding a horse, it is not necessary to prove
that any instrument was used to inflict the wound, and the
word " wound " must be taken in the ordinary sense, (y)
Sees. 20 and 28 of the 4 & 5 Vic., c. 26, gave a summary
remedy, not for trespassing on the close, but for malicious
injuries to the tree, (z)
A summons for malicious injury to property, under the
former statute, must have been upon complaint under oath,
and a conviction stating that the offence complained of was
committed " depuis environ huit jours" was held bad for
uncertainty, (a)
The offence of wilfully injuring a fence, etc., under the
(N.B.) 1 Eev. Stats., c. 153, s. 11, was a misdemeanor, not
punishable by summary conviction. (6)
An indictment charging that the defendant in a secret and
clandestine manner cut off the hair from the manes of two
horses, the property of one W. B., discloses an offence within
the Kev. Stats, of Nova Scotia, c. 169, s. 22; and where an
act is committed wrongfully and intentionally, and with full
knowledge of the ownership of the property, malice will be
presumed, (c)
(v) Reg. v. Dogherty, 2 L. C. R. 255.
(w) Reg. v. O'Brien, 5 Que. L. R. 161 ; ex parte Donovan, 2 Pugsley,.
389 ; Reg. v, Taylor, 8 U. C. Q. B. 257.
(x) Reg. v. Davidson, 45 U. C. Q. B. 91.
(y) Reg. v. Bullock, L. R. 1 C. C. R. 115 ; 37 L. J. (M. C.) 47.
(z) Madden v. Farley, 6 U. C. Q. B. 213, per Robinson, C. J.
(a) Ex parte Hook, 3 L. C. R. 496.
(b) Ex parte Mulhern, 4 Allen, 259.
(c) Reg. v. Smith, 1 Sup. C. R. (N. S.) 29.
ARSON. 291
Arson. — Arson at common law is an offence of the degree of
felony, and has been described as the malicious and wilful
burning of the house of another, (d) It is to be observed that
the burning must be of the house of another, but the burning
a man's own house in a town, or so near to other houses as
to create danger to them, is a great misdemeanor at common
law. («)
The owner of a house would, at common law, commit no
offence by destroying it, whether by fire or by pulling it down
to the ground, provided that in so doing he did not infringe
the maxim, sic utere tuo ut alienwm non kedas, and even by
non-observance of that rule he would only commit a civil
injury, and not a crime. (/)
Arson, at common law, being an injury to the actual
possession, and not merely a wrong in destroying a valuable
property, when the legislature extends the limits of the crime,
we must construe its enactments strictly, (gr)
By the 32 & 33 Vic., c. 22, s. 3, the setting fire to any
house, whether the same is then in the possession of the
offender or in the possession of any other person, is made
felony ; and now, under this statute, it is immaterial whether
the house be that of another or of the defendant himself.
The words in this statute are " set fire to " merely, and
therefore, it is not necessary to aver in the indictment that
the house, etc., was burnt, nor is proof required that it was
actually consumed, (h) But within this Act, as well as to
constitute the offence of arson 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 (t)
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 con-
(d) 2 Russ. C. R. 10-24.
(e) Ibid.
(/) Reg. v. Bryan*, 12 U. C. C. P. 163-4, per Draper, C. J.
(<?) McNab v. McGrath, 5 U. C. Q. B. O. S. 522, per Robinson, C. J.
(h) Reg. v. Salmon, R. & R. 26 ; Reg. v. Stallion, 1 Mood. C. C. 398 -
Arch. Cr. Pldg. 509.
(i) Ibid.
292 THE CRIMfNAL LAW OF CANADA.
sinned, this was held not a sufficient burning. (/) Now,
however, by s. 8 of the statute, setting fire to any matter or
thing, being in, against, or under any building, under such
circumstances, that if the building were thereby set fire to,
the offence would amount to felony, is made felony.
Setting fire to a quantity of straw on a lorry is not an
offence within the Act. (k) The burning must also be mali-
cious and wilful, otherwise it is only a trespass. And an
information simply saying that the prosecutor believed that
the prisoner had set fire to the prosecutor's premises, was held
to disclose no offence. (l~) No negligence or mischance, there-
fore, will amount to such a burning, (ra) But malice against
the owner of the property is not necessary, (ri)
The decisions with respect to burglary apply also to arson,
as to what may be considered a house, shop, etc. (o)
A shop is defined to be a place where things are publicly
sold. It also has another signification, as a room where some
kind of manufactures are carried on, as a shoemaker's shop,
etc. ; but this sense is merely confined to common speech,
.and the legislature does not generally use the word in this
sense ; and in the 3 Wm. IV., c. 3, they clearly did not,
because buildings used in carrying on any trade or manufac-
ture were protected under a separate and distinct provision,
.although the term shop had been used before, and, in fact,
"by their adding the qualification used, in carrying on any
trade or manufacture, the legislature evinced that they in-
tended to have reference to the purpose for which the build-
ing was actually used, at the time of the offence, (p)
Where a building set tire to had not, for a year or more,
been occupied as a shop, but contained some iron in the
cellar, but was otherwise not inhabited for any purpose ; it
(?) Reg. v. Russell, C. & Mar. 541.
(jfc) Reg. v. SatchweM, L. R. 2 C. C. R. 21.
(1) Munro v. Abbot, 39 U. C. Q. B. 78.
(m) 2 Russ. Cr. 1025.
(n) 32 & 33 Vic., c. 22, s. 66 ; Reg. v. Bradshaw, 38 U. C. Q. B. 564.
(o) MeNab v. McGrath, 5 U. C. Q. B. O. S. 522.
.(/>) Ibid., tupra, 520.
ARSON. 293
was held not to be a shop within the meaning of the
statute, (q) •
It was clearly not the intention of the legislature to make
the burning of any and every building arson, and the reason
which may have led to including dwelling-houses, barns, or
shops, can only be intended to apply to buildings occupied
as dwelling houses, barns, or shops. Not that a dwelling-
house, etc., can only be regarded as being legally such at the
very moment when it is actually being used for its appro-
priate purpose. If left for a moment animo revertendi, it is
still the dwelling-house of its possessor. A mere building,
though fitted up, or intended for any of these purposes, does
not acquire its character until it has been appropriated to its
proper purpose, and, after it has been so appropriated, tiie
use must be continued to the time of the offence, or, if dis-
continued, must be discontinued under such circumstances as
indicate an intended immediate resumption, (r)
A small shanty, about twelve feet square, slightly con-
structed with boards placed upright, having a shed-roof of
boards but no floor, nor any windows or openings for
windows, having, however, a door not hung but fastened
with nails, being used by a carpenter who was putting up
a house near it, as a place of deposit for his tools and
window-frames which he had made, but in which no work
was carried on by him, and which had not been used as a
workshop at any time, to any degree, was held not a build-
ing used in carrying on the trade of a carpenter, within the
4 & 5 Vic., c. 26, s. 3. (s)
A building, within the 32 & 33 Vic., c. 22, s. 7, need not
necessarily .be a completed or finished structure : it is suffi-
cient that it should be a connected and entire structure.
Thus in one case, the building set fire to was one of seven
built in a row, intended for dwelling-houses, and built, in
part, of machine-made bricks, all the walls, external and
(q) McNab v. McGrath, 5 U. C. Q. B. O. S. 519.
(r) Ibid. 522.
(«) Beg. v. Smith, 14 U. C. Q. B. 546.
294 THE CRIMINAL LAW OF CANADA.
internal, of the house, being built and finished, the roof
being on and finished, and a considerable part of the floor-
ing laid. The internal walls and ceiling were prepared, and
ready for plastering, and the house was in a forward state
towards completion, but was not completed ; it was held to
be a building within the meaning of this section, (t)
But the remains of a wooden dwelling-house after a pre-
vious fire, which left only a few rafters of the roof and
injured the sides and floors so as to render it untenantable,
and which was being repaired, was held to be no " building"
within the section, (u)
Where the question of building or no building is pro-
perly left to the jury, their finding is conclusive, (v)
Where the offence consists of the setting fire to the house
of a third person, the intent to injure that person is inferred
from the act, provided it be wilful, for every person is
•deemed to intend the natural consequences of his own
act. (w)
On the other hand, where the defendant is charged with
setting fire to his own house, the intent to defraud cannot
be inferred from the act itself, but must be proved by other
evidence, (x)
An indictment, under Con. Stat., c. 93, s. 4, need not have
alleged the intent to injure or defraud, as the statute did
not make the intent part of the crime, and differed from
the English in this respect, (y) But it was necessary to
prove an intent to injure or defraud, in order to show the
act to be unlawful and malicious within the meaning of the
statute, (2) when the court would infer the act to be un-
lawful and malicious, (a)
The 32 & 33 Vic., c. 22, s. 3, makes the intent part of the
(t) Reg. v. Manning, L. R. 1 C. C. R. 338.
(«) Reg. v. Labadie, 32 U. C. Q. B. 429.
(v) Reg. v. Manning, L. R. 1 C. C. R. 338.
(w) See Reg. v. Farringtm, R. & R. 207.
(x) See Arch. Cr. Pldg. 511-12 ; 'Reg. v. Gilson, R. & R. 138.
(y) Reg. v. Bryans, supra ; Reg. v. Greenwood, 23 U. C. Q. B. 250.
(z) Reg. v. Bryans, 12 U. C. C. P. 161.
(a) Ibid.
ARSON. 295
crime, and it is apprehended that the intent must now be
alleged in the indictment, notwithstanding the above cases, (b)
In Greenwood's case, the prisoner being indicted for unlaw-
fully and maliciously attempting to burn his own house, by
setting fire to a bed in it, it appeared in evidence that the
house in question was so closely adjoining to another house,
both being of wood, and the space between the two being
only a few inches, that it would be next to impossible that
the one should be burnt without also burning the other;
that the dead body of a woman was in the bed at the time ;
that her death had been caused by violence ; that she had
been recently delivered of a child, whose body was found in
the kitchen, and that she had lived in the house since it had
been rented by the prisoner, who frequently went there at
night. It was also shown that the prisoner had been indicted
for the murder of this woman, and acquitted, and the record
of his acquittal was put in. This evidence was objected to,
as tending to prejudice the prisoner's case ; but the court
held it admissible, for, the house being the prisoner's, it was
necessary to show that his attempt to set fire to it was
unlawful and malicious, and that these facts would prove it,
and might also satisfy the jury that, the murder being com-
mitted by another, the prisoner's act was intended to conceal
it. (c)
The intention must be to injure some person who is not
identified with the defendant. Therefore, a married woman
cannot be indicted for setting fire to the house of her husband,
with intent to injure him. (d) ,
Where the prisoners are indicted under the 32 & 33 Vic.,
c. 22, s. 3, for unlawfully, maliciously, and feloniously setting
fire to a shop " of and belonging to " one of the prisoners,
the averment of ownership is an immaterial averment, which
may be rejected as surplusage, and need not be proved;
(b) See Arch. Cr. Pldg. 508 ; Reg. Y. Price, 1 C. & K. 73 ; but see Reg.
v. Cronin, Rob. & J. Dig. 904.
(c) 23 U. C. Q. B. 250.
(d) Reg. v. March, 1 Mood. C. C. 182 ; Arch. Cr. Pldg. 512.
296 THE CRIMINAL LAW OF CANADA.
and an intent to injure another person, whose name is not
stated in the indictment, may be proved in support of the
indictment ; for, by s. 68 of the Act, it is not necessary to
allege an intent to injure or defraud any particular person, (e}
The word "arson" is not used as a term of art, as "murder,"
or the like, in legal documents ; but is used to express what
indictments describe as wilfully, maliciously, and feloniously
setting fire to a house. (/)
"Where one W., after arranging against a wall, under the
prisoner's directions, a blanket saturated with coal oil, so that
if a flame were communicated to it, the building would have
caught fire, lighted a match, and held it in his fingers till it
was burning well, and then put it down towards the blanket,
and got it within an inch or two of the blanket, when the
match went out, the blaze not touching the blanket, and he
throwing away the match, and leaving, without making any
second attempt, and no fire was actually communicated to
the oil or blanket ; it was held that these were overt acts
immediately and directly tending to the execution of the
principal crime, and that the prisoner was properly con-
victed under the 32 & 33 Vic., c. 22, s. 12, of an attempt to
commit arson, (g)
On an indictment under the corresponding English section
of 32 & 33 Vic., c. 22, s. 8, it appeared that the prisoner, from
ill-will and malice against a person lodging in a house, made
a pile of her goods on the stone floor of the kitchen, and set
fire to them, under such circumstances that the house would
almost certainly have been burned, had not the police extin-
guished the fire before the house was actually ignited. The
judge, at the trial, told the jury that, if the house had caught
fire from the burning goods, the question whether the offence
would have amounted to felony would have depended upon
whether such a setting fire to the house would have been
malicious, and with intent to injure, so as to bring the case
(e) Reg. v. NewbouU, L. R. 1 C. C. R. 344.
(/) Re Anderson, 11 U. C. C. P. 69, per Hagarty, J,
(g) Reg. v. Goodman, 22 U. C. C. P. 338.
ARSON. 297
within the corresponding section of 32 & 33 Vic., c. 22, s. 3 ;
and that, though the prisoner's object was only to destroy
the goods, and injure the owner of them, and not to destroy
the house, or injure the landlord, yet, if they thought he was
aware that what he was doing would probably set the house
on fire, and so necessarily injure the owner, and was at best
reckless whether it did so or not, they ought to find that, if
the building had caught fire, from the setting fire to the
goods, the offence would have been felony, otherwise not.
The jury found that the prisoner was guilty, but not so that,
if the house had caught fire, the setting fire to the house
would have been wilful and malicious ; and it was held that,
upon the finding of the jury, the prisoner was not guilty of
felony ; for their finding was only that the goods were set on
fire with intent to injure the owner of the goods, and there
was no section in the Act which makes the wilful and mali-
cious setting fire to goods felony, (i)
It is a felony, under 14 & 15 Vic., c. 19, s. 8, coupled with
7 Wm. IV., and 1 Vic., c. 89, s. 3, for a man to set fire to
goods in a house in his own occupation, with intent to de-
fraud an insurance company, by burning the goods. One of
these Acts makes it felony to set fire to a house, with intent
to defraud. The other, felony to set fire to goods in a house,
the setting fire to which house would be felony. If the inten-
tion to defraud is meant to extend to the defrauding of any
person who may be defrauded by the effects in the house being
destroyed, then, in this case, it would be felony to set fire to
the house ; but setting fire to goods in a house, the setting
fire to which house would be felony, is felony. (/)
Upon an indictment under 7 Wm. IV.. and 1 Vic., c. 89,.
s. 10, for setting fire to a stack of grain, it was proved that
the prisoner set fire to a stack of flax, with the seed in it, and
the jury found that flax seed is grain, and it was held that a
conviction was right, (k)
(t) Reg. v. CMd, L. R. 1 C. C. R. 307.
(j) Reg. v. Lyons, 5 U. C. L. J. 70 ; Bell, C. C. 38.
(k) Reg. v. Spencer, 3U. C. L. J. 19 ; Dears. & B. 131 ; 26 L. J. (M.C.) 16.
298 THE CRIMINAL LAW OF CANADA.
Perjury and subornation of perjury. — Perjury at common
law is defined 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 con-
sequence, to the point in question, whether he be believed or
not. (I) Subornation of perjury, by the common law, is an
offence, in procuring a man to take a false oath, amounting
to perjury, who actually takes such oath, (m) These offences
are now misdemeanors, by the 32 & 33 Vic., c. 23. s. 1.
An oath or affirmation, to amount to perjury, must be taken
in a judicial proceeding, before a competent jurisdiction, (n)
The swearing falsely by a voter, at an election of alder-
men, is not an oath upon which, by the common law, per-
jury could be assigned, not being in any judicial proceeding,
or anything tending to render effectual a judicial proceed-
ing, (o) This would probably now be perjury, under the
32 & 33 Vic., c. 23, s. 2. ( p)
But false swearing before a local marine board, lawfully
constituted, upon a matter material to an inquiry, then
being lawfully investigated by them, in pursuance of the
17 & 18 Vic., c. 104, is perjury and indictable, as such, for
it is in a tribunal invested with judicial powers, (q)
Since the Judicature Act, it is sufficient evidence of the
existence of proceedings for the officer of the court to
produce the copy of the writ filed, and of the pleadings, if
any. (r)
Although a summons in bastardy is irregularly issued,
yet, if the defendant actually appears, he thereby waives
any irregularity there might be in the process ; consequently
the proceeding of the justices, in taking his evidence, is a
(1) 3 Rusa. Cr. 1.
(m) Ibid.
(n) Reg. v. Aylett, 1 T. R. 69 ; 3 Russ. Cr. 2.
(o) Thomas v. Platt, 1 U. C. Q. B. 217.
(p) Hogle v. Hogle, 16 U. C. Q. B. 520, per Robinson, C. J.
(q) Reg. v. Tomlinson, L. R. 1 C. C. R. 49 ; 36 L. J. (M. C.) 41 ; Reg. v.
Smith, L. R. 1C. C. R. 110.
(r) Reg. v. Scott, L. R. 2 Q. B. D. 415.
PERJURY. 299
valid judicial proceeding sufficient to make the prisoner's
false swearing, in the course of it, perjury, (s)
Where the affidavit is not taken in a judicial proceeding,
and therefore does not constitute perjury in its strict sense,
the party may nevertheless be indicted for a misdemeanor
at common law if taken on a lawful occasion, in which it
has been made an offence by law to swear falsely, (t) Thus
a false statement in an affidavit made under the Bills of Sale
Act, for the purpose of having a bill of sale filed, though
not strictly constituting perjury, was, nevertheless, a false
oath, sufficient to found a conviction for perjury on the ordi-
nary indictment, (u)
The party administering the oath must have competent
authority to administer it in the particular proceeding in
which the witness is sworn, (v)
To give a magistrate jurisdiction, it is unnecessary to
show any summons issued, or any step taken to bring the
person complained of before him, for, so long as he was
present, the manner of his getting there was immaterial; (w)
and even the fact that he was arrested on a warrant illegally
issued does not affect the magistrate's jurisdiction, (x)
But where the complaint before the magistrate was for
selling liquor without license, contrary to the (Ont.) 32 Vic.,
c. 32, and the indictment did not show where the liquor
was sold, and s. 25 of the Act required the proceedings to
be carried on before magistrates "having jurisdiction in
the municipality in which the offence is committed," so
that it did not appear from the indictment that the magis-
trate had jurisdiction to hear the complaint or administer
the oath, the indictment was held insufficient in law. (y)
(«) Reg v. Fletcher, L. R. 1 C. C. R. 320.
(t) Reg. v. Chapman, 1 Den. 432, 2 C. & K. 846 ; Reg. v. Hodgkias,
L. R. 1 C. C. R. 212 ; 39 L. J. (M. C.) 14 ; Hogle \. Hogle, mpra.
(v) Reg. v. Hodgkiss, L. R. 1 C. C. R. 212.
(v) Reg. v. Mcfntosh, 1 Hannay, 372 : McAdam v. Weaver, 2 Kerr, 176.
(w) Reg. v. Maaon, 29 U. C. Q. B. 431.
(x) Reg. T. Hughes, L. R. 4 Q. B. D. 614.
(y) Reg v. Maton. 29 U. C. Q. B. 434, per Wilson, J.
300 THE CRIMINAL LAW OF CANADA.
Defendant, by verbal agreement, engaged to work as a
farm servant with one T., on the 9th of April, 1860, at $H
per month, the bargain being, that he should work for half
a month, and as long after as he was found to suit, or until
the fall ploughing was done. It was held that this could
not be treated as a hiring for a year, or any period beyond
it, and that it was such a hiring as came within the Con.
Stats. U. C., c. 75, and under the 12th section of the Act, gave
the magistrate jurisdiction to adjudicate on the matter, and
afford redress, and that a false oath taken in such proceeding
was therefore perjury, (z) A magistrate has jurisdiction to
adjudicate upon such a complaint, although the summons
be not taken out until the relation of master and servant
has ceased ; or, at any rate, he has jurisdiction to inquire
into the existence of that relatio'n. (a)
But where a woman, having obtained judgment against the
defendant in a county court, married, and afterwards, in her
maiden name, took out a judgment summons against him
in another district, which, on hearing, the judge amended
by inserting her husband's name, and the defendant was
then sworn and examined, and was afterwards indicted and
convicted at that hearing; it was held that he was im-
properly convicted, as he had been sworn in a cause in
which there was no judgment, and in which the county
court had no jurisdiction ; (&) and on an information for un-
lawfully killing cattle, the charge was held to be only one
of trespass, and that, therefore, the magistrate had no juris-
diction to administer an oath, (c)
The defendant was convicted on an indictment for perjury,
assigned upon a clause in his affidavit, made before a magis-
trate under Con. Stat. U. C., c. 52, s. 73, in compliance with
one of the conditions of a policy issued to him by a mutual
lire insurance company, requiring the assured, in case of loss
(2) Reg. v. Walker, 21 U. C. Q. B. 34.
(a) Reg v. Proud, L. R. 1 C. C. R. 71.
(b) Reg. v. Pearce 9 U. C. L. J. 333 ; 3 B. & S. 531 ; 32 L. J. (M. C.) 75
(c) Oanong v. Fawcett, 2 Pugsley, 129.
PERJURY. 301
by fire, to deliver unto the company a detailed statement,
under oath, of his loss, and value of the property destroyed.
It was held that the policy of insurance containing this con-
dition should have been produced in order to show the au-
thority of the justice of the peace, before whom the affidavit
was made, to administer the oath, and also the condition
above referred to, of which there had been no proof what-
ever, although the perjury assigned had been committed in
complying with it. (d)
By the 32 & 33 Vic.,c. 23, s. 4, the justice or commissioner
is now required to take the affidavit or declaration.
On an indictment for perjury, on the hearing of a com-
plaint for trespass in pursuit of game, it appeared that the
complaint alleged that the defendant was in the close for the
purpose of destroying game, but it did not allege that it was
for the purpose of destroying game there. The complaint
was held to be sufficient in form to give the justices jurisdic-
tion, so as to make false evidence, on the hearing, perjury, (e)
The clerk of a Division Court, acting under the 13 & 14
"Vic., c. 53, s. 102, issued an interpleader summons on his
own authority, without the bailiff's request. The statute
requires the summons to be issued upon the application of
the officer charged with the execution of the process. Both
parties attended before a barrister appointed by the judge of
the court, who was ill. They thereby submitted to the juris-
diction, and an order was made under this section. The
judge afterwards granted a new trial, which took place.
The defendant was convicted of perjury, committed on the
hearing, after the granting of the new trial ; but it was held
that both parties having appeared in the first instance, the
proceedings then could not be considered void, for want of a
previous application by the bailiff, and were, consequent^
final and conclusive. But it not being competent to the
judge to order a new trial, under s. 84 of this Act, the pro-
(d) Reg. v. Gagan, 17 U. C. C. P. 530.
(f) Reg. v. Western, L. R. 1 C. C. R. 122 ; 37 L. J. (M. C.) 81.
302 THE CRIMINAL LAW OF CANADA.
ceedings on the second trial were irregular and extra-judicial,
and the false swearing taking place on it, the conviction was
illegal, as there was no authority to administer the oath. (/)
Not only must offences of the nature charged be within
the competence of the magistrate, but he must also have
jurisdiction territorially, (g)
Where the jurat of an affidavit states the place, it is prima
facie evidence of administering the oath there, (h) A person
is indictable who gives false evidence before a grand jury,
on a bill of indictment, and the false swearing may be
proved by the evidence of other witnesses, examined before
them on the same bill (i)
Previously to the 32 & 33 Vic., c. 23, s. 7, the doctrine
was, that that part of the oath upon which the perjury is
assigned must be material to the matter then under the con-
sideration of the court, (j )
But that section enacts that all evidence and proof what-
soever, whether given or made orally, or by, or in any
affidavit, affirmation, declaration, examination or deposition,
shall be deemed and taken to be material, with respect to
the liability of any person to be proceeded against, and
punished for wilful and corrupt perjury, or for suborna-
tion of perjury.
The matter sworn must be either false in fact or, if true>
the defendant must not have known it to be so. But a
man may be indicted for perjury, in swearing that he be-
lieves a fact to be true, which he must know to be false, (k)
(/) Reg. v. Doty, 13 U. C. Q. B. 398.
(g) Reg. v. Row, 14 U. C. C. P. 307 ; Reg. v. Atkinson, 17 U.C.C.P. 295.
(h) Reg. v. Atkinson, supra, 301, per J. Wilson, J.
(i) Reg. v. Hughes, 1 C. & K. 519 ; Arch. Cr. Pldg. 815.
(j) Reg. v. Griepe, 1 Ld. Raym. 256 ; Reg. v. Nichol, 1 B. & Aid. 21 ;
Reg. v. Tovmsend, 10 Cox, 356 ; 4 F. & F. 1089 ; Arch. Cr. Pldg. 816; 2
Salk. 514 ; Reg. v. Lavey, 3 C. & K. 26 ; Reg. v. Overton, 2 Mood. C. C.
263 ; C. & Mar'. 655 ; see also Reg. v. Gibbons, L. & C. 109 ; 31 L. J. (M.C.)
98; Arch. Cr. Pldg. 817 ; Reg.' v. Tyson, L. R. 1 C. C. R. 107 ; 37 L. J.
(M.C.) 7 ; 16 W. R. 317 ; Reg. v. Murray, 1 F. & F. 80 ; Reg. v. Aluop, 5
C. L. J. N. S. 159 ; 11 Cox, 264 ; Reg. v. Naylor, 11 Cox, 13 ; W. R. 374 ;
Reg. v. Courtney, 7 Cox, 111 ; 5 Ir. L. R. N. S. 434 ; Reg. v. Dunston, Ry.
& M. 109 ; Reg. v. Goodard, 2 F. & F. 361.
(k) Reg. v. Pedley, 1 Leach, 327 ; Reg. v. Schlesinger, 10 Q.B. 670 ; 17 L. J.
(M. C.) 29; Arch. Cr. Pldg. 818.
PERJURY. 303"-
The false oath must be taken deliberately and intention-
ally ; for, if done from inadvertence or mistake, it cannot
amount to voluntary and corrupt perjury. (/)
It would seem that perjury may be assigned, when the
oath is administered upon the Common Prayer book of the
Church of England, (m)
Where, in an indictment for perjury, the defendant was
alleged to have sworn that no notice of the disqualification
of a candidate for township councillor had been given pre-
vious to or at the time of holding the election, the perjury
assigned being that such notice had been given previous to
the election, and the notice appearing to have been given
on the nomination of the candidate objected to ; it was
held that the assignment of perjury was not proved, as an
election, under the Municipal Act, is commenced when the
returning officer receives the nomination of candidates, and
it is not necessary, to constitute an election, that a poll
should be demanded, (ri)
The false oath must be clear and unambiguous. But
where a joint affidavit, made by defendant and one D.r
stated, " each for himself maketh oath, and saith that, etc.,
and that he, this deponent, is not aware of any adverse
claim to or occupation of said lot ;" the defendant having
been convicted of perjury upon this latter allegation, it
was held that there was neither ambiguity nor doubt in
what each defendant said ; but that each, in substance,
stated that he was not aware of any adverse claim to or
occupation of said lot. (o)
It would seem that a magistrate taking an affidavit
without authority is guilty of a misdemeanor, and that a
criminal information will lie against him for so doing, (p)
To constitute perjury at common law, it is not necessary
that an affidavit should be read or used ; for the crime is
(I) Arch. Cr. Pldg. 818-19.
(m) McAdam \. Weaver, 2 Kerr, 176 ; Rokeby v. Langston, 2 Keb. 314-
(») Reg. v. Cowan, 24 U. C. Q. B. 606.
(o) Reg. v. Atkinson, 17 U. C. C. P. 295.
(p) Jackson v. Kassel, 26 U. C. Q. B. 346, per Draper, C. J.
304 THE CRIMINAL LAW OF CANADA.
complete on the affidavit being sworn to, though no use
was afterwards made of it ; but, under the 5 Eliz., c. 9, as
nothing can be an offence within it unless some one is
actually aggrieved, the affidavit must be read or used, (q)
To sustain a conviction for perjury, it is not necessary
that the jurat of the affidavit, upon which the perjury is
assigned, should contain the place at which the affidavit
was sworn, for the perjury is committed by the taking of
the oath, and the jurat, so far as that is concerned, is not
material, and although through the defective jurat the affi-
davit could not be received in court, yet perjury may be
committed in an affidavit which the court would refuse to
read. The jurat is no part of the affidavit, (r)
There can be no accomplices in perjury, (s)
It has been held that, on an indictment for perjury, the
defendant must appear and submit to the jurisdiction of the
court, before he can be allowed to plead, and that this rule
applies to misdemeanors as well as felonies, (t)
An indictment for perjury charged that it was committed
on the trial of an indictment against A. B., at the Court of
Quarter Sessions for the county of B., on the llth of June
1867, on a charge of larceny ; which was held sufficient, and
that it was not necessary to specify the property stolen, the
ownership thereof, or the locality from which it was taken,
nor to allege that the indictment was in the name of the
Queen, as the court must take judicial notice of the fact that
Her Majesty alone could prosecute on a charge of larceny, (u)
This decision was, to some extent, founded on the provisions
of the Con. Stats. Can., c. 99, ss. 39 and 51 ; arid as those of
the 32 & 33 Vic., c. 23, s. 9, are the same in substance, the
decision will still hold.
Although, in an indictment for obtaining money or goods
by false pretences, the property in the money or goods must
(q) Milner v. Gilbert, 1 Allen, 57.
(r) Beg. v. Atkinson, 17 U. 0. C. P. 295.
(s) Reg. v. Pelletier, 1 Revue Leg. 565.
(t) Reg. v. Maxwell, 10 L. C. R. 45.
(«) Reg. v. Macdonald, 17 U. C. C. P. 635.
PERJURY. 305
be alleged, yet in reciting such a prosecution, upon which to
found a charge of perjury, it seems the same particularity
would not be necessaiy, otherwise the false pretence should
be set out too, and it was only after a long course to the
contrary that it was at length determined the false pretences
should be set out in the indictment, for the specific offence, (v)
Where an indictment for perjury stated that a cause was
pending in the county court, in which A. and B. were plain-
tiffs and C. defendant ; that, on the hearing of such cause, it
" became a material question whether the said A. had, in the
presence of the prisoner, signed at the foot of" a certain bill
of accoxmt, purporting to be a bill of account between a cer-
tain firm called A. & Co. and the aforesaid C., a receipt for
payment of the amount of the said bill, " and that the said
prisoner did " falsely, corruptly, and maliciously swear that
the said A did, on a certain day, in the presence of the
prisoner, sign the said receipt (meaning a receipt at the foot
of the said first mentioned bill of account for the payment of
the said bill), whereas, etc. : it was held sufficiently certain, (w)
And an indictment for perjury which stated the offence
to have been committed on the trial of " a certain indictment
for misdemeanor," at the Quarter Sessions for the county of
Salop, but did not state what the misdemeanor was, so as to
show that the court had jurisdiction to try it, nor expressly
averred that the court had such jurisdiction, was held good, (x)
The 32 & 33 Vic., c. 23, s. 9, renders it unnecessary to set
forth the authority to administer the oath. This Act was
passed to do away with technical forms of indictments, and
where an indictment contains every averment required by
this section, it is by the express terms of the section suffi-
cient, although it does not contain any express or equivalent
(v) Reg. v. MacdoruM, 17 U. C. C. P. 638, per A. Wilton, J.; Rex. r.
Maeon, 2 T. R. 581.
(w) Reg. v. Webster, 5 U. C. L. J. 262 ; 1 F. 4 F. 515.
• (x) Reg. v. Dunning, L. R. 1 C. C. R. 290.
306 THE CKIMINAL LAW OF CANADA.
averment that the court had competent authority to admin-
ster the oath, (y)
Where it appeared, on the face of an indictment for per-
jury, that the statement complained of was made before a
justice of the peace, in preferring a charge of larceny com-
mitted within his jurisdiction, it was held unnecessary to
allege expressly that he had authority to administer the
oath, (s)
An indictment for perjury, which charged the defendant
with having sworn falsely in certain proceedings before
justices, wherein he was examined as a witness, the allegation
of materiality averred that " the said D. R. (the defendant)
being so sworn as aforesaid, it then and there became material
to inquire and ascertain, etc., was held bad, as not sufficiently
showing that the alleged perjury was committed at the said
proceedings, and that the words " upon the trial " should
have been used, (a)
In 32 & 33 Vic, c. 23, s. 9, "the substance of the offence
charged " means that the charge must contain such a descrip-
tion of the crime that the defendant may know what crime
he is called upon to answer ; that the jury may appear to
be warranted in their conclusion of guilty or not guilty upon
the premises delivered to them, and that the court may see
such a definite crime that they may apply the punishment
which the law prescribes. (&)
Where a prosecutor has been bound by recognizance to
prosecute and give evidence against a person charged with
perjury, in the evidence given by him on the trial of a
certain suit, and the grand jury have found an indictment
against the defendant, the court will not quash the indict-
ment because there is a variance in the specific charge of
(y) Reg. v. Dunning, L. R. 1 C. C. R. 294-5, per Channel, B.
(z) Reg. v. Callaghan, 20 U. C. Q. B. 364.
(a) Reg. v. Ross, 1 Oldright, 683; and see 32 & 33 Vic., c. 29, sch. A.
Perjury, 291.
(b) Reg. v. Macdonald, 17 U. C. C. P. 638, per A. Wilson. «L; Reg. v.
Home, Cowp. 682.
PERJURY. S07
perjury contained in the information and that contained in
the indictment, provided the indictment sets forth the
substantial charge contained in the information, so that
the defendant has reasonable notice of what he has to
answer, (c)
An indictment for perjury, based upon an oath alleged
to have been made before the "judge of the General Ses-
sions of the Peace in and for the said district" [of Montreal],
instead of, as the fact was, before the "judge of the Sessions
of the Peace in and for the city of Montreal," that being
the proper title of the judge, may be amended after the
plea of not guilty, (d)
Where an attempt to incite a woman to take a false oath
consisted of a letter written by defendant, dated at Brad-
ford, in the county of Simcoe, purporting but not proved
to bear the Bradford post mark, and addressed to the
woman at Toronto, where it was received by her : it was
held that the case could be tried in York, (e)
The 32 & 33 Vic., c. 23, s. 10, contains provisions as to
the form of the indictment, whether the offence has or has
not been actually committed, and section 8 provides that any
person accused of perjury may be tried and convicted in any
district, county or place, where he is apprehended, or is in
custody.
The ordinary conclusion of an indictment for perjury, " did
thereby commit wilful and corrupt perjury," may be rejected
as surplusage. (/)
It has been held under the 14 & 15 Vic., c. 100, s. 1, (g)
that the judge had power to amend an indictment for perjury,
describing the justices before whom the perjury was com-
mitted as justices for a county, where they are proved to be
justices for a borough only, (fi)
(c) Reg. v. Broad, 14 U. C. C. P. 168.
(d) Reg. v. Pelletier, In L. C. J. 146.
(e) Reg. v. Clement, 26 U. C. Q. B. 297.
(/) Reg. v. Hodgkiss, L. R. 1 C. C. R. 212 ; 39 L. J. (M. C.) 14 ; Ryallt
T. Reg., 11 Q. B. 781.
(g) See 32 & 33 Vic., c. 29, s. 71.
(h) Reg. v. Western, L. R. 1 C. C. R. 122 ; 37 L. J. (M. C.) 81.
308 THE CRIMINAL LAW OF CANADA.
By 26 Vic., c. 29, s. 7, it is enacted that witnesses before
commissioners for inquiring into the existence of corrupt
practices at elections shall not be excused from answering
questions, on the ground that the answers thereto may crimin-
ate them, and that " no statement made by any person, in
answer to any question put by such commissioners, shall,
except in cases of indictments for perjury, be admissible in
evidence in any proceeding, civil or criminal." It was held
that, " except in cases of indictments for perjury," applies
only to perjury committed before the commissioners ; and,
therefore, on an indictment for perjury, committed on the
trial of an election petition, evidence of answers to commis-
sioners appointed to inquire into the existence of corrupt
practices at the election in question is not admissible, (i}
Some one or more of the assignments of perjury must be
proved by two witnesses, or by one witness and the proof of
other material and relevant facts, confirming his testimony. (/)
And the assignment so proved must be upon a part of the
matter sworn, which was material to the matter before the
•court, at the time the oath was taken. (&)
Where three witnesses proved that the prisoner had made
parol statements, contradictory to the truth of the statement
upon which perjury was assigned, and the evidence of several
witnesses went to confirm the truth of such parol state-
ments, but there was no direct evidence that they were true,
a conviction for perjury was supported. (I)
The 32 & 33 Vic., c. 23, s. 8, applies to all cases of per-
jury, and not merely to " perjuries in insurance cases," which
is the heading under which the sections from 4 to 12 are
placed. Therefore a magistrate acting in the county of
Hal ton, has jurisdiction to take an information against, and
(i) Reg. v. Buttle, L. R. 1 C. C. R. 248.
(j) Reg. v. Boulter, "2 Den. 396 ; 21 L. J. (M. C.) 57 ; 3 C. & K , 236 ;
Hey. v. Webster, 1 F. & F. 515 ; Reg. v. JSraithwaite, ibid. 638 ; Reg. v.
Skaw, L. & C. 579 ; 34 (L. J. (M. C.) 169 ; Arch. Cr. Pldg 822.
(k) Ibid. ; see also Reg. v. Muxcot, 10 Mod. 194 ; Rey. v. Lee, 2 Rusa.
I'.V) ; Reg. v. Gardner, 8 C. & P. 737 ; Reg. v. Robert*, 2 C. & K. 607.
</) Reg. T. Hook, 4 U. C. L. J. 241 ; Dears. & B. 606 ; 27 L. J. (M. C.)
CONSPIRACY. 309
to apprehend and bind over, a person charged with perjury
committed in the county of Wellington. (TO)
Conspiracy. — A conspiracy is an agreement by two per-
sons or more, to do, or cause to be done, an act prohibited
by penal law, or to prevent the doing of an act ordained
under legal sanction, by any means whatever, or to do, or
cause to be done, an act, whether lawful or not, by means
prohibited by penal law. (n)
It is otherwise denned as a crime which consists either in a
combination and agreement by persons to do some illegal act.
or a combination and agreement to effect a legal purpose by
illegal means, (o) And a further extension of the definition
is as follows: An agreement made with a fraudulent or
wicked mind to do that which, if done, would give to the
prisoner a right of suit, founded on fraud or on violence,
exercised on or toward him, is a criminal conspiracy, (p)
Conspiracy consists not merely in the intention of two
or more, but in the agreement of two or more, to do an un-
lawful act, or to do a lawful act by unlawful means. So
long as such design rests in intention only, it is not indict-
able. But where two agree to carry it into effect, the very
plot is an act in itself, and the act of each of the parties
promise against promise, actus contra act urn, capable of being
enforced if lawful, punishable if for a criminal object or
for the use of criminal means, (g) The conspiracy or un-
lawful agreement is the gist of the offence, (r)
As it is thus complete, by a mere combination of persons,
to commit an illegal act, or any act whatever, by illegal
means, the parties will be liable, though the conspiracy has
(ro) Reg. v. Carrie, 31 U. C. Q. B. 582.
(n) Reg. v. Roy, 11 L. C. J. 93, per Drummond, J.
(o) Reg. v. Vincent, 9 C. & P. 91, per Alderson, B.; Reg. v. Roy, supra,
92, per Drummond, J.
(p) Reg. v. Aspinall, L. R. 2 Q. B. D. 48 ; Reg. v. Warburton, L. R. 1
C. C. R. 274.
(q) Mulcahy v. Reg. L. R. 3 E. & I. App. 306, 317, 328.
(r) Horseman v. Reg. 16 U. C. Q. B. 543 ; Reg. v. Seward, 1 A. k E.
706; 3 L. J. (M. C.) 103 ; Reg. v. Richardson, 1 It & Rob. 402 ; R">j v.
Kenrick, 5 Q B. 49 ; 12 L. J. (M. C.) 135 : 3 Russ. Or. 116.
310 THE CRIMINAL LAW OF CANADA.
not been actually carried into execution, (s) The actual
execution of the conspiracy need not be alleged in the in-
dictment, (t)
For the same reason, it is not necessary that the object
should be unlawful ; and in many cases an agreement to
do a certain thing has been considered as the subject of an
indictment for conspiracy, though the same act, if done
separately by each individual, without any agreement
amongst themselves, would not have been illegal, (u)
The rule is, that when two fraudulently combine, the
agreement may be criminal, although, if the agreement were
carried out, no crime would be committed, but a civil wrong
only inflicted on the party, (v}
It is sufficient to constitute a conspiracy if two or more
persons combine, by fraud and false pretences, to injure
another, (w)
A fraudulent agreement, by a member of a partnership, with
third persons, wrongfully to deprive his partner, by false
entries and false documents, of all interest in some of the
partnership property, in taking accounts for the division of
the property, on the dissolution of the partnership, was held
to be a conspiracy, although the offence was completed be-
fore the passing of the corresponding English section of the
32 & 33 Vic., c. 21, s. 38 (by which a partner can be crimin-
ally convicted for feloniously stealing the partnership pro-
perty); for the object was to commit a civil wrong by fraud
and false pretences (x)
It appears that an indictment lies not only wherever a
conspiracy is entered into for a corrupt or illegal purpose,
but also where the conspiracy is to effect a legal purpose by
(s) Reg. v. Hoy, 11 L. C. J. 92, per Drummond, J.
(t) Ibid.
(u) Rex v. Mawbey, 6 T. R. 636, per Grose, J. ; 3 Ruas. Or. 116.
(v)Reg. v. Warburton, L. R. 1 C. C. R. 276, per Cockburn, C. J.;
L. J. (M. C.) 22 ; Reg. v. AspinaU, L. R. 2 Q. B. D. 48.
(w) Ibid. 276, per Cockburn, C. J.
(x) Reg. v. Warburton, L. R. 1 C. C. R. 274.
CONSPIRACY. 311
the use of unlawful means, and this although such purpose
be not effected, (y)
But in an indictment for conspiracy, an offence prohibited
by penal law must be set forth either in the averment of the
end or means. The indictment ought to show that the con-
spiracy was for an unlawful purpose, or to effect a lawful
purpose by unlawful means. Malum prohibitum, and not
malum in se non prohibitum, is the only foundation either as
to the eud or the means, upon which an indictment for con-
spiracy should rest (z) But an omission in an indictment to
state that the agi cement was made with intent to defraud, is
cured by verdict, (a)
All the definitions of conspiracy show that the offences of
this nature belong to one or other of two classes. The first,
where the illegal character of the object constitutes the crime ;
the second, where the illegal character of the means used to
attain the end is the constituent feature of the offence. In
the first class of cases, it is unnecessary to state in the in-
dictment the means by which the unlawful end was attained,
or sought to be reached ; while in the second class, the means
or overt acts, must be specially set forth. (&)
In this case, the object was alleged to be to " cheat and
defraud private individuals ; " but as this was not necessarily
a penal offence, and no penal offence was shown in the aver-
ment of the means used, the indictment was quashed. It
was also held that the count should state of what thing or
things the defendant intended to defraud the parties, (c)
An indictment, charging that defendants, EL, C. and D.,
were township councillors of East Nissouri, and T., treasurer ;
lat defendants, intending to defraud the council of £300 of
the moneys of said council, falsely, fraudulently, and unlaw-
fully, did combine, conspire, confederate and agree among
(y) Reg. v. Tatton' Com. 8 Mod. 11 ; Reg. v. Beat, 6 Mod. 185 : 3 Rosa.
Cr. 116.
(2) Reg. v. Roy, 11 L. C. J. 89-93, per Drumrnond, J.
(a) Reg. v. Aspinoll, L. R. 2 Q. B. D. 48.
(b) Reg.v. Roy, 11 L. C. J. 93, per I>rummond, J.
(c)Ibid.
312 THE CRIMINAL LAW OF CANADA.
themselves, unlawfully and fraudulently to obtain and get
into their hands, and did then, in pursuance of such con-
spiracy, and for the unlawful purpose aforesaid, unlawfully
meet together, and fraudulently and unlawfully get into
their hands £300 of the moneys of said council, then
being in the hands of said T. as such treasurer, as aforesaid,
was held bad, on writ of error, on the following grounds :
The money in the hands of the treasurer was, under 12 Vic.,
c. 81, s. 74, the property of the municipal corporation, and
the intent to defraud should have been laid as an attempt
to defraud the latter of its moneys ; second, there was
nothing to show what the parties conspired to accom-
plish ; third, the unlawful conspiracy, which is the gist of
thj6 offence, was not first sufficiently alleged, and the overt
act stated to have been done, in pursuance of it, was not
wrong or unlawful ; fourth, it was not alleged that any un-
lawful means were had in order to get the money into the
possession of the treasurer, (d)
Conspiracy is generally a matter of inference, deduced
from certain criminal acts of the parties accused, done in
pursuance of an apparent criminal purpose, in common
between them, (e)
Whenever a joint participation in an enterprise is shown,
any act done in furtherance of the common design is evi-
dence against all who were, at any time, concerned in it. (/)
It is clearly unnecessary to prove that all the defendants,
or any two of them, actually met together, and concerted
the proceeding carried out. It is sufficient if the jury are
satisfied, from their conduct, and from all the circumstances,
that they were acting in concert. (#) But, in general, proof
of concert and connection must be given before evidence ia
(d) Horseman \. Reg., 16 U. C. Q. B. 543.
(e) MuLcahy v. Reg., L. R. 3 E. & I. App. 317, per Willes, J. ; Reg. v.
Brissac, 4 Ea. 171, per Grose, 3.
(f) Reg. v. Slavin, 17 U. C. C. P. 205 ; and see Reg. v. Shellard, 9 C. k P.
277 ; Reg. v. Blake, 6 Q. B. 126 ; 13 L. J. (M. C.) 131.
(g) Reg. v. FeUowes, 19 U.C.Q.B. 48 ; and see Reg. v. Pamonx, 1 W. Bl.
322 ; Reg. v. Murphy, 8 C. & P. 297.
CONSPIRACY.
admissible of the acts or declarations of any person not in
the presence of the prisoner, (h) The prosecutor may go
into general evidence of the nature of the conspiracy before
he gives evidence to connect the defendant with it. (i)
The prisoners were indicted for conspiring to commit
larceny. The evidence was that the two prisoners, with
another boy, were seen by a policeman to sit together on
some door-step near a crowd, and when a well-dressed per-
son came up to see what was going on, one of the prisoners
made a sign to the others, and two of them got up and fol-
lowed the person into the crowd. One of them was seen to
lift the tail of the coat of a man, as if to ascertain if there
was anything in his pocket, but making no visible attempt
to pick the pocket : and to place a hand against the dress
of a woman, but no actual attempt to insert the hand into
the pocket was observed. Then they returned to the door-
step, and resumed their seats. They repeated this two or
three times, but there was no proof of any preconcert other
than this proceeding. It was held not to be sufficient evi-
dence of a conspiracy ; for to sustain a charge of conspiracy,
there must be evidence of concert to do the illegal act, and
the doing of an act not illegal is no evidence of a conspiracy
to do an illegal one, there being no other evidence of the con-
spiracy than the act so done. (/ )
In an indictment for conspiracy to obtain money by false
pretences, it is not necessary to set out the pretences, as the
gist of the offence is the conspiracy, (ty But where the con-
spiracy is to obtain money from certain persons; it is neces-
sary to state who they are, for the conspiracy is to cheat
them. (/) Where the conspiracy is to obtain goods, it is not
necessary to specify the goods or describe them, as in an
(A) 3 Russ. Cr. 161 ; The Queen's case, 2 Brod. & B. 302 : Reg. v. Jacobs.
I Cox, C. C. 173 ; Reg. v. Duffield, 5 Cox, C. C. 404.
(i) Reg. \. Hammond, 2 Esp. 718.
(j) Rfg. v. Taylor, 8C.L.J. N. S. 54 ; 25 L. T. Reps. N. S. 75.
(i) Seg. v. Xacdonald, 17 U.C.C.P. 638, per A. Wilson, J. : Rex v. Gill,
B. & Aid. 204.
(I) Ibid.
314 _ THE CRIMINAL LAW OF CANADA.
indictment for stealing them; stating them as "divers goods"
would be sufficient, (m)
Conspiracy is an offence at common law, independently
of the 33 Edw. I., c. 2. (n) A conspiracy to kidnap is a mis-
demeanor. (0)
A conspiracy to charge a man falsly with treason, felony
or misdemeanor, is indictable : but it is not an indictable
offence for two or more persons to consult and agree to pro-
secute a person who is guilty, or against whom there are
reasonable grounds of suspicion, (p)
A conspiracy to impose pretended wine upon a man, as
and for true and good Portugal wine, in exchange for goods,
is indictable, (q) So a conspiracy to defraud the public by
means of a mock auction or an auction with sham bidders,
who pretend to be real bidders for the purpose of selling
goods at prices grossly above their worth, (r) So a con-
spiracy by a female servant and a man, whom she got to
personate her master, and marry her, in order to defraud
her master's relatives of a part of his property, after his
death, (s) So a conspiracy to injure a man in his trade or
profession; (t) so a conspiracy, by false and fraudulent
representations that a horse bought by one of the defend-
ants from the prosecutor was unsound, to induce him to
accept a less sum for the horse than the agreed price, (u)
So a conspiracy to raise the prices of the public funds by
false rumors, as being a fraud upon the public; (v) so a
conspiracy by persons, to cause themselves to be reputed
men of property, in order to defraud tradesmen ; (w) so a
conspiracy to defraud by means of false representations of
(m) Rf.g. v. Roy, 1 1 L. C. J. 92, per Drummond, J.
(n) Ibid.
(o) Exparte Blossom, 10 L. C. J. 41, per Badgky, J.
(p) Reg. v. Best, I Salk. 174 ; 2 Ld. Raym. 1167.
(q) Reg. v. Macarty, 2 Ld. Raym. 1179.
(r) Reg. v. Lewis, 11 Cox, 404, per Willes, J.
(s) Reg. v. Taylor, 1 Leach, 47.
(t) Reg. v. Eccles, I Leach, 274.
(M) Reg. v. Carltie, 23 L. J. (M. C.) 109.
(v) Ilex v. De Berenger, 3 M. & S. 67.
(tc) Reg. v. Roberts, 1 Camp. 399.
CONSPIRACY. 315
. the solvency of a bank or other mercantile establishment; (x)
so a conspiracy by traders, to dispose of their goods in
contemplation of bankruptcy with intent to defraud their
creditors; (y) so a conspiracy to procure the defilement of a
girl, (2) or a conspiracy to induce a woman, whether chaste
or not, to become a common prostitute, (a)
But an indictment will not lie for a conspiracy to commit
a mere civil trespass, (b) or for a conspiracy to deprive a
man of an office under an illegal trading company, (c)
If, however, the parties conspire to obtain money by false
pretences of existing facts, it seems to be no objection to
the indictment for conspiracy that the money was to be
obtained through the medium of a contract, (d)
A conspiracy to commit a felony or misdemeanor is in-
dictable, (e)
Even before the 32 & 33 Vic., c. 29, s. 50, although the
evidence, in support of an indictment for conspiracy, showed
its object to have been felonious, or even that a felony
was actually committed in the course of it, the defendants
were not entitled to an acquittal on the ground that the
misdemeanor had merged in the felony ; nor was, or is it,
any ground for arresting the judgment, that, on the face of
the indictment itself, the object of the conspiracy amounts
to a felony, the gist of the offence charged being a con-
spiracy. (/)
From the very nature of conspiracy, it must be between
two persons at least, and one cannot be convicted of it un-
less he has been indicted for conspiring with persons to the
jury unknown, (g) A man and his wife cannot be indicted
(x) Reg. v. Esdaile, 1 F. & F. 213.
(y) Reg. v. Hall, 1 F. & F. 33.
(z) Reg v. Hears, 2 Den. 79 ; 20 L. J. (M. C.) 59.
(a) Reg. v. Howell, 4 F. & F. 160.
(b) Reg. v. Turner, 13 Ea. 228.
(c) Reg. v. Stratton, 1 Camp. 549 n,
(d) Reg. v. Kenrick, 5 Q. B. 49 ; Bar. & M. 208 ; 12 L. J. (M. C.) 135.
(«) Reg. v. Pollman, 2 Camp. 229 n ; Arch. Cr. Pldg. 938-9.
(/) Reg. v. Button, 11 Q. B. 929 ; 18 L. J, (M. C.) 19; Reg. v. Neale, 1
Den. 36 : 1 C. & K. 591.
(g) Arch. Cr. Pldg. 942.
316 THE CRIMINAL LAW OF CANADA.
for conspiring alone, because they constitute one person in
law. (A)
But one person alone may be tried for a conspiracy, pro-
vided the indictment charged him with conspiring with
others who have not appeared, (i) or who are since dead. (.;')
Where the indictment charged that A., B. and C. conspired
together, and with divers other persons to the jurors un-
known, etc., and the jury found that A. had conspired with
either B. or C., but they could not say which, and there was no
evidence against any other persons than the three defendants?
A. was held entitled to an acquittal, (k) By the 31 Vic., c.
71, s. 5, conspiracy to intimidate a provincial legislative body
is made felony.
(A) Arch. Cr. Pldg 9*2.
(i) Reg. v. Kinnersley, 1 Str. 193.
(j) Reg. v. Nicholls, 2 Str. 1227.
(k) Reg. v. Thompson, 16 Q. B. 832 ; 20 L. J. (M.C.) 183 ; Arch. Cr. Pldg.
942.
MISCELLANEOUS STATUTES. 317
CHAPTER VII.
ANNOTATIONS OF MISCELLANEOUS STATUTES.
It is a sound rule to construe a statute according to the
common law rather than against it, except when or so far as
the statute is plainly intended to alter the common law. (a)
Statutes are usually construed strictly in criminal cases,
and no construction will be adopted which the language of
the statute does not plainly authorize. (&)
But they are taken strictly and literally only, in the point
oi defining and setting down the crime and the punishment,
and not generally in words that are but circumstance and
conveyance in putting the case, (c)
It has been laid down that the court will construe a penal
statute according to its spirit and the principles of natural
justice ; and cases may possibly arise in which, although a
person, according to the letter of the Act, may be liable to
the penalty, yet the court will direct the jury to acquit him,
he not having offended against its spirit and intention, (d)
By 31 Vic., c. 1, s. 6, thirty-ninthly, every Act shall be
deemed remedial, and shall be construed as such. In con-
struing a remedial statute, the substance of its provisions
must be looked to, (e) and the court will construe it
liberally. (/)
In construing the Consolidated Statutes of Canada, the
court may refer to the original enactments, in order to
(a) Reg. v. Morris, L- R. 1 C. C. R. 95, per Bytes, J.
(6) S*e Reg. v. O'Brien, 13 U. C. Q. B. 436 ; see also Reg. v. Brown, 4
U. C. Q. B. 149, per Robinson, C. J. ; WiU v. Lai, 7 U. C. Q. B. 537, per
Robinson, C. J.
(c) D warns, 634.
(d) Attorney General v. Mackintosh, 2 U. C. Q. B. O. S. 497.
(«) Reg. v. Proud, L. R. 1 C. C. R. 74, per Kelly, C. B.
(/) McFarlane, v. Lindsay, Draper, 142 ; Dwarris, 614.
318 THE CRIMINAL LAW OF CANADA.
arrive at a right conclusion, (g) No man can be deprived
of any right or privilege, under any statutory enactment, by
mere inference, or by any reasons founded solely upon con-
venience or inconvenience. Statutes are to be construed in
reference to the principles of common law, or of the law in
existence at the time of their enactment. It is not to be
presumed that the legislature intended to make any innova-
tion upon the common or then existent law, farther than the
case absolutely required ; and judges must not put upon the
provisions of a statute a construction not supported by the
words, (h)
The court will not put an interpretation upon an Act to
give it a retrospective effect, so as to deprive a man of his
right, (i) In general, the court will not ascribe retrospective
force to new laws affecting rights, unless, by express words
or necessary implication, it appears that such was the inten-
tion of the legislature, (j)
But the court cannot refuse to give effect to an ex post facto
statute, which is clearly so in its terms, (k) A prisoner is
liable to be indicted, on the 29 & 30 Vic., cc. 2 & 3, for un-
lawfully invading Quebec on a day antecedent to the passing
of the statute. (I)
In construing an Act of Parliament, as in construing a
deed or a contract, we must read the words in their ordinary
sense, and not depart from it, unless it is perfectly clear, from
the context, that a different sense ought to be put on them, (m)
A statute must be taken as it is, and when its object is to
protect public interests, its clauses must be 'received in that
light, (ri) A statutory enactment should be so construed as
(g) Whflan v. Reg. 28 U. C. Q. B. 108.
(h) Reg. v. Vonhof, 10 L. C. J. 293, per Drummond, 3.
(i) Attorney General v. Halliday, 26 U. C. Q. B. 414, per Draper, C. J .
Evans v. Williams, 11 Jur. N. S. 256.
( j) Phillips v. Eyre, L. R. 6 Q. B. 23, per Willes, J.
(k) Reg. v. Madden, 10 L. C. J. 342.
(I) Ibid.
(m) Reg. v. Chandler, 1 Hannay, 551, per Ritchie, C. J.
(n) Reg. v. Potion, 13 L. C. R. 316, per Mondelet, J.
MISCELLANEOUS STATUTES. 319
to make the remedy -co-extensive with the mischief it is
intended to prevent, (o)
Where two statutes are in pari materia, and by the enact-
ments of the latter statute expressly connected together,
they are to be taken as one Act. (p) And even when a
statute refers to another, which is repealed, the words of the
latter Act must still be considered as if introduced into the
former statute, (j)
In general, an affirmative statute does not alter the com-
mon law. (r)
Where general words follow particular ones, the rule is to
construe them as applicable to persons ejusdem generis, (s)
In accordance with this principle, the words " or other per-
sons whatsoever," in the Con. Stats. IT. C., c. 104, s. 1, cannot
be taken to include all persons doing anything whatever on
a Sunday, but must be taken to apply to persons following
some particular calling of the same description as those men-
tioned, (t) There can be no estoppel against an Act of Par-
liament. If the transaction contravening the Act be in reality
illegal, no writing or form of contract, or color given, can
prevent an inquiry into the actual facts, (u) It would seem
that the principle of estoppel does not apply as against the
public interest, (v)
It is a general rule that subsequent statutes, which add
accumulative penalties and institute new methods of pro-
ceeding, do not repeal former penalties and methods of pro-
ceeding ordained by preceding statutes, without negative
words. Nor has a later Act of Parliament ever been con-
to) Reg. v. Allen, L. R. 1 C. C. R, 375, per Codctrnrn, C. J.
(p) Reg. v. Beveridge, 1 Kerr, 68, per Chipman, C. J.
(q) Dwarris, 57 1 .
(r) Dwarris, 473-4 ; and see Levmger v. Reg. L. R. 3 P. C. App. 282.
(«) Sandiman v. Breach. 7 B. A C. 100.
(t) Hespeler and Sha>c, 16 U. C. Q. B. 104, per Robinson, C. J.; see also
Reg. v. Hynes, 13 U. C. Q. B. 194 ; Reg. v. Sylvester, 33 L. J. (M. C.) 79 ;
Reg. v. Tinning, 11 U. C. Q. B. 636 ; Reg. T. Armstrong, 20 U. C. Q. B.
245.
(«) Battersbey v. Odell, 23 U. C. Q. B. 482.
(v) See Reg. v. Etring, 21 U. C. Q. B. 523.
320 THE CRIMINAL LAW OF CANADA.
strued to repeal a prior Act, unless there be a contrariety
or repugnance in them, (w)
In Foster's case (x) it was held that the law does not favor
a repeal by implication, unless the repugnance be very plain.
A subsequent Act, which can be reconciled with a former
Act, shall not be a repeal of it, though there be negative
words. The 1 & 2 Ph. & M., c. 10, which enacts that all trials
for treason shall be according to the course of the common
law, and not otherwise, does not take away 35 Hy. VIII.,
c. 2, for trial of treason beyond sea. (y)
The rule is, leges posteriores priores contrarian abrogant. If
both statutes be in the affirmative, they may both stand ;
but if the one be a negative and the other an affirmative,
.or if they differ in matter, although affirmative, the last
shall repeal the first. So, if there be a " contrariety in
respect of the form prescribed," a repeal will also be
effected, (z)
We will now consider some miscellaneous statutes relat-
ing to criminal law.
The 31 Vic., c. 14, seems now to be the governing enact-
ment, protecting the inhabitants of Canada against lawless
aggressions from subjects of foreign countries at peace with
Her Majesty. It extends the 3 Vic., c. 12, (a) and the
29 & 30 Vic., cc. 2, 3, & 4, respectively, to the whole of
Canada, (b)
The Imperial statute 11 & 12 Vic., c. 12, did not override
the 3 Vic., c. 12, (c) for the latter was re-enacted by the con-
solidation of the statutes, which took place in 1859, and
is, therefore, later in point of time than the Imperial
statute, (d)
(w) Dwarris, 532-3.
(x) 11 Rep. 63.
(y) Rey. v. Sherman, 17 U. C. C. P. 168, per J. Wilson, J.
(z) See O'Flagherty v. McDowell, 4 Jur. N. S. 33 ; Beg. v. Sherman,
supra, 170, per A. Wilson, J.
(a) Con. Stats. U. C., c. 98.
(6) See also the 31 Vic., c. 16, and 33 Vic., c. 1.
(c) Reg. v. School, 26 U. C. Q. B. 212.
(d) Reg. v. Slavin, 17 U. C. C. P. 205.
MISCELLANEOUS STATUTES. 321
A British subject who has become a naturalized citizen
of a foreign state is a " citizen or subject cfany foreign
state or country," within the statute, (e) Although, where
a person is born within the Queen's dominions, the rule is,
" once a British subject, always one," yet the Crown may
waive the right of allegiance, and try him as an American
citizen, if he claim to be such. (/)
If the prisoner appeared clearly to be a British subject,
and there was no evidence that he was an American citizen,
he would still be indictable under our statute law for sub-
stantially the same felony, with some variation of state-
ment; (g} for his offence in such case would partake of the
nature of treason, and where the Crown has the right to
O
. deal with a party as a traitor, it may proceed against him
as guilty only of felony, (h*) And the prisoner's own ad-
missions, and declarations of the country to which he
belongs, are evidence against him. (z)
At an early hour, on the first of June, 1866, about eight
hundred men landed at Fort Erie, in arms, coming in canal
boats towed by tugs, the inference being irresistible that they
were from the United States. The prisoner was seen among
them, armed with a revolver. The Canadian volunteers in
uniform were attacked at Lime Ridge by these men, who
were called Fenians, and some were killed and wounded.
The prisoner was within half a mile of the battle-field, and
attended the wants of the wounded on both sides, and heard
the confession of five wounded Fenians. On the day before,
the prisoner was talking with the Fenians in their camp, two
or three being then officers, and seemed friendly with them-
When the Fenians moved, on that day, from their camp, some
of them left their valises behind, and the prisoner said, " Pick
up the valises ; the boys may want them ; we do not know
(e) Reg. v. McMahon, 26 U. C. Q. R. 195.
(/) Reg. v. Lynch, 26 U. C. Q. B. 208.
(g) See 31 Vic., c. 14, 8. 3 ; Bee,, v. Lynch, 26 U. C. Q. B. 211.
(A) Reg. v. Mr.ilahon, 26 U. 0. Q. B. 201.
(j) Reg. v. Slavni, 17 U. C. C. P. 205.
322 THE CRIMINAL LAW OF CANADA.
how long we may stay in Canada." The men picked up the
valises, and the prisoner followed them. He spoke to the
men, and told them to take care of themselves, and said to
some bystanders : " Don't be afraid, we do not want to hurt
civilians." Some one said they wanted to see red coats, and
the prisoner said, " Yes ; that was what they wanted." It
was held that these facts were sufficient to go to the jury, to
establish that the Fenians entered the province with intent
to levy war against the Queen, and that the prisoner was
connected with them, and consequently involved in their
guilt; and this even if he had carried no arms. (/) An-
other prisoner belonging to the same body asserted that
he came over with the invaders as reporter only, but it
was held that this could form no defence, for there was a
common unlawful purpose, and the presence of any one in
any character, aiding and abetting or encouraging the prose-
cution of the unlawful design, must involve a share in the
common guilt. The facts above stated were held evidence
of an intent to levy war. (&)
The fact of the invaders coming from the United States
would be prima facie evidence of their being citizens or sub-
jects thereof.
This intent, as laid down in Frost's case, (I) may be col-
lected from the acts of the accused, the bellum percussum of
the body, with which he is identified, and does not require
the passing of a resolution, or a verbal or written declaration,
plainly expressive of a purpose to levy war. (m) When the
prisoner was in arms at Fort Erie, in Ontario, at four o'clock
in the morning of the attack made upon the volunteers, and
that he had been there with the armed enemy the night be-
fore : it was held evidence that he was in arms in Upper
Canada with intent to levy war, notwithstanding his state-
ment that he had found the weapons, with which he was
(j) Retj. v. McMation, 26 U.O.Q.B. 195 ; Keg v. Slavin, 17 U.C.C.P. 205-
(Ic) Re<i. v. Lynch, 26 U. C. Q. B. 208 ; and see Reg. v. School, ibid. 214
(1) 9 C. & P. 150.
(m) Raj. v. Slamn, 17 U. C. C. P. 205. •
MISCELLANEOUS STATUTES. 323
armed, upon the road, and the fact that there was evidence
of his having been unarmed the night before.
Evidence was properly admitted, against a prisoner, of the
engagement above alluded to, although the same took place
several hours after his arrest, (n)
Where there are two sets of counts, one charging the
prisoner as a citizen of the United States, the other as a sub-
ject of Her Majesty, the Crown is not bound to elect on which
it will proceed. (0)
Where the prisoner was indicted under C. S. U. C., c. 98,
as amended by 29 & 30 Vic., c. 41, and charged as a citizen
of the United States, but was acquitted on proving himself
to be a British subject, and then indicted under the same
section as a subject of Her Majesty, he cannot plead autrefois
acquit, (p)
Under s. 11 of the 28 Vic., c. 1, for repressing outrages on
the frontier, the court can only order restoration of property
seized, when it appears that the seizure was not authorized
by the Act. (q) On the facts of this case, they refused to
interfere, holding that the collector, who seized, had probable
cause for believing that the vessel was intended to be em-
ployed in the manner pointed out by the ninth section, (r)
The 32 & 33 Vic., c. 20, s. 26, provides that whosoever
unlawfully abandons or exposes any child, being under the
age of two years, whereby the life of such child1 is endangered,,
or the health of such child has been, or is likely to be, per-
manently injured, is guilty of a misdemeanor.
As this statute uses the word " unlawfully," it would seem
that it only applies to persons on whom the law casts the ob-
ligation of maintaining and protecting the child, and makes
this a duty. A person who has the lawful custody and
possession of the child, or the father who is legally bound to
(n) Reg. v. Slavin, 17 U. C. 0. P. 205.
(o) fog. v. School, 26 U. C. Q. B. 212.
(p) Reg. v. McGratk. 26 U. C. Q. B. 385.
(q) Rfi Georgian, 25 U. C. Q. B. 319.
(r) Ibid.
324 THE CRIMINAL LAW OF CANADA.
provide for it, may offend against the provisions of the
statute. But where two persons, strangers to the child, were
indicted under this clause, the court held they were entitled
to an acquittal, (s)
It would seem, also, if the child dies the clause does not
apply, but the prisoner would be guilty of murder o> man-
slaughter, according to the circumstances, (t)
A woman who was living apart from her husband, and
who had the actual custody of their child under two years of
age, brought the child, on the 19th of October, and left it at
the father's door, telling him she had done so. He knowingly
allowed it to remain lying outside his door, and subsequently
in the roadway, from about 7 P.M. till 1 A.M., when it was
removed by a constable, the child then being cold and stiff
but not dead. It was held that, though the father had not
had the actual custody and possession of the child, yet, as he
was by law bound to provide for it, his allowing it to remain
•where he did was an abandonment and exposure of the child
by him, whereby its life was endangered, within the meaning
of the corresponding English section of 32 & 33 Vic., c. 20,
s. 26. (w)
A. and B. were indicted, for that they did abandon and
expose a certain child, then being under the age of two
years, whereby the life of the child was endangered. A.,
the mother of a child five weeks old, and B., put the child
into a hamper, wrapped up in a shawl, and packed with
shavings and cotton-wool, and A., with the connivance of
B., took the hamper to M., about four or five miles off, to
the booking-office of the railway station there. She there
paid for the carriage of the hamper, and told the clerk to
be very careful of it, and to send it to G. by the next train,
which would leave M. in ten minutes from that time. She
said nothing as to the contents of the hamper, which was
(«) Reg. v. White, L. R. 1 C. C. R. 311.
(t) See ibid. 314, per Blackburn, J.
