Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University \ And Presented February 14, 1893 in riEnoRY OP JUDGE DOUGLASS BOARDMAN FIRST BEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KE 8809.C61 1872 A treatise on criminal law as applicable 3 1924 016 998 654 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016998654 TREATISE Criminal Law AS APPLICABLE TO THE DOMINION OF CANADA. S.'R. CLARKE, i. OF 08B00DE HALL, BARRISTER- AT- LAW. "' / TOEONTO: R. CARSWELL, LAW BOOKSELLER AND PUBLISHER, 16 KING STREET EAST. 1872. Entered according to Act of the Parliament of Canada, in the year of our Lord, one thousand eight hundred and seventy-two, by Samuel Robinson Clarke, Barrister-at- Law, in the Office. of the^Minister of Agriculture. PRINTED BT HUNTER, ROSE & Co., TORONTO. TO THE RIGHT HONORABLE SIR JOHN ALEXANDER MACDONALD, K.C.B., MINISTER OF JUSTICE TOR THE , DOMINION OP CANADA, ONE OP HER MAJESTY'S MOST HONORABLE PRIVY COUNCIL, &c, &c, &c, BY WHOSE EXERTIONS, AND UNDER WHOSE ADMINISTRATION, THE CEIMINAL LAW 0!P THE CONFEDERATED PROVINCES HAS BEEN ASSIMILATED, THIS WOKK IS, BY PE3MISSI0N, MOST RESPECTFULLY INSCRIBED, BY HIS MOST OBEDIENT SERVANT, ' SAMUEL ROBINSON CLARKE, Osooobe Hut, October, 1872. PREFACE In the following pages, I have attempted to supply a want long felt by the Members of the Profession in Canada. Since the establishment of Courts in the country, the common law of England having been adopted, the decisions of the several Courts are very much in har- mony in each of the Provinces which now form the Dominion. In addition to this, the Acts passed since the Confederation of the Provinces have, in a great measure, assimilated the Statute Laws, so that there, is now one uniform Code of Criminal Jurisprudence pre- vailing from the Atlantic to the Pacific. It is obvious that, under these circumstances, the decisions of each Province are of essential importance in expounding, the law now prevailing in all ; and the contemplated establishment of a Supreme Court for the Dominion renders it very desirable that the ad- ministration and interpretation of the laws should not vary in the different Provinces. I have, therefore, collected all the cases on Criminal Law which have been decided in the several Provinces, thereby making the Work essentially Canadian in its character. AH the cases in " The Law Eeports" have also been given. From these limited materials, I need scarcely say, I do not pretend to call my work a complete Treatise. If it is complete in being an accurate VI PREFACE. Digest of all Canadian cases, my aim and ambition will be satisfied. The Chapter on* Extradition is altogether confined to Canadian cases; and a very considerable portion of the Work will be found to be made up of original materials, hitherto unappropriated. In the preparation of the Work, I have searched and examined the following Eeports — namely, (Nova Scotia), James, Thomson, Cochran, and Oldright; (New Brunswick), Kerr, Allen, and Hannay ; (Quebec), Lower Canada Eeports, Vols. One to Seventeen, inclusive, Lower Canada Jurist, Vols. One to Fifteen, inclusive, Stuarts Appeal cases and Vice-Admiralty cases, with the Digests of Robertson and Ramsay ; (Ontario), Queen's Bench Reports, 0. S., Six Vols., N. S., Vols. One to Thirty- one, inclusive, Common Pleas, Vols. One to Twenty^one, inclusive, Upper Canada Law Journal, 0. S., Ten Vols., N. S., Eight Vols., Practice Eeports, Five Vols., Cham- ber Reports, Two Vols., Error and Appeal Reports, Three Vols., and the Reports of Draper and Taylor. I beg to express my thanks to the many kind friends who have encouraged and assisted me in the Work. To the Hdn. J. H. Gray, D.C.L., M.P., I am particularly indebted. Several manuscript cases, inserted in the Work, have been forwarded by the Hon. J. C. Allen, of Frederickton, N. B. Thanks are also due to Geo. A. Boomer, Esq., Barrister-at-Law, and Mr. W. M. Hall, Student-at-Law, for the care and labour bestowed on the Index and Table of cases. Considering the great importance of every branch of the law relating to criminal jurisprudence, it is a matter of surprise that no Treatise on the subjects discussed in the following sheets has been written by any member of the profession of the law during our existence as a Colony." PREFACE. VU During a long period the criminal laws of our country- have grown up, as it were, with the necessities of our advancement and progress. Many interesting points have been argued by eloquent and able advocates, and decided by learned and enlightened judges; and the recent legislative effort to assimilate the criminal laws of the Confederated Provinces, has made them such as to induce an ' expression of my earnest hope that the ex- cellent Code of laws which has been extricated from the discursive mass by which they were encumbered, digested by experience, and methodized by reason, forming a lucid and harmonious Whole, may long remain as a monument to our Confederated Provinces, paying a homage to reason and to right; and that our Sister -Provinces may profit by the example of our own, for whom the codifiers of our Criminal Law may be truly .said not to have laboured in vain. Criminal Jurisprudence has not hitherto fallen within the scope of Canadian legal authors ; and, although the practising lawyer may, perhaps, be more disposed to refer to my work than to peruse it, I trust that, at least, his frequent references to it, guided as he is by a copious Index readily to what he may require, will induce a favourable reception of my undertaking, which has been to furnish the Profession with a volume on Criminal Law and Practice, at once compendious and" useful. Relying on the kindness of those who may peruse this book with a friendly disposition to its author, and the candour of those who may refer to it for the sake of information alone, I now offer it to the Public, and to the Profession, of which I am a member, with a sinoere desire that it may be useful to both. S. R. C. Osgoode Ham,, Toronto, lUh, Men/, 1872. TABLE OF CONTENTS. INTRODUCTORY CHAPTER. PAGE.. The English Criminal Laws prevailing in the Dominion 1 SPECIAL CHAPTER. Extradition : 23 CHAPTER I. Crimes in General 71 CHAPTER II. THE PERSONS CAPABLE OF COMMITTING CRIMES, AND THEIR SEVERAL DEGREES OP GUILT. Infants 90 Persons non compotes mentis 92 Persons in Subjection to the Power of Others 94 Ignorance , , 96 Principals, in the First and Second Degrees 97 Accessories,, Before and After the Pact 102 CHAPTER III. OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE PUBLIC PEACE, OR THE PUBLIC RIGHTS. Coinage offences 109 Foreign Enlistment Offences 112 Seducing Soldiers or Sailors to Desert 118. X CONTENTS. PAGE. Piracy 121 Customs Offences 124 Excise Offences .' 130 -Compounding Offences 141 Extortion 143 Sale of Offices 146 Misconduct by Officers 148 Monopoly 152 ■Champerty and Maintenance 154 Bigamy 160 Libel 168 Riot 189 Forcible Entry or Detainer 192 Nuisances 197 To Highways 202 To Navigable Waters 227 Obstructing the Execution of Public Justice 234 Escapes 237 Prison Breach 239 Parliamentary Offences 240 CHAPTER IV. OFFENCES AGAINST THE PERSON. Murder '. 243 Manslaughter 252 -Justifiable Homicide , 261 Excusable Homicide 262 ■Concealing the Birth 262 Rape 264 Assault and Battery , 269 CHAPTER V. OFFENCES AGAINST PROPERTY. Burglary .: 281 Robbery 287 Larceny 289 Stealing from the Person 3jg CONTENTS. XI PAGE. Embezzlement 320 Obtaining by False Pretences '. 332 Receiving Stolen Goods 351 Forgery 356 Cheats and Frauds 371 False Personation : 372 Malicious Injuries 373 Arson 374 CHAPTER VI. Perjury 382 Conspiracy 401 CHAPTER VII. Annotations of Miscellaneous Statutes 410 CHAPTER VIII. Evidence 449 CHAPTER IX, Pleading 491 CHAPTER X. Practice ,,,.. 512 XVI TABLE OF CASES CITED. PAGE Brown v McKeel 232 Brown, Re 477 Brown vShea '. 258 Browne v Carter.., 461 Budenberg and Roberts 552 Burley, ReBGi 33, 49 Barton q t v Young 461 Bustard Re Complaint, v Scho- £eld , 580 Bustin ex parte 22, 569 Butcher v Butcher 193 Butt v Conant. : 545 Caldwell ex parte 129 Caldwell Re, R B 39, 43, 53 Campbell v Reg 576 Campbell v Spottiswoode 180 Carmichael, Re 553 Carmichael, Re John 559 Carr v Tannahill 155 Cafrick v Johnston 221 Caswell v The St M & P L J RCo 223 Caudle v Ferguson 257 Caverley v Caverley 290 Chaney v Payne. 134 Chowne v Baylis 75 Church ex parte 562 Clapp v Lawrason 537 Clark v Stevenson 449 Clarke, Re 114 Clarke v Wilson 76 Cleland v Robinson 199 Clemens q t v Bemer ■ 9 Clifford v Brandon..,...: 191 Clifford ex parte.... ]33 Colbeck v Corporation of Brantford ..' 223 Colev Maxwell ,. 211 Coleman, Re 577 Conklin.Re 503 Connick v Wilson 171 Connolly v Woolrich .'. 167 Connors v Darling 513 Cooke ex parte 72 Cooke v Wildes , 183 Cooper, Re 539 Cooper v Wellbanks 226 Copely and Burton 140 Corby v McDaniel 20 Corignan v Harbour Comrs. Montreal 520 ■Corporation Burleigh v Hales 221 PAGE Corporation Sarnia v G W R Co. 221 Corporation Wellington v , Wilson 225 Corriveau ex parte. 584 Cousine ex parte 131 Cousins v Merrill 169 Coward v Baddeley 270 Cox v Lee 171 Crane v Holland 621 Croft v Stevens 187 Cronyn v Widder 19, 199 Crosby v Leng 73 Cross v Richardson 488 Croukhite v Sommerville .... 258 Crow Re '. 527 Cummings ex parte 566 Cuvillier v Munro 241 Dagenay v Hunter 76 Daley ex parte 484 Dartnell,Re 145 Davis ex parte 572 Davis v Lennon : 277 Davis v Scarce .J 140 Davis v Stewart 524 Davison v Duncan 179 Daw v. Metro. Board Co 119 Dawkins v Ld Paulet 174 Dawson v Fraser .- 531 De Beaujeu ex parte 525 Deal and Schofield, 140 Deercourt v Corbishley 258 Delaney, Re v Macnab 535 Delisle and Delisle 148 Demers ex parte 572 Dennis v Hughes 220 Dickenson v Burrell 158 Dickson v Crabb ..:■ 536 Dillingham v Wilson 16-18 Dimes v Petley 201 Donnelly, Re 524 Donogh q t v. Longworth ... 437 Doyle v Falconer 10-11 Doyle Re 430 Downing v Capel 257 Drew v Baby 202 Dugdale v Reg 86 Dumouchel ex parte 444 Dunlap ex parte.......; 517 Dunlop v Reg 624 Dunne v O'Reilly 15 Duval dit Barbinas v Reg ... 489 Dwight v Ellsworth 142 TABLE OF CASES CITED. XV11 PACE Eagles ex parte 518 Eastman v Reid 522 E. 0. Ry. Co. v Broom 169 Edwards v Kerr 74 Egginton v Lichfield 138 Elkin v Janson 450 Elliott v Richardson 159 Esspn v M'Master 230 Estabrooks ex parte 496 Evans v Williams 411 Fairman v Ives 176 Falconbridge q t v Tourangeau 518 Falkland Islands Co v Reg... 636 Farrerv Close 153 Fenton v Hampton 11 Ferguson v Adams 448 Ferguson ex parte 564 . Ferris v Irwin 320 Filiau ex parte 444 Findon v Parker 158 Fish v Doyle 22 Foley v Tucker 257 Foott v Bullock 147 Forrester v Clarke 260 Fortier v Mercier 76 Foster and Tucker 432 Fournier and Olivia 231 Frank v Carson 167 Frazer, Re 142 Friel v Ferguson 514 Gabriel v Derbishire 12 Gage v Bates 229 Gates v Deyenish 215 Gauthier ex parte 564 George v Reg 637 Georgian, Re 421 Gibb v Tilstone 632 Gilbert v Campbell 541 Gilbert v Gooderham 463 Gilchen and Eaton ". 548 Gillespie Doe d v Wixon 22 Glass v O'Grady 277 Glass v Wigmore 239 Gough v Morton ..'. 552 Gould v Cowan, 305 Graham v Grill 144 Graham v M' Arthur 440 Grant q t v M'Fadden 437 Gray v Reg '.. 633 Guay ex parte 566 Gugy ex parte ...-. 189 2 PAGE Haacke v Adamson ........ 525 HadleyvPerks 259 Hadley v Taylor 217 Hall v. Carty * 357" Hall's Estate, Re 161 Hancock v Baker 260 Hanna v De Blaquiere 179 Hannington Doe d v M'Fad- den 18 Harrington v Long 157 Harris v Cooper 167 Harrison v Bush 175 Harrold v Corporation^ Sim- coe 225 Hartley v Hindmarsh 5] 6 Hartley v Russell 158 Hartt ex parte 133 Hawkeshaw v Dis. Council, Dalhousie 223 Hawkins, Re 556 Hawkins v Baker 212 Hayle v Hayle 74 Hearne v Stowell 180 Heartly v Hearns 22 Helps and Eno 431 Henderson vBroomhead 174 Hennesy, Re 522 Henry vLittle 486 Herbert ex parte 567 Herbert q t v Dowswell 512 Herman v Seneschal 257 Hesketh v Ward 22 Hespeler and Shaw 326 HillvHogg 188 Hill v Weldon 7-H Hillary v Gay 193 Hilton vEckersly 153 Hilton v Woods 158 HodginsvM'Neil 22 Hogle v. Hogle 283 Hogue ex parte 129 Holborn v Danes 577 Holden ex parte 280 Hollingham v Head 449 Hooker v Gurnett 144 Hopkins v Prescott 148 Hornby v Close 154 HorsemanvReg 402 Houliston v Parsons 439 Howell ex parte 569 Hudson vM'Rae .... 515 Hunter v Daniel 157 Hunter v Hunter 292 XYU1 TABLE OF CASES CITED. PAGE Huron D C v London D C .. 501 Jackson v Kassel 394 Jaggard v Innes 93 James v M'Lean 16-22 , Jenner v A'Beokett 170 Johnson v Williston 541 Johnston v Boyle 219 Johnstone v Odell 501 Joioe, Re 429 Jones v Ross 528 Jordan v Gibbon 261 Jonett v Lockwood 3-12 Judge C York Re 578 Justices York Re 548 Kalar v Cornwall 481 Kavanagh v Phelon .'. 18 Keenahan qtv Egleson .... 437 Kellett, Re 565 Kelly qtv Cowan 437 Kelly v Jones 15 Kelly v Tinling 187 Kent and Olds 546 Kermott Re 50-62 Kerr v Brunton 155 Kerr v Burns 15-18 KerrvReg 252 Kielley v Carson 11 KingvOrr 258 King v Poe 257 Knowlden v Reg 591 Ko Khinev Snadden 638 Lahayes ex parte 571 Lai v Stall , 439 Lalonde ex parte 566 Lamirande ex parte 69 Lamothe v Chevalier 76 Lapenotiere Re 578 Lawless v A. B. Cotton Co ... 183 Lawrason v Paul 198 Lawrence and King 232 Lavoie ex parte 242 Leary v Saunders 213 Leconfield v Lonsdale 232 Lecours ex parte 566 LeetevHart 257 Leithv Willis 18 Leonard ex parte 525 Leslie v Hervey 446 Levien v Reg 638 LevingervReg 412. PAGE LewisvLevy v 173 Lindsay ex parte 525 Little vlnce 82-197 Little v. Keating 436 Livingstone vMassey 73 Lloyd vClark 20 Lucas and M'Glashan, Re 71 Lusty vM'Grath 485 LyndenvKing 538 Macdonald v Hamilton 221 ■ MacFarlane v Dewey 143 Madden v Farley 374 Madden Re 630 Maguire ex parte 583 Marks v Gilmour 22 Marryexparte 526 Marsh v Keating 75 MarshvLoader 91 Marshall v Piatt 20 Martin, ex parte G. H. 48 MartinRe 114 May q t v Dettrick 142 Meloneyv Morrison 541 Mercer v Hewston 22 Mercer vWoodgate ..: 212 Metcalf q t v Reeve ,. 437 Mewburn v Street 20 Meyers, Re 545 Miiigan ex parte 154 Milnerv Gilbert 22-384 Mills and Brown 139 Mills vDixon 197 Mitchell v Brown 78; Mitchell v Defries ..: 278 Mitchell v Thompson 195 Moffat v Barnard 444 Mogulexparte 136 Moleyexparte 136 Monkex parte 241 Montgomery ex parte 562 Moore v Corporation Esques- ing 219 Moore v Jarron 215 Moore, Re 523 Morasse v Guevremont 240 Morgan and Hedger 140 Morisset ex parte 571 Morrison ex parte 218 Morrison v M 'Alpine 22 Mountj oy v Reg 208 Muir v Kaye 72 MulcahyvReg 402 TABLE OJ 1 CASES CITED. XIX PAGE Mulhern ex parte 374 Mulock, Re 542 Murphy q t v Harvey 437 Murray v Dawson 229 Mutters, Re 308 Myttonv. Duck 209 -M'Adamv Weaver 384 M'Bride, Re 220 M'Call, Re 441 M'Culloch ex parte 121 M'Cullough v M'lntee 181 M'Oully v M'Cay 136 M'Oumber,Re 549 M'Currty v Swift 76 M'Dermott Re 637 M 'Donald v Cameron 310 M'Donald vStuckey 525 M'Farlane v Lindsay 410 M'Guines, Re 120 M'Guire v Liverpool and Lon- don Assurance Co 76 M'Innes v Davidson 539 M'lntee v M'Cullough : 183 M'Intyre v M'Bean 181-243 M'KayvM'Kay , 552 M'Kenna v Poweli 443 M'Kenzie v Gibson 259 M'Kenzie v Mewburn 530 M'Kenzie v Miller 20-159 M'Kinnon, Re 427 M'Lean and M'Lean 577 M'Nab v Bidwell 11 M'NabvM'Grath 375 M'Nellis v Gartshore 519 M'Quin ex parte 525 Naiker v Yattia 638 Neill v M'Millan 484 Neill v Taylor 76 Newton v Harland 193 NotmanvReg ■ ', 20 OTlagherty v M'Dowell 413 Olivia v Bissonnault 229 OUard, q t v Owens 437 O'Neill v. Kruger 154 O'Neill v Longman 154 O'Regan ex parte ,. . 567 O'Reilly q t v Allan 437 Oulton v Carter 220 Ovens v Taylor 279 Painter v Liverpool Gas Co... 528 PAGE Papin ex parte 9 Parker y Elliott 231 Parkes v Prescott 104 Parks ex parte 72, 132 Peache.atid Coleman 140 Pease v McAloon 73 Peltier v Miville 76 Peplow and Richardson 140 Perley v Dibblee 230 Peters v Irish 462 Phillips v Byre 6, 12, 13, 150 Pirie and Corporation of Dun- > das 152 Piton and Lemoine 570 Plante ex parte 557 Poitevin v Morgan 180 Pollard Re 543 Pomeroy and Wilson 553 Poole v Huskinlon 214 Popham v Pickburn 187 Porters trusts, Re \ . 161 Port Whitby R Co v Cor- poration Town Whitby .... 223 Poussett, Re and Corporation „ Lambton 145 Powell v Williamson 258 PowervCaniff 199 Pref ontaine ex parte 567 Price v Perceval 144 Pringle v Allan 22, 116 Prosser v Edmonds 155 Prouse v Corporation Mari- posa , 215 Purdy q t v Ryder" 22 Rv Abbott 339 R v Abingdon, Ld 179 R v Allan 213 Rv Allen 122, 161 R v All Saints, Southampton. 514 Rv Alsop S91 R v Anderson 122 RvAndrews 437 R v Archer 96 Rv Ardley 342 R v Armstrong 326 Rv Arnold 475 Rv Atkinson 171 RvAumond 128 Rv Avery 308 Rv Ayle|t 382 RvBaby 436 Rv Bailey 293,284 XX TABLE OF CASES CITED. PAGE RvBain 86 RvBake 193 RvBaker 287 RvBaldry 472 RvBalls 329 RvBalme 237 R v Barbeau 570 R v Barnes .' 314 R vBarrow 265 RvBarthelmy 599 RvBathgate 124 R v Bayeley 351 R vBeale 267 R vBgavan 194 R v Beaver 477 R v Beckwith 459 R v Beekman 438 Rv Beeston 477 R v Bell '. 22, 168 R v Bellingham 192 R v Belton 549 R v Belyea 510 R v Benfield 169 R vBenjamin 102, 143 RvBennett 143 R v Bennett JE. Young 23-24 RvBerchall 253 R v Bertles 334 R v Bertran4 490 R v Berube 457 RvBest 403, 143 RvBeveridge 22, 412 R vBidwell 448 R v Bienvenu 162 RvBird 272 R v Birnie 257 R v Blackson 504 R v Blake 405 R v Bleasdale 312 R v Blossom 585 R v Boardman 9 RvBond 475 RvBoss 339 RvBoteler 514 R v Boultbee 579 R v Boulter 400 RvBoulton 218 R v Bowers ■ 322 R v Boyal 82 RvBoyes 460 Rv Boyle 513 R v Brackenridge : 364 R v Brady 336 PAGH R v Braithwaite 400 RvBramley 303 R v Brawn 161 R vBray 591 R vBrice 283 R v Brimilow 92 R v Brissac 405 R v Brittain , 218 Rv Broad 398 Rv Brooks 96 R v Brown and Street 206 Rv Bruce 123 R v Bryan 342 RvBryans 339 R v Buchanan 81, 211 RvBuck 82 RvBull 351 RvBullock 321 R v Buhner 343 RvBurdeU 595 RvBurgen 339 R v Burrowes . . . . : 284 Rv Burton 93 R v Butler 84 R v Buttle 399 R v Bykerdike 154 RvB&LHRyCo.. 330 R v Caisse 279 R v Caister 434 R v Cale 77 R v Callaghan 397 R v Campbell 100, 576 RvCarlile'. 78 R v Carlin 115 R v Carpenter. 330 Rv Carroll 94 R v Carson 362 R v Carter 314 R v Cartwright , . . . 84 R v Cassidy 127 R v Castle 369 R v Caswell 521 R v Chamberlain 590 R v Chambers 365 R v Chandler 8, 411 R v Chapman 325 R v Charlesworth 459 Rv Child 381 R v Chillas 567 R v Chipman 232 R v Christopher 296 R v Chubbs 451 Rv Clarke 160 Table of cases cited. TTY1 PAGE R v Clement 84 RvClewes 473 RvCloss 362 RvClouter 456 R v Cockburn 267 R v Cockroft « 464 Rv Cohen 95 R v Cokely 194 R v Collins 86 RvCollison 98 R v Comrs Highways, St Joseph 152 RvConnell 85 Rv Connolly 84 Rv Connor 193 R v-Cooke , 309 R v Cooper 106 Rv Corporation Haldimand.. 200 R v Corporation Louth 222 R v Corporation Paris 199-221 RvCory 291 Rv Courtney 392 RvOoyle 612 RvCrab 332 RvCrabbe 557 R v Craig 360-371 RvCraw 100 Rv Creamer 162 Rv Cregan 272 RvCridland 514 Rv Crisp 142 R v Crooks .". 281 RvCross 78, 202 R v Crossley 81 RvCroteau 588 RvCrozier 633 RvCrutchley 245 RvCudihey...,. : 588 R v Cumberland 78-81 RvCummins 78-81 R v Cummings 283 R v Currie 401 R vCurtley 97 Rv Cutbush 626 R vDale 335 R vDanger 343 RvDant 253 RvD'Aoust 632 RvDavies 296 RvDavis 77, 277 RvDawson 367 Rv Deane 211 RvDeBerenger 407 PAGE R v Dennis 574 RvDent 372 RvDenton 78 R vDeegagne 573 R v Des Jardins Canal Co.... 223 R v Dessaner 346 R v Devonshire, Marquis...... 214 RvDicks 95 RvDillon 317 R vDingman 272 RvDiprose 323 RvDixon 96 R vDogherty 373 RvDolan 354 R v Donaghue 105 RvDorion 312 RvDoty 389 RvDowey 340 Rv Downey 250 R vDring 355 RvDriscoll 312 RvDruitt 154 RvDuffield 154 RvDuffy 178 R vDugdale 86 R vDunlop 202 Rv Dunning. 396 RvDunsion 392 R v Duval dit Barbinas 489 R v Duvaney , 528 Rv Eagle 247 R vEagleton 86 R v Earl of Somerset 106 R vEarnshaw 506 RvEbrington 516 RvEccles 407 Rv Edwards 289 R v Egerton : 479 RvEldershaw 92 R v Ellis 568-479 R vElrod 168 R v Elworthy 481 R v Enock 245 RvErridge 578 RvEsmonde 85 R v Essex 322 Rv Evans 338 R vEwing 78 RvEyre..... 447 RvFalkingham 423 Rv Fallon 103 RvFaneuf 272 RvEanning 161 XXII TABLE OF CASES CITED. PAGE RvFarrington 378 Rv Farrow 264 Ev Faulkner 132 R v Fe'arnley 237 RvFellowes 405 RvFennety 251 R v Ferguson 136 RvFick 265 RvField 467 RvFinkle 470 RvFirth 311 Rv Fisher 373 RvFitzgerald 577 RvFlynn 256 RvFolville 223 Rv Forbes 235 RvFord 603 R v Foster 413, 480 RvFrampton 353 Rv Frances 93 Rv Francis 265 RvFranz 98 RvFraser 461 R v French 133 Rv Frost 502 RvFullarton 503 RvFurzey 192 RvGagan 386 Rv Gamble 240 RvGanes 273 R v Garbett 462 Rv Gardner 337, 400 R v Garner 474 RvGarrett 304 RvGash 237 RvGfeylor 103 R v Gemmell 333 Rv George..... 456 R v Gerber 456 Rv Gibbons 390 RvGiles 333 RvGill 406 RvGillis 471 R v Gingras 562 RvGlyde 294 RvGoate. 361 RvGodfrey 348 R v Goff 84 RvGoodard 392 R v Goodenough 327 Rv Goodman 380 Rv Goodwin 110 R v Gorbutt 317 PAGE R v Gordon 168, 209 R v Gotley 143 R v Gough 289 Rv Gould 48, 237 RvGray 633 Rv Green 314, 500 R v Greenacre 103 R v Greenland 395 R v Greenwood 387 R v Gregory 87 RvGriepe 390 Rv Griffiths 359 RvGrindley 94 R v Groombridge 91 Rv Groves 324 R v Guardians' Cam Union. . 549 RvGutch 105 Rv Guthrie 268 RvGWRCo 214 RvGzowski 234 R v Hadfield 435 Rv Hagar 436 Rv Hague 373 Rv Haines 282 RvHall 214,407, 506 Rv Halliday 458 RvHambly 453 Rv Hamilton 288,450 R v Hammond 95, 141 RvHapwood , 84 Rv Hardy 436 Rv Harley, 610 R v Harmer 487 Rv Harper 631 RvHarris 92 Rv Harrison 308, 581 R v Harvey..! 109 RvHassell 304 RvHaswell 240 R v Hathaway 361 R v Hawkeswood 361 R v Hawkins 327 R vHawtin 327 R vHaynes 575 R v Haystead , 434 RvHazy 450 R v Healey 317 R v Heaton 163 R v Hellier 57] R v Heming 580 R v Hendry 202 R v Henshaw 345 R v Heustis 580 TABLE OF CASES CITED. XX111 PAGE RvHewit 154 Rvflibbert 269 R vHicklin 88, 171 R v Higgins 261, 584 R v Higginson 93 R v Higham 515 RvHill 317 Rv Hilton 102, 509 RvHind 481 R v Hippinstale 249 R v Hoare 304 Rv Hoatson 361 R v Hobson 356 RvHodgkiss 383 R v Hodgson 464 RvHogg... 372 R v Haggard 133, 562 RvHolden 361 R v Holland ^46 RvHolloway 328 R v Holman 505 Rv Holmes 463 RvHolt 146 RvHolroyd 81 RvHook 401 R vHorne 77, 397 RvHorseman 510 Rv Howell 98, 407 R vHuber 202 R v Hughes 253 R v Hughson 194 R v Huime 461 R v Humphreys 458 R v Hunt 154, 204, 510-1 Rv Hunter 338 Rv Huntley 494 RvHuppel 340 R v Hutchinson 253 R v Hyams 282 R vHyde 571 Rv Ingham 538 R vlngram 96 R v Inhab., Claret and Long- bridge r 223 Rv Inhab., Hodnetts 165 R v Inhabs. , St Benediot 213 Rv Ipstones 574 R vlves 629 R v J ackson 195, 315, 503 R v Jacobs 160, 405 R v Jarvis 472 R v Jenkins 284 R v Jennings. 313 PAGE R v Jennison 334 R v Jerrett 456 R v Jess'op 339 R v Johnson 77 R v Jones. . . . 