(u) litij. v. White, L. R. 1 C. U. R. 311.
MISCELLANEOUS STATUTES. 325
addressed, " Mr. Carr's, Northoutgate, Gisbro, — with care r
to be delivered immediately," — at which address the father
of the child was then living. The hamper was carried by
the ordinary passenger train from M. to G., leaving M. at
7.45, and arriving at G. at 8.15, p.m. At 8.40 p.m. the
hamper was delivered at its address. The child died three
weeks afterwards from causes not attributable to the con-
'luct of the prisoners. On proof of these facts at the trial,
it was objected, for the prisoners, that there was no evi-
dence to go to the jury that the life of the child was
endangered, and that there was no abandonment and ex-
posure of the child, within the meaning of the statute. The
objections were overruled, and the prisoners found guilty :
and it was held by a majority of the fifteen judges that the
conviction should be affirmed, (v)
In the indictment of a husband under sec. 25 of the same
statute, for neglecting to provide his wife with necessary
food and clothing, it is not necessary to allege that the
defendant had the means and was able to provide such food
and clothing ; nor that the neglect on the part of defendant
to provide such food and clothing endangered the life or
affected the health of his wife, (w) But the wife's need and
husband's ability must appear in evidence, (x) An allegation
that the wife is ready and willing to live with her husband
is surplusage, (xx)
The 32 & 33 Vic., c. 32, which contains provisions respect-
ing the prompt and summary administration of criminal
justice in certain cases, was extended to Manitoba by 37
Vie, c. 39 ; to Prince Edward Island by 40 Vic., c. 4 ; ify
Keewatin by 39 Vic., c. 21 ; and to British Columbia by 37
Vic., c. 42. It repeals and substantially re-enacts the pro-
visions of the former statute, Con. Stats. Can., c. 105, so that
(v) Reg. v. Falinngham, L. R. R 1 C. C. 222.
(v>) Reg. v. Smith, 23 L, C. J. 247.
(x) Key. v. Nasmith, 42 U. C. Q. B. 242
(xx) Ibid.
326 THE CRIMINAL LAW OF CANADA.
the decisions under the old will equally apply to the new
Act.
Imprisonment is only authorized under this statute as a
substantive punishment; and a conviction, therefore, im-
posing a fine, and directing imprisonment for a term unless
the fine be sooner paid, is bad. (y)
It is not necessary that the disorderly conduct should be
visible from the outside of the house, (z)
A person letting a house to several young women for the
purpose of prostitution, cannot be indicted under this
statute, (a)
Under this Act it is no objection that the commitment
stated the offence to have been committed on the llth of
August, and the conviction on the 10th. (b) And a convic-
tion for keeping a house of ill-fame on the llth October,
and on other days and times, is sufficiently certain, (c)
Nor is it material that the commitment or conviction
charge that the prisoner "was the keeper of," or " that she
did keep," instead of designating the offence as " keeping
.any disorderly house," etc,, as in the statute, (d)
The limits of the city of Toronto having been assigned by
a public statute, the court takes judicial notice of them in
determining the jurisdiction of the magistrate, (e)
A commitment is good though it does not show that the
party was charged before the convicting magistrate. This
might, however, and probably would, be a detect in the
conviction.
A variance between the conviction and the information,
the latter being that defendant was the keeper of a well-
known disorderly house, and the former that the prisoner did
keep a common disorderly bawdy house, is immaterial. (/)
(y) Re Slater, 9 U. C. L. J. 21.
(z) Reg. v. hice, L. R. 1 C. C. 11. 21.
(a) Reg. v. Stannard, 9 Cox C. C. 405 ; Reg. v. Barrett, ibid. 255.
(6) Reg. v. Munro, 24 (J. C. Q. B. 44.
(c) Reg. v. Wil/iams, 37 U. C. Q. B. 540.
(a) Reg. v. Smith, supra.
(e) Rt-f). v. Alunro, supra.
,(f) Reg. v. Smith, 24 U. C. Q. B. 44.
MISCELLANEOUS STATUTES. 327
It is no objection that no notice had been put up, as
required by s. 25 (g) of the same Act, to show that the court
was that of a police magistrate, not of an ordinary justice of
the peace; for the jurisdiction, in the absence of express
enactment, could not be made to depend on the omission of
the clerk to post up such notice.
The charge of '• keeping a common disorderly bawdy
house" is sufficiently certain. (K) And the place of commit-
ting the offence is sufficiently laid, though not stated in
express terms, if the county be stated in the venue, and the
parties described as of some locality in that county in which
the magistrates have jurisdiction, (i]
In a case of this kind, affidavits are receivable upon the
question, whether the magistrate had jurisdiction or no, and
an affidavit stating the non-compliance with the require-
ments of s. 25 was received, though offered with a view to
show that the magistrate had not jurisdiction; but it would
seem affidavits are not receivable to sustain objections as to
.the conduct of the magistrate in dealing with the case before
him. (j)
On an application for a writ of habeas corpus at common
law, it seems affidavits may be received, but not if the writ
is applied for under the statute of Charles, (&) for it confers
no power to receive them.
Affidavits might, perhaps, be received that no such sen-
tence passed, but not to impeach it ; and also as to matter
of fact, but not of law. (Z)
When the court cannot get at the want of jurisdiction
but by affidavit, it must, of necessity, be received, as if the
charge were insufficient, and the magistrate mis-stated
it in drawing up the proceedings, so that they appeared
regular, (m) It would seem that a judge of the superior
(g) 32 & 33 Vic., c. 32, s. 26.
(A) Reg. v. Munro, 24 U. C. Q. B. 44.
(i) Reg. v. Williams, 37 U. C. Q. B. 540.
0') Reg. v. Munro, 24 U. C. Q. B. 53, per Draper, C. J.
it) 31 Car. II., c. 2
(/) Re McKinnon, \> U. C. L. J. N. S. 327, per A. Wilson, J.
(m) Ibid.
328 THE CRIMINAL LAW OF CANADA.
court could not, on habeas corpus, inquire into the conclusion
at which the magistrate, acting under this statute, has ar-
rived, provided he had jurisdiction over the offence charged/
and had issued a proper warrant upon that charge ; but it
seems the judge might inquire into what that charge was,
or whether there was a charge at all. (n)
Under s. 3 of this Act the magistrate may, before any
formal examination of witnesses, ascertain the nature and
extent of the charge, and, if the party consents to be tried
summarily, may reduce it into writing. It would seem
that the magistrate may then (that is, when a person is
charged before him, prior to the formal examination of wit-
nesses) reduce the charge into writing, and try the party
upon the charge thus reduced ; and, if this is the meaning
of the statute, it would not signify whether the original
information and warrant to apprehend did or did not state
a charge, in the precise language of the Act. (6) But the
magistrate must, either by the original information, or by
the charge which he makes when the party is before him,
have the charge in writing, and must read it to the prisoner,
and ask him whether he is guilty or not. (p)
A charge of assaulting and beating is not a charge of
aggravated assault, and a complaint of the former will not
sustain a conviction of the latter, under 32 & 33 Vic., c. 32,
though, when the party is before the magistrate, the charge
of aggravated assault may be made in writing, and followed
by a conviction therefor. Under doubts as to the law and
the power to receive affidavits on the disputed facts, the
prisoner was admitted to bail, pending the application for
his discharge, which was to be renewed in term, (q)
The meaning of the words " a competent magistrate " in
the Act is defined by 37 Vic., cc. 39 & 40.
(n) Re McKinnon, 2 U. C. L. J. N. S. 328, per A. Wilson, J.
(o) Ibid. 329, per A. Wilson, J.
(p) Ibid,
(q) Ibid.
MISCELLANEOUS STATUTES.
The Con. Stats. U. C., c. 76, sees. 9 and 10, and R. S. O., c.
135, (r) contain provisions respecting apprentices and minors.
Where the apprentice is a minor, it is necessary to a con-
viction under this statute that the articles should be executed
by some one on his behalf, (s)
The satisfaction to be given (t) must be ascertained, and
an absolute imprisonment for two months is not authorized
by the statute.
The Acts of the various provinces which render breaches
of contract criminal, have been repealed by the 40 Vic., c 35
(D) ; and a number of new offences created by that statute,
viz., wilful and malicious breaches of contract endangering life,
person or property ; or of contracts with gas, water or railway
companies ; also wilful and malicious breaches of contracts
by such companies. The word " malicious " is to be con-
strued in the manner required in the Act respecting Malicious
Injuries to Property. The object of the statute, as appears by
its preamble, is to remove breaches of contract of service from
the catalogue of crimes, and render such offences purely civil
in their nature.
The defendant was indicted under the Banking Act of
1871, 34 Vic., c. 5, s. 62, for making a wilfully false and
deceptive return ; the falsity of the return consisting in the
improper classification of assets and liabilities : First, large
sums borrowed by the defendant's bank from other banks
on deposit receipts, were classified as "other deposits payable
after notice, or on a fixed day ;" second, demand notes classed
as " bills and notes discounted and current ;" and third,
overdrafts as " notes and bills discounted and current." It
was held, as to the first and second of the above charges,
that it was for the jury to determine the questions raised
thereby as matters of fact, and not for the judge presiding
at the trial ; but as to the third, that as a matter of law an
overdraft is not current, (u)
(r) 14 & 15 Vic., c. 11.
(«) Reg. v. Robertson, 11 U. C. Q. B. 621.
(t) R. S. 0., c. 135, s. 19.
(u) Reg. v. Sir Francis Hincks, 24 L. C. J. 116.
330 THE CRIMINAL LAW OF CANADA.
The wilful intent under this statute, as in other cases, may
be inferred from all the circumstances of the case, (v}
The K. S. 0., c. 153, s. 82 et seq., (w) provides for the estab-
lishment and regulation of tolls, on roads constructed by joint
stock companies.
The offence created and contemplated by the statute is the
exacting and taking a sum over and above the amount of toll
which the collector is authorized to take. Section 128 of this
statute, which makes it an offence to " take a greater toll than
is authorized by law," does not apply to the case of taking
toll from a person who is altogether exempt. If it did, a
conviction for such offence should state the ground of exemp-
tion and the fact of exemption being claimed, so that the
court could see that an offence was committed.
Where a person passed through the gate on the 10th of
January, the collector giving him credit, as was usual between
them, arid on the 20th they had a settlement, and the toll for
the 10th was then demanded, and paid ; it was held that a
conviction for such a demand, if illegal, could not be sup-
ported, (x)
Section 94, subs. 7, exempts any person, with horse or car-
riage, going to or returning from his usual place of religious
worship, on the Lord's day.
If a minister attends church, according to the usage pre-
scribed and observed by the rules of the particular persuasion
to which he belongs, such church may be considered, as to
him, the usual place of religious worship when he is attend-
ing it, on the day so prescribed, (y} But if a person claims
exemption, he must state to the toll-keeper the grounds of
his claim, (z)
A waggon of the seller carrying artificial manure to the
farm of the purchaser, is within the exemption from toll, in
(v) Reg. v. Sir Francis Hinckts, 24 L. C. J. 116.
(to) See R. S. O., c. 152, s. 82.
(x) Reg. v. Campion, 28 U. C. Q. B. 259.
(y) Smith v. Burnett, L. K, 6 Q. B. 36, per Blackburn, J.
<z) Reg. v. Davis, 22 U. C. Q. B. 333.
MISCELLANEOUS STATUTES. 331
the 5 <fe 6 Wra. IV., c. 18, s. 1, as "a carriage employed in
conveying manure for land." (a)
The following conviction before the magistrates, "for that
the defendant did, at, etc., on or about the first day of
December, and upon other days and times, before and since,
take and receive toll from the informant, at the toll-gate No.
3, situate on the macadamized road between Hamilton and
Brantford, in the said district, unlawfully and improperly,
the said gate not being in a situation or locality authorized
by law," being removed into this court by certiorari, was held
bad in not showing that the defendant was summoned, or
was heard, and in not setting out the evidence, or stating that
any complaint was made, or evidence given by any one on
oath ; in not stating how much toll was taken, and in not
showing in what respect the taking of toll was unlawful, (b)
Where tolls, fixed by the commissioners, had been exacted
by a toll-gate keeper, at a gate not six miles apart from the
one previously passed, the toll-gate keeper, under the 3 Vic.,
c. 53, s. 34, was held not liable to a summary conviction, for
the statute was intended to prevent the taking of more or
less toll than the commissioners had appointed, (c)
A conviction is bad which omits any statement of the
information ; or of the summons and appearance or default
of the accused ; or of his plea, denying or confessing. So in
not giving the evidence, or in not showing that any toll was
claimed, or what toll, or how imposed, or that any could be
claimed or imposed by reason of the completion of the road,
or any part of it. Also, it is fatal if it do not appear therein
that the defendant had proceeded on the road with any
carriage or animal liable to pay toll, and, after turning out of
the road, had returned to or re-entered it, with such carriage
or animal beyond the toll-gate, without paying toll, whereby
payment was evaded, (d)
(a) Foster and Tucker, L. R. 5 Q. B. 224 ; see (Ont.) 32 Vic., c. 40 ; Con.
Stats. Can., c. 86, s. 3.
(6) Rvt. v. Brown, 4 U. C. Q. B. 147.
(c) Rvj. v. Brown, 4 U. C. Q. B. 147.
(d) Reg. v. Haystead, 1 U. C. Q. B. 9.
332 THE CRIMINAL LAW OF CANADA.
A conviction, under s. 95 of this Act, stating that defendant
wilfully passed a gate without paying, and refusing to pay
toll, was held good, as sufficiently showing a demand of toll.
It seems doubtful whether it would be sufficient to allege
that he wilfully passed without paying, and without in any
way showing a demand, (e) It was also held, in this case,
that the non-exemption of the defendant, if essential to be
alleged, was sufficiently stated in these words : " he, the said
James Caister, not being exempted by law from paying toll
on the said road ;" and the Con. Stats. Can., c. 103, s. 44,
throws the proof on the defendant.
Where the general form prescribed by the Con. Stats. Can.,
c. 103, s. 50, sched. 1, is used, it is clearly not requisite to
show that the defendant was summoned or heard, or any
evidence given.
It is not necessary to name any time for payment of the
fine, and, in such case, it is payable forthwith. (/)
Where, assuming the facts to be true, the magistrate has
jurisdiction, the conviction only can be looked to. (g)
Where the defendant, having been convicted, on the in-
formation of a toll-gate keeper, of evading toll, appealed to
the Quarter Sessions, where he was tried before a jury and
acquitted, this court refused a writ of certiorari to remove
the proceedings, the effect of which would be to put him a
second time on his trial, for which no authority was cited, (h)
The 32 & 33 Vic., c. 22, s. 40, enacts that whosoever, by
any unlawful act, or by any wilful omission or neglect,
obstructs, or causes to be obstructed, any engine or carriage,
using any railway, or aids or assists therein, is guilty of a
misdemeanor.
The prisoner unlawfully altered some railway signals at
a railway station, from " all clear " to " danger" and " cau-
tion." The alteration caused a train, which would have
(e) Reg. v. Caister, 30 U. C. Q. B. 247.
(/) Ibid.
(g) Ibid.
(h) Stewart and Blackburn, 25 U. C. Q. B. 16.
MISCELLANEOUS STATT 333
passed the station without slackening speed, to slacken
speed, and come nearly to a stand. Another train, going
in the same direction and on the same rails, was due at the
station in half an hour ; it was held that this was obstructing
a train within the meaning of the above clause, (i)
The Act is not limited to mere physical obstructions. The
prisoner, who was not a servant of the railway company,
stood on a railway, between two lines of rails, at a point
between two stations ; as a train was approaching he held
up his arms, in the mode used by inspectors of the line
when desiroiis of stopping a train between two stations.
The prisoner knew that his doing so would probably induce
the driver to stop or slacken speed, and his intention was
to produce that effect. This caused the driver to shut
>ff steam and diminish speed, and led to a delay of four
minutes ; it was held that the prisoner had obstructed a
train within the meaning of the statute, (j)
The 13 & 14 Vic., c. 74, contained provisions prohibiting
the sale of Indian lands, but these provisions were omitted
in the Con. Stats. Can., c. 9. The subject is now regulated
by the 31 Vic., c. 42, and 32 & 33 Vic., c. 6. The latter Act
repeals the Con. Stats. Can., c. 9, and is to be construed as
one Act with the 31 Vic., c. 42. The 13 & 14 Vic., c. 74
made the purchasing of any Indian lands, unless under the
authority and with the consent of Her Majesty, a misde-
meanor, and various decisions took place as to what kind
of contract was within the Act. (k)
The 31 Vic., c. 42, imposes certain penalties on persons
trespassing on Indian lands ; but, it is apprehended, the
decisions under the old Act will not apply to the 31 Vic., c
42, as the clauses of the former have not been re-enacted.
A pawnbroker may, under Con. Stats. Can., c. 61, charge
»
(i) R°JJ. v. Hvlfi.>M, L. R. 1 C. C. R. 253 ; 39 L. J. (M. C.) 131.
(j) Reg. v. Hardy, L. R. 1 C. C. R. -278.
(k) See Rtg. v. Hagir, 1 U. C. 0. P. 380 ; Reg. v. Baby, 12 U. C. Q. B.
:Utj ; To>ten v. Watson, 15 U. C. Q. 8. 392 ; Little v. Keating, 6 U. C. Q. B.
' S. 265.
334 THE CRIMINAL LAW OF CANADA.
any rate of interest that may be agreed upon between the
parties, that statute being an enabling Act, and intended to
legalize loans to poor persons at higher rates of interest than
that allowed by the usury laws in force at the time of the
passing of the Act. (I)
A conviction under the Pawnbroker's Act, R. S. O., c. 148,
for neglecting to have a sign over the door, as directed by
the 8th section, is not sustained by evidence of one trans-
action alone, for the penalty attaches only on persons
"exercising the trade of a pawnbroker," as mentioned in the
first section, and a single act of receiving or taking a pawn
or pledge is not an exercising the trade or carrying on the
business of a pawnbroker, (m)
The Con. Stats. Can., c. 61, also contains provisions with
regard to pawnbrokers.
The return of convictions by justices of the peace is now
regulated by the 32 & 33 Vic., c. 31, s. 76, the 33 Vic., c. 27,
s. 3, and R. S. O., c. 76. The Consolidated Statute of Upper
Canada has been repealed, (n)
Under these statutes a justice of the peace is liable for a
separate penalty for each conviction of which a return is not
properly made to the sessions. (0)
Justices were not jointly liable in one penalty, but each in
a separate penalty for the offence: (p) but under the 32 & 33
Vic., c. 31, it seems that only one penalty is recoverable,
though the conviction be by two or more justices, (q)
The object of the legislature in passing the statutes, was
to compel the justices to make a return of whatever fines
they had imposed, in order that their diligence in collecting
the fines might be quickened, and also in order that it might
be known what money they should admit themselves
(l)Jteg. v. Adams, 8 U. C. P. R. 462.
(m) Reg. v. Andrews, 25 U. C. Q. B. 196.
(n) See 32 & 33 Vic., c. 36.
(o) Donogh q. t. v. Longworth, 8 U. C. C. P. 437 ; Durragh q. t.v. Pa
son, 25 U. C. O. P. 529.
(p) Metcalfq. t. v. Reeve, 9 U. C. Q. B. 263.
(q) Drake q. t. v. Preston, 34 U. C. Q. B. 257.
MISCELLANEOUS STATUTES. 335
have received, so that they might be made to account for
it ; (r) and, therefore, they are none the less bound to make
their returns, although notice of abandonment of an appeal
has been served, (s)
The illegality of a conviction is no excuse for not return-
ing it, but if on that account the fine had not been levied,
a return should be made explaining the circumstances, (t)
An order for the payment of money made by a justice,
under the Con. Stats. U. C., c. 75, was not a conviction which
it is necessary to return, (u) But a conviction under s. 165
of the Inland Revenue Act, 31 Vic., c. 8, imposing a penalty
of $200, must be returned, (v)
A conviction made by an alderman, in a city, must be
returned to the next ensuing General Sessions of the Peace
for the county, and not to the Recorder's Court for such
city, (tr)
The clerk of the peace is the clerk of all magistrates, and
it is no objection that a conviction is not in the magistrate's
office, but in that of the clerk of the peace, (x)
It would seem that the right to legislate on returns of
convictions and fines for criminal offences belongs to the
Dominion and not the Provincial Legislature. (#)
The seller of flour in barrels not marked or branded, is not
liable to the penalty affixed by the 4 & 5 Vic., c. 89, s. 23,
which applies only to the manufacturer or packer, and magis-
trates have no summary jurisdiction, when the accumulated
penalties are more than £10. And when the inspector in a
(r) O'Reilly q. t. v. Allan, 11 U.C.Q.B. 415, per Robinson, C. J. ; Atwood
v. Bosser, 30 U. C. C. P. 628.
(s) McLellan q. t. v. Mclntyre, 12 U. C. C. P. 546.
(t) O'Reilly q. t. \. Allan, supra.
(u) Ranney q. t. v. Jones, 21 U. C. Q. B. 370.
(r) May q. t. v. Middleton, 3 Ont. App. 207.
(to) Keenahan q. t. v. Egleson, 22 U. C. Q. B. 626 ; see also Ollard q. t. T.
Owens 29 U. C. Q. B. 515 ; Grant q. t. v. McFadden, 11 U. C. C P. 122 ;
Kelly q. t. v. Cowan, 18 U. C. Q. B. 104; Murphy q. t. v. Harvey, 9
U. C. C. P. 528.
(x) Reg. v. Yeomans, 6 U. C. P. R. 66.
{y) Clemens q. t. v. Bemer, 7 C. L. J. N. S. 126.
336 THE CRIMINAL LAW OF CANADA.
corporate town is the informer, he is not entitled to half the
penalty, (z)
The statute only applies to flour made within the pro-
vince, (a)
The R. S. 0., c. 189, (&) was passed to prevent the profana-
tion of the Lord's day.
A conviction under this Act " for that he, Jacob Hespeler,
of the village of Preston, Esquire, did on Sunday, the 26th
day of July last past, at the township of Waterloo, work at
his ordinary calling inasmuch as he, and his men, did make
and haul in hay, on the said day," is bad, as not stating any
offence within the statute, for defendant was not alleged to be
of, nor to have worked at, any particular calling, nor did it
state any facts from which this might be inferred, (c) The
convict ion should negative the exception in the statute, by
stating that the work done was not one of necessity, (d)
A person is liable, under the Act, for plying with his
steamboat, on Sunday, between the city of Toronto and the
peninsula — persons carried between those places not being
"travellers" wibhin the meaning of the exception in the first
section, (e)
Peppermint lozenges sold by a druggist must be considered
prima facie a medicine, though not expressly asked for or
sold as such, and such a sale is, therefore, within the excep-
tion of the Act. (/)
A note made on Sunday, in payment of goods sold on
that day, is void between the original parties, but not as
against an endorsee for value, and without notice, (g)
The giving or taking security, as an ordinary mortgage of
personal property, on a Sunday is not void, as a " buying or
selling," within the Act. (k)
(z) Reg. v. JBeekman, 2 U. C. Q. B. 57.
(a) Jbi'l.
(b) See Con. Stats. U. C., c. 104.
(c) HespeJer and Shaw, 16 U. C. Q. B. 104.
(d) See post, " Pleading."
(e) /?«;. v. Tinnimj, 11 U. C. Q. B. 63(1.
(/) Reg. T. Howarth, 33 U. C. Q. B. 537.
((]) Houston v. Parsons, 9 U. C. Q. B. 681.
(h) Wilt v. Lai, 7 U. C. Q. B. 535.
MISCELLANEOUS STATUTES. 337
But all sales or agreements for a sale of real or personal
property made on Sunday are void, (i)
A snare to catch game is an engine within the meaning of
sections 4 and 5, and putting down a snare, on a day before
Sunday, for the purpose of killing game, and keeping it set
on Sunday, is using an engine on Sunday and an offence
within the Act, even though the party be not present using
it- 0)
A farmer working on his own land on a Sunday is not
liable to conviction, under 29 Car. II., c. 7, s. 1. The words
" or other person whatsoever " are to be construed efusdem
generis, and a farmer is not ejusdem generis, with a tradesman,
who is the only employer named, nor with a laborer, who is
a person employed, (k)
The Imperial Act 21 Geo. III., c. 49, prohibiting amuse-
ments and entertainments on the Lord's day, is in force in
Ontario. (I)
The Con. Stats. U. C., c. 19, s. 181, (m) is confined to the
use of false instruments, and does not apply to the mere
verbal assertion of authority. Therefore, .where the prisoner
had obtained payment of a sum, in discharge of a debt and
costs, from a defendant (who had been previously duly
served with a summons in the county court), by pretending
that he was an officer of, and authorized by, the court to
receive it, it was held, under analogous provisions in the
Imperial statute 9 & 10 Vic., c. 95, s. 57, that the offence
was not made out. (n)
But in another case, under the same clause of the statute,
, the prisoner was indicted for acting, and professing to act,
I under a false color and pretence of county court process,
|and it was proved that the prisoner, being a creditor of R.,
(i) Lai v. Stall, 6 U. C. Q. B. 506.
( ; ) Allfn and Thompson, L. R 5 Q. B. 336.
(k) Reg. v. Silvester, 33 L. J. (M. C.) 79.
(/) Reg. v. Barnes, 45 U. C. Q. B. 276.
(m) See R. S. O., c. 47, a. 216 et teq.
(n) Reg. v. MyoU, 1 U. C. L. J. 35 ; 6 Cox, C. C. 406.
338 THE CRIMINAL LAW OF CANADA.
sent him a nonsensical letter, headed with the royal arms,
and purporting to be signed by the clerk of a county court,
threatening county court proceedings. He subsequently told
R.'s wife that he had ordered the county court to send the
letter, upon which she paid the debt ; and, whilst making
out the receipt, he made demand of her for the county court
expenses ; it was held that these facts constituted felony
within the meaning of the section, and that the conviction
must be supported, (o)
Where A. delivered to B. a document requiring him to
produce accounts, etc., at a trial in a county court, intituled
of the court, and giving the names of plaintiff and defend-
ant, with a statement in the margin of the amount of the
sum claimed, no such cause really existing ; on an indict-
ment against A., for feloniously causing to be delivered
B. a paper purporting to be a copy of a certain process oi
the county court of L., it was held that the document above
mentioned was a notice to produce documents, etc., betweei
party and party, and not a process of the court, nor did it
purport to be so. (p)
B. being indebted to A., A. obtained a blank form foi
plaintiffs instructions to issue county court summons. This
he filed up with particulars of the names and addresses of
himself and B., as plaintiff and defendant, and of the natui
and amount of the claim, and, without any authority, signec
it in the name of the registrar, endorsing also a notice, signed
also by A. in the name of the registrar, and without his
authority, that unless the amount claimed were paid by B«
on a certain day, an execution warrant would issue against
him. This paper he delivered to B., with intent thereby to
obtain payment of his debt. This was held (q) " an acting,
or professing to act, under false color and pretence of pro-
cess of the county court," within the meaning of 9 & 10 Vic.,
c. 95, s. 57. (r)
(o) Reg. v. Evans, 3 U.C.LJ. 119 ; Dears. & B. 236 ; 26 L.J. (M.C.) 92.
(p) Beg. v. Castle, 4 U.C.L.J. 73 ; Dears. & B. 363 ; 27 L. J. (M. U.) 70.
(q) Affirming Reg. v. Evans, supra,
(r) Reg. v. Richmond, 5 U. C. L. J. 237 ; Bell, 142.
MISCELLANEOUS STATUTES. 339
To constitute an offence under the 3rd section of the 7
Geo. IV., c. 3, providing for the maintenance of good order in
churches, the act complained of must have been committed
" during divine service." (s)
An information, setting out that the defendant had con-
ducted himself in a disorderly manner at a church door, by
keeping his hat on his head during the procession of the holy
sacrament, discloses no legal offence, (t)
Where a justice of the peace convicted the plaintiff, under
the Con. Stats. Can., c. 92, s. 18, of making a disturbance in
a place of worship, and committed him to gaol, without first
issuing a warrant of distress to levy fine and costs under that
section ; it was held that the Con. Stats. Can., c. 103, ss. 57
and 59, applied to this conviction, and that the justice, being
satisfied the party had uo goods, had authority and jurisdic-
diction, under the latter statute, to commit to gaol, without
first issuing a warrant to levy fine and costs, (u)
The 32 & 33 Vic., c. 28, as amended by 37 Vic., c. 43, pro-
vides that certain persons, therein described, shall be deemed
vagrants, and shall, upon conviction before any stipendiary or
police magistrate, mayor or warden, or any two justices of
the peace, be deemed guilty of a misdemeanor. Its operation
was extended to Manitoba by the 34 Vic., c. 14, to British
Columbia by the 37 Vic., c. 42, and to Prince Edward Island
by the 40 Vic., c. 4.
A conviction for prostitution under sec. 1 of this Act should
allege that the woman was asked, before she was taken, or at
the time of her being taken, to give an account of herself,
and that she did not give a satisfactory account, and that,
therefore, the arrest was made, (v) And an allegation " she
giving no satisfactory account," does not show that any prior
demand or request has been made upon her for that pur-
pose, (w}
(s) Ex pa'rte Dumouchel, 3 L. C. R. 493.
(t) Ex parte Filiau, 4 L. C. R. 129.
(u) Moff-at v. Barnard, 24 U. C. Q. B. 498.
(v) Reg. v. Levec>)ue, 30 U. C. Q. B. 509.
(w) Ibid.
340 THE CRIMINAL LAW OF CANADA.
An obligation to maintain must be made out against any
person charged with vagrancy being able to work and main-
tain himself and family. A man, for instance, is not bound
to support a wife who has left him and is living in adul-
tery ; (x) nor can he be convicted if he offers to take back
his wife, even though her refusal be well grounded on his ill-
usage, (y) It is, however, no defence that he is industrious
and constantly at work, (z)
A woman who, deserted by her husband, and having no
means of maintaining her children, leaves them so that they
become chargeable to the parish, cannot be convicted for
running away and leaving them chargeable under the Vagrant
Act 5 Geo. IV, c. 83, s. 4. (a)
It would seem a wife is not a competent witness against
her husband in prosecutions under this Act. (b)
The 32 & 33 Vic, c. 20, s. 25, makes it a misdemeanor in
any one, who, being legally liable, either as husband, parent,
guardian or committee, master or mistress, nurse or other-
wise, to provide for any person as wife, child, ward, lunatic or
idiot, apprentice or servant, infant or otherwise, necessary
food, clothing or lodging, to neglect or refuse wilfully and
without lawful excuse to do so. (c)
In the case of a wife prosecuting under this section, it is
necessary to prove that the defendant is her husband, the
wife's need, and the husband's ability. If she is better able to
support herself than he is to maintain her, or it' she is living
with another man as his wife, or if without lawful excuse she
absents herself from her husband's roof and refuses to return,
in these and similar cases the husband must be acquitted, (d)
The Con. Stats. Can., c. 67, s. 16, which declares it a mis-
demeanor, in any operator or employee of a telegraph com-
(x) Reg. v. Flinton, 1 B. & Ad. 227.
(y) Flannagan v. Bishop Wearmouth, 8 E. & B. 451.
(z) Carpenter v. Stanley, 33 J. P. 38.
(a) Peters v. Cowie, L. R. 2 Q. B. D. 131.
(6) Reeve v. Wood, 5 B. & S. 364.
(c) See page 201, ante, as to this statute.
(d) Reg. v. NasmUh, 42 U. C. Q. B. 242.
MISCELLANEOUS STATUTES. 341
pany, to divulge the contents of a private despatch, only
protects the rights of each individual sender or receiver of
a message, against disclosures of facts which corne to the
o * o
knowledge of the operators in the course of their employ-
ment. When the rights of others come in question, as when
a suit is pending between the sender or receiver of a message
and a third party, with whom he is alleged to have con-
tracted, the operator or secretary of the company is bound to
disclose the contents of the telegram, in odedience to a suh-
pcena duces tecum. (e)
The 32 & 33 Vic., c. 21, s. 43, makes it a felony to send
" any letter demanding of any person with menaces, without
any reasonable or probable cause, any property, etc." The
latter words, " without any, etc." apply to the money or pro-
perty demanded, and not to the threatened accusation. (/)
Therefore, if money be actually due, it is no offence to demand
it with menaces, (g) The offence will be complete though the
accusation was not intended to be made to a magistrate, (h)
or though it was not to be made against the person threat-
ened, but against some one in whom he has an interest, as
his sou. (i)
An offer to give information if money is sent, is no of-
fence ; (j) but a letter stating that an injury is intended, and
the writer will not interfere to prevent it unless money is
sent, amounts to an offence, (k) So threatening bodily vio-
lence, or to charge with adultery, is an offence under this
section. (/)
The menace nfust be such as to influence a reasonable
mind ; (m) and a conviction may take place although the
(e) Leslie \~. Hervey, 15 L. C. J. 9.
(/) Reg. v. Mason, 24 U. C. C. P. 58.
(g) Reg. v. Johnson, 14 U. C. Q. B. 569.
(h) Reg. v. Robinson, 2 Mood. 14.
(i) Reg. v. Redman, L. E. 1 C. C. R. 12.
(j) Reg. v. Pickford, 4 C. & P. 227.
(k) Reg. v. Smith, 1 Den. C. C. 510.
(I) Reg. v. Chalmers, 10 Cox, C. C. 450.
(m) Reg. v. Walton, L, & C. 288 ; 9 Cox, C. C. 268.
342 THE CRIMINAL LAW OF CANADA.
money has been paid, (ri) or though the person threatened
had no money at the time, (o)
Evidence of the truth of the accusation is not admissible
by way of defence, (p)
A policeman extorting money by threatening to imprison
a person on a charge not amounting to an offence in law, may
be prosecuted under this statute, and may also, it seems, be
indicted for larceny, (q)
The- cases will apply in principle to ss. 44, 45, 46, 47 and
48 of the same statute, as also to 32 & 33 Vic., c. 20, s. 15.
By the 11 & 12 Wm. III., c. 12, and 42 Geo. Ill, c. 85, if any
governor of a colony, or other person holding or having held
public employment out of Great Britain, has been guilty of
any crime or misdemeanor in the exercise of his office, every
such crime may be prosecuted or inquired of, and heard and
determined in the Court of King's Bench in England, either
upon information by the Attorney General, or upon indict-
ment found, and such crime may be laid to have been com-
mitted in Middlesex. An offence under the above statute is
an offence committed on land beyond the seas, for which
an indictment may legally be preferred in any place in Eng-
land, within the 11 & 12 Wm. III., and this section and the
other enactments of the statute, as to preliminary exam-
inations, etc., before a magistrate, in whose jurisdiction the
accused might be, apply to charges under the above statutes,
and the Court of Queen's Bench is included in the term,
" next Court of Oyer and Terminer." (?*)
Upon an indictment under the Con. Stats. U. C., c. 26, s.
20, (s) for making an assignment to defraud creditors, it was
held that a money bond is personally seizable on an execution
under the statutes 13 & 14 Vic., c. 53, and 20 Vic., c. 57, and
further, that a transfer, made by a party to a creditor, who
(n) Reg. v. Robertson, L. & C. 483.
(o) Reg. v. Edwards, 6 C. & B. 515.
(p) Reg. v. CracknaU, 10 Cox, C. C. 408.
(q) Reg. v. Robertson, 10 Cox. C. C. 9.
(r) Reg. v. Eyre, L. R. 3 Q. B. 487 ; see 32 & 33 Vic., c. 30, a. 3.
<*) SeeR. S, 0., c. 118.
MISCELLANEOUS STATUTES. 343
accepted the same in full satisfaction and discharge of his
debt, did not render the party making such assignment less
liable under this indictment, (t)
To subject a person to the penalty of the 22 Geo. II., c. 45,
for suing out process, the attorney allowing his name to be
used must be first convicted, (u)
An offence committed before, though tried after, the
Eevised Statutes of New Brunswick came in force, is not
indictable under those statutes, though the words creating
the offence are not altered thereby, the Act creating it being
embodied in the Revised Statutes in its original words. The
indictment must be considered as founded on the Act creating
the offence, (v)
The punishment provided by the ordinance 4 Vic., c. 30,
s. 1, is cumulative, and sentence of imprisonment and fine
is to be awarded upon the conviction had against the defend-
ant in manner and form as enacted by the ordinance, (w)
An overseer of the poor of a parish is liable, under the Acts
of Assembly 26 Geo. Ill, cc. 28 & 43, and 33 Geo. III., c. 3,
s. 6, to an indictment for not accounting to the first General
Sessions of the Peace in the year, for moneys received by him
for the support of the poor, during the preceding year, (x)
In an indictment of a cashier under section 62 of the Bank-
ing Act of 1871, for having unlawfully and wilfully made a
false and deceptive statement in a return respecting the
affairs of the bank, it is not necessary to allege that the re-
turn referred to was one required by law to be made by the
accused, or that any use was made by him of such return, or
to specify on what particulars the return was false, or that
such false statement was made with intent to deceive or mis-
lead, (y)
The enumeration in the indictment of several alleged
(0 Reg. v. Potter, 10 U. C. C. P. 39.
(v,) Bex \. BidwtU, Taylor, 487.
(c) Rfy. v. Pope, 3 Allen, 161 ; Reg. v. McLaugHin, ibid. 159.
(w) Reg. v. Pailiser, 4 L. C. J. 276.
(x) Reg. v. Matthew, 2 Kerr, 543.
(y) Reg. v. Cotte, 22 L. C. J. 141.
344 THE CRIMINAL LAW OF CANADA.
false statements constitutes but one count, and a general
verdict is sufficient if the statement be shown to be false in
any one of the particulars alleged. (2)
Revised Statute of Ontario, c. 142, imposes penalties on
persons who practise medicine without having been regis-
tered in that province. Where the defendant, in partnership
with two registered practitioners, resided in an establishment
over the door of which was a fan-light containing the name
of the registered practitioners, with the addition " M. D., M.
C. P. & S., Ont.," and the name of the defendant with only
" M. D.," it was held that the use of the latter letters, in
contradistinction to the full titles of the defendant's partners
appearing on the same fan-light, was not the use of a title
" calculated to lead people to infer " registration under the
above statute, (a)
Militia officers attached to B. battery, though holding com-
missions in no regular or active militia corps, are competeut
to sit in courts martial of the said battery under the Militia
Act. (b)
Members of the volunteer militia are ipso fac'o discharged
by the expiration of the term of their engagement ; and a
court martial is without jurisdiction to try a man for acts
done subsequently to such expiration ; and a conviction
under such circumstances will be quashed on certiorari. (c)
By 32 Vic., c. 17, of the Province of Quebec, a refractory
child under fourteen may be sent to an industrial school ;
and the rule that where a minor is brought up by habeas
corpus, the court will leave him to elect as to the custody in
which he will be if he be of an age to exercise a choice, has
no application to such a child.
The 38 Vic., c. 41, and 40 Vic., c. 33, provide for the sup-
pression of gaming houses ; and 40 Vic., c. 32, imposes
penalties for gambling in public places ; while 40 Vic., c. 31,
(2) Rc.g. v. Cotte, 22 L. C. J. 141.
(a) Reg. v. Tvfft, 45 U. C. Q. B. 144.
(b) Ecparte Thompson, 5 Q. L. R. 200 ; see 31 Vic., c. 40.
(c) Ibid.
MISCELLANEOUS STATUTES. 345
was passed for the repression of betting and pool-selling.
The 44 Vic., c. 30, treats of prize-fighting; 41 Vic., c. llr
provides for the punishment of persons adulterating food.
The 36 Vic., c. 8, regulates the carriage of dangerous goods
in ships ; and 38 Vic., c. 42, makes provision for enforcing
the care of animals in transit. Under s. 96 of 37 Vic., c,
45, the inspection of raw hides is compulsory, in every in-
spection district where an inspector or deputy-inspector has
been appointed ; and any person selling, or offering for sale,
within or exporting from such district, any raw hides
without the same being first inspected and stamped or
marked by the inspector or deputy, as provided by the
Act, is liable to the penalty thereby imposed, and the hides
so sold, offered for sale or exported, become forfeited, (d)
And the person selling or exporting cannot avoid such
forfeiture or penalty by himself marking the hides, accord-
ing to the provisions of section 87. («)
(d) Clarke q. t. v. Caltin, 4 Puguley & B. 98.
(e) Ibid.
346 THE CRIMINAL LAW OF CANADA.
CHAPTER VIII.
EVIDENCE.
The rules of evidence are, in general, the same in civil
and criminal proceedings, (a)
There are, however, some exceptions. Thus, the doctrine
of estoppel has a much larger operation in the former. So
an accused person may, at least if undefended by counsel,
rest his defence on his own unsupported statement of facts,
and the jury may weigh the credit due to that statement.
Again, confessions, or other self-disserving statements of
prisoners, will be rejected, if made under the influence of
undue promises of favor or threats of punishment. So,
although both these branches of the law have each their
peculiar presumptions, still the technical rules, regulating
the burden of proof, cannot be followed out in all their
niceties when they press against accused persons, (b)
There is also a strong and marked difference in the effect
of evidence in civil and criminal proceedings : in the former
a mere preponderance of probability, due regard being had
to the burden of proof, is sufficient basis of decision ; but
in the latter, especially when the offence charged amounts
to treason or felony, a much higher degree of assurance is
required, (c)
The persuasion of guilt ought to amount to such a moral
certainty, as convinces the minds of the tribunal, as reason-
able men, beyond all reasonable doubt, (d)
(a) Reg. v. Atkinson, 17 U. C. C. P. 304, per /. Wilson, J.
(b) Best on Evid., 4th ed., 122.
(c) Clark v. Stevenson, 24 U.O.Q.B. 209, per Draper, C. J. ; Hollingham
v. Head, 4C.B.N.S. 388; Beg. v. Jones, 28 U.C.Q.B. 421, per Richard*, C.J.
(d) Reg. v. Jones, 28 U.O.Q.B. 421, per Richards, C. J. ; R*g. v. Atkinson,
17 U.O.C.P. 305, per/. Wilson, J. ; and see Reg. v. Chubbs, 14 U.C.C.P. 43n.
EVIDENCE. 347
The onus of proving everything essential, to the estab-
lishment of the charge against the accused, lies on the pro-
secutor. This rule is derived from the maxim of law, that
every person must be presumed innocent until proved guilty.
It is, however, in general, sufficient to prove a prima facie
case ; then, if circumstances calling for explanation are not
explained, the case becomes stronger, for, as has been re-
marked, imperfect proofs, from which the accused might
clear himself and does not, become perfect, (e) The pre-
sumption of innocence only obtains before verdict ; after
verdict of guilty, all presumptions will be against it. (/)
The rule that the burden of proof lies on the party who,
substantially, asserts the affirmative, is applicable in criminal
cases, (g)
But in some cases, where negative pro<5f is peculiarly
within the knowledge of a party, he is bound to adduce it
The rule of law is plain, that where any one is proceeded
against for doing an act which he is not permitted to do
unless he has some special license or qualification in his
favor, it is sufficient to charge this want of license or
qualification against the party, and it is for the latter to
prove it affirmatively ; (h) for it is not incumbent on the
prosecutor to give any negative evidence (i) Still, it may
be doubted whether the prosecutor must not first give some
general evidence, to cast the onus on the other side, (j)
Where the defence calls evidence to prove facts in order to
show that a Crown witness's testimony is untrue, evidence
may be given by the Crowu in rebuttal (&)
In criminal cases, whether the evidence be circumstantial,
(e} Reg. v. Jones, 28 U.C.Q.B. 425, per Richard*, C. J. ; Reg. v. Atkuuo*,
17 U. U. C. P. 303, per J. Wilson, J.
(/) Reg. v. Hamilton, 16 U. (J. C. P. 361, per Richard*, J.
(g) Re Barrett, 28 U. C. Q. B. 561, per A. Wilson, J. ; Rex v. Hazy, 2
C. & P. 458.
(A) Re Barrett, supra, 561, per^4. JFi&on, J. ; Rexv. Turner, 5 M. & S. 206.
(*) Ex partf Park*, 3 Alien, 237.
(.;' ) See Elkin \. Janson 13 M. & W. 662, per Alderson, B. ; see, however,
Apoth. Co. v. Bentley,^.. & M. 159.
(4) Reg. v. Tower, 4 Pugsley & B. 168-
848 THE CRIMINAL LAW OF CANADA.
\
or direct and positive, the jury must decide, not simply that
all the facts are consistent with the prisoner's guilt, but that
they are inconsistent with any other rational conclusion
than that the prisoner is the guilty person. (I)
The jury must make all necessary inferences from tVie
facts proved, and it lies within their peculiar province to
decide on the credibility of witnesses, (m)
In drawing an inference or conclusion from facts proved,
regard must always be had to the nature of the particular
case, and the facility that appears to be afforded of explana-
tion or contradiction. No person is to be required to explain
or contradict until enough has been proved to warrant a
reasonable and just conclusion against him, in the absence,
of explanation or contradiction : but, where such proof has
been given, and* the nature of the case is such as to admit of
explanation or contradiction, if the conclusion to which the
proof tends be untrue, and the accused offers no explana-
tion or contradiction, that conclusion becomes almost irre-
sistible, (n)
In regaid to deciding on the credibility of a witness, the
jury should consider the nature of the story he tells, and his
manner of telling it : the probability of its being true ; his
demeanor and his readiness to answer some questions, as
well as his unwillingne s to answer others ; and his whole
conduct indicating favor to one side or the other. On the
other hand, the jury should consider, whether the witness
exhibits a trank straightforward manner of answering ques-
tions, without regard to consequences to either party ; a
desire to state all the facts, and no hesitation to answer the
various questions put to him. (o)
Where a witness, examined on the trial, directly confessed
(1) Reg. v. Greenwood, 23 U. C. Q. B. 258, per Draper, C. J. ; Taylor on
Evid. 84; and see Reg. v. Jones, 28 U. C. Q. B. 416.
(m) Reg. v. Jones, 28 U. C. Q. B. 416 ; Reg. v. Greenwood, 23 U. C. Q. B.
255 ; Reg. v. Chubbs, 14 U. C. <J. P. 32 ; Reg. v. Seddons, 16 U. C. C. P. 389 ;
Reg. v. Mcliroy, 15 U. 0. C. P. 116.
(n) Reg. v. Atkinson, 17 U. 0. C. P. 305, per J. tfilson, J.
(o) Reg. v. Jones, 28 U. C. Q. B. 419, per Richards, C. J.
EVIDENCE. 349
the crime, it was held that the judge was not bound to tell
the jury that they must believe this witness, in the absence
of testimony to show her unworthy of credit, but that he was
right in leaving the credibility of her story to them ; and if
from her manner he derived the impression that she was
under the influence of some one in court, it was not im-
proper to call their attention to it in his charge (p)
A prisoner, being indicted for the murder of one H., the
principal witness for the Crown stated that the crime was
committed on the 1st of December, 1859, on a bridge over
the River Don, and that the prisoner and one S. threw H.
over the parapet of the bridge into the river. S. had
been previously tiied and acquitted. The counsel for the
prisoner proposed to prove by one D. that S. was at his
'D.'s) place fifty miles off on that evening, but the learned
judge rejected the evidence, saying that S. might be called,
and if the Crown attempted to contradict his evidence, he
would allow the prisoner to call witnesses to corroborate it.
But it was held in error that the presence of S. was a fact
material and not collateral to the inquiry, and that D.,
therefore, should have been admitted, when tendered, on the
broad principle that he was called to speak on a matter
directly connected with the very fact under investigation,
and his evidence would affect the credibility of the evidence
for the prosecution. (</)
But on a trial for murder by stabbing with a sharp instru-
ment, it was proved that the prisoner struck the deceased,
but that neither a knife nor other instrument was seen in his
hand. Evidence for the prisoner, that the day preceding the
homicide he, the prisoner, had a knife which could not have
inflicted the wound of which the deceased died, and that on
that day the prisoner had parted with it to a person who
held it till after the crime was committed, was held to have
been properly rejected, (r)
(p) Reg. v. Jones, 28 U. C. Q. B. 416.
(q) Reg. v. Brown, 21 U. C. Q. B. 330.
(r) Reg. v. Herod, 29 U. C. Q. B. 428.
350 THE CRIMINAL LAW OF CANADA.
Where a number of persons against whom warrants had
been issued were met together at a certain house, and on the
officers of the law attempting to arrest them, one of the latter
was killed by a shot fired by some of the party, though it
was not known by which, and all were indicted for murder >
on the trial of one of them, it was held competent for the
prisoners who were not on their trial, and were called as
witnesses, to state the purpose for which they went to the
house, in order to disprove the inference that they were there
for an unlawful purpose, though declarations of the prisoners
would not have been admissible unless accompanying and
explanatory of an act, and thereby becoming a part of the
res gestce. (s)
Where two prisoners are jointly indicted, one of them may>
in certain cases, be acquitted, and called as a witness for the
other. The general rule on this point is : WThere the prosecutor
in order to exclude the evidence of a material witness for
the defendant, prefers his indictment against two jointly, and
no evidence whatever is given against the person thus unjustly
made a defendant, the j udge, in his discretion, may direct the
jury to acquit either during the progress or at the termination
of the inquiry, so as to give an opportunity to the other
defendant to avail himself of his testimony, (t)
The ground of this rule is to prevent the prosecutor from
excluding the evidence of a material witness, by joining him
in the indictment. But, as in a criminal case, the indictment
against all the prisoners is usually found by a grand jury^
and should only be found upon, at least, a prima facie case of
guilt against all, it is somewhat distinguishable from a civil
action, and seems to call for the exercise of a more guarded
discretion on the part of the judge, lest an accomplice in
guilt escape through an unfortunate and premature acquittal.
The circumstance, that the indictment is found by the grand
(s) Reg. v. Chasson, 3 Pugsley, 546.
(t) Reg. v. Kennedy, 2 Thomson, 218, per Wilkins, J. ; Reg. v. Hambly,
16 U. C. Q. B. 617 ; Rex v. Owen, 9 C. & P. 83 ; Rex v. O'Donnell, 1 Cox ,
337 ; Arch. Cr. Pldg. 274.
EVIDENCE. 351
jury, affords less ground for the suspicion that the party
is made a defendant for the purpose of excluding hi&
testimony, (u) In a criminal case, though no evidence ap-
pears against one defendant, there is no necessary inference
that he was made a defendant for this purpose, (o) Where
there is no evidence whatever against one defendant, he
should be acquitted at the close of the prosecutor's case ; (w)
but it seems this is discretionary with the judge, (x) If there
is some evidence, though very slight, against the prisoner, his
case must be submitted to the jury, (y)
If, after the close of the prisoner's case, there is no legal
evidence of his guilt, it seems the judge would be bound to
direct an acquittal, (z) The correct and reasonable rule
would appear to be that it is discretionary with the judge to
direct an acquittal, if applied for before the close of the
prisoner's case ; but that it is obligatory upon him to do sot
when the case for the defence is closed, particularly if it ap-
pears the prisoner was made a defendant for the purpose of
excluding his testimony.
Where, at the close of the case for the Crown, very slight
evidence appears against one of two prisoners jointly indicted-
the other cannot of right claim that the case of the former
be submitted separately to the jury ; but this is discretionary
with the judge. The question whether the judge has pro-
perly exercised his discretion, or not, cannot be reserved as a
point for the consideration of the court, (a) And it is always
permissible to the judge to recall any witnesses, and make
further inquiries, to meet objections, of course allowing coun-
sel for the defence to cross-examine on such new evidence. (6)
Whenever a co-defendant is ordered to be acquitted, in
(u) Reg. v. Kennedy, 2 Thomson, 211, per Bliss, J.
(v) Ibid. 219, per Wilkim. J.
(w) Reg. v. Hambly. 16 U. C. Q. B. 617.
(z) Ib'ul. ; Reg. v. Kennedy, 2 Thomson, 203.
(y) Ibid. ; Reg. v. Hambly, supra, 625.
(z) Reg. v. Kennedy, supra.
(a) Reg. v. Hambly. 16 U. C. Q. B. 617.
(6) Reg. v Jennings, 20 L. 0. J. 291.
352 THE CRIMINAL LAW OF CANADA.
anticipation of the general verdict, his credit is left to the
jury, how strong soever the bias on his mind may be. (c)
Should the judge refuse to direct an acquittal, for the purpose
of evidence, of the co-defendant, against whom there appeared
neither legal proof nor moral implication, a verdict against
the other prisoner would be set aside, (d)
Where two prisoners are jointly indicted for felony, and
plead not guilty, but one only is given in charge to the jury,
the other is an admissible witness against the one on trial,
although the plea of not guilty remains on the record undis-
posed of ; the witness not having been acquitted or convicted,
and no nolle prosequi having been entered. («) But notwith-
standing 32 & 33 Vic., c. 29, ss. 62 and 63, if both have been
given in charge to the jury, neither can be called as a wit-
ness. (/)
It is conceived that this decision will hold in Ontario at
least, as the Evidence Act here, Con. Stats. U. C. c. 32, s. 18,
only protects a party in criminal proceedings from giving
evidence for or against himself. It is also unaffected by the
R. S. O., c. 62.
Parties separately indicted for perjury alleged to have been
•committed at one and the same hearing, can be witnesses for
•or against each other, (g)
Where four prisoners were indicted together for r jbbery,
and one severed, in his challenges, from the other three, who
were tried first ; it was held that the former, although not
actually upon his trial, after pleading not guilty, and before
.trial or judgment, was a competent witness on their behalf, (h)
He would also be competent for the Crown, (i)
It would seem that, in any case, one prisoner, whether he
pleads guilty or not guilty, may, if he severs in his chal-
(c) Reg. v. Kennedy, 2 Thomson, 219-20, per Wilkina, J.
(d) Ibid. 220, per WUkin*, J.
(e) Winsor v. Reg., L. R. 1 Q. B. 390 (Ex. Chr.) ; 35 L. J. (M. C.) 161.
(f) Keg. v. Payne, L. R. 1 0. C. R. 349.
(!)) Jteg. v. Pelletier, 15 L. C. J. 146 ; 1 Revue Leg. 565.
,(A) Reg. v. Jerrett, 22 U. C. Q. B. 499.
(i) Ibid. 500, per Hagarty, J.
EVIDENCE. 353
lenges from the other prisoners, and the Crown elects to pro-
ceed against the others first, so that he is not on trial with
them, be called for the prosecution ; and this on the ordinary
principles of the common law. (/)
In such cases, however, it might be advisable, in order to
ensure the greatest possible amount of truthfulness in the
person coming to give evidence, to take a verdict of not
guilty, as to him, or to have his plea of not guilty withdrawn
and a plea of guilty taken and sentence passed, so that the
witness may give his evidence with a mind free from all the
corrupt influences which the fear of impending punishment,
and the desire to obtain immunity to himself at the expense
of the prisoner, might otherwise produce, (k) This course
cannot, however, be held absolutely necessary, since the de-
cision of this case in the Exchequer Chamber.
As to the competency of witnesses, a child of any age, if
capable of distinguishing between good and evil, may be
admitted to give evidence.
A child of six years of age was examined, on being inter-
rogated by the judge, and making answers that there was
a God, that people would be punished in hell who did not
speak the truth, and that it was a sin to tell a falsehood
under oath, although he stated he did not know what an
oath was. (I)
On a trial for murder, an Indian witness was offered, and
on his examination by the judge, it appeared that he had a
full sense of the obligation to speak the truth, but he was
not a Christian, and had no knowledge of any ceremony, in
use among his tribe, binding a person to speak the truth or
imprecating punishment upon himself if he asserted what
was false. It appeared also that he and his tribe believed
(j) Reg. v. Jerrett, 22 U. C. Q. B. SOOetseq., per Hagarty, J. ; see Rfg. v.
Kinf), 1 Cox, C. C. 232 ; Reg. v. George, C. & Mar. Ill ; Reg. v. William*,
1 Cox, C. C. 289 ; Seg. v. Stewart, ibid. 174 ; Reg. v. Gerber, 1 Temp. &
Mew, 647 ; Reg. v. Cluuter, 8 Cox, C. C. 237.
(i) IVinsor v. Reg. L. R. 1 Q. B. 312, per Cockburn, C. J.
(I) Reg. v. Berube, 3 L. C. R. 212.
354 THE CRIMINAL LAW OF CANADA.
in a future state, and in a Supreme Being who created all
things, and in a future state of reward and punishment
according to their conduct in this life. He was then sworn
in the ordinary way on the New Testament, and it was
held that his evidence was admissible, (ra) If the witness
had belonged to any nation or tribe that had in use among
them any particular ceremony which was understood to
bind them to speak the truth, however strange and fan-
tastic the ceremony might be, it would have been indis-
pensable that the witness should have been sworn according
to such ceremony ; because all should be done, that can be
done, to touch the conscience of the witness according to
his notions, however superstitious they may be. (n)
The defendant, on his trial upon an indictment, cannot
give evidence for himself, nor can his wife be admitted as
a witness for him. (6)
The wife of any one of several prisoners, jointly indicted,
stands in the same position with respect to the admissibility
of her evidence as her husband, (p)
Thus where A. and B. were tried together, on a joint
indictment for assault on a peace officer, and the wife of A.
was offered, as a witness, to disprove the charge against B. ;
it was held that her evidence was properly rejected, but had
the husband not been on his trial, she would have been a
competent witness, (q)
But where the prisoner was indicted, among other things,
for a conspiracy between himself and E., the wife of T., but
E. was not indicted ; it was held that the evidence of T. was
properly received, (r)
A conviction on the evidence of an accomplice would be
good in law, if the judge directed the attention of the jury to
(TO) Key. v. Pah-mah-yay, 20 U. C. Q. B. 195.
(n) Jbid. 198, per Robinson, C. J.
(o) Reg. v. Humphreys, 9 U. 0. Q. B. 337 : and see Reg. v. Madden, 14
U. C. Q. B. 588.
(p) Reg. v Thomson, L. R. 1 C. C. R. 377.
(q) Reg. v. Thompson, 2 Hannay, 71.
(r) Reg. v. Halliday, 7 U. C. L. J. 51 ; Bell, 257 ; 29 L. J. (M. C.) 14&
EVIDENCE. 355
the rule of practice, by which the testimony of the accomplice
requires corroboratiou as to the identity of the accused, (s)
and it seems even if the judge did not act on this rule, (t)
and the testimony of the accomplice were uncorroborated, (u)
In a prosecution for selling liquor on a Sunday, the persons
who purchased the liquor, though accomplices of the accused,
were held competent witnesses to prove the selling, (v)
Judges, in their discretion, will advise a jury not to convict
a prisoner upon the testimony of an accomplice alone without
corroboration, and the practice of giving such advice is now
so general that its omission would be deemed a neglect of
duty on the part of the judge. (•«;) The direction of the judge
should be so strongly against the testimony, if uncorroborated,
as almost to amount to a direction to acquit, (x)
In Reg. v. Seddons, (y) the jury were told that the testi-
mony of the accomplice was not sufficiently corroborated to
warrant a conviction, whereupon they came into court stating
that they thought the prisoner guilty, but that he ought not
to be convicted on the evidence. They were then told that
they ought to acquit ; but, after a short interval, they re-
turned a verdict of guilty. Before recording their findingr
the presiding judge recommended them not to convict on the
evidence, saying, however, they could do so if they thought
proper. They nevertheless adhered to their verdict, and the
court held that there was neither error, nor misconduct in
fact, nor in law.
The nature and extent of the corroboration that should be
required will depend a great deal upon the character of the
crime. And on the trial of a charge of scuttling, a direction to
the jury that it was not necessary that the accomplice should
(s) Re Crfdwell, 6 C. L. J. N. S. 228 ; 5 U. C. P. R. 221 : per A. Wilson, J. ;
Reg. v. Sedilons, 16 U. C. C. P. 389 ; Reg. v. Tower, 4 Pugsley & B. 168.
(t) Reg v. Gharlemoorth, 9 U. C. L. J. 53, per Blackburn, J.
(«) Reg. v. Fdlowe*, 19 U. C. Q. B. 51 ; et seq. per Robinson, C. J.;Rey.
v. Beckwith, 8 U. 0. C. P. 274.
(v) Ex parte Birmingham, 2 Pugsley & B. 564.
(w) Reg. v. Beckwitk, supra, 279, per Draper, O. J.
(x) Reg. v. Sedilons, supra, 394, per A. Wilson, J.
(y) Supra.
356 THE CRIMINAL LAW OF CANADA.
be corroborated as to the very act of boring the holes in the
vessel, if the other evidence and circumstances of the case
satisfied them that he was telling the truth in his account of
its destruction. (2)
In BeckwitKs case, the corroborative evidence did not affect
the identity of the accused ; it did not show that he was
the guilty party ; and it might be said only to concur with
the testimony of the accomplice, as to the manner in which
the crime was committed. The learned judge (Draper, C. J.,)
adverted to the fact that there had been a departure from
that which the authorities show is a well settled practice, as
to the manner in which the testimony of an accomplice is
left to the jury ; and he regretted that there should be an
omission to submit his evidence to the jury coupled with a
caution, which the practice and authority of the most eminent
judges in England recommend. But he considered that the
alleged misdirection was in a matter of practice, and that, on
the authority of Reg. v. Stubbs, (a) it could not be treated as
a point of law, nor was it a question of fact, and a rule nisi
obtained for a new trial, under Con. Stats. U. C., c. 113, was
therefore discharged. It must be recollected, in considering
these reasons of the learned judge, that the application was
made under the above statute, and the court was then of
opinion the only grounds it opened up was " upon any point
of law or question of fact." (b)
The rule that the evidence of an accomplice requires cor-
roboration is not a rule of law, but of general and usual prac-
tice, the application of which is for the discretion of the judge
by whom the case is tried, and in its application much
depends upon the nature of the offence, and the extent of the
complicity of the witness in it ; (c) and it has been doubted
(z) Keg. v. Tower, 4 Pugsley & B 168.
(a) Dears, 555 ; 1 Jur. N. S. 1115 ; 25 L. J. (M. C.) 16.
(b) See the judgment in this case.
(c) Reg. v. tieddons, 16 U. 0. C. P. 394, per A. Wilson, J.; Reg. v.
Boyes, 1 B. & S. 320, per Wigktman, J.
EVIDENCE. 357
whether an accessory, after the fact is so far involved with
the principal ofjender as to come within the rule, (d)
The evidence of an incompetent witness may be withdrawn
from the jury, upon his incompetency appearing during his
examination in chief, although he has been examined pre-
viously on the voir dire, and pronounced to be competent. («)
So illegal evidence allowed to go to the jury, under a reserve
of objection, may be subsequently ruled out by the judge in
his charge, and the conviction is not invalidated thereby, if
it does not appear that the jury were influenced by such
illegal evidence. (/)
One witness is in general sufficient to establish the charge
on an indictment. Neither statute nor any principle of the
common law requires the testimony of a second witness
except in cases of treason and perjury, (g)
A barrister or attorney is not compellable to disclose con-
fidential communications made to him by his client; but this
protection does not extend to physicians or clergymen. (Ji)
At common law, a witness is entitled to refuse to answer
questions that may tend to criminate him ; not only because
the answer itself might be evidence against him on a criminal
charge, but because it might form a link in the chain of testi-
mony which might implicate him in such charge, (i) A wit-
ness is not compellable to answer any question tending to
subject him to a penalty or a forfeiture of any nature. (/)
Questions tending to destroy his defence must be regarded as
tending to subject the witness to a penalty. (k) If the wit-
ness declines answering, no inference of the truth of the fact
can be drawn from that circumstance. (I) And it seems he
(d) Reg. v. Smith, 38 U. C. Q. B. 218.
(t) Reg. v. Whitehead, L. R. 1 C. C. R. 33 ; 35 L. J. (M. C.) 186.
(/) Reg. v. Fraser, 14 L. C. J. 245.
(g) Reg. v. Fellowes, 19 U. C. Q. B. 51, per Robinson, C. J.
(A) Browne v. Carter, 9 L. C. J. 163.
(i) Reg. v. Hulme, L. R. 5 Q. B. 384, per Blackburn, J.
O' ) Burton q. t. v. Young, 17 L. C. R. 379 ; and see Arch. Or. Pldg. 279 ;
Taylor on Evid. 1222-1236 (4th ed.) ; 3 Russ. Cr. 540.
(k) Burton q. t. v. Young, 17 L. 0. R. 392, per Meredith, J.
(I) Ibid.
358 THE CRIMINAL LAW OF CANADA.
is not bound, in order to claim the privilege, to state his belief
that his answering would tend to criminate him. (m)
It, however, appears now to be settled thatYor the purpose
of impeaching the credit of a witness, he may always be
asked on cross-examination questions with regard to alleged
crimes or other improper conduct on his part, (ri)
And questions relating to collateral facts may be put to a
witness for this purpose, as showing his interest, motives and
prejudices, such as whether he had not declared that no
Roman Catholic should sit on the jury ; whether he had not
been constantly advising with the Attorney General as to
which of the jurors should be ordered to stand aside; and
whether it was not his desire, as a member of the Govern-
ment, to procure a conviction, (d)
It has been held that if a witness intends to insist on his
right to refuse answering any question tending to subject him
to a penalty, he must do so at once ; if he answers part, he
must answer all. (p) As where a witness, called to prove
that the consideration of a note was usurious, declined to
state what amount he gave on discounting the note, because
his answer might render him liable to a penalty, but or
cross-examination said that he gave what he thought it
worth, the court held that he was bound in re-exarninatioi
to state what he gave, on the ground that Laving answer
part, he was bound to answer the whole, (g) But it is else-
where laid down that the witness may claim the protectior
of the court at any stage of the inquiry ; although he ma}
have already answered, without objection, some questions
tending to criminate him. (r)
Upon the trial of the defendant for bribery, a witness
called upon to give in evidence the receipt of a bribe by hir
from the defendant. Upon his objecting to answer, on the
(ra) Ellis v. Power, 4 Pugsley & B. 40.
(n) See also 32 & 33 Vic., c. 29, s. 65.
(o) Reg. v. Chasson, 3 Pugsley, 546.
(p) Peters v. Irish, 4 Allen, 326.
(q) Ibid.
(r) Reg. v. Oarbett, 2C. & K. 474 ; Arch. Cr. Pldg. 279.
EVIDENCE. 359
ground that his answer would criminate himself, a pardon,
under the Great Seal, was offered, and accepted by him ; but
he still refused to answer, on the same ground. It was held
that, as the pardon protected the witness against every pro-
ceeding, except an impeachment by the House of Commons,
and as there was no probability whatever, under the circum-
stances of the case, that the witness would ever be subjected
to such a proceeding, for the matter which he was called upon
to give in evidence, he was not privileged from answering ;
and that the judge was bound to compel the witness to
answer. (*)
A witness may no\^ be cross-examined as to previous state-
ments made by him, in writing, or reduced into writing,
relative to the subject-matter of the case, without such writ-
ing being shown to him. But sec. 64 of the 32 & 33 Vic.,
c. 29, has no application to papers which it does not appear
the witness had either written, signed or seen until shown to
him in the witness box. (£) It is competent, however, it
seems, for counsel, on cross-examination of the witness, to put
into his hands a paper, such as a policy of insurance, not in
evidence, and ask him if he did not see certain words in it ;
also to read from a paper purporting to be a protest made by
the prisoner, and to ask the witness if he did not write the
protest. But he could not read from such a paper and found
a question on it. (u)
A question should not be put to a witness, in cross-exami-
nation, for the mere purpose of contradicting him, unless
such question is relevant to the matter in issue ; but if an
irrelevant question be put, the answer is conclusive ; (v) for,
otherwise, the court would be involved in the trial of in-
numerable issues, totally unconnected with the matter under
(») Reg. v. Boyes, 8 U. C L. J. 139 ; 2 F. & F. 157 ; 1 B. & S. 311 ;
30 L. J. (Q.B)301.
(t) Rerj. v. Tower, 4 Pugsley & B. 168.
(u) Ibid.
(v) Gilbert v. Gooderham. 6 U. C. C. P. 39 ; Reg. v. Brown, 21 U.C.Q.B.
334, per Robinson, C. J.
360 THE CRIMINAL LAW OF CANADA.
investigation, (w) and which the parties would not be pre-
pared to meet, (x)
On an indictment for rape, or attempt at rape, or for an
indecent assault, amounting in substance to an attempt at
rape, if the prosecutrix is asked, in cross-examination,
whether she has had connection with another person, not the
prisoner, evidence cannot be called to contradict her. (?/)
Now, however, by the 32 & 33 Vic., c. 29, s. 65, if a wit-
ness, on being questioned as to whether he has been convicted
of any felony or misdemeanor, either denies the fact, or
refuses to answer, the opposite party may prove such con-
viction.
By section 69, if a witness, upon cross-examination as to a
former statement made by him, relative to the subject-matter
of the cause, and inconsistent with his present testimony
does not distinctly admit that he did make such statement'
proof may be given that he did, in fact, make it.