325, 449, 466, 474 R v Jope 491 R v Jordon 92 R v Josephs 565 Rv Jowle 565 R v Jukes 139 R v Justices, Bathurst 550 R v Justices of Bathurst 550 R v Justices, Cumberland . . . 515 R v Justices, Huron 630 R v Justices, Newcastle 567 R v Justices, Norfolk 548 R v Justices, Surrey 561 R v Justices, Westmoreland.. 576 R v Justices, York 551, 629 R v Kay 363 R vKeena 329 Rv Keith '. 364 R v Kelly 189 R v Kennedy 253 RvKenrey • 629 R v Kenrick , 402 R v Kerr 252 R v Kilham 299 RvKing 139 R v Kinnersley 408 R v Kinsman 124 R v Kirkwood 365 Rv Knight. 224 R v Knowlden 591 R v Lacombe 614 R v Lafferty 563 R v Lambert 325 R v Lamere ; 599 R v Larkin 503 R v Lavey 390 R v Law 570 R v Lawrence 281 RvLeboeuf 303 R v Ledbetter 478 R v Lee 332, 361, 400 R v Leech 344 R v Lees 207 Rv Lesley 122 R v Levecque 445 RvLevett 97 R v Levien 638 R v Levine 342 R v Levinger .• 412 XXIV TABLE OF CASES CITED. PAGE Ev Lewis 282, 407 Rv Light 258 Et Lister 324 Rv Littlechild 520 R v Locost 285 Rv Lopez 122 R v Lord Mayor, London 195 R v Lowrie 313 R v Loyd Jones 325 RvLuck 100 RvLumley 163 R v Lynch 100-416 R v Lyons 361 RvMaoarty 407 R v Macdonald 395-406 RvMadden... 96-162-411 R v Magee 274 RvMagrath 420 RvMandesley 474 R vManning 96-377 Rv March 379 Rv Marcus 361 Rv Marks 533 RvMarsden 261 R v Marshall 322 R v Martin 197 Rv Mason ,142-396 RvMassey 306 Rv Master 71 Rv Masters 351 Rv Matthew 448 R vMatthews 494 RvMawbey 402 Rv Maxwell 395 RvMayle 322 R v Mayor, Tewkesbury 96 RvMead 481 R vMeakin 94 RvMears 407 R v Mellish 331 R v MeUor .- 615 Rv Mercer 80-146 R v Messingham 354 Rv Meyers 221 RvMillar .... 478 Rv Miller RvMills 222 R v Moah 325-362 R v Mockford 319 R v Moodie 21-96-147 Rv Morgan 301 Rv Morris 95 RvMorston 570 PAGE R v Morton 31-32 R vMosier 513 RvMonntjoy 208 RvMoylan 189 RvM. S. &L. Ry. Co 351 RvMulcahy 87 RvMullady 583 R vMunro 426 Rv Murphy 405-500 R v Murray 391-549 RvMuscot 400 RvMyott 348 RvM'Cann 85-415 RvM'Connell 22 RvM'Oorkill 370 RvM'Cormick 22 R vM'Donald 235 R v M'Donel 610 RvM'Eldeny 188 RvM'Evoy 271 R v M'Ginnis 311- RvM'Grath 290 RvM'Greavy 22 RvM'Gregor 226 RvM'Hroy 451 RvM'Intosh 384 RvM'Intyre 150 RvM'Kale 300 RvM'Kenzie 630 RvM'Kinnon 276 RvM'Kreavy 194 RvM'Lean 634 RvM'Laughlin 448 R v M'Lellan 612 RvM'Mahon 100 R v M'Naney 573 RvM'Naughton 93 RvM'Pherson 85 RvM'Quarrie 347 R v M'Quiggan 168 RvNaylor... 336 RvNeale 408 R v Newborough, Ld 561 R v Newboult 380 R v Newton 162 R v Nichol 390 R v Nichols 408 R v Oates 345 R v O'Brien 316 RvO'DonneU 453 RvOfford 93 R v Oliver 368 R v Orr 606 TABLE OF CASES CITED. XXV PAGE R'v Osmer 236 R v Ouellette 206 R v Oulton 573 Ev Overton 390 R v Owen .-91-282-453 R v Oxentine 633 R v Pah-mah-gay 457 RvPaice 379 R v Palliser 18 Rv Parker 367-473 R v Parsons 405 R v Pattee 9-489 R v Patterson 120 RvPatton 201-412 R v Paxton, John 33-68 R v Payne 240 R v Pearce 387 R v Pearson 515 RvPeck 327 RvPedley 202-393 R v PeUetler 398 R v Penson 161 R v Perkins 192 RvPerrott • 492 Rv Perry 264 R v Peterman 568 RvPhillips 92-191 R v Phipoe 289 Rv Pickup 332 R v Plummer 217 R v Plunkett 205 R v Pollman 146-408 Rv Poole 302 RvPope 448 R v Potter 447 RvPoulton 245 R v Powell 622 Rv Preston 368 Rv Price 81 R v Prince 292 Rv Proud 386 RvPurdy 218 R v Quatre Pattes 612 RvQuinn 315 R vRadley 313 RvRagg 339 R v Ramsay 542 RvRand 151 Rv Rankin 209 R v Rattislaw 568 RvRea 164 R v Reardon , 354 R v Redman 445 PAGE Rv Reeve 472 R v Reeves... 245 R v Reiffenstein 76 R v Reno and Anderson ...32-537 RvReopelle 367 RvRice 198 R v Richards 80 R v Richardson 402 Rv Richmond 349 Rv Riley 304 R v Ritchie * 589 RvRitson 358 R v Roberts 400 R v Robertson ' 303 Rv Robins 302 R v Robinson 54, 237 R v Roblin 15, 22 R vRobson .' 308 Rv Roderick 84 R v Roebupk 335, 494 R v Rogers 317 RvRose 233 R vRoss 397 RvRow 18, SI Rv Rowlands 154 RvRoy 371 RvRoyal 81 RvRubidge 219 R v Rushworth 366 Rv Russell 237 RvRyalls 399, 494 RvRyan 272, 421 RvRyland 255 R vRymes 503 R vSadbury 190 Rv Sage ' 587 R v Sainsbury 80 R vSalmon 375- Rv Salter 88 R v Sanders 235 R v Sanderson 208 R v Sansome 475' R v Saunders .' 265 RvScaife 583 R vSchlesinger 393 Rv Schmidt 353 Rv School 414 R vSchram 13 RvScofield , 87 R v Scott 190, 462 RvSearle 93; RvSebery 123 R v Seeker 22 XXVI TABLE OF CASES CITED. PAGE RvSeddons 451 BvSellis 245 RvSelsby 154 B vSenecal 347 Ry Seward 402 RvSharpe 123, 316 RvShaw 94 400 RvShea 507 Rv Sheen 462 RvShellard 405 R v Shepherd. 154 R v Sheriff Niagara 545 R v Sherlock t 234 R v Sherman : 12, 14, 77, 113 RvSherwood 339 RvShickle 291 R v Shuttleworth 239 R v Simmonsto 162 R v Simpson •. 319 RvSinnott 582 R vSkeen 289 Rv Skeet 98 RvSlavin 99, 405 R v Smith 246, 486 Rv Smith, Charlotte 255 R v Smith, Jessie 103 RvSmyth 196 RvSnelling 367 RvSnowley 331 R v Solomons 116 Rv South Holland 562 Rv South-ward 129 R vSparling 524 Rv Sparrow 275, 580 R vSpelman', 235 R vSpenoe 210, 234 Rv Spencer 382 RvSpriggs 282 R v Squires 96 Rv Stafford 137 Rv Stainer 152 R v Stallion 375 Rv Stanbury- 345 .RvStanger 582 R v Steel 367 RvSteels 341 Rv Stephens 232 R v Stevens 522 R v Stevenson 478 R vStewart 438 R v Stimpson 514 R v St Louis 310 RvStfachan 137 PAGE RvStratton 408 R v Streek 626 Rv Strip 471 R.vStubbs 460 RvSullens 351 R v Sullivan 497 R v Summers 446 Rv Sutton 90 R v Swan 78 RvSwindaU 253 RvSwitzer... 502 R v Sylvester 412, 440 R vTaffs 323 R v Tailor's Com 403 Rv Taylor • .... 84 RvTholey 327 Rv Thomas 324 R v Thompson 319,409, 588 RvThorley 331 Rv Thorn 366 R vThurborn '. 294 RvTierney 112 R v Tinning 412 R v Tisdale 102, 143 R v Tite 324 R v Tod 515 R v Tomlinson 383 R v Tongue 324 R v Toronto St Ry Co 80 R v Townley 291 R v Townsend 390, 557 RvTrebilcock 293 R vTrilloe : 245 RvTubbee 23,24,47 R vTufford... 472 RvTuke "367 R v Turner 132. 408, 450 Rv Tweedy..,,., 305, 495 R v Tyree.. 323 Rv Tyson ...» , 390 R v Vanaerman..- 68 R v Varley 110 R v Vaughan 146 Rv Vendette 538 R v "Vincent 401 R v Vonhoff 598 R v Wadsworth 144 R v Walker 386 Rv Wallace 487 Rv Walls ..'. 287 R v Walsh 125, 351 Rv Walton 318 R v ^arburton 402 TABLE OF CASES CITED. xxvu PA&B RvWard ...245, 275 R v Wardroper 355 Rv Watson 342 Rv Webster .85, 400 Rv Welsh 110 RvWelton 478 R vWest 295 Rv Western 388 Rv Wheeler 589 RvWhelan... 232, 411 RvWheten 527 Rv White 134 R v Whitehead 116, 461, 545 RvWhittier 234 RvWigg 82 RvWightman 196, 566 R v Wiloook 366 Rv Wiley 355 RvWillett 683 R v Williams 77, 194, 265, 370 RvWilliamson 583 RvWillis 447 RvWilshaw 476 R v Wilson 193, 264 R vWinsor 489 R v Wolstenholme 325 Rv Woodcock 137 R v Wroxton 165 RvTarrington 575 RvTCeardon 278 R v Young 532 Ramsay, fie 636 Ramsay v Reg 622 Rawney q t v Jones 437 Rawnsley v Hutchinson 549 Recorder, Re and Judge, D C Toronto. 149 Rector, St John v Crawford... 630 Reid v Inglis '.. .. '21 Reid v McWhinnie 521 ■■ Richardson v Can. W. F. Ins. Co 592 Uickaby, ex parte 121 Rider vWood 97 Ridley v Lamb.. 218 Ritchie ex parte; 22 Roberts v Orchard 257 Roberts v Patillo 607 Rochon vLeduc 463 Rockwell v Murray 260 Rogers v Spalding 175 Rogers v Van Valkenburgh. '.. 258 Rokeby v Langton 393 PAGE Rolleand White 232 Rose v Cuyler 480 Ross v Corporation Ports- mouth 229 Ross q t v Meyers 159 Ross, Re 538 Rousse, ex parte 16-18 Rowe v Titus 230 Runciman, Re v Armstrong. . . 557 Ryalls v Leader 174 Ryalls v Reg 399, 494 Sandiman v Breach 326 Saunders v Baldy 446 Scott v Dickson 546 Scott y Henderson 155 Sewell v Olive 486 Shaver v Linton 180 Shea v Choat 18 Slack ex parte i 526 Slater, Re 198 Small v G. T. R. Co 200 Small v McKenzie 174 Smith v Armstrong 181 Smith v Barnett , 432 Smith ex parte 145 SmithvHall 20 Smith v McGowan 12 Smith, Re 550 Smith, Re and Council Eu- phemia 220 Smith, Re Andrew 117 Smith, Re John 113. 114 Smith, Re TruemanB 35, 37 Smyth v McDonald 18 Solr. Genl. v Carter 128 Solr. Genl. v Darling 128 Somers v Honse 189 Somerville v Hawkins ' 180 Spalding v Rogers 207 Speaker of the Legislative Assembly of Victoria v Glass 1Q Spelman ex parte 539 Spebman v Reg 235 Spieres v Parker 506 Spill v Maule 182 Spires v Barrick 277 Stace v GrifEth 185 Stacey v Whitehurst 101 Stanley v Jones 155 Stanton v Andrews . r 169 Steel v Smith 506 Stephens v Meyers 271 XXVttl TABLE OF CASES CITED, PAGE Stevenson ex parte 130 Stewart and Blackburn 435 Stewart v Rowlands 188 Stinson v Browning 217 St. Mary Newington v Ja- cobs 212 Stockdale v Hansard 177 Stone v Marsh 75 Sturt v Bragg 189 Switzer, Re 517 Taylor Re v Davy 569 Taylor v Golding 362 Taylor v Humphries 140 Taylor v Marshall 133 Terrien ex parte 572 TheHaidee 514 The Scotia 514 The Toronto 276 Thomas v Pepin 542 Thomas v Piatt 383 Thompson and Durnford .... 483 Thompson ex parte 141 Thompson, Re ... . 516 Thomson v Leslie 484 Timson, Re 559 Torrance v Smith 22 Totten v Watson 436 Tracey, Re , 11 Trigerson v Board of Police, Cobourg 215 Trowley ex parte 527 Tunnicliffe v Tedd 515 Turnbull v Bird 184 Turner v Ringwood H Board 224 Uniacke v Dickson 1-2, 15 TTnwin and Clark 430 Vaillancourt ex parte 565 Vallieres ex parte 564 Van Allen v G T R Co 224 Vaughan ex parte 561 Vaughton and Bradshaw. . . . 615 Victoria P R Co v Simmons . . 554 Vincent v Sprague 75 PAGE Wadsworth v Boulton 241 Wakley v Cooke 580 Walker v Brewster 198 Wallace, Re 148 Walsby v Anley 154 Walsh v Nattrass 73 Warner, Re 500 Warner v Tyson 22, 110 Wason ex parte 178 Wason v Walter 171 Watson v City Toronto Gas and Water Co 197 Watts; Re 563 Wellock v Constantine 75 Wheeler Doe d v Mc Williams 162 Wheeler v Reg 589 WhelanvMcLachlan 229 Whelan v Reg 232 White v Gardner 350 Whiteley v Chappell 372 Whitfield v S E Ry Co 169 Whitehead v Reg 116 Wildes v Russell 148-152 Williams v Bayley 142 Williams v Robinson 73 Willoughby v Egerton 621 Wilson v Corporation St Catharines 154 Wilson v Graybiel 134 Wilson v Jones 10 Wilson, Re 547 Wilt v Lai 400 Winning v Fraser 489 Winsor v Reg 455 Winterbottom v Ld. Derby... 210 Wood and Brown 445 WoodvDownes 156 Wood ex parte 519 Woodhouse ex parte 136 Wragg v Jarvis : 239 Wray vToke 137 Yearke v Bingleman 554 Toung v Sloan 309 Young v Woodcock 579 THE CRIMINAL LAW OF CANADA. INTRODUCTORY CHAPTER. THE ENGLISH CRIMINAL LAWS PREVAILING IN THE DOMINION. Colonies may be acquired by occupancy, conquest and cession. When a colony is acquired in either of these modes, it becomes material to consider what laws apply and are in force therein. On the acquisition of a colony by occupancy, all English laws applicable and necessary to its state and condition 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 refine- ment 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 (a) Uniacke v. Dickson, 1 James, 300, per Hill, J., confirmed by Smmth v. Mc- Donald, 1 Oldright, 274 ; Doe dem Andgrson v. Todd, 2 U. C. Q. B. 84 per Jtobinson, C J. ' 2 • CRIMINAL LAW OF CANADA. God, remain in force until altered by the conquering power. The latter, however, can impose on the subju- gated people such laws, imperial or otherwise, as may be thought fit. (a) In ceded colonies the same general rule prevails as in conquered colonies, except in so far as the power of the crown may be modified by the treaty on cession. The Provinces of Ontario, Quebec, Nova Scotia, New Brunswick, and Manitoba, are all colonies of the British Empire. It is not perfectly clear under what modes of acquisi- tion these respective colonies can be classed. The coun- try was originally discovered and to some extent settled by the French, and the latter claimed the whole territory from the Gulf of the St. Lawrence to the then unknown western wilds. By the treaty of Utrecht, signed in 1713, France ceded to England the present Provinces of Nova Scotia and New Brunswick, then called Acadia ; and by the treaty of Paris, concluded in 1763, the entire terri- tories claimed by the French, including the present Pro- vinces of Ontario, Quebec and Manitoba, were ceded to the Imperial Crown. As to the Provinces of Ontario Manitoba and Quebec, there seems little doubt that their acquisition may be ascribed to cession founded on con- quest ; the two former especially, for when the treaty was ratified no settlements had been made in them. In the case before referred to, (b) Nova Scotia seems to have been treated as a settled colony ; in other words, as acquired by occupancy. If this be the correct view, New Brunswick would fall within the same class, as it and Nova Scotia formerly comprised one Province, and the division was only effected in 1784. (a) Doe dem Anderson v. Todd, supra. (6) Uniacke y. Dickson, 1 James, 287. ENGLISH LAWS IN FORCE. 5 It would seem that, as to the English laws prevailing in Nova Scotia and New Brunswick, they may be treated as settled colonies. If they were treated as ceded colo- nies, then the laws existing at the time of the cession would remain in force until altered by the Imperial Par^ liament. No such alteration, at least so far as the author is aware, has been made, nor has any Imperial statute or proclamation expressly extended the English laws to these colonies. The law of England, both civil and criminal, with certain restrictions and limitations, pre- vails therein. The early settlers of the country must therefore have carried with them such English laws as were applicable to their condition as an infant colony. The fact that no Imperial Legislation has taken place with reference to these Provinces seems to strengthen this view, for in the case of a settled colony the Crown cannot alter or impose laws or otherwise interfere in the legislation of the country as in the case of conquest or cession, (a) We now proceed to consider more particularly the English criminal laws prevailing in the several Provinces of the Dominion. By the Royal Proclamation of 1763, the criminal law was introduced into the Province of Quebec, as there defined, and by the Imperial Statute, 14 Geo. 3, c. 83, it was extended to the whole of the present Provinces of Ontario and Quebec. This statute, after reciting the benefits and advantages resulting from the use of the criminal law since its introduction by the pro- clamation of 1763, enacted that the same should continue to be administered and observed as law, " as well in the description and quality of the offence as in the method of prosecution and trial, and the punishments and forfei- tures thereby inflicted." It took effect on the 1st of May, (a) See, however, Jouett v. Lockwood, 2 Kerr, 683, per Chipmam,, C. J. 4 CRIMINAL LAW OF CANADA. 1775. In Ontario, howeyer, the 40 G-eo. 3, c. 1, was sub- sequently passed, and introduced the criminal law of England as it stood on the 17th day of September, 1792, " and as the same has since been repealed, altered, varied, modified or affected by any Act of the Imperial Parlia- ment 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 relating to Upper Canada, exclusively, or to the Province of Canada." The criminal law, therefore, in the Provinces of Ontario and Quebec, has been introduced by express statutes, but in the former, by the 40 Geo. 3, c. l,it was brought down to a more recent date than in the latter. The authority for the introduction of the English criminal laws into Nova Scotia and New Brunswick has been already shewn. "With regard to the Province of Manitoba, Imperial legislation has from time to time taken place, with, how- ever, very little practical effect. This legislation is com- prised in three statutes, the first of which was passed in 1803, the second in 1821, and the last in 1850. The first was the 43 G-eo. 3, c. 138, and it enacted that all offences committed within any of the Indian territories, or parts of America not within the limits of either of the Provin- ces of Lower or Upper Canada, or of any civil govern- ment of the United States of America, shall be and be deemed to be offences of the same nature, and shall be tried in the same manner, and subject to the same punish- ment as if the same had been committed within the Pro- vinces of Upper and Lower Canada. It also gave power to the Governor of Lower Canada to appoint persons to act as Justices in the Indian territories, for the purposes, ENGLISH LAWS IN FOBCE. 5 not of trying, but merely of hearing and committing for trial in Lower Canada ; and the Governor of that Pro- vince, if the case seemed to require it, could order the trial to take place in Upper Canada. The second statute (1 & 2 Geo. 4, c. 66) extended the Act of 1803 to all the territories of the Hudson Bay Company. It conferred power on the Crown to appoint Justices of the Peace in those territories, in special terms, including the terri* tories of the Hudson Bay Company, with power to such Justices to take evidence in the country, to be used in the Courts of Upper and Lower Canada. It gave further authority to the Crown to issue commissions under the Great Seal, empowering Justices to hold Courts of Record for the trial of criminal offences, notwithstanding anything contained in the Hudson Bay Company's char- ter. The times and places for holding these Courts were to be determined by His Majesty ; but their power was not to extend to the trial of capital offences. The third in this series of statutes is'the 22 & 23 Yic. c. 26. This Act recites the main provisions of the 43 Geo. 3, and of the 1 & 2 Geo. 4, and empowers the Crown, either by com- mission or Order in Council, to authorize such justices as might be appointed to try, in a summary way, all crimes, misdemeanors and offences whatsoever, and to punish by fine or imprisonment, or both. In cases punishable by death, or in which, in the Justices' opinion, fine and imprisonment were inadequate to the offence, they might either try the offender in the ordinary way, or send him to Upper Canada to be tried there, under the Act of Geo. 4, or if they saw fit, to British Columbia, to be tried by any Court having cognizance of like offences committed there. This last mentioned Act, however, in the final section, is declared not to extend to the territories of the Hudson Bay Company. ' 6 CRIMINAL LAW OF CANADA By an Order in Council following the 33 Yic. 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 this Pro- vince (a). Under the latter statute, the Imperial enact- ments above referred to, have been superseded as to the Province of 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. By s. 2, 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. This statute assi- milates the procedure in criminal cases to ihat existing in the other Provinces and obviates the necessity for any recourse to the Imperial statutes before mentioned. Indeed it would seem that under this statute, and the British North America Act, 1867, the officers and courts in Manitoba have now exclusive jurisdiction over all offences committed therein. It may be observed, before. proceeding to treat of the representative assemblies existing in the several Provin- ces of the Dominion, that the Crown has power to create a local Legislative Assembly in a colony, whether con- quered, ceded, or settled. (6) In 1791, by the Imperial Act 31 Geo. 3, c. 31, the for- mer Province of Quebec was divided into the two Pro- fa) See charge of Mr. Justice Johnson to the Grand Jury, Spring Assizes, 1871 { b) Phillips v. Eyre, L. B. 7 Q. B. 1. (Ex. Chr.) ENGLISH LAWS IN FOftCE. 7 vinces of Upper and Lower Canada, a separate Constitu- tion and independent powers of legislation were granted to each, this power of legislation being vested in the Leg- islative Council and Assembly of each Province, and requiring the assent of the Crown, expressed through the Governor, to any measure becoming law. Prior to the passing of this statute, the legislative power was vested in the G-overnOr and Council. In 1840, the 3 & 4 Vic. c. 35, made provision for the re-union of the Provin- ces of Upper and Lower Canada, and repealed the 31 G-eo. 3, c. 31, as to the grant of a separate Constitution and legislative powers. It enacted that there should be within the Province of Canada one Legislative Council and one Assembly, to be called, " The Legislative Coun- cil and Assembly of Canada," and provided that Her Majesty should have power, by and with the advice and consent of the said Legislative Council and Assembly, to make laws for the peace, welfare, and good government of Canada, subject to certain limitations contained in the Act. From 1840 till the 1st of July, 1867, the right of legislation in the Provinces of Ontario and Quebec was founded on the Act of Union. On the 2nd of October, 1758, a Legislative General Assembly, having indepen- dent powers of legislation, was granted to the Province of Nova Scotia, of which New Brunswick then formed a part, {a) and on the 16th of August, 1784, a separate and distinct Legislative General Assembly, with the like rights, privileges and powers as had been before confer- red on and enjoyed by the House of Assembly in Nova Scotia was granted to New Brunswick, (b) By the British North America Act, 1867, the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, la) Sill t. Weldcm, 3 Kerr, 43 per Ohipman, C. J. {b) lb, 44, per Chipman, C. J. 8. CRIMINAL LAW OF CANADA. were federally united into one Dominion, under the Crown of the United Kingdom of Great Britain and Ire- land, with a Constitution, to a great extent awritten one, (a) and similar in principle to that of England. By this Act power is given to the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Cana- da. The right to legislate as to the criminal law, includ- ing also the procedure in criminal matters, is vested in the Dominion Parliament, to the exclusion of the Local Legislatures of the several Provinces. The Act has, in this respect, entirely changed the Legislative Constitu- tion of each Province ; the Imperial Parliament has in- tervened, and, by virtue of its supreme legislative power, has taken from the subordinate legislative bodies of the Provinces the plenary powers to make laws which they formerly possessed. "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 re- strictions placed on them, their enactments are no more binding than rules or regulations promulgated by any other unauthorized body, (b) When, however, the Local Legislatures have power to legislate on any particular subject, it does not follow that they have no power to make any violation of their provisions in relation thereto a crime even in the technical sense of the term. No doubt it was intended that the Local Legislatures should not only have the power, but the exclusive right, to legislate on some subjects; and they have power to (a) Reg. v. Chandler, 1 Hannay, 54, yet Ritchie, C. J. (6) lb. 557, per Ritchie, C. J. ENGLISH LAWS IN FORCE. 