In order to impeach the character of a witness for veracity,
persons may be called to prove that his general reputation is
such that they would not believe him on his oath. (2) In
cross-examining the witness for this purpose, counsel is not
obliged to explain the object of his questions, because that
might often defeat his object, (a)
By the 32 & 33 Vic., c. 29, s. 68, in case a witness, in the
opinion of the court, proves adverse, the party producing
him may contradict him by other evidence, or, by leave of
the court, may prove that the witness made, at other times,
a statement inconsistent with his present testimony ; but,
before such last-mentioned proof can be given, the circum-
stances of the supposed statement, sufficient to designate
the particular occasion, must be mentioned to the witness,
(«?) Reg. v. Brown, 21 U. C. Q. B. 334, per Robimon, C. J.
(a;) Reg. v. Holmes, L. R. 1 C. C. R. 334.
(y) Ibid.; Rex. v. Hodgson, R. & R. 211 ; Reg. v. Cockroft, 11 Cox, 410.
(z) Reg. v. Brown, L. R. 1 C. C. R. 70 ; 36 L. J. (M. C.) 59.
(a) Reg. v. Brown, 21 U. C. Q. B. 334, per Robinson, C, J.
EVIDENCE. 361
•
and he must be asked whether or not he did make such
statement. (£>)
A witness should be interrogated as to facts only, and not
as to matter of law. (c)
A skilled witness cannot, in strictness, be asked his
opinion respecting the very point which the jury are to
determine ; but he may be asked a hypothetical question,
which, in effect, will decide the same thing, (d)
Where, on a trial for murder, the Crown having made out
a prima facie case by circumstantial evidence, the prisoner's
daughter, a girl of fourteen, was called on his behalf, and
swore that she herself killed the deceased, by two blows
with a stick, about two feet long, and one and a half inches
thick. In answer to this, a medical man, previously ex-
amined on the part of the Crown, was recalled, and asked
whether the blows so inflicted by the prisoner's daughter
would produce the fractures that were found on the head
of the deceased. This question having been allowed, the an-
swer was: "A stick such as she describes, one inch or an inch
and a half in thickness, and two feet long, could not, in my
opinion, produce such extensive fractures by two blows ;
there must have been a greater number of blows to produce
such fractures. There were bruises on both arms, head and
legs, and two blows could not have done all that. Deceased
must have had a succession of blows from a larger instru-
ment than the girl describes." It was objected that this
was skilled evidence and matter of opinion, when skilled
evidence and matter of opinion were not admissible ; but
the court held that the rule excluding a skilled witness from
giving evidence on the point which the jury are to deter-
mine was not infringed, and that the medical testimony was
material to enable the jury to determine the true cause of
death ; (e) and also that this was not an informal or illegal
(6) Reg. v. Jerrett, 22 U. C. Q. B. 499.
(<•) R<g. v. Massey, 13 U. C. C. P. 484.
(d) Reg. v. Jones, 28 U. C. Q. B. 422, per Richards, C. J.
(«) Ibid, supra, 416.
362 THE CRIMINAL LAW OF CANADA.
way of impeaching the veracity of the prisoner's daughter,
nor was the evidence collateral to the fact of killing, but
was important, as testing the credibility of the witness. (/)
By the 32 & 33 Vic., c. 29, s. 67, it is provided that com-
parison of a disputed writing with any writing proved to
the satisfaction of the court to be genuine, shall be per-
mitted to be made by witnesses ; and it has been held under
this section that the signature of a person was properly
proved by comparing it with an endorsement on a pro-
missory note, purporting to be his but not proved to be so,
otherwise than by the fact that the prisoner had endorsed
the note below such signature. (</) But it may be doubted
whether such a lax mode of proving handwriting was con-
templated by the legislature.
It is a general and well-established principle that the
confession of a prisoner, in order to be admissible, must be
free and voluntary. Any inducement to confess held out to
the prisoner by a person in authority, or any undue com-
pulsion upon him, will be sufficient to exclude the con-
fession. The rule is carried so far that, if an oath is
administered to the prisoner, while being examined under
the 32 & 33 Vic., c. 30, s. 31, the oath will be a sufficient
constraint or compulsion to render his statement inad-
missible, (h) The reasons for this are, the statements made
on his examination are regarded as confessions which must
be voluntary, and a statement under oath is not so re-
garded ; secondly, a prisoner shall not be compelled to
criminate himself, and to this it may be added, that it is
harsh and inquisitorial, and for that reason should be re-
jected, (i)
This rule, however, only applies to the time during which
the prisoner is under examination, as a prisoner on a charge
-against himself. His deposition, on oath, as a witness
(/) Reg. v. Jones, 28 U. C. Q. B. 416.
(g) Req. v. Tower, 4 Pugsley & B. 168, Weldon, J.,
(h) Reg. v. Field, 16 U. C. (J. P. 98.
(t) Reg. v. Field, supra, 101, per Richards, C. J.
EVIDENCE. 363
against another person, when voluntarily made, with the
privilege of refusing to answer criminatory questions, is
admissible against himself, if subsequently charged with a
crime, and this even though he have not been cautioned to
that effect. (/)
The prisoner was convicted of arson. His admission or
confession was received in evidence, on the testimony of the
constable, who said that, after the prisoner had been in a
second time before the coroner, he stated there was some-
thing more he could tell, whereupon the constable cautioned
him not to say what was untrue. He then confessed the
charge. The constable did not recollect any inducement
being held out to him. There was also evidence that, on
the third day of his incarceration, he expressed a wish to the
coroner to confess, on which the latter gave him the ordinary
caution, that anything he said might be used against him,
and not to say anything unless he wished. He then made
a second statement, and after an absence of a few minutes
returned and made a full confession. It was held that, on
these facts appearing, the statement made to the constable
was prima facie receivable, and that the judge was well
warranted in receiving as voluntary the confession made to
the coroner, after due warning by him.
To make this good evidence to go to the jury, it would
seem, however, that the more reasonable rule is, that, not-
withstanding the caution of the magistrate, it is necessary,
in the case of a second confession, not merely to caution the
prisoner not to say anything to injure himself, but to in-
form him that the first statement cannot be used asrainst
o
him ; and if, in such case, the prisoner, after he has been
cautioned, and his mind impressed with the idea that his
prior statement cannot be used against him, still thinks fit
to confess, the latter declaration is admissible.
In the same case, it afterwards appeared that the prose-
cutor had offered direct inducements to the prisoner to con-
(j) Beg. v. Field, 16 U. C. C. P. 101, per Richards, C. J.; Reg. v. CooU,
18 L. C. J. 103.
I
364 THE CRIMINAL LAW OF CANADA.
fess — promising to get up a petition in his favor, etc. — and
the court held that, if the judge was satisfied that the pro-
mise of favor thus held out had induced the confession, and
continued to act in the prisoner's mind, notwithstanding the
warning of the coroner, he was right in directing the jury
to reject them. If, in the course of the examination of the
witnesses for the prosecution, the judge had suspected the
confession had been obtained by undue influence, that sus-
picion ought to have been removed before the evidence was
received. (Jo)
A confession made by the prisoner to the prosecutor in
the presence of the police inspector, immediately after the
prosecutor had said to the prisoner, " The inspector tells me
you are making house-breaking implements ; if that is so,
you had better tell the truth, it may be better for you/' was
held inadmissible. (I)
So where the prisoner, implicated with several others in a
Fenian conspiracy, went before a magistrate, at the request
of a constable to whom he had previously made admis-
sions tending to criminate himself, and laid an information
against his fellows, saying, " I came to save myself; " and
no caution was given on this occasion, nor was any charge
preferred against him until afterwards on his refusing to
prosecute, when he was arrested, tried, and convicted, his
own information being put in evidence against him ; the
court held such admissions improperly received, (m)
This case does not affect the position that the voluntary
deposition of a witness, on oath, is admissible against him
when subsequently charged with a crime, (n)
Section 32 of 32 & 33 Vic., c. 30, is only directory, so that
a voluntary statement, made by a prisoner in the presence of
a magistrate, as provided for by that Act, is admissible in
evidence, although the statement was not taken down iu
(k) Re<j. v. Finkle, 15 U. 0 C. P. 453.
(1) Reg. v. Fennell, L. R. 7 Q. B. D. 147.
(m) Reg. v. Oillis, 14 W. R. 845 ; and see Hall's case, 2 Leach, C. C. 559 ;
3 Russ. Cr. 373.
(n) Reg. v. Goucie, 1 Pugsley & B. 611.
EVIDENCE. 365
writing, and no caution was given by the magistrate to
the effect prescribed by s. 31, provided it appear that the
prisoner was not induced to make the statement by any
promise or threat, (o)
Confessions to a constable, by an accused in his custody,
were not admitted where the accused might be under the
influence of hopes held out ; but admissions made the same
day, to a physician, in the absence of the constable, were
admitted, (p)
Statements madj by a prisoner to parties who arrested
him, he- having been previously told on what charge they
arrested him, are evidence, (q)
Words importing only advice on moral grounds, as by a
master to his pupil, do not render a statement inadmissible
against the prisoner, (r)
And where the prisoners, two children, one aged eight and
the other a little older, were tried for attempting to obstruct
a railway train, and it was proved that the mothers of the
prisoners and a policeman being present, after they had been
apprehended on suspicion, the mother of one of the prisoners
said, " You had better, as good boys, tell the truth," where-
upon both the prisoners confessed ; it was held that this
confession was admissible in evidence against the prisoners.(s)
A confession is admissible in evidence made to one in
authority, although the prisoner was, immediately before such
confession, in the custody of another person not produced,
and although it is not shown that such person did not hold
out a threat or inducement; for it is unnecessary, in general,
to do more than negative any promise or inducement held
(o) Reg. v. Strip, 2 U. C. L. J. 137 ; Dears. 648 ; 25 L. J. (M. C.) 109 :
Reg. v. Goucie, supra ; Reg v. Sansome, 1 Den. 545 ; 19 L. J. (M. C.) 138 ;
Arch. Or Pldg. 228
(p) Reg. v. Berube, 3 L. C. R. 212.
(q) Reg. v. Tuford. 8 U. C. C. P. 81.
(r) Reg. v. Jarvis, L. R. 1 C. C. R. 96 ; and see Reg. v. Baldry, 2 Den.
C. C. 430.
(x) Reg. v. Reeve, L. R. 1 C. C. R. 36'2 ; and see Reg. v. Parker, 8 U. C.
L. J. 139 ; L. & C. 42 ; 30 L. J. (M. C.) 144.
366 THE CRIMTNAL LAW OF CANADA.
out by the person to whom the confession was made. If,
however, there be any probable ground to suspect collusion
in obtaining the confession, such suspicion, it is said, ought
in the first instance to be removed, (t)
It may be generally laid down that, though an inducement
has been held out by an officer or prosecutor or the like, and,
though a confession has been made in consequence of sucli
inducement, still if the prisoner be subsequently warned, by
a person in equal or superior authority, that what he may
say will be evidence against himself, or that a confession will
be of no benefit to him, or if he be simply cautioned by the
magistrate not to say anything against himself, any admission
of guilt, afterwards made, will be received as a voluntary
confession. More doubt may be entertained as to the law, if
the promise has proceeded from a person of superior autho-
rity, as a magistrate, and the confession is afterwards made
to the inferior officer ; because a caution from the latter per-
son might be insufficient to efface the expectation of mercy,
which had been previously raised in the prisoner's mind, (n)
It is for the judge to decide whether the prisoner has beei
induced to confess by undue influence or not. (v)
The jury are not bound to believe the whole statements of
a prisoner, in making a confession. The exculpatory as wel
as the implicative portions thereof should be left to the jury,
and they must exercise their own judgment as to whether
they believe the whole, or only a part, (w)
The correct course to be taken by the judge, when evi-
dence has been received which it is afterwards shown not
be properly leceivable, is to treat it as if it had been inad-
missible in the first instance, and the most effectual way of
doing this is to tell the jury not to consider the inadmissible
evidence, and to dispose of the case on the other evidence
(t) Rr.f). v. Finkle, 15 U.C.C.P. 455, per Richards, C.J. ; Phillipson Evu
430 ; and see R<>g. v. Clewes, 4 C. & P. 221.
(u) RHJ. v. Finkle, 15 U. C. C. P. 457, per Richards, C. J.
(v) Ibid. 453 ; Reg. v. Garner, 1 Den. C. C. 329.
(w) Reg. v. Jones, 28 U. C. Q. B. 416.
EVIDENCE. 367
A similar principle is acted on when the names of other
prisoners are mentioned in confession, and the proper course
seems to be to re d the names in full, the judge directing the
jury not to pay any attention to them, (x)
But the inclination of the courts is not to extend the
rule for excluding confessions ; (y) and where a prisoner is
willing to make a statement, it is the magistrate's duty to
receive it.
Examinations taken before a commissioner in bankruptcy
are admissible in evidence against the prisoner on a criminal
charge, (z)
.The 66th section of the statute declares that the several
forms given in the schedule, or forms to the like effect, shall
be good, valid and sufficient in law. The form N., of the
statement of the accused before the magistrate, contains
the cautions specified in s. 31, and not that in s. 32. There-
fore, a statement returned, purporting to be signed by the
magistrate, and bearing, on the face of it, the caution pro-
vided for by s. 31, is admissible by virtue of s. 34, without
further proof, (a)
The object of taking depositions, under the 32 & 33 Vic.,
c. 30, is not to afford information to the prisoner, but to pre-
serve the evidence, should any of the witnesses be unable to
ittend the trial, or die. This being the ground on which
they are taken, until recently the prisoner had no right to
see them, (b) Now he is entitled to inspect the depositions,
that he may know why he is committed, (c) It is not in-
cumbent on the prosecution to abstain from giving any
additional evidence, discovered subsequently to the taking
(x) Re<j. v. Finkle, 15 U. C. C. P. 459, per Richards, G. J. ; Rex v. Jones,
4 0. & P. 217 ; RP.X v. Mandesley, 1 Lew. C. C. 73.
(y) Reg. v. Finkk, 15 U. C. C P. 459.
(z) Re<i. v. Robinson, L. R. 1 C. C. R. 80.
(a) Jbid.;see Rey. v. Bond, 1 Den. 517 ; 19 L. J. (M. C.) 138 ; Arch. Cr.
Pldg. 228.
(6) Reg. v. Hamilton, 16 U. C. C. P. 364, per Richards, C. J.
(c) Ibid.; 32 & 33 Vic., c. 29, s. 46.
368 THE CRIMINAL LAW OF CANADA.
of depositions ; but it is only fair that the prisoner's counsel
should be apprised of the character of such evidence, (d)
It would seem that depositions taken before a coroner
can only be proved by the coroner himself, or by proving
his signature thereto, and showing by his clerk, or by some
person who was present at the inquiry, that the forms of
law have been duly complied with, (e)
But depositions made and signed by a party at an inqueat
may be received in evidence to contradict him, whether the
inquest was illegally taken or not, as being statements of a
witness made on a previous occasion. (/)
It was not, however, necessary to prove depositions by
the magistrate or his clerk, when taken before justices of the
peace ; though it was intimated that in important cases it
would be better if they were present at the trial, (y) And
now, an examination taken under the 32 & 33 Vic., c. 30.
may be given in evidence without further proof, unless it
be proved that the justice purporting to have signed the
same did not in fact sign it. (Ji) The signature of the
prisoner is not absolutely necessary. The effect of the
statute, so far as regards the evidence of a confession, seems
to be that a written examination, taken as the statute
directs, is evidence per se, and the only admissible evidence
of the deponents having made a declaration of the things
therein contained, (i)
The statute authorizes the reading of the depositions
before the grand jury, for the purpose of finding a bill, as
well as before the petty jury at the trial. (/ ) In order,
however, that the deposition may be admissible before the
grand jury, the presiding judge must, by evidence taken
in the presence of the accused, satisfy himself of the ex-
(d) Reg. v. Hamilton, 16 U. C. C. P. 365, per Richards, C. J.
(e) Reg. v. Hamilton, supra, 340 ; Taylor on Evid. 473 ; Reg. v. Wilshaw,
€. & Mar. 145.
( f) Reg. v. Chasson, 3 Pugsley, 546.
(0) Rf(j. v. Hamilton, supra, 353, per Richards, Cf. J.
(h) Sec. 34.
(t) Arch. Cr. Pldg. 233.
(j) Reg. v. Clements, 2 Den. 251 ; 20 L. J. (M. C.) 193.
EVIDENCE. 369
istence of the facts required by the statute to make such
deposition admissible in evidence. (&)
Under the 32 & 33 Vic., c. 30, s. 29, it is not necessary
that each deposition should be signed by the justice taking
it. Therefore, where a number of depositions, taken at the
same hearing on several sheets of paper, were fastened
together, and signed by the justices taking them once only
at the end of all the depositions, in the form given in the
schedule (M), it was held that one of the depositions was
admissible in evidence, under s. 30 of this Act, after the
death of the witness making it, although no part of it was
on the sheet signed by the justice. (/)
A deposition, properly taken, under 32 & 33 Vic., c. 30
s. 30, before a magistrate, on a charge of feloniously wound-
ing, is admissible in evidence against the prisoner on his
trial for murder, the deponent having subsequently died of
the wound.
Formerly depositions were receivable only where the
indictment was substantially for the same otfence as that
with which the defendant was charged before the justice : (TO)
but now by the 32 & 33 Vic., c. 29, s. 58, depositions taken
in the preliminary or other investigation of any charge
against any person, may be read as evidence in the prose-
cution of such person for any other offence whatsoever.
Pregnancy may create such an illness as will render de-
positions receivable in evidence. (TOM) But the illness must
be such as to render the witness unable to travel. And where
a woman 74 years of age, whose depositions were sought
to be read, lived near the court house, but her medical ad-
viser swore that, although able to travel the distance, it
(k) Reg. v. Beaver, 10 Cox, 274, per Byles, J. ; Arch. Cr. Pldg. 250.
(/) Reg. v. Parker. L. K, 1 C. C. R. 225 ; 39 L. J. (M. C.) 60 ; Reg. v.
Richards, 4 F. & F. 860, overruled.
(m) See Reg. v. Beeston, 1 U. <J. L. J. 17 ; Dears. 405 ; Reg. v. Ledbetter,
3 C. & K. 108.
(mm) Reg. v. Stevenson, 9 U. C. L. J., 139 ; L. & C. 165 ; 31 L. J.
(M. C.) 147 : Rex v. WeU'mgs, L. E. 3 Q. B. D. 426 ; see, however, Reg.
v. We'lon, 9 Cox, 296.
370 THE CRIMINAL LAW OF CANADA.
would be dangerous for her to see so many faces, or to be
examined at all, the court held that her depositions were not
admussible. (n)
It seems the statement of a deceased witness is admis-
sible in evidence, though it is headed " the complaint of,"
etc., instead of " the examination " of the deceased, and
does not state, on its face, to have been taken in the pres-
ence of the accused, it being proved that it was taken in his
presence, (o)
The 43 Vic., c. 35, makes provision for the taking of
depositions of any person dangerously ill, who is able to give
material evidence in a criminal proceeding, for the purpose
of having the same read at the trial, in the event of such
person being then dead or unable to attend.
Where several felonies are connected together and form
part of one entire transaction, evidence of one is admissible
to show the character of the others, (p)
But where a prisoner indicted for murder, committed while
resisting constables about to arrest him, 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, (q)
And where, on an indictment for riot and unlawful assem-
bly on the 15th January, evidence was given on the part of
the prosecution of the conduct of the prisoners on the day
previous, for the purpose of showing (as was alleged) that
the prosecutor, in whose office one act of riot was committed,
had reason to be alarmed when the prisoners came to his
office ; and the prisoners thereupon claimed the. right to show
that they had met on the 14th to attend a school meeting
and to give evidence of what took place thereat ; it was held
(n) Reg. v. FarreU, L R. 2 C. C. R. 116.
(o) Reg. v. Millar, Sup. Ot. N B. H.T. 1861 ; 5 Allen, 87.
(p) Clark v. Stevenson, 24 U. C. Q. B. 201) ; RHJ. v. Egerton, Russ. & Ry.
C. C. 37o; Rex v. Ellis, 6 B. & C. 145 ; Reg. v. C/iasson, 3 Pugsley, 546.
(q) Reg. v. Chasson, supra.
EVIDENCE. 371
thfct as the conduct of the prisoners on the 14th could not
qualify or explain their conduct on the following day, the
evidence was properly rejected, (r)
So, where upon an indictment for obtaining money by false
pretences, it appeared that the defendant was employed to
take orders for goods, but had no authority to receive the
price, and that, eleven days after he was so employed, he
obtained the money from a customer, by representing that
he was authorized by his employer to receive it for goods
delivered, in pursuance of an order which the defendant had
taken ; evidence of an obtaining by a similar representation
from another person, within a few days of the time when the
moneys on which the indictment was found were obtained,
was held inadmissible, (s)
But witnesses may be called, on the part of the Crown,
to speak to facts having no immediate connection with the
case under trial, for the purpose of showing the motives of
the prisoners, (f) as, for instance, to prove that when the
stolen goods mentioned in the indictment were found in the
possession of the prisoner, there were found also in his
possession various other articles that can be shown to have
been recently stolen from other people. So, in the case of
persons who have passed counterfeit money or bills, when it
is necessary to establish a guilty knowledge on the part of
the prisoner, the prosecutor is allowed to give evidence of the
prisoner having, about the same time, passed other counterfeit
money or bills, or had many such in his possession, even
though of a different denomination; (it) which circumstances
tend strongly to show that he was not acting innocentlv, and
had not taken the money casually, but that he was employed
in fraudulently putting it off. (v)
So a false and fraudulent statement to a pawnbroker, that
(r) Reg. v. Mailloux, 3 Pugsley, 493.
(«) Reg. v. Holt, 8 U. C. L, J. 55 ; Bell, 280 ; 30 L. J. (M. C.) IK
(t) Reg. v. Mailloux, 3 Pugsley, 493.
(u) Reg. v. Foster, 1 U. C. L. J. 156.
(v) Reg. v. Brown, 21 U. G. Q. B. 335, per Robinson, C. J.
372 THE CRIMINAL LAW OF CANADA.
a chain offered as a pledge is of silver, is indictable under the
7 & 8 Geo. IV., c. 29, and, upon the trial of such an indict-
ment, evidence is admissible of similar misrepresentations
made to others about the same time, and of the possession of
a considerable number of chains of the same kind, (w)
And where the offence has been proved, slight proof will
let in documentary evidence for confirmatory purposes. Thus
on an indictment for false pretences, by inserting with intent
to defraud an advertisement in a newspaper containing false
statements, and receiving money thereby, where it was proved
that several letters had been found on the person of the
prisoner, bearing the address mentioned in the advertisement,
and containing postage stamps to the amount indicated
therein, other letters similarly addressed, and containing
stamps to the same amount, but which had been stopped by
the postal authorities, were received as evidence without proof
that they had been written by the parties by whom they
purported to have been sent, (x)
A declaration by a subscribing witness (who was dead) to
a deed, that he left the country because he had forged a name
thereto, is not admissible, on the ground that it is hearsay
evidence, (y). And evidence of an extra-judicial confession
of the sister of a prisoner, tending to prove fraud between
them, is objectionable on the same ground, (z)
But the description given by a person of his sufferings,
whilst laboring under disease and pain, has been held not to
be hearsay evidence, (a)
When the prisoner was indicted for setting fire to his own
house, it was held that his verbal admissions that the house
was insured were sufficient to prove that fact, though the
policy was not produced, nor its non-production accounted
fot . (6)
(w) R'.q. v. Roebuck, 2 U. C. L. J. 138 ; Dears. & B. 24 ; 25 L. J. (M.C.)
101 ; and see Re;/, v. Francis, L. R. 2 C. C. R. 128.
(x) Reg. v. Cooper, L. R. 1 Q. B. D. 19.
(y) ROM v. Cit'/ter, 27 U. C. Q. B. 270.
(2) Raj. v. Ouay, 18 L. C. J. 30fi.
fa) Heg. v. Berube, 3 L. C. R. 212; sed quaere,
(V Reg. v. Bryans, 12 U. C. C. P. 161.
EVIDENCE. 373
Secondary evidence of a document in the prisoner's posses-
sion is net admissible unless notice to produce has been served
on him. (c) The form of an indictment for perjury does not
convey sufficient notice to the prisoner to produce the docu-
ment to dispense with a notice to produce, (d)
A dying declaration is only admissible in evidence where
the death of the deceased is the subject of the charge, and
the circumstances of the death the subject of the dying
declaration, (e) Therefore, upon an indictment for using
instruments with intent to procure abortion, the dying
declaration of the woman was held inadmissible. (/)
The question whether a dying declaration is admissible is
for the consideration of the judge who tries the case, but the
weight of it is for the jury, (g)
To render the proof of a declaration admissible as a dying
declaration, there must be proof that the person who made
it was at the time under the impression of almost immediate
dissolution, and entertained no hope of recovery.
Vague and general expressions, such as " I will die of it !"
" I will not recover !" " It is all over with me !" are insuffi-
cient to allow the proof of the declaration of a deceased
person, (h] And where a person about to die, on hearing her
statement read over to her, altered it, so that, instead of
reading " no hope of recovery," it read " no hope at present"
ete., it was held that her declaration was inadmissible, (t)
There must be an unqualified belief in the nearness of death;
a belief, without hope, that the declarant is about to die ; and
the burden of proving the facts that render the declaration
admissible is upon the prosecution, (j) But where the de-
ceased by her statements shows emphatically that she has
(c) Beg. v. Elworthy, L. B. 1 C. C. R. J03 ; 37 L. J. (M. C.) 3.
(d) Ibid. ; see Kalar v. Cornwall, 8 U. C. Q. B. 168.
(e) Reg. v. Mead, 2 B. & C. 605, per Abbott, C. J.
(/) Key. v. Hind, 7 U. C. L. J. 51 ; Ball, 253 ; 29 L. J. (M. C.) 147.
(g) Reg. v. Charlotte Smith, 13 W. R. 816.
(h) Reg. v. Peltier, 4 L. C. R. 3.
(t) Reg. v. Jenkins, L. R. 1 C. C. R. 187 ; L. J. (VI. C.) 82.
(j) Reg. v. Jenkins, L. K. 1 C. C. R. 192, per KeUy, C. B.
374 THE CRIMINAL LAW OF CANADA.
abandoned all hope of living, the mere use of the words " If
I die " will not alone render her statement inadmissible. (&)
And if the statement is otherwise receivable, it makes, no
difference as to its admissibility that the answers were given,
to leading questions. (/)
It is said that dying declarations ought to be admitted
with scrupulous and almost superstitious care. They have
not necessarily the sanction of an oath ; they are made in
the absence of the prisoner ; the person making them is. not
subjected to cross-examination, and is in no peril of prosecu-
tion for perjury. There is also great danger of omissions
and material misrepresentations, both by the declarant, and
the witness, (ra) The statements may be incomplete, and.
though true as far as they go, may not constitute the whole
truth. They may be fabricated, and their truth or falsehood
•cannot be ascertained ; and experience shows that implicit
reliance cannot, in all cases, be placed on the declarations of
A dying man, for his body may have survived the powers of
his mind or his recollection, if his senses are not impaired by
pain, or otherwise may not be perfect, or for the sake of
ease and to be rid of the importunity of those around biin,
he may say, or seem to say, whatever they suggest, (n)
In a prosecution for selling liquor without license, the
person who bought the liquor is a competent witness^ (o
but it is not, necessary that he should be produced. It is
sufficient to call a person who saw the sale, and saw what
was paid. Nor is it necessary to call the person to whom
the liquor was sold to prove that it was " fermented " liquor.
A person who tasted the liquor may prove this, (p)
A conviction, made by a justice of the peace, when dulj
returned, according to the statute, to the Court of Quarter
Sessions, and filed by the clerk of the peace, becomes; a re-
(k) Reg. v. SparJiam ; Rob. & Jos. Dig. 929.
(1) Reg. v. Smith, 23 U. 0. C. P. 312.
(m) Reg. v. Jenkins, L. R. 1 C. C. R. 193, per Bylea, 3.
(n) Re Anderson, 20 U. C. Q. B. 181, per McLean, J.
(o) tSx parte Birmingham, 2 Pugsley & B. 564.
lp) Thompaon and burnford, 12 L. C. J. 285.
EVIDENCE. 375
cord of that court, and may be proved as any other similar
record without producing the original, (q)
A conviction by a justice for an assault and battery is a
record, and a record of our own country, and so not prova-
ble when directly denied by an examined copy, as in the
case of a foreign judgment, but by the production of the
record itself. The course in such a case is to produce the
original record of conviction, which may be made up by the
justice at any time, and may be procured upon a writ of
certiorari from this court, either to the justice or to the Quar-
ter Sessions, if the record has been returned thither. Or,
perhaps, it may be produced (when it can be so obtained)
without the formality of a writ of certiorari.
In case of the death of the justice who made the convic-
tion, the writ may go to his executor, (r)
There is a well-settled distinction between proving the
record of a different court, from that in which the evidence
is offered, and a record of the same court. A court will
look at its own minutes, while sitting under the same com-
mission, when another court would require more formal
proof, (s)
The minutes of a Court of General Quarter Sessions are
in themselves evidence, in the same court, of the facts therein
stated, without auy other proof that the matter there recorded
took place. Therefore, a recognizance, in a case of bastardy
taken under the Act 2 Vic., c. 42, before the court itself, in
open court, is proved by the production of the minutes of the
sessions containing the entry, (t)
When a record of acquittal or conviction is produced at
nisi prius, the court cannot inquire into the circumstances
under which it is brought forward.
In a case of felony, as well as misdemeanor, a copy of the
record of acquittal may be, and indeed must be, received
(q) Graham v. McArthur, 25 U. C. Q. B. 484 n.
(r) Thomson v. Leslie, 9 U. C. Q. B. 360.
(«) Noll v. McMillan, 25 U. C. Q. B. 494, per Draper, C. J.
{t) Ex parte Daley, 1 Allen, 424.
376 THE CRIMINAL LAW OF CANADA.
in evidence when offered, without its being necessary to
show that an order of a judge has been obtained, sanctioning
the delivery of a copy, though it seems the officer having
the custody of the records should not deliver it without an
Order, (u)
Where a conviction has been returned to the sessions, and
filed by the clerk of the peace, but quashed on appeal after-
wards made to the sessions, the quashing may be proved by
an order under the seal of that court, signed by its clerk,
directing that the conviction should be quashed, the con-
viction itself being in evidence, and the connection between
it and the order being shown, (v) After the return of the
conviction, it becomes a record, and may be proved as other
records.
It is not necessary to make up a formal record of the
judgment on the appeal, for the 32 & 33 Vic., c. 31, enables
the Court of Quarter Sessions to dispose of the conviction,
" by such order as to the court shall seem meet." (w)
It would seem that the minute book of the sessions
having an apparently proper caption, and signed by the clerk
of the peace, would not be sufficient proof per se of the
judgment of the court quashing the conviction without pioo:
of the order following it ; but, if the further proof were
added that, in practice, no other record is kept or made up
the minute book would be evidence. So the minute book
would be evidence as to indictments, verdicts, and judgments
in criminal matters, at the sessions, (x)
A conviction, before a police magistrate, can only be
proved by the production of the record of the conviction, or ai
examined copy of it. Where a police magistrate, after hear-
ing a case of common assault, ordered the accused to enter
into a recognizance and pay the recognizance fee, but did no'
order him to be imprisoned, or to pay any line, it was hek
(u) Lusty v. Magrath, 6 U. C. Q. B. O. S. 340.
(v) Neill v. McMillan, 25 U. (J. Q. B. 485.
(w) Ibid.
(x) Neill v. McMillan, 25 U. C. Q. B. 494, per Draper, C. J.
EVIDENCE. 377
that this was not a conviction within the corresponding Eng-
lish section of the 32 & 33 Vic., c. 20, s. 45 ; and that even
if it were, a statement of the above facts by the magistrate's
clerk, without producing a record of the proceedings, was not
sufficient proof of its existence, (y)
An information, and other proceedings before a justice of
the peace, returned to the Supreme Court with a certiorarir
and filed with the clerk of the Crown, become a record, and
may be proved by an examined copy taken before the
originals were filed, (z)
To prove the finding of an indictment at the sessions, it is
not sufficient to produce an exemplification of the record of
acquittal, without any general heading or caption to it, (a)
and it would seem the proper way of proving it is to have
the record regularly drawn up, and produce an examined
copy. (&)
The production of the original indictment is insufficient to
prove an indictment for felon)', and a record showing a proper
caption must be made up. (c)
A judgment of the Court of Quarter Sessions, affirming
a conviction of the defendant, before a magistrate, on a
charge of assaulting H. M., " by using insulting and abusive
language to him, in his own office and on the public street,
and by using his fist in a threatening and menacing manner
to the face and head of the said H. M.," is sufficient proof of
a breach of the peace, (d}
The court will judicially notice a public statute, (e) By
the Interpretation Act, 31 Vic., c. 1, s. 7, thirty-eighthly, every
Act shall be deemed to be a public Act, and shall be judi-
cially noticed by all judges, justices of the peace and others,
(y) Hartley v. Hindmarsh, L. R. 1 C. P. 553.
(z) Sewell v. Olive, 4 Allen, 394.
(a) Aston v. Wright, 13 U. C. C. P. 14.
(6) Ibid 19, per Draper, C. J.
(c) Henry v. Little, 11 U. C. Q. B. 296 ; Rex v. Smith, 8 B. & C. 341 -f
tee also on this 32 & 33 Vic. , c. 29, s. 77.
(d) R&j. v. Harmer, 17 U. C. Q B. 555.
(e) See Reg. v. Shaw, 23 U. C. Q. B. 616.
:378 THE CRIMINAL LAW OF CANADA.
without being specially pleaded, and all copies of Acts,
public or private, printed by the Queen's printer, shall be
evidence of such Acts and of their contents, and every copy
purporting to be printed by the Queen's printer shall be
deemed to be so printed, unless the contrary be shown.
Where an Act of Parliament makes a gazette evidence if it
purport to be printed " by the Queen's printer " or " by the
•Queen's authority," a gazette purporting to be printed by A.
B., without giving his style as Queen's printer, and purport-
ing to be printed " by authority," is not receivable. But
evidence aliunde might be admissible to show that A. B. was
the Queen's printer, and that the authority was the Queen's
authority. (/)
On a charge of murder, threats made by the prisoner to a
third person more than six months before the commission of
the crime, that the prisoner would take the law into his own
hands, are clearly admissible, though there are friendly rela-
tions between the parties afterwards, and if undue pro-
minence is given to these threats in the charge of the jury,
the prisoner's counsel should call the attention of the court
to it, and request that the jury should be told that if there
were subsequent acts of kindness and expressions of friendli-
ness, they would raise a presumption of kindness to rebut
that of malice, (g) The reception of evidence in reply is, as
a general rule, in the discretion of the judge, subject to be
reviewed by the court. Evidence in explanation of some
matter brought out by the prisoner's witnesses, is properly
received in reply ; (h) and witnesses may be recalled for this
purpose, (i)
According to the strict practice, a party cannot, after closing
his case, put in any evidence, unless by permission of the
judge, (j) And in an action for libel, it was held that the
plaintiff could not, after closing his case, have a paper which
(/) Reg v. Wallc.ce, 2 U. C. L. J. N. S. 138 ; 10 Cox, 500.
(g) Reg. v. Jones, 28 U. C. Q. B. 416.
(h) Ibiil.
(i) Reg. v. Sparham, Rob. & Jos. Dig. 929.
(j) Cross v. Richardson, 13 U. C. C. P. 433.
EVIDENCE.
he had proved before, read and filed, except in. the discretion
of the judge trying the case, (k)
Before the 32 & 33 Vic., c. 29, s. 80, did away with the
granting of new trials in criminal cases, it was held that the
rule is the same in the latter as in civil cases ; at any rate,
where the prisoner is defended by counsel, that any objection
to the charge of the presiding judge, either for non- direction
or for misdirection, must be taken at the trial, when it can be
directly cured ; and if not then taken, it cannot be afterwards
raised on motion for new trial or otherwise, especially when
the evidence fully sustains the verdict ; that non-direction is
not an available objection when the verdict is not against
evidence, and where the law is clear, it is no misdirection
to leave the facts simply to the jury, for they are judges of
the evidence ; that misdirection could only be on a point of
law, and not on a matter of fact. (I)
The improper reception of evidence upon a criminal trial
is not necessarily a ground for quashing the conviction, if
the other evidence adduced be amply sufficient to sustain
it. (m)
It would seem that, as the law now stands in Canada,
when material evidence has been incorrectly admitted or
rejected, or the verdict, though regularly obtained, is mani-
festly contrary to the evidence, the proper remedy for the
prisoner is an application to the Crown for a pardon, (n)
A bill of exceptions will not lie in a criminal case. (0} It
follows that, on a charge of that nature, a question as to
the reception of evidence, or the rulings of the judge there-
on, or his directions to the jury, cannot be raised on the
(k) Cross v. Richardson, 13 U. C. C. P. 433.
(I) Reg. v. Pick, 16 U. C. C. P. 379 ; see also Cousins v. Merrill, 16 U. C.
C. P. 120.
(m) Reg. v. Foster, 1 U. C. L. J. 156.
(n) Reg. v. Kennedy, 2 Thomson, 216, per Bliss, J.; ibid. 225, per WU-
kins, J.
(o) Whelan v. Reg. 28 U. C. Q. B. 132, per Draper, C. J.; (in E. * A.) ;
Req. v. Pattee, 5 U. C. P. R. 292 ; 7 C. L. J. N. S. 124, per Dalton, J. ;
Duval dit Barbina* v. Reg., 14 L. C. R. 74, per Meredith., J. ; ibid, 79,. per
Duval, C. J. (in error).
380 THE CRIMINAL LAW OF CANADA.
record, so as to constitute a ground of error; (p) for the
effect of a bill of exceptions is to raise the point excepted
to specifically on the record, so as to be subject to revision
in error, (q)
An indictment in a criminal prosecution of the defendant
is nof. admissible as evidence in a civil suit against him. (r)
And on the trial of an indictment for receiving goods which
one M. had feloniously stolen, evidence is not admissible to
show that M. had previously been tried for the larceny and
acquitted, (s)
The fabrication of evidence by a prisoner, or inducing
a witness to swear in his favor, is most damaging to the
prisoner's case, (t)
The reading to witnesses of the judge's notes of their
evidence, taken on a -former trial, should be discouraged.
Where, on a second trial, at the same sitting, before another
jury, some of the witnesses having been re-sworn, the evi-
dence given by them at the first trial was read over to
them from the judge's notes, liberty being given, both to the
prosecution and to the prisoner, to examine and cross-ex-
amine the witnesses, it was held that this proceeding was
irregular, and could not be cured by the consent of the
prisoner, (u)
But witnesses may refer to memoranda for the purpose
of refreshing their memories. And a witness was allowed
to look at a time book, from which he made up the amounts
due to the employees of the establishment in which he was
pay clerk, for the purpose of proving sums paid to them,
though the entries were made by another person, (v)
On a trial for common assault, or when a higher crime is
charged but only common assault proved, the prisoner is a
(p) Winsor v. Reg. L. R. 1 Q. B. 312, per Cockburn, C. J.
(q) Duval dit Barbinas v Reg. 14 L. C. R. 52.
(r) Winning v. Fraser, 12 L. C. J. 291.
(s) Reg. v. Ferguson, 4 Pugsley & B. 259.
(t) Reg. v. Jones, 28 U. C. Q, B. 416.
(u) Reg. v. Bertrand, L. R. 1 P. C. A pp. 520.
(v) Reg. v. Langton, L. R. 2 Q. B. D. 297.
EVIDENCE. • • 381
competent witness on his own behalf, (w) But on an in-
dictment for an assault occasioning actual bodily harm, the
prisoner's evidence is inadmissible. Where the prisoner's
evidence is admissible, so also is that of the husband or wife
of the prisoner, (x)
A prosecution to recover a fine for solemnizing a marriage
between minors without the consent of their parents was
held a criminal proceeding, so as to render the defendant
incompetent to give evidence under the (N\ R) 19 Vac., c.
45. (y) But proceedings for the recovery of a penalty, being
in the nature of a civil writ, the evidence of the defendant in
such cases is admissible under that statute, (z)
Instruments liable to stamp duty are, by 41 Vic., c. 10, s.
5, rendered admissible in evidence in any criminal proceed-
ing, though not stamped as by law required.
The 44 Vic., c. 28, provides for the mode of admitting
documentary evidence of an official nature.
(w) 43 Vic., c. 37.
(x) Rev. v. McDonald, 30 U. C. C. P. 21.
(y) Ex. jKLrte Jarois, Stev. Dig. 1269 ; Beg. y. GoUart, 5 Allen, 115.
(z) Ex parts Frank, 1 Pugsley & B. 277.
382 THE CRIMINAL LAW OF CANADA.
CHAPTER IX.
PLEADING.
An indictment grounded upon an offence made by Act of
Parliament must, by express words, bring the offence within
the substantial description made in the Act. Those circum-
stances mentioned in the statute to make up the offence
shall not be supplied by any general conclusion contra formam
statuti.
As to indictments in general, the charge must contain such
a description of the injury or crime, that the defendant may
know what injury or crime it is which he is called upon to
answer ; that the jury may appear to be warranted in their
conclusions of guilt or innocence upon the premises deli-
vered to them ; and that the court may see such a definit
injury or crime that they may apply the remedy or punish-
ment which the law prescribes. The certainty essential to the
charge consists of two parts — the matter to be charged, anc
the manner of charging it. As to the matter to be chargec
whatever circumstances are necessary to constitute the crime
imputed must be set out, and all beyond are surplusage, (a)
Where an offence is created by statute, it is the safest
rule to describe the offence in the very words used in the
statute, and the courts are generally averse to support indict
ments where other words have been substituted, (b)
"Where a statute uses the word " maliciously " in descril
ing an offence, it is not sufficient to allege that it was done
" feloniously," as the former expression is not included ii
the latter. Where a statute uses the words " wilfully anc
maliciously," and the act is laid as done " unlawfully, mali-
(a) Reg. v. Tierney, 29 U. C. Q. B. 184-5, per Morrison, J.
(6) Reg. v. Jope, 3 Allen, 162, per Carter, C. J.
PLEADING. 383
ciously, and feloniously," the word " wilfully " being omitted,
the indictment is insufficient ; for where both the words
" wilfully " and " maliciously " are used, they must be under-
stood as descriptive of the offence, and therefore necessary
in describing the offence in an indictment, (c) But an allega-
tion that the prisoner did " feloniously stab, cut and wound,"
instead of did " unlawfully and maliciously," etc., was held
good, (d)
It is not sufficient for an indictment to follow the words
of a statute where the allegations submit a question of law
for the jury to determine. It is not a universal rule that
an offence may be described in an indictment in the words of
the statute which has created it ; for au indictment charging
that the defendant falsely pretended certain facts, although
in the very language of the statute, was held defective in
error, for not averring specifically that the pretences were
false. («)
Where a statute creates a new offence, under particular
circumstances, without which the offence did not exist, all
these circumstances ought to be stated in the indictment.
The prisoner should be able to gather from the indictment
whether he is charged with an offence at the common law, or
under a statute, or, if there should be several statutes appli-
cable to the subject, under which statute he is charged. (/)
Where the offence charged is created by any statute, or
subjected to a greater degree of punishment by any statute,
the indictment shall, after verdict, be held sufficient, if it
describes the offence in the words of the statute creating the
offence or prescribing the punishment, although they be dis-
junctively stated, or appear to include more than one offence,
or otherwise, (g)
It would appear, however, that this does not dispense with
the necessity of stating the circumstances under which the
(c) Reg. v. Jope, 3 Allen, 162-3, per Carter, C. J.
(d) Reg. v. Flynn, 2 Pugsley A B. 321.
(e) Reg. v. Switzer, 14 U. C. C. P. 477 ; Rex v. Perrott, 2 M. & 8. 379.
{/) Rtg. v. Cumminga, 4 U. C. L. J. 188, per E*tm, V.-C.
(g) Rty. v. Baby, 12 U. C. Q. B. 346 ; 32 & 33 Vic., c. 20. s. 79.
384 THE CRIMINAL LAW OF CANADA.
offence was committed, and without which it could not have
been committed, (h)
There are numerous instances where the statute being dis-
junctive, a conjunctive statement is commonly used in an
indictment. Thus, the statute 7 & 8 Geo. IV., c. 30, enacts
that if any person shall unlawfully and maliciously cut,
break, or destroy any threshing-machine, the indictment may
charge that the accused did feloniously, unlawfully, and
maliciously cut, break, and destroy. So, where the offence
by statute was unlawfully or maliciously breaking down, or
cutting down, any sea bank or sea wall, the indictment may
charge a cutting and breaking down, (i) And the indict-
ment will not be bad on the ground of its charging several
offences.
In indictments for offences against the persons or property
of individuals, the Christian and surname of the party injured
must be stated, if the party injured be known. (/)
So, in an indictment for publishing an obscene book, it is
not sufficient to describe it by its title, but the words thereof
alleged to be obscene must be set out ; and the omission will
not be cured by verdict, (k)
An indictment charging a person insolvent with making
away with and concealing his goods to defraud creditors, must
specify what goods and what value. (/) And the same rulinj
would seem to apply at any rate to the second part of sectioi
110 of 32 & 33 Vic., c. 21.
And where the defendant was indicted in the district of
Beauharnois for perjury committed in the district of Mont
real, but there was no averment in the indictment that th(
defendant had been apprehended or that he was in custod]
at the time of the finding of the indictment, the omission w-d
held fatal, and could not be cured by verdict, (in)
(h) Reg. v. Cumminfis, 4 U. C. L. J. 183, per Eif,e«., V.-C.
(i) Reg. v. Patterson, 27 U. C. Q. B. 145-6, par Draper, <J. J.
(;) Reg. v. Qninn, 29 U. C. Q. U. 163, per Richard*, C. J.
(k) Bradlaugh v. Reg. L. R. 3 Q. B. D. ti07.
(I) Reg. v. Patoille, 4 Revue Leg. 131.
(m) Reg. v. Lynch, 20 L. 0. J. 187.
PLEADING. 385
An indictment in the statutory form, charging the prisoner
with having feloniously and maliciously set fire to, etc., is
good without alleging any intent to injure or defraud ; (n)
but such an intention must be shown at the trial, (0) and in
an indictment for false pretences such an omission would
seem to be aided by verdict, (p) So would the omission of
the false pretences, (q) if necessary to be alleged, (r)
An indictment charging B. with obtaining by false pre-
tences, from one J. T., two horses with intent to defraud,
and that the defendant was present aiding and abetting the
said B. the misdemeanor aforesaid to commit, was held good
as against the defendant, as charging him as principal in the
second degree, (s)
An allegation of the crime having been committed upon
the sea instead of upon the high seas, is good in arrest of
judgment, (t)
A conviction charging that the prisoner did " unlawfully
and maliciously cut and wound one Mary Kelly with intent
then and there to do her grievous bodily harm," though in-
sufficient to charge the felony, yet the court, by rejecting the
words " with intent" etc., upheld it as a conviction for the
misdemeanor, (u) And the omission of the word "company"
is cured by verdict, (v)
But the omission of the words "was plaintiff" after the
name of the plaintiff, in the description of the style of cause
in an assignment of perjury, is fatal, before verdict at least, (to)
If an indictment for stealing certain articles be maintain-
in) Reg. v. Soucie, I Pugsley & B. 611 ; Reg. v. Cronin, Rob. & Jos. Dig.
904
(o) Reg. v. Cronin, supra.
(p) Crawford v. Beattie, 39 U. C. Q. B, 13.
(q) Keg. v. Goldsmith, L. R. 2 0. C. B. 74.
(ri See Reg. v. Langne, 4 R. L. 411, as to necessity of alleging the false
pretences.
(a) Reg. v. Connor, 14 U. C. C. P. 529.
(t) Reg v. Sprungli, 4 Q. L R. 110.
(«) Rtg. v. Btsufker, 8 U C. P. R. 20.
(v) Ri-tj. v. Fureiwm, 1 L. C. L. J. 70.
(w) Reg. v. Ling, 5 Q. L. R. 359.
386 THE CRIMINAL LAW OF CANADA.
able as to some, the conviction is good, although as to the
other goods it cannot be supported, (x)
Surplusage, or the allegation of unnecessary matter, will
not vitiate an indictment at common law, or on a statute.
The unnecessary allegations need not be proved, and may
be rejected, provided they are not matters of description, (y)
and do not alter the meaning of the words requisite to
define the offence charged, (z) Only material allegations
need be proved, (a) And where some counts in an indict-
ment charged the destruction of a vessel with intent to
prejudice the underwriters, and some without such intent,
and the prisoner was found guilty on all the counts, it was
held that, if necessary to show the prisoner had knowledge
of the insurance, the court could alter the verdict to a
finding on the counts which omitted the alleged intent, (b)
An indictment which charged A. with having made a
false declaration, before a justice, that he had lost a pawn-
broker's ticket, whereas he had not lost the ticket, but "had
sold, lent, or deposited it with one C.," was held not bad for
uncertainty, because the words "had sold, lent, or deposit-
ed" were surplusage, (c) So the ordinary conclusion of an
indictment for perjury, "did wilfully and corruptly com-
mit wilful and corrupt perjury," may be rejected as sur-
plusage, (d)
And an allegation that "having made an assignment" in
an indictment against an insolvent for having mutilated
his books, is surplusage, (e) So on an indictment for not
keeping a bridge in repair, it was held no objection that
the proceedings on the record were in the Court of Queen's
Bench for the Province of Ontario, there being no such
(x) Reg. v. St. Dtnis, 8 U. C. P. R. 16.
(y) Reg. v. Bryans, 12 U. C. C. P. 167, per Draper, 0. J.
(z) ticrj. v. Bathgate, 13 L. C. J. 304, per Drummond, 3.
(a) Reg v. Bri/ans, supra, 169, per Richards, C. J.
(b) Rr'g. v. Tower, 4 Pugsley & B. 168.
(c) Reg v. Parker, L. R. I C. C. R. 225 ; 39 L. J. (M. C.) 60.
(d) Reg. v. Hodgkixs, L. R. 1 C. C. R. '213, per Kelly, U B.; Ryallg T.
Reg., 11 Q. B. 781.
(e) Reg. v. McLean, 1 Pugsley & B. 377.
PLEADING. 387
province when they were had; the name of the province
being surplusage. (/)
It is a universal principle, which runs through the whole
criminal law, that it will be sufficient to prove so much of
an indictment as charges the defendant with a substantive
crime; (#) and the 32 & 33 Vic,, c. 29, s. 23, enacts that no
indictment shall be held insufficient for want of the aver-
ment of any matter unnecessary to be proved, or for the
insertion of the words " against the form of the statute,"
instead of the words "against the form of the statutes,"
or vice versa, or for the omission of the same.
The general rule was, that, in indictments for offences
created by statute, the conclusion "contra formam statuti"
was necessary. It was pretty clear, however, that, under
the old statutes, the omission of these words was not fatal
after verdict, though it might, perhaps, have been on de-
murrer, (h)
The general rule of law is, that no person shall be twice
placed in legal peril of a conviction for the same oftence.
Consequently, on an indictment for any offence, a previous
conviction, or acquittal of the same offence, may be a good
plea in bar. The true test bv which the validitv of such a
I w m
plea may be ascertained is, whether the evidence necessary
to sustain the second indictment would have warranted a
legal conviction upon the first, (t)
But the prisoner must be in legal peril on the first indict-
ment, and unless the first indictment be such that the
prisoner might have been convicted upon it, on proof of
the facts contained in the second indictment, an acquittal
on the first can be no bar to the second, (j)
Moreover, with reference to these pleas, when it is said
(/) Reg. v. Desjardin Canal Co., 27 U. C. Q. B 374.
(g) titg. v. Bryan*, 12 U. C. C. P. 167, per Draper, C. J.
(A) Reg. v. Camming*, 16 U. C. Q. B. 15 ; confirmed on appeal, 4 U. C
L. J. 182; R?g. v. Tw^dy, 23 U. 0. Q. B. 120 ; per Ltraper, C. J.; and
see 32 i 33 Vic., c. 29, ss. 23, 32 and 78.
(i) See Reg. v. Magrath, 26 U. C. Q. B. 385.
(j) Ke parte Estabroolcs, 4 Allen, 280, per Wtimot, J.
388 THE CRIMINAL LAW OF CANADA.
that a man is twice tried, a trial which proceeds to its legiti-
mate and lawful conclusion by verdict is meant. When a
man is said to be twice put in jeopardy, it signifies a putting
in jeopardy by the verdict of a jury, and that he is not tried
nor put in jeopardy until the verdict comes to pass ; because
if that were not so, it is clear that in every case of defective
verdict a man could not be tried a second time, and yet it
is admitted that, in the case of a verdict palpablydefective,
though the jury have pronounced upon the case, yet it will
not avail the party if a second time put on trial, (k)
A party is not necessarily in jeopardy when a jury is
sworn and evidence given. The true and rational doctrine
is that, where a trial proves abortive by reason of no legal
verdict having been given, the acquittal is no bar to a sub-
sequent indictment, and a venire, de novo may be awarded. (/)
A party is not in jeopardy, in the legal sense of the word,
if there is a verdict against him on a bad indictment, (ni)
The rule means that a man shall not twice be put in peril
after a verdict has been returned by the jury, that verdict
having been given on a good indictment, and one on which
the prisoner could be legally convicted and sentenced, (n)
Where a juryman is taken ill, or some unforeseen accident
occurs, which would be within the ordinary excepted cases
in which a jury may properly be discharged, or the jury
give an imperfect verdict, or one which cannot be supported
in point of law, a venire de novo may be awarded, and the
defendant cannot plead autrefuis acquit, because he has not
been in legal jeopardy, (o)
The pleas of autrefois convict and autrefois acquit are the
(k) Reg. v. Cfiirlesworth, 9 U. C. L. J. 49, per Cockburn, C. J. ; 1 B. & S.
460 ; SI L. •'. (M. C ) 25 ; see also Reg. v. Sullivan, 15 U. C. Q. B. 199.
(I) Ibid.; 50, per Wiyhtman, J.
(m) Ibid.; 51, per Crompton, J. ; Reg. v. Green, 3 U. C. L. J. 19 ; Dears.
&B. 113.
(n) Winaor v. Reg. L. R. 1 Q. B. 311, per Cockburn, C. J.; see also JReg.
v. Ma'jrath, 26 T. C. Q. B. 385 ; Reg. v. Murphy, L. R. 2 P. C. App. 548,
per Sir Wm. Erie.
(o) Reg. v. Charlesworth, 9 U. C. L. J. 50, per Wightman, J.
PLEADING. 389
only pleas known to the law of England to stay a man
from beino- tried on an indictment or information, (p)
O /
If the prisoner might have been convicted upon the first
indictment, though, in fact, he was acquitted by a mistaken
direction of the judge, he may plead autrefois acquit.
If a man commits a burglary, and at the same time steals
goods out of the house, if he be indicted for the larceny
only and be acquitted, yet he may be indicted for the bur-
glary afterwards, and e converse, if indicted for the burglary
with intent to commit larceny, and he be acquitted, yet he
may be indicted for the larceny, for they are several offences,
though committed at the same time. A man, acquitted of
stealing the horse, may be convicted of stealing the saddle,
though both were done at the same time, (q)
It would seem that in all cases where, by our statute law,
a prisoner indicted for one offence is liable to be convicted
of another, an acquittal or conviction of the former would
be a good bar to an indictment for the latter, (r) In fact,
s. 52 of the 32 & 33 Vic., c. 29, provides that no person
shall be tried or prosecuted for an attempt to commit any
felony or misdemeanor who has been previously tried for
committing the same offence.
A conviction for assault, the charge being of assault, by
justices in Petty Sessions, at the instance of the person
assaulted, and imprisonment consequent thereon, are not,
either at common law or under the 32 & 33 Vic., c. 20, s.
45, a bar to an indictment for manslaughter of the person
assaulted, should he subsequently die from the effects of
the assault, (s) The word "cause" in the section, must be
read as synonymous with "accusation" or "charge," and in
this case, the accusation or charge was the assault ; conse-
quently, a conviction therefor was only a bar to a subsequent,
indictment for the same offence.
(p) Winsor v. Jtvj. L. R. 1 Q. B. 314, per Blackburn, J.; Reg. \. Charles-
worth, supra, 49. per Cockburn, C. J.
(q) Keg. v. May rath, 26 U. C. Q. B. 388 et seq. per Draper, C. J.
(r) See 32 & 33 Vic., c. 21, s. 74-99 ; c. 29, ss. 49, 50 and 51 ; suadlteg. v.
Gorbutt, Dears. & B. 166 ; 26 L. J. (M. C.) 47.
(t) Reg. v. Morris, L. K. 1 C. C. R. 90.
THE CRIMINAL LAW OF CANADA.
A conviction for assault in breach of recognizance is no
bar to proceedings by sci. fa. on the recognizance, (t)
But if a party be charged before a justice of the peace
with an assault, and he dismiss the complaint, giving a
certificate under this clause, the defendant can avail himself
of the certificate as a defence to an action for tearing the
plaintiff's clothes, on the same occasion, (u)
If a plea autrefois acquit or convict be overruled, the
prisoner may plead not guilty, and be tried at the same
Court of Oyer and Terminer. (v)
A plea of autrefois convict is not proved by the production
of the record, and verdict endorsed, (w)
A plea describing a statute, as passed in the 4th and 5th
years of the reign of Queen Victoria, is bad on demurrer, (x)
It seems a demurrer must be to the entire count or plea, and
not to part of it; and if it is good upon the whole, anything
else which it contains, which by itself would be insufficient,
is mere surplusage, (y)
After a demurrer is overruled, to allow a party to plead not
guilty is substantially correct, if regarded in what perhaps is
the proper view to take of it, as an amendment allowed to
the party before h'nal judgment, (z)
The first count of an indictment on the Con. Stats. Can.,
c. 6, s. 20, charged that the defendant, after having made
the alphabetical list of persons entitled to vote, etc., made
put a duplicate original of the said list, and certified by
affirmation to its correctness, and delivered the same to the
clerk of the peace, and that in making out the certified list,
so delivered to the clerk of the peace, of persons entitled to
vote, etc., the defendant did feloniously omit,' from said list,
(t) Reg. v. Harmer, 17 U. C. Q. B. 555.
(u) Julien v. King, 17 L. 0. K. 268.
(v) See Rpg. v. Mag rath, 26 U. 0. Q. B. 385.
(w) Re Warner, 1 U. 0. L. J. N. S. 18, per Hatjarty, J.
(x) Johnstone v. Odell, I U. C. C. P. 406, per McLean, J.; Huron D. 0.
v. London D. C., 4 U. C. Q. B. 303.
(y) Mulrahy v. Reg., L. R. 3 E. & I. App. 329, per Lord Cranioorth.
(z) Ibid. 323, per Willes, J.
PLEADING. 391
the names, etc., which names, or any or either of them, ought
not to have been omitted. The second count was nearly the
same as the first, the word " insert " being used where the
word " omit " was used in the first. Upon demurrer to the
indictment, the court held that the omission charged, having
been from the certified list delivered to the clerk of the peace
or " duplicate original," the words "said list," referring to the
words "the certified list so delivered to the clerk of the
peace," was a sufficient description to iudentify the list
intended.
As to the objection that it did not appear that the persons
whose names were charged to have been omitted, etc., were
persons entitled to vote, etc., it was held that the words in
the indictment were not a direct and specific allegation that
those persons were entitled to vote. As to an objection that
it was not alleged that the list was made up from the last
revised assessment roll, the court held that by the indictment
it appeared that the assessment roll referred to was the
assessment roll for 1863, and that it was sufficiently stated
that the alphabetical list was made up for that year, and that
the Crown would be bound to prove such a list; and further,
that both counts of the indictment were bad, as they should
have shown explicitly how and in what respect these names
should or should not have been on the list, by setting out
that they were upon, or were not upon, the assessment roll as
the case might be, or at any rate were, or were not, upon the
alphabetical list, (a)
Matter of description, in an indictment, though unneces-
sarily alleged, must be proved as laid. Therefore, where, inf
an indictment for assaulting a gamekeeper of the Duke o
Cambridge, under 9 Geo. IV.,c. 69, s. 2, the Duke was described
as " George William Frederick Charles, Duke of Cambridge,' '
and it was proved that " George William " were two of his
names, but that he had other names which were not proved,
and it was found by the verdict that the jury were satisfied
(a) Reg. v. Switzer, 14 U. C. C. P. 470.
392 THE CRIMINAL LAW OF CANADA.
of the identity of the Duke, and the prisoners were convicted,
it was held that the conviction was wrong ; that under 14
& 15 Vic,, c. 100, s. 24, an amendment might have been
made at the trial, by which the conviction would have been
supported by striking out all the Christian names; but it was
now too late, and that the Court of Quarter Sessions were not
bound to amend ; and that an amendment, by striking out
the two names only which were not proved, would have been
wrong. (b)
An indictment could not be amended at common law
without the consent of the grand jury, on whose oath it was
found, (c)
The 32 & 33 Vic., c. 29, s. 70 et seq., contains provisions as
to the amendment of indictments in certain cases.
Any objections for any defect apparent on the face of an
indictment must be taken before plea, (d) And the " merits
of the case," with reference to amendments in section 71,
means the justice of the case as regards the guilt or innocence
of the prisoner, and " his defence on such merits" means a
substantial and not a formal and technical one. (e)
It would seem that a defect in laying the property in an
indictment might be amended under s. 71. (/) And under a
section of an English Act somewhat analogous to sec. 71, it
was held that the judge had power to amend an indictment
for perjury, describing the justices before whom the perjury
was committed, as justices for a county, where they were
proved to be justices for a borough only. (g)
The word " money" was substituted for " nineteen shillings
and sixpence," in an indictment on the application of the
Crown ; (k) and in an indictment for arson, the words " with
(b) Reg. v. Frost, 1 U. C. L. J. 135 ; Dears. 474 ; 24 L. J. (M. C.) 116.
(c) He ConWn, 31 U. C. Q. B. 167, per Wilson, J.
(d) Reg. v. Flynn, 2 Pugsley & B. 321.
(e) Reg. v. Cronin, Eob. & Jos. Dig. 904.
(/) Reg. v. Jackson, 19 U. C. C. P. 280 ; Reg. v. Quinn, 29 U. C. Q.
164, per Richards, C. J.
(a) Reg. v. Western, L. R. 1 C. C. R. 122 ; 37 L. J. (M. C.) 81.
(A) Reg. v. Gamble, L. R. 2 C. C. R. 1.
PLEADING. 393
intent to defraud" were struck out, the evidence on the
part of the Crown having failed to show a special iuteiit ; (i)
and where one of the prosecutor's Christian names is omitted,
it may be inserted, (ii)
The motion to quash must be before the evidence is gone
into ; (/) and the court will not, allow the defendant's plea
to be withdrawn for the purpose of almitting a demurrer
without also allowing the Crown to amend. (&)
Where an amendment has once been made, the case must
be decided upon the indictment in its amended form. (T)
The amendment must in all cases be made before ver-
dict, (ra) But leave to amend may be granted under the
same sections, at any time from the finding of the indict-
ment (ft) till after counsel have addressed the jury. (0)
Upon an amendment of the indictment at the trial, no
postponement of the trial will be granted, if the prisoner is
not prejudiced in hi? defence, (p) And an application to
postpone a trial in consequence of the absence of witnesses,
must be supported by special affidavit showing that the wit-
nesses in question are material, (q)
Section 72 of the 32 & 33 Vic., c. 29, enacts that after any
such amendment the trial shall proceed, whenever the same is
proceeded with, in the same manner and with the same con-
sequences, both with respect to the liability of witnesses to
be indicted for perjury, and in all other respects as if no such
variance had occurred.
A count on an indictment charging a prisoner, under the 32
& 33 Vic., c. 20, s. 52, with unlawfully and carnally knowing
(t) Reg. v. Cronin, Rob. & Jos. Dig. 904.
(ti) Cornwall v. Reg., 33 U. C. Q. B. 106.
(j)Reg. v. Bourdon, 2 Revue Ley. 713.
(k) Reg. v. McLean, 1 Pugsley & B. 377.
(/) Reg. v. Barnes, L. R. 1 C. C. R. 45 ; 35 L. J. (M. C.) 204.
(m)Rtq. v. Frost, Dears. 474; 27 L. J. (M. C.) 116; Reg. v. Larkin,
Dears. 365 ; 23 L. J. (M. C.) 125.
(n) Reg. v. Morrison, 2 Pugsley & B. 682.
(o) Re-j. v. Fullarton, 6 Cox, 194 ; Arch. Cr. Pldg. 207 ; but see Reg. v.
Rymes, 3 C. & K. 326.
(p) R'-g. v. Stnecal. 8 L/C. .1. 287.
(q) Reg. v. Douyall, 18 L. C. J. 85.
394 THE CRIMINAL LAW OF CANADA.
and abusing a girl, and also with an assault at common law,
might be objectionable on the ground of duplicity, (r)
Counts for different misdemeanors of the same class may
be joined in one indictment, (s)
Where different felonies are charged in different counts
of an indictment, and an objection is taken to the indictment
on that ground, before the prisoner has pleaded or the jury
are charged, the judge, in his discretion, may quash the
indictment ; or, if it be not discovered until after the jury are
charged, the judge may put the prosecutor to his election on
which charge he will proceed, (t)
But in one case where the prisoner was convicted on an
indictment containing two counts charging separate offences,
and sentenced, and the evidence did not sustain the charge
on one of the counts, the judgment was arrested, (u)
Counts under the 39 Geo. III., c. 85, for embezzling bank
notes, might have been joined with counts for larceny at
common law, (v) and the prosecutor would not, at the open-
ing of his case, have been put to his election as to whether
he would proceed on the statutory or common law count,
though he would have been limited to one state of facts
relating to one single act of offence, (w)
But counts ought not to be joined in an indictment against
a prisoner for stealing and also for receiving, and the reason
is, because they are, in fact, totally distinct offences, and the
prisoner cannot be found guilty of both. But when the two
facts charged form part of one and the same transaction, and
are not repugnant, they may be properly joined, as in indict-
ments for forgery, where one count is inserted for forgery
and another for uttering the forged instrument, (x)
(r) Reg. v. Guthrie, L. R. 1 C. C. R. 242, per Bovill, C. J.
(s) Reg. v. Abrahams, 24 L. C. J. 325.
(t) Young v. Rerj., 3 T. R. 106 ; Reg. v. Heywood, L. & C. 451 ; 33 L. J.
(M. C.) 133; Arch. Cr. Pldg. 70.
(u) Reg. v. Hathaway, 6 Allen, 352.
(v) Rex v. Johnson, 3 M. & S. 539.
(w) Reg. v. Cummings, 4 U. C. L. J. 184, per Draper, C. J.
(x) Rex v. Blackson, 8 C. & P. 43, per Parke, B. ; Reg. v. Russell, 3 Ruaa.
& Chesley, 254.
PLEADING. 395
It would seem that, where there is only one offence
charged, or corpus delicti complained of. the prosecutor can-
not be put to his election, nor the indictment be quashed*
though it contain several counts, all alleging the commission
of the offence in different ways ; in other words, it is not
objectionable to vary the statement in the indictment in
order to meet the evidence, (y)
Where an indictment contained two counts — the first for
embezzlement as servant, the second for larceny as bailee,
the prosecution was allowed to elect. (2)
There is no objection to the joinder of counts for em-
bezzlement and larceny as a servant, and on the latter count
there may be a conviction for larceny as a bailee, (a)
So it is not a misjoinder of counts to add statements of a
previous conviction for misdemeanor, as counts to a count
for larceny, under the 32 & 33 Vic., c. 21, s. 18 ; and the
objection, at all events, could only be raised by demurrer,
or motion to quash the indictment, pursuant to the 32 & 3o
Vic., c. 29, s. 32. (6)
If the statements of the previous convictions are not
treated as counts, but merely as statements made for the
purpose of founding an inquiry, to be entered into only in
the event of the prisoner being found guilty of the offence
charged in the indictment ; yet if they were not inquired
into at all, and the jury was not charged with them, so that
the prisoner was not prejudiced by their insertion, and if,
after a conviction on the count for larceny, a demurrer to
these statements, as insufficient in law, is decided in favor
of the prisoner, a court of error will not reopen the matter,
on the suggestion that there is a misjoinder of counts, (c)
Nor is duplicity a ground of error, (d)
(y) See Reg. v. School, 26 U. C. Q. B. 214 ; Arch. Cr. Pldg. 72.
(2) Reg. v. Holman, 9 U. C. L. J 223 ; L. & C. 177 ; see also Reg. T.
Ferguson, 1 U. C. L. J. 55 ; Dears. C. <J. 427.
(a) -2 Russ. Cr. 247 n.
(6) Reg. v. Mason, 32 U. C. Q. B. 246 ; Reg. v. Ferguson, 1 Dears. 427.
(c) Reg. v. Mason, supra.
(d) Cornwall v. Reg., 33 U. C. Q. B 106.