9-' legislate so as to impose punishment, by way of fine or imprisonment, for enforcing the laws they make in rela- tion to those subjects, although such legislation makes the act prohibited a crime, (a) In this case it was held that under s. 92, Nos. 9 and 16, of the British North America Act, 1867, 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 of legislation on this subject, they had also power under No. 15 to enact that any per- son 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 con- .viction, be imprisoned in the common gaol for three months, and that such enactment was not opposed to s. 91, No. 27, by which the criminal law is assigned exclus- ively to the Dominion Parliament. (6) But under No. 15,. the punishment imposed by the Local Legislatures cannot be cumulative. It must be either fine, penalty, or impri- sonment, and it cannot be both fine and imprisonment, (c) In another case' it has been held that, notwithstanding this section, an indictment signed by an advocate prose- cuting for the crown, and as representing the Attorney- Greneral for the Province of Quebec, and n'ot as represent- ing the Minister of Justice for the Dominion, is valid, (d) By the 33 Vic. c. 3, a Constitution similar to that exist- ing in the other Provinces was granted to Manitoba, a Legislative Council and Assembly were created, and cer- tain powers of legislation conferred on them. While on the subject of our new Constitution and the- (a) Beg. v. Bowrdman, 30 XT. C. Q. B. 555-6, per Bichards, 0. J. (6) lb. 553. « lc) Ex parte Papin, 8 C. L. J. N. 122. (d) Beg. v. Downey, 13 L. C. J. 193 ; see also Beg. v. , Beno and Anderson, 4 U. C P. R. 281 ; Clemens, q. t. v. Bemer, 7 C. L. J. N. S. J.26. Beg. v. Pattee*. 5 V. C. P. K. 292. 10 CRIMINAL LAW OF CANADA. British North America Act, 1867, we may be permitted to treat of the powers which this Act confers on the Par- liament of Canada to imprison for contempt, this being, in fact, a consideration of the English parliamentary law prevailing in the colonies. Under s. 18, taken in con- nection with the 31 Vic. c. 23, the Senate, House of Com- mons, and the members thereof respectively, now hold, exercise and enjoy the like privileges, immunities and powers enjoyed by the Commons House of Parliament of the United Kingdom of G-reat Britain and Ireland at the time of the passing of the Act, including the power of imprisoning for contempt (a) : and incident to this power there is vested in the Dominion Parliament the right of judging for itself what constitutes a contempt, and of ordering the commitment to prison of persons adjudged by the House to be guilty of a contempt and breach of privilege, by a general warrant, stating simply that a contempt has been committed, without setting forth the ■specific grounds of the commitment. ,(b) The power of imprisoning for contempt inherent in the House of Commons in England, by virtue of the law and custom of Parliament, can only be conferred on co- lonial Assemblies by express grant, (c) As, therefore, no such grant has been made, to the Local Legislatures of the several Provinces of the Dominion, they do not possess the powers enjoyed in this respect by the Senate and House of Commons. There is no power to imprison for contempt annexed as a necessary incident essential to the existence of a -Colonial House of Assembly, by the grant of a Constitu- tion and independent legislative powers, nor is this (a) See The Speaker of the Legislative Assembly of Victoria, v. Glass, L. R. 3 F. C. App. 560. mn. (c) lb ; Doyle v. Falconer, L. R. 1 P. C. App. 328. ENGLISH LAWS IN FORCE. 11 power conferred as a legal incident or attribute by law •annexed to the grant of the Assembly, nor does it exist by analogy to the law and custom of Parliament as part of the common law inherent in the two Houses of Par- liament in the United Kingdom, or to a Court of Justice, which is a Court of Eecord, a Colonial House of Assem- bly having no judicial functions, (a) Nor does it make any difference whether the contempt is committed in the face of the House, while sitting, or out of it, by a member or by a stranger. In Doyle v. Falconer, a member while addressing the House was called to order by the Speaker ; he then used contemptu- ous language to the latter while in the execution of his -office, and after being formally adjudged guilty of con- tempt by the House, he was committed by the Speaker's warrant : Held that the commitment was illegal. But a power to imprison for contempt must be distinguished from the power to preserve order and remove obstruc- tions in the House. The latter power is a necessary in- cident to the creation of a Colonial Legislative Assem- bly (6) ; and although the Local Legislatures in the several Provinces of the Dominion have no power to imprison by way of punishing a contempt, yet if a member of any of these Houses is guilty of disorderly conduct in the House while sitting, and it is necessary for the preserva- tion of order that he should be removed, he may be ex- cluded for a time, or even expelled. The law would .sanction the use of that degree of force which might be necessary to remove the person offending from the House, and to keep him excluded. The same rule would ripply a fortiori to obstructions caused by any person not (a) Doyle v. Falconer, L. K. 1 P. 0. App. 328 ; Kidley v. Carson. 4 Moore's P. C. cases, 63 : Fenton v. Hampton, 11 Moore's P. C. oases, 347 ; Hill v. Wel- ■don, 3 Kerr, 1 et seq., overruling, Be Tracey, S. L. C. A. 479 ; McNab v. Bid- well, Draper, 152 ; Beaumont v. Barrett, 1 Moore's P. C. oases, 59. (6) Doyle v. Falconer, L. K. 1 P. 0. App. 328. 12 CRIMINAL LAW OF CANADA. a jnember ; and whenever the violation of order amounts to a breach of the peace or other legal offence, recourse may be had to the ordinary tribunals, (a) The difference between the Dominion and respective Local Legislatures, with regard to the power of impris- oning for contempt, arises from the fact that the Imperial Parliament has, by s. 18 of the Act above referred to, empowered the former to define their privileges and immunities, while no such authority has been conferred on the latter. "When the Imperial authorities grant to a colony a Representative Assembly, with independent powers of legislation and the privilege of self-government, they cannot recall or abridge the rights once conferred (6) : and the colonists will thereafter enjoy the right to legislate for themselves, subject in certain cases to the control of the Imperial Parliament. But a Colonial Act, repugnant to an Imperial statute or order made, by authority of such statute, applicable to the colony by express words or necessary intendment, is void so faT as such repug- nancy extends, and no farther, (c) It has been held in several cases that the Imperial Parliament still retains power to enact laws binding upon the colonies (d) : and such laws are in force in the colonies, in so far as it was the intention of Parliament that these statutes should extend to them (e) : and as ceded colonies, any positive enactment of the mother country, or any mere act or regulation of the Queen, in the exer- cise of her royal prerogative, would have the force of law (a) Bogle v. Falconer, L.E.1P. C. App. 340, per Sir J. W. Colvile lb) Phillips v. Eyre, L. E. 6 Q. B. 19, per WUles, J. (Ex. Chr.) (e) lb. , 20 per WUles, J..; and see Imperial Stat. 28 & 29 Vie. e 63. b 2 • Ren v. Sherman, 17 U. C. C. P., 166. ' ' ^' (d) Smith v. McGowan, 11 U. C. Q. B. 399; Gabriel v. Derbishwe, 1 XJ. C. O. V. 422.. (e) Jouett v. JJockwood, 2 Kerr, 683, per Ghyprtum, C. J. ; and see Imp. Stat. 28 & 29 Vic. c. 63. ENGLISH LAWS IN FOECE. 13 here, (a) The comity of nations, however, prevails to some extent between Colonial Parliaments and the tribu- nals of the mother country, and when the law of a colony conflicts with that of England in respect of acts done within the jurisdiction of the colony, if an action does not he for a wrongful act in the colony, none can be maintained in England, {b) It seems there are some subjects pertaining to the in- terests of the Empire at large, as well as our own Domin- ion, on which a right of legislation is reserved to the Im- perial Parliament. Among these the foreign relations of the colonies may certainly be included. In giving judgment in Reg. v. Schram, (c) after stating that by the Union Act, Imp. Stat. 3 & 4 Yic. c. 35, power was given to the Local Legislatures to pass laws for the peace, welfare, and good government of the Province of Canada, such laws not being repugnant to that Act, or to such parts of 31 Geo. 3, c. 31, as were not repealed, or to any Act of the Imperial Parliament, made, or to be made, and not thereby repealed, which did or should by express enactment, or by necessary intendment, extend to the Provinces of Upper or Lower Canada, or either of them, Richards, C. J., said : " The very words of the statute 3 & 4 Yic. c. 35, seem to imply that the power to legislate on some matters was and is reserved to the Im- perial Parliament, though this Province may be affected by such legislation. As long as it is admitted that the Home Government, by whom the supreme power of the empire is exercised, is the proper channel through which all our relations and intercourse with foreign govern- ments are to be carried on, the power to pass laws to bind the whole nation, so far as regards those relations, (a) Doe dem Anderson v. Todd, 2 U. C. Q. B. 83-4 ; per Robinson, 0. J. (6 Phillips v. Eyre, L. K. 4 Q. B. 225. (c)14U. C. C. P.. 322. 14 CRIMINAL LAW OF CANADA. must rest with the Imperial Parliament. Indepen- dently of the doctrine that our Local Legislature can only exercise such powers as are specially conferred upon it under the statutes passed by the Imperial Par- liament, there are other points of view in which the question may be considered. Though possessing a do- mestic Legislature, we form part of a vast empire having other colonies exercising similar legislative powers to our own. If any one colony by passing laws, or refusing to pass laws, produced a state of things which created difficulty with a foreign state, the whole nation might be involved in a calamitous war from the imprudence or recklessness of an unimportant colony." The question, in this case was whether the Imp. Stat. 59 G-eo. 3, c. 69 could be held to apply here, and the learned Judge went on to say : " Considered in the above view, it appears to me that the statute which we are discussing relates to the conduct of citizens of the empire towards foreign states and peoples, and is on a subject which must be disposed of and legislated upon by the Imperial Parlia- ment, as representing the supreme legislative power of the nation, and as to which it is necessary that all the subjects of the Crown should alike be bound." (a) In this case the defendants were convicted of a misdemeanor under the above statute, 59 Geo. 3, c. 69, for procuring and endeavouring to procure enlistments in this country for the army of the United States, and upon motion for a new trial it was held that although at the time of the passing of the statute we had a Local Parliament and separate powers of legislation, yet it was in force in this Province, and the conviction was sustained and the statute held to apply here, (b) If, after the grant of a Constitution and independent (o) 14 XT. C. C. P. 322. (6) lb 318 ; see also Beg. v. Sherman, 17 U. C. C. P, 166. ENGLISH LAWS IN FOECE. 15 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, (a) The reason is that none of the provisions of the repealing statute,. which are substituted for the repealed statute, extend to the colony (b) : Imperial statutes not extending thereto,, unless expressly named, or the statute is of such univer- sal application as manifestly to apply therein, (c) In the early settlement of a colony, when the Local Legislature has been just called into existence, and has its attention engrossed by the immediate wants of the members of the infant community in their new situation, the courts of judicature would naturally look for guid- ance, in deciding upon the claims of litigants, to the general laws of the mother country, and would exercise greater latitude in the adoption of them than they would be entitled to do as their Local Legislature, in the grad- ual development of its powers, assumed its proper posi- tion. Eve*ry year should render the courts more cau- tious in the adoption of laws that had never been previ- ously introduced into the colony (d) : and in accordance with these principles it was held in this case that in- creasing lapse of time .since the settlement of the colony should render courts more cautious in recognizing En- glish statutes' which have not been previously intro- duced, (e) It is suggested as even worthy of grave con- sideration whether, after the existence of an independ- ent legislature for nearly a century, the adoption of English statutes is not rather the province of the legisla- ture than of the courts. (J) (a) Dunne v. O'ReiUy, 11 U. C. C. P. 404 ; Reg. v. Boblin; 21 U. C. Q. B. 352 ;. Kelly v. Jones, 2 Allen, 473. (6) Kerr v. Burns, 4 Allen, 609 ; following James v. McLean, 3 Allen, 164. (c) See Imp. Stat. 28 & 29 Vic. c. 63. (d) Uniacke v. Dickson, 1 James, 291 ; per Haliburton, C. J. (e) lb. 287. (/) lb. 291, per ffaliburton, G. 3. 16 CRIMINAL LAW OF CANADA. There is no precise or defined rule, nor any direct de- cision as to what Imperial statutes extend to the colo- nies. This must of necessity be left open for decision in each particular colony and case by the courts established in those colonies, subject to an appeal to Her Majesty in Privy Council, (a) The courts are not, in deciding, to pro- ceed upon any arbitrary exercise of their will, but upon the best views which they can take of arguments which cannot in their nature lead to any clear and incontestible conclusions, and they are to so decide, subject to the re- vision and control of the Queen in Council, and subject also to any express provision which the Legislature of the mother country or the colony may think fit to make, (b) The ultimate and final forum to decide as to what particular laws are in force is the Privy Council, (c) When the law of England is introduced into a colony by some positive enactment of the mother country, or, as may be done in the case of a conquered country, im- posed by the mere act or regulation of the Queen in the exercise of her royal prerogative, the extent of its intro- duction must depend upon the terms of the Act or regu- lation introducing it (d): but the 32 Ceo. 3, c. 1, introduc- ing the civil law of England into the Province of On- tario does not place its introduction on a footing materi- ally different, as regards extent of introduction, from what was the effect of the proclamation of the 7th Oc- tober, 1763, in those territories to which it extended, or from the footing on which the laws of England stand in those colonies in which they are merely assumed to be in force on the principles of the common law, by (a) Uniacke v. Dickson, 1 James, 299, per Hill, J. ; Ex parte Rousse, S L C A. 322 : per SeweU, C. J. ; Dillingham v. Wilson, 6 U. C. Q. B., 0. S. 86 ner Sherwood, J. " ft) Doedem Anderson, v. Todd, 2 U. C. Q. B. 87-8, per Robinson, C. J. (c) lb. Uniacke v. Dickson, 1 James, 287. Id) Doe-dem Anderson v. Todd, 2 IT. C. Q. B. 83 ; per Robinson C J ENGLISH LAWS IN FORCE. 17 reason of such colonies having been first inhabited and planted by British subjects, fa) It would seem, therefore, we may reasonably assume the 14 Geo. 3, c. 83, and the 40 G-eo. 3, c. 1, do not introduce the English criminal law to any other or greater extent tljan it was intro- duced, by the proclamation of 1763, into the Province of Quebec or than the English civil law was introduced by the 32 Geo. 3, c. 1, into the Province of Ontario ; and that as to extent of introduction there is no material difference between colonies in which it is held to be in force on common law principles and those in which it is introduced by v an express statute or pro- clamation. In eacli case only such laws as are of general and universal application, and adapted to the circum- stances of the colony, can be held to be in force, (b) We may therefore conclude that the several Provinces of the Dominion stand on pretty much the same footing in re- gard to the extent of the introduction of the English criminal laws. There seems to be a distinction between the common and the 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 inconsistent 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 to and necessary for them. As respects the common law, the exclusion forms the excep- tion, whereas as to the statute law the reception forms the exception, (c) It must, therefore, be quite clear that an English statute is applicable and necessary in a colony before it is held to be in force, (d) In this case it was ac- ta) lb. 86 ; per Bobmson, 0. J. (6) lb. 86 ; per JSoUnson, C. J. (c) Uniaeke v. Dickson, 1 James, 289, per Halliburton, C. 3. \d) lb. 289 per Halliburton, C. J. B 18 CRIMINAL LAW OF CANADA. cordingly held that the whole of the English common law will be recognized as in force, excepting such parts as are obviously inconsistent with the circumstances of the country, while on the other hand none of the statute law will be received except such parts as are obviously applicable and necessary, (a) The learned Chief Justice goes on to remark that this distinction rests in the very nature of things, and is de- rived from the origin of the two codes. The common law has its foundation in those general and immutable principles of justice which should regulate the inter- course of men with men wherever they reside. The statute law emanates from the wisdom of the legislature of the day, varies with varying circumstances, and Con- sists of enactments which may be beneficial at one time and injurious at another — which might advance the in- terests of one community and prove ruinous to those who were differently situated. (6) Whether the several Provinces of the Dominion be considered as acquired by occupancy or cession, it is quite clear, from numerous authorities, that only such laws as are applicable and necessary to the circumstances and condition of the colonies have been introduced, (c) Local statutes adapted solely to England, or such as have been passed upon grounds or for reasons peculiar to the mother country, do not apply here, (d) English statutes of general and universal application, regulating the ordinary affairs of life, apply to the colo- la) lb. 287 6) lb. 290. (c) Shea v. Choat, 2 U. C. Q. B. 211 ; Wilson v. Jones, 1 Allen, 658 ; Kerr v BurnSfi Allen, 605 ; Smyth v. McDonald, 1 Oldright, 274 ; Leith v. Willis, 5 V C. Q. B. 0. S. 102-3 ; per Bobinson, C. J. ; Dillingham v. Wilson, 6 U. C. Q, B. O. S. 85 ; Uniacke v. Dickson, 1 James, 287 ; Doe dem. Anderson v. Todd 2 TJ. C. Q. B. 82. (d) Beg. ▼■ Bow, 14 U. C. C. P. 307 ; Ex parte Bousse, S. L. C. A. 321 ; Doe dem. Anderson v Todd, supra, Kamnagh v. Phelon, 1 Kerr, 472-6; Dot dem. Hannington v. McFadden, Berton* 153. ENGLISH LAWS IN FORCE. 19 nies, and in some cases, even where an act is only im- pliedly made an offence in England. There are several cases in -which summary convictions have been upheld in Ontario upon English statutes, which are not other- wise in force than as they were considered to have been introduced under our general adoption of the criminal law, although the act done was not otherwise made an offence in England than by its being positively pro- hibited by statute and a penalty imposed upon convic- tion before the magistrates, with imprisonment in case of the penalty not being paid, (a) And the learned Chief Justice further observes, " I by no means mean to say that all such Acts have been held to form part of our criminal law, for there are cases in which reason has pointed out obvious grounds for exception, as in the in- stance of particular regulations made for the method of carrying on certain manufactures. But where acts have been prohibited under a penalty, from their tendency to lead to vice and immorality, as in the instance of Sab- bath breaking and gambling, the English statutes re- specting them, which were in force in 1792, have been treated as being in force here. And our statute, 11 Geo. 4, c. 1, was passed to obviate the practical inconvenience we were under in enforcing such Acts, by reason of the penalty, or a portion of it, being in many cases appropri- ated to the poor of the parish, or in some other manner not exactly applicable to the existing state of things here. (6) It was held in this case that, notwithstanding the 19 Yic. c. 49, passed in this Province, the 12 Geo. 2, c. 28, as to lotteries, is in force here ; first, because it comes within our adoption of the criminal law of England as it stood in 1792, and next, because this statute and other la) Gronyn v. Widder, 16 U. C. Q.B. 361, per Robinson, C. J. (6) Cronyn y. Widder, 16 TT. C. Q. B. 361, per Robinson, C. J. 20 CRIMINAL LAW OF CANADA. statutes of the same nature, and resting on the same foot- ing, have been treated in our courts as being in force, (a) By the 14 Geo. 3, c. 83, the British Parliament clearly designed to give to Canada the criminal law of England as to those objects and in those matters for which no special provision had before been made by Parliament, but it had no intended reference to, nor did it introduce, Acts of Parliament which, from their very terms, already were as much in force in the colonies as in England, and which consequently required no introduction at that period, (b) This statute introduced only that portion of the criminal law of England which was of universal application, and not such parts as were merely munici- pal and of local importance (c) : but it was introduced in toto in law as well as in practice, (d) The 40 Geo. 3, c. 1, did not apply to or introduce Acts which were already in force in the Province of Ontario, (e) As somewhat illustrating the principles already ex- plained, we now proceed to refer to cases in which par- ticular criminal statutes have been held to be in force, giving, as far as possible, the reason upon which the decision in each case proceeded. The statute 32 Henry 8, c. 9, which prohibits the buy- ing of disputed titles, is in force in Ontario, as it consti- tutes part of the criminal law of England adopted by the 40 Geo. 3, c. 1 (/). In the case of Shea v. Choat (g), it was [a) lb. 356-361 ; see also as to lotteries and the 12 Geo. 2, c. 28 : Corby v. Mc , Daniel, 16 U. C. Q. B. 378 ; MarshaM v. Piatt, 8 U. C. C. P. 189 : Lloyd, v Clark, 11 TJ. C. C. P. 250, per Draper, C. J. ; Mewburn v. Street, 21 TJ. C B 306-498. ' (6) Bank of Upper Canada v. Bethune, 4 TJ. C. Q. B. O. S. 171 per Robinson, C. J. ; see also Bank of Montreal v. Bethune, 4 U. C. Q. B. O. S. 193. If) Ex parte Rousse, S. L, C. A. 321. id) Notman v. Beg. 13 L. C. J. 257 per Badgley. (e) Bank of Upper Canada v. Bethune, 4 TJ. C. Q. B. O. S. 171-2, per Robin- son, O. J. (/) Bcdsley q. t. v. Cahill, 2 U, C. Q. B. 320 ; see also Baldwin q. t v Hen- derson, 3 TJ. C. Q. B. 287 ; Benns, q. t. v. Eddie, 2 TJ. C. Q. B. 286 : Aubrev a 1. v. Smith, 7TJ. C. Q. B. 213; Mag, q. t. v. Dettrick, 5 U. C. Q. B O. S 77 • Boss, q. t. v. Meyers, 9 U. C. Q. B. 284 ; McKenzie v. Miller, 6 TJ. C. O. B o' S. 459 : Smith v. ffaU, 25 TJ. C. Q. B. 554. ^ " iff) 2 TJ. C. Q. B. 211. ENGLISH LAWS IN FOECE. 21 held that the statute 5 Eliz., c. 4, is not in force in On- tario, but the statute 20 Geo. 2, c. 19, is, though both statutes are of a date long anterior to the introduction of the English law in this Province. In giving judgment in this case the learned Chief Justice Robinson says, in reference to the 5 Eliz. c. 4, that " it cannot possibly ad- mit 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 any- where, from the general nature of their provisions, but that is not sufficient to make such a statute part of our law, when the main object and tenor of it is wholly for- eign to the nature of our institutions, and is therefore in- capable of being carried substantially and as a whole into execution, (a) The 28 G-eo. 3, c. 49, s. 1, as to perjury, is local in its character, and thereiore is not in force here, (b) In Reg. v. Mercer, (c) it was held that the 5 & 6 Edw. 6, c. 16, against buying and selling offices, is in force in this country, under the 40 Geo. 3, c. 1, as part oi the criminal law of England. The 49 Greo. 3, c. 126, applies here and expressly extends the 5 & 6 Edw. 6, c. 16, to the colonies, or at least such of its provisions as are in their nature applicable, (d) Semble, the 3 Edw. 1, c. 26, is in force here, (e) The 1W.&M. c. 18, s. 18, is in force here, notwith- standing the Con. Stats. Can. c. 92, s. 18, and a person offending against the former statute may be punished. (/") The 32 Geo. 3, c. 1, introducing the law of England as to property and civil rights into the Province of Ontario, (a) lb. 221. (6) Bey. v. Bow, 14 U. C. C. P. 307. , \c) 17 U. C. Q. B. 602. (d) lb. ; see also Beg. v. Moodie, 20 U. C. Q. B. 389; Foot v. Bullock, 4 U. C. Q. B. 480. (e) Askin v. London District Council, 1 U. C. Q. B. 292. ( /) Beid v. Inglis. 12 U. C. C. P. 195 ; per Draper, C. J. 22 CRIMINAL LAW OF CANADA. included the law generally which related to marriage, that is, the common and statute law of England applica- ble to the state of things existing in this colony at the time the Act was passed. The stat. 26 Geo, 2, c. 33, being in force in England when our stat. 32 G-eo. 3, 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 11th clause of 26 G-eo. 2, c. 33, is not in force in this country, (a) The 8 Henry 6, c. 9, 6 Henry 8, c. 9, and 8 Henry 4, c. 9, and 21 James 1, c. 15, as to forcible entry, are in force here (b) : so the 8 & 9 fm. 3, c. 27 (c) : so the 33 Henry 8, c. 20 (d) : so the Mutiny Act, 25 Yic. c. 5, s. 72 (e) : so by the 14 Geo. 3, c. 83, the 9 Geo. 1, c. 19, and 6 Geo. 2, c. 35, which impose certain penalties on persons selling foreign lottery tickets; have been made to form part of the law of Quebec. (/) (a) Beg. v. Roblin, 21 TJ. C. Q. B. 352-5 ; Hodgins v. McNeil, 9 Grant, 305 ; 9 U. C. L. J. 125; Reg, v. Seeker, 14 TJ. C. Q. B. 604 ; but see Beg. v. Bell, 15 TJ. U. C.Q. B. 287. (6) Boulton v. Fitzgerald, 1 TJ.- 0. Q. B. 343 ; Bex. v. McGreavy, 5 TJ. C. Q. B. 0. S. 620. (c) Wraggv. Jarvis, 4 U. C. Q. B. O. S. 317. (d) Doe dem. Gillespie v. Wixon, 5 TJ. C. Q. B. 132. (e) Beg. v. Dawes, 22 U. C. Q. B. 333. (/) Ex forte Mousse, S. L. C. A. 321. See further on the general subject Hesketh v. Ward, 17 TJ. C. C. P. 667; Mercer v. Hewston, 9 U. C..C. P. 349; Heartly-r. Beams, 6 TJ. C. Q. B. O. S. 452; Torrance v. Smith, 3 TJ. C. C. P. 411 ; James v. McLean, 3 Allen, 164 ; Marks v. ffihw, 3 Allen, 170-217 ; ex parte Busttn, 2 Allen, 211 ; Fish v. Doyle Draper, 340; Pwrdy becamejncorporated into the national compact, (d) 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 be adopted, (e) The Treaty must be construed in a liberal and just spirit; not labouring with legal astuteness to find flaws or doubtful meanings in its words, or in those of the legal forms re- fa) Beg. v. Morton; 19 U. CV C. P. 18 per Hagarty, 3. * (5) Beg. v. Reno and Anderson, 4 U. 0. P. E. 299, per Draper, C. J. ■ the Chesapeake case, 44, per Ritchie, 3. (e) lb. 44, per Ritchie, 3. Id) Reg. v. Rennet H. Young; the St. Alban's Raid, 469, pet Smith, 3. (e) Be Warner 1 TJ. 0. L. J. W. S. 18, per Hagarty, 3. EXTRADITION. 33 quired for carrying it into effect. Its avowed object is to allow each country to bring to trial all prisoners charged with the expressed offences, and it is based on the as- sumption 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 pro- visions. ( a) "We should look to it for an indication of what was probably meant by anything that may seem ambiguous in the language of the statoite. (b) The Treaty applies to all persons being subjects of both nations, and as well slaves as freemen, (c) The words of the 31 Vic, c. 94, are large enough to embrace all persons, subjects, denizens, or aliens, who have com- mitted the crimes enumerated in the United States, and who are found in this Province ; and a British subject committing one of the crimes enumerated in the Treaty, within the jurisdiction of the United States, and after- wards fleeing to Canada, is subject to the provisions of the Treaty, and the Statutes which provide for the sur- render of "all persons" who, being charged, etc. (d) So a person convicted of forgery, or uttering forged paper, in the United States, who escapes to Canada after verdict, but before judgment, is liable to be surrendered, although, technically speaking, after judgment, or verdict of guilty, a man is incorrectly spoken of as "charged with a crime" in the language of the Statute, (e) But political offenders have always been held to be excluded from any obliga- tion of the country in which they take refuge to deliver them up, whether such delivery is claimed to be due (a) Re B. O. Bwley, 1 U. 0. L. J. N. S. 49-50, per Eagurty, J. ; and see Beg. v. John Paxton, 10 L. C. J., 216, per Drummond, J. . , n jfiy (6) Re Anderson, 20 IT. C. Q. B. 160, per Robinson, C. J. // L^rJ b) Re Anderson, 20 IT. C. Q. B. 160, per Robinson, C. J. // L^rJ e) Re Anderson, 20 IT. C. Q. B. 124, 11 U C. C. P. 1. / (d) Re Bennet G. Burley, 1U. C. L. J. I" (e) Re Warner, 1 V. C. L. J. N. S. 16. 34 CRIMINAL LAW OF CANADA. under friendly relationship, or under treaty, unless, in the latter case, the treaty expressly includes them, (a) The Treaty, in express terms, includes seven different offences — namely, murder, assault with intent to commit murder, piracy, arson, robbery, forgery, and the utterance of forged paper. These offences are not political, but social, though the Governments of G-reat Britain and the United States have made national laws for each respec- tively, thereby giving them a municipal legal character, (b) The stipulations of the Treaty, with regard to the de- finitions 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, (c) The Governments of these two countries, in making the Treaty, were dealing with each other upon the foot- ing that each had at that time recognised laws applicable to the offences enumerated, and that these laws would not, in all cases, be the same in both countries. The agreement to surrender to each other criminals of certain classes was based upon the fact of the persons being cri- minals 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 apprehension and commit- ment for trial if the crime or offence had been there com- mitted ; (d) and in this case it was held that, as slavery was tolerated in the United States, and the apprehension of a fugitive slave was authorised by law, such slave could not lawfully resist apprehension in order to gain his free- dom, though our law conferred it upon every man, and, consequently, that a slave, so resisting, might be guilty [a) Beg. v. Sennet B. Young ; the St. Alban's Said, 470, per Smith, J. (b) Beg. v. Bervnet H. Young, 9 L. C. J., 44, perBadgtey, J. Ic) The St. Albania Raid, 469, per Smith, J. \d) Be Anderson, 20, 17. 0. Q. B. 190, per Burns, J. EXTRADITION. 35 of murder, and not necessarily of manslaughter, on the ground that his resistance was lawful, (a) So far as we in Canada are concerned, the Treaty and Statutes are to be construed according to our laws in re- gard to the offences comprised within their provisions. In other words, the offence must be one of those enume- rated according to our law, and the notions we entertain as to the ingredients necessary to constitute it. (b) But our law is not absolutely to govern as to the par- ticular 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 in- tentional killing by a slavaof his master, however sudden, should be held to be murder, without regard to any cir- cumstances of provocation, or of any necessity of self- defence against mortal or cruel injury, then a fugitive slave who, according to the evidence, could not be found guilty of murder without applying such a principle to the case, could not legally be surrendered by the Treaty. It cannot, 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 conntry. cannot be given up to justice because he murdered a man in that State who was at the time attempting to arrest him, fa) Re Anderien, 20 JJ. C. Q. B. 190, per Bwrns, J. ii) Re Truetwn B. Smith, i U. C. P. R. 215. 36 CRIMINAL LAW OF CANADA. Tinder the authority of the law, in order to take him be- fore 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 know- ledge of the latter that the purpose for which it was de- sired to arrest him was not contrary to the law of the country, or to the fact (if it should be so) that there was no apparent necessity to inflict death in order to escape, (a) 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 Anderson's case (b). 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 30 miles from his home, he met with D., a planter, working in the field with his negroes, who told A. that as he had not a pass he could not allow him to proceed ; but that he must remain until after dinner, when he, D., would go with him to the adjoining 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 num- ber, 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 after- wards 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 20 miles from his (a) Re Anderson, 20, TJ. C. Q. B. 170-1. per RoUnsmi, 0. J. (6) 20 U. C. Q. B. 124. EXTRADITION. 37 home is declared a runaway, and a reward is given to whosoever 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 evidence returned upon a certiorari. It was contended that as A. acted only in defence of his liberty, and upon a desire to gain bis freedom, there was no evi- dence upon which to found a charge of murder, if the alleged offence had been committed here, and that he could not be demanded by the Treaty : — Held that under the Treaty and our statute Con. Stat. Can., c. 89, the prisoner was liable to be surrendered. In Re Beebe, (a) the Court held that burglary is not an offence within the meaning of the Treaty, or the statutes passed to give effect to tbe Treaty. In another case, a prisoner" was arrested in Ontario for having committed in the United States the crime of for- gery, by i'orging, coining, counterfeiting, and making spurious silver coin, etc. : — 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. (b) In ex parte E. S. Lam- irande, (c) the Court 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. In Reg. v. Gould, («Z) Hagarty, J., at page 1 62, says, (a) 3 IT. C. P. R. 273. (6) Re Trueman B. Smith, 4 V. C. P. R 215. (c) 10 L. C. J. 280. (d) 20 TJ. C. C. P. 154. 38 CRIMINAL LAW OF CANADA. " The term ' forgery,' in the extradition treaty, means that which by universal acceptation it is understood to mean r namely, the making or altering a writing so as to make the writing or alteration purport to be the act of some other person which it is not." It seems piracy, as used in the Treaty, was in- tended to apply to piracy in its municipal accepta- tion, cognizable only by tribunals having jurisdic- tion 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 of na~ tions, 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 (a). When an act assumes an international character, and is sanctioned by the aggregate power and will of a na- tion 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 con- stitute a national or hostile act, must be taken together. (b) In accordance with these principles, it was la) The Chesapeake atse, 44-5. (b) Beg. v. Bennet H. Young ; the St. Alban's Baid, 454, per Smith, J. EXTRADITION. 39 held that the St. Alban's Eaid (the facts of which are given in the report), was a hostile expedition, authorized by a G-overnment entitled to claim belligerent rights, and should be disposed of by international law, founded on the rights of belligerents, and not by a neutral judge, (a) This principle was also recognized in Burley's case. (6) The counsel for the defence contended that the act charged was committed by the prisoner while engaged in an act of hostility duly authorised 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 circum- stances of the case, as shewn, as well on the part of the prosecution as of the defence, the accused, who took the property of a non-combatant citizen, by violence, from his person, was guilty of robbery, and liable to be surren- dered under the Treaty It was also very fully recog- nized in the most important case of " The Chesapeake " in New Brunswick. There evidence was produced to establish an authority from the G-overnment of the Con- federate States, as recognized belligerents, for the com- mission of the acts charged. Where the crime comes within the Treaty, it is imma- terial whether it is according to the . laws of the United States, only a misdemeanor and not a felony ; our concern is. to deal with these foreign offences in our own country 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 set- tled by their own system, with which, in that respect, we have nothing whatever to do. (c) a) Reg. v. Sennet H. Young ; the St. Alban's Said 454, per Smith, J. b) 1 U. C. L. J. N. S. 20 and 34. * \c) Ke B. B. Camell, 6 C. L. J. N. S., 227, 5 XI. C. P. E. 217. •40 CRIMINAL LAW OF CANADA. When application is made to a Magistrate for a warrant of arrest under the Treaty, his first consideration should be, whether the alleged offence is within the terms of the Treaty. But for the Treaty and the Statutes, the proceedings by a Magistrate, in respect of a crime com- mitted in the United States, by way of arresting or com- mitting 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; (a) and if the 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, (b) 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 in- terpretation should be adopted which is most in favour of the liberty of the accused ; and as manslaughter is not mentioned in the Treaty, the party should not be arrested and detained, (c) Nor does the last Act 31 Vic, c. 94, give extended powers in this respect, or any authority to commit, except for the purposes specified therein ; and if the evidence does not warrant this step, the accused must be discharged, (d) The Magistrates to whom application may be made for (a) [aj Re Anderson, 11 TJ. C. C. P. 52, 3 per Draper, C. J. 76. 68, per Hagarty, J. lb. 62-3, per RiclMrds, J. (d) Beg. v. Reno and Anderton, 4U. C. P. R. 295, per Draper, C. J. EXTRADITION. 41 the warrant of arrest are mentioned in the 31 Vic, c. 94, s. 1, as amended by the 33 Vic, c. 25. Any Judge of either of the Superior Courts has power to issue his war- rant and examine witnesses, or take evidence with a view to commitment for the purposes of extradition ; but the power is only to the Judges individually, and not to the Court, as such, (a) So a Eecorder has equal jurisdic- tion with the Judges of the Superior Courts in this respect, (b) 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 com- mitted in this country, neither the Treaty nor the Statute authorized an inquiry for the purpose of committing the offender, when his offence arose in the United States. This case, however, was under the Imp. Stat. 6 & 7 Vic, c. 76, which only empowered any "Justice of the Peace or other persons" to act under the Treaty. The tendency of recent legislation has been to vest this power in the superior magistracy of the country; and if it is still held that they must have a judicial as well as terri- torial jurisdiction over the offence, the jurisdiction is nevertheless very much enlarged. The following case shews the authority for appointing a Magistrate to act under the Treaty, the powers which the appointment confers, and also that they are not affected by the circumstance that another Magistrate has, after hearing evidence, etc., discharged the fugitive : — The prisoners were arrested at Toronto, under a war- rant issued by one M., on an information laid by B., charging them with robbery, committed with violence, (a) Re Anderson, 11 U. C. C. P. 65, per Sichards, J. (b) Re B. G. Bwrhy, 1 XT. (J. L. J. N. S. 50, per John Wilson, J. 42 CRIMINAL LAW OF CANADA. in one of the United States of America, and stating the information to be 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 warrant of arrest described M. as Police Magistrate for all these Counties, naming them in full, and the warrant of commitment as Police Magistrate for the County of Essex, amongst other Counties ap- pointed under and by virtue of the above Act (but no commission empowering him to act was produced on this application, which was for the prisoners' discharge 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 pri- soners were committed to custody, to await the warrant of theGrovernor-Greneralfor their extradition to the United States. The prisoners, it seemed, had been previously arrested at Toronto on the same charge, and been dis- charged by the local Police Magistrate, after a lengthened investigation had before him. It was held that this discharge did not prevent another duly qualified officer from entertaining the charge against them, on the same or on fresh materials, and that the failure of one Magis- trate, from mistake or otherwise, to commit persons charged for extradition, cannot prevent the aciion of another : 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 EXTRADITION. 43 Ontario, and did not preclude M. from taking the infor- mation 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 cases, but did not apply to cases arising under the extradition laws. It was further held, that the appointment of M. might, well have been made under 28 Vic, c. 20, for any one or for all the Counties of Ontario, including Toronto, and his power made the same as a Police Magistrate in Cities, except as regarded purely municipal matters, and that this Act was continued by (Ont.) 31 Vic, c 17, s. 4 ; but that as nothing was suggested in any way impugning the possession by M. of the authority to act, the ordinary rule must prevail, and the warrant be treated as executed by an officer possessing such authority, (a) A warrant may be, in the first instance, issued in this country, and the proceedings under the Treaty and Sta- tutes initiated here ; (b) and it is not necessary that an original warrant should have been granted in the United States. The charge may be made within the jurisdiction of either of the high contracting parties, in case the evi- dence of criminality, " according to the laws of the place where the fugitive, or person so charged, should be found, would justify his apprehension and commitment for trial, if the crime or offence had been there committed, (c) It is not a condition precedent to the jurisdiction of the magistrate that the charge should be first laid in the United States, or that a requisition should be first made by the Government of the United States upon the Canadian Government, or that the Governor-General of (a) Beg. v. Morton, 19 TJ. C. C. P. 9. (bj Ee Anderson, 11 TJ. C. C. P. 53 per Draper, C. J. ; Reg. v. Morton, 1ft TJ. C. C. P. 19 per Hagwrty, J. (e) Ee B. B. Caldwell, 6 0. L J. N. S. 227, 5 TJ. C. P. E. 217. 44 CRIMINAL LAW OF CANADA. Canada should first issue his warrant requiring magis- trates to aid in the arrest of the fugitives, (a) The fore- going cases are directly contrary to the Chesapeake case on the above points. The latter, however, being under the Imp. Stat. 6 & 7 Yic, c. 76, which is different from the 31 Yic, c. 94, does not shake the authority of the others. In fact, Young's case directly overruled the Chesapeake on these points. In Young's case it was held that the Imp. Stat. 6 & 7 Yic, c. 76, not being in force in this country, (b) therefore the provision in this Statute that, before the arrest of any fugitive offender, a warrant shall issue under the hand and seal of the Governor-General, signifying that an application had been made by the United States for the delivery of such offender, and re- quiring all magistrates to govern themselves accordingly, does not apply here ; and that without such warrant, and in virtue of our own legislation on the subject, a Judge of the Superior Court for Quebec has jurisdiction over the several classes of offences enumerated in the Treaty. (c) Our statute was intended expressly to render the warrant of the Governor unnecessary for the above pur- poses ; and if the requisition of the United States were necessary before arresting a person who had committed •a crime, he might escape entirely. The delay would be so great, that the prisoner could in the meantime fly be- yond the reach of our laws, though there was clear and indisputable evidence of his guilt, (d) The magistrate need not consider in what part of the United States the offence was committed, so long as it appears to have been committed within the jurisdiction of their Government. These extradition offences do not fall within the estab- (a) Re B. G. Bwley, 1 U. C. L. J. N. S. 34; Beg. v. Ben.net H. Young, 9 L. C. J. 29. (6) Ante p. 26. (c) 9 L. C. J. 29 (d) Re B. G. Bwley, 1 U. C. L. J. N. S. 45, per Richards, J. EXTRADITION. 