396 THE CRIMINAL LAW OF CANADA.
If there be an exception or proviso in the enacting clause
of a statute, it must be expressly negatived in the indict-
ment, (e)
The rule is, that, when the enacting clause of a statute
constitutes an act to be an offence under certain circum-
stances and not under others, then, as the act is an offence
only sub modo, the particular exceptions must be expressly
specified and negatived ; but when a statute constitutes an
act to be an offence generally, and in a subsequent clause
makes a proviso or exception in favor of pai ticular cases,
or in the same clause, but not in the enacting part of it, by
words of reference or otherwise, then the proviso is matter
of defence or excuse, which need not be noticed in an in-
dictment, (f)
The reason why the exceptions in the enacting clause
should be negatived is because the party cannot plead to
such an indictment, and can have no remedy against it, but
from an exception to some defect appearing on the face
of it. (g)
The statement of the time when an offence is committed
was never considered material, so long as there was proof
of the offence occurring before the preferring of the indict-
ment, (h)
The 32 & 33 Vic., c. 29, s. 23, would seem to render an
averment of time unnecessary, in any case where time is
not of the essence of the offence, (i)
It was formerly necessary that an indictment for homi-
cide should describe the manner of the death, and the means
by which it was effected. (/) But these need not now be
stated. When, however, a statute makes the means of effect-
ing an act material ingredients in the offence, it is necessary
(e) Reg. v. White, 21 U. C. C. P. 354.
(/) Ibul. 355, per Gait, J.
(<j) Ibid. 356, per Gait, J.; and see Arch. Or. Pldg. 62 ; Spicresv. Parker,
1 T. R. 141 ; Reg. v. Earns/taw, 15 Ea. 456 ; Rex v. Hall, 1 T. R. 320 ;
Steel v. Smith, 1 B. & Aid. 94; Dwarris, 515-6.
(h) Reg. v. Hamilton, 16 U. C. C. P. 355, per Richards, C. J.
(i) See Mulcahy v. Reg., L. R. 3 E. & I. App. 322, per miles, J.
(j) See Reg. v. Shea, 3 Allen, 130-1, per Carter, C. J.
PLEADING. 397
that the means should be set out in the indictment ; for an
indictment must bring the fact of making an offence within
all the material words of the statute, and all necessary
ingredients in the offence must be alleged, (k)
Thus, where a statute provides that " whosoever shall mali-
ciously, by any means manifesting a design to cause grievous
bodily harm," etc., attempt to cause grievous bodily harm to
any person, the means should be set out with such particu-
larity as necessarily to manifest the design which constitutes
the felony, or there should be an allegation following the
words of the Act. (/)
So it would seem that in an indictment, on the 32 & 33
Vic., c. 20, s. 20, for attempting, " by any means calcu-
lated to choke," etc., to render any person insensible, with
intent, etc., should set forth the means, for they are material
as to the offence. But it would no doubt be sufficient to
follow the forms in the schedule to the 32 & 33 Vic., c. 29, in
any case to which they are applicable.
Tt is not necessary that the proof should, in all cases, tally
witli the mode of death laid in the indictment. Where an
indictment charged the prisoner with feloniously striking
the deceased on the head with a handspike, giving him
thereby a mortal wound and fracture, of which he died : it
was proved that the death was caused by the blow on the
head with the handspike, but that there was no external wound
or fracture, the immediate cause of death being concussion of
the brain, produced by the blow ; and the court held that it
is sufficient if the mode of death is substantially proved as
laid, and it is not necessary that all the intermediate steps
between the primary cause and the ultimate result should be
also alleged and proved, (m)
The venue of legal proceedings is intended to show where
the principal facts and circum.stances in the proceedings
(k) See Beg. v. Magee, 12 Allen, 16, per Carter, C. J.; Arch. Cr. Pldg.
60-3.
(1) Reg. v. Magee, supra.
(m) Reg v. Shea, 3 Allen, 129.
398 THE CRIMINAL LAW OF CANADA.
occurred, or were alleged to have occurred, with a view to
showing that the court and jury have jurisdiction in the mat-
ter. It was formerly necessary to state in the indictment the
venue expressly, or, by reference to the venue in the margin,
to every material allegation, (n)
But now, by the 32 & 33 Vic., c. 29, s. 15, it is not neces-
sary to state any venue in the body of any indictment. Sec-
tion 11 of this statute relates to procedure only, and does not
authorize any order for the change of the place of trial of a
prisoner, in any case where such change would not have
been granted under the former practice. The statute does
away with the old practice of removing the case, by certior-
ari, into the Queen's Bench, and then moving to change the
venue, (o)
Under sec. 9 of this statute, the offence may be alleged to
have been committed in any district, county, or place through
any part whereof the coach, waggon, cart, carriage, or vessel,
boat or raft passed, in the course of the journey or voyage
during which the offence was committed, and the indictment
need not state the place where the offence was actually
committed, (p)
Where an indictment stated an assault committed upon
one Marsh, at Fredericton, in the county of York, but the
assault was proved to have been committed on board a
steamboat, on the river St. John, in the course of its pass-
age from St. John to Fredericton, before the steamboat
arrived within the county of York, and while it was passing
through another county ; it was held that the indictment
was sufficient, and that it was unnecessary to allege the
facts as they actually occurred, (q)
But where a prisoner was tried at Amherst upon an in-
dictment containing two counts, one for robbery and the
other for receiving stolen goods, and both offences were
(n) Reg. v. Atkinson, 17 U. C. C. P. 299-300, per J. Wilson, J.
(o) Reg. v. McLeod, 6 C. L. J. N. S. 64; 5 U. C. P. R 181.
(p) See Reg. v. Webster, 1 Allen, 589.
(q) /bid.
PLEADING. 399
proved to have been committed at Tniro, situated in a
county different from Amherst ; the jury having found a
general verdict of guilty on both counts, it was held that
the prisoner should have been proceeded against only on
the count for receiving ; and that although he might be
guilty of both offences, yet, as the robbery was committed
in another county than that in which the trial took place,
the prisoner was discharged, (r)
So where a prisoner hired a horse in the county of York
to go to Aurora in that county, and afterwards sold the
horse in the county of Waterloo, it was considered that no
offence was shown in the former county, (s)
But where the prisoner, at Seaforth, in the county of
Huron, falsely represented to the agent of a sewing machine
company, that he owned a lot of land, and thus induced the
agent to sell machines to him, which were sent to Toronto,
in the county of York, and delivered to him at Seaforth ;
it was held that the offence was complete at Huron, (t)
The venue in criminal proceedings, as in civil, may be
changed in a proper case. But it has been held in Quebec,
that the Court of Queen's Bench there, sitting in appeal,
will not entertain such an application on behalf of a person
charged with an offence in the District of Three Rivers,
where no reason appears why the application should not
have been made before the judge resident in that district,
where the offence would otherwise be triable, (u)
It would seem that no objection to the caption of an
indictment, for an allegation that the grand jurors were
" sworn and affirmed," can be sustained without showing
that those who were sworn were persons who ought to have
affirmed, or that those who affirmed were persons who
ought to have sworn, (v)
(r) Rtrj. v. Russell, 3 Russ. A Chesley, 254.
{«) Re Robinson, 7 U. C. P. R. '.'39.
(t) Reg. v. Feithrnheimer, 26 U. C. C. P. 139.
(u)Kcparte Corvnn, 24 L. C. J. 104.
(r) JJulcahy v. Key., L. R. 3 E. & I. App. 306.
400 THE CRIMINAL LAW OF CANADA.
It is no objection to the indictment that the previous
conviction is laid at the commencement ; though, when the
prisoner is given in charge to the jury, the subsequent
felony must be read alone to them, in the first instance, (w)
It is no error to add allegations of previous convictions of
misdemeanor to a count for larceny ; and at any rate, the
question can be raised only by demurrer on motion to quash
before plea, (x)
Where a prosecutor has been bound, by recognizance, to
prosecute, and give evidence against a person charged with
perjury in the evidence given by him on the trial of a
certain suit, and the grand jury have found an indictment
against the defendant, the court will not quash the indict-
ment because there is a variance in the specific charge of
perjury contained in the information and that contained in
the indictment, provided the indictment sets forth the sub-
stantial charge contained in the information, so that the de-
fendant has reasonable notice of what he has to answer. (?/)
An application to quash an indictment should be mo,de in
limine by demurrer or motion, or the defendant should wait
the close of the evidence for the prosecution to demand an
acquittal, (z)
Applications to quash an indictment are considered ap-
plications to the discretion of the court, (a)
A defective indictment may be quashed on motion as well
as on demurrer. (6)
It is unusual to quash an indictment on the application
of a defendant, when it is for a serious offence, unless upon
the clearest and plainest grounds ; but the court will drive
the party to a demurrer, or motion in arrest of judgment,
(w) Beg. v. Hilton, 5 U. C. L. J. 70 ; Bell, 20 ; 28 L. J. (M. C.) 28 ; and
see Reg. v. Mason, 22 U. C. C. P. 246.
(x) -Reg. v. Mason, supra.
(y) Reg. v. Broad, 14 U. C. C. P. 168.
(z) Reg. v. Roy, 11 L. C. J. 90, per Drummond, J. ; see 32 & 33 Vic., c. 29,
s. 32.
(a) Reg. v. Belyea, 1 James, 277, per Dodd, J. ; Rex v. Hunt, 4 B. & Ad.
430.
(6) Reg. v. Bathgate, 13 L. C. J. 299.
TLEA.DWG. 401
or writ of error. It is, therefore, a general rule that no
indictments which charge the higher offences, as treason or
felony, will be thus summarily set aside, (e)
The omission of the residences and occupations of grand
jurors, in the list and in the panel, was held sufficient
ground for quashing an indictment for felony, (d)
Where an indictment charges no offence against law, the
objection may be properly taken in arrest of judgment, or
%he indictment may be demurred to, or a writ of error will
lie. (e) But the omission of the word "feloniously" is aided
•by verdict. (/)
No mere formal defect, in an indictment, can be objected
to after the prisoner is found guilty and sentenced at the
Court of Oyer and Terminer. (#)
An objection to an indictment, as insufficient in law, made
after the swearing of the jury, and after the prisoner was
given in charge of them, was held not too late ; for otherwise
there never could be a motion in arrest of judgment, (fi)
Also, that an objection may be made at any time for a sub-
stantial but not for a formal defect, and that the 32 & 33
Vic., c. 29, s. 32, only applies to the latter, (i)
The forms of indictment in the 32 & 33 Vic., c. 29, sched-
ule A, are intended as guides to simplify forms of indict-
ments. They cannot be made use of in cases to which they
are not applicable, so as to misinform a person of the nature
of the offence with which he stands charged, (j) The
adoption of the forms is discretionary. (k)
It is sufficient if an indictment be signed by the clerk of
(c) Reg. v. Belyea, supra, 225, per Dodd, J.
(d) Ibid. 220.
(e) Reg. v. Clement, 26 U. C. Q. B. 300, per Draper. C. J.
(/) Reg. v. Quinn. 1 HUBS. * Geldert, 139.
(</) Horseman v. Reg., 16 U. C. Q. B. 544, per Robinson, C. J.
(h) Re,,, v. Ryland, L. R. 1 C. 0. R. 99; 37 L. J. (M. C.) 10.
(i) Ibid.
(j) Reg. v. Cu.mm.ings, 4 U. C. L. J. 188-9, per Spragge, V.-C.
flc) Ibid.; and see Reg. v. McLauyhlln, 3 Allen, 159.
402 THE CRIMINAL LAW OF CANADA.
the Crown, (/) or by the counsel prosecuting for the pro-
vincial Attorney General, (m)
Before pleading to an indictment, the defendant must
submit to the jurisdiction of the court, (n)
The prisoner must plead in abatement before he pleads in
bar. (0)
No more than one plea can be pleaded to any indictment
for misdemeanor or criminal information, (p)
A prisoner will be allowed to withdraw his plea of
"guilty" if it appear that he may have been under some
misapprehension when he pleaded, and might thereby suffer
injury, (q)
(1) Reg. v. Grant, 2 L. C. L. J. 276.
(m) Meg. v. Downey, 13 L. C. J. 193.
(n) Reg. v. Maxwell, 10 L. C. R. 45.
(o) W helan v. Reg., 28 U. C. Q. B. 47.
(p) Reg. v. Charlesworth, 1 B. & S. 460 ; 31 L. J. (M. C.) 26.
(q) Reg. v. Hudddl, 20 L. C. J. 301.
PRACTICE. 403
CHAPTER X.
PRACTICE.
There are three principal modes provided by the law of
England for the prosecution of criminals ; by indictment
preferred by a grand jury; by criminal information to a
superior court ; and by summary proceedings before justices
of the peace, by virtue of special powers conferred on them
to that end by various statutes.
As proceedings by indictment usually, though not neces-
sarily, follow the commitment of prisoners by justices of the
peace, and as criminal informations are comparatively rare in
this country, we will consider first the nature of that body,
both with regard to their duties in holding preliminary inves-
tigations, and also with regard to their powers of summary
conviction ; then proceedings on indictments and criminal
informations will be treated of ; after which, various questions
of practice, relating to the trial and the steps subsequent
thereto, will be discussed.
Justices of the peace were first appointed in the reign of
Edward I., (a) but with powers much less extended than
have since been conferred on them.
By 29 Vic., c. 12, the oath of qualification of a justice
may be taken either before some other justice of the peace,
or before any person assigned by the governor to ad-
minister oaths and declarations, or before the clerk of the
peace of the district or county for which the justice intends
to act ; and all such oaths theretofore taken before the last
mentioned officer, or before a commissioner assigned by
Dedimus potentatem to administer oaths, or before a person-
la) Reg. v. Atkinson, 17 U. C. C. P. 300, per J. Wilson, J.
404 THE CRIMINAL LAW OF CANADA.
acting as, but not being, a duly qualified justice of the
peace for the same county, are confirmed, (b)
The fact of a justice acting as such is prima facie evidence
of his appointment to the office ; (c) and the mere produc-
tion of a certificate, purporting to be under the hand and
seal of the clerk of the peace, that there is no declaration
of the justice's qualification filed in his office as required
by the above statute, is not sufficient to rebut the presump-
tion, (il)
Under the commission of the peace, justices have a gener-
al power for conservation of the peace, and the apprehen-
sion of all persons charged with indictable offences, and, on
examination, to discharge, admit to bail, or commit for
trial ; (e) and their duties with regard to the same are pre-
scribed by the 32 & 33 Vic., c. 30.
A justice's jurisdiction is confined to the county for which
"he -has been appointed, (/) and of course he has no power
to administer an oath or take any examination within the
limits of a foreign country, (g) And where the justice has
no jurisdiction, the consent of the prisoner cannot confer
it. (ft)
There should properly be an information laid ; (i) but this
is not essential to confer jurisdiction to hold a prelimin-
ary investigation ; for so long as the prisoner is before the
magistrate, the manner of his getting there is of little mo-
ment. (/)
Though a justice of the peace have jurisdiction over an
offence in other respects, still, special circumstances, as, for
(ft) Sec. 2 ; and see Herbert q. t. v. Dowswell, 24 U. C. Q. B. 427.
(c) Berryman v. Wine, 4 T. R. 366.
(d) Reff. v. White, 21 U. C. C. P. 354.
(e) Connors v. Darling, 23 U. C. Q. B. 543, per Gowan, J.
(/) Reg. v. Wheton, 3 All^n, '269.
(g) Nary v. Owen, Ber. 377.
(A) Rpfi. v. Hebert, 5 Revue. Lerj. 424.
(i) Caudle v. Ferguson, 1 Q. B. 889 ; Friel v. Ferguson, 15 U. C. C. P.
594, per A. Wilson, J.
(j) Rej. v. Mason., 29 U.C.Q.B. 431 ; Reg. v. Hughes, L. R. 4 Q. B. D.
€14.
PRACTICE. 405
instance, where he is interested in the prosecution, (k) will
render him incompetent to act ; and any steps he may take
in violation of this rule will be set aside. (/)
But as a general rule, the justice should decide any ques-
tion involving an exception to his jurisdiction, or an exemp-
tion from any other cause, in order that the superior court
may judge of the sufficiency of the same, (m)
Under R S. 0., c. 72, s. 4, a police magistrate for a city is
ex officio a justice of the peace for the county in which such
cuv lies. Under this section an alderman is not ex ojficio
legally authorized to act as a justice of the peace until he has
taken the oath of qualification as such, (ri)
The plain import of the statute is to establish certain local
courts, having limited criminal jurisdiction, and to define the
respective jurisdictions of the police magistrate of a city
situate within a county, and of the justices of the peace of
that county, in respect of oifences committed within the city
and coanty respectively, (o)
By the 38 Vic., c. 47, any person charged with any offence
in Ontario for which he might be tried at the General Ses-
sions, may, with his consent, be tried by a police or stipen-
diary magistrate, and if found guilty, sentenced in the same
manner as he might have been before the sessions.
Where a statute confers summary jurisdiction on two jus-
tices, or any stipendiary or police magistrate, a conviction by
the latter must show that he is such a magistrate, (p) And
it may be doubted whether, under such circumstances, one
justice could sit for such a magistrate, or whether two would
not be necessary, (q) And clearly, if not sitting for a magis-
trate, a conviction by one would be bad. (r)
(k) Reg. \. Simmon*, 1 Pugaley, 158 ; Rvj. v. MiUcdge, L. R. 4 Q. B. D.
332 ; Reg. v. Jfey»r, L. R. 1 Q. B. D. 173 ; Reg. v. Gibbon, L. R. 6 Q. B. D.
169 ; Re Holman, 3 Russell & Chesley, 375.
(/) Reg v. Simmon*, supra.
(m) Re Dubord, 14 L. C. J. 203.
(n) Reg. v. Boyle, 4 U. C. P. R, 255.
(o) Re>j. v. Morton, 19 U. C. C. P. 27, per Gicynne, J.
(p) Reg. v. Clancey, 1 U. C. P. R.; and see 32 & 33 Vic., c. 28.
(•H Ibid.; see 36 Vic., c. 43. s. 305 ; and see Re. Crow, 1 U. C. L. J. N. S.
302; 1 L. C. J. 189.
(r) Re Croic, supra.
406 THE CRIMINAL LAW OF CANADA.
Where a statute directs justices of a division, or near a
certain place, to do a certain act, any justice of the county
may do it. (s)
It is no objection under K. S. 0., c. 3, that a conviction by
justices for an offence tried in the county is signed by one of
the justices, in a city having a police magistrate. (£)
Where a statute gives justices power to make by-laws and
impose penalties, they cannot, without express authority from
the legislature, levy such penalties by distress, (u]
Proceedings under the Rev. Stat., c. 146, s. 3 (N. B.), for
knowingly solemnizing a marriage where either party is under
twenty-one, without the consent of the father, are properly
taken before two justices. The proceedings in such a case
need not be in the name of the Queen, (v)
It has been held in New Brunswick, that where a sum-
mons has been issued by two justices, the cause must be
tried before the same two justices, unless there be some
special reason for not doing so, (w) which must appear on
the face of the conviction, or at least it must show that the
absent justices consented to it. (x) But one justice may
issue the summons on a complaint, (y) and grant an adjourn-
ment, (2) though the penalty is recoverable before two
Justices.
Where two justices have heard a case, they must concur
in their judgment ; (a) but in a case before three, judgment
may be rendered by two. (b) And the fact that one justice
issued the summons in a matter over which he, sitting alone,
might have jurisdiction, does not render him sole judge of
the case ; but if he allow other justices to sit with him, they
(s) Reg. v. Wheton, 3 Allen, 269.
(t) Langwith v. Dawson, 30 U. C. C. P. 375.
((u) Kirkpatrick v. Asken, Rob. & Jos. Dig. 1992.
(v) Reg. v. Gallant, 5 Allen, 115.
(w) Weeks v. Boreham, 2 Russell & Chesley, 377.
(x) Dubord v. Boivin, 14 L. C. J. 203.
(y) Reg. v. Simmons, 1 Pugsley, 158.
(z) Ex parte Holder, 6 Allen, 338.
(a) tit. Gemmes v. Cfierrier, 9 L. C. J. 22.
(b) Ex parte Lumley, 9 L. C. J. 169 ; ex parte Trowley, 9 L. C. J. 169 ;
«x parte Brodeur, 2 L. C. J. 97.
PRACTICE. 407
have an equal voice with him in determining the question
before them, (c)
On the examination of any person before a justice, on a
charge of an indictable offence, with a view to his commitment
for trial, no person has any right to be present without the
permission of the presiding justice, (d) But it is different
where the justices are sitting to try the offender under the
Summary Conviction. Act. (e)
Where the magistrate or justices are not simply holding a
preliminary investigation, but proceed to adjudicate finally
under the 32 & 33 Vic., c. 31, it seems necessary, in order to
confer jurisdiction on them, that an information should be
properly laid, (/) for by the express words of the statute, (g}
their power of final adjudication is limited to " cases where
an information is laid before one or more of Her Majesty's
justices of the peace," etc. The power of justices to convict
summarily results only from legislative sanction, and in all
cases such authority must be shown, (h) and the maxim,
omnia presumuntur rite esse actu, has no application to the
acts of inferior courts. Therefore, on a prosecution for a
penalty under a by-law of a corporation, the by-law must be
proved, that the jurisdiction of the justices may appear on the
proceedings, (i) And a conviction by summary process for an
aggravated assault, committed on a voting day at an election
for the House of Commons of Canada, was in Quebec held
to be void, as the statute which constitutes the offence renders
it punishable by indictment ; and the offence is not included
in those mentioned in the 32 & 33 Vic., c. 32, ss. 2 and 3. (j )
(c) Reg. v. Milne, 25 U. C. C. P. 94.
(d) 32 & 33 Vic., c. 30, s. 35.
(e) 32 b 33 Vic., c. 31, ss. 29 and 30.
(/) Caudle v. Ferguson, 1 Q. B. 889.
(g) Friel v. Ferguson, 15 U.U.C.P. 534 ; Appleton v. Lepper, 20U.C.C.P.
142, per Hagarty, J.; Powell v. Williamson, 1 U. C. Q. B. 154 ; Ex parte
Eagles, 2 Hannay, 53-4, per Ritchie, C. J.; Connors v. Darling, 23 U. C.
Q. B. 546.
(h) Bross v. Huber, 18 U. C. Q. B. 286, per Robinson, C. J. ; Reg. T.
O'Leary, 3 Pugsley, 264.
(i) Reij. v. Wortman, 4 Allen, 73 ; Rex v. AH Saints, Southampton, 7 B.
A C. 785.
(j) Reg. ex rel. Larouche v. Lenneux, 5 Q. L. R. 261; as. 2 and 3.
THE CRIMINAL LAW OF CANADA.
But the objection to the want of an information raust be
taken before the investigation is proceeded upon ; for if the
party appears and defends the suit without an information
being laid or the issue of a summons, the objection cannot
afterwards avail him. (k) And the rule is applicable in the
case of a defective information or summons. (I)
Unless a statute require that the information should be ia
writing, or on oath, it need not be so. (m)
An information stating that a woman did " unlawfully
take and carry away from his (the informant's) protection
her daughter, S. W.," does not give a justice authoiity to issue
a warrant, (n)
Neither does a complaint charging a " clandestine re«-
moval of property ;" the utmost that it does justify is the
issuing of a summons under the Act relating to petty
trespasses, (o)
An information charging that the defendant did on, etc.,
" obtain by false pretences from complainant the sum of five
dollars, contrary to law," omitting the words " with intent to
defraud," might by intendoient be held to charge the statu-
tory offence. ( p)
If a statute gives summary proceedings for various of-
fences, specified in several sections, an information is bad
which leaves it uncertain under which section it took
place, (q)
ID summary proceedings for assault it is not necessary
that the fact that the complainant requested the case to be
tried summarily should appear on the proceedings, if the
form given by the statute be followed, (r) And even when
(k) Exparte Wood, 1 Allen, 422; Reg. v. McMillan, 2 Pugsley, 110;
Reg. v. O'Leary, 3 Pugsley, 264.
(1) Ex parte Coll, 3 Allen, 48 -t Crawford v. Beattie, 39 U. C. Q. B. 13 ;
Sloness v. Lake, 40 U. C. Q. B. 320.
(m\ Friel v. Ferguson, 15 U. C. C. P. 594 ; Re Conklin, 31 U. C. Q. B. 168,
per A. Wilson, J.; see s. 24, 32 & 33 Vic., c. 31.
(n) Stiles v. Brewster, Stev. Dig. 811.
(o) Mc.Nrllis v. Gartshore, 2 U. C. C. P. 471, per McLean, J.
(p) Crawford v. Beattie, 39 U. C. Q. B. 13.
(q) Thompson and Durnford, 12 L. C. J. 287, per Mackay, J.
(r) Reg. v. Shaw, 23 U. C. Q. B. 616.
PRACTICE. 409^
not, after conviction it will be intended that such request
was made, (f)
In a complaint for breach of a by-law, it is not necessary
to insert the by-law itself, or to make a distinct allegation
that it is in force.
A complaint may be made and a summons issued for two
offences, provided the defendant has not been arrested in the
first instance, and a conviction for one of such offences speci-
fying it is valid. Service of a copy of a summons, issued
by a magistrate, followed by appearance of the defendant,
is sufficient, (t)
Where two or more persons may commit an offence under
an Act, the information may be jointly laid against them, (u)
But where the penalty is imposed upon each person, it is
wrong to convict them jointly, even when they are charged
on a joint information, (v)
If either the penalty be imposed by the Act on each
person convicted (even where the offence would, in its own
nature, be single), or if the quality of the offence be such
that the guilt of one person may be distinct from that of the
other, in either of these cases the penalties are several, (w)
At Petty Sessions, an information was laid against two-
defendants, charging that they did unlawfully use a gun
and kill two pheasants, contrary to the 1 & 2 Wm. IV., c.
32, s. 3. Each claimed to be tried separately, in order to
call the other as a witness. The justices refused, and heard
the charge against both together, and convicted them, and
a conviction was drawn up separately against each defend-
ant imposing a penalty of £3 ; and it was held that it was
in the discretion of the justices whether they would hear
the charge separately or not; that as the penalty was im-
posed on every person acting in contravention of the statut e
each defendant was separately liable to the whole penalty ;
(s) Reff. v. O'Leary, 3 Pugsley, 264.
(t) Corljnan v. Harbor Comrs. Montreal, 5 L. C. R. 479.
(u) Retj. v. Littlechild, L. R. 6 Q. B. 295, per Lush, J.
(v) Ibid. 295, per Mtllor, J.
(w) Ibid. 296, per Hannen, J.
410 THE CRIMINAL LAW OF CANADA.
and that separate convictions were right, although the
prisoners were charged on a joint information, (x)
Where a limited authority is given to justices of the
peace, they cannot extend their jurisdiction to cases not
within it, by finding as a fact that which is not a fact, (y)
So neither does a discretion, whether they will do a par-
ticular thing, enable them, having heard the case, to refuse
a warrant, because they think the law under which they
are called upon to act is unjust. (2)
Where the charge laid, as stated in the information, does
not amount in law to the offence over which the justice has
jurisdiction, his finding the party guilty by his conviction,
in the very words of the statute will not give him jurisdic-
diction. The conviction would be bad on its face, all the
proceedings being before the court, (a)
In a prosecution before justices, their jurisdiction is
ousted by the accused setting up a claim of right ; (b) yet
that claim must be bow a fide, and the mere belief of the
accused, unsupported by any ground for the claim, (c) or a
claim of right, which cannot by law exist, is insufficient, (c
And in such case they cannot inquire into or determine
summarily any excess of force alleged to have been used ii
the assertion of title, (e) or the validity of the claim set
up. (/) Proceedings by indictment are then the proper
course, (g)
A complaint for assault under s. 43 of the 32 &; 33 Vic.,
c. 20, cannot be withdrawn by the complainant, even wit!
the consent of the justice ; (A) for the charge has become
(x\ Reg. v. Littlechild, supra.
(y) The ffaidee, 10 L. C. R. 101 ; The Scotia S. V. A. R. 160.
(z) Reg. v. Boteler, 4 B. & S. 959 ; 33 L. J. (M. C.) 101.
(a) Re McKinnon, 2 U. C. L. J. N. S. 327, per A. Wilson, J.
(b) Reg. v. O'Brien, 5 Q. L. R. 161.
(c) Reg. v. Cridland, 7 E. & B. 853 ; 27 L. J. (M. C.)28 ; Reg. v. Stimj.
son, 4 B. & S. 307 ; 32 L. J. (M. C.) 208.
(d) Hudson v. McHae, 4 B. & S. 585 ; 33 L. J. (M. C.) 65 ; Hargreai
v. Deddanes, L. R, 10 Q. B. 582.
(e) Reg. v. Pearson, L. R. 5 Q. B. 237.
(/) Reg. v. Davidson, 45 U. C. Q. B. 91.
(g) Reg. v. Pearson, L. R. 5 Q. B. 239, per Lush, J.
(A) Re Conklin, 31 U. C. Q. B. 160.
PRACTICE. 411
public matter, and the person charged has the right to have
it tried ; and further, because the complainant has made his
election to have the case so disposed of, from which he can-
not withdraw, (i)
If justices hear the case but decline to conclude it, as
they should have done, they will be ordered to hear it; (/)
so if they refuse to hear the whole case, and dismiss the
summons, (k) But if justices, in their own discretion,
refuse to hear a complaint which is the subject of an in-
dictment, the court will not compel them to go on. (I)
The fact that the defendant pleads guilty to the charge
cannot deprive the justice of the discretion he has to adju-
dicate on the case, under s. 46 of the last named statute.
The adjudication under that statute means the justice's
rinal judgment or sentence to be pronounced, (m) If the
justice adjudicate, the defendant will be entitled to the cer-
tificate, under s. 44, and if he do not adjudicate, there will
be no certificate, and so there will be no bar to any subse-
quent proceedings, (ri) There is no right to a certificate
unless there has been a hearing upon the merits. (0)
A certificate under s. 44, given by a justice on a charge
of assault and battery, is a defence to an indictment, found-
ed on the same facts, charging an assault and battery,
accompanied by malicious cutting and wounding, so as to
cause grievous or actual bodily harm, (p) So, a former
conviction by a justice is a bar to an indictment for felonious
stabbing, (q) The certificate is also a bar to an indictment
for assault, with intent to commit rape, (r)
(i) Re Conkhn, 31 U. C. Q. B. 168, per Wilson, J.; see also Tunnidife v.
Tedd, 5 C. B. 553 ; Vaughton and Bradshaw, 9 C. B. N. S. 103.
( j) Rex v. Tod, Str. 531 ; but see Reg. v. Shortiss, 1 Russell & Geldert, 70.
(k) Rex v. Justices of Cumberland, 4 A. & E. 695.
(I) Reg. v. Higham, 14 Q. B. 396 ; Re Conklin, supra, 167, per Wilson, J.
(m) Re Conklin, 31 U. C. Q. B. .166, per Wilson, J.
(n) Ibid. 166, per Wilson, J.; Hartley v. Hindmarsh, L. R. 1 C. P. 553.
(o) Re Conklin, 31 U. C. Q. B. 168, per Wilson, J.
{q) Ibid. 165, per Wilson, J. ; R^. \. Ebrington, 1 B. & S. 688.
(q) Reg. v. Walker, 2 M. & Rob. 446 ; Re Conklin, supra, 165, per Wilson, J .
<r) Ibid.; Re Thompson, 6 H. & N. 193 ; 6 Jur. N. S. 1247.
412 THE CRIMINAL LAW OF CANADA.
An information or complaint may be amended, but if on
oath, it must be re-sworn, (s)
One C. appeared to an information charging him with an
assault, and praying that the case might be disposed of
summarily, under the statute. The complainant applied to
amend the information by adding the words " falsely im-
prison." This being refused, the complainant offered no
evidence, and a second information was at once laid, in-
cluding the charge of false imprisonment. The magistrate
refused to give a certificate of dismissal of the first charge
or to p oceed further thereon, but endorsed on the informa-
tion " Case withdrawn by permission of court, with a view
of having a new information laid." It was held that the
information might be amended, but that, as the original,
was under oath, it must be re-sworn. Under the circum-
stances, the more correct course would seem to have been to
go on with the original case, and, under sec. 46, to refrain
from adjudicating, (t)
A defective information may be aided by evidence, (u) and
under s. 5 of the 32 & 33 Vic., c. 31, a variance between the
information, complaint, or summons, and the evidence adduced
on the part of the informant or complainant, is not fatal if
the defendant has not been deceived or misled thereby, or has
no defence on the merits, (v)
The object of the legislature, in this provision, seems to
have been to prevent the failure of justice in cases where, by
the old law, very great technical precision was required, aud
that before a tribunal where great legal accuracy could hardly
be expected, (w) It may be doubtful, under the terms of the
section, whether the question of the party having been
misled is not merely for the discretion of the justices, as to
adjourning the hearing to a future day. (x)
(s) A'e Conklin, supra.
. (I) Ibid. 160.
(u) Key. v. Williams, 37 U. C. Q. R. 540.
(v) See ejc parte Dunlop, 3 Allen, 281 ; ex parte Parks, 3 Alleo, 237 ; aee
also sees. 21 and 22.
(w) Ex parte. Dunlop, 3 Allen, 283-4, per Carter, C. J.
(x) Ibid. 284, per Carter, C. J.
PRACTICE. 413
But it would seem that this section must be held to apply
only to informations made by persons who have authority to
make them, and not to give vitality to an information made
by a person without any authority, and, in fact, to give the
justice jurisdiction over the matter when otherwise he would
not have it. (y)
An information, by a person who has no authority to make
it, is the same as no information, (z)
An information, to be tried before two justices, is good
though only signed by one. (a)
As soon as the information has been properly laid, the
justice issues his summons or warrant thereon, and proceeds
to a hearing of the case. The practice as to this is fully set
out in the 32 & 33 Vic., c. 30 and 31 ; the former applying
to indictable offences, and providing for the issue of a war-
rant in the first instance ; the latter to summary convictions,
and requiring, before the issue of a warrant of arrest, the ser-
vice of a summons requiring the attendance of the defendant
The warrant of a justice is only prima fade evidence of its
contents ; and the recital that an information was laid prior
to its issue may be rebutted, (b)
Although a warrant to a peace officer, by his name of
office, usually gives him no authority out of the precincts of
his jurisdiction, yet such authority may be expressly «iv«i
on the face of the warrant. Therefore, where a warrant was
directed to the constable of Thorold, in the Niagara District,
authorizing him to search the plaintiffs house, in the town-
ship of I/nith, in the same district; it not appearing that
there was more than one person appointed to the office of
constable of Thorold, it was held that the direction by
•description was good, (c)
(y) Ex parte Eagles, 2 Hannay, 54, per Ritchie, C. J.
(z) Ibid.
(a) Fidconbridge q. t. v. Tourangeau, Rob. Dig. 260.
\b) Frifl v. Ferguson, 15 U. C. C. P. 584 ; see also Appletott v. Lepper. 20
U. C. C. P. 138.
(c) Jones v. Koss, 3 U. C. Q. B. 328.
414 THE CRIMINAL LAW OF CANADA.
A warrant under 32 & 33 Vic., c. 31, is not bad though
issued in form B. instead of form C. (d)
A warrant, though irregular, may be a justification to the
officer who executes it, because he is not to canvass the
legality of the process he executes, or set up his private
opinion against that of the justice (e)
A warrant can be backed by a magistrate of a foreign
county only " upon proof being made on oath or affirmation
of the handwriting of the justice who issued the warrant,"
and an endorsement without such proof is illegal. (/)
Where an information contained every material averment
necessary to give a magistrate jurisdiction to make an order
for sureties to the peace, but contained also matter which it
was contended so qualified the other averments as to render
them nugatory, it was held that this was a judicial question
for the magistrate to decide, and, therefore, that in issuing
his warrant for the appearance of the accused he was not
acting without jurisdiction, even though a superior coui
might quash his order to find sureties, (g)
The prisoner being before the justice, he must proceed ii
the manner pointed out by the statute above mentioned
witnesses must be examined whose evidence should be taker
in writing ; (h} for if no witnesses are examined, the commit
ment will be illegal.
The plaintiff was arrested upon a warrant issued by the
defendant, a magistrate, and brought before him. Defendant
examined the plaintiff, but took no evidence, said he coul(
not bail, and committed the plaintiff to gaol on a warrant
reciting that he was charged before him, on the oath of W.
H., with stealing. The plaintiff did not ask to have anj
hearing or investigation, or produce, or offer to procure, an]
evidence on his behalf, or to give bail to the charge ; but it
(d) Reg. v. Perkins, Stev. Dig. 810.
(e) Ovens v. Taylor, 19 U. C. C. P. 56, per Hagarty, C. J. ; Painter v.
Liverpool Gas Co., 3 A. & E. 433.
(/) Jteid v. Maybee, 31 U. C. C. P. 384.
(g) Sprung v. Anderson, 23 U. C. C. P. 152.
(h) lieg. v. Fkmnigan, 32 U. C. Q. B. 593.
PRACTICR 415
was held that the commitment, without appearance of the
prosecutor or examination of any witnesses, or of the plain-
tiff, according to the statute, or any legal confession, was an
act wholly without, or in excess of, the jurisdiction of the
magistrate, and illegal, (i)
Where a justice commences the examination of a party on
a criminal charge, and after hearing a portion of the evidence
refuses to proceed further, the prosecutor may, nevertheless,
prefer an indictment against the prisoner before a grand
jury. (/)
The justice may remand the prisoner from time to time
for such period as may be reasonable, not exceeding eight
clear days at any one time ; and the remand must be in
writing if for more than three clear days, (k)
The evidence taken, the justice, if not a case for summary
conviction, should either discharge the prisoner or commit
him for trial at the next court of competent criminal juris-
diction. But a discharge of a prisoner by one justice does
not operate as a bar to the same person being again brought
up before another justice, and committed upon the same
charge, upon the same or different evidence. (/)
If the proceeding be by virtue of the summary powers
of the justice, a conviction should be drawn up, and great
care should be taken in its preparation.
The 32 & 33 Vic., c. 31, s. 50, enacts that " in all cases of
conviction where no particular form of conviction is given
by the Act or law creating the offence, or regulating the
prosecution of the same, and in all cases of conviction upon
Acts or laws hitherto passed, whether any particular form
of conviction has been thereon given or not, the justice or
justices who convict, may draw up his or their conviction^
on parchment or on paper, in such one of the forms of con-
viction (I., 1, 2, 3,) as may be applicable to the case, or to
(i) Connors v. Darling, 23 U. C. Q. B. 541.
(j) Rrg. v. Duvaney, 1 Hannay, 571.
(k) 32 & 33 Vic., c. 30, ss. 41 and 42.
(I) Reg. v. Morton, 19 U. C. C. P. 26, per Gwynne, J.
416 THE CRIMINAL LAW OF CANADA.
the like effect." So that it would be advisable hereafter to
draw up all convictions in conformity with this Act. If the
forms there given be not followed, the conviction to be good
must either conform to those given in the particular statute
under which proceedings are had, (m) or else be sufficient
according to the general rules of law applicable in their
^construction, (ri)
But the mere omission of immaterial words in a statutory
form, such as " to be paid and applied according to law " i»
the clause imposing a fine, (0) or words added which do n<*
materially alter the meaning of the form, such as inserting
the name of the informer when not required, (p) will not
render the conviction bad. (q)
Where the conviction does not follow any statutory form,
it must be legal according to the principles of the common
law ; and in the first place should state that the party pro-
secuted had been summoned, and that he appeared, and that
the evidence was taken iri his presence, (q)
The name of the informant or complainant must also, in
some form or other, appear on the face of the conviction, (r)
The place for which the justice acts must be shown, and it
must be alleged that the offence was committed within the
limits of his jurisdiction, or facts must be stated which give
jurisdiction beyond those limits, (s) But to state the town-
ship without alleging the county is sufficient, as the division
of counties into townships is made by statute, of which
the courts take judicial notice, (t]
The offence of which the defendant is convicted must be
(m) Reg. v. Shaw, 23 U. 0. Q. B. 618 ; Reid v. McWhinnie, 27 U.C.Q.B.
289 ; Ren. v. Hyde, 16 Jur. 337 ; Re Allison, 10 Ex. 561 ; ex parte Goldiag,
1 Pugsley & B. 47.
(n) Moore v. Jarron. 9 U. C. Q. B. 233.
(o) Reg. v. Perkins, Stev. Dig. 810.
(p) Ex parte Eagles, 2 Hannay, 53 ; Reg. v. Johnson, 8 Q. B. 102.
(ff) Moore v. Jarron. 9 Q. C. Q. B. 233.
(r) Re Hennery, 8 U. C. L. J. 299.
(s) Ren. v. Shaw, 23 U.C.Q.B. 618, per Draper, C. J. ; Rex v. Edwatds,
1 Ea. 278.
(t) Reg. v. Shaw, 23 U. C. Q. B. 616.
PRACTICE. 417
stated with certainty, so as to be pleadable in the event of a
second prosecution. (11) And a conviction " for wilfully
damaging, spoiling, and taking, and carrying away six bushels
of apples of the said Rogers, whereby the defendant com-
mitted an injury to the said goods and chattels" was held
not to contain a statement of an offence for which a convic-
tion could take place, (v)
And where an information in a conviction charged the
defendant with measuring or surveying lumber intended for
exportation, in violation of the Act of Assembly, 8 Vic., c. 81,
and the evidence referred to three distinct acts, out it did
not appear for which of them the defendant had been con-
victed, it was held that the conviction was bad for uncer-
tainty, (w)
So where a conviction purporting to be made under Con
Stats. Can., c. 93, s. 28, charged that defendant, at a time
and place named, wilfully and maliciously took and carried
away the window sashes out of a building owned by one C.,
against the form of the statute, etc., without alleging damage,
injury or spoil to any property, real or personal, or finding
damage to any amount ; it was held that the conviction
should clearly show whether the damage, injury or spoil
complained of, is done to real or personal property, stating
what property ; and in consequence of s. 29, where a private
person is prosecutor, should also show the amount which the
justice has ascertained to be reasonable compensation for such
damage, injury or spoil, (x)
The offence created by the statute is damaging property,
not taking and carrying it away, (y)
A conviction in the alternative is bad, as, for instance,
adjudging the defendant to be imprisoned for twenty-five
(«) Reg. v. Hoggard, 30 U. C. Q. B. 152.
(v) Eastman v. Reid, 6 U. C. Q. B. 611.
(w) Ret), v. Steven*, 3 Kerr, 356.
(x) Re,}, v. Casvxll, 20 U. C. C. P. 275.
iy) Ibid.
A A.
418 THE CRIMINAL LAW OF CANADA.
days, or payment of £5 and costs, (z) So a conviction by
two justices, for taking lumber feloniously or unlawfully, is
bad. (a) For if the act be unlawful only, not felonious it
should be shown how it is unlawful, and it should show also
that the offence comes under our statute, which gives the
justices power to convict. (6) The name of the owner should
also be stated, and not merely that the lumber is " the pro-
perty of another." (c)
The petitioner was convicted by a court martial, held at
the city of Montreal on the 26th, 27th, 28th and 29th days of
March, 1867, and on the 1st and 2nd days of April, 1867, on
the following charge : " for disgraceful conduct, in having at
Montreal, Canada East, some time between the 17th January
and 16th March, 1867, fraudulently embezzled or misapplied
about five hundred cords of wood, government property in-
trusted to his charge as an assistant commissariat store-
keeper, and which, at the latter date, was found deficient/' and
thereupon, on the said conviction, the court forthwith sen-
tenced the petitioner, among other penalties, to be imprisoned
with hard labor for six hundred and seventy-two days.
The court held that it did not appear there had been pre-
ferred against the petitioner any specific charge, nor any
conviction of him upon a specific or positive charge, but a
conviction in the alternative, one of the two being no offence
created by the 17th article of the Mutiny Act, without any
certainty as to either of the two charges in the disjunctive,
and that this was a matter of substance, and therefore the
warrant of commitment was null and void, and the petitioner,
who had been committed to prison, was entitled to be set at
liberty, (d)
In describing the offence in convictions, it is not sufficient
to state, as the offence, that which is only the legal result of
certain facts, but the facts themselves must be specified, so
(z) If eg v. Wortman, 4 Allen, 73.
(a) Re,,, v. Craiig, 21 U. C. Q. B. 552.
(6) Ibid.
(c) Ex parte Holder, 6 Allen, 338.
(d) Re Moore, 1 1 L. C. J. 94.
PRACTICE. 419
that the court may judge whether they amount in law to the
offence. And the conviction must contain the judgment on
which it is based, and a statement that the conviction results
from proof that the defendant has sold spirituous liquors
without license is not sufficient, (e)
Thus a conviction by a magistrate stated that defendant
did, on, etc., at, etc., being a public highway, use blasphemous
language contrary to a certain by-law passed almost in the
words of the Con. Stats. U. C.,c. 54, s. 282, subs. 4, but there
was no statement of the particular language used ; it was held
bad, as the statement in the conviction was only the legal
result of certain facts, and the facts themselves were not set
out. (/) The particular words used should have been stated.
As a general rule, where an Act in describing the offence
makes use of general terms, which embrace a variety of cir-
cumstances, it is not enough to follow in a conviction the
words of the statute ; but it is necessary to state what par-
ticular fact prohibited has been committed. But in framing
a conviction, it is in general sufficient to follow the words of
the statute, where it gives a particular description of the
offence. Where a particular Act creates the crime, it may
be enough to describe it in the words of the legislature, but
where the legislatuie speaks in general terms, the conviction
must state what act in particular was done by the party
offending, to enable him to meet the charge, (g)
A conviction which charged that the prisoner did, " unlaw-
fully and maliciously, cut and wound one Mary Kelly, with
intent to do her grievous bodily harm," though not sufficient
to charge a felony under s. 17 of 32 & 33 Vic., c. 20, is good
for a misdemeanor under s. 19, the statement of the intent
being rejected as surplusage, (h) And the police magistrate
has jurisdiction over both these offences, (i)
(e) Dubolrd \. Boivm, 14 L. C. J. 203.
(/) Re Donnelly, 20 U. C. C. P. 165.
(</) Re Donnelly, 20 U. C. C. P. 167, per Hagarty, C. J. ; and see Rex v.
Sparling, 1 Str. 497 ; Keg. v. Scott, 4 B. & S. 368 ; Keg. v. Nott, 4 Q. R 768
as to particular applications of these principles.
(A) fie Boucher, 4 Ont. App. 191.
(t) Ibid.
420 THE CRIMINAL LAW OF CANADA.
A conviction under R S. 0., c. 142, s. 40, which omitted
to state that the party practised " for hire, gain or hope of
reward," was quashed, (ii)
A conviction under a by-law must show the by-law, (j) ard
also by what municipality it was passed, (&) that the court
may judge of its sufficiency ; and it is doubtful whether its
date must not appear, (kk)
If the statute on which the by-law is based does not clearly
give authority to fine or imprison, a conviction imposing a
penalty will be quashed. (/)
And where a conviction purported to be for an offence
against a by-law, but the by-law showed no such offence, it
was quashed, and would not be supported as warranted by
the general law. (m)
Where it appears by the conviction that the defendant has
appeared and pleaded, and the merits have been tried, and
the defendant has not appealed against the conviction, it
cannot be vacated for any defect of form whatever. The
construction must then be such a fair and liberal one as is
agreeable to the justice of the case, (n)
It is no ground for quashing a conviction that evidence has
been improperly received of a similar offence on another day
than that charged, if there is ample evidence without it to
sustain the conviction, and the prosecution made no use of it
against the prisoners, (o)
And the court will not quash a conviction on the weight
or upon a conflict of evidence, but there must be reasonable
evidence to support it, such as would be sufficient to go to
the jury upon a trial, (p)
(ii) Reg. v. ffersel, 44 U. C. Q. B. 61.
(?) Ren. v. Ross, Rob. & Jos. Dig. 1979.
(t) Re<i. v. Osier, 32 U. C. Q. B. 324.
(kk) IbM.
(I) Ex partc. Brown, 18 L. C. .). 194.
(m) Re Bates, 40 U. C. Q. B. 284 ; and see Reg. v. Washington, 48 U. C.
Q. B. 221.
(n) 32 & 33 Vic., c. 31, a. 73 ; Re.g. v. Comoell, 33 U. C. Q. B. 310, per
Wilson, J.
(o) Rey. v. IfoiflwBR, 3 Pugsley, 493.
(p) Reg. v. Howarth, 33 U. C. Q. B. 537.
PRACTICE. 421
In Quebec a conviction against a bailiff for exacting more
than his legal fees was quashed, because no precise date of
the offence was given, (q)
A conviction on a charge of having disturbed the public
peace by insulting a person and by committing an assault
upon him, and by crying out and threatening to beat hirur
was quashed, as it did not appear to be warranted by any
law or statute in such case provided, (r) But the authority
of this may be doubted.
By the 32 & 33 Vic., c. 31, s. 25, every complaint shall be
for one matter of complaint only, and not for two or more
offences. Therefore, a conviction for that the defendant " did
in or about the month of June, 1880, on various occasions "'
commit the offence charged in the information, and a fine
was inflicted " for his said offence," was held bad. (s)
A conviction for a penalty, to be paid " forthwith within
thirty days," is good, (t)
Where, by a first statute, the penalty of two months' im-
prisonment, " with or without hard labor, " was imposed, and
by a second statute the time was extended to six months,
without mentioning hard labor, it was held that the altera-
tion was equivalent to a new statute, and that a conviction
under tbe latter, imposing six months' imprisonment with
bard labor, was bad. (u)
The legal effect of reversing or annulling a conviction is to
render the sentence and imprisonment illegal, and not as for
a crime. The rule has been laid down that when judgment,
pronounced upon a conviction, is falsified or reversed, all
former proceedings are absolutely set aside, and the party
stands as if he had never been at all accused ; restored in his
credit, his capacity, his blood and his estates, with regard to-
which last, though they be granted away by the Crown, yet
(q) Ex parte NtM, 6 L. C. R. 488.
(r) EJC par/e Houleau, 17 L. C. J. 172.
(a) Reg. v. Clennan, 8 U. C. P. R. 418.
(t) Rftj. v. McGowan, 6 Allen, 64.
(u)Expartf JKi//kt/n.s, 19 L. C. J. 1'20.
422 THE CRIMINAL LAW OF CANADA.
the owner may enter upon the grantee with as little cere-
mony as he might enter upon a disseizor. (v)
Where a conviction, which had been affirmed on appeal to
the sessions, was brought up by certiorari, contrary to the 32
& 33 Vic., c. 30, s. 71, as amended by the 33 Vic., c. 27, s. 2,
which enacts that in such case no certiorari shall issue ; it
was held that although the conviction was clearly bad, the
court could not quash it, for the case was one in which the
justice had jurisdiction, and the court were not asked to do
anything to enforce the conviction, and no motion had been
made to quash the certiorari. (w)
It would seem that a conviction by a justice may be
quashed, unless it is sealed, (x)
A conviction will be quashed, if it appears that the defend-
ant was not put on his defence or allowed to cross-examine
the witnesses, (y) or where the justice has no jurisdiction. (2)
So, if the summons state no place where the offence was
committed, although the place appear on the face of the con-
viction ; (a) and a conviction for two offences incurring penal-
ties should specify for each offence the time, place, and
penalty. (ft)
Although a conviction is a defence to another proceeding
for the same offence, yet a conviction fraudulently obtained
before a different magistrate, for the purpose of defeating the
prosecution, cannot avail for that end. (c)
Justices have no power to award costs on conviction unless
expressly given them by statute, (d) and where they are so
empowered, they must specify the amount, (e)
(v) Davis v Stewart, 29 U. C. Q. B. 446, per Wilson, J.; 4 Bla. Com. 393.
(w) Reg. v. Johnson, 30 U. C. Q. B. 423.
(x) Haacke v. Adamson, 14 U. C. <J. P. 201 ; see also Macdonald v.
Stuckey, 31 U. C. Q. B. 577 ; 32 & 33 Vic., c. 31, a. 42.
(y) EJC parts Lindsay, Rob. Dig. 73.
(z) Reg. v. Taylor, 8 U. C. Q. B. 257.
(a) Ex parte Leonard, 6 L. C. R, 480.
(b) Ex parte Paii/e, 18 L. C. J. 119.
(c) R<g. v. Roberts, 5 Allen, 531.
(d) Reg. v. Lennan, 44 U. C. Q. B. 456.
(e) Ex parte Hartt, 3 Allen, 122 ; Dickson v. Crabbe, 24 U. C. Q. B. 494 ;
Moffatt v. Barnard, 24 U. C. Q. B. 498 : and see 32 & 33 Vic., c. 31, a. 55.
PRACTICE. 423
There is no such general power as to costs on a conviction
under an Ontario Act ; and where not given by the statute
itself, the conviction cannot be amended. (/) In New Bruns-
wick, however, a conviction for breach of a by-law of the city
of Fredericton, defective in this respect, was amended by
deducting the amount of costs so improperly imposed, and
Allowing the conviction to stand for the balance, (g)
Where there is a conviction against several, and the magis-
trate has power to award costs, he should apportion them,
and not charge the full amount against each, (h)
A general power to grant costs on a conviction does not
necessarily empower justices to impose the costs of commit-
ment and conveying the prisoner to gaol ; and the forms of
conviction given in the statutes are applicable only where
such authority exists, (i) But a defect of this nature, it has
been held in New Brunswick, may be amended. (/)
The Summary Convictions Act, 32 & 33 Vic., c. 31, em-
powers justices to award costs either on dismissal of the
complaint or on conviction, which may be recovered in the
same manner as are penalties under the Act, viz., by distress,
and in default of distress by imprisonment, with or without
hard labor, for any time not exceeding one month, unless
the costs be sooner paid, (k) and may also award the costs of
commitment and conveying the prisoner to gaol.
Before a prisoner can be imprisoned under this statute, a
distress must be issued and returned ; (I) and the costs of
commitment, etc., must be specified in the warrant, (m)
It is no objection to a warrant of distress that the costs of
conveying the defendants to gaol, in the event of imprison-
ment in default of distress, were specified in the conviction ;
or that the costs of such conveying were mentioned in the
(f) Reg. v. Lennan, supra.
(</) Ex parts. Mowry, 3 Allen, 276.
(A) Parsons q. t. v. Crabbe, 31 U. C. C. P. 151.
(\) Reg. v. Harshman, Stev. Dig. 822.
(j) Ibid. 821.
(k) Sees. 54 et seq. ; ex parte Ross, 2 Pugsley & B. 337.
(I) Reg. v. Blakeley, 6 U. C. P. R. 244.
(w) Sec. 62.
424 THE CRIMINAL LAW OF CANADA.
warrant of distress, for it authorized a distress onlyfor the
penalty and costs of conviction, (n)
A conviction is bad which orders imprisonment in default
of immediate payment of a sum of money, when the by-law
upon which it is based is in the alternative, imposing a fine
or imprisonment. A conviction is also bad which gives costs,
when the by-law upon which it is based gives no jurisdiction
as to costs. (0)
A judgment for too little is as bad as a judgment for too
much ; and a conviction for one mouth instead of two months
is therefore bad. (p)
A conviction inflicting one penalty for two offences is
bad. (q) And where a statute prescribes a definite penalty
for an offence, the imposition of a penalty other than the
one prescribed is irregular and fatal, (r)
Where no other mode is provided, a prosecution for
penalty may be in the name of the Queen, (s)
Where the defendant is summarily convicted at one timt
of several offences, the justice has power, under 32 & 33 Vic.,
c. 31, s. 63, to award that the imprisonment, under one
more of the convictions, shall commence at the expiration of
the sentence previously pronounced, (t)
Under the 7 & 8 Geo. IV., c. 28, the practice of the judges
was, where more than one case of felony was established
against a rnan, and he was convicted of them at one and the
same time, to make the sentence of imprisonment for the two
or three offences, as the case might be, commence at the ex-
piration of the sentence first awarded, (u)
In respect to warrants committing prisoners on charges oi
offences committed, it has been held not necessary to state
(n) Reid v. Me Whinnie, 27 U. C. Q. B. 289.
(o) Ex parts Marry, 14 L. C. J. 163.
(p) Ex parte Slack, 1 L. C. J. 6.
(q) Corignan v. Harbour Comrs. Montreal, 5 L. C. R. 479.
(r) Ex parte Wilson, 1 Pugsley & B. 274.
(s) Reg. v. Armstrong, 6 Allen, 81.
(t) Re<j. v. Cutbush, L.R. 2 Q. B. 379.
(u) Ibid. 382, per Cockburn, C. J.
PRACTICE. 425
on the face of them that the justice had information on oath
which could justify him in binding the defendant to keep the
peace, (v)
A warrant of commitment must state the place where the
offence was committed, otherwise it will be defective, (w) and
a verbal warrant of commitment is bad. (x)
It is a general rule, that, where a man is committed for
any crime, either at common law, or created by Act of
Parliament, for which he is punishable by indictment, then
he is to be committed until discharged by due course of law.
But where the committal is in pursuance of a special authority,
the terms of the commitment must be special, and must ex-
actly pursue that authority, (y)
It is not necessary that, in the warrant of commitment,
the offence should be described with the nicety and techni-
cal precision of an indictment ; but the prisoner should be
charged with some legally defined and well-known offence,
for which he would be subjected to criminal proceedings,
either by indictment or otherwise, and that specific offence
cannot be included under a general term, which compendi-
ously covers a great variety of criminal offences. (2)
As the term felony includes a number of crimes, ranging
between treason and larceny, it is not sufficient simply to
designate the offence by the name of the class of offences to
which the justice may find or judge it to belong.
A commitment, in the absence of any statutory provisions
prescribing its forms and contents, should state the facts
charged to constitute the offence with sufficient particularity
to enable the court or judge, on habeas corpus, to determine
what particular crime is charged against the prisoner; and if
it fail to do this, the prisoner ought to be discharged, (a)
A warrant was held bad which charged that the defendant
(t) Davxon \. Eraser, 1 U. C. Q. B. 391.
(to) Re Beebe, 3 U. C. P. R. 270.
(x) Campbell v. Fleioellinj, 2 Pugsley, 403.
(y) Re Anderson. 11 U. C. C. P. 54.
(z) Reg. v. Young, the St Alban's Raid, 3, per Badyley, J.
(a) Ibid. 3, per Badgley, J.
426 THE CRIMINAL LAW OF CANADA.
did embezzle in the county of Grey, while the magistrate
was acting in and for the county of Oxford, and which did
not show that the defendant had the embezzled property
with him in the county of Oxford according to 32 & 33 Vic.,
<5. 21, s. 121, or that he was, or resided, or was suspected of
being or residing within the jurisdiction of such magistrate,
according to 32 & 33 Vic., c. 30, s. I. (b)
A commitment with hard labor, on a conviction warrant-
ing only imprisonment without hard labor, is bad. (c)
Defects in stating an offence in a warrant of commitment
are not fatal, for there is not the same necessity for adherence
to technical terms as in an indictment ; and upon the return
to a habeas corpus, it is the evidence, which is the foundation
of the warrant, the court looks at, when the evidence is before
them on a certiorari, rather than the warrant itself; and
when a legal cause for imprisonment appears on the evidence,
the ends of justice are not allowed to be defeated by a want
of proper form in the warrant, but the court will rather see
that the error is corrected and amend the warrant, (d)
Justices should not omit any part of a prescribed form of
commitment, lest the part omitted be material, and render the
warrant void, (dd)
When a justice follows the words used by the legislature,
the court will hold that he intended them in the same sense**,
but if he uses other words, he ought to be more precise. («)
It is, however, the duty of the court to take care that, in all
cases brought before them, justices shall have the full pro-
tection to which the law entitles them. (/)
A warrant of commitment under 31 Vic., c. 16, signed by
one qualified justice of the peace, and by an alderman who
has not taken the necessary oath, is invalid to uphold the
(b) McGregor v. Scarlett, 7 U. C. P. R. 20.
(c) Reg. v. Yeoman*. 6 U. C. P. R. 66.
(d) Be Anderson, 20 U. C. Q. B. 162 ; Rex T. Marks, 3 East, 57 ; Keg. T.
Murray, 2 L. C. L. J. 87.
(dd) Re Beebe, 3 U. C. R R. 373.
(e) Re Anderson, 11 U. C. C. P. 63.
(/) CrovJchite v. SommerviUe, 3 U. C. Q. B. 131, per Robinson, C. J.
PRACTICE. 427
detention of a prisoner confined under it, though it might be
a justification to a person acting in virtue of it, if an action
were brought against him. (g)
The 32 & 3o Vic., c. 31, s. 86, provides that, after a case
has been heard and determined, one justice may issue all
warrants of distress or commitment thereon.
By s. 87, it shall not be necessary that the justice who acts
before or after the hearing be the justice, or one of the justices,
by whom the case is or was heard and determined. It is
therefore not necessary that a warrant of distress or commit-
ment should be signed by two justices, though two are
required to convict; nor is it necessary that the justice who
commits should also have heard and determined, (h)
The issuing of a warrant of commitment, under 32 & 33
Vic., c. 31, s. 75, is discretionary and not compulsory upon a
justice of the peace. The court will, therefore, upon this
ground, as well as upon the ground that the person sought to
be committed has not been made a party to the application,
refuse a mandamus to compel the issue of the warrant, (t)
The Con. Stats. U. C., c. 126, s. 6, now embodied in R. S. 0.^
c. 73, s. 6, was passed expressly for the protection of justices
of the peace ; and when it is desired to compel a justice to
issue a warrant of commitment against a person, proceedings
should not be taken by mandamus, but a rule should be
issued, under this clause, and the person to be affected should
be made a party to the rule, (j}
Where the defendant, a justice of the peace, issued his
warrant, under Con. Stats. Can., c. 103, s. 67, to commit the
plaintiff for thirty days, for non-payment of the costs of an
appeal to the Quarter Sessions, unless such sum and all costs
of the distress and commitment, and conveying the party to
gaol, should be sooner paid, but omitted to state in the war-
rant the amount of the costs of distress, commitment and
(g) Keg. v. Boyle, 4 U. C. P. K, 256.
(A) lie Crow, 1 U. C. L. J. N. S. 302.
(») Be Delaney v. Macnab, 21 U. C. C. P. 563.
(j) He Delaney v. Macnab, 21 U. C. C. P. 563.
428 THE CRIMINAL LAW OF CANADA.
conveyance to gaol ; it was held, that it was the duty of the
justice to ascertain and state the amount of these costs ; yet
the omission to do so, though it might have occasioned the
plaintiff's discharge, did not show either a want or excess of
jurisdiction. The warrant, however, was irregular in omitting
these particulars, and there was consequently an irregular ex-
ercise of jurisdiction, (k)
Where an Act, passed by the Provincial Legislature, was-
subsequently disallowed by Her Majesty, but, while it was
in force, the plaintiff had been convicted under it by the
defendants, as justices of the peace, and directed to pay a fine,
to be levied according to the Act, and, the fine not having
been paid, a warrant was properly issued by the defendants
for his arrest and imprisonment, which, however, was not
executed by the officer to whom it was directed until after
the disallowance of the Act was published in the Gazette,
and from its publication only the Act ceased : it was held
that the defendants were justified in making the conviction
and issuing the warrant, and could not be held liable by
reason of the warrant being executed after the operation of
the Act had been determined. (/)
The warrant of commitment should show before whom the
conviction was had. It lies on the party alleging the suffi-
ciency of the conviction to sustain the commitment, to
produce the conviction, (m)
Where a prisoner is in custody of a gaoler, under sever
warrants, the magistrate cannot withdraw them, or any o
them, from the gaoler's hands, because they are for his pro
tection ; but the gaoler ought to know which is the operative
warrant, otherwise he may not know whether he is tc dis-
charge the prisoner from custody at the end of the time
specified in one or in the other, (n)
(k) Dickson v. Crabb, 24 U. C. Q. B. 494.
(/) Glapp v. Lawrason, 6 U. C. Q. B. 0. S. 319 ; see 31 Vic., c. 1, 8. T,
thirty-tifthly, sixthly and seventhly.
(m) Re Crow, 1 U. C. L. J. N. S. 302 ; 1 L. C. G. 189.
(n) Re McKinnon, 2 U. C. L. J. N. S. 329.
PRACTICE. 429
A warrant ought to set forth the day and year wherein it
was made, and it is safe, but perhaps not necessary, in the
bodv of the warrant, to show the place where it is made, yet
it seems necessary to set forth the county in the margin, at
least, if it be not set forth in the body.
In strictness, it is not indispensable that the authority of
the magistrate should be shown on the face of the warrant,
for the omission may be shown by averment and parol
evidence. A commitment must be in writing, under the
hand and seal of the person by whom it is made, expressing
his office or authority, and the time and place at which it is
made, and must be directed to the gaoler or keeper of the
prison, (o)
A final commitment, for want of sureties to keep the
peace, must be in writing. Where, however, a person having
been brought up before a justice on a charge of threatened
assault, was ordered by the justice to find sureties to keep
the peace, and he offered bail, who were rejected as not being
householders, and, being thus prevented from immediately
obtaining bail, remained in custody of a police constable
for three hours, during which time the justice frequently
visited him to ascertain if he had found bail, and at night he
was taken to the gaol, remaining there until the following
morning, when he was discharged on bail being procured ;
it was held that this was not a final commitment for want of
sureties, and that, consequently, it did not require a written
warrant, tor the detention was no longer than might be rea-
sonably necessaiy for ascertaining whether the party could
find some one who would become his surety, (p) The time
allowed for this purpose must always depend on the circum-
stances of each case, (q)
A commitment in default of sureties to keep the peace
should show the date on which the words were alleed to
(o) Rtg. v. Reno, 4 U. C. P. R 292, per Draper, C. J.
(p) Lynden v. King, 6 U. C Q. B. O. S. 566.
() Ibid.
430 THE CRIMINAL LAW OF CANADA.
have been spoken, and contain a statement to the effect that
complainant is apprehensive of bodily fear, (r)
When articles of the peace have been exhibited in open
court against a person, the court will direct that he do stand
committed until security to keep the peace be given, (s)
Where a prisoner is committed to b.j held until discharged
by due course of law, the warrant continues in force until the
prisoner is discharged or sent to the penitentiary. It id
sufficient, therefore, if at the circuit the judge remands ver-
bally a prisoner into the custody of the proper officer in
court, (t) Where, in the course of a civil action, the judge is
of opinion that forgery or perjury has been committed, he will,
as a matter of duty, order that the defendant be prosecuted
for these crimes, (u) The 41 Vic., c. 19, makes provision for
the discharge in certain cases of persons who have been
confined for the period of two weeks in default of sureties for
the peace.
Sometimes, in cases of indictable offences, an inquisitioi
is taken by a coroner, and the prisoner is committed foi
trial on the verdict of the coroner's jury. The finding of
coroner's inquest is equivalent to the finding of a grand jury,
and a defendant may be prosecuted for murder or man-
slaughter upon an inquisition, which is the record of the
finding of a jury sworn to inquire into the death of the
deceased, super visum corporis. Such an inquisition amount
to an indictment, (v)
And where, on an indictment for manslaughter, the granc
jury had found " no bill," it was held that the Grown he
the right to have the prisoner arraigned and tried on tl
finding of the coroner's jury, (w)
A coroner's duty is judicial, and he can only take
(r) He Ross, 3 U. C. P. R. 301.
(s) Peg. v. Vendette, 8 L. C. J. 284.
(t) Beg. v. Mulholland, 4 Pugsley & B. 476.
(u) Content v. Lamontagne, 17 L. C. 3. 319.
(v) Keg. v. Ingham, 5 B. & S. 257 ; 33 L. J. (Q. B.) 183; Arch. Or.
PMg. 116.
(w;) Reg. v. Tremblay, 18 L. C. 3. 158.
PRACTICE. 431
inquest super visum corpoi'is ; aud an inquest where the coro-
ner and jurors were not present at the same time was held
void, (a:)
Where a coroner's rinding on an inquisition does not dis-
close with certainty any offence against the person who
caused the death, yet is so worded as to leave the matter in
doubt, as if it found that one G. " did feloniously and mali- •
ciously kill and slay one M., against the peace, etc., in self-
defence of him, the said G.," the court will quash it on the
application of G. (y) But if no crime is disclosed, the court
will not quash the finding on the application of a person on
whose medical skill it reflects unfavorably (2) On such an
application the propriety of entitling the matter "the Queen
against " the applicant has been doubted, (a)
A finding of manslaughter which omits the words " feloni-
ously " and " slay," is bad, and will be quashed on a rule, (b)
And a coroner's warrant reciting the inquisition, and stating
the offence to be that the prisoner " did stand charged with
having inflicted blows on the body of the said " deceased,
and not showing the place where the blows, if any, were
inflicted, or where the offence, if any, was committed, was
held defective, (e)
An inquest held by a coroner on a Sunday, being a judicial
act, is invalid, (d) A coroner cannot take a second inquisi-
tion on the same body, the first inquisition being valid aud
subsisting, (e)
A barrister cannot insist on being present at a coroner's
inquest, and upon examining and cross-examining the wit-
nesses. (/)
Imprisonment is imposed for different purposes. It may
(x) Ex parte Wilson, Stev. Dig. 335.
(y) R«j. v. Goldimj, 39 U. C. Q. B. 259.
(z) R»I. v. Farley, 24 U. C. Q. B. 384.
(a) Ihkl.
(b) Ex parte Brydges, IS L. C. J. 141.
(e) In re Carmirhael, 10 U. C. L. J. 325.
(d) Re Cooper, 6 U. C. L. J. N. S. 317.
(e) Key. v. White, 7 U. C. L. J. 219 ; 3 E. & & 137 ; 27 L. J. (Q. B.)257-
(/) Aynew v. Stewart, 21 U. C. Q. B. 396.
432 THE CRIMINAL LAW OF CANADA.
be for prevention, as by a constable, to hinder a fray, or by
any person, to restrain a misdemeanor or prevent a felony, or
for security in criminal cases, before investigation or trial, or
until sureties for the peace are given ; or in coercion, to ensure
the performance of some particular act, as in cases of actual
contempt, until the contempt be purged, and in cases of
supposed contempt, as for not making a return of legal pro-
cess, or for not paying over moneys raised by such process,
by officers of the court, until return of payment is made, and
to enforce the payment of pecuniary fines, or punitive, as in
criminal sentences, (g)
Where a party, undergoing an imprisonment on conviction
of felony, has been released on bail in consequence of the
issue of a writ of error, and such writ of error is subsequently
quashed, he may be reimprisoned for the unexpired term of
his sentence on a warrant of a judge of the Court of Queen's
Bench, signed in chambers, and granted in consequence of
the court having ordered process to issue to apprehend such
party and bring him before the court, " or before one of the
justices thereof, to be dealt with according to law." (h)
The period of a man's imprisonment must be certain, and
not dependent on the will of the officer who is charged with the
imprisonment. Every judicial act is supposed to happen the
first instant of the day it takes place. The imprisonment of
a person, therefore, is deemed to commence at the beginning
of the day on which he was adjudged to be imprisoned, and
he will be entitled to his discharge, not at the same hour of
the day he was brought to prison, but on the first opening of
the prison on the day after his imprisonment expired, (i)
An adjudication mentioned in the margin of the warrant
of commitment, where there are several warrants each for a
distinct period of imprisonment, that the term of imprison-
ment mentioned in the second and third warrants shall com-
mence at the expiration of the time mentioned in the warrant
(g) Mclnnes v. Davidson, 4 U. r. P. R. 189, per A. Wilson, J.
(A) JfejMtte Spdman, 14 L. C. J. 281.
(i) Reg. v. Scott, 2 U. C. L. J. N. S. 324, per J. Wil#m, J.
PRACTICE. 433
immediately preceding, is valid. An adjudication so stated
in the margin properly forms a part of the warrant, and, even
if the portions in the margin of the second and third warrants
could not be read as parts of these warrants, the periods of
imprisonment would nevertheless be quite sufficient, the only
difference being that all the warrants would be running at
the same time, instead of counting consecutively. (J)
It is not necessary, before a defendant convicted of assault
is imprisoned, that he should be served with a copy of the
minute of conviction. The 32 & 33 Vic., c. 31, which might
require this to be done before a warrant of commitment
could issue, applies only to orders of justices, not to convic-
tions. A party convicted of an offence is bound to take
notice of the terms of the conviction at his peril. (&)
A witness who, on the usual application, has been ordered
to withdraw from the court room, is guilty of contempt if,
after his examination, he communicates facts disclosed in
evidence at the trial to another witness not examined at the
tame of the disclosure. (/) In this case the rule for attach-
ment was discharged, the defendant swearing, in answer, that
he did not enter the court room during the trial till called
as a witness ; that he communicated the fact without any
intention of influencing the evidence to be given by the
witness, or of committing a contempt of court, and in utter
ignorance of there being any impropriety in so doing. The
affidavit further stated that the deponent was wholly uncon-
scious of the possibility of his conduct being considered
a contempt.
If a witness absent himself a bench warrant may be
issued, which, if tested in open session and signed by the
clerk of the peace, is not invalid for want of a seal ; (m) and
the witness may be committed for contempt. But an attach-
(j) Re Crow, 1 U. C. L. J. N. S. 302 ; 1 L. C. G. 189 ; see 32 & 33 Vic.,
c. 31, a. 63.
(k) Reg. v. O'Leary, 3 Pugsley, 264.
(1) Ret), v. McCorkiU, 8 L. C. J. 282.
(m) Fraser v. LHckson, 5 U. C. Q. B. 231.
BB
434 THE CRIMINAL LAW OF CANADA.
nient will not be granted against a witness for not obeying a
subpo3na unless there is a clear case of contempt; but if his
absence is wilful, the court will not, in general, look to the
materiality of his testimony, (n)
A subpoena to attend on the 10th September, and so from
day to day, was served on the llth September, and the wit-
ness attended for several days, and knew that the case was
not tried ; he was held guilty of contempt in subsequently
absenting himself. Where a witness accepted the conduct
money, and went with the person who served him with the
subpoena, and remained at the court several days, an attach-
ment was granted against him for subsequently absenting
himself, though he and another person swore, in contradiction,
to the party who served the subpoena, that the original was
not shown to him, and he also swore that he attended the court
as a juror, and left in consequence of ill health with the in-
tention of returning, his absence appearing to be wilful. (0)
Where a party is served with a subpoena to attend as a
witness, and accepts a sum of money which is tendered to
him for his expenses without objecting to the amount, but
refuses to attend on account of his own business, he is liable
to an attachment for the non-attendance, even though the
sum tendered be less than he is entitled to receive, (p) But
if he had objected to the sum when tendered, it would have
been an answer to the application, (q)
It is not necessary to show that the witness was called on
his subpoena, if it is shown by other satisfactory evidence
that he did not attend, (r)
An attempt by a third person to prevent a suitor from
laying his case before the court, by tl treats of bringing him
into disgrace and disrepute, is a contempt of court, and sub-
jects the offender to a heavy fine, (s)
(n) Mcloney v. Morrison, 1 Allen, 240.
(o) Joknsun v. Wil.liston, 2 Allen, 171.
( p) Gilbert v. Campbell, 1 Haimay, 258.
(q) Jb.d.
(r) Me/oney v. Morrison, 1 Allen. 240.
(«) Re Mulock, 13 W. R. 278 ; 1 L. C. G. 25,
PRACTICE. 435
A frivolous opposition, made to retard a judicial sale, is 8
contempt of court, (t)
An advocate who publishes in a public newspaper letters
containing libellous, insulting and contemptuous statements,
and language concerning one of the justices of the court, in
reference to the conduct of said justice while acting in his
judicial capacity, on an application made to him in cham-
bers for a writ of habeas corpus, is guilty of contempt, (u)
In this case it was held in the Privy Council, reversing
the judgment of the Court of Queen's Bench for Quebec
(Crown side), that a judge of the Court of Queen's Bench, in
Quebec, whilst sitting alone, in the exercise of the criminal
jurisdiction conferred upon him by Con. Stats. L. C., c. 77,
s. 72, has no power to pronounce such advocate in contempt
for conduct of the above description, or to impose a fine ; and
that the proceedings for such contempt could only be legally
and properly taken in the full Court of Queen's Bench, (v)
An order was made for the delivery of infant children by
the father to the mother. On an application to commit the
father for a contempt in not obeying this order, it appeared
that, in his absence from home, the children had been re-
moved from his house and taken to the United States by his
son, aged fifteen. They denied collusion, the son saying that
he acted without his father's knowledge or consent, but the
father took no steps to bring the children back, and did not
offer to do so if time were given him. To a demand made
for the children, the father replied that they were not in his
custody ; but it was held that he was not excused from obey-
ing the order, and was in contempt, (w)
Affidavits disingenuously drawn up, with a view of pre-
senting inferences, and giving color to the transactions to
which they refer inconsistent with the whole truth, even
(t) Thomas v. Pepin, 5 L. C. J. 76.
(«) Reg. v. Ramsay, 11 L. C. J. 152 ; S. C. L. R. 3 P. C. App. 427.
(v) Ibid.
(v) Reg. v. Allen, 5 U. C. P. R. 453.
436 THE CRIMINAL LAW OF CANADA.
though true as far as they go, should be read with suspicion
and carry but little weight, (x)
A contempt of court being a criminal offence, no person
can be punished for such unless the specific offence charged
against him be distinctly stated, and an opportunity "iven
him of answering, (y)
To contempts of court committed by au individual in his
personal character only, there has been attached by law, and
by long practice, a definite kind of punishment by fine and
imprisonment, (z)
An order suspending an attorney, and barrister of the
Supreme Court of Nova Scotia, from practising in that court,
for having addressed a letter to the Chief Justice reflecting on
the judges and the administration of justice generally in the
court, was discharged by the judicial committee of the Privy
Council, as it substituted a penalty and mode of punish rnent
which was not the appropriate and fitting punishment for the
offence. The letter, though a contempt of court and punish-
able by fine and imprisonment, having been written by a
practitioner, in his individual and private capacity as a suitor,
in respect of a supposed grievance as a suitor, of an injury
done to him as such suitor, and having no connection what-
ever with his professional character, or anything done by him
professionally either as an attorney or barrister, it was not
•competent for the Supreme Court to go further than award
to the offence the customary punishment for contempt of
•court, or to inflict a professional punishment of indefinite
suspension for an act not done professionally, and which, per
$e, did not render the party committing it unfit to remain a
practitioner of the court, (a)
The power to punish for contempt is inherent in all courts,
.and is a necessary condition of their existence. In Canada,
this power is not confined to contempt in the face of the
(x) Reg. v. Allen, 5 U. C. P. R. 453.
(y) Re Pollard, L R. 2 P. 0. App. 106.
(z) Re Wallace, L. R. 1 P. 0. App. 295, per Lord Weatbury.
(a) Ibid. 283; 1 Oldright, 654.
PRACTICE. 437
court, or to pending cases, or to resistance to process ; but it
extends to the punishment of all contemptuous publications,
calumniating or misrepresenting its judicial opinions as a
court, or the opinion or order of any judge of the court, pro-
nounced or made either in term or in vacation, whether in
chambers, or at his own residence, or in any other place,
where, within the jurisdiction of the court, he may be called
upon to perform any judicial duty, and to all publications
tending to cast ridicule or odium upon the court or any of
its judges, in reference to their judicial acts, or to impair the
respect and confidence of the public in the purity and integ-
rity of the tribunal or any of its members, (b)
An attachment against a sheriff for not obeying a rule to
bring in the body, cannot be granted in vacation by a single
judge at chambers, (c)
Where an attorney of this court, practising in an inferior
court, has charged, and the judge has allowed, costs clearly
not sanctioned by law, this court will punish by fine and
attachment, (d)
A rule for attachment for a contempt of court, committed
during term, can be moved for on the last day of such term,
and it is no objection that it is made returnable next term.
The rule will be discharged if headed "In re," etc., when
there was no such matter depending in court, (e)
Any court of record has power to fine and imprison for
:contempts committed in the face of the court. (/) It seems
the commitment may be made sedente curia, by oral command
without any warrant made at the time. This proceeds on
the ground that there is, in contemplation of law, a record
:>f such commitment, which may be drawn up when neces-
sary- (3}
(b) Reg. v. Ramsay, 11 L. C. J. 158.
(c) Rex v. Skeriff of Niagara, Drajxr, 343.
(d) Rex v. Whtiehead, Taylor, 47ti.
(<) RK Ross, 2 Russell & Chealey, 596.
(/) Armstrong v. McCaffrey, 1 Haunay, 517.
(g) (Jixm v. Taylor, 19 U. C. C. P. 53, per Hagarty, J.
438 THE CRIMINAL LAW OF CANADA.
A Provincial Legislature has not the power to order the
arrest of any one for contempt. ( h )
The proceedings on a rule for contempt do not constitute
a criminal case, so as to allow a writ of error with respect to
such rule, (i)
Justices of the peace, acting judicially in a proceeding in
which they have power to fine and imprison, are judges of
record, and have power to commit to prison orally, without
warrant, for contempt, committed in the face of the court, (j)
Thus, if the justice be called a "rascal, and a dirty mean
dog," a " damned lousy scoundrel," a " confounded dog," etc.,
the justice has a right to imprison as often as the offence
is committed. But the commitment must be for a specified
period, (k)
And where a prisoner was convicted three several times
on the same day for using opprobrious epithets to a justice,
while in the execution of his office, and detained in prison
under three several warrants, all dated the same day, the
periods of imprisonment in the two last commencing from
the expiration of the one preceding it, but the first to be
computed " from the time of his arrival and delivery (by the
bailiff) into your (the gaoler's) custody thenceforward," it was
held that although the justice had a right to convict and
sentence for continuing periods, and to make the period of
imprisonment on the second and third adjudications begin at
the termination of the first imprisonment, yet, as the first
period of imprisonment was depending on the will of the
officer who was to convey to gaol, it was therefore uncertain,
and the other periods of imprisonment depending on the
same contingency' were likewise uncertain, and the prisoner
was entitled to his discharge. (I)
A justice of the peace, while sitting in discharge of his!
(h) Ex parte Cote., 6 Revue Leg. 582.
(t) fiamsay v. Reg., 11 L. <J. J. 158.
(j) Armstrong v. McCaffrey, 1 Hannay, 517 ; Jones v. Qlassford, Rob. *
Jos. Dig. 1974.
(L) Jones v. Olassford, supra ; Dawson v. Proper, 7 U. C. Q. B. 391.
(I) Ibid.
PRACTICE. 439
duty, has power, without any formal proceeding, to order at
once into custody, and cause the removal of any party who,
by his indecent, behavior or insulting language, is obstruct-
ing the administration of justice, .or may commit him until
he finds sureties to keep the peace. But he has no power,
either at the time of the misconduct, much less on the next
day, to make out a warrant to a constable, and to commit the
offending party to gaol for any certain time, by way of punish-
ment, without adjudging him formally, after a summons to
appear for hearing to such punishment on account of his
contempt, and a hearing of his defence, and making a minute
of such sentence, (m)
It has been doubted whether a justice of the peace, execut-
ing his duty in his own house, and not presiding in any court,
can legally punish for a contempt committed there, (n)
A commitment by a justice for a contempt, if there be no
recorded conviction, should show that the party was convicted
of the contempt. And stating that he is charged with it is
insufficient; at any rate, the evidence should in some way
show the fact of conviction, and the manner of it. (o)
A warrant to a constable to commit for c intempt, contain-
ing a direction to detain the party till he shall pay the costs
of his apprehension and conveyance to gaol, is defective.
For the statute 3 James I., c. 10, only authorizes such ex-
penses to be levied of the offender's goods ; and if he could
be imprisoned till he paid them, it would be necessary that
the amount of such expenses should be stated, or the gaoler
would not know when he might discharge him.
Where a power resides in any court or judge to commit for
contempt, it is the peculiar privilege of such court or judge
to determine upon the facts, and it does not properly belong to
any higher tribunal to examine into the truth of the case, (p)
Therefore the court, in adjudicating on a case of contempt,
(m) Re Clark; 7 U C. Q. B. 223.
(n) McKenzie v. Newburn, 6 U. C. Q. B. O. S. 486.
(o) Ibid.
(p) Re Clarke, 1 U. C. Q. B. 223.
440 THE CRIMINAL LAW OF CANADA.
will not enter into the truth of the alleged facts constituting
the contempt.
The District Magistrate's Court in the Province of Quebec
is not a court of record, (q)
The 32 & 33 Vic., c. 31, s. 65 et seq., as amended by the
33 Vic., c. 27, 40 Vic., c. 27, and 42 Vic., c. 44, provides for
appeals in cases of summary conviction.
The Con. Stats. U. C., c. 114, giving an appeal to the
sessions, on conviction of a person in any matter cognizable
by a justice of the peace, not being a crime, was repealed
by the 38 Vic., c. 4, s. 12, and by the statute R S. O., c. 74,
appeals in matters within the jurisdiction of the Ontario Legis-
lature are made to conform to the proceedings provided by the
32 & 33 Vic., c. 31, before mentioned.
The right of appeal under these statutes is given only to
the defendant on conviction, not to the complainant on ac-
quittal, (r)
An appeal is subject to the following conditions : If the
conviction or order be made more than twelve days before
the sittings of the court to which the appeal is given, such
appeal shall be made to the then next sittings of such court ;
but if the conviction or order be made within twelve days
of the sittings of such court, then to the second sittings next
after such conviction or order. The person aggrieved shall
give to the prosecutor or complainant, or to the convicting
justice, or one of the convicting justices for him, a notice in
writing of such appeal, within four days after such conviction
or order, and the person appealing shall either remain in
custody or give security, or in certain cases deposit money as
security.
A notice of appeal for the next ensuing sittings, when the
sittings are within twelve days of the conviction, is inoper-
ative, and proper notice may afterwards be given, but of course
within the four days; and this though on the first notice the
(q) Provost v. Masson, 5 Revue Leg, 557.
(r) Re Murphy, 8 U. C. P. R. 420.
PRACTICE. 441
defendant have obtained an order for costs from the session,
under sec. 69 of the principal Act. (s)
The notice need not be signed by the appellant. (£)
The words within four days after conviction, exclude the
day of conviction, (u)
An appeal lies to the sessions from a summary conviction,,
under the Inland Revenue Act, 31 Vic., c. 8, s. 130, for pos-
sessing distilling apparatus without having made a return
thereof, such an offence being a crime, (v)
So an appeal lies from a conviction for penalties under the
Dominion Fisheries Act, 1868, c. 60. (w)
Under " the Indian Act, 1876," 39 Vic., c. 13, s. 84 (D.),
an appeal must be brought before the appellate judge within
thirty days from the conviction. Giving notice of appeal to
the next session, and entering a recognizance within that time,
is not sufficient, (x)
The person appealing from a summary conviction by a
justice, must show a compliance with all the conditions
imposed upon him by the statute under which he appeals.
He must not only give notice within the proper time, but he
must also either remain in custody or enter into the proper
recognizance, (y) Where, in the recognizance, the appellant,
instead of being bound to appear and try the appeal, etc., as
required by the Act, was bound to appear at the sessions to
answer any charge that might be made against him, the
appeal was dismissed. An application to take the appellant's
recognizance in court was refused, on the ground that, although
the recognizance need not be entered into within four days,
it must be entered into and filed before the sittings of the
Court of Quarter Sessions, to which the appeal is made. (2)
It was held, under the former statutes, that the form of
(s) Reg. v. Ccutwett, 33 U. C. Q. B. 303.
(t) Reg. v. Nicol, 40 U. C. Q. B. 76.
(u) Scott v. Dickson, 1 U. C. P. R. 366.
(v) Re Luca* and McGlashan, 29 U. C. Q. B. 81.
(u>) Reg. v. Todd, \ Russell & Chesley, 62.
(x) Re Hunter, 1 U. C. P. R. 86.
(y) Kent v. Olds, 7 U. C. L. J. 21 ; Re Meyer, 23 U. C. Q. R 61U
(2) Kent v. Oldst supra.
442 THE CRIMINAL LAW OF CANADA.
recognizance to try an appeal, given in the schedule to the
Con. Stats. Can., c. 103, p. 1130, was sufficient, though the
condition differed in form from that provided for by c. 99,
a. 117. (a)
Before an appeal can be entertained, it is clearly incum-
bent ou the appellant to show his right to appeal, by proving
compliance with the 33 Vic., c. 27, s. 1, subs. 3, by having
remained in custody, or entered into a recognizance. This is a
substantial, not a mere technical, objection to the appeal, and
is not waived by the respondent asking for a postponement,
after the appellant has proved his notice of appeal on the
first day of the court. (b~)
But when exception has been taken to the jurisdiction of
the court, and the party objecting has afterwards proceeded to
trial on the merits, he should be held to have waived proof
of the preliminary conditions to give jurisdiction, where it
appears that they have in fact been complied with, (c)
The production of the recognizance by the clerk of the
court, and proof of service of the notice of appeal, are suffi-
cient to found the jurisdiction of the court, (d)
The enrolment, of the recognizance is unnecessary, and
the filing the recognizance by the appellant, instead of its
being transmitted to the clerk of the peace by the justice
who took it, is not fatal. So the condition reading to appeal
" to the General Quarter or General Sessions," and not " to
the Court of General Sessions of the Peace," does not render
it invalid, (e)
A notice of appeal following the form given in the Con.
Stats. Can., c. 103. p. 1130, and stating " that the formal con-
viction drawn up and returned to the sessions is not sufficient
to support the conviction, etc.," was held sufficiently particular
to allow all objections being raised, which were apparent on
the face of the conviction or order. (/)
(a) Re Wilson, 23 U. C. Q. B. 301.
(b) Re Mf.ye.rs, 23 U. C. Q. B. 611.
(c) Reg. v. Essery, Rob. & Jos. Dig. p. 3485.
(d) Ibid.
(e) Ibid.
(/) Helps and Eno, 9 U. C. L. J. 302.
PRACTICE. 443
After notice of appeal has been given, and the time for
hearing the appeal arrived, no amendment can be made to
the conviction.(<7)
The appeal should not be drawn up until the four days
have elapsed, (h)
It appears to be the established practice for the sessions
to hear appeals on the first day, but there is no law compel-
ling them to do so. (i)
One D. M. having been on the 27th of August, 1862, con-
victed before justices of the peace, " for allowing card-playing
at his inn, and other disorderly conduct during this year,"
was fined $20 and costs. Oil judgment being pronounced, he
remarked that he would pay the fine, etc., but he would " see
further about it." On the 30th of August notice of appeal
was given to the prosecutor and to one of the convicting
justices, and on the llth of September the appeal came on at
the Quarter Sessions, when that court decided that the right
to appeal was waived and lost by reason of the plaintiff having
paid the fine and costs. The court above, however, under
these facts held that there was no waiver of the right to ap-
peal; that the statement of the defendant was capable of
meaning that he meant to use any remedy that was by law
open to him, whether by appeal or otherwise, and as the Act
respecting appeals does not require notice of appaal to the
convicting justice, nor provide for a stay of the levy, it might
be reasonably inferred that he paid the fine and costs to pre-
vent the distress and sale which might have taken place,
although he had at the moment of conviction given the most
formal notice of appeal (/)
The court should rather lean to the hearing of appeals than
to dismissing them on technical grounds. (&)
An appeal from a conviction for selling liquor without
(g) Reg. v. Smith, 35 U. C. Q. B. 518.
(h) Keg. v. HetseU. 44 U. C. Q. B. 51.
(i) Re Meyers, 23 U. C. Q. B. 614, per Drainer, C J.
O" ) Re Justices of York, 13 U. 0. C. P. 159.
<i) Ibid. 162, per Draper, C. J.; Rex v. Justices of Norfolk, 5 B. 4 A. 992.
444 THE CRIMINAL LAW OF CANADA.
license, contrary to the R S. 0., c, 181, must be tried by the
judge of the county court in chambers, without a jury. (/)
And the judge may quash the conviction without hearing it
de novo, if bad on its face, (m)
It would appear that, under the present statutes, which it
has been decided are within the competence of the Dominion
Parliament to enact, (n) it is discretionary with the court to
grant or refuse a jury at the request of either appellant or
respondent ; for the 36 Vic., c. 58, s. 2, has been held to be
explanatory of sec. 66 of the 32 & 33 Vic., c. 31, in all cases, (p)
But, if a jury be not so demanded, it seems it is imperative
on the court to try the appeal, and they shall be the absolute
judges, as well of the fact as of the law, in respect to the
conviction or decision appealed from, (p)
The Court of Quarter Sessions, by the 33 Vic., c. 27, a. 1,
subs. 3, and R S. O., c. 74, s. 4, has power, if necessary, from
time to time, by order endorsed on the conviction or order, to
adjourn the hearing of the appeal from one sittings to another
or others of the said court. An adjournment of the sessions
is a continuance of the same sessions or sittings, (q)
An appeal, dismissed for want of prosecution, may, at the
instance of the appellant, and on his satisfactorily accounting
for his non-appearance, be reinstated, (r)
The 32 & 33 Vic., c. 31, s. 66, provided that no witnesses
should be examined who were not examined before the jus-
tice on the hearing of the case, and this whether the appeal
was tried by the court or a jury. But now the 43 Vic., c. 44,
s. 10, and the R S. O., c. 74, s. 4, provide that either of the
parties to the appeal may call witnesses and adduce evidence,
in addition to the witnesses called and evidence adduced at
the original hearing, (s)
(1) See sec. 71 ; Re Brown, 8 C. L. J. N. S. 81.
(m) Rose v. Burke., 1 Russ. & Geld. 94.
(n) Reg. v. Bradshaw, 38 U. C. Q. B. 564.
(o) Reg. v. Washington, 46 U. C. Q. B. 221.
\p) See 32 & 33 Vic., c. 31, s. 66 ; see also 33 Vic., c. 27, 8. 1, subs. ?.
(g) Reg. v. Guardians of Cam. Union, 7 U. C. L. J. 331 ; RawnsUy T.
Hutchinso,,, L. R. 6 Q. B. 305.
(r) Re. Smith, 10 U. C. L. J. 20.
(s) Reg. v. Washington, 46 U. C. Q. B. 221.
PRACTICE. 445
Where a rule nisi, for a mandamus to the. sessions, com-
manding them to hear an appeal, called upon the Court of
Quarter Sessions in and for the United Counties, etc., instead
of the justices of the peace for the United Counties, and the
rule had been enlarged in the prior term ; on objection to
the rule on the above ground, it was replied that the en-
largement waived the objection, and this seems to have been
acquiesced in by counsel and by the court, (t) In fact, it
seems that in all cases formal and technical objections are
waived by an enlargement, (u)
The appellant having been convicted of an assault under
the Con. Stats. Can., c. 91, s. 37, appealed to the Quarter
Sessions. On the first day of the court, after he had proved
his notice of appeal, at the respondent's request the case was
postponed until the following day, and the respondent then
objected to the jurisdiction, as it was not shown that the
appellant had either remained in custody or entered into a
recognizance, as required by Con. Stats. Can., c. 99, s. 117.
The court held that this objection was not waived by the
application to postpona (v)
Causes appealed to the sessions cannot afterwards be
appealed to a superior court ; nor can the latter court enter-
tain such a case even to the extent of considering a point
reserved by the sessions by consent (w) And the right of
appeal does not exist, even where the appeal to the sessions
has gone off on a preliminary objection, (x)
For the purpose of preventing frivolous appeals, the 32 &
33 Vic., c. 31, s. 69, enables the Court of Sessions, on proof
of the giving of notice of appeal, though such appeal was not
afterwards prosecuted or entered, if it has not been abandoned
according to law, to order the payment of reasonable costs, by
the party giving the notice.
«) Re Justices of York, 13 U. C. C. P. 159.
(u) R y. v. Allen, 5 U. C. P. R. 453-8.
(c) Re Meyers, 23 U. C. Q. B. 611.
(w) Cochran v. Lincoln, 3 Ross. & Cbes. 480; Rose v. Burke, 1 Ruas. &
Geld. 94 ; Coolan v. McLean, 3 Ruas. & Ches. 479 ; 32 & 33 Vic., c. 31,
«. 71.
(x) Reg. v. Firman, 6 U. C. P. R. 67.
446 THE CRIMINAL LAW OF CANADA.
There was nothing in the Con. Stats. U. C., c. 114, to
authorize an order that a defendant, who had appealed and
been acquitted by a jury upon his trial, should pay the costs
of the appeal and trial, or any portion of them.
Where the Court of Quarter Sessions ordered a party to
pay certain costs of an appeal, and they not being paid, an
indictment was preferred for non-payment thereof, and on
this indictment the defendant was found guilty ; it was held
that the indictment could not be supported, either at common
law or under the statute, (y)
The court will not give costs, on adjourning an appeal, un-
less the objection is made at the time of the adjournment, (z)
Under the English Act, 20 & 21 Vic., c. 43, the court will
not entertain an application for costs of an appeal against a
decision of a justice, in the term after that in which the judg-
ment is pronounced, (a)
It seems doubtful whether, under the 32 & 33 Vic., c. 31,
s. 74, an order of sessions, simply ordering costs of an appeal
to be paid, without directing them to be paid to the clerk of
the peace, as xequired by the Act, is regular. (6)
The sessions have, it seems, no power to order a person
acquitted on appeal to pay any part of the costs of such
appeal, (c)
Where a rule for amendment is opposed, the costs must be
paid by the successful party, (d)
Where one of the justices, before whom a person was con-
victed for breach of the license laws, stated that all the
papers necessary to perfecting the appeal were filed, except
the bond telling the party it was all right, the court allowed
the appeal, though no affidavit had been filed, (e)
(y) Reg. v. Orr, 12 U. C. Q. B. 57.
(2) Re, McCumber, 36 U. C. Q. B. 516.
(a) Budenberg and Roberts, L. R. 2 C. P. 292.
(b) Re Delaney v. Macnab. 21 U. C. C. P., 563.
(c) Reg. v. Orr, 12 U. C. Q. B. 57.
(d) McKay v. McKay, 2 Thomson, 75.
(e) Ibid.
PRACTICE. 447
In Nova Scotia, under the Rev. Stat., c. 95, an appeal under
the River Fisheries Act must he made to the sessions. (/)
The 32 & 33 Vic., c. 30, s. 41, empowers the justice before
whom the prisoner is charged with an indictable offence to
remand, from time to time, for such period as may be reason-
able, not exceeding eight clear days at any one time. Sec. 42
authorizes a verbal remand where the time does not exceed
three clear days.
Where the remand is in open court to the proper officer
there present, no written order or commitment is necessary, (g)
A remand for an unreasonable time would be void. (A) It
seems doubtful whether a judge, sitting in chambers, has
power, on an application of a prisoner for his discharge on a
bad warrant, to remand him, (i) and in aid of the prosecution
to order a certiorari to bring up the depositions ; or whether
the court or judge has power, upon reading such depositions,
to amend a bad warrant of a coroner or issue a new one, for
the purpose of detaining a prisoner in custody, (j)
On discharging a jury charged with a prisoner, because
they are uuable to agree, the court has power, and it is the
duty of the judge, to remand the prisoner to gaol until
delivered in due course of law, or to the next sessions of the
court, fixing or not fixing the day, as the case may be. (k)
When prisoners are remanded to prison, after the disagree-
ment of the jury on the trial, they are detained, not upon the
indictment which is only the accusation and charge found
for their trial, but upon the original commitmeut for the
offence originally charged. (/)
It would seem that the Con. Stats. U. C., c. 112, as to the
reservation of points of law in criminal cases, only confers
on the sessions authority to state a case for the opinion of the
(f) Gough v. Morton, 2 Thomson, 10.
(0) Reg. v. Mulholland, 4 Pugsley & B. 478.
(A) Connors v. Darling. 23 U. C. Q. B. 547-51, per Hagariy, J.
(1) Re Carmichael, 10 U. C. L. J. 325.
(j'l KM.
(k) EJC parte Blossom, 10 L C. J. 32. per Monk, 3.
(1) Ibid. 41, per Badgley, J.
448 THE CRIMINAL LAW OF CANADA.
superior court, where the original hearing and conviction is
at the sessions, and that, when a summary conviction is ap-
pealed to the sessions, there is no power to reserve a case on
such appeal, (m)
The court has authority, in virtue of its inherent jurisdic-
tion at common law, when a prisoner charged with felony is
brought up on a habeas corpus, to look not merely at the com-
mitment, but also at the depositions ; and though the former
be informal, yet if the latter show that a felony has been
committed, and that there is a reasonable ground of charge
against the prisoner, he will be remanded and not bailed, with
a view to amending the warrant, (n)
It would seem that, where proceedings are taken by habeas
corpus and certiorari, under the 29 & 30 Vic., c. 45, the evi-
dence may also be looked at on the return to the certiorari. (o)
This statute had in view and recognizes the right of every
man, committed on a criminal charge, to have the opinion of
a judge of the Superior Court on the cause of his commit-
ment by an inferior jurisdiction. The judges of the Superior
Court are bound, when a prisoner is brought before them,
under the statute, to examine the proceedings and evidence
anterior to the warrant of commitment, and to discharge the
prisoner if there does not appear sufficient cause for his de-
tention, (p)
Before sec. 3 of this statute, there was no way of inquiring
into the truth of the facts as stated in the return. Section
3 provides that, in all cases coming within the Act, although
the return to any writ of habeas corpus shall be good am
sufficient in law, it shall be lawful for the court, or for any
judge before whom such writ may be returnable, to procee
to examine into the truth of the facts set forth in such returr
by affidavit or by affirmation, where an affirmation is allowed
by law.
(m) Pomeroy arid Wilson, 26 U. C. Q. B. 45 ; see also Yearke v. BingU-
man, 28 U. C. Q. B. 551.
(n) Re Anderson, 11 U. C. C. P. 56.
(o) Reg. v. Levtcque, 30 U. C. Q. B. 509.
(p) Reg. v. Mosier, 4 U. C. P. K. 64.
PRACTICE. 449
As to the writ of ccrtiorari, which is always issued along
with the habeas corpus in order to bring up the depositions
and papers, it may now, by the 29 & 30 Vic., c. 45, s. 5, be
returned " to any judge in chambers, or to the court."
Before this Act, writs of ccrtiorari had in practice issued
in vacation, by order of a judge in chambers, but as the
power to do so was questioned, the Act was passed to remove
the doubt, (q)
The prisoner may contradict the return to the writ of habeas
corpus, by showing that one of the persons who signed the
warrant was not a legally qualified justice of the peace, and
it would seem that he could do so even independent of the
above statute, (r) But at all events, this section disposes of
the point by empowering the judge to examine into the truth
of the facts set forth in the return, (s)
No appeal lies from a conviction rendered by a judge of
the Sessions of the Peace for the Province of Quebec. (I)
The 29 & 30 Vic., c. 45, was passed to extend the remedy
by habeas corpus, and enforce obedience thereunto, and pre-
vent delays in the execution thereof.
In doubtful cases, the court always inclines in favor of
liberty, (u) It therefore is the duty of a judge hearing an
application for discharge under a writ of habeas corpus,
when a prisoner is restrained of his liberty under a statute,
to discharge him, unless satisfied by unequivocal words that
the imprisonment is warranted by the statute. (S) It is also
the duty of the judge, when doubting the sufficiency of the
warrant of commitment, to discharge the prisoner, (w) But
the writ should not be used as a means of appealing from
(q) Reg. v. Mosier, 4 U. C. P. R. 70, per /. Wilton, J.
(r) Bailey's case, 3 E. & B. 614 ; Reg. v. Boyle, 4 U. C. P. R, 256.
(*) Keg. v. Boyle, 4 U. C. P. R. 256.
(t) Ex parte Slack, 7 L. C. J. 6.
(u) Beg. v. Boyle, 4 U. C. P. R. 264, per Morrison, J.
(v) Re Slater, 9 U. C. L. J. 21.
(w) Re Beebe, 3 U. C. P. R. 270.
CC
450 THE CRIMINAL LAW OP CANADA.
other tribunals points more relating to practice than affecting
the merits, (x)
It would seem that a judge in chambers has, at common
law, power to issue writs of habeas corpus in cases not within
the 31 Car. II., c. 2. (y) But it seems doubtful whether a
judge in chambers has power to rescind his own order for a
writ of habeas corpus, or to quash the writ itself, on the
ground that it issued improvidently ; or to call upon the
prosecutor or justice to show cause why a writ of habeas
corpus should not issue, instead of at once ordering the issue
of the writ, (z)
A judge, sitting in bane during term in the Practice
Court, has no authority under Con. Stats. U. C., c. 10, s. 9,
to grant a rule nisi for a writ of habeas corpus ad subjicien-
dum ; for until the rule is moved, there is no cause or busi-
ness depending, in relation to the prisoner's conviction or
commitment. Where such rule had been issued there, re-
turnable in full court, it was discharged on this preliminary
objection, (a)
The judges of the superior courts had power to direct the
issue of writs of habeas corpus ad subjiciendum, in vacation,
returnable either in term or vacation, (b)
The 29 & 30 Vic., c. 45, s. 1, confers full authority on any
of the judges of either of the superior courts of law or equity
in Ontario to award, in vacation time, a writ of habeas corpus
ad subjiciendum, under the seat of the court wherein the
application shall be made. Where writs of habeas corpus
were made returnable forthwith, and the prisoners were
brought into court on Tuesday, and the matter directed to be
argued on the following Saturday, and the writs and returns,
which had been filed the day the prisoners were brought in,
were by order of a judge taken off the file again and returned
(x) Cornwall v. Kerf., 33 U. C. Q. B. 103.
(y) Re McKinnon, '2 U. C. L. J. N. S. 327, per A. Wilson, J.
(z) Re Ross, 3 U. C. P. R. 301.
(a) Itetj. v. Smith, 24 U. C. Q. B. 480.
(b) Re Hawkins, 3 U. C. P. R. 239.
PBACTICE. 451
to the sheriff; it was held by a majority of the court that the
court could direct the sheriff to bring in the bodies of the
prisoners on the day set for argument, without directing new
writs to issue, (c)
Where the proper remedy is by writ of error, a habeas
ctjrpus will not be granted, (d)
A writ of habeas corpus has been refused in the case of a
person confined in gaol, under civil process, such as a capias
ad respondcndwm. (e)
As the Imp. Stat. 56 Geo. III., c. 100, is not in force in
this country, it was at least doubtful whether a judge, in
chambers, had power to order the issue of a writ of habeas
corpus, where the custody is not for criminal or supposed
criminal matter. And where, upon the return of a writ of
habeas corpus, it appeared that the prisoner was in custody
under a writ of capias, issued out of a county court, and regular
on its face, but which, it was contended, had been improperly
issued on defective materials, a judge, sitting in chambers,
refused to discharge the prisoner. (/) But provincial stat-
utes have remedied this defect, (g)
The 29 & 30 Vic., c. 45, expressly excepts persons im-
prisoned for debt, or by process in any civil suit; and it
would seem that the writ cannot now be obtained in the case
of a person confined under a capias ad respondendum on civil
process.
A habeas corpus will not be granted to bring up a prisoner
under sentence of conviction at the sessions for larceny, (h)
A judge has no jurisdiction, on a writ of habeas corpus, to
liberate a person found guilty of simple larceny and sen-
tenced to be imprisoned in the penitentiary for life, although
It may appear that the sentence is illegal. The judge to
, (c) Rerj. v. Tower, 4 Pugsley & B. 478.
(d) He McKinnon, 2 U. C. L. J. N. S. 327.
(e) Barber v. O'Hara, 8 L. C. R 216.
(/) Re Bigrjer, 10 U. C. L. J. 32J ; Re Hawkins, 9 U.C.L. J. 298, doubted ;
see, however, Re Runciman v. Armstrong, 2 U. (J. L. J. N. S. 166.
(g) R. S. O., c. 70.
(h) Hey. v. Grabbs, 11 U. C. Q. B. 447.
452 THE CRIMINAL LAW OF CANADA.
whom an application for such writ is made, having no j uris-
diction to reverse the sentence, must abstain from giving an
opinion upon the legality or illegality of such sentence. (2)
His proper course is by petition to the Crown.
In one case, where a person having been sent to the peni-
tentiary upon a judgment which was afterwards reversed as
having been pronounced upon two counts, one of which was
defective, a habeas corpus was ordered to bring him up to
receive the proper judgment, (j)
The mere fact of the warrant of commitment having been
countersigned, under the 31 Vic., c. 16, s. 1, by the clerk of
the Privy Council, does not withdraw the case from the
jurisdiction of a judge on a habeas corpus, (k)
At common law a writ of habeas corpus ad testificandum
may be issued to the warden of the Provincial Penitentiary,
to bring a convict for life before a court of Oyer and Terminer
and general gaol delivery, to give testimony, on behalf of the
Crown, in a case of murder. The writ may be granted before
the sittings of the court commence. (I)
Under the 4 & 5 Vic., c. 24, s. 11, a court of Oyer and Ter-
miner could, while sitting, make an order to any gaol or prison
out of the county where the court was sitting, to bring up a
prisoner, in order to give evidence at the trial. But under
this statute no order could be made until the opening of the
court, (m)
Now the 32 & 33 Vic., c. 29, s. 60, provides that an order
may be made on the warden of the penitentiary to deliver
the prisoner to the person named in such order to receive
him, and the latter shall convey the prisoner to the place of
trial, to obey such further order as to the court may seem
meet.
Where an offender, for whose arrest a magistrate's warrant
is issued, lives in a county different from that where the
(i) Ex parte Plante, 6 L. C. R. 106.
(;) Cornwall v. Reg., 33 U. C. Q. 6. 106.
(k) Reg. \. Boyle, 4 U. C. P. K. 256.
(I) Reg. v. Townsend, 3 U. C. L. J. 184.
(TO) /bid.
PRACTICE. 453
warrant issued, and the warrant is backed to take him in
the county where he resides, and it is there found that he is
a prisoner for debt, in close custody, in such county, he may
be removed under a writ of habeas corpus ad subjiciendum. (n)
A prisoner is not entitled to a Jiabeas corpus, under the 31
Car. II., c. 2, unless there be a "request, in writing, by him,
or any one on his behalf, attested and subscribed by two
witnesses who were present at the delivery of the same." (0)
As a general rule, the affidavit on which an order fora writ
of habeas corpus is moved should be made by the prisoner
himself, or some reason, such as coercion, shown for his not
making it ; and it should be entitled in one or other of the
superior courts. It is discretionary, however, with the judge
to whom the application is rnad^ to receive an affidavit of
a different kind, or one not sworn to by the prisoner him-
self, (p)
It has been held sufficient to return to a writ of habeas
corpus a copy of the warrant under which the prisoner is
detained, and not the original, (q) But the authority of this
case has been doubted, and seems very questionable. It has
been subsequently held that the person to whom a writ of
habeas corpus is directed, commanding him to return " the
cause of taking and detainer," must return the original, and
not merely a copy of the warrant, (r) The sheriff, although
he cannot return a warrant in hcec verba, must return the
truth of the whole matter, (s)
Where a commitment is illegal on its face, the court will
not wait till the committing magistrate has been notified to
produce the papers, but will order a writ of habeas corpus to
issue instanter; (t) and where a prisoner is brought up upon
such a writ, and the return shows a commitment bad upon
(n) Reg. v. Phipps, 4 U. C. L. J. 160.
(o) Re Carmichad, 1 U. C. L. J. N. S. 243.
(p) Re Ross, 3 U. C. P. R. 301 ; 10 U. C. L. J. 133.
(q) Ibid.
(r) Re Carmichael, 10 U. C. L. J. 325.
(«) Reg. v. Mu'holland, 4 Pugsley & B. 476
(t) Exparte Messier, 1 L. C. L. J. 71.
454 THE CRIMINAL LAW OF CANADA.
its face, the court will not, on the suggestion that the convic-
tion is good, adjourn the case for the purpose of having
the conviction brought up, and amending the commitment
by it. (u)
Where a prisoner is, under a writ of habeas corpus, dis-
charged from close custody, on the ground that the warrant
of commitment charges no offence, he is not, under 31 Car.
II., c. 2, s. 6, entitled to his discharge as against a subsequent
warrant, correctly stating the offence, upon the alleged ground
that the second is "for the same offence "as the firsfc arrest. (v)
But it has been held in Quebec, that where particular acts set
forth in a warrant do not give cause of arrest, no new warrant
for the same cause can issue, even where, in a subsequent case
against another person, the courts have held that the grounds
set out on such first warrant did disclose an offence, (w)
The court refused to discharge a prisoner brought up on
habeas corpus, charged with having murdered his wife in
Ireland ; communication having been made by the Provincial
to the Home Government on the subject, and no answer
received, and the prisoner having been in custody less than
a year, (x) The object of the 31 Vic., c. 16, was to suspend
the operation of the writ of habeas corpus, and to deprive the
subject restrained of his liberty, (y)
The county judge, sitting under 32 & 33 Vic., c. 35, as
amended by the 42 Vic., c. 44, has the same authority and
jurisdiction as the Court of Sessions, (2) and his court ij a
court of record, and there is therefore no right to a writ of
habeas corpus, (a)
Although justices of the peace, exercising summary juris-
diction, are the sole judges of the weight of evidence given
before them, and no other of the Queen's courts will examine
(u) Re Tim&on, L. R. 5 Ex. 257.
(v) Re Carmichael, 1 U. C. L. J. N. S. 243.
(w) Ex parte Dewernay, and ex parte Cotte, 10 L. C. J. 248.
(x) Rex v. Fitzgerald, 3 U. C. Q. B. 0. S. 300.
(y) Re Boijk, 4 U. C. P. R, 261, per Morrison, J.
(z) Reg. v. Haines, 42 U. C. Q. B. 208 ; see also Reg. v. Pickt, 39 U. C.
C. P. 409 ; Hey. v. 8t. Denis, 8 U. C. P. R. 16.
(a) Reg. v. St. Denis, supra.
PRACTICE. 455
whether they have formed the right conclusion from it or not;
yet other courts may and ought to examine whether the
premises stated by the justices are such as will warrant their
conclusion in point of law. (b)
When a matter is within the jurisdiction of justices, and
their proceedings are regular and according to law, the court
will not interfere with their decision, though it should be
wrong or unjust, but the court wilH inquire whether the case
was within their jurisdiction or not. Thus, where the nature
of the charge is doubtful, and in the course of the inquiry
it turns out that the case is not one over which they have
jurisdiction, the superior court may, on habeas corpus, examine
the evidence and entertain the question of jurisdiction, (c)
Where justices have to decide a collateral matter, before
they have jurisdiction, and they give themselves jurisdiction
by finding facts which they are not warranted in finding,
the court will review their decision, and if they have,
improperly given themselves jurisdiction, will set aside the
proceedings ; but, where the question is a material element
in the consideration of the matter they have to determine
and they, exercising their judgment as judges of the fact,
have decided it on a conflict of evidence, it is contrary to
principle and practice to interfere ; (d) even though they may
think that, upon the evidence, the justices have come to a
wrong conclusion.
Thus where a charge was preferred to a court of Quarter
Sessions, under 1 Win. & AL, c. 21, s. 6, against a clerk of
the peace, for a misdemeanor in his office, and evidence was
taken, and the court decided that the charges were proved,
and dismissed the clerk of the peace from his office, and
appointed another person in his place ; it was held on a quo
warranto information against the person so appointed, that
the sufficiency of the evidence was a question entirely for the
(6) The Scotia S. V. A. R. 160.
(c) Re ATcKinnan, 2 U. C. L. J. N. S. 327-8, per A. Wilson, J.
(d) Mxparte Vaughan, L. R. 2 Q. B. 116, per Cockburn, C. J.
456 THE CRIMINAL LAW OF CANADA.
court of Quarter Sessions, and the decision of that court could
not be reviewed by the Court of Queen's Bench, (e)
Except when applied for on behalf of the Crown, a cer-
tiorari is not a writ of course ; (/) and is only applicable to
judicial as distinguished from ministerial acts, (g]
The granting or refusing of the writ rests in the discretion
of the court ; and where the proceedings sought to be removed
were completely spent, a$id no benefit would arise from re-
opening them, the order was refused, (h] There is no right
of revision of judgment on an application for this writ; (i)
and a motion having been made for a certiorari and refused,
the court declined to hear a second application, (j )
The court must be satisfied on affidavits that there is suffi-
cient ground for issuing it ; and it must in every case be a
question for the court to decide whether, in fact, sufficient
grounds do exist. (&) And it seems doubtful whether the
applicant should not produce a copy of the proceedings before
the justice, or account for not doing so, (7) and their sub-
stance should in all cases be before the court, (m)
Where a man is chosen into an office or place, by virtue
whereof he has a lawful right, and is deprived thereof by an
inferior jurisdiction, who proceed in a summary way, in such
case he is entitled to a certiorari, ex debito justitice, because
he has no other remedy, being bound by the judgment of the
inferior j urisdiction. (ri)
In other cases, where the application is by the party
grieved, so as to answer the same purpose as a writ of error,
it might be treated like a writ of error, as ex debito justitia ;
but where the applicant is not a party grieved, who substan-
(e) Reg. v. Russell, 5 U. C. L. J. N. S. 129 ; 17 W. R. 402.
(/) Reg. v. Justices of Surrey, L. R. 5 Q. B. 466.
(g) Reg. v. Simpson, 4 Pugsley & B. 472.
(ft) Reg. v. Lord Newborough, L. R. 4 Q. B. 585.
(i) Ex parte Spelman, 10 L. C. J. 81 ; but see contra ex parte Beaupartant,
10 L. C. J. 102.
( ; ) Ex parte. Abel, 2 Pugsley & B. 2.
(k) Reg. v. Gzowski, 14 U. C. Q. B. 591.
(/) EJC parte Abel, 2 Pugsley & B. 600.
(m) EJC Parte. Nevers, 1 Pugsley & B. 5.
(n) See Reg. v. South Holland, D. C. 8 A. & E. 429.
PRACTICE. 457
tially brings error to redress his private wrong, but comes
forward as one of the general public, having no particular
interest in the matter; and if the court thinks that no good
would be done to the public, it is not bound to grant it at
the instance of such a person. (0)
Certiorari may be granted to remove proceedings which are
void, (p)
When a statute gives an appeal, this ('oes not take away
the right to a certiorari. The right can only be taken away
by express words ; and, for this reason, the power given to a
judge of sessions to hear appeals from summary convictions
before justices of the peace does not take away the right of
this court to grant a writ of certiorari to remove such con-
viction, (q) Nor does the fact that the petitioner has a
remedy by trespass affect his right, (r)
Where a defendant has been committed for trial, but after-
wards admitted to bail and discharged from custody, a supe-
rior court of law has still power to remove the proceedings
on certiorari, but in its discretion will not do so where there
is no reason to apprehend that he will not be fairly tried. («)
A writ of certiorari may be granted, though expressly
taken away by statute, (t) where there is ground for the belief
that the conviction was had without proof; (u) and generally
where there is a plain excess of jurisdiction, (v) So it lies
where the conviction, on its face, is defective in substance ; (w)
as, for instance, omitting to state the reasons on which it is
(o) Reg. v. Justices of Surrey, L. R. 5 Q. B. 472-3.
( p) Reg. v. Simpxon, 4 Pugsley & B. 472.
(</) Ex parte Montr/ornery, 3 Allen, 149 ; see also Rex v. Gingras, S. L.
C. A. 560 ; but see ex parte Richards, 2 Pug. 6 ; ex parte Nowlin, Ster.
Dig. 286 ; ex parte Wilson, 1 Pugsley & B. 274.
(r) Ex parte Thompson, 2 Q. L. R. 1 15.
(«) Reg. v. Adams, 8 U. C. P. R. 452. .
(t) Reg. v. Hoggird, 30 U. C. Q. B. 156, per Richards, C.-J.; Barnabyv.
Gardiner, 1 James, 306.
(w) Ex parte Morrison, 13 L. C. J. 295 ; ex pzrte Church, 14 L. C. R
318 ; see also ex parte Lalonde, 15 L. C. J. 251.
M Hespeler and Shaw, 16 U. C. Q. B. 104 ; ex parte Matthews, I Q.L.R.
353
(w) Re Watts, & U. C. P. R. 267-
458 THE CRIMINAL LAW OF CANADA.
based, (x) And a prima facie case, showing want or excess of
jurisdiction, or that the court was illegally convened or irreg-
ularly constituted, will be sufficient to obtain the writ, (y)
But it seems in such cases, that on the return the court
cannot quash the conviction, but can only discharge the
prisoner ; and this even though there be no motion to quash
the certiorari. (z) Still, the conviction being before the
court, it might have power to quash it. (a)
There can be no certiorari after judgment, and the only
course then is a writ of error, (b) Nor can an indictment be
removed by certiorari from the court of General Sessions to
the Queen's Bench, after verdict and before judgment, even
by the consent of parties, for their consent will not authorize
an unprecedented course in a criminal case, (c)
Where a conviction was made, under the Con. Stats. U. C.,
c. 75, and, on appeal to the sessions, the appeal was adjourned
to another sessions, when the conviction was quashed, it was
held that a certiorari might issue to remove the order quash-
ing the conviction, (d)
Where the conviction is already in the possession of the
superior court, no certiorari is necessary, (e)
The court will not grant a certiorari to examine the finding
of a jury or justice of the peace on the facts, but to deter-
mine whether inferior tribunals exceeded their jurisdiction
•in convicting for an offence, which was not within the
statute. (/) A certiorari will lie to bring the record and
proceedings of a court martial before the superior court, (rj)
(x) Ex parte Lalonde, 3 Revue Leg. 450 ; and see ex parte Tremblay, 15
L. C. J. 251.
(y) Ex parte Thompson, 2 Q. L. R. 115.
(z) Her/, v. Johnson, 30 U. C. Q. B. 423 ; Reg. v. Levecque, 30 TJ. C. Q. B.
509 ; and see Reg. v. McAllen, 45 U. C. Q. B. 402.
(a }lbid. •
(b) Reg. v. Crabbe, 11 U. C. Q. B. 447 ; Reg. v. Smith, 10 U. C. Q. B. 99.
c) Reg. v. La/erty, 9 U. C. Q. B. 306.
(d) Re Doyle, 4 U. C. P. R. 32.
(e) Reg. v. Brydge*, 18 L. C. J. 94.
( / ) Hespeler and Shaw, 16 U.C.Q.B. 104 ; ex parte Lanier, 6 Revue Leg.
350 If ex v. Gingras, S. L. C. A. 560 ; Lord v. Turner, 2 Hannay, 13.
Ex parte Thompson, supra.
PRACTICE. 459
But a party imprisoned for contempt of the Court of Ses-
sions cannot have his conviction removed by certiorari. (7i)
In a prosecution, under the Act 5 Wm. IV., c. 2, for non-
performance of statute labor, it must be proved that the party
has been notified by the overseer of the time and place of
meeting to perform the work, and where the affidavits, in
answer to an application for a certiorari to remove the pro-
ceedings in such a prosecution, stated that the party liad
been duly notified, the court made the rule absolute, in order
to ascertain what the notice really was, the appellant having
in his affidavit denied notice, (i)
Mere irregularities in the proceedings of the inferior
court are not sufficient to justify the granting of a writ of
certiorari ; but there must be proof that actual injustice has
been done. (/) Where a defendant applies for a certiorari to
remove an indictment, he must show that it is probable the
case will not be fairiy or satisfactorily tried in the court
below, aad if difficulties in point of law form the ground of
the application, they must be specifically stated, and no mere
general statement will suffice. (&)
Where the defendant, having been convicted on the in-
formation of a toll-gate keeper of evading toll, appealed to
the sassions, where he was tried before a jury and acquitted,
this court refused a writ of certiorari to remove the pro-
ceedings, the effect of which would be to put him a second
time on trial. (/) It would seem that after an acquittal at
the sessions, the writ cannot be granted ; at all events, at
the instance of a private prosecutor, (m) A conviction under
the Con. Stats. L. C., c, 6, by a judge of the sessions of the
peace cannot be brought up before the superior court by
certiorari. (n)
(//) Ex parte Vallvres de St. Real, S. L. C. A. 593.
(i) Ex parte. Fergiuan, 1 Allen, 663.
(j) Ex parte Gauttiier, 3 L. C. R. 498.
it) Re KeUett, 2 U. C. P. R. 102 ; Reg. v. Jowie, 5 A. i E. 539 ; Reg. T.
Josephs, 8 Dowl. P. C. 128.
(/) Re Stewart, 2 L. C. G. 23.
(m) Ibid.-r see Reg. v. Lafferty, 9 U. C. Q. B. 306.
(n) Ex parte VaiUancourt, 16 L. C. R. 227.
460 THE CRIMINAL LAW OF CANADA.
Two persons were convicted of selling intoxicating
liquors without license, in a township where the sale o£
intoxicating liquors, and the issue of licenses authorizing
the sale, were prohibited under the Temperance Act of
1864, 27 & 28 Vic., c. 18. A memorandum of the convic-
tion, simply stating it to have been a conviction for selling
liquor without a license, was given by the justices to the
-accused. An application for a writ of certiorari to remove
the conviction was refused, for it would seem, although the
issue of a license was prohibited by a by-law, it was still an
offence under (Ont.) 32 Vic., c. 32, to sell liquor without a
license, and even if the conviction had been under the Tem-
perance Act of 1864, and not under (Ont.) 32 Vic., c. 32, it
was amendable under 29 & 30 Vic., c. 50; (0) and under the
•Canada Temperance Act, 1878, 41 Vic., c. 16, the right to a
certiorari is taken away in all cases in which the magistrate
has jurisdiction, (p)
Where a judgment has been pronounced in open court,
-and afterwards changed in such a manner as to increase the
amount which the defendant was ordered to pay, the judg-
ment will be set aside on certiorari. (q) And where it is
-shown that there is reasonable doubt as to the legality of
the conviction, a judge will order a certiorari, even though
it has been confirmed by the sessions on appeal, (r)
A conviction by a stipendiary magistrate of the city of
Halifax, under sec. 140 of the City Charter, is receivable on
certiorari. (s)
So, a certiorari lies to remove orders of sessions relating
to the expenditure of the district rates and assessments at
the instance of the Attorney General without notice, (t)
~ Where the magistrate before whom the conviction is had
(o) Re, Watts, 5 U. C. P. R. 247.
(p) Exparte Orr, 4 Pugsley & B. 67.
(q) Exparte MacFarlane, 16 L. 0. J. 221.
(r) Re Sullivan, 8 U. C. L. J. 276 ; but see ex parte Richards, 2 Pug. 6.
(s) Reg. v. Levy, 3 Russ. & Ches. 51.
(t) Rex v. Justices of Newcastle, Draper, 121.
PRACTICE. 461
refuses to certify the proceedings for appeal, the court will
grant a certiorari. (u)
In the case of a conviction for an offence not being a
crime, such as a breach of a by-law, (v) affirmed on appeal
to the sessions, the writ of certiorari is not taken away by
the (Ont.) 38 Vic., c. 4. (10)
In Quebec no certiorari can issue to quash a conviction
under the License Act of that province, until the deposit
required by law has been made, (x)
Proceedings had under the 31 Vic., c. 42, s. 18, are of such
a character as to be susceptible of being removed by certio-
rari. (a)
The Superior Court of Montreal has no jurisdiction to
grant a writ of certiorari, to bring up a conviction had before
a justice of the peace, in the district of Three Rivers, (b)
A conviction before the police magistrate of St. John for
breach of the by-laws of the corporation, cannot be removed
by certiorari. (c) Nor can a conviction by a district magis-
trate of Quebec, under the License Act of that province, even
where the defendant has made the required deposit, (d)
Orders or judgments which are not of a final character do
not give rise to certiorari. (e)
Before a justice can convict a defendant not appearing, the
service of the summons should be proved in open court, and
an affidavit sworn before a commissioner is not sufficient. (/)
And the mode in which such service is proved, and how and
when it was effected, should be entered by the clerk in his
book, and a mere entry of the faci of service is not enough ; (#}
(u) Ex parte Eastabrook, \ Pugsley & B. 283.
(v) Reg. v. Washington, 46 U. C. Q. B. 221.
(w) Re Bates, 40 U. C. Q. B. 284.
(x) Ex purte Dsray, 6 Renue Lr-g. 507.
(a) Ex parte Morrison, 13 L. C. J. 295.
(b) Ex parte Gumming, 3 L. C. R. 110.
(c) Ex parte Harley, 5 Allen, 264.
(d) Ex parte Duncan, 16 L. C. J. 188.
(e) Ex parte The Fabrique of Montreal, 4 Revue Leg. 271.
(/) Reg. v. Golding, 2 Pug. 385.
(g) Ibid.
462 THE CRIMINAL LAW OF CANADA.
and where these requirements are neglected, the conviction
will be quashed on certiorari. (fi)
A certiorari only substitutes the superior court for the
court below, and, whatever ought to have been done by the
inferior tribunal had the case remained there, it must be the
duty of the superior court to do when the case is removed, (i)
And the conviction is there for all purposes, and a party may
move to quash it, however and at whosesoever instance
brought up. (/)
An application for a certiorari should be made at the first
term after the conviction, but where the justice had no juris-
diction in the matter, a certiorari was granted though a term
had elapsed, (k) And special circumstances, as the fact that
papers transmitted to counsel have miscarried, will induce
the court to entertain an application after the first term. (/)
Where an appeal from a summary conviction was made to a
judge of the superior court under the (N". B.) 1 Eev. Stat.,
c. 161, s. 32, by which an appeal from a summary conviction
was required to be made in the same manner as from a
judgment in a civil suit, (m) and dismissed by him, it was
held that a subsequent application for a certiorari should,
in general, be made at the first term afterwards. The court
refused to interfere in such a case, after the lapse of one
term, where the conviction appeared to be sufficient on the
merits ; (n) or where, on proceedings for not altering a
public road, the road had been opened in the meantime, (o)
An application for a certiorari to remove proceedings under
the Highway Act, 13 Vic., c. 4 (N. B.), though no time was
limited by law, should be made without unreasonable delay.
But a delay of one term was held not unreasonable, (p)
(/i) Reg. v. Golding, 2 Pug. 385.
(i) Reg. v. Wiyktman, 29 U. C. Q. B. 214, per Morrison. J.
(j) Reg v. WeMen, 45 U. C. Q. B. 399.
(k) Ex parte Jlfulhern, 4 Allen, 259.
(I) Reg. v. Goldinfj, 2 Pug. 385.
(m) See c. 137, s. 44.
(n) Ex parte U'Regan, 3 Allen, 261.
(o) Rc.x v. Heavlslde, Stev. Dig. 286.
(p) Ex parte Herbert, 3 Allen, 108.
PRACTICE. 463
By the 13 Geo. II., c. 18, s. 5, the writ mast be sued out
within six calendar months next after the making of the
conviction, judgment or order sought to be removed. And
the fact that the notice has been served within that time
does not save a writ issued after the expiration of the six
months, (q) This provision does not bind the Crown, (r)
A writ of certiorari allowed before the expiration of six
months from the day of the conviction, but not sued out
until after the expiry of the six months, will be quashed, (s)
And delay in taking out the writ has always been held to
amount to a forfeiture of it. (t)
A certiorari not prosecuted during six months will be
dismissed on motion, (u)
The statute further enacts that no writ of certiorari shall
thenceforth be granted, issued forth, or allowed, to remove
any conviction, order, etc., made by or before any justice
or justices of the peace, or the General Quarter Sessions,
unless it be duly proved upon oath that the party suing out
the same hath given six days' notice thereof, in writing, to
the justice or justices, or any two of them, if so many there
be, by and before whom such conviction, etc., shall be so
made, to the end- that such justice, or the parties therein
concerned, may show cause against the issuing or granting
of the said certiorari.
A party was convicted of assault before three justices,
and sentenced to pay a fine and costs. He appealed to the
sessions, and the conviction was affirmed. He then obtained
a certiorari, addressed to the chairman of the sessions, to
remove the conviction affirmed by the sessions. The cap-
tion of the order made by the sessions, affirming the con-
viction of the defendant, stated it to have been by the
chairman, and J. K. and W. G., justices. On the ex pa.rU
(<]) Ex pzrte Palmer, 16 L. C. J. 253.
(r) Rex v. Juntices of Newcastle, Draper, 121.
(s) Res v. C/iilla*, Kob. Dig. 74 ; 2 Revue Ley. 52 ; and see ex parte
fttft, 3 Q. L. R. 102.
(t) Ex parte Hough, 5 Q. L. R. 314.
(u) Ex parte Boyer, 2 L. C. J. 188-9 ; ex parte Prefontainc, ibid. 202.
464 THE CRIMINAL LAW OF CANADA.
application for the ceriiorari, the only notices, filed by the
defendant, were notices served on the three convicting
justices. No notice was served on the chairman of the
sessions, or any two of his associates. It was held, on a
rule to quash the certiorari, that the notice required by the
statute should have been given to the chairman of the ses-
sions and his associates, or any two of them, as required by
the statute, and the certiorari, being obtained without such
notice, was set aside, (v)
But where a conviction was made by a magistrate within
twelve days of the sitting of the court, for which notice of
appeal was given, which was therefore inoperative, and the
sessions neither acted on nor confirmed theconviction,and the
same still remained in the custody of the convicting magis-
trate, to whom the certiorari was directed, it was held that
notice to the chairman of the sessions, of the defendant's
intention to move for such writ, was not required, (w)
The notice should be given to the justices actually present,
when the order of sessions is made. It has been held that,
where a rule nisi for a certiorari has been first taken out
and served on the justices, and a rule absolute obtained for
issuing the writ, such a proceeding is not notice to the
justices, and, in such a case, the court has quashed the cer-
tiorari upon motion to do so. (x)
Notice of application for a writ of certiorari must be
given to the convicting justice, and the want of such notice
is good cause to be shown to a rule nisi to quash the con-
viction. (y~) And it has been doubted whether the writ
was properly issued without such notice, though the object
was to obtain the discharge of the prisoner, not to quash
the conviction, (z)
In the Ellis' case, notice was given to the convicting
(v) Reg. v. Ellis, 25 U. C. Q. B. 324 ; 2 U. C. L. J. N. S. 184.
(w) Reg. v. Caxwdl, 33 U. C. Q. B. 303.
(x) Reg. v. Ellis, supra, 326, per Morrison, J. ; Rex v. Nichols, 5 T. R.
281 n. ; Rex v. RaUwlaw, 5 Dowl. P. C. 539.
(y) Reg. v. Ptterman. 23 U. C. Q. B. 516.
(2) Reg. v. Munro, 24 U. C. Q. B. 44.
PRACTICE. 465
justices but not to the chairman of the sessions or to his
associates ; and in the Peterman case, notice was given to the
chairman of the sessions but not to the convicting justice.
Ii would seem, therefore, that notice to both parties is neces-
sary. In a notice, under the statute, of application for a
certiorari to remove a conviction, the grounds of objection to
such conviction need not be stated, (a)
Where, on application for a certiorari, made on notice to
the justices, the rule was refused, such notice cannot inure
to the benefit of a subsequent ex parte application on the same
material, (b)
No notice is necessary where the conviction is already in
the possession of the court, (c) or when the application is
made by the private prosecutor and not by the defendant ;
and the writ in such case issues of course, and without
assigning any grounds, (d)
The cases before lef erred to (e) apply only when the writ
is obtained by the defendant with the view of quashing the
conviction. (/)
An application to a judge in chambers for a certiorari,
should be by a summons or rule nisi, in the first instance, (g)
Where a rule nisi for a certiorari is discharged because the
affidavits are improperly entitled, the application may be
renewed on amended affidavits, (h)
The affidavit of service of notice of motion for the certio-
rari must identify the magistrate served as the convicting
magistrate. But an affidavit, defective in this respect, was
allowed to be amended, the time for moving the certiorari
not having expired. Acceptance of service, and an under-
(a) Re Taylor v. Dary, 1 U. C. P. R. 346.
(6) Reg. v. Me Allan, 45 U. C. Q. B. 402.
(c) Reg. v. Wehlen, 45 U. C. Q B. 399.
(d) Reg. \. Murray, 27 U. C. Q. B. 134.
(e) Reg. v. Ellis, 25 U. C. Q. B. 324 ; Reg. v. Peterman, 23 U. C. Q. B.
(/) Reg. v. Murray, xupra.
(<j) Ex parte Howell, 1 Allen, 584.
(k) Ex parte Bustin, 2 Allen, 211.
DD
466 THE CRIMINAL LAW OF CANADA.
taking to show cause by an attorney for the magistrate, does
not waive this objection, (i)
But an application was refused where three former applica-
tions had failed, two in consequence of a defect in the jurat
of the affidavit, and one in consequence of the rule having
been improperly granted by a judge at chambers. (j~)
Where an order nisi for a certiorari had been served only
four days before the first day of the term at which it was
returnable, the court refused to make the rule absolute, and
enlarged it till next term. (k) And where a rule was served
only the day before the term, the court refused to enlarge it, (I)
By the practice of the courts of New Brunswick, a certiorari
is returnable, unless otherwise ordered, at the term next after
that in which the rule for it is granted; and if not issued and
served before such term, it is too late, (ra)
Where the Christian name of the appellant was misstated
in the writ, it was quashed, and a new writ ordered to issue, (ri)
After the return of a certiorari, affidavits may be used to
show want of jurisdiction in the justice, when the fact does
not appear in the return, (o) But affidavits on which the
writ is obtained cannot be used to contradict the return, (p)
Where a certiorari is applied for, to remove a conviction
with a view to quashing it, before the return to the writ is
filed, affidavits and rules should not be entitled in the cause,
for, until the return is filed, there is no cause in court. So
as soon as the return to the certiorari has been filed, the
cause is in court, and the motion paper and rule nisi must
be entitled in the cause. Where the rule was not so entitled
it was discharged, but, being on a technical objection, with-
out costs, and, under the circumstances of the case, an amend-
ment was not allowed, (q)
(i) He Lake, 42 U. C. Q. B. 206.
(j) Ex parte Irvine, 2 Allen, 519.
(k) Ex parte Lyons, 6 Allen, 409.
(I) Reg. v. Harshman, Stev. Dig. 823.