45 lished rule and practice that every offence against our law must be enquired of, tried, and determined within the County or place wherein it was committed, (a) , The Judge or Magistrate issuing the warrant for the apprehension of the offender, is the person before whom the evidence in support of the charge must afterwards be heard, and he must determine upon its sufficiency ; (b) but his decision is not binding on the Governor, and the latter may, notwithstanding, order the prisoner's dis- charge :' (c) 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 requisition of the United States for the surrender of the prisoner pursuant to the Treaty, (d) 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 de- cision may possibly be influenced by considerations which a court could not entertain, (e) And a queer e is added to this case whether it was not the intention of the 3l Yic, c. 94, to transfer to the Governor exclusively the consideration of all the evidence, that he might de- termine 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, (f) By the British North America Act, 1867, s. 132, the Parlia- ment and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada, or of any Province thereof, as pari of the British (a) Reg. v. Reno and Anderson, 4 XT. C. P. R. 292, per Draper, C. J. ff *-*ry (b) The Chesapeake case, 46 ; Re Anderson, 20 U. C. Q. B. 165-9, per Robin- ' son, C. J. (c) lb. 189, per Bwrns, J.; Reg. v. Reno and Anderson, 4 IT. C. P. R. 295 per Draper, C.J. d ) Re B. G. Bwrley, 1 U. C. L. J. N. S. 45 per Richards, C. J. • Re Anderson, 20 TJ. C. Q. B. 165-189 ; see 31 Vic. o. 94, s. 1. (e) Reg. v. Reno and Anderson, 4 U. C. P. R. 295, per Draper, C. J. (fj Reg. v. Bennet H. Young; the St. Alban's Raid, 167, per Smith, J. 46 CRIMINAL LAW OF CANADA. 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 Lieu- tenant-Governors of the several Provinces. The surrender, also, must be by the Governor-General, as representing the Government, (a) But, although he is thus the only authority in Canada for the extradition therefrom of fugitive criminals from the United States of America, yet his power to act at all is derived solely from the local law substituted for the Imperial act, by his Imperial Constituent, Her Majesty; and therefore his power is necessarily confined within the letter of the local law. Hence the Governor is powerless to act against such fugitives charged with the commission of any other of the formidable list of social offences not •enumerated in the Treaty, because these are not contained within the local law. And he is still more completely with- out power against fugitives for political offences, not only because of their non-inclusion amongst the offences enu- merated in the local and imperial laws, and in the Treaty stipulations, but because the right of territorial asylum for such fugitives is within the protection and safeguard of the Imperial authority, and may not be violated by the self-action of the administrator of the Colony. It is manifest, therefore, that the power of extradition and its exercise in Canada, resides in the Governor, as the representative of Her Majesty, and of the Imperial power as settled by local law, and not as the mere colonial executive, (b) It seems that the Courts may, to some •extent, control or direct the action of the Executive ; for (a) Beg. v. Tiibbee, 1 IT. C. P. R. 98. (b) Beg. v. Bermet H. Young, 9 L. C. J. 46 per Badgley, J. EXTRADITION. 47 when a party is committed under a magistrate's warrant, he may apply to any of the superior courts or judges for a, Habeas Corpus, and 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 to surrender the prisoner is, nevertheless, reposed in the executive Government ; and, if so, then whether a case was made out which entitled the Government to grant such sur- render, (a) The Governor is not authorized to surrender the prisoner until the expiration of seven days after his •commitment, (b) This is a new provision, and was probably inserted in the statute to give the prisoner an •opportunity of having the magistrate's decision reviewed •on Habeas Corpus and certiorari. The fact that the person is charged with piracy com- mitted 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 oountry is robbery, and the requisition on behalf of the Government of the foreign country be for his extradition ^or the crime of piracy, he could not be surrendered un- der 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 re- fused, (c) Looking at the statute, we find that the commitment of the prisoner is to be made upon such evidence as, according to the laws of the Province in which he has been appre- hended, would justify his apprehension and committal for trial, if the crime of which he is accused had been committed therein. This seems to impose on the magis- trate the same duties as devolve upon justices of the (a) Meg. v. Tubbee, 1 U. C. P. E. 98. (b J 31 Vic. c 94 s 3 ( c) Ke B. O. Burliy, i U. C. L. J. N. S. 45-6, per Richards, C. J. 48 CRIMINAL LAW OF CANADA. 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. (a) The authority of the magistrate does not extend beyond the enquiry indicated by the statute ; (b) but he is bound to see that the com- mitment 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, (c) When such prima facie case is made out, and the evi- dence in defence is not clear and conclusive, a jury is the only constitutional tribunal which can determine whether evidence offered to displace the impression 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, (d) The magistrate, therefore, should not go be- yond a bare enquiry as to the prima facie criminality of the accused, and should not enquire into matters of de- fence 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 con- viction of the prisoner therein, (e) Conflicting or un- satisfactory evidence in answer to a strong prima facie case, though perhaps properly receivable, would not jus- tify the magistrate in discharging the prisoner : (f) for it is to be observed that he cannot try the case here, nor weigh conflicting evidence, nor assume the functions of a (a) Re B. G. Bwrley, 1 U. C. L. J. N. S. 48, per Richards, C. J. (b ) Beg. v. Beno and Anderson, 4 TJ. C. P. R. 2 81. lc) Reg. v. Morton, 19, IT. 0. C. P. 25, per Wilson, J. id) Beg. v. Gould. 20 U. C. C. P. 159, per Gwynne, J.; the Chesapeake case 48. (e) Ex parte G. H. Martin, 4 C. L. J. N. S. 200, per Morrison, J, (/) Beg. v. Brno and Anderson, 4 TJ. C. P. R. 281. ' EXTRADITION. 49 jury by deciding as to the credibility of witnesses, (a) In Burley's case, the accused, on his examination before the magistrate, admitted the acts charged, which prima facie amounted to robbery, and alleged, by way of de- fence, matter of excuse which was of an equivocal char- acter, 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 com- mittal 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, notwithstanding the evidence is suf- ficient, if true, to rebut an alibi. If he discharges be- cause 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 purposes, be assuming the functions of a jury, and, on a preliminary investiga- tion, trying the whole merits of the case, though the en- quiry was only instituted to ascertain whether the evi- dence of criminality would justify the apprehension and committal for trial of the person accused, (b) 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, (c) Thus, if the charge is of assault with intent to commit murder, it is no objection that the facts proved are as (a) Reg. v. Reno and Anderson, 4 V. C. P. R. 281; Re Bwrley, 1 17. 0. L. J. N. S. 34 ; Reg. v. Bennet H. Yowng ; the St. Allan's Raid, 449, per Smith, J. ; ex parte G. B. Martin, 4 C. L. J. "$. S. 200 per Morrison, J. (b) Reg. v. Reno and Anderson, 4 TJ. C. P. R. 299, per Draper, C. J. ; Re B. G. Bwrley, 1 U: C. L. J. N. S. 46, per Richards, C. J. (c) The Chesapeake case, 48. 50 CEIMINAL LAW OF CANADA. much evidence of other felonious- intents as of the intent to murder, (a) 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, (b) The magistrate should remember that the citizens of a foreign country are entitled to precisely the same measure of justice as our own people, (c) 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 assumption, (d) 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, (e) ~We are not to overlook 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 adminis- tered with more of the common law technicality than we have thought it expedient to retain, by which many ave- nues are left open for criminals to escape which we have closed ; (/) so that a prisoner is more likely to be ac- quitted in the United States than here. An information stating that the prisoner was appre- hended " on suspicion of felony," was held too general, (o) Reg. v. Reno ami Anderson, 4 IT. C. P. R., 296. per Draper, 0. J. (6) Reg. v. Gould, 20 U. C. C. P. 154. (c) Re Kermott, 1 Chr. Reps. 256, per SuMvan, J. (d) Re Anderson, 20 U. C. Q. B. 173, per Robinson, C. J. (e) Reg. v. Reno ami Anderson, 4 U. 0. P. R. 299, per Draper, C. J. : Re B G. Bwley, 1 TJ. C. L. J. N. S. 48, per Richards, C. J. (/) Reg. v. Morton, 19 IT. C. C. P. 25, per Wilson, J. EXTRADITION. 51 as not containing a charge of any specific offence, (a) The information in this case was considered as for an ordinary offence, committed within our own jurisdiction. But it is no objection to 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 facts to which he deposes, or that they are stated on information 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, (b) In Ee Kermott, (c) a question was raised, whether a com- mitting Magistrate could detain a prisoner on evidence amounting only to a ground of suspicion, for the purpose of other evidence being imported into the case, so as to bring it within the Treaty; but, per Sullivan, J. (d), neither the Treaty nor the Statutes contemplate the surrender of an accused person upon mere suspicion. However the law may be on this point, 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 eve n altho ugh he has been arrested upon a void warrant. Thus, where a prisoner was com- mitted for extradition, and a Habeas Corpus and Certiorari for his discharge obtained, it was held 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 informa- tion, warrant, etc., were irregular and defective, if, on the hearing, sufficient appeared tojustify the commitment; that it would be absurd to discharge the prisoner because the (a) Reg. v. Rennet H. Towhg; the St. Alian's Raid. (b) Be Anderson, 20 U. 0. Q. B. 151, per Robinson, C. J. ; and see Reg. v Reno and Anderson, 4 U. C. F. R. 287. (c) 1 Ghr. Rep. 253. (d) lb. 256. 52 CRIMINAL LAW OF CANADA. warrant might, be void, when the evidence, on the hear- ing, would justify re-arresting him the next moment, and that the commitment must therefore be upheld, (a) In Ee Anderson, (6) 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 de- tained 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 Ex- tradition Treaty and Statutes. But it has been held in Quebec that a Judge of Sessions, when a prisoner is brought before him on the original warrant of arrest, has power to remand under the Treaty and Statutes ; and when the remand appointed no day for the further ex- amination of the prisoner, and an application was made for a Habeas Corpus (before the eight days after the remand had expired), (e) on this ground, and oh 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, (d) "We next proceed to consider the evidence by which the charge before the Magistrate is to be sustained. The provision in the Statute as to the evidence of cri- minality 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, (e) So far as regards the means of proof, there can be no doubt that it is our law which must ia) Ex parte ft B. Mwrtin, 4 0. L. J. N. S. 198. b ) 11 TJ. C. 0. P. 1. c) See 32 & 33 Vic., c. 30, *. 41. d) Beg. v. Ben.ne.tH. Young; the St. Alban's Raid, 15. e) Ee Warner, 1 U. 0. L. J. N. S. 18, per Eagarty, J. EXTRADITION. 53 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, (a) 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 copies of the depositions on which the original warrant was issued in the United States, in evidence of the criminality of the accused, (b) But as the 31 Vic., c. 94, s. 3, is an enabling Act, there is no obligation on the part of the prosecutor to produce such depositions, (c) In construing and applying the third section of the above Act, which renders copies of the depositions on which the original warrant was granted in the United States admissible here, we must look at the spirit of the provision, not the mere letter, and in the language of our Interpretation Act, 31 Vic, c. 1, thirty- ninthly, p. 64, we must give it such fair, large, and liberal construction and interpretation as will best en- sure the attainment of the object of the Act, and of such provision or enactment, according to their true intent, meaning, and spirit. What the section intended was, that any depositions made in the United States, before proper authority, and upon which a warrant issued for the arrest of the accused, should be received as evidence of his criminality, on the hearing before the Magistrate investigating the charge. The main object contemplated by the enactment was to (a) Be Anderson, 20 U. C. Q. B. 169, per Robinson, C. J. (6) Be R. B. Caldwell, 6 C. L. J, N. S. 227, 5 17. C. P. E. 217, per A. Wilson, J. (c) lb. 227, per A. Wilson, J. 54 CRIMINAL LAW OF CANADA. sanction the use of depositions, and to avoid the necessity of bringing the deponents here ; and the referring to or connecting the depositions with the warrant in this sec- tion was for the purpose of ensuring that they should be such depositions as would be taken before competent authority, and in relation to the particular crime and the offence specified in the foreign warrant, (a) In this case, it was held that certified copies of deposi- tions, on which the warrant issued in the United States, after proceedings had been initiated in Canada, and after the arrest in Canada, were admissible in evidence before the Magistrate, (b) But under the third section of this Statute, (c) the depositions that may be received as evi- dence of the criminality 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 subsequently to the issue of the warrant, and not in any way connected therewith, (d) And as the Statute permits depositions taken in a foreign court to be used in lieu of oral testi- mony, when the case depends wholly upon such deposi- tions, we must be strict in seeing that they are deposi- tions coming clearly within the meaning and provisions of the section, (e) These depositions may be used when the warrant for arrest actually issues in the United States. (/) An affidavit sworn before a Justice of the Peace in the United States, not being a copy of any original deposition, properly cer- tified, is not admissible as evidence, nor is the objection cured by the consent of the prisoner's counsel, [g) The ■fa) Ex parte G. B. Martin, 4 C. L. J. N. S. 200, per Morrison, J. (6) lb. 198 ; see also Beg. v. Morton, 19 U. C. C. P. 9. (c) 31 Vic, c. 94. Id) Beg. v. Robinson, 6 C. L. J. N. S. 98, 5 V. C. P. R. 189. (e) lb. 99 per Morrison, J. if) Beg. v. Morton, 19 U. C. C. P. 18, per HagartyJ. fa) Re Anderson, 20 U. C. Q. B. 183, per McLean, J. EXTBADITION. 55 evidence of a professional gentleman as to the law of the United States is properly admissible before the Magis- trate, (a) In the St. Alban's Raid case, the examination of the witnesses for the prosecution was conducted in the manner prescribed by thejj32 & 33 Vic, c. 30, s. 29 et seq., as to offences committed^hefe. The prisoner was allowed to cross-examine the ;w$tnesses, and the de- positions certified that he had the opportunity of doing so. The voluntary statement oJne prisoner was taken, as by s. 31 of this Statute, atfme request of the Crown counsel. The Judge, however, declined to express an opinion as to its legality, (b) The sufficiency of the evidence of criminality to justify the apprehension and committal for trial of the person accused is to be determined by the Judge or Magistrate, upon his view of the transaction, as described in the tes- timony, taken in connection with the law of the foreign State where it occurred, as regards the offence in ques- tion, and also with reference to the law which governs our own Courts in regard to the sufficiency of evidence — that is, its sufficiency in point of legal character, and its adequacy to support the charge of the offence against the law of the foreign country, (c) The functions of the Magistrate are not simply minis- terial in this respect. He must hear the evidence, and exercise a proper judicial discretion as to whether the facts establish a case for the rendition of tne prisoner, (d) It is very important to determine the extent to which evidence in defence may be properly received before the Magistrate on behalf of the prisoner. It is submitted (a) lb. 172, per Xobimson, C. J. (6) See, also, the Chesapeake case, on these points. lc) Bo Anderson, 20 U. C. Q. B. 124, Robimxm, C. J. (d) Meg. v. Btn.net H. Young; the St. Albam's Raid, 197, per Smith, J.; the Chesapeake case, 46. 56 CRIMINAL LAW OF CANADA. there is ample authority for the position that such evi- dence is admissible to establish that the offence does not come within the Treaty, (a) But whether it is admissible, to the full extent, and in the same manner, as on prelim- inary investigations before Magistrates of offences aris- ing here remains as yet to be decided. In Young's case, Judge Coursol granted a delay of thirty days to the prisoners, to enable them to prepare evidence in defence, to shew that the acts with which they were charged were committed as belligerents, under the authority of the Government of the Confederate States. He declared- his opinion that, in admitting such evidence, he would not be assuming the functions of the American Courts, or virtually trying the accused, as the Statute required the Magistrate to be perfectly satisfied of the criminality of the act, according to our law. (b) When the case came before Mr. Justice Smith, he granted thirty days' further delay, for a similar purpose. The Justice considered that, although he could not try the prisoners, yet he was bound to see whether their crime came within the Treaty, and that, if they shewed they were belligerents, then possibly there might be an end of the matter. He said, " I admit evidence not, techni- cally speaking, for the defence, because there is no such thing as a trial before an examining magistrate; but evidence as a coroner might admit it, who must re- ceive whatever, is calculated to have a bearing on the inquiry to fully develop the facts respecting the offence charged." And he held that the evidence was clearly admissible, (c) Although the Burley case turn- ed principally on the power of the Magistrate to try (a) Reg. v. Bennet H. Young; the St. Albania Raid ; the Chesapeake case - Re Bwrley, 1 V. C. L. J. N. S. 34. (6) 76. 115. (c) lb. 449. EXTBADITION. ST the prisoner, it is certainly not inconsistent with the- right to adduce for the defence such evidence as was given in Young's case. In the former, it was as- sumed by counsel, and by the court, that if it were clearly established the prisoner acted only as a bellige- rent, duly commissioned by the Government of the Con- federate States, he could not be committed for extradition. The evidence was offered, to shew this authority from the Confederate Government, but it was not sufficient to establish it conclusively. The acts charged were ad- mitted, but their criminality was denied. The Court declared that, under the circumstances, a Magistrate could not do otherwise than commit for trial by a jury, if it were an offence arising within our own jurisdiction, and they in effect said: — " A prima facie case is made out against the prisoners, and the evidence in defence does not clearly disprove it. Granting that his individual re- sponsibility would cease if the acts were of a belligerent character ; on this evidence, we cannot determine whe- ther they are or are not endued with this quality. The prisoners' acts are equivocal, and may or may not be acts of lawful war. His intent, the good faith of the enterprise, and the credibility of witnesses, are important,, and properly ascertainable by a jury. We have no power to try the case, and thus assume the functions of a jury in the United States." The difference between this and Young's case would seem to be, that in the latter the evidence was such as- to satisfy the Magistrate, without the intervention of a jury, that the prisoner had the authority he set up, and was therefore entitled to be exonerated from individual liability. The actual decision in Burley's case was as to the power of the Magistrate to try the accused. The point as to the admissibility of the evidence was fully 58 CRIMINAL LAW OF CANADA. argued, but none of the Judges, except Richards, 0. J., expressed an opinion as to its admissibility. The latter was clearly of opinion that the evidence was admissible, in ■the same manner as on the investigation of an ordinary offence arising in our own country. The opinion of this learned Judge is certainly entitled to very great weight. In the Chesapeake case, evidence of a precisely similar character was offered for the same purpose as in the other two, and received without objection. And in this case it was also held that the evidence was not such as the Magistrate could adjudicate upon, but called for the intervention of a jury in the tribunals of the United States. In Ee R. B. Caldwell, (a) the court held that the evi- dence of an accomplice was sufficient to establish the charge for the purpose of extradition, and that magis- trates holding preliminary examinations might undoubt- edly act on the evidence 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. Semble also, the evidence •of a slave may be received, (b) If the prisoner is committed for surrender on insuffi- cient evidence, a judge in chambers will, on writs of Habeas Corpus and certiorari, order his discharge, (c) The following case is important in regard to the suffi- ciency 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 endeavouring to stop P 6 C. L. J. N. S. 227, 5 TT. C. P. K. 217. Re Anderson, 20 U. C. Q. B. 182, per McLean, J. Re Kermott, 1 Chr. Rep. 253. EXTRADITION. 59 them as they were moving off with the engine. The conductor was at the time about eight feet from the per- son 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. The prisoners were arrested in Canada, at the instance of the Express Com- pany, and demanded for extradition by the United States authorities. The prisoners offered evidence on their examination 'to prove an alibi. Draper, C. J . (in Cham- bers) > held that, under the circumstances of this case, there was sufficient prima facie evidence of the criminal- ity of the prisoners to warrant a refusal to discharge them, and that there 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, (a) In Re Anderson, (b) (although the objection to the jurisdiction was expressly waived by the counsel for the Crown) the Court entertained some doubt whether it was competent for them to interfere in the case of an offender coming clearly within the terms of the Treaty, after the Judge or Justice who has heard the evidence has determined that, in his opinion, it sustains the charge, and has transmitted to the G-overnor a copy of the testimony on which he has decided, and also com- mitted the prisoner to the proper gaol, under the first section of the Act. The Court considered that there could be nothing clearer than the authority of our supe- rior courts of law to exercise the same control over inferior criminal courts,- and over magistrates acting in the administration of criminal law, as is exercised in (o) Reg. v. Reno and Anderton, 4 U. C. P. E. 281. (6) 20 U. C. Q. B. 194. 60 CRIMINAL LAW OF CANADA. England, in like cases, by the Court of Queen's Bench. But as this authority is either given in particular cases by statute, or in other cases is exercised upon principles of the common law, in matters occurring in the ordinary administration of criminal justice, and arising within the ordinary reach of our laws, and the authority they were called upon to exercise in this case, sprung from no such sources, but rested wholly upon the provisions of a Treaty between Great Britain and a foreign Government, and of our Statute passed in conformity with that Treaty. The application also did not come within the section of the Act by which authority is given to the Judges of the superior court to discharge on Habeas Corpus a prisoner who has been committed for surrender, pursuant to the provisions of the Treaty and the Act, and has remained two months in gaol without such surrender. But as this authority had been assumed to exist in two other cases, (a), and the Court felt there was a strong argument for the necessity of a controlling power in the Superior Courts, without which the Governor must be left with the responsibility of exercising, with the assist- ance of his legal advisers, whatever discretion he may find reposed in him by the Statute ; and as there was no decision to the contrary, the Court, without actually deciding the point, assumed to exercise the power of de- termining whether the commitment of the prisoner was warranted by the evidence, with the view, of course, of granting his discharge, if they came to the conclusion he was improperly in custody. In Re Warner, (b) Hagarty, C. J. declared that he shared the grave doubts expressed by the Court in Anderson's case as to the right of the Judges to interfere (a) Kermott's case, 1 Chr. Rep. 253, and Tubbee't case, 1 XJ, C. P. B. 98. (6) 1 U. C. L. J. N. S. 18. EXTRADITION. 61 by Habeas Corpus, except in the case specially provided for by the 5th section of the 31 Vic, c. 94. In the Chesa- peake case, Mr. Justice Ritchie stated that the duty of determining on the sufficiency of the evidence was cast on the committing Magistrate — that he was invested with a judicial discretion in this respect which a Judge of the Supreme Court would not review on Habeas Corpus, adding, however, that if it was manifestly appa- rent on the evidence that no offence had been committed, or that the party was unquestionably innocent, the case would be very different. The Act gives no power to obtain a writ of Habeas Corpus, except in cases under the 5th section, where the prisoner has remained in custody more than two months, without a requisition having been made, (a) The effect of the decision in the Chesapeake case is, that the right to a Habeas Corpus exists in extradition cases as well as others. In this case, an order was issued under the Act of Assembly, 19 Vic, c. 42. This Act gave the Judge like powers, upon an order issued under it, as in a pro- ceeding by Habeas Corpus. Mr. Justice Ritchie held that not only was the order warranted, that the liberty of the subject might be preserved, but that he had power to review the proceedings before the Magistrate ; and if there was no ground for them, or the Magistrate had fallen into any error, either in form or substance, and the parties appeared to be illegally imprisoned, to discharge them, but only when it was manifestly apparent on the evidence that no offence had been committed. The per- sons charged in this case, however, were inhabitants of New Brunswick, and British subjects. The Chesapeake case may, perhaps, be regarded as a decision in favor of the power of the Courts to review the Magistrate's find- (a) Re Anderson, 20 U. C. Q. B. 189, per Burns, J. 62 CRIMINAL LAW OF CANADA. ing as to the sufficiency of the evidence. It is, -however, expressly limited to the case of the latter clearly exceed- ing his powers. The weight of judicial authority seems to establish that the Magistrate's decision is reviewable by the Court, (a) The reasoning of Chief-Justice Richards, in Re B. G. Burley, (b) seems to be very forcible and conclusive. He says, " I think the right of the Court to review the deci- sion of the Magistrate as to the sufficiency of the evidence to justify the committal of the prisoner is sustained by general principles of law, as well as by authority, and it is one which it is not desirable should be taken away. The sending of any man out of the country, under a con- stitutional G-overnment, is a grave exercise of power, and ought not to be permitted, unless the right to do so is established in the clearest manner ; and when this right extends to delivering over any of the Queen's subjects to a foreign power, as I am satisfied it does under our Statute, it is not going an unreasonable length to assert that the subject has the right to have it placed beyond reasonable doubt that the evidence given to sustain the charge is sufficient, in the judgment of the superior tribu- nals of the country, to warrant such proceedings being legally taken against him." In Reg. v. Reno and Anderson, (c) it was declared that the Court, or a Judge, on Habeas Corpus, would, where the evidence before the Magistrate is conflicting, deter- mine on the legal sufficiency of the commitment, and review the Magistrate's decision as to their being suffi- cient evidence of criminality. Assuming that this power of revision exists, and that (o) See Re Andenon, 20 U. C. Q. B. 189, per Burnt, S.\ Reg. v. Tiibbee 1 tT. C. P. R- 102, per Mcuxnday, C. J. ; Re Kermott, 1 Chr. Rep. 264, per SalK- vcm, J. (6) ITT. C. L. J. 46. (c) 4 TJ. C. P. R. 281. EXTRADITION. , 63 the evidence, etc., is brought up on Habeas Corpus and Certiorari, the matter is to be disposed of on the principle — taking the evidence laid before the Judge below, was there enough in the words of the Act " to justify the apprehension and committal for trial of the person ac- cused, if the crime of which he is accused had been committed in this country." (a) ■ The Court above must be fully satisfied there is no legal ground on which such decision can be supported before it is reversed, (b) and it Would seem that if in one view of the evidence the Court find the decision sustain- able, they ought not to interfere and reverse it. (c) Where the prisoner was brought before a Judge in gene- ral sessions, on the original warrant of arrest, and remanded before final commitment, the Conrt doubted their power to interfere by Habeas Corpus until final commitment, id) The following case bears on the question of return to the writ of Habeas Corpus : — "Where, alter 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 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 afterwards produced, with the writ to which the foregoing return was annexed, and (a) Beg. v. Ctouid, 20 TJ. C. C. P. 160 (6) lb. 161, per Hagwrty, J. \c) lb. (d) Beg. v. Bermet B. Young; the St. Allan's .Raid, 15. •64 CRIMINAL LAW OF CANADA. •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 mak- ing a return, and that, when a writ of Habeas Corpus is returnable 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, (a) The return might have been amended, if necessary, (b) The commitment authorised by the 31 Vic, c. 94, is peculiar. It is not a commitment for safe custody, in order that the party may be afterwards brought to trial within our jurisdiction. But it is a commitment, for safe custody, only until the Governor, upon a requisition made by the TJnited States, shall, by his warrant, order the prisoner committed to be delivered to the person autho- rized by the TJnited States to receive him, to be tried for the crime charged, or until the Governor order the dis- charge of the prisoners, which he has power to do, not- withstanding the decision of the Magistrate that the evidence is sufficient to warrant his surrender, (c) The warrant 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 in- vestigation has been committed in our own country, the technical precision and accuracy necessary in an indict- ment 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 statutory jurisdiction con- fa,) Beg. v. Beno and Anderson, 4 XJ. C. P. E. 281. (6) 76. 291, per Draper, C. J. (c) Beg. t. Brno and Anderton, 4 TJ; C. P. E. 295, per Draper, C. J. EXTEADITION. 65 ferred 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, (a) In Anderson's case, when before the Court of Common Pleas, it was held that a warrant of commitment which used the words " did wilfully, maliciously, and feloni- ously stab and kill," and omitted the word " murder," and " with malice aforethought," and concluded by in- structing the gaoler to " there safely keep him (the pri. soner) 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 surrender, upon Jthe reo^oifii^nl^fThe proper authority, or until he should _ be^ischaxged_according to law, did not come within the provisions of the Treaty or Statute, and was consequently defective, (b) 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 commitment, or of the object of it. (c) In ordi- nary cases, where the offence is against the Queen's peace, and where the Court acts in virtue of its inherent jurisdiction as a Court over the offence, if the warrant of commitment appears to be defective, but the depositions shew that a felony has been committed, the Court will look at the depositions, and remand the prisoner, in order ,y that the defect may be corrected. But in extradition^;,,.. §! (a) Re Anderson,, 20 U. C. Q. B. 162, per Bobimxm, C. J.; 11 U. C. C. P. 5k- '■:%&.- 63 ; the Chesapeake case. 41. ,.]&%" (b) 11 XT. C. C. P. 1 ; see also the Chesapeake Case, 50. (e) Ke Anderson, 20 XT. 0. Q. B. 163, per Robinson, C. J. E 66 CRIMINAL LAW OF CANADA. cases, as the authority of the Court is derived wholly from the Treaty and the Statutes, and by the latter the duty of deciding on the sufficiency of the evidence i3 cast on the committing Magistrate, (a) they cannot look at the depositions, to ascertain whether the detention is- warranted ; and as they cannot remand the prisoner (b) if the warrant of commitment does not show a suf- ficient cause for the detention of the latter, he must be discharged, (c) A warrant of commitment, which does not shew that the Magistrate deemed the evidence sufficient, according- to the laws of the Province in which he has been appre- hended, 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. (d) The warrant must shew that the offence was committed within the jurisdiction of the United States, (e) But it need not set out the evidence taken before the commit- ting Magistrate, nor shew any previous 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. (/) The adjudication of the committing Magistrate as to the sufficiency of the evidence for committal may be stated, by way of recital, in the warrant, (g) A warrant of commitment, which directed the gaoler to receive the body of W. H., " and him safely keep for examination," was held defective in not mentioning the day, or limiting the time during which the prisoner . (a) Ante p. (b) Ante p. (c) Re Anderson, 11 V. C. C. P. 1 et seq. (d) The Chesapeake case, 51 ; Re Anderson, 11 TJ. C. C. P. 64, per Richards, C. J. , (e) The Chesapeake case, 4-45. (f) Re Bermet G. BurUy, 1 U. C. L. J. N. S. 34. (9) lb. EXTRADITION. 67 "was to be confined, (a) But in this case the warrant ■was considered as for an offence committed here. It was held, in one case, that the words in an information and warrant of commitment " 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 lan- guage of the last Act, 31 Vic, c. 94, and, therefore, they were not bad on thai ground, though it would have been more prudent to have followed the precise description of the offence given by the Statute, (b) It is not indispen- sable that the authority of the Magistrate should be ■shewn on the face of the warrant of commitment ; and •where the crime has been committed in a foreign coun- try, and the committing Magistrate has jurisdiction in •every County in Ontario, the warrant is not bad though -dated at Toronto, the county mentioned in the margin being York, but directed to the constables, etc. of the county of Essex, and being signed by the Police Magis- trate, as such, for the county of Essex, (c) In Ee Warner, (d) 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 per Hagarty, J. (e) although a Magistrate, after his first warrant, transmitted copies of the testimony to the ■Governor, or even after committing the prisoner in the (a) Beg. v. Sennet H. Young ; the St. AUcm's Baid, 5. (b) Beg. v. Berio amd Anderson, 4 U. 0. P. R. 281. (cj lb. (d) 1U. C. L. J. N. S. 16. (e) lb. 17. 68 CRIMINAL LAW OF CANADA. first instance, he is not precluded from issuing a second 1 warrant, in proper form, against the prisoner. 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, (a) A prisoner charged with forgery in Canada, having- been arrested in, and surrendered by, the Government of the United States, under the Treaty, upon application for bail, on the ground that there was no evidence of' the corpus delicti : — Held that the depositions taken here,, 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. (6) The warrant of the Governor-General, requiring the- extradition of a prisoner from the United States for forgery, is no proof that he was charged with or extra- dited for that crime, (c) In Reg. v. Paxton (d) 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 provisions of the Treaty for the payment of the- expenses 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 mak- (a) Beg. v. Reno and Anderson, 4 IT. C. P. R. 295, per Draper, C. J. (6) Beg. v. Vamaermtm, 4 U. C. C. P. 288. (c) Beg. v. Paxton, 10 L. C. J. 212. {d) Supra. EXTRADITION. 69 ing the requisition they assume the responsibility of paying the expenses of apprehending as well as deliver- ing him. (a) Only one ease has arisen in this country un- der the Treaty between Great Britain and France, ratified in 1843. In this case it was held that, under the Imp. Stat. 6 & 7 Vic, c 75, passed to give effect to the Treaty, the Consul General of France had no authority to demand the rendition of a fugitive criminal, such consul not being an accredited diplomatic agent of the French Government. That an informal translation 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 plaee where the offence is alleged to have been committed, (b) 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. 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 com- mitted offences either in the United Kingdom of Great Britain and Ireland, or in any part of Her Majesty's Do- minions, whether or not within the said United King- dom, 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. (a) Re B. G. Bwrley, 1 V. C. L. J. N. S. 45, per Richards, C. J. <6) Ex parte E. S. Lamiranck, 10 L. C. J. 28a 70 CRIMINAL LAW OF CANADA. 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 felony, such as justices of the peac ( e 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 Ad to define the jurisdiction of Justices in- general sessions of the peace." (a) (a) See s. 10. CRIMES IN GENERAL. 71 CHAPTEE 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 distinc- tions between a public and a private injury ; secondly, of the persons capable of committing crimes, and their seve- ral degrees of guilt, as principals or accessories ; thirdly, bf 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 practice, 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) The proper meaning of the term " crime" is an indict- able offence, (b) and it is said that the test of an act being a crime, is whether an indictment will lie for it. (c) Where an Act declared that every person haying a dis- tilling apparatus in his possession, without making a re- turn thereof as therein provided, should forfeit and pay a penalty of $100, and rendered the apparatus liable to seizure, and forfeiture to the Crown : Held that an in- fringement of this Act was a crime, (d) The violation of L statute containing provisions of a public nature, and ore particularly so when that violation is spoken of as (a) Ste. Bla. Com., Bk 6, p. 94. (6) Atty. Gen. v. Madloff, 10 Ex. 96, per Martin, B. (c) Re Lucas & McGlashwn, 29 IT. C. Q. B., 92, per Wilson, J. ; Bancroft v. Mitchell, L. R. 2, 0. B. 549. Meg v. Master, L. R. 4 Q. B. 289, per Mellor, J. (d) Re Lucas & McGHashan, supra, and see Reg. v. Boardman, 30 U. C. Q. B 553. 72 CRIMINAL LAW OP CANADA.' an offence, and is punishable by fine, or imprisonment as substitutionary for the fine, is a crime in law. (a) When an offence is made a crime by statute, the proceedings instituted for the punishment thereof are criminal pro- ceedings, (b) The distinction between civil and criminal proceeding is this, if the subject matter be of a personal character, that is, if either money or goods are sought to be recovered by the proceeding, that is a civil proceeding; but if the proceeding is one which may affect the defendant at once by the im- prisonment of his body, in the event of a verdict of guilty, so that he is liable, as a public offender, that is a crimi- nal proceeding, (c) An information by the Attorney- General for an offence against the revenue laws is a criminal proceeding, being instituted by the Crown^&r the punishment of a crime, (d) Offences against the customs and excise laws are not ordinarily treated as criminal proceedings but as penal actions ; and the contingent liability to fine and imprison- ment does not alter the character of the offence, (e) A proceeding to obtain an order of affiliation under the (N. B.) 1 rev. stat. c. 57, is not a criminal proceeding, in which the party charged is punishable on indictment or summary conviction, (/) bastardy not being a crime pun- ishable in this manner, (g) 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. (A) The distinc- (o) Re Lucas de McGlashan, 92, per Wilton, J. (6) lb. 92, per Wilson, J. Bancroft v. Mitchell, L. R. 2 Q. B. 555, per Black- burn, J. (c) lb. 86-7, per Richards, C. J. id) Re Lucas & McGlashan, 89, per Richards, C. J. (e) Exrparte Parks. 3. Allen, 240, per Carter, C. J. (f)Ex parte Cooke 4 Allen, 506. (g) lb. (h) The Chesapeake ease, 44 per Ritchie, J. Mure v. Kaye, 4 Taun. 43, per Heath, J. CRIMES IN GENERAL, 73 tion of public wrongs from private, of crimes from civil injuries, principally consists in this, that private wrongs are an infringement or privation of the civil rights of individuals, considered as such: public wrongs or crimes and misdemeanors, are a violation of the same rights, con- sidered in reference to their effect on the community in its aggregate capacity, (a) The doctrine that all crimes concern the public pre- vails 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, (b) The true ground of this rule is to prevent the criminal justice of the country from being defeated, (c) and the principle on which it rests is, not that the felony appear- ing constitutes any defence to the action, but that by the rule of law the civil remedy is suspended until the de-> fend ant charged with the felony shall have been acquit- ted or convicted in due course of law. (d) The rule applies, whether the plaintiff be the party upon whose person the alleged felony was committed, 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 fel- ony ; (e) and it seems the rule equally applies in an ac- tion against third persons. (/) The civil remedy is only suspended until an acquittal or conviction after a bona (a) Ste. Bla. Com.. Bk. 6. p. 94 (6) Walsh v Nattrass 19 IT. C C. P. 453. Brawn v. Dalby, 7 TJ. C, Q. B. 160 Livingstone v. Massey, 23 U. C. Q. B 156. Williams v. Bobinson, 20 TJ. C. C. P. 255. Pease v. M'Aloon,l Kerr. 111. (c) Crosby v. Leng, 12 Ea 414 per Grose, J, id) Walsh v. Nattrass. 