(m) Ibid. 293.
(n) Reg. v. Walters, 6 Allen, 409.
(o) Reg. v. Simmons, 1 Pugsley, 158.
(p) Reg. v. Harshman, Stev. Dig. 293.
(q) Reg. v. Morston, 27 U. C. Q. B. 132.
PBACTICE. 467
Where a rule nisi was obtained, to show cause why a ctrtio-
rari should not issue to quash a conviction, it was held that
the rule was properly entitled " In the matter of T. B.," and
that it need not state into which court the conviction was to
be removed, for this was sufficiently shown by entitling it in
the court in which the motion was made. After the rule
nisi for the certiorari is made absolute, affidavits, etc., should
be entitled " The Queen against A. B.," etc., but, before, they
are properly entitled " In the matter of A. B." (r)
On applications to quash convictions, the convicting jus-
tice must be a party to the rule, (s)
The writ of certiorari, issuing under the provisions of the
12 Vie., c. 41, must be addressed to the justice of the peace
making the conviction, and not to the bailiff effecting the
service of such writ, and such writ of certiorari addressed to
the bailiff is a nullity, and will be superseded. (£} So a writ
of certiorari, addressed to the superintendent of police, and
which ought to have been addressed to the judge of the
Sessions of the Peace, according to the provisions of the 25
Vic., c. 13, s. 1, will be set aside. Another writ will not be
awarded, on motion to rectify the error in the address of the
first writ. (7*)
It is improper to call on the Court of General Sessions to
show cause to a rule for a certiorari, (v)
In the Province of Quebec the writ should be addressed to
the judge, not to the prothonotary of the court, and a wiit
issued contrary to this rule will be quashed, (w) So will a
writ addressed to the superintendent of police, when it ought
to have been directed to the judge of Quarter Sessions ; and
on motion to rectify the error, a rule will be refused, (x)
But an objection, on motion to quash a conviction, that
the certiorari was improperly directed to aud returned by the
(r) Re Barrttt, 28 U. 0. Q. B. 559.
(*) Reg. v. Law, 27 U. C. Q. B. 260.
(t) R>q. v. Barbeau, 1 L. C. R, 320.
(u) PUon v. Lemoinf, 16 L. C. R. 316.
(v) Re Nash, 33 U. C. Q. B. 181.
(w) Grant v. Lockhead, 16 L. C. R 308 ; 10 L. C. J. 183.
(z) PUon v. Lemoine, 16 L. C. R. 316.
468 THE CRIMINAL LAW OF CANADA.
clerk of the peace and county attorney instead of to the
county judge or magistrate, was overruled, (y)
Under the 12 Vic., c. 41, the original writ, and not a copy,
must be served on the convicting justice ; but it is not neces-
sary to serve a copy of the writ upon the complainant, (z)
A writ of certiorari will be quashed where a copy only of
the writ has been served on the convicting justice, and his
return made thereon, (a)
Where a conviction has been brought up by habeas corpus
and certiorari, under the 29 & 30 Vic., c. 4.5, when, by the
provisions of the 32 & 33 Vic., c. 31, no such writ could issue,
it was held that it could not be quashed, but the court could
only discharge the defendant, (b)
The conviction being in court, however brought up. the
court might be obliged to consider it as upon a certiorari,
issued at the common law, so long as it was regularly in
court, (c)
The 71st section of the 32 & 33 Vic., c. 21, as amended by
the 33 Vic., c. 27, does not prevent the removal of the con-
viction by certiorari. (d) .
The defendant cannot, by motion, compel a petitioner for
certiorari to proceed upon such writ, but the proper course
for the defendant is to issue aprocedendo. (e)
A judgment of the superior court, rendered on a writ of
certiorari, is a final judgment, (/) and, under the circum-
stances in this case, it was held that no appeal lay from such
judgment to the Court of Queen's Bench, as constituted in
Quebec, (g} It seems that no appeal will lie from a judgment
rendered on a writ of certiorari. (h)
(y) Reg. v. Frawley, 45 U. C. Q. B. 227.
(z) Ex parte Filiau, 4 L. C. R. 129.
(a) EJC parte Lahayes, 6 L. C. K. 486.
(b) Reg. v. Levecque, 30 U. C. Q. B. 509.
(c) Ibid. 513, per Wi'xon, J. ; Reg. v. Helller, 17 Q. B. 229 ; Reg. v.
Hyde, 16 Jur. 337.
(d) Reg. v. Levecque. supra, 512, per Wilson, J.
(<?) Ex i>arte Morisset, 2 L. C. R. 302 ; Reg. v. Carrier, ibid.
(f) Boston and Lelievre, 14 L. C. K. 457.
(g) Ibid.
(h) Bazin and Crevier, Rob. Dig. 28.
PRACTICE. 469
The return of the notice of motion for a writ of certiorari
may be made by a bailiff; but if under his oath of office, it is
insufficient. Such return must be proved upon oath, as re-
quired by the 13 Geo. II., c. 18, s. 5. (i)
A return from the justices should be before the court. (/)
And where none had been made by the justices to a cerlio-
rari directed to them, the court held the objection fatal, and
refused to give judgment on the merits, (k)
Where a magistrate on a summary trial takes no written
depositions, but the conviction returned to a cer'iorari sets
out the evidence, the return must be taken prima facie to
give a full and true statement. (/)
Parties failing to make a proper return, and within the.
proper time, will be mulcted in costs, (m)
A justice has no right to refuse to make a return to a writ
of certiorari because the fees due in such case have not been
paid, but a rule nisi for an attachment will not be issued de
piano without previous notice to the justice, (n)
A motion to compel a justice to return the original papers,
under a writ of certiorari, will be granted without costs
against the justice, (o) But, m one case, such motion was
granted with costs, (p)
The justices will be ordered to amend their return in a
proper case. And where a return stated that the order was
not in their possession, they were permitted to amend it by
stating the substance of the order, and if they could not do
this, then how the original order went out of their posses-
sion, (q) And where it appears on affidavit that the convic-
(t) Ex parte Adams, 10 L. C. J. 176, overruling ex parte Roy, 1 L. C. J.
109.
(j) Lordv. Turner, 2 Hannay, 13.
(k) Mosherv. Doran, 3 Russ. & Ches. 184 ; Town of Pictou v. McDonald,
ibid. 334.
(/) Reg. v. Flanniyan, 32 U. C. Q. B. 593 ; ex parte Morrison, 13 L. C. J.
295.
(m) Ex parte Lrroux, 10 L. C. J. 193.
(n) Ex parte Dame*, 3 L. C. R. 60.
(o) Ex parte Demers, 1 L. C. R. 428.
(p) Ex parte Ten-ten, 7 L. C. R. 429.
(q) Reg. v. Vail, 5 Allen, 165.
470 THE CRIMINAL LAW OF CANADA.
tion returned does not truly set forth the evidence given at
the summary trial, they will be ordered to make a proper
return or amend their conviction, (r)
But the evidence can be amended only with the concur-
rence of the witness, if he have signed the deposition ; and
it is only by an amendment of the return that such evi-
dence can be received, nor can it be supplied by affidavits, (s)
But affidavits may be used as before stated to point out the
discrepancy and found an order for amendment.
Where a certiorari simply requires a return of the evi-
dence, the justice need not return the conviction, or a copy
of it. (t) If the justice should have returned the convic-
tion but had not done so, he would be allowed an oppor-
tunity to do so, and amend his return. If he had already
returned the conviction to the clerk of the peace, he might
show that fact, or he might transmit a copy of it instead,
stating why he could not return the original, (u) If the
justice did not truly return the proceedings, he would be
liable for making a false return, (v) A return of affidavit
and warrant only is insufficient (w)
A party appearing to support a conviction cannot object
to the cause being proceeded with, because the justice's re-
turn to the certiorari is not under seal, (x)
In a case where, owing to a mistake in the Crown Office,
a rule to return a writ of certiorari, and afterwards a rule
for an attachment issued, although a return had, in fact,
been filed — more than six months having thus expired since
the conviction — the court was asked to allow process to
issue against the justice for the illegal conviction, as of a
previous term, but the application was refused, (y)
(r) Reg. v. Flannigan, 32 U. C. Q. B. 593 ; but see ex parte Morrison,
13 L. C. J. 295.
(«) Reg. v. McNaney, 7 C. L. J. N. S. 325-6, per Wilson, J.; 5 U.C.P.R.
438.
(t) Ibid. 325, per Wilson, J.
(w) Ibid. 326, per Wilson, J.
(v) Ibid. 325, per Wilson, J.
(w) Rex v. Desgagne, Rob. Dig. 73.
(x) Reg. v. OuUon, 1 Allen, 269.
(y) ReJoice, 19 U. C. Q. B. 197.
PRACTICE. 471
Where a rule nisi for a certiorari to remove a conviction
is discharged, the successful party is not entitled to the
costs of opposing the rule. (2)
No separate application to supersede a certiorari need be
made, but objection may be taken to it in showing cause to
a rule to quash the conviction, (a)
Where irregularity is moved against as a substantive
matter, the court might give an opportunity to amend ; but
if urged against the quashing of a bad conviction, no such
opportunity is afforded. (b)
In showing cause to a rule nisi to quash a conviction, it
was objected that the recognizance roll was irregular, being
dated in the 32nd year of the reign of Her Majesty, while
the conviction was in the 33rd ; but held that this was only
ground for a motion to quash the certiorari or the allowance
of it, and that it could not be shown as a defect against
quashing a bad conviction ; and it would seem the objection
to the recognizance could not be taken at that stage of the
proceedings, (c)
The exercise of jurisdiction, in each of the circuit courts
of New Brunswick, is not entirely confined to one particu-
lar judge, so as to exclude any other judge from sitting and
holding the court, should occasion require ; but the court,
on every day on which it sits, is to be holden before some
one of the judges of the Supreme Court, (d)
Where a circuit court is adjourned to a future day, in
consequence of unfinished civil business, the criminal juris-
diction of the adjourned court is not confined to the trial of
offences committed before the adjournment, or of indictments
previously found, (e)
In the Province of Quebec the following points have been
(z) Exparte Daley, 1 Allen, 435 ; see as to costs, Reg. v. Ipstonet, L. R.
3 Q. B. 216.
(a) Reg. v. McAllan, 45 U. C. Q. B. 402.
(b) Reg. v. Hoggard, 30 U. C. Q. B. 156-7, per Richards, C. J.
(c) Ibid. 152.
(d) Reg. v. Dennit, 3 Allen, 425, per Carter, C. J.
(e) Ibid. 423.
472 THE CRIMINAL LAW OF CANADA.
decided: No motion to quash is necessary in cases of certio-
rari; (/) but in another case, simple inscription was held
not sufficient without a rule to quash, (g) The motion to
quash, if necessary at all, need not contain any reasons. (K)
The six days' notice of the application for certiorari is not
necessary in that province, the ordinary delay of one clear
day being sufficient, (i) The merits of a certiorari may be
heard on the merits of a rule to quash, without an inscrip-
tion for hearing, (j ) But such hearing must be had in one
of the two divisions of the court appointed for such hearing
in ordinary cases, (k) The conviction of an inferior tribunal
will be quashed even after it has been enforced and exe-
cuted. (I)
The police magistrate has jurisdiction to impose a fine of
$100 for assault, (m)
County courts have no jurisdiction in penal actions, unless
it is expressly given them by statute, (n) They have, how-
ever, jurisdiction under R S. O., c. 76, s. 3, to try an action
for a penalty against a justice of the peace, where the penalty
claimed does not exceed $80. (0)
The court of Quarter Sessions does not possess any greater
powers than are conferred on it by statute. It has, however,
jurisdiction over offences attended with a breach of the
peace. But forgery and perjury, not being attended with a
breach of the peace, are not triable at the sessions, (p) Eape
(/) Ex parte Thompson, 5 Q. L. R. 200.
(g) Ex parte Lanier, 6 Revue Leg. 350 ; ex parte Whitehead, 14 L. C. J.
267.
(h) Ibid.
(i) Ibid.
(j) Ex parte Murray, 14 L. C. J. 101.
(*) Ex parte Whitehead, 15 L. C. J. 43.
(I) Ex parte Thompson, 5 Q. L. R, 200.
(m) Ex parte Roy, 5 Revue Leg. 452.
(») O'Reilly q. t.'v. Allan, 11 U. C. Q. B. 526.
(o) Brash q. t. v. Taggart, 16 U. C. C. P. 415.
( p) Reg. v. McDonald, 31 U. C. Q. B. 337-9 ; Reg. v. Yarrington, 1
Salk. 406 ; Rex v. Hay ties, R. & M. 298 ; Rex v. Higyins,2E&. 5 ; Butt v.
Conant, 1 B. & B. 548 ; ex parte Bartlett, 7 Jur. 649 ; Reg. v. Dunlop, 15
U. C. Q. B. 118 ; Reg. v. Currie, 31 U. C. Q. B. 582.
PRACTICE. 473
also, though necessarily involving a breach of the peace, is
not, it seems, within such jurisdiction, q)
Under 32 &• 33 Vic., c. 20, s. 48, the sessions of the peace
cannot try the offences specified in sections 27, 28, aud 29
of that Act. A similar provision is made by c. 21, s. 92,
as to certain offences under it. By c. 29 of the same year,
s. 12, no court of general or quarter sessions, or recorder's
court, nor any court hut a superior court, having criminal
jurisdiction, shall have power to try any treason, or any
felony punishable with death, or any libel. So neither can
the sessions try coinage offences, (r) bribery or personation
at Dominion elections, (s) nor offences against the Act for
preventing lawless aggressions. (£) The enumerated excep-
tions contained in the foregoing statutes, and the excepted
cases of forgery and perjury define, as nearly as may be, what
the general jurisdiction of the sessions of the peace is. The
unexcepted offences they may try ; (u) for instance, kidnap-
ping is within their jurisdiction, (v)
As the court of Quarter Sessions has no jurisdiction in
perjury, a recognizance to appear tor trial on such a charge at
the sessions is wrong ; but certiorari to remove it will be
refused, if the time for the appearance of the party has gone
by. (w)
The quarter sessions is a court of Over and Terminer, and a
venire de novo may be awarded to it by the Queen's Bench, (x)
If an order of justices, in sessions, be defective in one part,
it ma)7 be quashed as to that, and confirmed as to the rest, if
the different parts can be separated, (y)
The court of Quarter Sessions has a general power to
(g) 32 & 33 Vic., c. 20, s. 49 ; 36 Vic., c. 50, s. I.
(r) See 25 Ed. III., c. 2, s. 7 ; 31 Vic., c. 69, s. 4.
(a) 37 Vic., c. 9, s. 118.
(t) 31 Vic., c. 14.
(«) Reg. v. McDonald, 31 U. C. Q. B. 339, per Wilson, J.
(v) Cornwall v. Reg., 33 U. C. Q. B. 106.
(w) Reg. v. Currie, 31 U. C. Q. B. 582.
(x) R"g v. McDonald, 31 U. C. Q. B. 338, per Wilson, J. ; Campbell
Beg., 11 Q. B. 799-814.
(y) Reg. v. Simpson, 1 Hannay, 32.
474 THE CRIMINAL LAW OF CANADA.
adjourn, unless an Act of Parliament plainly intimates an
intention that they should not have such power, (z) The
power of adjournment of any matter of which the court of
sessions may be seized is inherent in the court, and such ad-
journment need not be to the next, but may be to any future
court. Nor need there be a formal adjournment, if some pro-
ceeding is adopted by the court which virtually amounts to
an adjournment, (a)
Where a statute enables two justices to do an act, the
justices sitting in Quarter Sessions may do the same act ; for
they are not the less justices of the peace, because they are
sitting in court in that capacity, (b)
It would seem that the chairman of the Quarter Sessions
cannot make any order of the court, except during the sessions,
either regular or adjourned, (c)
The sessions possess the same powers as the superior courts
as to altering their judgments during the same sessions or
term ; and for that purpose the sessions, as the term, is all
looked upon as one day. (d)
On the first day of the sessions, the appellant's counsel
called on and proved his case. The respondent did not appear.
It was not known that he had employed counsel, and the
court ordered the conviction to be quashed. On the second
day, counsel appeared and stated he had been employed, and
was taken by surprise, and explained the reason of his non-
appearance on the first day, to the satisfaction of the court
and the appellant's counsel, and applied to have the order of
the court, quashing the conviction, discharged. The chair-
man intimated that the application must not be understood
in the nature of a new trial, and that if a jury had decided
the case, the authority of the sessions to disturb the verdict
might be doubted ; but the court above held, on the authority
(2) See Reg. v. Murray, 27 U. C. Q. B. 134.
(a) Reg. v. Justices oj Westmoreland, L. R. 3 Q. B. 457.
(b) Fraser v. Dickson, 5 U. C. Q. B. 233, per Robinson, C. J.
(c) Re Goleman, 23 U. C. Q. B. 615.
(d) Reg. v. Fitzgerald, 20 U. C. Q. B. 546, per Robinson, C. J.
PRACTICE. 475
of ffolbom v. Danes, (e) that the sessions had power to revoke
the order quashing the conviction, (/) and may alter their
Judgment at any time daring the same session, (g}
It seems that the fact of a bench warrant havinsr no seal
o
does not make it invalid, (y) and a warrant of commitment
under the seal of the court or signature of the chairman, is
not necessary, (i)
An attorney-at-law has no right to act as an advocate in a
court of Quarter Sessions, (/) and it is not in the power of
county court judges to allow attorneys, who are not barristers,
to practise before them as advocates in county courts, (k)
A party prosecuting under s. 28 of the Criminal Procedure
Act, 1869, has no right to be represented by any other advo-
cate than the representative of the Attorney General. (I)
The Attorney General or Solicitor General may delegate
to counsel prosecuting for the Crown the authority vested in
him under sec. 28 of the 32 & 33 Vic., c. 29, to direct an
indictment to be laid before the grand jury for certain of-
fences, (m)
It seems that the judges of every court have power to
regulate its proceedings as to who shall be admitted to act as
advocates, and that there is no positive rule of law to prevent
any court of justice from allowing the attorney, even of a
private individual, from- acting as an advocate, (n) But it
would seem that these remarks can only hold when there is
no statute excluding the person permitted to act. (o)
When a case has been reserved for the opinion of the supe-
(e) 2 Salk. 494-606.
(/) McLean and McLean, 9 U. C. L. J. 217.
(g) Ibid.; Re Smith, 10 U. C. L. J. 29.
(h) Eraser v. Dkkson, 5 U". C. Q. B. 234, per Robinson, C. J.
(t) Ovens \; Taylor, 19 U. C. C. P. 49.
(j) Reg. v. Erridge, 3 U. C. L. J. 32.
(k) Re Brooke, 10 U. C. L. J. 49 ; see also Re Lapenotiere, 4 U. C. Q. B.
492.
(I) Reg. v. St. Armour, 5 Revue Leg. 469.
(m) Reg. v. Abrahams, 24 L. C. J.' 325.
(n) Reg. v. Carter, 15 L. C. R. 295-6, per Meredith, J.
(o) See Re Judge, C. C. York, 31 U. C. Q. B. 267.
476 THE CRIMINAL LAW OF CANADA.
rior court, the Court of Sessions are no longer in possession
of it, either to pass sentence or for any other purpose, (p)
The power of fining and imprisoning, necessary to consti-
tute a court of record, must be a general power, and a limited
power of fining and imprisoning, such as the power to im-
pose a specific pecuniary penalty and a certain number of
days' imprisonment, does not constitute a court of record, (q)
A court of Quarter Sessions, being a court of record, has
jurisdiction to fine for contempt of court ; and a counsel was
fined for using insulting language to a juryman, and thereby
obstructing the business of the court. The Court of Queen's
Bench will exercise a supervision in such cases, and see that
the inferior court has not exceeded its jurisdiction, (r]
Criminal informations.— Where an indictment will lie for
a misdemeanor, an information may also be sustained, (s)
Formerly any person might file a criminal information in
the Queen's Bench, for a misdemeanor, against any other,
and such informations were frequently resorted to as a
means of extorting money, (t) The abuse was effectually put
a stop to by the 4 & 5 W. & M., c. 18, which enacts : " The
clerk of the Crown, in the King's Bench, shall not, without
express orders given by the court in open court, receive or
file any information for a misdemeanor before he shall have
taken, or shall have delivered to him, a recognizance, from
the person procuring such information, to be exhibited in
the penalty of £20, conditioned to prosecute such informa-.
tion with effect."
The remedy, by criminal information, obtains in Quebec,
and the duties and powers of the clerk of the Crown, in
such cases, are analogous to those of the master of the Crown
Office, or clerk of the Crown, in England, (w)
A party applying for a criminal information must declare
(p) Reg. v. Boultbee, 23 U. C. Q. B. 457.
(q) Young v. Woodcock, 3 Kerr, 554.
(r) Re Pater, 5 B. & S. 299 ; 10 Jur. N. S. 972.
(s) Reg. v. Mercer, 17 U. C. Q. B. 630-1, per Burns, J.
(t) Arch. Cr. Prac. 17.
(u) Ex parte Gugy, 9 L. C. R. 51.
PRACTICE. 477
that he waives all other remedies, whether by civil action or
otherwise, (v)
It is an established rule that no application for a criminal
information can be made against a justice, for anything done
in execution of his office, without previous notice, (w)
The justice is entitled to six days' notice of the motion ;
and the motion must be made in time to enable the party
accused to answer during the same term. (#) And where the
motion was made after two terms had been suffered to pass,
and after a court of Oyer and Terminer had been held in the
district, it was refused. (?/)
A motion for a rule for a criminal information, once dis-
charged for irregularity or insufficiency of proof, cannot be
renewed by amending the irregularity or supplying the de-
ficiency of proof (2)
If the conduct of the prosecutor has been blamable, the
court will not grant a criminal information against a magis-
trate at his instance ; but it' the conduct of the magistrate is
not justifiable, the rule will be discharged without costs, (a)
The pei-son in whose behalf the application is made cannot
move the rule in person, (b) The motion must be made by
a barrister or counsel, (c)
To support a motion for leave to file a criminal informa-
tion against a justice of the peace, the affidavits should not
be entitled in a suit pending, (d)
A criminal information must be signed by the clerk of
the Crown or master of the Crown office, (e)
(v) Ex parte Gugy, 9 L. C. R. 51 ; see also Reg. v. Sparrow, 2 T. R. 198 ;
Wakley\. Cook?, 16 M. & W. S2'2.
(w) R>-g. v. Homing, 5 B. & Ad. 666.
(x) Reg. v. Heustit, 1 James, 101 ; Re Complaint Bustard v. Schofield, 4
U. C. Q. B. 0. S. 11.
(y) /ftW.
(z) Ex parte Guyy, 9 L. C. R. 51.
(a) JR»(j. v. Munro, Stev. Dig. 411.
(b) Ex parte Gwty, 9 L. C. R. 51.
(c) 1 Chit. Rep. 6 >2.
(d) Re Complaint Bustard v. Schofield, 4 U. C. Q. B. O. S. 11 ; Reg. v.
Harrison, 6 T. R 60.
(e) Reg. v. Crooks, 5 U. C. Q. B. O. S. 733.
478 THE CRIMINAL LAW OF CANADA.
An information in the name of the Attorney General will
be dismissed with costs, on an exception a la forme, it being
signed by certain attorneys styling themselves " procureurs
du Procureur Ge'ne'ral," inasmuch as the Attorney General,
when appearing for Her Majesty,- cannot act by attorney. (/)
A criminal information by the Attorney General of New
South Wales, against a member of the Legislative Assembly
of that colony, for an assault on a member, committed
within the precincts of the House while the assembly was
sitting, in addition to charging the assault in fit and apt
terms, averred that such assault was " in contempt of the
said assembly, in violation of its dignity, and to the great
obstruction of its business ;" but the information was held
good on demurrer, as the alleged contempt of the Legislative
Assembly was the statement of a consequence resulting from
the assault ; and whether that consequence did or did not
result from the assault, or whether it was a mere aggravation
of the assault, was immaterial. The words did not alter the
character, or the allegations with regard to the character, of
the offence charged, and, if surplusage, they might be re-
jected. (#)
A criminal information, being the mere allegation of the
officer who files it, may be amended, (h)
In an information for intrusion, the venue may be laid in
any district, without regard to the local situation of the
premises, (i)
Where there is no proof that the defendant has been out
of possession for twenty years, the defendant cannot, under
a plea of not guilty to an information of intrusion, give evi-
dence of title under a Crown lease. (/)
On applications for criminal informations, the court is in
the position of a grand jury, and requires the same amount
(/) Attorney General v. Laviolette, 6 L. C. J. 309.
(g) Attorney General v. Macpherson, L. R. 3 P. C. App. 268.
(h) Re Con'klin, 31 U. 0. Q. B. 167, per Wilson, ,f.
(i) Attorney General v. Dockstader, 5 U. C. Q. B. 0. S. 341.
(j) Reg. v. Sinnott, 27 U. C. Q. B. 539.
PRACTICE. 479
of evidence as would warrant a grand jury in finding a true
bill ; (&) and the case for the prosecution may be disproved
by affidavit on showing cause, and the application discharged
with costs on such evidence. (/)
Criminal informations will be granted only when affecting
persons occupying official or judicial positions, and filling
some office which gives the public an interest in the speedy
vindication of their character, or to cases of a charge of a
very grave and atrocious nature ; and the manager of a large
railway company was therefore held not entitled to this
special favor, (m) and one learned judge expressed grave
doubts as to its propriety in any case, (n)
A rule nisi for a criminal information for libel having
been obtained against J. S., on affidavits which stated that
a copy of a newspaper had been purchased from a salesman
in the office of the newspaper, and that, by a foot-note to the
newspaper, J. S, was stated to be the printer and publisher
of the newspaper, and that the deponent believed J. S. to be
the printer and publisher, the court discharged the rule on
the ground that the affidavit contained no legal evidence of
publication, and that an affidavit on information and belief
was not legal evidence. But a defect in the affidavits on
which the rule nisi for a criminal information has been ob-
tained, may be supplied by a statement in an affidavit of the
defendant, made in showing cause against the rule, (o) The
affidavit, upon which the application is made, must disclose
all the material facts of the case, and if a material fact be
suppressed or misrepresented, the court will discharge the
rule, very probably with costs, (p)
Bail. — The object in committing parties to prison is to
(k) Ex parte Gugy, 9 L. C. R. 51.
(I) Rex v. Bate*, Stev. Dig. 411.
(m) Reg. v. Wilton, 43 U. C. Q. B. 583 ; following ex parte Davidson,
London Times of 2nd August, 1878.
(n) Ibid.
(o) Reg. v. Stanger, L. R. 6 Q. B.352.
(p) Reg. v. Willett, 6 T. R. 294 ; Reg. v. Williamson, 3 B. & Aid. 582 ;
Arch. Cr. Pldg. 113.
480 THE CRIMINAL LAW OF CANADA.
ensure their appearance to take their trial, and the same prin-
ciple is to be adopted on an application for bail. It is not a
question as to the guilt or innocence of the prisoner, but of
the probability of his appearing to stand his trial, (q) On
this account, it is necessary to see whether the offence is
serious and severely punishable, and whether the evidence
is clear and conclusive, (r)
Where the charge against a prisoner is that he procured
a person to set fire to his house, with intent to defraud an
insurance company, and it is shown that the prisoner at-
tempted to bribe the constable to allow him to escape, the
probability of his appearing to stand his trial is too slight
for the judge to order bail, (s) And this even though some
months must elapse before a criminal court competent to
try the case would sit. (t)
On an application by prisoners in custody on a charge of
murder under a coroner's warrant, it is proper to consider
the probability of their forfeiting their bail, if they know
themselves to be guilty, and where, in such a case, there is
such a presumption of the guilt of the prisoners as would
warrant a grand jury in finding a true bill, they should not
be admitted to bail. (u)
A prisoner confined upon a charge of arson may be ad-
mitted to bail after a bill found by a grand jury, if the
depositions against him are found to create but a very
slight suspicion of his guilt, (v) A prisoner in custody for
larceny may be admitted to bail, when the evidence dis-
closes very slight grounds for suspicion, (w) So upon a
charge of aggravated assault, (x)
So a prisoner charged with murder may, in some cases,
in the exercise of a sound discretion, be admitted to bail.
(q) Exparte Maguire, 1 L. C. R. 59.
(r) Reg. v. Brynes, 8 U. C. L. J. 76 ; Reg. v. Scaife, 9 Dowl. P. C. 553.
(s)Jteg. v. Brynes, supra.
(l)'Jbid.
(u) Reg. v. Mullady, 4 U.C.P.R. 314. ; ex parte Corriveau, 6 L.C.R. 249.
(v) Exparte Maguire, 1 L. C. R. 57.
(w) Hex v. Jones, 4 U. C. Q. B. O S. 18.
(x) Re McKinnon, 2 U. C. L. J. N. S. 324,
PRACTICE. 481
And where, on a trial for that crime, the jury disagreed, the
court has admitted a prisoner to bail, (y) But usually,
where a true bill has been found on an indictment for
murder, bail will be refused, (z)
On an application for bail, the court may look into the
information, and, if they find good ground for a charge of
felony, may remedy a defect in the commitment, by charg-
ing a felony in it, so that the prisoner would not be entitled
to bail on the ground of the defective commitment, (a) A
person charged with having murdered his wife, in Ireland,
will not be admitted to bail until a year has elapsed from
the time of the first imprisonment, although no proceedings
have in the meantime been taken by the Crown, and no
answer has been received to a communication from the Pro-
vincial to the Home Government on the subject, (b)
A prisoner charged with felony may be released on bail,
if it is satisfactorily established that, unless liberated, he
will in all probability not live until the time fixed for his
trial, (c)
' Prisoners charged with murder cannot be admitted to
bail, unless it be under very extreme circumstances, a«
where facts are brought before the court to show that the
bill cannot be sustained. The fact that prisoners indicted
for wilful murder cannot be tried until the next term, is no
ground for admitting them to bail, (d) Accessories after
the fact, -who have merely harbored prisoners guilty of
murder, may be admitted to bail, (e)
The court may order bail in a case of perjury. (g} And
indeed, under 32 & 33 Vic., c. 30, it is obligatory upon
justices of the peace to admit to bail in all cases of misde-
(y) Ex parte Baker, 3 Revue Critique, 45.
(z) Reg. v. Keeler, 7 U. C. P. R. 117.
(a) Rex v. Higgins, 4 U. C. Q. B. O. S. 83.
(6) Rex v. Fitzgerald, 3 U. C. Q. B. O. S. 300.
(c) Ex parte Bloszom, 10 L. C. J. 71, per Meredith, .f.
(d) Reg. v. Murphy, 1 James, 158.
(e) Ibid.
(g) Reg. v. Johnson, 8 L. C. J. 285.
EE
482 THE CRIMINAL LAW OF CANADA,
meanors. The statute is equally binding upon the judges of
the superior courts, (i)
The word "shall," in s. 56 of this statute, is imperative. (/)
Therefore, where prisoners had been twice tried for misde-
meanors, and the juries on both trials discharged because of
disagreement, an order of the Court of Queen's Bench, Crown
side, that the prisoners be committed to gaol without bail or
main prize, to stand their trial at the next term, and not to be
discharged without further order from the said court, was held
void. (&)
The word " may," in the 32 & 33 Vic., c. 30, s. 52, must be
considered as conferring a power, and not as giving a discre-
tion. The object of the Act is to declare that one justice
cannot bail in felony, but may in misdemeanor. (I)
Although a statute may require the presence of three
persons to convict of an offence, yet one has power to bail
the offender in all cases of misdemeanor, by the common law
unless prevented by some statute, (m)
Where two juries have disagreed and been discharged, on
the trial of a person for misdemeanor, the law, from these
circumstances, raises such a presumption of innocence as to
entitle him to his discharge on bail. (•»)
Where the prisoners were convicted at the sessions, on an
indict ment for felony, and a case reserved for the opinion of
the Queen's Bench, which had not been argued, a judge in
chambers refused to bail, except with the consent of the
Attorney General, (o) for the Con. Stats. U. C., c. 112, vestec
the discretion to bail, upon a case reserved, in the court
which tried the prisoners, (p)
The fact of one assize having passed over since the com-
mittal of the prisoners, without an indictment having been
(t) Ex parte Blo.mom, 10 L. C. J. 73, per Meredith, J.
(/) llnd. 35, 67-8.
(k) lltul. 35-46.
(/) Ibvl. <>7, p T Meredith, J.
(m) Kiny v. Orr, 5 U. C. Q. B. O. S. 724.
(«) MK parte Hlofisom, 10 L. C. J. '29-45.
(o) A>f/. v. tiagc., '2. U. C. P. R. 138.
i \p) Ibtd. 139, per Robinson, C. J.
PRACTICE. 483
preferred, is in itself no ground for admitting them to bail •
and it can have no other influence than to induce a some-
what closer examination of the evidence on which the
prisoner is committed. Where the prisoner does not bring
himself within the 31 Car. II., c. 2, s. 7, by praying, on the
first day of the assizes, to be brought to trial, as the Crown is
not therefore bound to indict him at that court, the granting
of bail is discretionary, and cannot be claimed as a right, (q)
After the accused has pleaded not guilty to an indictment,
no default can be recorded against him without notice, unless
it be on a day appointed for his appearance, (r)
Where a party accused of perjury has been arraigned and
has pleaded not guilty, and no day certain has been fixed for
the trial, and no forfeiture of his bail has been declared, the
mere failure of the party, when called upon to answer in the
term subsequent to that in which he was arraigned, cannot
operate as a forfeiture of such bail, (s)
It an offence is bailable, and the party, at the time of his
apprehension, is unable to obtain immediate sureties, he may
at any time, on producing proper persons as sureties, be liber-
ated from confinement, (t)
A person accused of theft had given a recognizance of bail,
but after the finding of the indictment against him by the
grand jury, and before trial, had absconded. A rule nisi,
to enter up judgment on the recognizance, was obtained, on
an affidavit of the clerk of the Crown, of the fact of a recog-
nizance having been entered into by the defendant, of the
signature of the justices of the peace thereto, and its return
into the superior court, and the non-appearance of the party
to plead to the indictment. A copy of this rule, together
with a copy of the affidavit, was served on each of the defend-
ants. It was held that the rule nisi was proper, instead of a
proceeding by scire facias, and that such judgment might be
(q) Reg. v. Midlady, 4 U. C. P. R. 314.
(r) Reg. v. Crotf.au, 9 L. C. R. 67.
(«) Attorney General v. Beaulieu, 3 L. C. J. 117.
U) Rcparte Blossom, 10 L. C. J. 68, per Meredith, J.
484 THE CRIMINAL LAW OF CANADA.
properly entered on an affidavit of the service of the rule nisi
therefor on the bail, and their failing to show cause. (u)
Where bail entered into a recognizance conditioned for the
appearance of their principal to answer a charge ot assault
with intent to commit rape, and the only bill found against
the accused was for the more serious offence of rape, and his
recognizance was estreated for his non-appearance to answer
that charge, a rule nisi was made absolute for their relief from
the estreated recognizance, for they did not become bail for
the appearance of the accused to answer a charge of rape, and
therefore his non-appearance to answer that charge was no
breach of the recognizance, (v)
In an ordinary recognizance of bail, on an indictable
charge, the accused is not bound to appear unless a bill be
found against him. Where, therefore, the accused was
called, though the grand jury had not, owing to absence of
witnesses, an opportunity of finding a bill, and the recog-
nizance was estreated, a rule was made absolute for the relief
of the bail, (w) And a recognizance which omits the words
"to owe" is void, (x)
Defendant, having entered into a recognizance to appear
at a certain assizes, attended until the last day, when he left,
assuming, as no indictment had been found, that the char<j
against him was not intended to be prosecuted. He ~wt,
however, called, and his recognizance estreated. The court
under the circumstances, relieved him and his sureties, unde
the Con. Stats. U. C., c. 1L7, s. 11, on payment of costs, anc
on his entering into a new recognizance to appear at the fol-
lowing assizes, (y)
It is no ground for discharging the estreat of a recognizaiK
of bail that the accused did not receive from the justice, wl
(u,) Reg. v. Thompson, 2 Thomson, 9 ; affirmed by Reg. v. Cudihey, I Old-
right, 701.
(v) R«I. v. Wheeler, 1 U. C. L. J. N. S. 272.
(w) R?cj. v. Ritchie, 1 U. C. L. J. N. S. 272.
(z* SKI/, v. Hoodless, 45 U. C. Q. B, 556.
(y) Rey. v. McLeod, 24 U. C. Q. B. 458.
PRACTICE. 485
took the recognizance, the notice directed to be given by the
7 William IV, c. 10, s. 8. (2)
When a recognizance is entered into for the appearance-
of the accused in the Court of Queen's Bench, it is the duty
of the judges of that court to estreat the recognizance in the
event of forfeiture, (a)
Where a prisoner charged with felony had been admitted
to bail upon an order of a j udge in chambers, and an appli-
cation was subsequently made to rescind such order and to
recommit the prisoner to gaol, on the ground that he had not
been committed for trial at the time such order was granted,
being in custody only under a warrant of remand, and also
upon the ground that the bail put in was fictitious ; the court
held that a judge in chambers had the power to make the
order asked for ; that when bail are insufficient or fictitious
better sureties may be ordered ; and the sureties in this case
appearing to be fictitious, the order was conditional upon the
failure of the prisoner to find new sureties within a specified
time, (b)
An application for bail must be made upon affidavits en-
titled " In the Queen's Bench," verifying copies of the
depositions, (c) The affidavits should be accompanied by a
certified copy of the commitment, (d)
Where a prisoner makes application to a judge in chambers
to be admitted to bail to answer a charge for an indictable
offence, under the 32 & 33 Vic, c. 30, s. 61, the copies of in-
formation, examination, etc, may be received, though certified
by the County Crown Attorney and not by the committing
justice. Under ss. 38 and 58 of this statute, the committing
magistrate has still power to certify copies of the information,,
examination and depositions close under his hand and seal, (e)
(z) Reg. v. Schram, 1 U. C. Q. B. 91.
(a) Reg. v. Croteau, 9 L. C. R. 67.
(6) Reg. v. Mason, 5 U. C. L. J. N. S. 205 ; 5 U. C. P. R. 125.
(c) Reg. v. Barthelmy, 1 E. & B. 8 ; Dears. 60.
(d) Arch. (Jr. Pldg. 89.
(e) Reg. v. Chamberlain, 1 U. C. L. J. N. S. 157 ; ibid. 142 ; see also Con.
Stats. U. C. c. 106, s. 9.
486 THE CRIMINAL LAW OF CANADA.
Juries, — The institution of grand juries, if not carefully
guarded, is liable to abuse, as it furnishes facilities for fraud
and oppression by giving an opportunity to a wicked per-
son to go before a secret tribunal, and, without notice to the
party accused, have a bill of indictment found against him,
which, whether true or false, may be used as an engine of
extortion ; further proceedings may be abandoned if the
prosecutor can be bribed, so that justice is defeated if the
defendant be guilty, or an infamous wrong may be inflicted
upon him if innocent. The 32 & 33 Vic., c. 29, s. 28,
amended by the 40 Vic., c. 26, was passed with a view to
suppress vexatious proceedings of this description. But it
is not necessary that the performance of any of the condi-
tions mentioned in this statute should be averred in the
indictment, or proved before the petty jury. (/)
The proceedings of grand juries are subject to the re-
vision of the courts, and will be quashed if irregular. Thus,
where a prosecutor was on the panel of grand jurors, who
found a true bill, the indictment was quashed ; and it made
no difference that he was not present when the bill was
found. (<?)
It is no objection, however, to a grand jury panel that a
juror whose name is on the list has not been summoned, or
that a person has been summoned whose name was by error
omitted from the list, but afterwards added by the clerk of
the court, (h)
Nor is it a ground for quashing an indictment that some
•of the grand jury were related to the officer who arrested
the prisoner, (i) No more is a sheriff disqualified from
summoning the jurors because he has directed the arrest.(/)
When the indictment is preferred by the direction, or
with the consent in writing, of a judge of one of the superior
courts, it is for the judge, to whom the application is made
(f) Knowlden v. Reg., 5 B. & S. 532 ; 33 L. J. (M. C.) 219.
(g) Reg. v. Cunard, Ber. (N. B.) 326.
(k) Reg. v. Mailloux, 3 Pugsley, 493.
(i) Ibul.
(j) Ibid.
PRACTICE. 487
for such direction or consent, to decide what materials
ought to be brought before him, and it is not necessary to
Bummon the party accused, or to bring him before the
judge, (k)
Where three persons were committed for conspiracy, and
afterwards the Solicitor General, acting under this statute,
directed a bill to be preferred against a fourth person who
had not been committed, and all four were indicted together
for the same conspiracy, such a course was held to be un-
objectionable. (/)
It seems that where, in a civil action, the jury find a
party guilty of a crime, as where in an action on a policy
of insurance against fire arson is set up in the plea, and the
jury find the party guilty thereof, the plaintiff may be tried
on this finding for the criminal offence without the finding
of the grand jury, (m)
The evidence offered to a grand jury is evidence of ac-
cusation only. It is to be given and heard in secret accord-
ing to the oath administered. The accused has no right to
appear before or be heard by the grand jury, either for the
purpose of examining his accuser or of offering exculpatory
evidence.
Evidence before a grand jury can only be received under
the sanction of an oath, so that if any false statement be
made, the person may be punished. The oath may be ad-
ministered by the foreman ; but it can only be administered
when the jury are assembled as such.
The law requires that twelve members should be present
for the purpose of any inquiry, and twelve of them must
assent to any accusation.
When a charge is presented to a grand jury, they should
consider whether the accused is capable of committing the
crime, and this involves the criminal liability of infants,
persons non compotes mentis, married women, etc.
(i) Reg. v. Bray, 3 B. & S. 255 ; 32 L. J. (M. C.) 11.
(I) Knowlden v. Reg. , supra ; Arch. Cr. Pldg. 5.
(m) Richardson v. Can. W. F, Ins. Co., 17 U. C. C. P. 343, per/. Wil»o», J.
488 THE CRIMINAL LAW OF CANADA.
A reasonable conclusion only is required, and the rest is
for the jury on the trial. They must have reasonable evi-
dence of the corpus delicti, and that the accused is the
guilty person. The intent laid or charged against the ac-
cused should clearly appear, either expressly or by neces-
sary implication, from the circumstances, (n)
The record of a conviction for murder set out in the cap-
tion that the indictment was found at a general session of
Oyer and Terminer and General Gaol Delivery, before the
chief justice of the Common Pleas, duly assigned, and under
and by virtue of the statute in that behalf, duly authorized
and empowered to inquire, etc., setting out the authority to
hear and determine, as formerly given in commissions, but
not to deliver the gaol. It was then stated that, at the said
session of Oyer and Terminer and General Gaol Delivery, the
prisoner appeared and pleaded, and the award of venire was,
" therefore let a jury thereupon immediately come," etc. This
record was returned to a writ of error, directed, " To our
Justices of Oyer and Terminer for our county of C., assigned
to deliver the gaol of the said county of the prisoners therein
being, and also to hear and determine all felonies, etc." On
error brought, it was held that the authority of the justice
sufficiently appeared without any statement whether a com-
mission had issued or been dispensed with by order of the
governor, for such courts are now held not under commis-
sions, but by virtue of the statute, Con. Stats. U. C., c. 11, as
amended by 29 & 30 Vic., c. 40, and as the record sufficiently
showed the absence of any commission, it must be presumed
that it seemed best to the -governor not to issue one. The
record showed the court to be held by a person competent to
hold it, either with or without a commission, and was there-
fore sufficient. (0) But it would seem that if the court had
been held by a Queen's counsel, or county court judge, it
might have been necessary to show whether a commission
had issued or not, because he would only have authority if
(n) See charge of Mr. Jus. Burns, 8 U. C. L. J. 6.
(o) Whelan v. Reg., 28 U. C. Q. B. 2.
PRACTICE. 489
named in the commission, or appointed by one of the supe-
rior court judges.
It would seem, also, that if the caption had been defective >
it might have been rejected altogether under Con. Stats.
Can., c. 99, s. 52.
In the same case, it was objected that the only authority
shown being that of Oyer and Terminer, the award, " there-
fore let a jury thereupon immediately come," was unauthor-
ized, and a special award of venire facias was requisite ; the
court held, assuming, but not admitting, that in England there
is a difference in this respect between the power of justices
of Oyer and Terminer and of Gaol Delivery, and that the
record showed no authority to deliver the gaol, that in this
country, by the Jury Act, Con. Stats. U. C., c. 31, both have
the same powers, the general precept to summon a jury being
issued by both before the assizes, (p)
A judge of assize, as such, may, by force of the statute 27
Edw. I., c. 3, deliver the gaol without any special commission
for that purpose, (q)
The court is bound to take judicial notice of the powers of
a court of General Gaol Delivery, and, wherever it is recited
on a record that anything was done at such a court, if it is
found that such court has power to do the thing recited, it
must be held to be rightly done, (r)
As to serving on juries, infancy has been considered a
ground of disqualification, on account of the probable defi-
ciency of understanding. Being over the prescribed age has
been considered only a ground for not returning the juryman,
and there is no known head of challenge under which the
objection can be made to a juryman over the prescribed age,
if otherwise competent. The statute 13 Edw. I., c. 38, being
in the affirmative, leaves infants disqualified as at common
law. (s)
(p) Whelan v. Reg., 28 U. C. Q. B. 2.
(g) Ibid. 44, per A. Wilson, J.
(r) Ibid. 85, per Richard*, C. J.
(a) Mulcohy v. Reg., L. R. 3 E. & I. App. 315. per Willes, J.
490 THE CRIMINAL LAW OF CANADA.
This statute enacts, in peremptory terms, that old men
above the age of seventy years shall not be put upon juries.
But the prohibition in the statute was not intended as a dis-
qualification, but merely as an exemption ; for if they were
put upon the panel, they could not be challenged, (t)
The R S. O., c. 48, makes a clear distinction between dis-
qualification and exemption. Where, therefore, a juryman
was returned whose age exceeded sixty years, that fact only
operated in his favor as an exemption, but was not a ground
for challenge as a personal disqualification. By this statute
every one between the ages of tweut}r-one and sixty was
qualified. By sec. 7, every person upwards of sixty years of
age is absolutely freed and exempted from being returned
and from serving on juries, and shall not be inserted in the
rolls to be prepared and reported by the selectors of jurors.
An alien, qualified and resident as the statute prescribes,
may be a juror in Nova Scotia, (v)
By s. 11 of R S. 0., c. 48, no man, not being a natural born
or naturalized subject of Her Majesty, shall be qualified to
serve as a grand or petit juror; so that now, juries de mediatate
linguae having been abolished, an alien is never admitted as a
juror in the Province of Ontario.
Objection to the jury panel, after verdict, can only be taken
by writ of error, (w)
The object of a challenge is to have an indifferent trial (x)
The right of peremptory challenge, at common law, was a
principal incident of the trial of felony. This right cannot
be taken away by implication from the terms of a statute,
unless such implication is absolutely necessary for the inter-
pretation of the statute, (y)
In felonies, as well as misdemeanors, the Crown had the
right of challenging any number of jurors peremptorily, with-
out assigning any cause, until the panel was exhausted, (z)
(t) Mukahy v. Reg., L. R. 3 E. & I. App. 325.
(v) Reg v. Burddl, 1 Oldright, 126.
(w) Reg. v. Kennedy, 26 U. G. Q. B. 325.
(x) Levinger v. Rey., L. R. 3 P. C. App. 287, per Sir J. Napier.
(y) Ibid. 289, per Sir J. Napier.
(z) Reg. v. FeUowes, 19 U. C. Q. B. 48.
PRACTICE. 491
The 32 & 33 Vic., c. 29, s. 38, enacts that, in all criminal
trials, whether for treason, felony or misdemeanor, four jurors
may be peremptorily challenged on the part of the Crown.
The right of the Crown to cause any juror to stand aside until
the panel has been gone through, or to challenge any number
of jurors for cause, is not affected by this statute.
Even before the statute, on a trial for misdemeanor, as well
as for felony, the Crown might, without showing cause, direct
jurors, on their names being called by the clerk of the court,
to "stand aside" until the panel was gone through, (a) and
so a second time till the panel is exhausted ; that is, till it ap-
pears that a jury cannot be obtained without such juror. (&)
This was the well understood practice on indictments for
felony as well as misdemeanor, and it is said that, before
the statute 33 Edward I., st. 4, (c) the King might challenge
peremptorily, without showing cause, but that Act was con-
strued to restrain the privilege, and to require the Crown
to show cause if the panel was otherwise exhausted, (d) The
restriction in practice thus imposed on the Crown is, that it
shall not exercise its prerogative so as to make it necessary
to put off the trial for want of a jury, such as the party
arraigned is entitled to have on his trial. («)
The 37 Vic., c. 38, s. 11, which enacts that the right of the
Crown to cause jurors to stand aside shall not be exercised
" on the trial of any indictment or information by a private
prosecutor for the publication of a defamatory libel," applies
to libels on individuals as distinguished from seditious and
blasphemous libels : and it makes no difference that the
Crown is represented by the Attorney General ; (/) and if
the judge at the trial on such a case allow the right and
(a) Reg. v. Fraser, 14 L. C. J. 245 ; Reg. v. Benjamin, 4 U. C. C. P. 179 ;
Reg. v. Chanson, 3 Pugsley, 546 ; Reg. v. Hogan, 1 L. C. L. J. 70 ; Reg. v.
DougaU, 18 L. C. J. 85.
. (b) Reg. v. Lacombe, 13 L. C. J. 259.
(c) See Con. Stats. U. C., c. 31, s. 101.
(d) R>-g. v. Benjamin, 4 U. C. C. P. 185, per Macaulay, C. J.
(e) Levinger v. Reg., L. R. 3 P. C. App. 288, per Sir J. Napier.
• (/) Reg. v. Patteson, 36 U. C. Q. R 127.
492 THE CRIMINAL LAW OF CANADA.
afterwards doubt the propriety of his ruling, he may reserve
the point for the decision of the court above, (g)
Calling the list over once is not exhausting the panel, (h)
The direction to stand aside is not, in fact, a challenge, (i)
But it is, in effect, equivalent to a peremptory challenge if,
without having to resort to such of the jurors as have been
" set by" for the time, on the part of the Crown, there can be
procured from those returned on the panel enough of jurors,
not objected to, to make a jury, (j )
After the prisoner had been arraigned on his trial for
murder, had pleaded not guilty, and received the usual notice
of his right to challenge, two jurors were called who were not
challenged by him, and were thereupon sworn. The name of
John Hill was then called, and a person answering to that
name came forward, and was sworn without challenge or
objection. Some others were afterwards called, and on being
challenged peremptorily by the prisoner, they withdrew ;
and, after another was called and sworn without challenge,
the prisoner's counsel objected to John Hill, as he was a wit-
ness in the case for the prosecution. Upon inquiry it was
found that there was a person named John Hill returned
on the panel, but that he was a different person from the
John Hill sworn on the jury, and that the latter was not
only a witness but also a resident of another county, and
therefore not qualified to act as a juryman. Upon consent
of both the counsel for the Crown and the prisoner, he was
allowed to retire, and other jurymen were called and sworn
until the panel was full, the prisoner exercising the right of
challenge until the jury was chosen. The juror was with-
diawn before the prisoner was given in charge. The prisoner
was tried and convicted, and, upon motion for a new trial, the
court held, first, that the John Hill improperly sworn was
(g) Reg. v. Patteson, 36 U. C. Q. B. 127.
(h) Reg. v. Lacombe, 13 L. C. J. 261, per Monk, J. : and see ManseU v.
Reg., 8E.&B. 54 ; Dears. & B. 375 ; see 32 & 33 Vic., c. 29. a. 41, as to
supplying defect of jurors, if the panel is exhausted.
(i) Reg. v. Lacombe, supra, 261, per Badgley, J.
(j) Levinger v. Reg., supra, 288, per Sir J. Napier.
PRACTICE. 493
legally discharged from the jury ; second, that his discharge
did not operate upon the jurors previously sworn, so as to
render it necessary to reswear them, and thus reopen the
prisoner's right of challenge to them ; and third, that though
thirteen persons were sworn to try the prisoner, the twelve
by whom he was tried constituted the jury for his trial ; in
other words, that he was properly tried by the twelve who
constituted the jury, (k)
If a jury be elected, tried and sworn, and charged with a
prisoner, and afterwards discharged without giving a verdict,
either because they cannot agree, or with the assent of counsel,
a new jury will be called and sworn in the ordinary way,
and the prisoner will have the usual right of challenge. (/)
A prisoner is entitled to challenge for cause before exhaust-
ing his peremptory challenges ; and error will lie for the
refusal of this right ; but if the prisoner, after an erroneous
decision of the judge on this point, peremptorily challenge
a juror whom he might have challenged for cause, he waives
his right in respect of such erroneous decision, and error can-
not be brought, (m)
If, after the improper disallowance of a challenge for cause,
the prisoner withdraw his plea of not guilty, and plead guilty,
that would cure the objection, because the whole record must
be looked at, and not a merely isolated part of it ; for one
part of it may be controlled by another, and that which may
be a cause of exception in one place, may be no exception
when read in connection with the rest of the record, (n)
A prisoner, arraigned for uttering forged paper, has a right
to challenge peremptorily, on the trial of a preliminary ques-
tion, to the effect that the prisoner had been extradited from
the United States on a charge of forgery, (o)
(k) Reg. v. Coulter, 13 U. C. C. P. 299.
(I) Ibid.
(m) Whelan y. Reg.. 28 U. C. Q. B. 2 ; affirmed on appeal, ibid. 108.
(n) Ibid. 164, per A. Wilson, J.
(o) Reg. v. Paxton, 10 L. C. J. 212.
494 THE CRIMINAL LAW OF CANADA.
It is a good cause of challenge to a juror, if he has said he
would hang the prisoner if on his jury, (p)
A statute directed a jurors' book to be made up in each
year, for use in the year following, and declared that such book
should be in use from the first of January, for and during
one year. In November, 1865, at a sitting of a special com-
mission, a panel was returned from the then existing jury
book. The jururs were not then called, but the sitting was
duly adjourned to the 19th of January, 1866, at which time
the trial took place, when the jurors named in the return of
November, 1865, were called. One of the jurors, who had
been duly returned in November, 1865, not being in the list
for 1866, it was held that this was not a ground of challenge
to him. Nor did these facts show any ground for challenge
to the array, (q)
The prisoner may challenge the array if affinity exists
between the sheriff and himself; (r) and if he apprehend
that the array will be challenged on that account, he may
have the process directed to the coroner, with the consent of
the other party ; and if the other do not consent, but insists
there is no cause for the change of process, he cannot after-
wards take advantage of the objection which he has himsel
alleged to be futile, (s)
It is a ground of such challenge that the prisoner has hac
an action pending against the sheriff for assault, (t)
The inclusion of unauthorized names on a petit jury
panel is not a ground of challenge to the array; (u) nor is
the summoning of an excessive number, in which event the
unnecessary ones may be struck off by the judge, (y)
Where a wrong juror by mistake answered the call of the
clerk, and served on the jury, it was held by a majority oJ
(p) Whelan v. Reg., 28 U. C. Q. B. 29.
(</) Mulcahy v. Reg. L. R. 3 E. & I. App. 306.
(r) Wetmore v. Levi, 5 Allen, 180.
(s) Whelan v. Reg., 28 U. C. Q. B. 54.
(t) Reg. v. Milne, 4 Pugsley & B. 394.
(u) Reg. v. Mailloux, 3 Pugsley, 493.
(v) Ibul.
PRACTICE. 495
the court in Quebec that there had been a mis-trial ; (w) but
in England, in a similar case, the majority held it only a
ground of challenge, (x)
An order for an extra panel under R. S., c. 92, s. 37, of
Nova Scotia, is valid if signed by three judges, though they
do not constitute a majority, (y)
Where the Crown demurred to a challenge to the array,
and the judge on overruling the demurrer granted leave to
traverse, it was held a matter in the discretion of the judge,
and not reviewable. (z)
Where the facts stated in the challenge would not of
necessity disqualify the sheriff from summoning a jury, and
might or might not render him partial, the challenge is to
the favor, and it should, in addition to the facts relied upon,
contain an allegation that the sheriff was not impartial,
otherwise it will be bad. (a)
It is in the discretion of the judge whether to require a
challenge to the polls to be in writing. (6)
Expressions used by a juryman are not a cause of chal-
lenge, unless they are to be referred to something of per-
sonal ill-will toward the party challenging ; and the juryman
himself is not to be sworn when the cause of challenge
tends to his dishonor, as whether he has been guilty of
felony, or whether he has expressed a hostile opinion as to
the guilt of the prisoner, (c) He may, however, be ex-
amined on the coir dire as to his qualification, or the leaning
of his affections, (d)
If one of the jury be taken ill at the trial the judge can-
not, even with the consent of the prisoner, swear another
juror in his place and continue the trial ; and the objection
(w) Reg. v. Ftare, 3 Q. L. Rr219, following Reg. v. Miller, 1 Dears. 468.
(x) Rff). v. Mdlor, 4 U. C. L. J. 192 ; Dears. & B. 468.
(y) Rf<j. v. Quinn, 1 Russ. & Geld. 139.
(z) lte<j. v. MalllouLC, 3 Pugsley, 493.
(a) Brown v. Maltby, 4 Pugsley & B. 92.
(6) KK<I. v. Cfiasson, 3 Pugsley, 546.
(c) Ibid.
(d) Ibid.
496 THE CRIMINAL LAW OF CANADA.
is not waived by the prisoner's counsel afterwards address-
ing the jury, (e)
A statement by one of the jury, previously to their giving
their verdict, that a newspaper had been handed to them,
cannot be recorded in the register of the court. (/) And
an affidavit by a party to a suit, simply stating that he is
informed and believes that one of the jurymen was under
age, will not be considered evidence of the fact, (g]
At any time before a juror is sworn, he may be examined
as to his qualification, whether before or after the peremp-
tory challenges are exhausted, in, order to ascertain whether
he is a person qualified to be a juror, (h)
If thirteen jurors are sworn to try the prisoner, the swear-
ing of the thirteenth would be void, and the other twelve
would constitute the jury, (i)
Though a challenge has been improperly disallowed, yet,
if no improper person get on the jury, their verdict, when
none of them are disqualified, supports the judgment on the
indictment, (j")
If, after a prisoner's challenge to a juror is disallowed, the
Crown then challenged him, and the prisoner objected to it,
unless the down showed cause, in the first instance, or the
prisoner contended the cause shown by the Crown was in-
sufficient, this would be a consenting to the juror as a proper
juryman to be admitted to try the cause, or a waiver of all
objection to him, and the prisoner could not, after that,
revive his own original exception, (k)
So, after the improper disallowance of a challenge to one
juror, the prisoner would be bound to renew his exceptions
specifically to any jurors called afterwards, in order to estab-
lish a ground of error, or cause of complaint as to them. (/)
(e) Noble v. Sittings, 3 Allen, 85.
(/) Rf9- v- Notman, 4 C. L. J. 41.
(</) Key. v. Parley, 2 Pugsley, 449.
(A) Whdan v. Reg., 28 U. C. Q. B. 54.
(t) Reg. v. Coulter, 13 U. C. C. P. 303, per Draper, C. J.
(j) Wkelan v. Reg., 28 U. C. Q. B. 137, per Draper, C. J
(k) Ibid. 53-4.
(I) Ibid. 61, per A. Wilson, J.
PRACTICE. 497
It is settled law that a juryman must be challenged before
he is sworn, and cannot afterwards be withdrawn except by
consent, (m)
A prisoner cannot challenge at all until a full jury ap-
pears, and he must challenge to the array before he chal-
lenges to the polls. He must abide by his peremptory
challenge when he makes it, and cannot withdraw it and
challenge another juror instead. The prisoner must also
show all his causes of objection before the Crown is called
upon to show cause. The party beginning to challenge must
finish all his challenges before the other begins, and all chal-
lenges of the same kind and degree must be suggested against
the juror at the same time, (w)
When there are two prisoners for trial, it would not be
ground of error if the judge directed one of them to chal-
lenge first, and to make his peremptory challenges before his
challenges for cause, and then allow the other his challenges
in like order. In such latter case, on a juror biing called
against whom there was a cause of challenge to the favor, he
would not be challenged peremptorily, but would go into the
jury box to abide the result of all the challenges ; and, when
the peremptory challenges were through, those for cause
would be proceeded with, and the juror would then be
reached, (o)
When a prisoner, on his trial, assumes to challenge a juror
for cause, it is competent for the Crown either to demur or
to counterplead ; that is, set up some new matter consistent
with the matter of challenge, to vacate and annul it as a
ground of challenge, or to deny the truth, in point of fact, of
what is alleged for matter of challenge, (p) The latter mode
is the only one calling for the intervention of triors. (q)
(m) Reg. Y. Coulter, 13 U.C.C.P. 301, per Draper, C. J. ; Beg. v. Melior,
4 Jur. X. S. 214.
(n) Wkelan \. Reg., 28 U. C. Q. B. 49.
(o) Ibid. 47-50.
(p) Ibid. 168-9, per Gwynne, J.
(q) Ibid.
FF
498 THE CRIMINAL LAW OF CANADA.
The Con. Stats. U. C., c. 31, s. 139, provides that no omis-
sion to observe the directions of the Act, or any of them, as
respects the " selecting jury-lists from the jurors' rolls," or
"the drafting panels from the jury-lists," shall be ground for
impeaching the verdict.
Possibly the array might be quashed, if the sheriff's return
to the court contained the names of jurors resident out of
the county for which they were summoned, (r)
In Ontario, the usual practice as to summoning jurors is
as follows : A precept, signed by the judges, who are always
named in both commissions of Uyer and Terminer and Gaol
Delivery, goes to the sheriff, to return a general panel of
jurors, and that precept is returned into court on the first
day of the assizes with the panel, and from the names con-
tained in that panel all the jurors, both in the civil and
criminal side of the court, are taken ; and as the criminal
court always possesses the powers of courts of Oyer and
Terminer and General Gaol Delivery, the jury process
awarded in that court is entered on the roll, " therefore let a
jury thereupon immediately come."
The judge sitting at Oyer and Terminer or Gaol Delivery,
has power, after issue joined, to direct a jury to come for the
trial of the prisoner, and the usual venire facias, " therefore
let a jury thereupon immediately come," is sufficient, because
under the Jury Act, Con. Stat. U. C., c. 31, there has been
a previous precept issued for the return of jurors to that court ;
and justices of both these courts have the same powers by the
Act. (s)
Where a court is held under a special commission, begun
in one year and finished in the next, and no new precept has
issued to the sheriff for the return of jurors, it is not neces-
sary that the jury should be empanelled from the jury-book
for the latter year, (t) This might be requisite if the Act
(r) Reg. v. Kennedy, 26 U. C. Q. B. 331, per Draper, C. ,1.
(a) Whelan v. Reg., 28 U. C. Q. B. 84-5, per Richards, C. J.
(t) Mulcahy v. Reg., L. R. 3 E. & I. App. 306.
PRACTICE. 499
forbade a juror, duly summoned, to serve after the delivery
of the new book to the sheriff, (u).
Juries de mediatate linguae are not now allowed in the case
of aliens. (v)
Where a jury of this kind is allowed, a writ of venire facias
ad triandum must be issued summoning thirty-six jurors, (w)
Where the defendant has asked for a jury composed one-
half of the language of the defence, six jurors speaking that
language may be put into the box before calling any juror of
the other language, (x)
When, to obtain six jurors speaking the language of the
defence, all speaking that language have been called, the
Crown is still at liberty to challenge to stand aside, and is not
bound to show cause till the whole panel is exhausted, (y)
Where in a case of felony the prisoner had requested a
jury de mediatate lingua, and one of the jurors was discovered
after verdict not to be skilled in the language of the defence,
it was held that the trial was null and void. (2)
Where a prisoner has been arraigned on a charge of utter-
ing forged paper, it is not competent for the Crown to order
the trial by jury of a preliminary question raised by the
prisoner's counsel, to the effect that the prisoner had been
extradited from the United States on a charge of forgery,
and could not therefore be legally tried here for any other
offence. The question must be determined by the court, (a)
The maxim that judges shall decide questions of law and
juries questions of fact, is one of those principles which lie
at the foundation of our law. (6) The principle applies in
criminal as well as civil cases, though, in some cases, it rests
with the jury to determine a mixed question of law and
fact, (c)
(M) Mulcahy v. Reg., L. R. 3 E. & I. App. 316, per Willes, J.
(v) 32 &; 33 Vic., c. 29, s. 39.
(w) Reg. v. Vonho/, 10 L. C. J. 292.
(x) Reg. v. Dougall, 18 L. C. J. 85 ; but see 32 & 33 Vic., c. 30.
(y) Reg. v. Dougall, supra.
(z) Reg. v. ChamaMard, 18 L. C. J. 149.
(a) Reg. v. Paxton, 10 L. C. J. 212.
(6) Winsor v. Reg., L. R. 1 Q. B. 303, per Cockbum, C. J.
(c) Gray v. Reg., 1 E. & A. Reps. 504. per Sir J. >B. Robinson, Bart.
500 THE CRIMINAL LAW OF CANADA.
The jury are bound to follow the direction of the court in
point of law; and where a jury attempted to persist in re-
turning a verdict contrary to the direction of Pollock, C.B.,
he told them they were bound to return a verdict according
to his direction in point of law, and explained that the facts
only were within their province and the law in his ; and
although he did not infringe on their province, he could not
permit them to invade his. (d)
The jury have a right, after the summing up and conclu-
sion of the case, and after retiring to their room to deliberate,
to return to open court and re-examine any of the witnesses
whose evidence was not well understood by them, (e)
The strictness of the rules regarding juries and the con-
duct of trials, has been much relaxed in modern times. (/)
The misconduct, or irregular and improper conduct of
juries, will only have the effect of vitiating their verdict,
when it is such that the result of the trial has been in-
fluenced b}r it, or when there is any sufficient and reasonable
ground to believe that such influence or effect has been pro-
duced by it. (g)
There is a substantial distinction in regard to misconduct
of the jury, whether the irregularity took place before or after
the jury are charged by the judge. The indulgence in the
way of separating, or otherwise, is much restricted after the
charge, (h)
The fact that one of the jury, on a trial for felony, durim
a recess which took place in the progress of the trial, not
being in charge of any officer or other person, entered a public
house, and mentioned the subject of the trial to A., and hac
some slight conversation with other parties as to it, is, ir
the absence of evidence that the juror or the verdict was
(d) Rev. v. Robinson, 1 U. 0. L. J. N. S. 53 ; 4 F. & F. 43.
(e) Re<). v. Lamere, 8 L C. J. 281.
(/) Re<j. v. Kenned}/, 2 Thomson, '207, per Haliburton, C. J.
(g) Ibid. 212, per Bt,i*n, J.
(h) Ibid. 221, per Wilkiw, J.
PRACTICE. 501
influenced by this, not sufficient to vitiate the verdict, or
amount to a mis-trial, (i)
When a juror has separated from his brethren, and con-
versed with others on the subject of the cause in a way cal-
culated to influence him in forming an opinion upon it, it
amounts to a mis-trial, let the consequences be what they
may ; but if the juror is not influenced by anything which
occurred in consequence of the separation, there is no mis-
trial. (/)
In all criminal trials less than felony, the jury may, in the
discretion of the court, and under its direction as to condi-
tions, mode, and time, be allowed to separate during the
progress of the trial, (k) But in felony such latitude is not
allowed, and if in such case the jury be permitted to separate,
there is a mis-trial ; and the court may direct that the party
be tried as if no trial had been had. (/)
The Crown, as well as the prisoner, has a right to set aside
a verdict vitiated by the jury's misconduct, (m)
There is no authority for ordering that a jury have refresh-
ments during the period of their deliberation, (n)
As to discharging juries, there would seem to be no differ-
ence between misdemeanors and felonies. In both, the
principles on which trial by jury is to be conducted are the
same. (6)
If a juryman has merely fainted, because the court-room is
hot and close, it would be proper to wait a short time, and
then proceed ; but if he is taken so ill that there is no like-
lihood of his continuing to discharge his duty without danger
to his life, the jury must be discharged, (p)
Where the record of a conviction for felony showed that,
on the trial of an indictment, the jury being unable to agree,
(t) Reg. v. Kennedy, 2 Thomson, 203.
(j) Ibid. 206-7, per Haliburton, C. J. .
(k) 32 & 33 Vic., c. 29, s. 57.
(1) Reg. v. Derrick, 23 L C. J. 239.
(m) Reg. v. Kennedy, 2 Thomson, 213, per Bliss, J.
(n) Winsor v. Reg., L. R. 1 Q. B. 308, per Cockburn, C. J.
(o) Ibid. 307, per Cockburn, C. J.
(p) Ibid. 315, per Blackburn, J.