19 TJ- C- C. P. 454, per Gwynne, J. Brown v. Dalby, 7 TJ. U Q. B. 162, per Robinson. C J. (e t Walsh v. Nattrass Supra, 455, per Gwynne, J. [f) Pease v. M'Aloon, 1 Kerr 118, per Parker, J. 74 CRIMINAL LAW OF CANADA. fide prosecution of the criminal charge. When either event takes place, as the public justice will then be satis- fied, the party may proceed with his civil action, (a) 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 a sufficient prosecution, if the justice should decline to interfere; but at all events it would be suffi- cient to prefer a bill before the grand jury, who would, of course, ignore it, if the prosecutor's evidence negativ- ed the felonious intent, unless there should appear grounds for suspecting connivance or collusion. (6) A difference has been suggested between the case of a prior conviction and that of an acquittal, namely, that the lat- ter may have been brought about by the defendant col- luding with the prosecutor, and it seems evidence would be admissible to show this ; (c) and that it would sus- pend the action, (d) 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 ; (e) for it seems that only an action brought to recover compensation for an injury, result- ing from the felonious. act, is suspended. (/) At all events in case of seduction, unless the loss of ser- vice, which is the gist of the action, directly springs from the very act supposed to be felonious, the civil reme- dy is not defeated, (g) The question of felony or not cannot be tried by the jury, in the civil action, even though the judge \a) Walsh v. Nattrass, Supra. 456, per Gwynne. «T. Pease v. M'Aloon, 1 Kerr. 117. per Parker, J. Edwards v. Kerr, 13, U. C. C. P. 25, per Dmmec, C. J. Crosby v. Leng. 12 Ea. 409 (6) Pease v. M'Aloon, 1 Kerr. 117. per Parker. J. (c) Crosby v. Leng, 12, Ea. 413-4, per Lord Ellenborougk, C. J. (d) lb. • (e> Walsh v. Nattrass. 19 U. 0. C. P. 457. per Gwynne, J. (/) Boyle v. Bayle, 3 U. C. Q. B. O. S. 295. (g) Ibid. CRIMES IN GENERAL. 75 may have a doubt on the evidence as to the facts showing a felony, (a) If a prima facie case is made out, and the evidence uncontradicted and unexplain- ed, would warrant a jury in convicting for the fel- ony, the judge should require the party to go before the criminal tribunal, before pursuing his civil remedy. (6) If the judge is not morally satisfied that a felony has been committed, yet if the act were proved by only one witness, to have been feloniously done, and there were no circumstances inconsistent with such evidence, no- thing that could make -the disbelief of it otherwise than purely arbitrary, the judge would not be wrong in non- suiting the plaintiff, (c) It is for the judge to decide whether the case shall go to the jury in the civil ac- tion, (d) 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 in- terests of public justice, (e) We now proceed to notice the exceptions to the gen- eral 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 may maintain an action for damages against the inn- keeper, although the act giving rise to the right of action is also a felony, and the innkeeper has neither been ac- (a) Williams v. Robinson, 20 XT. C. C. P. 255. Walsh v. Nattrass, 19 XT. C. C. V. 453. Pease v. M'Aloon, 1 Kerr, 111. (b) Pease v. M'Aloon. supra. (c) Williams v. Robinson. 20 XT. C. C. P. 256-7, per Hagarty, J. Brown- v. Dalfoy 7 XT. C. Q. B. 162-3, per Robinson, C. J. See also Vincent v. Spragvs, 3 XT. v. Q. B. 283. (d) Walsh v. JVattrass, 19 XT. C. C. P. 456, per Cfwynne, J. Williams v- Robinson. 20 XT. C. ,C. P. 255. (e) Walsh v. Natt/rass. supra. Brown v. Dolby, supra. Williams v. Robin- son, supra. See also on this subject Lutterell v. Reynall, 1 Mod 283. Stone . Marsh. 6 B. C. 551. Marsh v. Keating. 1. Bing. N. C. 198. Wellock v. Con- stantine. 7 L. T N. S. 751, 32 L J. Ex 285, 9 Jur. N. S. 232. Chowne v. Baylis,. 8 Jur. N. S. 1028. 76 CRIMINAL LAW OF CANADA •quitted nor convicted, (a) So by the Carriers' Act, (b) the plaintiff may reply that the carrier's servant feloni- ously 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 crimi- nally, (c) So, under the Con. Stat. Can., c, 78, the civil action is maintainable, though the act causing the death amounts to felony, and the party has neither been ac- quitted nor convicted; (d) and, lastly, neither this rule nor the reasons for it apply to the Crown, (e) 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 dif- ferent 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, (f) By the general term crime, 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, are 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 (a) McCurdy v. Swift, 17 IT. C. C. P. 126. ( b) 11 Geo 4, and 1 Win. 4, c. 68, s. 8. ( c) lb. 136, per Wilson. J. (d) lb 136. per A Wilson. J. Clarke v. Wilson, Rob. Dig. 260. (e) Reg. v. Reitfenstein, 6 0. L J. N S. 38; 5 U. C P. R 175. (f) Dagenay v. Hunter. Rob Dig- 128. Lamothe v Chevalier, 4 L. C. R. 160. Fortier v. Mercier. Rob Dig. 127. Peltier v. Miville. ib McGvdre v. Idverpool and London Assurance Company, 7 L. C. R. 343. Ntill v. Taylor. 15 L. C. R 102. to) Ste. Bla. Com.. Bk. 6. p. 96. (A) Re Lucas & McGlashan, 29 U. C. Q. B., 92, per Wilson, J. CRIMES IN GENERAL.. 77 degree of guilt, (a) All crimes which are made felonies by the express words of a statute, or to which capital pun- ishment is thereby affixed, become felonies, whether the word " felony" be omitted or mentioned. (6) Where a sta- tute declares that the offender shall, under the circum- stances, be deemed to have feloniously committed the act, it makes the offence a felony, and imposes all the common and ordinary consequences attending a felony, (c) So where a statute says, that an offence, previously a misdemea- nor, " shall be deemed and construed to be a felony," instead of declaring it to be a felony in distinct and posi- tive terms, the offence is thereby made a felony, (d) An enactment that an offence shall be felony, which was. felony at common law, does not create a new offence, (c) But an offence shall never be made felony by the con- struction of any doubtful and ambiguous words of a sta- tute ; and, therefore, if 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 misde meanor ; (/) 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 re- peal of the former, so far as relates to the punishment of the offence (g). So if an offence be felony by one sta- tute, and be reduced to a misdemeanor by a later sta- tute, the first statute is repealed ,(h). "When a statute on which the indictment is framed is repealed, after the ( a) 4 Bla. Com 95. (6) Rubs. Cr. 4. Edn. 78. Reg. v. Home. 4 Cox. G..C!. 263. ( c) Rex v. Johnson, 3 M & S3' 556, per Bayley.. J. (d) Rex v. Salomons, R- & M. C. C. R, 292, overruling Rex v. Cede, R. & M. C C R. 11. (e) Reg v. Williams, 7 Q. B. 253, per Patteson, J. (f) Russ, Cr. 79- l '. . (g) lb 79. (h) Reg v. Sherman, 17 IT. C. C. P. 171, per ,4. Wilson, J. Rex v. Davis] 1 Leach, 271. : . ' 78 CRIMINAL LAW OF CANADA. bill has been found by the grand jury, but before plea, the judgment must be arrested (a) ; and where a statute creating an offence is repealed, a person cannot after- wards be proceeded against for an offence within it, com- mitted while it was in operation, even though the repeal- ing statute re-enad s the penal clauses of the statute repeal- ed (b). 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 offence cannot be proceeded for under the earlier statute ' (c) ; or if a later statute again describes an offence created by a former statute, and affixes to it a different punishment, varying the procedure, and giving an appeal where there was no appeal before, the prosecutor must proceed for the offence, under the latter statute (d). 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 proceed- ing, is cumulative, and the offender may be indicted as before for the common law misdemeanor, (e) 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 ought to be committed after a conviction for the first ; (/) and where a statute makes an offence felony which was before only a misdemeanor, an indictment will not lie for it as a misdemeanor, (g) for the lesser offence merges in the greater. But now, (a) Beg v. Denton, 17 Jur. 454. Reg. v. Swan, 4 fox. C. C. 108. (b) Beg. v. Cummmgs, 4 U. C. L. J. 187. per Macaulav. 0, J. (c) Michell v. Brown, 1 E. & E. 267 ; 28 L. J. (MC) 53. Beg. v. Sherman, 17 U. 0. C. P, 169, per A. Wilson, J. Bex v. Cross, 1 Ld. Raym. 711. 3 Salk . 193. ( d) Michell v. Brown, supra. (e) Bex v. Carlile, 3 B. & Aid. 161, Arch. Cr. Pldg. 17 edn. 3. See also Beg. v. Palliser, 4 L. C. J. 276. {f) Bliss, Cr. 79. (g) Bex v. Cross, 1 Ld. Raym. 711, 3 Salk., 193. CRIMES IN GENERAL. 79 by the 32 & 33 Tic, c. 29 s. 50, although a felony ap- pears on the facts given in evidence, 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 a misdemeanor cannot, under this clause, be convicted of any felony that may be disclosed in evidence, but only of the misdemeanor for which he is indicted, if included in the felony proved (a). In this case it was held that a defendant indicted for a misdemeanor, in obtaining money under false pretences, could not, under the Con. Stat. Can., c. 99 s. 62, be found guilty of larceny, although the facts would have warranted such finding. The word misdemeanor is usually applied to all those crimes and offences for which the law has not provided a particular name (b). A misdemeanor is in truth any crime less than felony, and the word is generally used in contradistinction to felony, misdemeanors comprehend- ing all indictable offences which do not amount to fel- ony, as perjury, battery, libels, conspiracies, and public nuisances (c). Misprision of felony is concealment of fel- ony, or procuring the concealment thereof, whether it be felony at the common law or by statute (d). It is clear that al\ 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- (a) %eg. v. Ewing, 21 U. C. Q. B. 523. (b ) Buss. Cr. 79. (c) lb. 79. (d) lb. 79-80. 80 CRIMINAL LAW OF CANADA. dieted (a) ; 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 com- mon law (b). If a statute prohibit a matter of public grievance, or command a matter of public convenience, all acts or omissions contrary to the prohibition or com- mand 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 (d). If a statute in terms declare that it shall not be lawful to do a particular act, it seems the doing of it would be indictable, even though the act prescribes a summary remedy (e) : 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 (/"). 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 prohibition may or may not, according to the subject dealt with, be an indictable offence (g). When an act is not an offence at common law, but is made an offence by Act of Parliament, an indictment will lie, if there is a substantive prohibitory clause in such statute, though there be afterwards a particular pro- la) Euss. Cr. 80. (6) lb. 80. (ci Beg. v. Toronto St. By. Co., 24 TJ. C. Q. B., 457 per Draper, C. J. Bee v. Davit. Say, 133 ; and see Bex v. Sainsbury, 4 T. It. 451. Kuss. Cr. 80. (di Bex v. Richards 8 T. K. 634. Kuss. Or. 80. (el Pomeroy & Wilson, 26 U. C. Q. B. 47-8, per Sagarty, J. (/) Beg. v. Mercer, 17 U. (J. Q. B. 632, per Buna, J. [ff) lb. 632, per Burnt, 3. CRIMES IN GENERAL. 81 vision and a particular remedy given, (a) It lis stated* as an ; established principle, that when a new offence for; cheated by an Act of Parliaments and a penalty is attach- ' ed to it by a separate and substantive clause, 'the prose- 1 cutor need not sue for the penalty, but he may proceed o on the prior clause, on the ground of its being a misdenJ meanor. (6) A general prohibitory clause supports; ran indictment, though there be afterwards a particular pro- vision and a particular remedy, (c) And where latsiafeutje - fUvbids the doing of a things the- doing it wilfully, al- though without any corrupt motive, is indictable, (d) If a! statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for dis- obeying the injunction ' of: the legislature, (e) 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 sta- tute which enjoins an act to be done contains also an en- actment providing for a particular mode of proceeding as commitment incase of neglect or refusal, it has been doubted whether an indictment will lie. (g) But where a statute only adds a further penalty to an offence pro- 1 hibited by the common law, there is no doubt that the offender may still be indicted, if the prosecutor think fit, at the common law. (&) . An offence is not indictable where an Act of Parlia-' ment has pointed out a particular punishment and a specific method of.' recovering the penalty which it in- fo) Reg. v. Mercer, 17 TJ. 0. Q. B. 632, per Burns, S. ; Reg. v. Mason, 17, U. C: C; P. 536, per Ridamds,V: J. ; Meg. v.BucMnah, 8, Q. B. 888; Reg. v. qrossley, 10, A. & E. 132. 16) Reg. v. Mason, supra 536,.per Richartfs, C. J- (c) lb. 536, per Ricliards. C. J. ( dj Rex v. Sainsbury. 4 T. R. 457. Reg. v., Holroyd, 2 M. & Rob, 339. (ei Rex v. Davis, Say, 133. Reg. v Price. 11 A. & E. 727. .(/,) Rexiv. Royal, 2 Burr. 832. ' Rusa. Cr. 87. (g) Rex v. du.mm.ings, 5 Mod. 179. Rex v. King, 2 Str. 1268. (ft) Kuss. Cr. 88. . - F 82 CRIMINAL LAW OF CANADA flicts ; and the rule is certain that where a statute creates a new offence by prohibiting and making unlawful any- thing which was lawful before, 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, (a) In Reg. v. Bennett, (b) it was held that an indict- ment 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 re- fused to take the oath required by law, on the ground that the offence was specially created by the statute, and a particular penalty affixed, and a specific remedy for enforcing it pointed out by the 87th section of the Act. Where the penalty is annexed to the offence in the very clause of the Act creating it, no indictment or other pro- ceeding can be taken against the person making de- fault, (c) for the express mention of any other mode of proceeding, impliedly excludes that of indictment, (d) If a statute specify a mode of proceeding different from that by indictment, then if the matter were already an indictable offence at common law, and the statute intro- duced merely a different mode of prosecution and pun- ishment 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, (e) Even if a statute prohibit under a penalty an act which was before lawful and a subsequent statute, (/) (a) Beg. v. Sennet, 21 U. C. C. P. 237 per Gait, J. Reg. v. Mason, 17 V. C. C. P. 536, per Richards,G. J. Little v. Inie. 3 IT. C. C. P. 542-3, per Macaulay, 0. J. See also Leprohon v. Globenski, Bob. Dig. (b) Supra. (c) Reg. v. Sennet, supra 238, per Gait, 3. \d) Rex v. Robinson, 2 .Burr 805. Rex v. Buck, 1 Str. 679. (e^ Rex v. Robinson, 2. Burr 799. . Rex. v. Wigg, 1. Ld. Baym, 1 165. Rex. v. Carlile. 3 B. & Aid., 16V < (f) Rexv. Boyall, 2 Burr 832. CRIMES IN GENERAL. 83 or the same statute in a subsequent clause ordain a mode of proceeding for the penalty different from that by in- dictment, the prosecutor may, notwithstanding, proceed by indictment upon the prohibitory clause as for a mis- demeanor at common law, or he may proceed in the manner pointed out by the statute at his option, (a) Where a lievenue Act, 15 Vic, c. 28, s. 68, enacted that any penalty or forfeiture 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 Treasurer, and in case of non-payment the offender should be imprisoned for a term not exceeding twelve months nor less than three months, at the discretion of 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, (b) This, however, was not a proceeding to recover a penalty under this Act, but a prosecution for an assault which is at common law the subject of ah indictment, and punishable by fine and im- prisonment, (c) "Where a person filling a public office wil- fully 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 no means of punishing the delinquent, (d) So an indictment will lie for neglecting, or refusing to ad- minister the oath set forth in the Con. Stat, Can. c. 6, s. 55, at the request of the candidate or his agent, (e) (a) Rex. v. Wright, 1 Burr 543. Rex v. Buchanan, 7 Q. B. 883. Arch. Cr. Pld. 17. edn 2. (6 1 Reg. v. Walsh, 3 Allen 54. (c) lb., see iN.B. Rev. Stat., c. 29. s 15. and c. 148, s- 4. (d; Reg v. Bennet, 21 U. C. C. P. 238 per Gait, 3. (e) lb. 238 per Gait, J. 84 CRIMINAL LAW OF CANADA. An attempt to commit a misdemeanor is a' misde^ meanor (a) whether the offence was created by statute or o existed at .common law, (b) for when an offence is made a- misdemeanor by statute it is made so for all purposes, (c} So inciting another to. commit a misdemeanor is in itself a misdemeanor, {d) In this case it was held that attempting- 1 to bargain with or procure a woman falsely to make, the , affidavit provided for by the Con. Stats. TJ..C-, c- 77, s, 6 r . that A was the father of her illegitimate child, was an indictable offence, on the ground that if the oath were taken and proved to be fa.lse, it would have amounted to perjury under the Con. Stats. TJ. C;, c. 2. s. 15, or, at all events, to a misdemeanor, and inciting another to com- mit perjury is a misdemeanor on the aboye principle.. On an indictment for misdemeanor the jury may find the prisoner guilty of any lesser misdemeanor that is neces- sarily included, in the offence as charged, (e) and on an in- tctment for. felony or misdemeanor the jury may find e party guilty of an attempt to commit it, which is a 'iaisdemeanor. (/) Under this statute (32 & 33 Vic, c l!9, 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 indictment charged H with rape, and U with aiding and abetting him in the rape, the jury hav- ing found If and U guilty of a misdemeanor, H of at- tempting to commit the rape, .and U of aiding him in the attempt: Held that they were both properly convicted under the 14 & 15 Vic, c. 100, s. 9. (g) Bat upon (a) Beg. v. Connolly, 26 XL C Q. B. 322, per ffagarty,J. Reg. v. Martin. 9 C. & V , 213. Beg v. Gqff, 9U.U.C P. 438. ( 6) Bex. v. Butter. 6 C & P. 368 per Patterson, J. Bex. v. Boderick, 7 (J. & P- 795. Parke, B. Bex v. Carlwrigltt Russ. & Ry 107. (c) fiex. v. Boderick supra 795, per Parke, B. (d) Beg. v. Clement, 26 U. C. Q. B 297. (el Beg. v. Taylor, L R. 1 0. C R 196, per Kelly, C. B. (f) Reg- v. Goff, 9 TJ. C. C P. 438. 32 & 33 Vic, c. 29, s. 49. igj Beg.y. Bapgood, L. R. 1 C. 0. R. 221. CRIMES IN GENERAL. 85 *ihis clause the defendant can only be competed of an 'attempt to commit the very offence with which 'he is ' charged, {a) Nor can the jury convict under it of an at- tempt which is made felony by statute, but only of an attempt which is a misdemeanor, (b) 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 indictment is in the ordinary form, (c) An attempt to commit a'felony, is also a misdemeanor, (d) and an at- tempt to obtain money under false pretences is a misde- meanor, (e) 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 cir- ' cumstances that he has the power of carrying his intention into execution. (/) "Where, the prisoners being indicted for an attempt to commit burglary, it appealed that they had agreed to commit the offence on a certain night toge- ther with one C, 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 per- sons came to the front door and turned the knob but went off on being alarmed and were not identified : (o) Meg. v. McPherson. Dears. & B. 197, 26 L. J. (M. C.) 134. (b) Meg. \. Cornell, 6 Cox 178. fe) .Meg. v. Webster, 9 L. C. R. 196. (d) Meg. v. Ooff. 9 TJ. C. C. P. 438 per Draper, C. J. Meg. v. Esmonde, '26 TJ. C. Q. B. 152. :: (e . Meg. v. Goff, supra. ( f) Meg. v. McOann, 28, TJ. C. Q. B. 517. per Morrison, J. Meg. ». Taylors IF.&r, 511. 86 CRIMINAL LAW OF CANADA Held that there was no evidence of an attempt to com- mit the offence, no overt act directly approximating to- rts execution, and that a conviction therefor could not be sustained, (a) If, however, it had been proved that they attempted to enter the house, and were either interrupted or surprised in ■ doing so, and mada their es- cape, and that but for such surprise or interruption they could have carried out their design of stealing certain money said to be in the house, there would have been evidence to go to the jury, (b) A conviction for an attempt to commit a felony cannot be sup- ported unless it appears upon the evidence that the felony might have been completed if there had been no interruption. If, therefore, upon an indictment for at- tempting to commit a felony by putting the hand into a woman's pocket with intent to steal her property therein, it appears that she had nothing in her pockets, a convic- tion cannot be sustained, (c) The prisoner was indicted for breaking and entering a shop with intent to commit felony, which by (24 & 25 Vic, c. 96, s. 57) the corresponding English section of the 32 & 33 Vic, c. 21, s. 56, is made felony. He was seen upon the roof, where a hole was found broken in, but there was no evidence of his having entered the building. 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 misde- meanor in attempting to commit that felony, and they found him guilty of the misdemeanor : Held that the conviction was right, (d) (a) Meg. v. McOann, supra (6) lb. 516, per Morrison J. j see also Meg. v. EagJeUm, 1 TJ. C. L. J. 179- Dears, C. C. 515 ; Meg. v, Moierts, ib. 539 ; Mex v. Mem-tin, 2 Mood. C. C 123 • 9 C. & P. 213-215 ; Dugdale v. Meg, 1 E. & B. 435. (c) Meg. v. Gd'Uns. L. h C. 471, 33. L. J. (M. <}.) 177. 10 TJ. O. L. J. 308 (d) Meg. v. Bain, 8 U. C. L. J. 279; L. & C. 129; 31 L. J. (M. C.) 8&' CRIMES IN GENERAL. 87 But attempting to commit a felony is clearly dis- tinguishable from intending to commit it, for the bare •wish or desire of the mind to do an illegal act is not in- dictable. So long as an act rests in bare intention it is not punishable by our laws, (a) 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, (6) and an act, though other- wise innocent, if accompanied by an unlawful and mali- cious intent, the intent being criminal the act becomes criminal and punishable, (c) 1\ has been held under the corresponding English section of the 31 Yic, 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 com- mitted as the result of the counselling and procuring therein mentioned, (d) A disregard of, or non-compliance with, a positive command in an Act of Parliament is in- dictable as a misdemeanor, (e) Defendants' Act of Incor- poration required that the rails of their railway should be laid flush with the streets and highways, and that the railway track should conform to the grades of the same, so as to offer the least possible impediment to the ordin- ary traffic of the said streets and highways : Meld that the omission to lay the rails flush with the street would be indictable without showing that any unnecessary im- pediment was offered to the traffic. (/) The motives of a party, though unimportant in (o) Beg. v. Mulcahy X,. R. 3 E & I. App. 317. per Willes, 3. ( 6 1 Beg. v. McCann. 