502 THE CRIMINAL LAW OF CANADA.
the judge discharged them ; that the prisoner was given in
charge of another jury at the next assizes, and a verdict of
guilty returned, and judgment and sentence passed ; on writ
of error, it was held that the judge had a discretion to dis-
charge the jury, which a court of error could not review ;
that the discharge of the first jury without a verdict was
not equivalent to an acquittal ; that a second jury process
might issue, and that there was no error on the record. ( q)
And it may be stated generally that when the discharge
of a jury is warranted by the rules of law, it does not
operate as an acquittal, or bar another trial ; but if the jury
are wrongfully discharged, the prisoner cannot be put a
second time on trial, (r)
The illness of a juror, or the illness of a prisoner, has.
been held sufficient ground for discharging the jury, (s)
A jury sworn and charged, even in case of felony, may
be discharged, without verdict, in case of death or illness
of one of the jury, or their being unable to agree, or at the
desire of the accused, with the consent of the prosecu-
tion, (t)
The jury cannot be discharged at the instance of the
prosecutor in order to obtain evidence, of which, at the
trial, there appears to be a failure. But it would seem that
this is not a rule of positive law, and that there are ex-
ceptions to it ; and where a witness is kept away by the
prisoner, and by collusion between him and the prisoner, is.
tampered with, the rule should be relaxed, and the judge
permitted to discharge the jury.
Where a jury are discharged in consequence of their not
agreeing, it is not necessary to wait ; and, on the contrary,
the judge should not wait until the jury are exposed to th«
dangers which arise from exhaustion or prostrated strength
of body and mind, or until there is a chance of conscienc
(q) Wiworv. Reg., L. R. 1 Q. B. 390 (Ex. Chr.)
(r) Ibid.
(s) Ibid. 305, per Cockburn, C. J.
(t) RKIJ. v. Charlesworth, 9 U. C. L. J. 53 ; 1 B. & S. 460.
PRACTICE. 503
and conviction being sacrificed for personal convenience,
and to be relieved from suffering, (u)
The defendant was put on trial for a misdemeanor. At
the trial a witness, called on behalf of the Crown, claimed
his privilege not to give evidence on the ground that he
would thereby criminate himself. The judge who presided
at the trial refused to allow him the privilege ; but the
witness, still refusing to answer, was committed to prison
for contempt of court, and a conviction of the defendant
being under these circumstances impossible, the jury, at
the request of the counsel for the prosecution, and against
the protest of the counsel for the defendant, were dis-
charged without giving any verdict. It was held that the
defendant ought not to be allowed to put a plea upon the
record stating the above facts, but that they ought to ap-
pear as an entry on the record. An entry was made upon
the record accordingly; when it was further held that
whether or not the judge had power to discharge the jury,
what took place did not amount to a verdict of acquittal,
nor was the prisoner entitled to plead autrefois acquit in
respect thereof, and that the defendant was not entitled to
judgment quod eat sine die, or to the interference of the
court to prevent the issuing of a fresh process, (v)
The old doctrine, that if the jury could not agree, it was
the duty of the judge to carry them from town to town in
a cart, has been exploded in modern times. It is certainly
not now the practice, (w)
In criminal cases, not capital, where the verdict is so in-
consistent and repugnant, or so ambiguous and uncertain,
that no judgment can be safely pronounced upon it, a venire
de novo may be awarded, (x)
Where, on an indictment for murder, the jury returned
a verdict, in writing, in the following words •. " Guilty of
(u) Rog. v. Charlesworth, 9 U. C. L. J. 48.
(v) Ibkl. supra.
(w)Winsor v. Reg., L. R. 1 Q. B. 305, per Cockburn, C. J. ; ibid. 320-1,
per Mellor, J.
(x) Reg. v. Healey, 2 Thomson, 332-3, per BU*s, J.
504 THE CRIMINAL LAW OF CANADA.
murder, with a recommendation to mercy, as there was no
evidence to show malice aforethought and premeditation," it
was held that the verdict was too ambiguous and uncertain
to allow the court to pronounce any judgment upon it. (y)
A recommendation to mere)7 is no part of the verdict, (z)
If it were shown that, upon the jury delivering their ver-
dict in open court, anything was openly said by them which
could give the court to understand that they were not openly
assenting to that verdict, and, nevertheless, by some error or
misapprehension, it was received as their unanimous verdict,
the court could and ought to interfere on such ground and
grant a new trial, when such a course was authorized by our
criminal practice, (a)
A jury may correct their verdict, or any of them may with-
hold assent and express dissent therefrom, at any time before
it is finally entered and confirmed. (6)
It is irregular for counsel to question the jury directly, and
not through the court, as to the grounds of their verdict, (c)
It would appear that the right of a jury to find a general
verdict in a criminal csse, and to decline to find the facts
specially, cannot be questioned, especially when the verdict
is one of acquittal, (d)
It is doubtful whether a verdict can be received and re-
corded on a Sunday, (e)
The Con. Stats. U. C., c. 113 (20 Vic., c. 61), has been
repealed except sections 5, 16 and 17. By the 32 & 33 Vic.,
c. 29, s. 80, no appeal lies to the Court of Appeal in any
criminal case where the conviction has been affirmed by
either of the superior courts of common law, on any ques-
tion of law reserved for the opinion of such court. But now
by the Supreme Court Act, an appeal lies to the court thereby
. (y) Reg. v. Healey, 2 Thomson, 331.
(z) See Reg. v. Trebilcock, 4 U. C. L. J. 168 : Dears. & B. 453.
(a) Reg. v. Fdloives, 19 U.C. Q.B. 50, per Robinson, C. J. ; and see Rc<j. v.
Ford, 3 U. C. C. P. 217-18, per Macaulay, C. J.
(6) Reg v. Ford, supra, 217, per Macaulay, C. J.
(c) Ibid.
(d) Reg. v. Spence, 12 U. C. Q. B. 519.
(e) Winsor v. Reg., L. R. 1 Q. B. 308, 317, 322.
PRACTICE. 505
constituted, where the decision of the court of final resort in
the province is not unanimous. (/)
It has been held in England that no case can be stated for
the opinion of the court for Crown cases reserved, except
upon some question of law arising upon the trial. Where
therefore, the prisoner had pleaded guilty, and the question
asked was whether the prisoner's act, as described in the
depositions, supported the indictment, the court held that
they had no jurisdiction to consider the case, (g)
When a case is reserved, under the Con. Stats. U. C., c. 112,
the court may arrest the judgment, with a view to a new in-
dictment being preferred, or for other purposes. ( h )
In Reg. v. AfcEvoy, (i) the court, under the facts shown,
considered they might either enter an arrest of judgment
under the statute, or direct judgment to be given as for a
misdemeanor at common law ; but the latter course was
adopted because it was doubted whether the judgment could
properly be arrested, where the indictment, though framed
imperfectly, as for an offence against a statute, does contain
a sufficient charge of an offence at common law.
It would seem that the objections, on a motion to arrest
the judgment, are confined to the points reserved under the
statute, (j}
Where, on an appeal from a conviction affirmed at the
sessions, it appeared that the point in question was purely
one of law, and there could be no object in sending the case
down for a new trial, the judgment was arrested, (k)
The court may, in certain cases, stay the entry of judg-
ment until a new indictment is preferred, but in such case,
the indictment must be removed by certwrari. (I)
(/) Reg. v. Amer, 2 S. C. R. 593.
(g) Reg. v. Clark, L. R. 1 C. C. R. 54 ; 36 L. J. (M. C.) 16.
(h) Reg. v. Rose, 1 U.C.L.J. 145 ; Reg. v. Speiice, 11 U.C.Q. B. 31 ; Reg. r.
Orr, 12 U. C. Q. B. 57.
(i) 20 U. C. Q. B. 344.
(j) Reg. v. Fennety, 3 Allen, 132.
(k) Rey. v. Rubidge, 25 U. C. Q. B. 299.
(I) Reg. v. Speace, 12 U. C. Q. B. 519.
506 THE CRIMINAL LAW OF CANADA.
In criminal matters, foreign law should not be brought be-
fore the court, (m) American authorities, though entitled to
respect, will not be received as binding in our courts, (n) Nor
are English decisions absolutely binding in this country, (o)
If, after a verdict of guilty of felony, and when the judge
is about to pass sentence, objections are made by the prisoner's
counsel in arrest of judgment, but overruled by the judge
trying the cause, the court in lane has authority to inquire
into the validity of these objections, though the record does
not state that the prisoner's counsel moved in arrest of judg-
ment. The presence of the prisoner at the argument may be
waived by consent of parties. ( p)
The superior court will adjudicate on a reserved case of
misdemeanor in the absence of the defendant, who has fled
. beyond the jurisdiction of the court, (p)
Where a man charged with felony is being tried, whatever
may have been his position in life, he must take his place in
the dock ; but a misdemeanant, if on bail, is not obliged to
do so. (r)
In criminal cases, it is always entirely in the discretion of
the court to allow a view or not. It is therefore no irregu-
larity to allow the jury to have a view of premises where
an alleged offence has been committed, after the judge has
summed up the case, (s)
The court ought to take such precautions as may be neces-
sary to prevent the jury from improperly receiving evidence
out of court. Where, at proceedings on a view, evidence was
received in the absence of the judge, the prisoners, and their
counsel, the court for Crown cases reserved held that it is for
the court before which the trial takes place, to ascertain
whether such irregularity has taken place, and that they could
(m) Notman v. Ret/., 13 L. (J. J. 259, per Duval, C. J.
(n) Roberts \. Patillo, 1 James, 367 ; Reg. v. Creamer, 10 L. C. R. 404.
(o) Retj. v. Roy, 11 L. C. J. 92.
(p) Reg. v. Kennedy, 2 Thomson, 204.
(</) Reg. v. Frater, 14 L. C. J. 245.
(r) Ex parte Blossom, 10 L. C. J. 69, per Meredith, J.
(s) JKnj. v. Martin, L. R. 1 C. C. R. 378.
PRACTICE. 507
not reverse the conviction on the ground of a mere state-
ment of what the judge was informed; and it is doubtful
whether, if such irregularity had occurred, this court would
have jurisdiction to order a venire do novo, as for a mis-trial ;
or whether, if the facts were thus tried, and found to be as
alleged, they ought to be entered on the record, so as to give
an opportunity of taking advantage of the defect by writ of
error, or whether the .question could be properly raised by a
case stated for this court, (t)
The judge has a discretion to adjourn the trial when the
counsel engaged in it becomes so ill as to be unable to pro-
ceed. One of the prisoner's counsel at the trial, whilst he
was addressing the jury at the close of the case, was suddenly
seized with a fit, and incapacitated from proceeding further.
Xo adjournment, however, was applied for ; but the other,
who was the senior counsel, continued the address to the jury
on the prisoner's behalf, without raising any objection that
he was placed at a disadvantage by his colleague's disability.
It did not, moreover, appear that the prisoner had been pre-
judiced by the absence of the counsel alluded to, and it was
held no ground for a new trial ; but in such case, if a post-
ponement had been asked in consequence of the illness, it
would have been in the discretion of the judge to have grant-
ed it or not, and to have adjourned it for an hour or two, or
to another day, or for several days, or until the following
court, as might have been thought reasonable, (u)
Objections which it is intended to insist on afterwards,
must be distinctly raised at the trial ; and as the judge pre-
siding is authorized by the Con. Stats. U. C., c. 112, to reserve
any question of law for the opinion of the court, it is the
more necessary that his attention should be drawn to every
matter of law which is relied on for the prisoner, whether by
way of suggestion on the defence, or of exception to the
judge's ruling, or direction at the trial, (v)
(t) Reg. v. Martin, L. R. 1 C. C. R. 378.
(u) Keg. v. Fick, 16 U. C. C. P. 379.
(v) Reg. v. Craig, 7 U. C. C. P. 241, per Draper, C. J.
508 THE CRIMINAL LAW OF CANADA.
The objections should also be noted by the judge, for the
court cannot notice grounds of objections taken in rules un-
less they appear in the judge's notes ; and it is the duty of
counsel on moving, to ascertain whether the objections they
rely on were noted by the judge who presided at the trial
If they do not appear to be noted, a reference should be made
to the judge to have the notes amended before they are made
the grounds of a motion, (w)
There is nothing to prevent the judge, on a criminal trial,
having the notes of the evidence taken in writing by another
person, (x)
The 32 & 33 Vic., c. 29, s. 32, provides that every objec-
tion to any indictment, for any defect apparent on the face
thereof, must be taken by demurrer, or motion to quash the
indictment, before the defendant has pleaded, and not after-
wards. The object of this statute was to prevent waste of
time and labor in criminal trials, and to compel a legal de-
fence to be resorted to at the earliest possible stage. The
court, therefore, will not arrest judgment after verdict, or
reverse judgment in error, for any defect apparent on the face
of the indictment, which could have been taken advantage of
under this clause, (y)
The defendant is not in all cases of acquittal entitled to a
copy of the indictment laid against him ; and where the
charge was for obtaining goods by false pretences, copies oi
the indictment and papers were refused, (z)
A copy of an indictment for high treason may be obtained
by consent of the Attorney General, (a) And the same rule
seems to apply in felony ; and his decision is not subject to
review, (b) At any rate, unless the indictment were re-
moved by certiorari, the Court of Queen's Bench would not
(w) Reg. v. Des Jardins O. Co., 27 U.C.Q.B. 380, per Morrison, J. ; see
also Cousins v. Merrill, 16 U. C. C. P. 120.
(x) Duval dit Barbinas, v. Reg. , 14 L. C. R. 75, per Meredith, J.
(y) Reg. v. Mason, 32 U. C. Q. B. 246.
(z) Reg. v. Senecal, 8 L. C. J. 286.
(a) Rex v. McDonel, Taylor. 299.
(b) Reg. v. Joy, 24 U. (J. C. P. 78.
PRACTICE. 509
have jurisdiction, (c) The judge has power on acquittal to
order the delivery of a copy, (d)
The 32 & 33 Vic., c. 29, s. 26, provides that on an indict-
ment for any offence laying a previous conviction, the offender
shall in the first place be arraigned upon so much only of
the indictment as charges the subsequent offence, and if he
pleads not guilty, the jury shall be charged, in the first
instance, to inquire concerning such subsequent offence only.
If, when found guilty of the subsequent offence, the prison-
er denies that he was previously convicted, or stands mute
of malice, or will not answer whether he is guilty or not
guilty, the jury should then be charged to inquire concerning
such previous conviction, (e)
Where an indictment contains one count for larceny, and
allegations in the nature of counts for previous convictions
for misdemeanors, and the prisoner, being arraigned on the
whole indictment, pleads not guilty, but is not tried till a
subsequent assize, when he is given in charge on the count
for larceny only, this does not amount to an error, for he was
properly given in charge to the jury, and, having been ar-
raigned and his plea entered at a previous assize, could not be
prejudiced by any mistake in his arraignment. (/)
Under the English Acts, 5 Geo. IV., c. 84, s. 24, and 8 & 9
Vic., c. 113, s. 1, which are in substance the same as our
32 & 33 Vic., c. 29, s. 26, omitting the proof of the identity
contained in the latter Act, it was held that the certificate
of a previous conviction, required by these Acts, is sufficient,
if it purports to be signed by an officer having the custody
of the records, although that officer is therein described as
the deputy clerk of the peace of a borough, (g)
The 32 & 33 Vic., c. 29, s. 45, provides that all persons
tried for any indictable offence shall be admitted, after the
(c) Reg. v. Joy, 24 T. C. C. P. 78.
(d) Heaney v. Lynn, Ber. (N. B.) 27.
(e) See Reg. v. Harley, 8 L. C. J. 280.
(/) Reg. v. Ma*on, 32 U. C Q. B. 246.
(g) Beg. v. Pa/-xo/w, L. K. 1 C. C. R. 24 ; 35 L. J. (M. C.) 167.
510 THE CRIMINAL LAW OF CANADA.
close of the case for the prosecution, to make full answer
and defence thereto, by counsel learned in the law.
Two counsel only can be heard on behalf of prisoners
indicted for criminal offences, and persons tried for felonies
may make their full defence by two counsel, and no more,
before a jury wholly composed of persons skilled in the
language of the defence, (h)
After two counsel had addressed the jury on behalf of
the prisoner, a third rose to do so, but was stopped by the
court, (i) •
Two parties accused of the same offence have been held
in Quebec not to be entitled to a separate defence. (/) But
circumstances might exist which would render its allowance
necessary for the attainment of justice. •
At the close of the case for the prosecution of three prison-
ers, defended by separate counsel, one was acquitted, and
was called as a witness on behalf of one of the two remain-
ing. This witness criminated the other prisoner ; and it
was held that the counsel of the prisoner criminated had
a right to cross-examine and address the jury on the evi-
dence so given; and that, as this right had been refused,
the conviction of the prisoner must be quashed, although
the court had offered to put the questions suggested by his
counsel. (&)
It has been held that, in cases of public prosecutions
for felony instituted by the Crown, the law officers of the
Crown, and those who represent them, were in strictness
•entitled to the reply, though no evidence was produced on
the part of the prisoner. (/) But in Ontario, a counsel for
the Crown, not being himself the Attorney or Solicitor
General, had no right to reply in an ordinary prosecution
for crime, where no witnesses were called for the defence, (ra
(h) Reg. v. D'Aoust, 9 L. C. J. 85.
(i) Ibid.
(j) Reg. r. McConohy, 5 Revue Leg. 746.
(k) Reg. v. Luck, 1 U. C. L. J. 78 ; 3 F. & F. 483 ; see also Reg. v. CoyU,
2 U. C. L. J. 19.
(I) Reg. v. Quatre Pattes, 1 L. C. R. 317.
(m) Reg. v. McLellan, 9 U. C. L. J. 75.
PRACTICE. 511
Now, however, the right of reply shall always be allowed
to the Attorney or Solicitor General, or to any Queen's
counsel, acting on behalf of the Crown, (ri)
A clerk of the Crown in Quebec, being a Queen's coun-
sel, has a right to be heard in a criminal case, on behalf of
the Crown, notwithstanding Con. Stats. L. C., c. 77, s. 75 ;
and the duties and powers of clerks of the Crown not being
defined in their commissions, nor by statute, the court will
look to the English law, and the powers and duties of the
master of the Crown office there, as a guide in deciding on
the duties and powers of clerks of the Crown in Quebec. (0)
Crown prosecutions differ from ordinary civil suits ; for, if
the Queen be prosecutor, there can be no non pros., or non-
suit or demurrer to evidence. The prosecutor may be a wit-
ness but not the defendant, and if the latter obtain judgment>
he is not entitled to costs, (p)
Error. — A writ of error lies for every substantial defect
appearing on the face of the recoid, for which the indictment
might have been quashed, or which would have been fatal on
demurrer, or in arrest of judgment. A writ of error is, there-
fore, the proper remedy for certain substantial defects appear-
ing on the face of the record, (q)
A court of error is confined to errors appearing on the face
of the record, and cannot exercise an appellate jurisdiction,
and inquire into the facts of the case, (r) and affidavits for
this purpose are inadmissible. Nor can the judge's notes be
looked to, as they form no part of the record, (s)
Unless there be manifest error on the face of the record,
it is the duty of the court to affirm the judgment, (t)
The matter is to be decided as a strictly legal proposition,
and no consideration of the effect which the decision may
(n) 32 & 33 Vic., c. 29, s. 45, subs. 2.
(o) Re.-], v. Carter, 15 L. C. R. 291.
(p) Reg. v. Patten, 5 U. C. P. R. 295 : 7 C. L. J. N. S. 124.
(q) Duval dit Barbinas v. Reg., 14 L. C. R. 71.
(r) Duval dit Barbinas v. Ret]., 14 L.C.R. 79, per Duval, C. J. ; ibid. 75,
per Meredith, J. • Dauyall v. Reg., 22 L. C. J. 133.
(s) Dowjall v. Reg., 22 L. C. J. 133.
(t) Whelan v. Reg., 28 U. C. Q. B. 139, per Draper, C. J.
512 THE CRIMINAL LAW OF CANADA.
have upon the parties will be permitted to be taken into
consideration, to mould the judgment of the court by the
exercise of discretion, (u)
No writ of error will be allowed in any criminal case,
unless founded on some question of law which could not
have been reserved, or which the judge presiding at the trial
refused to reserve for the consideration of the court having
jurisdiction in such cases, or unless it be a point which could
not have been reserved at the trial, (v)
Whether the police court is a court of justice within 32 &
33 Vic., c. 21, s. 18, or not, is a question of law which may
be reserved by the j udge at the trial, under Con. Stat. U. C.,
c. 112, s. 1 ; and where it does not appear, upon the record in
error, that the judge refused to reserve such question, it can-
not be considered upon a writ of error, (w)
There is no case in which the discretion of a judge, exer-
cised on a mixed question of law and fact, has been reviewed
in error, (x)
It would seem that, when a judge has a discretion to do or
omit to do a particular thing, his judgment, in the exercise of
that discretion, is not subject to revision in error. Eules of
practice or procedure, on a criminal trial, rest pretty much in
the discretion of the judge, and cannot be made the founda-
tion of a writ of error, (y)
The right of postponing the hearing and trial of the cause,
urged by a prisoner as a ground of challenge, is discretionary
with the judge, and the question is only one of practice or
procedure, and, therefore, not exarninable in error, (z)
A writ of error will lie where a venire facias for the sum-
moning of jurors is addressed to improper parties, (a) So a
(u) Whelan v. Re;/. U. C. Q. B. 94.
(v) 32 & 33 Vic., c. 29, s. 80 ; Reg. v. Mason, 32 U. C. Q. B. 246.
(w) Reg v. Mason, supra,
(x) Wmsor v. Reg., L. R. 1 Q. B. 316.
(y) Ibid. Whelan v. RC.IJ., 28 U. C. Q. B. 1, et seq.
(z) Ibid. 133.
(a) Reg. v. Kennedy, 26 U.C.Q.B. 332, per Draper, C. J. ; Crane v. Hol-
land, Oro. El. 138 ; see also WUloughby v. Ugerton, Cro. El. 853.
PRACTICE. 513
challenge to the array overruled would be a ground of error,
if the party did not afterwards challenge to the polls, (b)
The improper granting or refusing of a challenge is alike
the foundation of a writ of error, (c)
The proceedings on a rule for contempt, on the Crown side
of the Court of Queen's Bench, do not constitute a criminal
case within Con. Stats. L. C., c. 77, s. 56, and, as a writ of
error does not lie, at common law, on an adjudication for con-
tempt, for it is a judgment in immediate execution not ex-
arninable in any other tribunal, therefore a writ of error does
not lie with respect to judgment rendered on such a rule, (d)
For an improper award of a venire de novo, a writ of error
lies for the subject, (e)
The proper proceeding to reverse a judgment of the court
of Quarter Sessions is by writ of error, not by habeas corpus
and certiorari, as in the case of summary convictions. (/)
No writ of error lies upon a summary conviction, and it
only lies on judgments in courts of record acting according
to the course of the common law. (a)
A proceeding by writ of error is the more formal method
of getting rid of an erroneous judgment, but, as the writ lies
for error in the judgment, where the judgment is void perhaps
it would not be the proper course, (h)
After judgment, the only remedy is by writ of error. But
error only lies on a final judgment, (i)
The rule prevailing in civil cases, that when the error is
in fact and not in law, the proceedings may be taken in the
same court, but when the error is in the judgment itself,
error must be in another and superior court, extends also to
criminal cases.
(b) Winsor v. Reg., L. R, 1 Q. B. 61, per Wilson, J.
(c) Ibid. 93.
(d) Rammy v. Reg., 11 L. C. J. 158.
(e) Reg. v. Charle*worth, 9 U. C. L. J. 51, per Crompton, J.
(/) Reg. v. Powell, 21 U. C. Q. B. 215.
(g) Ramtay v. Reg., 11 L. C. J. 166.
(h) Reg. v. Sullivan, 15 U. C. Q. B. 435, per Wilson, J.; Reg. v. Smith.
10 U. C. Q. B. 99.
(t) Ex part? Blossom, 10 L. C. J. 42, per Badgley, J.
GG
514 THE CRIMINAL LAW OF CANADA.
Therefore, the Court of Queen's Bench for Ontario has no
authority, in criminal cases, either at common law or by
statute, to issue its own writ for the review of its own judg-
ment upon error in law, returnable to a superior court. But
the Court of Appeal for Ontario has full power to issue a writ
of error in criminal as well as civil cases, and, when the error
is in the judgment in the Court of Queen's Bench, the writ of
error should be issued out of the Court of Appeal. The writ
may be, as nearly as possible, in the form of a writ of appeal
given by the orders of the court, as published in 1850. (j)
A writ of error cannot be granted without the fiat of the
Attorney General, (k)
If, in an information of quo warranto, the Attorney General
have granted his fiat that a writ of error may issue, the court
will not interfere, the first being conclusive. (/)
The Attorney General (or, in his absence, the Solicitor
General) alone can authorize the issue of a writ of error, and
he cannot delegate that power to another. Where, therefore,
a writ of error was issued and signed by T. K. Eamsay, acting
for and in the name of Her Majesty's Attorney General, and
not by the Attorney General himself, it was held illegal and
void, (ra)
On error, from the Court of Queen's Bench for Ontario to
the Court of Appeal, the party is at liberty, in the latter
court to assign new errors, in addition to those laid in the
Court of Queen's Bench, (n)
It has been already shown that a court of error can only
consider matters appearing on the face of the record. It
follows, therefore, that matters which cannot be raised upon
the record are not examiuable in error. The pleadings, the
proper continuance of the suit and process, the finding of the
jury upon an issue in fact, if any such had been joined, and
(j) Whelan v. Reg., 28 U. C. Q. B. 100.
(k) Notman v. Reg., 13 L. C. J. 255 ; see also Whelan v. Reg., supra.
(I) Reg. v. Clarke, 5 U. C. L. J. 263.
(ra) Dunlop v. Reg., 11 L. C. J. 271.
(n) See Whelan v. Reg., 28 U.C.Q. B. 1 10 ; Reg. v. Mason, 32 U.C.Q.B. 246.
PRACTICE. 515
the judgment, are the only matters which can be raised upon
the record with a view to error. As a bill of exceptions
does not lie in a criminal case, there is no mode of causing
the rulings of the judge, upon questions of evidence, or his
directions to the jury, to be made part of the record, and con-
sequently such rulings or directions catmot be reviewed in
error. (0)
It need not appear on the face of the record that the
jury, when they retired at the judge's charge, were in the
custody of sworn constables. An objection on this ground
cannot, therefore, be reviewed in error. Though the im-
proper allowance or disallowance of a challenge is ground
of error, yet, strictly speaking, there ought to be an answer
in law or in fact to the challenge, and a judgment upon the
issue raised.
When the proceedings on a challenge are regular, they
may be made a part of the record, and may be examined
in error, (p)
If it is desired to take the opinion of the court on the
rulings of the judge, or his directions to the jury, the proper
course is to apply to him to reserve a case, under the statute
for the opinion of the court, (q)
On the trial of a prisoner who had been extradited from
the United States, it was held that no question of law could
be reserved and heard until after conviction, (r)
To purge error, it would seem that a prisoner cannot con-
sent to the evidence of witnesses given on a former trial
being read in place of a new examination of the witnesses,
although the witness was present in court, and was sworn
and heard his evidence read over, and the parties were told
they were at liberty further to examine and cross-examine
him. (s)
(o) Dui-al dit BarbiTMS v. Reg., 14 L. C. R. 72-4, per Meredith, J.
(p) Ibid. 74-5, per Meredith, J.
(q) Ibid. 74, per Meredith, J.
(r) Reg. v. Paxton, 2 L. C. L. J. 162.
(«) Reg. v. Bertrand, L. R. 1 P. C. App. 520 ; but see Rexv. Streek, 2 C.
& P. 413 ; Rex v. Foster, 7 C. & P. 495 ; Whelan v. Reg., 28 U. C. Q. B. 52,
per A. Wilson, J.
516 THE CRIMINAL LAW OF CANADA.
A prisoner can consent to nothing manifestly irregular ;
as that his wife should be examined as a witness, or that
the witnesses should be examined without being sworn,
or that admissions made by his attorney to the opposite
attorney out of court should be received as evidence in
the cause, (w) He may, however, consent to withdraw or
release his challenge altogether, or to accept a juror, on
his challenge being overruled. He might consent too to
secondary evidence being given, and, it would seem, al-
though no notice to produce had been served. So he might
consent to withdraw a plea in abatement, and he may with-
draw his plea of not guilty, and plead guilty. He might
also consent to the jury taking with them plans or writings
not under seal, which were given in evidence, (x)
A concilium has been granted for the argument of errors in
the Court of Queen's Bench, (y)
It would seem that the court may direct Crown cases to
stand on the new trial paper for argument with ordinary
suits between party and party. (2)
If a juror against whom there is a good cause of challenge
is sworn, and sits on the jury, there would be a mis-trial, and
the proceedings would amount to error, and on writ of error
brought, the court would direct a venire de novo, if the party
was not allowed to challenge for cause, and was directed to
challenge peremptorily, (a)
A mis-trial vitiates and annuls the verdict in toto, and the
only judgment is a venire de novo, because the prisoner was
never, in contemplation of law, in any jeopardy on his first
trial. (V)
The distinction between a venire de novo and a ne w trial is
that the former must be granted in respect of matters appear-
(w) Wkelanv. Reg. 128 U. C. Q. B. 52.
(x) I hid. 53-4, per A. Wilson, J.
(>/) Ibid. 15.
(2) Reg. v. Sinnott, 27 U. C. Q. B. 539.
(a) Wkdan v. Reg., 23 U. C. Q. B. 59-91.
(b) Ibid. 137.
PRACTICE. 517
ing upon the record, but a new trial may be granted upon
things out of it. (c)
It seems that a venire de novo can be awarded in a case of
felony on a defective verdict, (d) But unless there is such
an irregularity as to annul all the proceedings on the record
subsequent to the award of the jury process, and render the
first trial an absolute nullity, a venire de novo should not be
granted, (e)
There is no authority that an abortive trial prevents a
venire de novo in a case of misdemeanor ; (/) and if a trial
proves abortive, a venire de novo may be awarded in a case of
felony as well as misdemeanor, (g)
A verdict on a charge of felony has been held to be a
nullity, and a venire de novo awarded, in cases of defect of
jurisdiction, in respect of time, place or person, or where
the verdict is so insufficiently expressed, or so ambiguous,
that a judgment could not be founded thereon, (h)
A prisoner having been tried and convicted of a capital
felony, by a court of Over and Terminer in New South
Wales, and sentence of death passed and the judgment
entered upon record, an application was made to the
Supreme Court, sitting in bane, for a rule for a venire de
novo, on an affidavit which stated that one of the jury had
informed the deponent that, pending the trial and before
the verdict, the jury having adjourned to an hotel, had
access to newspapers which contained a report of the trial
as it proceeded, with comments thereon. The Supreme
Court made the rule absolute, considering that there had
been a mis-trial, and ordered an entry to be made on the
record of the circumstances deposed to, that the judgment
on the verdict should be vacated, and a fresh trial had ; but
(c) Reg. v. Kenned/, 2 Thomson, 215, per BUts, J.
(d) Winsor v. Rey.'.L. R. 1 Q. B. 319, per Blackburn, J. ; Campbell v. Reg.,
11 Q. B. 799 ; Gray v. Rr,j., 11 Cl. A: F. 427.
(e) Reg. v. Kennedy, supra, 223, per Wllkins, J.
(/) Reg- v. Charleswvrth, 9 U. C. L. J. 51.
(g) Winsor v. Reg., L. R. 1 Q. B. 319.
(A) Reg. v. Murphy, L. R. 2 P. C. App. .548, per Sir Wm. Erie.
518 THE CRIMINAL LAW OF CANADA.
on appeal to Her Majesty in council, it was held by the
judicial committee that a venire de novo cannot be awarded
after verdict upon a charge of felony, tried upon a good
indictment and before a competent tribunal, where the
prisoner has been given in charge to a jury in due form of
law empanelled, chosen and sworn; secondly, that if a venire
de novo could be awarded upon an application, by way of
error on appeal, the proceeding in the Supreme Court was
defective in form, and not warranted by the suggestion
entered on the record, and therefore, thirdly, that the order
for vacating the judgment and for a venire de novo must be
set aside, (i)
The application for a venire de novo, in this case, was con-
sidered as an attempt to obtain a new trial by the exercise of
discretion, and the principal ground of the decision was that
a new trial could not be granted in a case of felony, (j)
A sentence of death neecl not be conformable to the Eng-
lish Act, 23 Geo. II., c. 17, s. 1, aud a sentence in these
words " that you be taken to the place of execution at such
time as His Excellency the Lieutenant-Governor may direct,"
is sufficient, (k)
A prisoner who has been convicted of felony at the assizes
may be brought up into this court to receive sentence. (/)
No warrant is required to execute a sentence of death, for,
in contemplation of law, there is a record of the judgment
which may be drawn up at any time. It is not necessary
that a judge of a criminal court should sign any warrant or
sentence directing any punishment, (ra) In Nova Scotia,
the warrant for execution issued from the court, and the
time and place of execution were endorsed on it by the fiat of
the governor, (n)
(t) Reg. v. Murphy, L. R. 2 1'. C. App. 535.
( ;") See Reg. v. Bertrand, L. R. 1 P. (J. App. 520.
(k) Reg. v. Kennedy, 2 Thomson, 218.
(1) Rex v. Kenrey, 5 U. C. Q. B. O. S. 317.
(m) Ovens v. Taylor, 19 U. C. C. P. 53-4, per Hagarty, J.
(n) Reg. v. Kennedy, 2 Thomson, 213.
PRACTICE. 519
In general, there can be no costs allowed in Crown cases ; (0)
but the rule that the King neither pays nor receives costs is
not universal, nor inflexible, (p)
On putting off the trial of an information for penalties at
the instance of the defendant, the court will make payment of
costs a condition in the same way as in civil cases, (q) There-
fore when a defendant, on an indictment for perjury, puts off
the trial, he must pay costs on the principle that an indul-
gence is granted to him, which ought not to occasion addi-
tional expense. When the King is a party costs may be
receivable, when there has been default on one side or an
indulgence on the other, although, upon a conviction or
acquittal, none would be taxable, (r)
Where, after a rule nisi for a mandamus had been served
the applicant gave notice that it would not be proceeded
with but did not offer to pay the costs, the court, on appli-
cation, discharged the rule with costs up to the time of the
notice, and costs of said application, (s)
The court will not entertain an application for costs of an
appeal against the decision of a justice, under the 20 & 21
Vic., c. 43, in the tern" after that in which judgment is pro-
nounced, (t)
An attachment cannot be granted against a corporation
for a non-payment of costs, (u)
Under 32 & 33 Vic, c. 31, s. 65, and 33 Vic., c, 27, the
Court of Sessions has no power to award costs, on discharging
an appeal for want of proper notice of appeal, for the words
" shall hear and determine the matter of appeal " mean decid-
ing it upon the merits, (v)
The 5 & 6 W. & M., c. 33, s. 3, enacts that, if the defend-
(o) Reg. v. Justices of York, I Allen, 90.
( p) Rex v. Ives, Draper, 456, per Macaulay, C. J.
(q) Ibid. 453.
(r) Rex v. Ives, Draper, 454, per Robinson, C. J.
(s) Reg. v. Justices of Huron, 31 U. C. Q. B. 335.
(t) Budenberg and Roberts, L. R. 2 C P. 292.
(«) Rector of St. John v. Crawford, 3 Allen, 266 ; see also Rex v. McKenzie,
Taylor, 70.
(v) Re Madden, 31 U. (?. Q. B. 333.
520 THE CRIMINAL LAW OF CANADA.
ant prosecuting a writ of certiorari be convicted of the
offence for which he was indicted, then the court shall give
reasonable costs to the prosecutor, if he be the party grieved
or injured, or be a justice of the peace, mayor, bailiff, con-
stable, head borough tithing man, churchwarden, or overseer
of the poor, or any other civil officer who shall prosecute
upon the account of any fact committed or done that con-
cerned him or them, as officer or officers, to prosecute or
present. The defendants were indicted before the General
Quarter Sessions of the Peace for a nuisance in obstructing a
highway, and they removed the indictment into the Court of
Common Pleas, where they were afterwards severally con-
victed and judgment given against them. A motion was
made for a rule absolute, ordering the costs of prosecuting
the indictment to be taxed by the, master, and that the said
costs should be allowed to the municipality as the prosecut-
ors of the indictment, and paid by the said defendant to the
said municipality. The court refused the rule, and laid down
that the regularly established practice was to issue a side-
bar rule to tax the costs, and when the side-bar rule is
obtained, the officers do not proceed to taxation until notice
has been given to the bail.
The question who, as prosecutors, were entitled to the
costs might be discussed, on a motion to set aside the side
bar rule, when both parties are before the court, or it might
ome up on opposing a motion for an attachment, for non-
payment of the costs taxed after demand made, as required
by the statute, (w) The defendant, after a demand of
costs, under a rule of court, by the plaintiff's attorney, paid
the amount to the plaintiff. The attorney afterwards
obtained a rule for an attachment for non-payment of the
costs, but before the attachment issued, was informed of
the payment to the plaintiff; and it was held that he was
not justified in afterwards issuing an attachment for the
(w) Reg. v. Gordon, 8 U. C. C. P. 58.
PRACTICE. 521
costs of an affidavit of the demand of payment, and the
costs subsequently incurred, (x)
The statutes authorizing the granting of new trials in
criminal cases have been repealed, and now throughout
the Dominion there is one uniform law, similar to that of
England, on this point, (y) By the law of England, no new
trial can be granted in the case of felony, (z) Such was
also the law in Quebec, even prior to the recent statute, (a)
and in Nova Scotia. (6)
When the record is on the civil side of the court, all the
incidents of a civil cause attach to it. (c) Thus, when the
indictment has been preferred in the Queen's Bench, or has
been removed into the court by certiorari, and is sent down
to be tried at nisi prius, as all the incidents of a trial at
nisi priiis attach to it, a new trial may be granted after con-
viction, (d) But these remarks can only hold when the
charge is of misdemeanor. When the charge is of felony,
no new trial can be granted, though the indictment has
been removed by certiorari, and sent down for trial at the
assizes, on a nisi prius record, (e)
In the case of felony or treason, if a conviction takes
place against the weight of evidence, the judge passes sen-
tence, and respites execution till application can be made
to the mercy of the' Crown ; (/) and it would seem that
this is the proper course to adopt now in Canada, in cases
where formerly a new trial might be had by statute, (g)
(x) Reg. v. Harper, 2 Allen, 433.
(y) See 32 & 33 Vic., c. 29, s. 80.
(z) Reg. v. Brrtratnl, L. R. 1 P. C. App. .520 ; #?</. v. Murphy, L. R. 2
P. C. App. .53-1.
(a) Reg. v. D'Aomt, 10 L. C. J. 221 ; S. C. 9 L. C. J. So, overruled ; Reg.
v. Bruce, 10 L. C. R. 117 ; Gibb v. Tilstone, 9 L. C. R. 244.
(b) Reg. v. Kwn.-<hj, -2 Thomson, 203.
(c) Reg. v. D'Aoust, 10 L. C. J. 223.
(d) S.C. 16 L.C.R. 494-5, per Meredith, J.; see also Arch. Cr. Pldg. 178.
(e) Reg. v. Bertrand, L. R. 1 P. C. App. 520, overruling ; Reg. v. Scaife,
17 Q. B. 238.
( /) Tearke and Bingl-man, 28 U. C. Q. B. 557, per Richards, C. J.
(g) See Reg. v. Bertrand, L. R. 1 P. C. App. 520-536 ; Reg. v. Murphy,
L. R. 2 P. 0. App. 552, per Sir Wm. Erie; Reg. v. Kennedy, 2 Thomson,
216, per Bli**, J.
522 THE CRIMINAL LAW OF CANADA.
The Court of Queen's Bench, in Lower Canada, sitting in
appeal and error, as a court of error, in a criminal case,
under Con. Stats. L. C., c. 77, s. 56, cannot exercise an ap-
pellate jurisdiction, but is confined, as a court of error, to
errors appearing on the face of the record, (h)
It is the inherent prerogative right, and, in all proper
cases, the duty of the Queen in council, to exercise an ap-
pellate jurisdiction in all cases, criminal as well as civil,
arising in the colonies, from which an appeal lies, and
where, either by the terms of a charter or statute, the
power of the Crown has not been parted with. This right
of appeal should be exercised with a view not only to
ensure, as far as may be, the due administration of justice
in an individual case, but also to preserve generally the
due course of procedure. The exercise of this branch of
the prerogative, in criminal cases, is to be cautiously ad-
mitted, and is to be regulated by a consideration of circum-
stances and consequences. Leave to appeal will only be
granted under special circumstances, such as when a case
raises questions of great and general importance in the
administration of justice, or where the due and orderly
administration of the law has been interrupted, or diverted
into a new course, which might create a precedent for the
future ; and also when there are no other means of prevent-
ing these consequences, then it will be proper for the judicial
committee to advise the allowance of such appeal, (i)
It is doubtful whether an appeal lies to the Queen in
council, against a judgment of the Court of Queen's Bench
in Quebec, quashing a writ of error against an order of the
court of Queen's Bench, on the Crown side, fining and
Ordering an attachment against a counsel, for an alleged
contempt of court. It would seem, however, that where a
fine is imposed, the remedy is to petition the Crown for a
(h) Duval dit Barbinas v. Reg., 14 L. C. R. 52.
(t) Reg, v. Bertrand, L. R. 1 P. C. App. 520 ; see also Falkland Islands
Co. v. Req., 10 U. C. L. J. 167 ; 1 Moore's P. C. Cases, N. S. 299.
PRACTICE. 523
reference to the judicial committee, under the 3 <fc 4 Wm.
IV., c. 41, s. 4. (j)
But where the court of final resort in criminal matters
are not unanimous, an appeal lies to the Supreme Court of
Canada, and from that court to the Privy Council. (&)
Special leave to appeal to the Privy Council was granted
to the Attorney General of New South Wales, from an
order of the Supreme Court in that colony, whereby a
verdict of guilty of murder, obtained by the Crown, was
set aside, and a venire de novo for a re-trial ordered to issue.
The leave was granted on the same conditions as in Reg. v.
Bertrand, and the proceedings in the colony were stayed,
pending the appeal. (I)
Leave to appeal has been given from an order of the
Supreme Court of Civil Justice of British Guiana, com-
mitting the publisher of a local journal to prison for six
months, for an alleged contempt of court, in publishing
in such journal comments on the administration of justice
by that court, with liberty to the judges of the Supreme
Court to object to the competency of such appeal at the
hearing, (m)
Special leave to appeal will be granted where the question
raised is one of public interest, such as the constitutional
rights of a colonial Legislative Assembly, (n)
Permission was given to appeal, in forma pauperis, in a
case in which the appellant was not heard in the court below,
and was denied leave to appeal to Her Majesty in council,
the decision being, in fact, ex parte. (o)
Leave to appeal from an order of the Supreme Court of
Nova Scotia, suspending an attorney and barrister from prac-
tising in that court, has been granted, though, under the cir-
( /) Re Ramsay, L. R. 3 P. C. App. 427.
(t) Reg. v. Amer, 2 S. R. C. 593.
(1) Reg. v. Murphy, L. R. 2 P. C. App. 535.
(m) Re McDermott, L. R. 1 P. C. App. 260.
(n) The Speaker of the Legislative Assembly of Victoria v. Gla#*, L. R. 3
P. C. App. 560.
(o) George v. Reg., L. R. 1 P. C. App. 389.
524 THE CRIMINAL LAW OF CANADA.
cumstances, it was incumbent on the appellant to apply to
Her Majesty, in the first instance, to admit the appeal. On
a suggestion of the injury arid delay which an application to
Her Majesty would create, the appeal was allowed by the
Privy Council, (p)
Special leave to appeal was granted under the circum-
stances shown in Reg. v. Murphy, (q)
Special leave to appeal from a conviction of a colonial
court for a misdemeanor having been given, subject to the
question of the jurisdiction of Her Majesty to admit such an
appeal, and it appearing at the opening of the appeal that,
since such qualified leave had been granted, the prisoner had
obtained a free pardon and been discharged from prison, the
judicial committee declined to enter upon the merits of the
case, or to pronounce an opinion upon the legal objections to
the conviction, the prisoner having obtained the substantial
benefit of a free pardon. They accordingly dismissed the
appeal, (r)
It seems the Privy Council would entertain an appeal from
a provincial Court of Appeal, without express leave of such
court, (s)
No appeal to England is expressly given by our statutes)
in criminal cases, but several appeals to the Privy Council
have been made in the Dominion.
The Crown may issue fi. fas. for the sale of goods and lands
in order to satisfy a fine imposed, and may include both
classes of property in the same writ ; and may make it re-
turnable before the end of twelve months, the Crown not
being bound by the 43 Edw. III., c. 1. (t) But the court
may, at any time, interfere, as exercising the power of a Court
of Exchequer, to restrain undue harshness or haste in the
execution thereof. (%)
(p) Re Wallace, L. R. 1 P. C. App. 292 3.
(q) L. R. 2 P. C. App. 538.
(r) Levien \. Reg., L. R. 1 P. C. App. 536.
(a) Whelan v. Reg., 28 U.C.Q. B. 186, per Draper, C. J. ; Naiker v. Yettia,
L. R. 1 P. C. App. 1 ; Ko Khine v. Snadden, L. R. 2 P. C. App. 50.
(t) Reg. v. Desjardins Canal Co., 29 U. C. Q. B. 165.
(u) Ibid.
PAGE.
ABANDONING CHILD— (see CHILD). 323
ABDUCTION—
Of girl under sixteen 214
ABORTION—
Administering noxious thing to procure 209
Noxious thing, what is 209
ACCESSORIES—
Before and after the fact 75
Only in felonies 75
In misdemeanors all are principals 75
May be to new statutory felonies 79
No accessory to felony unless felony committed 75
Manslaughter, no accessories before the fact in 75
But may be after the fact 75
Offence of accessory distinguishable from that of principal in second
degree , 75
What authority or procurement renders man liable as accessory... 76
Distinction between civil and criminal cases 76
Procurement, how effected 76
Must be some active proceeding on part of....'.
Consequences if authority not pursued 78
Or if accessory repent 78
After the fact, what constitutes 79
Wife not accessory for receiving her husband .. 78
Accessories, how far relieved from responsibility when principal
does not pursue authority 78
Accessories to felonies created by statute 79
Statute as to trial of accessories 79
ACCOMPLICE— (see EVIDENCE).
ADJOURNMENT -
Of trial, when granted 507
Of Sessions (see SESSIONS).
ADMINISTERING— {see ABORTION).
528 INDEX.
PAGE.
ADMINISTRATION— (see SUMMARY ADMINISTRATION OF CRIMINAL
JUSTICE). -
ADMIRALTY COURTS—
Jurisdiction of (see PIRACY).
ADVOCATE— (see ATTORNEY).
AGENT—
Liable for act done under authority of his principal 76
AGGRESSIONS—
Lawless by subjects of foreign countries at peace with .Her
Majesty 320 et seq.
31 Vic., c. 14, as to 320
British subject by birth may become citizen of foreign state 321
May be so treated at option of Crown 321
Evidence of being subject of foreign state 321-2
Of entering Canada with intent to levy war 322-3
Person acting in any character is liable 322
Evidence of engagement several hours before arrest of prisoner is
admissible 323
Person acquitted as citizen U. S., cannot plead autre fois acquit
when indicted as British subject 323
28 Vic., c. 1, as to repressing outrages on frontier 323
AMENDMENTS— (see Different Subjects).
ANNOTATIONS—
Of miscellaneous statutes , 317 et seq.
ANIMALS IN TRANSIT 345
APPEALS—
In cases of summary convictions 440
In matter not a crime 440
Procedure on 440 et seq.
Recognizance to try form of 442
Enrolment if not necessary 442
Notice of appeal 440 et seq.
Usually heard first day
Waiver of right to appeal
Jury, trial by, right to
Judge in chambers in liquor case
Adjourning appeal
Reinstati ng
Evidence on
Enlargement, what it waives
Costs on . .
INDEX. 529
APPEALS— Continued. PAOB.
Allowing without affidavit 446
From sessions to superior courts of law 445
To superior court when question reserved at sessions or Court of
Oyer and Terminer 445
Rules as to must be complied with , 440-41
To Privy Council, when allowed 523 et tfq.
Under various statutes 440 to 447
APPRENTICES AND MINORS—
Act Con. Stat. U. C., c. 76, as to 329
\Vhen apprentice is minor, articles must be executed by some one
on his behalf 329
Absolute imprisonment not authorized 329
ARRAY— (see JURORS).
ARREST—
By magistrate, constable, etc., ft seq. (see MANSLAUGHTER).
ARREST OF JUDGMENT—
When case reserved 505
Objections on motion, how limited 505
Presence of prisoner m<ty be waived , 506
ARSON—
Another, house of 291
Attempt to commit 296-7
Building, what is 292 et seq.
Need not be a finished structure 293
Burglary, decisions as to apply to arson 292
Burning must be actual 292
And malicious and wilful 292
Construction of statutes 291
Definition 291
Evidence of intent to defraud when man sets fire to his own
house 294
What is sufficient 294 et seq.
Goods, setting fire to 296-7
In own use, with intent to defraud 297
Grain, setting fire to stack of 297
Indictment for setting fire to own house 295
Allegation of intent to defraud 2%
Surplusage in 295
Arson not a term of art 296
Intent to defraud inferred from act itself, when house of third
person set fire to 294
Act must be wilful 294
HH
530 INDEX.
ARSON — Continued. FAftB
When own house set fire to, must be actual evidence of intent 294
What is sufficient 294-5
Jury, finding of, conclusive as to what 294
Malicious burning must be 292
Married woman not liable for setting fire to house of husband . . . 295
Negligence in burning 292
Occupied, house must be .... 293
Must be intention of returning 293
Owner of house, whether liable 291
Returning, must be intention of 293
Shop, what is 292
Statutes, construction of 291
Surplusage in indictment 295
Wife (see. MARRIED WOMAN).
ASSAULT AND BATTERY—
Aggravated 223
On indictment for, may be convicted of common 217
Apprehension of violence no justification 222
Bodily harm, with intent to do grievous, what amounts to assault,
with 220
Firing loaded pistol into group shows intention to do grievous
bodily harm 220
Capital felony, assault may in some cases amount to 224
Carnal knowledge, attempt to have, may be assau It 2 1 (J
Charge of offence which includes assault — 218
Common assault, when there may be conviction of 217
Con. Stat. Can., c. 91, did not apply to 221
Complaint of, under 32 and 33 Vic., c. 20, s. 43, cannot be with-
drawn 410
Conductor on train when not liable for assault 216
Consent, can be no assault where there is (see RAPE) 217
Correction, moderate, is justifiable (see MASTER) 223
Crime, including assault, on indictment for, may be conviction
for assault 218
But the crime must include assault 218
And the assault, in case of death, must conduce to the death 218
Indictment need not charge assault in terms 219
Definition of 215
Indictment, for carnally knowing girl, there may be conviction for
assault upon
When indictment charges common assault 219
Need not charge assault in terms 219
For inflicting grievous bodily harm 220
For shooting with intent to do 220
Charging aggravated assault 217-21
INDEX. 531
ASSAULT AND BATTERY— Continued. PASI.
Intention necessary to make act assault 215
Intruder, assault upon 222
Justification of assault in self-defence, what amounts to 221
Of shooting with pistol 216
Malice, necessary in assault, under 32 & 33 Vic., c. 20, s. 19 220
Master, moderate correction by, is justifiable 223
Misdemeanor, assault is 224
Of officers in discharge of duty (See OBSTRUCTING, MAXSLACGH i :
Punishment of 224
School teacher 223
Servant, moderate correction of, justifiable 223
Sessions have power to try 224
Words cannot amount to 2.2 1
Turning intruder out when request to leave necessary ' 222
.Av-EMBLY (see UNLAWFUL ASSEMBLY).
ATTACHMENT— (see CONTEMPT).
ATTEMPTING—
To commit crimes 59 ft seq.
ATTORNEY—
Cannot act as advocate in Court of Sessions 475
Xo right to appear before justices on charge of indictable offences. 407
But may in case of summary convictions - 407
AUTREFOIS ACQUIT— (see PLEADING.)
BAIL—
Principles on which granted 479-80
On charges of perjury, arson, larceny, murder, treason, felony, and
misdemeanor 480-81
On application for, court may look at information and remedy
commitment 481
Lapse of year from imprisonment 481
If prisoner about to die 481
Accessories after the fact 481
Obligatory, in case of misdemeanor as well after as before indict-
ment found.. 482
After two trials and discharges of jury for disagreement 482
One justice may bail in misdemeanor, but not in felony 482
When case reserved, court which tried prisoner must bail 482
One assize having passed over without committal of prisoner . . . 482-3
Forfeiting, after plea of not guilty 483
If offence bailable may be released at any time, on giving proper
sureties 483
532 INDEX.
BAIL — Continued.
Practice as to entering up judgment on the recognizance 483
Eelief from estreated recognizance 484
When j udges of Queen's Bench should estreat 484-5
Rescinding order for bail 485
When better sureties may be ordered 485
Application made on affidavits entitled in the Queen's Bench. . .. 485
Certifying commitment, information, etc 485
BANKING ACT—
Deceptive return under 329
Intent 330
Indictment 343-4
BARRISTER— (see COUNSEL.)
BATTERY— (see ASSAULT.)
BETTING ».. 345
BIGAMY—
Absence of first wife, when defence
After absence for seven years, onus on whom 125-(
Banns, validity of marriage contracted by 127-8
In case of minors
Common law of England, as to marriages introduced
Consent, age of 1J
Marriage, before age of, must be ratified
England, common and statute law of, introduced 127
Evidence —
Extract from register of marriage 124
Of reputation will not suffice 124
Must be direct proof 124
Admission of first marriage sufficient 124
But must be unequivocal 125
First wife, not admissible till proof of first marriage 124
What sufficient of marriage celebrated in State of New York 124
Onus of proof 125
Exigi facias, when may issue 130
Foreign country, when marriage in will be held invalid here 130
Foreign jurisdiction, statute extends to bigamy committed in. . . . 130
Indictment for bigamy committed in States 130
Jewish marriage, written contract not essential to validity of 129
Marriage, first must be legal 122
Second need not 123
Laws in relation to 127
Going through form of marriage sufficient 123
INDEX.
533
BIGAMY— Continued. PAG*.
By man with sister of deceased wife *28
In Ireland 129
Jewish 129
Of squaw and Lower Canadian 130
In foreign country, by persons not British subjects 130
Successive marriage 127
Minors may marry by banns 127
Onws of proof, when on prosecution 125
Presumption of death after seven years' absence 125
But not that he is living 125
Sister, marriage with, of deceased wife 128
Soldier, convicted of bigamy not discharged from military
service 130
Statutes 32 & 33 Vic., c. 20, s. 58 122
4 Ed. VI., Stat. 3, c. 5 122
3 Jac. I., c. 33 122
26 Geo. II., c. 54 127
5&6Wm. IV., c. 54 122-7
Wife, first, not admissible as witness 124
Absence of first 125
Deceased, marriage with sister of 128
BILL OF EXCEPTIONS—
Does not lie in criminal cases 379
BIRTH — (see CONCEALING BIRTH).
BRITISH COLUMBIA— (see ENGLISH LAWS IN FORCE).
BURGLARY—
Breaking necessary 225-7
Must be actual 225
By fraud 225
Chimney, entrance by, is burglary 226
Conspiracy, entrance by, is burglary 227
Daytime, no burglary in 228
Only housebreaking 228
Definition 225
Dwelling-house, what is 228
Formerly included out-houses, etc 228
Must be inhabited 228
Entering necessary 225
By open door or window 225
Other cases of 225
By chimney 226
By conspiracy 227
5:-54 INDEX.
BURGLARY— Continued. PAOT.
In night 228
Own house , 230
Fraud, breaking by 225
Inhabiting house necessary 228
Occasional absence immaterial 228
Intent must be to commit felony 229
To commit trespass insufficient 229
Night, burglary can only be committed in 228
When night commences and ends 228
Breaking and entering need not be both in same 228
Own house, man cannot commit burglary in 230
Roof, entry through hole in, not burglary 226-7
Statutes 227 et *eq.
Time of committing 228
CERTIORARI—
Whether it can issue in vacation .. 449
When granted, of course 456
When court has discretion 456
Must be obtained on affidavit 456
What words in statute take away right to 457
Void proceedings, removing by 457
When granted, though right to taken away 457
If conviction in court, no writ necessary i . 458
None after verdict or judgment, or acquittal 458
To remove order, quashing conviction on appeal to sessions 458
When conviction affirmed 450
When imprisoned for contempt of court ... 459
Mere irregularities not sufficient 459
Difficulties in point of law 459
What proceedings may or may not be removed by 458-59-60-61
Only substitutes superior for inferior court 462
Application for should be made in first term, or within six months
after conviction 462-3-7
This rule does not apply to the Crown 463
Notice to convicting justice 463-4
And to chairman of sessions 463
No notice necessary when writ obtained by private prosecutor, or
where conviction already in court 465
Application for should be by summons 465
Renewing on amended materials 465-6
Affidavit of service of notice 465
Where Christian name mis-stated 466
Entitling affidavits, rules, etc 466-7
Addressing writ 467
INDEX. 535
CERT 10 R A RI— Continued. PASB.
Serving 468
Quashing conviction on return to 468
Affidavits may be used to show want of jurisdiction 466
Judgment on 468
Return of notice of motion for 469
Return to by justice 469
Amending return 469
Full faith and credit given to 469
If material evidence omitted 469-70
Returning conviction 470
Under seal 470
Attachment, for not returning 470
Costs 471
Amending, quashing 468-70
Decisions in Quebec 471-2
CHALLENGES TO JURORS— (see JURORS).
CHAMPERTY AKD MAINTENANCE 117
Definition of 117
Are common law offences 118
Crown bound by law ... Hg
Object and principles of law 117-18
Sharing in profits essential 120
Suit pending, whether must be 119
Titles, selling pretended 121
Act 32, Henry VIII., c. 9, as to 121
Practical repeal of in Ontario 122
What is offence within 121
CHEATS AND FRAUDS—
Actual prejudice must be 287
Common law offence 287
Definition 287
False token or mark 287
Indictment must allege that article passed off by false token 287
And that selling was by means thereof 288
Prejudice must be actual 287
Private fraud, what is 287
Token must be false 287
CHILD—
Unlawfully abandoning and exposing 323
Act only applies to persons bound to maintain 323
Does not apply if child dies 324
What is offence within statute 323-4
Refractory, in Province of Quebec 344
536 INDEX.
CHOSES IN ACTION- PA81t.
Assignable at law (see LARCENY).
CHURCHES—
Maintenance of good order in 339
Act must be done during divine service 339
Commitment without first issuing warrant of distress 339
CIVIL ACTION— (see CRIMES).
/
COERCION—
By master or workman 116-17
COINAGE OFFENCES 80
Imperial statutes in force 80
Indictment should negative lawful authority or excuse 80
And bring offence within statute 80
Previous conviction 80
Resemblance to real coin 81
COLONIES— (see ENGLISH LAWS IN FORCE).
COMMITMENT— (see WARRANT).
Warrant for indefinite time '. 432
Need not show information on oath, but must state place of com-
mitting offence ... 424-5
Certainty and precision in 425
Should follow forms 426
Signing by one or two justices 427
Issuing of, when discretionary 427-8
Should ascertain amount of costs 422-3
Executed under Act after repeal . . 428
Should show before whom the conviction was had 428
Cannot be withdrawn from gaoler's hands 428
Should set forth day and year 429
And authority of magistrate 429
Should be in writing 429
Final for want of sureties to keep the peace (see WARRANT) 429
COMPLAINT OF ASSAULT—
Under 32 & 33 Vic., c. 20, s. 43, cannot be withdrawn 410
Justices will be ordered to hear it 411
Discretion of justice 411
Adjudication and certificate 411
What certificate bars 411
Amending information 412 et seq.
COMPOUNDING FELONY 107
Compromising prosecution, only by leave of court 107
Informations on penal statutes 107
INDEX. 537
COMPOUNDING FELONY— Continued. PAei.
Misdemeanor, compounding of, illegal 107
Prosecution, compounding 107
Qui tarn action 107
CONCEALING BIRTH—
Secret disposition depends on circumstances of each case 208
What is 208
CONCILIUM—
When granted 516
CONSENT—
By prisoner 516
CONSPIRACY—
Agreement, unlawful, is gist of offence 309
Indictable, though no offence without 310
Object need not be unlawful or criminal 310
Bymembers of copartnership 310
Common law offence 314
Concert, proof of 312
Contract, no objection that money was to be obtained by 315
Definition "309*
Evidence when joint participation 312
Of concert 312
General nature of conspiracy 312
Of conspiracy to commit larceny 313
Execution of purpose not necessary 309-10
Need not be alleged in indictment 310
Felony committed in pursuance of 315
Gist of offence, unlawful agreement is 309
Illegal trading company 315
Indictment need not allege execution of conspiracy 310-1
Lies, where object is to effect legal purpose by illegal
means 310-1
Must show object or means unlawful 311
When means should be set out 311
Laying property in municipal corporation ... 311-2
Showing object of conspiracy 311
Alleging unlawful agreement 311
And unlawful means 311
Setting out pretences in conspiracy to obtain money by false 312-3
Specifying goods 313-4
Inference, conspiracy matter of 312
Joint participation, all liable for 312
Legislative body, to intimidate, felony 316
Misdemeanor, conspiracy to kidnap is 314
538 INDEX.
CONSPIRACY— Continued. PAaE.
Object need not be unlawful 310
If unlawful, means need not be 311
When felonious, conspiracy not merged 315
One person cannot be guilty of 315
Participation, liability in case of joint 312
Purpose, when corrupt or illegal, indictment lies 311
Trespass, civil, conspiracy as to .' 315
Two persons must combine 315
Wife cannot be guilty of with husband 315
CONSTRUCTION OF STATUTES—
Rules as to 317 to 320
CONTEMPTS—
Before justices of the peace 439
By witness in not obeying subpoena 433-4
Of court 434 et seq.
Article in newspaper 435
Disobedience of order 433
Punishment of in Canada 436
Sessions may fine and imprison for 476
CONVICTIONS—
On application to quash, convicting justice should be made a party. 467
Convictions, return of by justices, Acts as to 334
Separate penalty for each conviction 424
Illegality of conviction 423-4
Orders for payment of money 335
To what court returnable 335
Convictions, summary, appeals from (see SUMMARY CONVICTIONS,
APPEALS) 440
Annulling
Sufficient to follow forms 415
Where forms not followed 416
What must appear 416 et seq.
Certainty in 416-7
In alternative 417
Not sufficient to state legal result of facts 418-9
Following words of statute 419
Reversing effect of 421
Quashing 420 et seq.
Must be sealed 422
Costs 422etseq.
Imprisonment awarding on 423 et seq.
Return of 334-5
Penalty for neglect 334
What must be returned . . 334-5
INDEX. 539
CORONER- PAOT.
Inquisition of 430-31
Inquest on Sunday 431
Second on same body 431
Barrister cannot insist on being present at 431
Depositions before, proof of 368
CORPORATION—
Punishable for libel 131
Attachment against for non-payment of cost 519
COSTS—
On convictions before justices 422
In general, none allowed in Crown cases 519
When allowed in, application for, etc 519
When rule ni.s-i for mandamus served 519
Against corporation 519
On dismissing appeal to sessions ^, 519
By defendant prosecuting certiorari 519-20
Side bar rule to tax , 520
Attachment for. when justified 520
COUNSEL
No right to appear before justices on charges of indictable of-
fences 407
But may in cases under " Summary Convictions Act" 407
Only two can be heard on behalf of prisoner 510
Motion for criminal information by 477
Right to cross-examine witnesses and address jury 510
Right of Crown counsel to reply 610
COUNTY COURTS—
Jurisdiction of 472
COURT—
Of record has power to fine and imprison for contempt 437
CREDITORS— ASSIGNMENT TO DEFRAUD.
Money bond is personality, within 13 & 14 Vic., c. 53 342
CRIMES IN GENERAL-
Attempt to commit misdemeanor is misdemeanor 59
Attempt to commit felony is misdemeanor 60
Attempt to procure a woman to make affidavit that A. , father of
illegitimate child, is misdemeanor 59
On indictment for felony or misdemeanor, jury may find
prisoner guilty of attempt to commit it 60
540 INDEX.
CRIMES IN GENERAL— Continued. PAOE
Civil action —
Suspension of 50
When felony disclosed in evidence 50
Suspended till acquittal or conviction of felon 50-51
What sufficient prosecution 51
When rule applies 50
When it does not 51
Jury cannot try felony in civil action 51
Judge must decide whether case shall go to jury ... 52
Exceptions to general rule 52-3
Quebec, law in, different from other provinces 53
Crimes considered local ... 53
Cognizable only where committed 53
Mean offences punishable by indictment 53
Divided into felonies and misdemeanors 53
What are indictable 53 et seq.
Nature and incidents of 53
Criminal proceedings, what are 53
Definition 49
Election, neglecting or refusing to administer oath at, indictable.. 58
Felony defined 53
When crime becomes .. ..... 53
Attempt to commit, is misdemeanor 60
On indictment for, jury may find prisoner guilty of attempt
to commit 60
Attempt to commit, must tend to execution of principal crime. 60
Must appear that attempt might have been completed 61
Attempting to commit distinguishable from intending to
commit 62
Offence made which was before misdemeanor 55
Misdemeanor formerly merged 55
Now statute alters this 56
Effect of this statute 56
Inciting to commit misdemeanor is misdemeanor 59
Indictment, for what crimes it lies 56 et seq.
For whatever openly outrages decency 56
For violation of positive command in Act 6G-7
For act not an offence at common law 56
Where a statute forbids or enjoins an act 57
Inference that every person intends the natural consequences of
his own act 62-3
Intention, act resting in, not indictable 62
Misdemeanor, what is 56
Attempt to commit is 59
INDEX. 541
CRIMES IX GENERAL— Continued. PAaE.
Attempt to commit felony is 60
Inciting to commit misdemeanor is 59
When act not committed 62
On indictment for, jury may find prisoner guilty of lesser
misdemeanor 59
Disregard of positive command in statute indictable as 62
How differs from felonies 63
Punishment of 63
Misprision of felony 56
Moti\-es in criminal proceedings 62
When material and when not 62-3
Penalty, when annexed to offence in clause of Act creating it, no
indictment lies 57
Public officer, refusing to discharge duties, indictable 59
Remedy when cumulative 57
Returning officer indictable for entering names in poll-book 58
Soliciting and inciting to commit felony when none committed, is
misdemeanor 62
Statute on which indictment framed, effect of repeal of 54
Creating offence, repeal of ... 64
Altering quality of offence, substituting new mode of punish-
ment 55
Annexing new punishment to common law misdemeanor 55
Making offence felony which was before misdemeanor, effect
of 55
CRIMINAL INFORMATIONS 476 to 479
CRIMINAL LAW—
Right to legislate upon vested in the Dominion Parliament (see
ENOLLSH LAWS ix FORCE) 5
CROWN—
Application to for pardon, when proper 523
Right of counsel representing to reply 510
Prosecutions, how they differ from civil suits 510-11
Cases, may stand in paper for argument with civil suits 516
CUSTOMS OFFENCES—
Actasto 92
Breaking building, what justifies 93
Colonial legislature, power to impose additional grounds of for-
feiture 94
Conviction under various Acts 94-5
Costs, revenue inspector not liable for 95
Entry indivisible 95
542 INDEX.
CUSTOMS OFFENCES— Continued. PAOK.
Gunpowder, importation of .................................................. 94
Indictment, when lies ..................................................... 92
Allegations in what sufficient ........................................ 92
Information, written on oath when necessary ........................ 92-3
Certainty in ............................ i ............................. 95
Must specify, particular illegal act ................................... 95
Plea to evidence under ................................................. 94
Justice, presence of at breaking required ............................... 93
When should demand admittance ................ .................... 92
Order, when indivisible ............................................ ...... 95
Penalty, when only one recoverable ........................................ 95
Scienter proper question for jury ............................................. 95
Seizure ............................................. .............................. 93-5
Smuggling, what amounts to ........................................ 92-3-4-5
Stress of weather, landing of goods under, may be shown ........... 94
DAMAGING PROPERTY— (see MALICIOUS INJURIES).
DANGEROUS GOODS—
Carriage of ........................................................ ....... 345
DEAF MUTES—
Criminal liability of. ........................................................... 6$
DEATH—
Warrant to execute sentence of not requisite .......................... 518
DEMANDING WITH MENACES— (see MENACES).
DIVISION COURT— (see COURT).
DOCK—
Prisoner should stand in ....... ........................................... 506
DOMINION—
Criminal jurisdiction in . .......................... ........................... 5
DOMINION PARLIAMENT— (see ENGLISH LAWS IN FORCE).
DRUNKENNESS (see TEMPERANCE ACT)—
Effect of on criminal liability .................................. ......... 67
EJU8DEM GENERIS—
Rule as to words — (see CONSTRUCTION OK STATUTES).
EMBEZZLEMENT—
Account, general deficiency of... ........................................... 257
Accounting for several sums .............................................. 258-9
Acting on one occasion ................... .............. .................... 255
Acts of embezzlement, not exceeding three within six months ..... 259
INDEX. 543
EMBEZZLEMENT— Continued. PAet.
" Agent, or other," the words do not extend meaning of previous
words (see CoNSTRucnoy OF STATUTES) 258
Banker, meaning of term in statute 258
Clerk, who is 254 ft *eq.
Commercial traveller '255
Quantum m?ruit sufficient 254
Construction of words " or other agent '' 258
Counts for, joining with counts for larceny (see PLEADING).
Definition 253
Distinction between and larceny 270-71
Must be an 254-5
Employer may be corporation 256
Employment money must formerly have been received by virtue
of 256
Not now necessary 256
To receive money sufficient -J57
Entry in ledger of sum received 257
Form of indictment (see INDICTMENT).
Indictment for embezzling cheque 259
Laying property 259-60
Forms of, in statute . . 260
Only apply to one species of 260
Specifying coin in... ... 260
Intrusting •_'.". 7
Joint owners (see INDICTMENT) 257
Master, receiving money from and for ... 255
Money, embezzlement of 260
Property in 260
When sufficient to allege embezzlement to be of 260
Mortgagor cannot be guilty of 254
Particular sum, receipt of 257
Partners (see INDICTMENT).
Possession in master or owner 255
Receipt from third persons 255
From master or owner 255-6
Return, intention to 257
Servant, who is 2>4 tt s«q.
ENGLISH LAWS IN FORCE—
British Columbia 4
British North America Act 4-5
Constitution granted by 4-5
Colonies, modes of acquisition 1
Laws prevailing in each case 1-2
No precise rule asto 6
544 INDEX.
ENGLISH LAWS IN FORCE— Continued. PAQB.
Common and statute law extending to colonies, distinction
between 7
Criminal law, right to legislate on, by Dominion parliament. 4-5
By local legislature, to what extent 5
Dominion parliament 5
Right to legislate on criminal law 5
English laws, only such as are of general and universal applica-
tion introduced by 14 Geo. III., c. 83 6
Forcible entry, statutes as to in force 9
Imperial parliament has^power to bind colonies by legislation... 5
Imperial statutes affecting different provinces 2-5
When they extend to colonies 6
Introduction of English criminal laws on much same footing in all
provinces 17
Local legislatures, how far have right to legislate on criminal law. 5
Lotteries, Act as to, in force 7
Manitoba, how acquired 2
How formed 3
Jurisdiction of general court in 3
Marriage, common and statute law of England as to, introduced.. 9
New Brunswick, how acquired 2
Nova Scotia, how acquired 2
Ontario, how acquired ... 2
Prince Edward Island 4
Provinces, only such laws as are applicable and necessary intro-
duced 6
English statutes of general and universal application apply to 6
Quebec, how acquired ..... 2
Repeal in England of Act introduced into colony, effect of 7
Statutes introduced :
32 Henry VIII., c. 9 20
20Geo. II, c. 19 8
5 & 6 Edward VI., c. 16 8
49 Geo. III., c. 126 9
1 W. & M., c. 18 9
8& 9 Wm. III., c. 27 9
33 Hy. VIII., c.20 9
26 Geo. II., c. 33 9
21 Geo. III., c. 49 10
Mutiny Act 22
Statutes not introduced :
5Eliz., c. 4 • 8
28 Geo. III., c. 49...
INDEX. 545
ENGLISH LAWS IN FORCE— Continued. ,Ae«.
Statute, whole of, must be substantially applicable before it can
be in force 8
Time, lapse of should render colonial courts cautious in adopting
English statutes 6-7
Titles, statutes as to buying disputed, in force here 8
ENLARGEMENT—
Waives all formal and technical objections 445
ERROR—
When indictment lays previous convictions 509
Writ of, lies for substantial defects appearing on the face of record 511
Matter decided as strictly legal proposition oil
Where ven ire facias addressed to improper parties 511
Must be founded on some question of law which could not have
been reserved .-.. 512
Discretion of judge not reviewable in 512
Improper disallowance of challenge ... 513
On adjudication for contempt 513
For improper award of venire de novo 513
To reverse judgment of sessions 513
Upon summary convictions. 513
On judgments 513
Where, in fact, and not in law, court in which proceedings taken. 513
Form of writ v 514
Fiat of Attorney General.. .. 514
Assigning new, on argument 514
What matters can be raised on record, so as to be examined in 514
Not the rulings of the judge or his directions to the jury 514-5
What a prisoner can consent to, to purge error 515
Concilium for argument 516
ESCAPE—
Whatis 187
High contempt and misdemeanor 187
Party must be actually arrested and legally imprisoned 187
Imprisonment must be continuing 187
Negligent and voluntary 187-8
What is negligent.. 188
Custody of law, how long it continues 188
EVIDENCE—
Accomplice, evidence of, sufficient 354-5-
Should be corroborated 355
But evidence need not affect identity of accused, or show him
guilty party 35&
I I
546 INDEX.
EVIDENCE— Continued. PXOE-
Rule only of practice 355
Acquittal of one prisoner in order to call him as witness for an-
other jointly indicted 350
Discretionary at close of prosecutor's case 351
Obligatory at close of prisoner's ', 351
Copy of record of 375
Affirmative, burden of proof on party asserting ^47
Application to Crown for pardon in case of improper conviction... 379
Arson, verbal admission as to insurance admissible 372
Assault, defendant competent witness in cases of common 381
Authority, inducement held out by person in .. 362 ft wr/.
When confession to person in, admissible 362
Bill of exceptions does not lie in criminal case... 379
Burden of proof, rules as to 347
Lies on party asserting affirmative 347
Except where negative proof is peculiarly within knowledge
of party 347
Caution should be given to prisoner before making confession .... 363
Challenges, prisoners severing in, when one may be witness for the
other 352-3
Charge not the same as that on which deposition taken 369
Child, when competent witness 353
Close of case, no evidence admissible after 378
Competency of witnesses 353-4, 7,374, 380
Confessions, rule as to, different in criminal from that in civil
cases 346
Must be free and voluntary 362
If under oath, inadmissible 362
But this rule only applies when charge is against prisoner
himself 362-3
Inducements to confess 362 et seq.
Caution, what necessary 363-4
Examinations before commissioner in bankruptcy 367
Made under the hope of being permitted to turn King's evi-
dence 364
To constable, by accused in his custody 365
Advice on moral grounds 365
Subsequent wrarning or caxition, after inducement held out 366
Names of others in 367
Duty of magistrate, in receiving 367
Confidential communications, witness not compelled to disclose... 357
Consistent with prisoner's guilt, all circumstances must be, and
inconsistent with innocence 318
Contradicting witness, not by irrelevant question 359
Conviction of justice, when it is a record 375
INDEX. 547
EVIDENCE— Continued. PAOB.
How proved 375
Proof of quashing 376
Copy of record of acquittal 375
Coroner, depositions before, how proved 368
Court, record of same and different, proof of 375
Credibility of evidence solely for jury 348
Credit of witness, impeaching 358
Criminatory questions, witness not bound to answer 357
Cross-examination as to previous statements in writing 359
Irrelevant questions should not be put to witness on 358
Crown, application to, for pardon 379
Deceased witness, statement of , when admissible 370
Depositions, object of taking 367
Inspection of 367
Evidence discovered after 367-8
Before coroner or magistrate, proof of . 368
Reading before grand jury 368
Each need not be signed by justice 369
Admissible on different charge from that on which taken 369
Absence to render admissible 369
Illness necessary 369
Looking at, on return to habeas corpus 448
Of persons dangerously ill 370
Discrediting own witness 465
Documentary evidence, Act as to ~ 381
Doubt, reasonable, prevents conviction 346
Dying declarations, when admissible 373
Must be no hope of recovery 373
Objections to this kind of evidence 374
Effect of evidence, difference between civil and criminal proceed-
ings 346
Error, raising points to be examined in 379
Estoppel, doctrine of, has much larger operation in civil than in
criminal proceedings 346
Explanation of circumstances pressing against accused person,
when required 347
Fabrication of evidence 380
Felonies, when evidence of one admissible to show character of
other 371-2
Proof of finding of indictment for 377
Finding of indictment, proof of 377
Formal record, when not necessary 376
Forms of depositions 367
Gazette, when evidence 378
Grand jury, depositions before 368
548 INDEX.
EVIDENCE— Continued.
PAOB.
Guilty knowledge, how proved 371-2
Handwriting, proof of gg2
Hearsay evidence not admissible 372
Illegal evidence may be ruled out 3gg
Illness sufficient to render deposition admissible 369
Impeaching credit of witness 35S et sen.
Witnesses may prove that they would not believe him on
oath 360
Contradicting his statement 360
Formal and legal way of 361-2
Inadmissible evidence, correct course when it is received.. 366
Incompetent witness, evidence of, may be withdrawn from jury... 366
Indian witness, when competent 353-4
Indictment, proof of finding 380
Inducement excludes confession ...3Q2et seq.
Subsequent warning after 366
Inferences from facts proved pi 343
Information returned becomes record 377
Innocence, presumption of... 347
Only obtains before verdict 347
Inspecting depositions 357
Instruments liable to stamp duty 381
Irrelevant question, answer to is conclusive 359
Joint charge against two prisoners, one may be acquitted and
called for another 350-51-2
If one given in charge to jury, the other is an admissible wit-
ness against him 352
But not if both given in charge 352
Judge decides admissibility of confessions 366
And of dying declarations 373
Judicial notice taken of public statute 377
Judgment of sessions, when sufficient proof of breach of peace.... 375
Jury, weight and credibility of evidence for 348
Even where witness at trial directly confesses crime 348-9
Or in ordinary cases of confessions 366
Of dying declaration for 373
King's evidence, confession under hope of being 364
Knowledge, fact within must be proved 347
Proof of guilty 371-2
License or qualification must be produced, and proved by party
having 347
Liquor, proof on prosecution for selling 374
Looking at depositions on return to habeas corpus 448
Material evidence, what is 349-50
Memoranda, witness may refer to 380
INDEX. 549
EVIDENCE— Continued. - PAOE.
Minutes of court of sessions, evidence in same court 375
Minute book of sessions 376
Moral grounds, inducement to confess on 365
Motives, evidence to show 371-2
Documentary evidence to show 372
Negative evidence not bound to give 347
Notes of judge, reading, to jury improper 380
Oath varied to meet religious scruples of witness 353-4
Administered to prisoner when making confession 362
Objections to judge's charge, must be taken at trial 379
Onto of proof 347
Own witness, discrediting 360
Pardon, effect of, in compelling witness to answer 358-9
Previous statements in writing, cross-examination as to 359
Printer, Queen's, gazette printed bv 378
Prisoner jointly indicted, acquitted and calling as witness for
other 350 ft seg.
When one given in charge 352
When they sever in challenges 352-3
Public statute will be noticed judicially 377
Quashing of conviction, how proved 366
Ground for 379
Rape, on indictment for, prosecutrix not bound to disclose connec-
tions with other persons 360
Rebuttal, evidence in 347
Reception of improper evidence not necessarily ground for quash-
ing conviction 379
Record, conviction by justice returned to sessions, is 375
How proved 375
Record of same, and different court 375
Of acquittal or conviction 375-6
Copy of 375-6
Formal record 376
Information returned is .• 377
Raising points on, to be examined in error 379
Reply, reception of evidence in 378
Secondary evidence when admissible 372-3
Several felonies connected together, evidence of one to show
character of other 370-71
Sessions, minutes of 375
Severing in challenges 352-3
Skilled witness, what questions may be put to 361-2
Stamp duty, instruments liable to 381
Swearing witness according to ceremony which he considers
binding 354
550 INDEX.
EVIDENCE— Continued. PAOB.
Threats more than six months before commission of crime 378
Trial, all objections must be made at 379
Two prisoners jointly indicted, acquitting one and calling him as
witness for the other 350
Veracity of witness, impeaching 360
Voluntary, confession must be 362
Weight of evidence, for jury 348
Wife cannot give evidence for or against her husband 354
On joint charge 354
Withdrawing improper evidence 366
Witness, credibility of 348
Who may be 353 et seq.
Competency of 353-4-7, 374, 381
Incompetent, evidence of 357
One is sufficient 357
Need not disclose confidential communications 357
What are confidential 357
Nor answer criminatory questions 357
Impeaching credit of 358 et seq.
Cross-examining . . 359
Contradicting 359
Statement of deceased 370
Should be asked facts only 361
Reading judge's notes to 380
EXCISE OFFENCES— (see LIQUOR).
Conviction for, when sufficient 96
Amending 96
Crown may proceed by criminal information 96
Must allege sale by retail 97
EXCUSABLE HOMICIDE—
Of two kinds 208
Punishment for none 208
EXIGI FACIAS—
Writ of, when issued 130
EXTORTION — (see OFFICE, OFFENCES BY PERSONS IN).
EXTRADITION 10
Not of right unless by treaty 10
Accessory after the fact, not liable to 26
Accomplice, evidence of sufficient 39
Ashburton treaty now governs to U.S 11
Contains whole law of surrender 11
Assaxilt with intent to commit murder, what within treaty 23
INDEX. 551
EXTRADITION— Continued. PAOi.
Arrest, warrant of, who may issue 25-9
Foreign, must issue before commitment 29
Bail may be granted when 46
Burglary not within treaty 22
Commitment (see WARRANT OF COMMITMENT).
Construction of treaty 17-21
Depositions when court will look at — 43
Discharge if committed on insufficient evidence 39
Evidence, our law governs as to 14-36
Must be taken before magistrate issuing warrant. 30
V\ v a voce may be received 37
And original depositions or authenticated copies 37
Need not be on particular charge 37
But no obligation to produce depositions 37
How Act as to depositions should be construed 37
Affidavit, admissibility of 38
Professional gentleman, evidence of 38
Foreign indictment not receivable 38
Examination of witnesses, how conducted 32
Sufficiency of evidence, by whom and how determined 33
Evidence in defence 38-9
Admissible to show that crime not within treaty 39
Or witness not to be believed 39
Or that charge brought, the result of a conspiracy 39
Accomplice, evidence of. sufficient 39
Slave, evidence of, sufficient 39
Expenses, how payment of, enforced 47
Extradition Act, 1870, construction of 16-17
Forgery, when within treaty 23
France, extradition to ... 47
Governor General, surrender only by 31
No power except over specified offences ... 31
Controlled by courts 31
Xeed not issue warrant authorizing magistrate to act . 20
Habeas corpus, right of court to interfere by 39-43
Same as in other cases 40
Return to 41-2
Information, when too general 34
Jay's treaty related only to murder and felony 11
"Jurisdiction" and "territories," how used in treaty 13
legislation, with regard to 12-17
Magistrate, who may act as 25-9
Duty and authority in committing prisoner 33
Cannot try case 33
Discharge by one does not prevent another from acting 33
552 INDEX.
EXTRADITION— Continued. PAQB.
Issuing warrant must hear evidence, and determine upon its
sufficiency, and send copy to governor 30
Decision not binding on governor 30
Jurisdiction must be judicial as well as territorial. 27
Offences to which treaty applies 19-25
Nature of 20
How treaty construed and carried out as to 20-21
Whether misdemeanor or felony immaterial 25
Piracy, when within treaty 23-4
Procedure, alterations made in, by Imp. Extradition Act, 1870.... 15
Requisition by Government of United States not necessary 29
Review by court of magistrate's committal of prisoners for extra-
dition— (see HABEAS CORPUS) 40
Slave, evidence of, sufficient 39
Statutes in aid of treaty —
Con. Stats. U. C., c. 96 13
How far now in force 13
6&7 Vic., c. 76 12
Not now in force in any of Provinces 12
12 Vic., c. 19 14
23 Vic., c. 41 13
24 Vic., c. 6, why passed, provisions of 13
31 Vic., c. 94, why passed, effect of, what it repeals 15
33 Vic., c. 25 15
6&7 Vic., c. 75 47
6 &7 Vic., c. 34 48
Imperial Extradition Act, 1870 and 1873 15-17
40 Vic., c. 25 D 16
Surrender, none till fifteen days after commitment 31
Only for offence charged and proved 31
Can only be made by supreme authority 14, 30
Suspicion doubtful whether ground for detaining prisoner 35
Trial here, for offence for which prisoner not extradited 46-7
Warrant of arrest — (see ARREST).
Warrant of commitment, when good 43-5
When not within treaty 43
Should follow statute.... 42
Must show that magistrate deemed evidence sufficient to jus-
tify apprehension ... 44
And that offence committed in States 44
Need not set out evidence A 44
Nor show previous charge or requisition orwarrant of Governor
General 44
Must mention day and limit time for confinement of prisoner. 44
INDEX. 553
EXTRADITION— Continued. PAGB.
What words in, involve "assault with intent to commit mur-
der" 45
Authority of magistrate need not be shown on face of -45
Seconded or amended warrant may be delivered to gaoler by
magistrate 45
Warrant of Governor General no proof that prisoner extra-
dited for forgery 46
FACT—
Mistake in, is defence 70
Determined by jury (see JURY).
FALSE PERSONATION—
Of voter at municipal elections 288
Indictment for 289
Voting in name of another 288
When person dead 288
Personation need not be successful 288
FALSE PRETENCES—
Acquittal when facts show larceny 267
Acts may constitute pretence 266
Bank note, misrepresenting amount of 262
Pretending that piece of paper is 262
Cheque, what representation of.. 261-2
Construing law as to . . '260
Continuing, when pretences must be 265
Must continue till time of obtaining 265
Contract between parties with knowledge of false pretence 262
Court, pretending to be officer of 337
Acting under color of process 338
Delivering process 338
Credit in account 262
Distinction between, and larceny 270
Evidence, of note being of no value 262-3
Of obtaining coat by ... 263
Exaggerated praise 264
Existing fact, must be false pretence of 260 et geq.
False, pretence must be 260
Indictment, when facts show larceny 267
May be convicted of false pretences 267
Showing pretence of existing fact 268
When sufficient 267 et seq.
Laying property 260-70
Uncertain or doubtful 269
554 INDEX.
FALSE PRETENCES— Continued. PAOT.
Obtaining board 269
Must define goods 269
Need not allege ownership 269-70
For obtaining cheque 270
Induced to part with property by false pretence ' 264
Intention to pay immaterial 266
Jury, what questions are for 266-7
Larceny proved on indictment 267
Loan, obtaining of 262
Particulars of 269
Partner obtaining by 267
Pay (see INTENTION).
Pretence must be untrue 260
Prosecutor must be induced to part with property by 264
Of present or past fact 264
Need not be in words 266
Promise to do something in futuro 2tfO
Property in chattel must pass 265
Proximate cause of loss, must be 265
Quality, specific representation of 264
Signature, obtaining of 266
Venue , 268
Verdict " guilty of larceny " 268
FEES—
To public officers 108
FELONY (see CRIMES).
FIERI FACIAS—
Crown may issue 524
FLOUR—
Seller of, in barrels not marked or branded 336
FOOD—
Adulteration of. 345
FORCIBLE ENTRY OR DETAINER—
Complaint may be laid before justice for 193-4
Estate, inquisition must show what 153
Evidence, whether private prosecutor can give 1 53
Indictment lies for 152-3
Inquisition, when bad 153
Must show estate of party expelled 153
Misdemeanor, is a 152
Proceedings which may be taken for forcible entry 1 50
INDEX. 555
FORCIBLE EXTRY OR DETAINER— Continued. PASB.
Prosecutor cannot be examined as a witness • 153
This not the case in Ontario now 153
Restitution, when writ of may be awarded, and by what courts 154-5
Riot, when amounts to 153
Statutes in force as to 152
Title, evidence of not admissible 154
Trespass will not support indictment for 156
Wife may be guilty of 156
Witness, private prosecutor cannot be 153
FOREIGN COUNTRY—
Lawless aggressions by subjects of, at peace with Her Majesty
(nee AGGRESSIONS).
FOREIGN ENLISTMENT OFFENCES—
Act now in force... 81
Object of 85
Alternative part of Act in 84
Construction of 82
Local Act void, so far as repugnant to 82
Intent material 85
Warrant of commitment, requisites of 82-3
Under 28 Vic. , c. 2, when bad 84
Must not be for too little penalty 84
Must specify amount of costs 84
When sufficiently shows jurisdiction 84-5
Direction to gaoler 85
Double offence 85
What is offence against Act 85-6
When ship employed in military or naval service 85-6
Releasing on bail 86
FORGERY—
Actual defrauding not necessary 279
Agreement for sale of timber 280
Altering of note 277-8
Assessment roll 284-5
Coining not forgery 278
Date, executing deed with false 276
Deed, executing in name of another 276
Definition 275
Document, forgery must be of 279
Engraving of notes 281
Evidence of party, purporting to have signed document 285-6
False date, executing deed with 276
False pretences, goods obtained by, through forged order 286-7
556 INDEX.
FORGERY— Continued. PAOB.
Fictitious name 276
Illegal instrument 279
Indictment need not allege intent to defraud particular person 278-86
Must allege that note was forged 285
And that defendant uttered it as true 285
Describing instrument in 286
For forging receipt 287
Surplusage in 287
Indorsement per procuration 282
Instrument illegal . . 279
Unstamped 279
Void 279
Intent to defraud, must be evidence of...... 277-9
Need not allege intent to defraud particular person 278
Letter of recommendation 279
Misdemeanor only at common law 285
Note, forgery of 277-8
Indictment for 285
Order for delivery of wheat... 276
For payment of money 277-84
Pay, intention to 287
Receipt for payment of money 281
Recommendation, letter of 279
Request for payment of money 281-4
Semblance of genuine instrument . 275
Sessions cannot try 286
Telegraph message 278
Undertaking for payment of money — 282
Unstamped paper 279
Uttering, what is felonious 276-8
Validity of instrument immaterial . . 279
No offence, if wholly void 279
Void instrument 279
Witness, who may be 285-6
Writing, forgery must be of 279
FRONTIER—
Act for repressing outrages on 323
When court can order restoration of property seized 323-4-5
GAMBLING 344
GAME— Killing and taking, on Lord's Day 337
GAMING HOUSES, suppression of 344
GAOL DELIVERY .. ..489
INDEX. 557
GOVERNOR— PAGI.
Of colony, power to suppress rebellion ................................ ..-152
Indictment against, for offences within 11 & 12 Wm. in., c. 12,
where preferred ........................................................ 342
JURY-
Depositions admissible before ............................................ 368
Act for preventing vexatious proceedings before .................... 486
Conditions of, need not be proved ...... .......................... 486
When provisions of complied with ................................ 486
Evidence before, how received and given ......... .. ................ 487
Accused has no right to give .................................. 487
Twelve jurors must assent to finding ................................. 487
Principles on which they decide ................................. 487-8
Quashing proceedings of .......................................... 486
Panel objections to .................................................. 486-7
HABEAS CORPUS—
Duty of judge on ............................................................ 448
Power of judge in chambers ................................................. 449
In practice court during term ................................................ 450
In vacation ....................................... ............................... 450
Does not lie, when proper remedy by writ of error .................... 451
Or in case of custody under civil process ............................ 451
Prisoner convicted of larceny ............................................... 451
Prisoner for debt in close custody in another county ................ 453
To keeper of prison to bring up convict as witness ..................... 453
Must be request in writing, etc ............ ............................. 453
Affidavit on which obtained, entitling, etc ............................. 453
Return to, contradicting, etc ...................... ......................... 449
Showing commitment bad on face, or charging no offence ......... 453
When prisoner in custody less than a year, on charge of offence in
Ireland .................................................................... 454
General principles on which jurisdiction of justices reviewed on. 454-5
HIDES— Inspection of raw ..................................................... 345
HIGH WAYS -
Abolished, cannot be by placing gate across ........................... 171
Adjoining land may be travelled over, when out of repair .......... 173
Allowances, original, continue to be public highways ............... 163
By-law, district council could not lay out road except by .......... 164
Changing by writ of ad quod damnum ................................... 172
Commissioners should remove fence on road ........... ............... 170
Conviction must show that place public highway .................... 170
County road to be repaired by county ................................ 171-2
558 INDEX.
HIGHWAYS— Continued PAOK.
Crown, guarantees of must repair 173
Cannot grant to private individual so as to bar public right. . 162
Guide sac 167
Dedication —
User for thirty days, evidence of 164
What is dedication 160
Must be intention to dedicate 160-66-7
Evidence of 160-67
Stronger evidence of, required in new than in old district 165
Presumed from long user and statute labor 167
Limited or partial 165
Right of passage only, parted with on 1 65
Reservation inconsistent with void 166
Mixed question of law and fact 167
En ineer, government, need not condemn road by certificate 173
Evidence of state of road before trial 175
Same as in civil action 183
Fire on side of road, not nuisance 169
Freeholders disinterested 182
Gas company, members of, liable to be convicted of nuisance in
obstructing a highway 175
Gate on road does not abolish highway 171
Government survey against right of party in possession. . 163-4
Indictment for nuisance may be against three or four of several
defendants 182
Evidence, variance, etc 183
Judgment on out of term 184
Preferring new indictment 184
Joint stock companies, roads of, not highways 162
Judgment, whether can give on indictment out of term 184
Minutes of boundary line commissioners are not 183
Jury must determine dedication 167
And whether road highway 167
Lake Ontario, no highway along beach 163
Mandamus, when proper to compel repair of 158
Minutes of boundary line commissionera not judgment 183
Municipal corporation, powe'r to open new roads 172
Must keep same in repair 174
Corporation of county has jurisdiction over road between
townships 172-6
Bridge between two counties 176
New trial, after verdict of acquittal 184
Non-repair, of indictable 172
Nuisances, to, of two classes 168
Ontario, how highways have accrued in 160
INDEX. 559
HIGHWAYS— Continued. PRICB.
Opening by municipal corporations :.. 17-
Petition, under 12 Vic., c. 35, to adjust surveys 176
Railway company, when bound to repair bridge 176
Return of laying out, not necessary 182
Road companies liable for non-repair of highways 173
Sea shore, whether highway on 163
Shutting up lane, street, public road by gate 171
Shutting up by by-law, 171
Under (X.B.) 1 Rev. Stat., c. 66 172
Statutes 5 & 6 Wm. IV., c. 50 : 27 & 28 Vic., c. 100; 5 Wm. IV.,
c. 2 182
Statute labor on roads makes highway 167
But must be usually done 161-8
Surveyor, road laid out by 162
Thoroughfare, public highway need not be .. 166-7
Rule, when claimed by dedication 167
Toll companies, when liable to keep roads in repair 174
User for thirty years evidence of dedication 164
User for seventy years, when land in lease 164
User and dedication establish highway 165
But stronger evidence in newly settled district 1 65
Dedication maybe presumed from 163
Variance on indictment 183
Velocipede may be obstruction 169
Via frltu floes not compose whole road 176
Waggon standing in highway is nuisance 169
What is highway 160
Width of road preserved 176
HOMICIDE — (see JUSTIFIABLE HOMICIDE AND EXCTSABLE HOMICIDE).
HOUSEBREAKING— {#?<• BURGLARY) 229-30
IGNORANCE—
Of law no defence 70
But may be ground for application to Government 70
Of fact, is defence 70
IMPERIAL STATUTES— (see ENGLISH LAWS IN FORCE).
IMPRISONMENT—
Different purposes for which imposed 431
Reimprisonment 432
Period must be certain 432
Day of discharge 432
Where conviction for several offences 432
560 INDEX.
INDIAN LANDS— PAOK.
Acts relating to sale of 333
Trespassing in 333
INDICTABLE OFFENCES— (see CRIMES IN GENERAL) 49
Duties of justices on charges of 414-5
Discharge by one does not prevent another from acting 415
Justice must proceed as directed by the statute 414
Indictment may be preferred, though justice refuse to proceed.... 415
Warrant of arrest 413-4
Trial by magistrate by consent 405
INDICTMENT— (see PLEADING, and the different titles through the
book).
Copy of, when granted 508
INFANTS—
Criminal liability of (see PERSONS CAPABLE OF COMMITTING CRIMES,
ABANDONING) 64
INFORMATION— (see CRIMINAL INFORMATION).
INFORMATION OR COMPLAINT— (see Chapter on PRACTICE).
Amending under 412 et seq*
INSANE PERSONS—
Criminal liability of (see PERSONS CAPABLE OF COMMITTING CRIMES). 66
INTENDING TO COMMIT FELONY— (see CRIMES IN GENERAL) 62
INTOXICATING LIQUORS, SALE OF— (see LIQUOR*).
JOINT PARTICIPATION—
In unlawful act renders all liable 72, 73, 312
When act committed in prosecution of unlawful purpose 73
JUDGE—
Decides law 499
Misconduct by (see OFFICE, OFFENCES BY PERSONS IN).
JUDGMENT—
Staying the entry of, arresting, etc 505
JURORS-
HOW summoned 489
Qualilications and exemptions 489
Aliens 490
Panel, objections to 490 et seq.
Challenge, peremptory 490 et seq.
For cause 493 et seq.
To array 494-5
INDEX. 561
JURORS— Continued. PAOI.
Stand aside, directing jurors to 490 et seq.
De mediatate linguae ;.... 490 et $eq.
JURY—
On charge of uttering forged paper... 499
On appeals from summary convictions, can only decide on facts ... 499
Cannot try whether prisoner extradited from States for forgery. . . . 499
Must follow direction of court in point of law 500
After retiring may return and re-examine witnesses 500
Misconduct of, when vitiates verdict 500
Separation of 501
Refreshments to. 501
Discharging, when proper 501-2
When it does not operate as an acquittal 502
Death or illness sufficient 502
To obtain evidence 502
Carrying from town to town in a cart 503
Right to find general verdict 504
May correct verdict 504
JUSTICES OF THE PEACE—
Appointment of 403
Oath of qualification 403
Jurisdiction in city and county 404-6
Circumstances affecting 404
Under commission of peace 404
Maxim omnia praaumuntur rite e&se acta 404-7
Must have jurisdiction over individual 404
Information should be laid 404
Ousting by claim of right 410
By question as to title to land 410
Power to convict summarily 405 etseq.
Rendering judgment 406
Acting for division or county 404
Where statute empowers two, conviction by one 406
Duties of, in relation to indictable offences 407 et seq.
Powers of, to commit for contempt 438
Doubtful whether justice acting in his own house can commit . . . 439
Commitment, requisites of 424 et seq.
Warrant to constable 413
Justice exclusive judge of contempt 439
Exceptions to jurisdiction, justice should decide 405
Criminal informations against 477 et seq.
JJ
562 INDEX.
JUSTIFIABLE HOMICIDE— PAOB.
Of three kinds 207-8
KIDNAPPING 224
LARCENY—
Act of stealing, must formerly have been separate indictment
for each 247
Three may now be inserted in one indictment 247-8
Agreement unstamped 233
Attempting to commit 60
A nimus furandi necessary 235
Bailee, porter is 243
Whether animus furandi, at the time of obtaining, is neces-
sary 243
Hirer of horses from livery 244
Lessee of pawn 244
Married woman 245
Distinction between bailee and servant «. 246
Bailment, what is 243-4
Must be to redeliver same chattel or money 244
Delivery of goods for sale 244
Bond, when subject of larceny 233
Carrying away necessary 235
But least removing sufficient 235
Certificates, subject of 234
Choses in action not subject of 233
Consent, goods taken by 235-6
Continuous taking when thing not subject of (see TAKING). 234-5
Definition 232
Distinction between false pretences and 270-1
Felonious intent, goods must be taken with 235
Fraudulent obtaining of goods by which property does not pass... 238
Possession parted with through fraud 238-9
Property so parted with... 239
Property obtained by sale 241
Fruit, stealing growing 247
Goods subject of larceny must be personal 233
And subject of property 234
Dogs, stealing of 234
Animals ferae naturae 234
Grand larceny abolished 235
Husband, stealing goods of, with wife's privity 245
Indictment lies for three takings within six months 247-8
For stealing many things, evidence of one sufficient 250
Must specify valuable security 233
What is surplusage in 248
INDEX, 563
LAKCEXy— Continued. PA«B.
Laying property in notes 249
In master or servant 249
In father or son 249-50
When gift of personal property inter vivos 249-50
When there is administratrix 250
Where goods are property of partners or joint owners 250
Or tenants in common, or parishioners of church 251
Or when larceny is committed by lodger 252
Injury done to two or three trees may be added together 247
Joint owners laying property in (see Is DICTMENT) 250
Lodger, or theft by, property in goods laid in owner 252
Lost property, larceny of 236
General rule as to... 236
Belief at time of finding that owner can be ascertained 236
Belief that goods abandoned 237
Property mislaid 237
Means of ascertaining owner 237
Felonious intent must be at time of finding 238
What is lost property 236-7
Married woman may be bailee 245
Cannot steal goods of husband 245
Menace, stealing by 232
Money, person may be bailee of 245
Proof on indictment for stealing 249
Notes .. 233
Obtaining possession lawfully... 238
Obtaining fraudulently is 238-9
Partners, larceny by, laying property of, in indictment (see INDICT-
MENT) 250
Pawn, selling of, not larceny ... 244
Petty larceny abolished 235
Police Court, stealing or destroying information in 233
Possession obtained by trick 239-242
When lawful, no larceny 238
Potatoes, when subject of 235
Proof on indictment for stealing money 249
Property, larceny cannot be committed of things not the subject
of 234
If property passes, there can be no larceny 238
If owner intends it to pass, it will pass, and no larceny be
committed 238-9
Servant may pass 239
Or cashier of bank 240
But now larceny by statute 240
564 INDEX.
LARCENY— Continued. ,-AOH.
When property does pass 240-41-2
When obtained by false sale 240-41-2
When in bailee 243
Laying in indictment (see INDICTMENT).
Record, stealing or destroying 233
Restitution 248
Returning goods may negative animo furandi 236
But no evidence that prisoner intended to 236
Robbery, larceny included in 231-2
Sale, false, by fraud 241
Security, larceny of 233
Servant may pass property 239
May be guilty of larceny (see BAILEE) 246
Several takings may now be laid in indictment (see CONTINUOUS,
ETC., TAKINGS, ETC.) 247-8
Shareholder in company, larceny by 247
Subjects of 233-4
Surplusage, what is 248
Taking must not be continuous act with severance, when thing
not subject of larceny 234-5
Should be interval 235
What is continuous taking 235-248
Trespass, larceny includes 238
Trick, possession obtained by 239-242
Venue, when goods stolen on journey 251-2
Wife (see HUSBAND).
Will, must be taken against 235
LAW—
Foreign, not binding 506
Mistake in, no defence 70
But may be ground for application to Government 7(
LAWLESS—
Aggressions by subjects of foreign country at peace with Her
Majesty (see AGGRESSIONS).
LIBEL—
Action, when lies for against Corporation 131
Between corporations 131
Affidavit in judicial proceeding is privileged 136
Bill of rights, principle of, applies to petition to Lieutenant
Governor 137
Malice destroys privilege in petition 137
Intended to protect petitioners applying to Crown 138
INDEX. 565
LIBEL— Continued. PAO«.
Applies to public rights only 138
Bona fides necessary when matter otherwise libellous 141
Commons, House of, staying proceedings for publishing votes of. 139
Comparison of disputed writing 146-7
Libel may be proved by 146-7
Courts, reports of proceedings may be published 133
Grounds of privilege. ••• 134
Ex parte proceedings of ... 134
Dignity of court cannot be regarded 134
Privilege protects publication of proceedings of open police
court on charge of indictable offence 135
Corporation, action for libel lies against and between 131
May also be indicted 131
Criminal information, on application for court in position of grand
jury ] 148
Must have same evidence as grand jury 148
Libel itself must be filed 148
Legal, evidence of publication 148
Granted only where person libelled occupies a public posi-
tion 148
Time within which application must be made 148
Debate in parliament, publication of privileged 139
But must be fair report of 139
Defence, to show that publication without defendant's authority. 139
What sufficient defences to render conviction illegal 149
Ex parte proceedings of courts, publication of, privileged .. 134
House of Commons, staying proceedings for publishing votes of... 139
Indictable offence, proceedings on charge of, may be published... 135
Indictment, lies for libel whenever action lies 131
May be maintained against all concerned in joint publication
of libel 131
Inuendo in 149
Individual, libel upon, what is 131
Information (gee CRIMINAL INFORMATION).
Ingratitude, to charge man with, is libellous 133
Inuendo, use of 149
For court to say whether capable of bearing meaning as-
signed to it (see INDICTMENT) 149
Joint publication of libel, all liable for 131
Judicial proceedings, fairreport of, protected 133
Judge to determine privilege 144
Should ask jury whether matter published bonafide 144
Judges, acts, words, or writing of, in judicial capacity, privileged. 136
Jury, what questions are for 144
066 INDEX.
LIBEL — Continued. PAOB
Jurymen, acts, words, and writing of, in judicial capacity, privi-
leged 136
Magistrates, reports of proceedings before, privileged, but must
act within jurisdiction 135
Malice, proof of express 142
When libel privileged, proof of express malice must be
given 142-3
Meaning of, in legal sense 143
To prove express malice may show that libel untrue 143
Libellous expressions in a privileged communication may be
evidence of actual malice 143
Judge to determine whether inference of malice repelled 144
When jury decide 144
Members of parliament not liable for statements in parliament
(see PARLIAMENT) 139
Memorial to Secretary of State privileged .... 136
Military officer, report by, in ordinary course of duty, privileged. 136
Minister of religion, utterances by, in pulpit 141
Obscene writings, publication of, indictable 1 33
Test of obscene publication 133
No defence that object laudable 133
Open police court, proceedings of, on charge of indictable offence,
may be published 135
Magistrate's court, proceedings of, may be published 135
But not, if inquiry carried on in private 135
Parliament, members of, not liable for statements in 139
Publication of debates in, privileged 139
Publication of speech in, with intent to injure, is unlawful. .. 140
Report of proceedings in, may be published 140
Personal libel, what is 131-9
Petition to Lieutenant Governor, when privileged (see BILL OF
RIGHTS) 137
Plea, to information for 149
Police court, when proceedings of, may be published 135
Presumption that party intends what libel is calculated to effect.. 133
Privileged communication, what is 141 et seq.
Eeport in writing by military officer 136
Statement bonafide, where party interested 141
Memorial to Secretary of State 136
Communications to executive government 137
Petition to governor ; 137
Petition to Queen.. 138
Resolution of incorporated association 142
When privileged, must be proof of express malice 142
Presumption of privilege in some cases conclusive 145
INDEX. 567
LIBEL — Continued. fA(a
As to proceedings in parliament and in courts of justice 139
Defence, when not absolutely privileged 145
Instances of privileged communications 145-6
Comments on acts of public men 136
Proceedings in courts of justice, publication of, priTileged (see
COURTS, JUDICIAL PROCEEDINGS) 131
Publication (tee JOINT ACTION, INDICTMENT, OBSCENE).
Public men, comments on acts of, privileged 136
Religion, utterances by ministers of, from pulpit 141
Reports of parliamentary proceedings, debates, etc., may be pub-
lished (see DEBATES, PARLIAMENT) 140
Secretary of State, memorial to, privileged 136
Senate, staying proceedings for publishing votes of 139
Sessions cannot try 473
Speech in parliament, when may be published 140
Trial, proper course at, in case of privileged communication 144
Truth of libel important in determining malice 143
Question is whether defendant honestly believed it true 144
When material for plaintiff to prove that statements are not
true 143-4
Witnesses, acts, words and writings of, may be published 136
Writing, comparison of disputed, with that proved genuine 146-7
LIQUOR—
Selling without license 97
Canada Temperance Act :
Proof that Act is in force, necessity of 103
Of ezpiry of license 103
Certiorari under, taken away 103
Except in questions of jurisdiction 103
Costs under 103
Certiorari :
Return under conclnsiveness of 106
Taken away under Canada Temperance Act in certain cas«s .. 103
Conviction for, sufficient, if it follow statutory forms 97
If not, what it must contain 97,99,100-4
Certainty in 98, 100
Statement of offence 99
How far it must conform to information 98
Several offences in 98-99
Against two jointly 99
Against partner 99
Contra forma gtatuti 99
Costs under 99
Of commitment.... 100
568 INDEX.
LIBEL — Continued. PAOB.
Of druggist 102
Amendment of 102
First or subsequent offence 102-5
Appeal against 106-7
Druggist, conviction of 102
Fines 98, 100-1-4-5
Gambling 104
Information for... 103
Legislature, local, competency of, in these matters 101-2-3
As to delegating power v 102
License generally 100-1
What premises it covers 100
Brewer, what required by.. 101
Expiry of Canada Temperance Act 103
Married woman, conviction of 102
Occupant 103
Offence, what amounts to 104-5
First or subsequent 102-5
Penalties for (see FINES) 100-1-2
Quebec License Act, constitutionality of.. 103
Decisions under 104
Servant, may be convicted 102
Witness, purchaser competent as '. 102
Informer competent 106
Defendant not 106
LOCAL—
Crimes are considered f 53
LOCAL LEGISLATURES— (see ENGLISH LAWS IN FORCE).
LORD'S DAY, PROFANATION OF—
R. S. 0., c. 189 336
Conviction should negative exceptions 336
Travellers, who are . 336
Note or mortgage on Sunday 336
Sales or agreements for 337
Killing or taking game 337
Farmer, not within Act 337
Druggists not within 336
Amusements Act, as to enforce 337
LOTTERIES—
Are public nuisances 157-8
Act as to in force... 7
INDEX. 569
MAGISTRATES — (see JUSTICES OF THE PEACE). PAGM.
MAINTAIN OBLIGATION TO— (see VAGRANTS).
MAINTENANCE— (see CHAMPERTY).
MALICIOUS INJURIES—
Act must be wilfully and maliciously done 289
But malice against owner, not necessary 289
Damage need not be of permanent kind 289
Instrument need not be used 290
Machine or engine 289-90
Malice, what amounts to 289
Summary remedy 290
Wound, meaning of 290
Claim of right, summary jurisdiction ousted 290
MANITOBA (see ENGLISH LAWS IN FORCE).
MANSLAUGHTER—
Accessories in 75, 201
Must be active proceeding to constitute 201
Apprehension without warrant by constable 203
By private person 205
Arrest without warrant 203-4
Not on mere suspicion 203-5
Must show felony actually committed 205
By magistrate for misdemeanor committed in his view 204
Must be breach of peace 204
When illegal 204-5
By constable for breach of peace 204
By policeman 204
By constable, without warrant on reasonable charge 205
In civil proceeding 205
Offender must be taken before justice 205
By private person 205
By clerk in service of railway company , ... 205-6
Must show felony actually committed 205
By person who is assaulted 206
Assaulting wife does not justify 206
When illegal 207
Assault, when it justifies arrest (see ARREST) . 206-7
Authority, officer arresting must have 203-5
Breach of duty 201
Civil proceeding, arrest by constable in 205
570 INDEX.
MANSLAUGHTER— Continued. PA8B.
Constable may arrest for breach of peace 204
For suspicion of felony 205
Definition of 199
Director of railway for omission 201
Felony, arrest for suspicion of 205
When actually committed (see ARREST) 205
Involuntary manslaughter 200
Knowledge of character in which officer acts 203-7
Malice, none in 200
Medical aid 202
Neglect to provide food 201-2
Distinction in these cases between children and servants 202
Negligence, culpable, may amount to 200
Officer of justice, killing of 203
Peace, arrest for breach of 204
Private person, arrest by (see ARREST) 205
Removal of person unlawfully in house 207
Suspicion of felony, arrest for 205
Voluntary manslaughter 200
MARRIAGE—
English law as to, introduced (see BIGAMY) 9
MASTER AND SERVANT—
Act Con. Stat. U. C., c. 75, as to, repealed 329
Substituted enactment 329
MEDICAL PRACTITIONER—
Registration of, what amounts to representation of 344
MENACES—
Demanding with 341
' ' Reasonable cause " applies to thing demanded 341
What amount to 341-2
Truth of threatened accusation, no defence 342
MERGER—
Of lesser offence in greater 55
Of false pretences in larceny 267
When object of conspiracy felonious 315
MILITIA—
Officer of, competency of, to sit on court martial 344
Discharge of members of 344
MINORS— (see APPRENTICES).
INDEX. 571
/
MISDEMEANOR— PAGB.
What is (see CRIMES IN* GENERAL) 56
MISPRISION OF FELONY 56
MIS-TRIAL—
Venire de novo for 516
Vitiates and annuls verdict. 516
MOLESTATION OR OBSTRUCTION—
By master or workman (see STRIKES, TRADES' UNION ACT) 116-7
MONOPOLY—
For exempting new manufactures 115
Rules in restraint of trade 115
Strikes not necessarily illegal 115
Trades' union Act, 1872, provisions of 116
MOTIVES, WHEN IMPORTANT 62-3
MURDER—
Administering poison 197
Agent, must be a free 193
Attempting another act 195
Corporal injury 194
Death from threats of violence 194
Definition... 192
Degrees, persons may be liable in different 193
Disease by which death accelerated 195
Evidence as to cause of death 198
Indictment need not set forth manner of death 198
Must state act done feloniously, and of malice aforethought... 199
For wounding, with intent to murder 199
Infant in womb, when subject of 193
Jury, what questions are for 196
Killing, diffeient means of 194
Malice, necessary ingredient in 192
Express and implied 192
Medical evidence of cause of death 198
Presumption that all homicide is malicious 193
Provocation reduces offence to manslaughter 195-6
Punishment of 199
Queen's peace, must be under 193
Sudden quarrel, when killing in, amounts to 197
Wounding, with intent to murder 199
Year, must die within 194
572 INDEX.
NEW BRUNSWICK— (see ENGLISH LAWS IN FORCE). PAOB.
NEW TRIAL—
Abolished in criminal cases 521
NOTES OF EVIDENCE—
Reading to witnesses those taken at former trial 380
Judge may have them taken by third person 509
NOVA SCOTIA— (see ENGLISH LAWS IN FORCE).
NOXIOUS THING— (tee ABORTION).
NUISANCES—
Abatement of 159
Compelling through sheriff 159
Action lies for, to navigable waters 156
Fresh actions for continuing nuisance 159
Where action lies indictment lies 159
Civil right, course when indictment for trial of 182
Convenience no defence 158
Court, questions for 178
Disorderly houses.. 157
Evidence on indictment for 183
Examples of 156 et seq.
Exposing person 157
Highway, non-repair of, is J(see HIGHWAYS) 158
Ill-fame, conviction for keeping house of 157
Indecent exhibitions 157
Indictment lies for public 158
Lies when action lies for 159
Is proper remedy for . 158
Course, when proceeding by, is substantially for trial of civil
right 182
Lewdness, open and scandalous, indictable 157
Lotteries are public nuisances 157-8
Act as to, in force 7
Magistrate, jurisdiction of 159
Mandamus (see HIGHWAY).
Navigable rivers, obstruction of 156
New trial after verdict of acquittal 184
Private and public 156
Remedy (see INDICTMENT).
Summary conviction by justice illegal 159
Time of erecting nuisance immaterial 158
No length of legitimates nuisance 160
User will not legitimate 160
INDEX. 573
OBSTRUCTING ENGINE OR CARRIAGE— PAGI.
Act 32 & 33 Vic., c. 22, s. 40, as to 332
What is offence within 332-3
Not limited to physical obstructions 333
OBSTRUCTING THE EXECUTION OF PUBLIC JUSTICE—
Aid, indictment for refusing to 185
Is a misdemeanor 185
Constable, refusing to aid 185
Disobeying order of justices 187
Order of Queen in Council 187
Excise, indictment for obstructing officer of 186
Indictment for refusing to aid constable 185
For obstructing officer of excise 186
What is necessary to support 185
Knowledge of character in which officer acts not necessary 185
Officer must act under proper authority 186
Order, disobeying, indictable 186-7
OFFENCES— (see OFFICE, ETC.)
OFFICE, OFFENCES BY PERSONS IX-
Attachment granted against commissioners for trying cause in
which interested 113
Bailiff, conviction of ..f 110
When quashed 110
Clerk of Crown agreeing to resign office for reward, illegal 112
Clerk of peace cannot charge any fees not given by law 109
Not entitled to any fees for striking special jury 109
Table of fees contains all charges 109
Criminal information will lie against officer for misconduct 108
When granted against judge 113
Deputy returning officer indictable for refusing to administer oath. 108
Extortion, what is 108
Indictment for 108
Is misdemeanor 108
Two or more may be guilty of 108
Fees in different cases 109-10
Indemnity, would be illegal for judge to take 109
Indictment, when lies, when good 108
Lies at common law for sale of office 110
Judge taking indemnity 109
Misconduct by 113
Cannot act in his own case 113
Exception 113
574 INDEX.
OFFICE, OFFENCES BY PERSONS IN— Continued. PAOB.
Must be direct pecuniary interest 114
If really biassed, wrong to act 115
If remotely connected with one of parties, no objection 115
Justice, when can act, if himself assaulted 115
Neglect to execute duties indictable 108
Registrar and deputy may be jointly guilty of misdemeanor 108
Removal of officers 112
Sessions competent to try charge against clerk of peace 112
Sheriff, sale of office illegal 110
Statutes as to Ill
OFFICERS OF JUSTICE—
Killing of (see MANSLAUGHTER).
ONTARIO — (see ENGLISH LAWS IN FORCE).
OVERSEER OF POOR OF PARISH—
Liable to indictment for not accounting 343
OYER AND TERMINER—
Whether commissions now necessary for holding court of 498-9
PARDON—
Application to Crown for 521
Effect of , on appeal to Privy Council 524
PARLIAMENT—
Publication of debates in (see LIBEL).
PARLIAMENTARY OFFENCES—
Members of Parliament not liable for statements in House 189
Attachment against 189
Penalty for voting without property qualification 189
Privilege from arrest 190
Does not apply to criminal cases 190
Evidence of being member 190
Warrant of commitment 190
Prorogation, discharge of prisoner by 190-91
Courts, power of, to inquire into commitments by parliament ... 191
Habeas corpus 191
Conspiracy to intimidate provincial legislature 191
PARTNER—
Agreement to defraud copartner 310
Conviction for selling liquor without license will lie against 99
Laying property of. in indictment for larceny 250
INDEX. 575
PAWNBROKERS' ACT— PAS*
An enabling Act -.. 334
May take any rate of interest agreed upon 334
Only applies to persons " exercising trade of pawnbroker" 334
PEACE—
Final commitment for want of sureties to keep 429
Must be in writing 439
And show date on which words spoken 429
Articles of peace exhibited in open court 429-30
PENAL ACTIONS—
County courts cannot try 472
PERJURY—
Accomplices, none in 304
Affidavits, before whom sworn 301
Taking without authority 303
Need not be read or used .. 303-4
Which court would not receive 304
Evidence of place of swearing 304
Ambiguous, oath must not be 303
Amending indictment 307
Assignment of perjury, proof of 301-8
Must be two witnesses 308
Authority (see JURISDICTION).
Belief of fact 302
Church of England (see PRATER BOOK).
Common law offence, when affidavit not sworn in judicia pro-
ceeding 259
Definition 298
Deliberate, false swearing must be 303
Evidence, on assignment of perjury 301-8
As to place of swearing affidavit 304
Must be two witnesses, or proof of material facts 308
Of existence of proceedings 298
False, matter sworn must be 298-302 et seq.
Indictment, showing authority to administer oath 299
When sufficient 304 et seq.
Certainty in 304-5
Substance of offence charged 306
Quashing, amending, etc 306
Insurance cases, perjury in 308
Insurance company, affidavit as to loss by fire 300-301
Judicial proceeding, swearing must be in 298 et seq.
576 INDEX.
PERJURY— Continued. PAOB.
Jurat stating place of swearing.. 302-4
Need not state such place 302-4
No part of affidavit 302-4
Jurisdiction, oath must be taken before a person having juris-
diction on 298
Must be competent in matter in which oath administered 299
When there is 298 et seq.
Of court, must be submitted to 304
Justice, where may take affidavit 301
Magistrate taking affidavit without authority 303
Jurisdiction of, over person committing perjury in another
county 307
Materiality of matter sworn 302
All evidence now material 302
Misdemeanor, perjury is 298
Affidavit not taken in judicial proceeding is 299
Oath must be taken deliberately and intentionally 303
Must be clear and unambiguous 303
Place, jurat stating 302
Pleading, must first submit to jurisdiction 304
Prayer book of Church of England, oath taken on 303
Quashing indictment 306-7
Sessions cannot try 473-
Surplusage in indictment 307
Variance in charge of 306-7
Venue 307
Voter, false swearing by 298
When two required - 308
PERSONATION— (see FALSE PERSONATION).
PERSON— Stealing from the 252-3
PERSONS CAPABLE OF COMMITTING CRIMES—
Drunkenness, how it affects criminal liability 67-8
Feme covert not liable for certain crime committed in her husband's
presence 68
But this only presumption and may be rebutted 69
Protection does not extend to crimes mala in se, as treason,
murder, etc 69
Nor semble to misdemeanors 69
Ignorance, how it affects criminal liability 70
Infants, general rule as to criminal liability of 64
Statute creating new felony does not bind 66
Or giving corporal punishment 66-
Under seven, not liable 65
INDEX. 577
PERSONS CAPABLE OF COMMITTING CRIMES— Continued. fAei.
Rule between seven and fourteen 65
Under fourteen cannot commit rape 65
But may be principal in second degree 65
Cannot be prosecuted for defrauding creditors 66
Non compotes mentis, rule as to criminal liability of persons .... 66-7-8
Deaf mute cannot be convicted 68
Must be treated as non-sane 68
PERSONS SUBJECT TO THE POWER OF OATHS—
Rule as to criminal liability of 68-70
Wife, when accessory 69
PERSONS IN OFFICE, OFFENCES BY (see OFFENCES, ETC.).. 108-9-10
PETTY TRESPASSES—
Where there is bona fidn claim to the land 410
PIRACY—
Acts in force as to 89
Admiralty jurisdiction 89-90
British court, no power to punish foreigner for offence against
British subject on foreign ship 91
Commissions, not necessary 89
Inland lakes of Canada within admiralty jurisdiction 92
Jurisdiction, over ships in rivers of foreign territory 90
Over British ship, though no proof of register, or ownership of
vessel 90
Over vessel in harbor 91
Where sea flows between two points of land 91
Magistrates may take cognizance of all offences committed on
lakes of Canada ^. . 91
PLEADING—
Acquittal on good indictment is bar to subsequent, for same of-
fence 387
Act of Parliament, indictment on 382
Limitation or exception in distinct clause of, need not be
stated 396
Against form of statute, indictment concluding 337
Amendment of indictment, not at common law 392
Defect in laying property 390
Case must be decided on indictment in amended form 393
Must be made before verdict 393
Arrest of judgment when indictment charges no offence against
law'-- 401
KK
578 INDEX.
PLEADING— Continued. PA(}£
Assault, conviction of, no bar to indictment for manslaughter 389
Autrefois acquit, test of validity of plea 337
Must be in legal peril on first indictment 387
Trial must proceed to its legitimate conclusion by verdict.. . 388
Meaning of legal jeopardy 388
Only pleas known to law 388
When good 389
Only apply when decision on same accusation in substance. . . . 389
First indictment insufficiently laying property 389
Proof of pleas 389
Caption of indictment, objection to 399
Certainty essential to charge 382
Charge of offence, what sufficient 382
Conjunctive statement, when proper 384
Contra formam statuti, effect of omission of 387
Conviction, previous, may be good plea in bar (see PREVIOUS CON-
VICTION) 387
Counts joining 394
Demurrer 390-401
Pleading not guilty, when overruled.. 390
Description of offence in words of statute 382-3
Matter of, must be proved as laid • 391
Duplicity 395
Election, when prosecutor put to 395
Enacting clause of statute, exception or proviso in, must be ex-
pressly negatived 396
Need not, if in subsequent clause 506
Exceptions negativing 396
Formal defects in indictment, when objected to 401
Forms of indictments intended as guides only... 401
Use of discretionary 401
Homicide, indictment for, need not set forth manner of death.. .. 396
Indictment, when should follow words of statute 382-3
On statute creating new offence .' 382-3
Conjunctive statement in 384
Christian and surname must be stated 384
Obscene words must be set out 384
Surplusage in 386
Forms of 401
Caption, quashing 399
Laying previous conviction 400
Quashing is discretionary with court 400
When and for what objections the court will quash 400-401
Jeopardy, meaning of term 388
INDEX. 579
PLEADING— Continued. FAQM.
Jurisdiction must be submitted to before pleading 402
last of persons entitled to vote 890-91
Material allegations only require proof 386
Means of committing offence, when to be set out 397
Mis joinder of counts 394-5
Motion, quashing indictment on 400
Names must be stated in indictment 384
Objection to indictment, when taken 401
Offence created by statute 382
Indictment should bring it within statute 382-3
One plea only can be pleaded 402
Order of pleading 402
Plea, of autrffois acquit 387
If overruled may plead not guilty 390
Describing statute passed in two years 390
Only one can be pleaded 402
Postponement of trial on amendment of indictment 393
Previous conviction, indictment for 395
Proof need not in all cases tally with statements in indictment. . . . 391
Quashing indictment for duplicity 395
For variance between information and indictment 400
How and when quashed 400
Statute, indictment on 382-3
Creating new offence 382-3
Surplusage does not vitiate an indictment 386
Time of committing offence need not be averred 396
Trial, postponement of, on amending indictment 393
Variance, quashing indictment for 400
Venue in indictment 397
Order to change 399
In case of offences committed on carriages, etc 398-9
Voters, feloniously omitting names from list of 390-91
POISON—
Administering of 249-50
POLICE COURT—
Stealing records of 233
POLICE MAGISTRATE—
Jurisdiction of 405, 419, 472
Power of single justice to sit for 405
POOL-SELLIXG 345
PRACTICE— (see the different titles throughout the book).
580 INDEX.
PREVIOUS CONVICTION— PAOB.
Statement of, added to count for larceny 509
Indictment laying ) 509
Practice on 509
Certificate of 509
PRINCE EDWARD ISLAND— (see ENGLISH LAWS IN FORCE).
PRINCIPAL—
Liable for what he authorizes 76
Agent also liable (see AGENT) 76
PRINCIPALS—
In first degree, must be present, assisting 70
And participating 70-71-2-3
Principals in second degree 70
Indictment against 74
PRISON BREACH-
IS escape by force 187
Is of same degree as offence for which party confined 189
Must be actual breaking 189
Need not be intentional 189
" Article or thing," in Prison Act, includes crowbar 189
PRIVY COUNCIL—
Appeals to 523
When and under what circumstances leave to appeal to, granted. 524
PRIZE FIGHTING 345
PROCEDURE IN CRIMINAL CASES—
Act as to 325
PROCESS—
Penalty under 22 Geo. II. , c. 45, for string out 343
PROPERTY—
Damaging, conviction for (see MALICIOUS INJURIES).
PROSECUTION—
All liable for act committed in prosecution of unlawful purpose. 72 et seq.
PROSECUTIONS—
By Crown, how they differ from civil suits 511
PROVINCIAL LEGISLATURE—
Conspiracy to intimidate 191
INDEX. 581
PUBLIC EMPLOYMENT— PAO*
Persons holding office in, how prosecuted 342
QUARTER SESSIONS— (see SESSIONS).
QUEBEC, PROVINCE OF— (see ENGLISH LAWS IN FORCE).
RAPE—
Age of consent (see INFANT).
Assault, having connection with woman who believes it is her hus-
band is 210
Attempt to commit, may be convicted of on indictment for 60
Attempt to ravish child from ten to twelve, even if consent 213
Consent, must be absence of 210
Even in case of idiot 213
Obtaining by fraud 210
By wife under supposition that it is her husband 210
Child under ten cannot give 213
But may to render attempt no assault 213-4
Child from ten to twelve, consent is defence on charge of
assaulting 213-4
Contradiction (see Pp-osEcrmux).
Definition 210
Emission of seed need not be proved 214
Evidence, statement of prosecutrix 214
Force, necessary ingredient in 210
Constructive 210
Fraud, consent obtained by 210-1 1
Infant under fourteen cannot commit 64
Idiot, must be evidence that without consent of (see CONSENT) 213
Prosecutrix cannot be contradicted if asked as to connection with
other persons 214
Wife (see HUSBAND).
Will, must be against 210
RECEIVING STOLEN GOODS—
Accessory, mere receipt did not constitute 272
Embezzled goods 272
Evidence of thief, convicting on 275
Felony, principal crime, must be 272
Husband adopting wife's receipt 274
Joint receipt need not be proved 273-4
Knowledge that goods stolen. 274
Misdemeanor at common law 272
Mixture of grains partly stolen, receiving .... 273
Possession must be parted with by thief 274
582 INDEX.
RECEIVING STOLEN GOODS— Continued. PAGm.
Receipt must be of stolen goods 272-3
Separate receipts 273-4
Stolen goods (see RECEIPT).
Wife receiving in presence of husband 274
Witnesses may prove that other articles found in prisoner's posses-
sion (see EVIDENCE).
RECOGNIZANCE—
Enrolment of (see BAIL) 442
RECORD—
What is 365 et seq.
Proof of 375
Court of, has power to fine and imprison for contempts 437
What power of fining and imprisoning necessary to constitute 476
REMAND—
By justices 415
REPEAL OF STATUTE—
When effected 54
REPLY—
Reception of evidence in 378
Right of Crown counsel to 510
RESERVATION OF POINTS OF LAW—
Act as to, only authorizes sessions to reserve case when original
hearing and conviction there 447-8
No other court can interfere till case is heard and finally deter-
mined 475
Court can only decide on points raised 505
Cannot order new trial or prevent verdict from going into effect... 505
What points can be reserved 506
Arrest of judgment 505
RESTITUTION—
Writ of, in case of forcible entry 154
Jurisdiction of Court of Queen's Bench as to 154-5
RETURN TO HABEAS CORPUS—
Disputing truth of 448
REVERSING CONVICTION—
Effectof ... 421
INDEX. 583
RIOT— PA««.
Defined 149
Difference between and unlawful assembly 149
Must relate to private quarrel 150
Three persons or more must be engaged in 150
Must be force and violence 150
And violence must be premeditated 150
Presence among rioters, does not render a person liable 151
Riot Act need not be read 151
Suppressing riot, power of private persons, and governor of colony
to 151
When forcible entry amounts to 153
RIVERS — (see NUISANCES, HIGHWAYS, ETC.)
Benefit of obstruction immaterial 181
Capacity of, material 178
Court must decide what constitutes navigable 178
Freshet, capacity of stream in 179
Jury, under direction of court, must find whether navigable 178
Lake Ontario 178
Navigable, what are 178
Piers, indictment will not lie for erecting 180
Portages, whether stream, navigable 188
Tide, flux and reflux of, not necessary to constitute navigable
water 179,180-81
Rivers above, flow of 179
Usage, immemorial, not necessary 177-8
Weirs, only prohibited in navigable rivers 181
What is navigable water 178-9
Not such as may be obstructed by ploughing and harrowing. 179
Capacity in spring freshets , 179
Must be capable of transporting property 179
ROBBERY—
Aggravated larceny 231
Animus furandi necessary 232
Carrying away, necessary in 232
Definition 231
Duress, obtaining signature by 7 232
Election on indictment 232
Felonious taking necessary 231-2
Fear necessary ingredient 231
Must precede taking .. 231
Force necessary ingredient 231
Goods must be of some value 231
584 INDEX.
ROBBERY— Continued. PAem.
Indictment, election on 232
Several counts in 232
Person, goods must be taken from 231
Presence, goods must be taken in , 231
Sudden taking, when robbery 231
Taking, actual, necessary 232
Value, goods must be of some 231
Will, goods must be taken against 231
ROUT-
HOW distinguished from riot (see RIOT).
SAILORS — (see SEDUCING SOLDIERS, ETC.)
SALE—
Of office (see OFFICE, OFFENCES BY PEBSONS IN).
SEDUCING SOLDIERS OR SAILORS TO DESERT—
Act now in force, how construed 86
Imprisonment under 86
Trial by court of Oyer and Terminer ... 86-7
Summary conviction of offender 87
Indictment, when not sufficiently certain or precise 87
Mutiny Act of '67, to whom it relates 87-8
Warrant of commitment 88
Soldier must first answer to constituted tribunals 88
Volunteer triable by court martial 88
Foreign vessels 88-9
SENTENCE—
Of death, warrant to execute 518
Of prisoner convicted of felony 518
SESSIONS—
Jurisdiction and powers of 472 to 474
Is court of Oyer and Terminer 473
Can alter judgments at same sessions or sittings 474-5
Adjourn, has general power to 473-4
Cannot make any order except during the sessions, regular or ad-
journed 474
Bench warrant, seal to 475
Attorney acting as advocate in 475
When case stated for opinion of superior court, jurisdiction gone 475-6
May fine and imprison for contempt 476
Awarding costs on discharging appeal 446
INDEX. 585
SM UGGLING— (see CUSTOMS OFFENCES). PAGK.
SOLDIERS— (see SEDUCING SOLDIERS, ETC.)
STATUTES—
Aunotatious of misoellaneoas 317 et seq.
Construction of — (see. CONSTRUCTION OF STATUTES) 317 et seq.
Court will judicially notice public 377
What are public 377-S
Various '. 343
STATUTE LABOR— (tee HIGHWAY).
STEALING FROM THE PERSON 252-3
STRIKES—
Act as to 116
Construction of — (see MONOPOLY) 116-7
-SUBORNATION OF PERJURY— (see PERJURY) 298
SUMMARY ADMINISTRATION—
Of criminal justice 325 et sey.
Act 32 & 33 Vic., c. 32, as to 325
Extension of to various provinces 325-6
Commitment under 326
Conviction under 326 et seq.
Impeaching proceedings 327
Decisions as to collected 325 et tey.
SUMMARY CONVICTIONS —(see PRACTICE, JUSTICE-' CONVICTIONS,
ETC.)
SUMMONS—
Proof of service of ..... 481
^UNDAY— (see LORD'S DAY).
SURETIES TO KEEP PEACE—
Final commitment for want of 429
What is 429-30
Should show date 429-30
-SUSPENSION OF CIVIL REMEDY— («« CRIMES).
TELEGRAPHIC DESPATCH—
Divulging contents of 340
Con. Stats. Can., c. 67, s. 16, does not apply between third
parties 341
INDEX.
TEMPERANCE ACT— (see LIQUOR). I-AOE.
TITLES—
Selling pretended 121 et scq.
TOLLS ON ROADS. OF JOINT-STOCK COMPANIES—
R. S. 0., c. 153 330
Place of worship, going to, or returning from 330
Waggon conveying manure 330-1
Conviction under, what it must set out 331-2
No offence to exact tolls fixed by commissioners 331
If once acquitted on appeal, no certiorari 332
TRADES' UNION ACT 116-7
TRIAL—
Objections at ... 379, 507
Should be noted by judge 507-8
Adjournment of, granted for illness of counsel 507
UNLAWFUL ASSEMBLY—
Assemblage of persons to witness prize fight is 151
How distinguished from riot — (see RIOT) 149
UNLAWFUL PURPOSE—
All liable for acts committed in prosecution of 70-71-2-3
VAGRANCY—
Act 32 & 33 Vic., c. 28, as to 339
Extended to various provinces 340
Maintain obligation to 340
Ability 440
Wife when 340
Witness not competent 340
Child 340
Servant 340
Others 340
Conviction should show that person asked to give account of him-
self 339
Evidence should show where person found 339
And that person is common prostitute , 339
VARIANCE—
On indictment for nuisance to a highway ,.... 183
INDEX. 587
VESIRE DE NO 70— ' PAGE.
\Vhereverdictuncertainandambiguous .117
In case of improper disallowance of challenge 516
In case of mis-trial 516
Distinction between, and new trial 516
In case of abortive trial for misdemeanor or felony 517
After verdict, on charge of felony upon a good indictment before
competent tribunal, etc 517
VEX I RE FACIAS—
Award of 488-9
VEXUE—
Of legal proceedings 397
VERDICT—
Ambiguous or uncertain 503-4
Recommendation to mercy, no part of 504
Court should be careful that it is unanimous 504
May be corrected before recorded 504
Counsel questioning jury as to grounds of 504
Right to find general 504
Recording on Sunday 504
VIEW—
Always discretionary to grant, in criminal cases 506-7
Evidence, now taken on , 506
WARRANT (see COMMITMENT)—
Amendment of 426
Setting forth day and year when made, and authority of magis-
trate 429
Direction of ... 413
Though irregular, it is justification 414
Is only prima facie evidence of its contents 413
Of commitment for indefinite time 432
Should show place where offence committed 425
Technical precision of indictment not required 425
Not sufficient to call the offence a felony or misdemeanor 425
Particularity in 424-5
One or two justices issuing and signing 427
How justice compelled to issue 427-8
To execute sentence of death 518
Backing warrant 414
INDEX.
WIFE—
Mo ft.
Accessory, when may be fig
Criminal liability of 68-9 "0
Neglecting to provide for 324
WITHDRAWING—
Complaint for assault 4lfv
WITNESSES— (see EVIDENCE),
THE END.
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