28 U. C Q. B. 516. per Morrison, J. Beg. v. McPherson, 1 Dears & B CO.. 197, per Cockburn, C. J. Bez. v. Higgins, 2 Ea. 5, per Le Blanc, J. Bex. v. Scqfield Cald. 403. (c) Beg. v. Brywns 12 U. C. C. P. 172. per Hagarty, J. {d) Beg. v. Gregory. L. R. 1 C. C. R. 77. («) Beg. v. Toronto St. By. Co., 24, U. C. Q. B. 454. (/) lb- 38 CRIMINAL LAW OF CANADA. -eivil ' cases, may be taken into account in criminal ^proceedings, (a) In the latter, however, the maxim, -actus nan. faait reum nisi mens sit rea, does not hold iuniversally. "When a particular act is positively pro- hibited iby'law, it becomes thereupon ipso facto illegal do do it wilfully ^ and in some cases even ignorantly, and -a party may be indicted for doing it. without any corrupt -motive. (6) "Where: a statute, in order to render a party iBriminally liable, requires the act to be done feloniously, maliciously, fraudulently, corruptly, or with any oth'@r .'expressed motive or intention, such motive or intension :is a necessary ingredient, in the crime ; but where thte ,»nactment simply prohibits the doing of an act, motivte .or . intention is immaterial so far as regards the legal Jiability of the party committing the forbidden act : ($) -and it would seem that a party cannot exempt himseif ;from criminal liability on the ground that bis object was lawful, or even laudable, in committing an act simply -prohibited by law ; (d) for the law infers that every pef- -son intends the natural consequences of his own act when 'that act is wrongful, injurious, and without legal justiu- -cation. (e) The inference equally arises although the ^»arty has an honest or laudable object in view, and he •will uevertheless be legally liable, unless the object' is jsuch as, under the circumstances, to render the act law- ful, (f) Misdemeanors differ from felonies in these particu- lars — the crime is of an inferior degree, and the penal consequences are not so severe ; secondly, all persons concerned in the commission of a misdemeanor, if guilty i (a) Phillips v. Eyre, L. R. 6, Q. B. 21, per WUles, J. (b) Sex v. Saiiabury, 4 T. R. 457, per Alhurtt, J. (c) 4, C. L. J. N. S. 194. (d) Reg. v. HickUn, L. R. 3, Q. B. 380. 18 W. R. 801. 18 L T. Repa. N. S. 395. (e) lb. (/) lb. 375, per Blackburn, J. ; and Bee Beg. v. Salter, 3 Allen, 327, per Carter, C. J. CRIMES IN GENERAL. 89 at all, are principals, and the law recognises no degrees in their guilt. With regard to the punishment of misdemeanors, it is a general rule that all^those o^fjeirces 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, (a) and the punishment usually inflicted is line and imprisonment, (b) The punishment of felonies is generally prescribed by. statute.. ,90 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 per- son, 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 understanding 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. (&) 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 indict- ment 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 privi- leged, if under twenty-one, because laches shall not be imputed to him. (d) But if he be indicted for any noto- rious breach of the peace, as riot, battery, or for perjury, or 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 dolt capax, and had discretion (a) Euss. Cr. 6. (5) Arch. Cr. Pldg. 16. (c) Sex v. Sutton, 3 A. & B. 597. (d) Arch. Cr. Pldg. 17. PERSONS CAPABLE OF COMMITTING CRIMES. 91 to do the act with which he was charged, (a) The law as to an infant's liability is more clearly denned with reference to capital crimes, though their criminal respon- sibility does not so much depend upon their age as upon their judgment and intelligence. (J) 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 art irrebuttable presumption of law that he has no mis- chievous discretion, (c) On attaining the age of fourteen years, they are presumed to be doli capaces, and capable of discerning good from evil, and are, with respect to their criminal actions, subject to the same rule of con- struction as others of more mature age. (d) Between the age of seven and fourteen years, an infant shall be deemed prima facie to be doli incapax, but malitia supplet cetatem, and this presumption may be re- butted by strong and pregnant evidence of mischievous discretion, establishing it beyond all doubt and contra- diction, (e) When a child between 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, (f) 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 impotency, as well as the want of discretion. This presumption, it seems, is not affected by the 32 & 33 Vic, c. 20, s. 65^making the offence complete on proof of penetration, without evidence of emission, (g) Nor is any evidence admis- (a) lb. 17. (6) Russ. Cr. 7 (c) Russ. Cr. 7 ; Marsh v. Loader, 14 C. B. N. S. 535. (d) Arch. Cr. Pldg. 16. (e) Arch. Cr. Pldg. 16. (f) Rex v. Owen, 4 C. & P. 236. (g) Hex v. Qroombrldge, 7 C. & P. 582. "92 CRIMINAL XAW OF CANADA.' fcible to shew that, in fact, the defehdant had arrived ait J "thefnll state of puberty, and could commit the offence, (a) But he may be principal in the second degree if he aid and assists in the commission of the/ 6ffence, and it ap- pears that he has a mischievous discretion, (b) It ; seems a Statute creating a new felony does not extend to infants under the age of discretion, (c) and that "Statutes giving corporal punishment do not bind infants, but other and general statutes do, if infants are not ex- cepted, (d) Arid where a fact is made felony, or treason, it extends as well to infants,' if above fourteen, as $o "others, (e) ' "Where the defendant, an indented apprentice, was convidtedbefore two Justices, under the Acts of Assembly, for making brooms, contrary to an agreement contained in an indenture executed by him while an infant : — Held that the conviction was bad 'ffj Persons Non Compotes Mentis — Every person, at the ! age of discretion, ' is, unless the contrary be proved, presumed by law to be sane, and to be accountable 'fdr his actions. Bat if there be an incapacity, or' defect of the understanding, as there can be no consent of the will, so the act cannot be culpable, (g) Where the de- privation of the understanding and memory is tbtal, fixed, and permanent, it excuses all acts, so, likewise'," a man labouring under adventitious insanity is, during the frenzy, entitled to the same indulgence, in the same de- gree, with one whose disorder is fixed and permanent. (A) (a)- Rex v. Philip*, 8 0: & P. 736; Rex v. Jordan, 9 G. & P. 118 : RexT. BrimUom, ib. 366, 2 Mood. C. C. 122. (6) Rex v. Eldershaw, 3 C. & P. 396 ; see Rex v. AUen.l Den. C. C. 364. Arch. Or. Pldg. 17. (c) Russ. Cr. 10. id) Dwarris 516. («) Rusa. Cr. 10. (j) Reg. v. Harris, 1 Allen; 100. (0) Arch. Cr. Pldg. 17. (h) Ib. 18 ; Beverley's Case Co. 125. PERSONS CAPABLE OF COMMITTING CRIMES. 93 It seems clear, however that to excuse a man from pun- ishment on the ground of insanity, it must be proved distjnctly that he was not capable^ distinguishing right fromwromr at the time he did the act, and did, not knpw , i^ to be an offence, against the laws of Gxodandnature, (a) If there be a partial degree of reason ; a competent use of it sufficient to restrain those; passions which produce the crime: if there.be thought and design; a faculty to- distinguish the nature of action ; to discern the difference between moral good and evil,— then he will be respon- sible for his actipns. (b) Where the intellectual faculties are sound, mere moral , insanity, — where a person knows perfectly well what he- is doing, and that he is doing wrong, but has no control t over himself,, and ac^s, under an. uncontrollable impulse,. , — does not render him irresponsible, (c) Whether the pjjsoner were sane or, insane, at the time the act was- comlnitted is a question of fact triable, by the jury, and dependent upon the previous and contemporaneous acts, of the gptrty. ..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 insanity, (d) It is said that, as to the criminal , liability of a lunatic, the maxim is, actus nonfacit reum nisi mens sit rea. (e). Imbecility, and loss of mental power, whether arising from natural decay, or from paralysis, softening of the brain, or other natural cause, although unaccompanied, by frenzy, or delusion of any kind, constitutes unsound- fa) Bex v. Offord, 5 O. & P. 168. (b) Beg. v. McNaughttm, 10 CI. & Fin. 200 ; 1 C & K. 130 n. ; Bex v. Big- ginson. 1 C. & K. 129. (c) Bex v. Burton, 3 F. & F. 772. *w (d) Beg: v. Frances, 4- Oox. 57, pe* Xldenoh B. and Gresswell, J. ; Beg. v. Wright, H.,& R. 45B ; Beg. v. Searle, I'M. &Rob; 75; Arch. Cr. Pldg. 19. (e) Jagyard v. Innes, 12 TJ. C. C. P. 77, per Draper, G. J. 94 CBIMINAL LAW OF CANADA. ness of mind, amounting to lunacy, within 8 & 9 Vic, c. 100. (a) 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 Government, independently of any statute, (b) The policy of the law in detaining insane persons in custody is to prevent them from committing the same offences again, (c) The vice of drunkenness, which produces a perfect though temporary frenzy, or insanity, will not excuse the commission of any crime ; and an offender under the influence of intoxication can derive no privilege from a madness voluntarily contracted, but is answerable to the law equally as if he had been in the full possession of his faculties at the time, (d) It has been said that, upon an indictment for murder, the intoxication of the defen- dant may be taken into consideration as a circumstance to shew that the act was not premeditated, (e) 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, (f) Persons in Subjection to the Power of Others. — In 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, obedi- (o) Reg. v. Shaw, L. K. 1 C. 0. K. 145, 37 L. J. (M. C) 112. (b) Reg. v. Martin, 1 James, 322. (c) Ib. 324, per Blist, J.; see as to insane persons 32 & 33 Vic, c. 29, o. 99 el tea. , (d) Arch. Cr. Pldg. 18. (e) Reg. v. Grindley, 1 Buss. 8. ; Reg. v. Thomas, 7 C. & P. 817 ; Reg. v. Meahin, ib. 297 ; but see Reg. v. Carroll, ib. 145. ( f) Arch. Cr. Pldg. 18. (g) Buss. Cr. 32. PERSONS CAPABLE OF COMMITTING CRIMES. 95 ence to existing laws being a sufficient extenuation of civil guilt before a municipal tribunal ; and private, pro- ceeding from the matrimonial subjection of the wife to the husband, from which the law presumes a coercion which, in many cases, excuses the wife from the conse- quences of criminal misconduct. The private relations which exist between parent and child, and master and servant, will not, however, excuse or extenuate the com- mission of any crime of whatever denomination ; for the command is void in law and can protect -neither the commander nor the instrument, {a) In general, if a crime be committed by a.. feme covert in the presence of her husband, the law presumes that she acted under his immediate coercion, and excuses her from punishment. (b) But if she commit an offence in the absence of her husband, even by his order or procurement, her coverture will be no defence (c); even though he appear at the very moment after the commission of the offence ; and no subsequent act of his, though it may render him acces- sory to the felony of his wife, can be referred to what was done in his absence, (d) This presumption, how- ever, may be rebutted by evidence ; and if it appear that the wife was principally instrumental in the commission of the crime, acting voluntarily and not by restraint of her husband, although he was present and concurred, she will be guilty and liable to punishment, (e) The protection does not extend to crimes which are mala in se, and prohibited by the law of nature, nor in such as are heinous in their character, or dangerous in their con- sequences ; and, therefore, if a married woman be guilty (a) Arch. Cr. Pldg. 22. (6; lb. 22; and see Reg. r. Smith, Dears. & B, C. C. 553. (c) lb. 22; 2 Leach C. C 1102 ; Reg. v. Morris, R. & R. 270. Id) lleg. v. Hughes, 1 Russ 21. («) Reg. v. Cohen, 11 Cox 99 ; Reg. v. Dicks, 1 Russ. 19 ; Sea. v. Hammond, Leach, 447 Arch. Cr. Pldg. 22. '96 CRIMINAL LAW OF CANADA. of treason, murder, or offences of* the like djgsCriptiOnyiii . company with, or by cberdon of; her husband, she' is punishable equally, as if- she were sple.^ S°i a married v woman may be indicted jointly with iher husband' for ! keeping a bawdy house, (&} or. gaming house^ loir jlfheSty are offences connected with the government^ of the house in^hich the wife has a principal share, (d) According to the. prevailing opinion, it, seems the wife; may be indicted with her husband in all, misdemeanors: (e) If a: married woman incite her husband to the commission of a felony, she is accessory before the fact. •{/), 'But she , cannot be treated as an accessory for receiving her hus- band, knowing that he has committed a felony, nor for concealing a felony jointly with her husband,/^ nor fori receiving from her husband goods stolen by him. (h) 'And'' she will n°t be answerable for h'err husband's, breach of duty, however fatal, though; she maybe privy to his mis- conduct, if.no duty be cast upon her, and she is merely passive. (i)i Ignorarfce. — The laws can only be administered: upon the principle that they are known, because all .per- sons are bound to know and obey them, (j) A mistake, > or ignorance of law,; is no defence for a party chargedl with a criminal act ; (k) but it may be ground for an apV plication to the merciful consideration of the (Jovem- 1 ment. (I) But ignorance, or mistake of facfy may, in some (a) lb. 23; see Beg. v. Cruse, 8 Q. & P., 541, 2 Mood. C. C. 53; Bea. r. Manning, 2 C. & K. 903 n. (6) Hep. v. Williams, 10 Mod. «3, 1 Salk. 384 (c) Beg v. Dixon, 10 Mod. 335. (d) Arch. Cr, Pldg. 23. It) lb: 23 ; Beg. v. Ingram,, 1 Salk. 384 : but Bee Beg. v. /'rice, 8'C. & P. 19. (/) Meg. v. Manning, 2 (J &K.'903n. '" ' (g) Arch. Cr. Pldg. 23. (ft) Beg. v. Brooks, Dears C. C. 184 ; see Be : v. Archer, 1 Mood. C. C. 143. it) Bey. v. Squires, 1 Buss. 16 ; Axssh.Gr. Pldg. 23. \f\ Big. v. Hoodie, 20 U, (?. Q. BT3>9, permHHrison, C. J. (*) lb. Unwin > r~ SEDUCING SOLDIERS TO DESERT. 119 ishment by fine and imprisonment imposed by the Pro- vincial Act stood abolished as long as the Mutiny let 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. TT. 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 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, (a) The 32 & 33 Vio., c. 25, seems to give no power of trial to a Court of Oyer and Terminer, so that the above case will scarcely apply to it. The offender may be convicted in a summary manner, before any two Justices of the Peace, on the evidence of one or more credible witness or witnesses, etc. By s. 5, every offence against the Act is a misdemeanor, and may be prosecuted as such, and 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. (6) 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 sum- mary conviction before Magistrates for this offence : but the 101st section expressly preserves the power of any Court, of ordinary civil or criminal jurisdiction, with tespect to any offence mentioned in the Act punishable by common or statute law : — Held, therefore, that the (a) Reg. v. Sherman, swpra, 166-172 ; Daw v. Metro. Board Co., 12 C. B. N. S. 161, 8 Jur. N. S. 1040. (6) See also 34 Vio. c. 32, 33 Vic. o. 19. 120 CRIMINAL LAW OF CANADA. defendant could be indicted under the Provincial Act, and that the conviction was right, (a) "Where an indict- ment charg-ed 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 conceal- ment must involve receiving, and still more certainly assisting, yet there might be acts of assistance quite apart from either concealment or receiving, (b) The Mutiny Act of 1867, 30 Yic, c. 13, has no applicability to the above case. The provisions, of that Act relate only to soldiers, or to persons in connection with their conduct towards those who come within the meaning of the Act as soldiers, (c) 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 un- lawfully attem.pt to persuade one James Hewitt, a soldier in Her Majesty's service, to desert, was held bad ; for it was impossible to say, upon reading the warrant, how many offences he had committed, or how the punishment was awarded to each specific offence. And if the pri- soner 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 : — 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 th6 alleged convic- tion, the commitment could not be sustained, (d) When a soldier commits felony, by firing, without (a) Reg. v. Tatterion, 27 U. C. Q. B. 142. (6) lb. (e) lb. 144, per Draper, C. J. (d) Re McChrinet, 1 U. C. L. J. N. S. 15. PIRACY. 121 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 proceeding under the common law, before a military court, under the Mutiny Act, and the Articles of "War can legally take cognizance ol the charge, (a) 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, (b) Piracy. — This offence at common law consists in com- mitting those acts of robbery and depredation upon the high sees which, if committed upon land, would have amounted to felony there, (c) It was not felony which was triable by jury at common law, but has been made so by the 28 Hy. 8, c. 15, and 11 & 12 Wm. 3, c. 7. (d) These two Statutes may, perhaps, be treated as in force here, being part of the law ol England at the time of its introduction. In Canada, piracy is, in fact, felony com- mitted within the jurisdiction 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, enquired of, tried, and deter- mined in the same manner as any other felony committed within that jurisdiction, (e) 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 made in and by the two former Statutes, and may, perhaps, to some extent, supersede them. Commissions were required for the trial of offences (o) Ex parte STcCulloch, 4 L. C. R. 467. (b) Ex parte Bickaby, 17 L. C. R. 270. ■ 1c) Russ. Cr. 144. (d) Ruse. Cr. 144. (e) 32& 33 Vic, o. 29, s. 136 ; see also 12 & 13 Vic, c. 96, s. 1. 122 CRIMINAL LAW OF CANADA. under the earlier Statutes, but it is conceived that the later enactment is in itself a sufficient authority for the trial of these offences, and that commissions are now un- necessary. The material enquiry in cases of piracy is as to the jurisdiction ot the Admiralty Courts. The Admiralty jurisdiction of England extends over British vessels, not only when they are sailing on the high seas, but 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 muni* cipal 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^ caused the death of another American citizen, serving on board the same ship, under circumstances amounting to manslaughter, the ship at the time being in the river G-aronne, within French territory, at a place below bridges, where the tide ebbed and flowed, and great ships went: — Held that the ship was within the Admiralty jurisdiction, and that the prisoner was rightly tried and convicted at the Central Criminal Court. (6) "Where, 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 com- mitted 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 : — Held that the Court had jurisdiction over the offence — first, because the evidence was sufficient to prove that the (a) Beg. v. Anderion, L. R. I C. C. R. 161, 38 Ji. J. (M. C.I 12: and sea Beg. v. Lopez, 1 Dears B. 1 C. C. 525 ; Reg- v. Lesley, 1 Bell, C. C. 220. ( b) Beg. v. Anderion, aupra ; and Bee Beg. v. Allen, 1 Mood. C. C. 494. PIRACY. 123 vessel was a British vessel ; secondly, because, even if it had appeared that the vessel was not registered, the Court would still have jurisdiction, as there is rothing in the Merchant Shipping i\ct to take away that jurisdic- sion, 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 recog- nised British ship, (a) The prisoner was indicted for stealing three chests of tea 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 irom the sea. No evidence was given of the flowing of the tide, or other- wise, where the vessel lay : — Held, on a caso reserved, that the offence was within the Admiralty j urisdiction. (b) "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 committed within that line* though it is said the Admiralty has concurrent jurisdic- tion within such line, (c) The great inland lakes of Canada are within the Ad- miralty jurisdiction, and by the Imp. Act 12 & 13 Vic. r c. 9t5, 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 ex- ercised 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 (a) Beg. v. Sebery, L. R. 1 C. C. E. 264, 39 L. J. (M. C.) 133. i fh) Bex v. Alien, 7 C. & P. 664 ; Beg. v. Sharpe, 5 U. C. P. R. 138, per A. Wilson, J. (e) lb. 139, per A. Wilson, J. ; Bex v. Bruce, R. & R. 243. 124 CRIMINAL LAW OP CiNADA. of the Courts of criminal justice of the colony; (a) for there is nothing in the Statute to give any particular func- tionary jurisdiction, or to make the offence of a local nature, and, therefore, any Magistrate in the Province may act. (b) If a robbery be committed on lakes, har- bours, ports, etc., in foreign countries, the Court of Ad- miralty indisputably has jurisdiction, (c) A British Court has no jurisdiction to punish a foreigner for an offence committed" on the high seas, in a foreign ship, against a British subject, (d) The 32 & 33 Vic, c. 20, s. 9, makes provision for the trial in Canada of offences amounting to murder or manslaughter committed upon the sea. (e) Customs and Excise Offences. — These offences are now regulated by various Statutes. (/) The 31 Vic, c. 6, s. 80, provides that persons committing certain offences, with regard to warehoused goods, shall incur the penalties imposed on persons for smuggling. By s. 75 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. An indictment will not lie under s. 80 for the misdemeanor created by s. 75, for the 80th section does not declare that the parties offending, etc., shall be deemed guilty of the misde- meanor created by the 75th, and the clause cannot be extended to the creation of a new crime by implication, (g) It is unnecessary to allege, in the indictment for offences against this Act, that the warehouse therein referred to is a Customs warehouse, or one duly appointed, and M Beg. v. Sharpe, 5 U. C. P. K. 135. (6) lb. 140, per Wilson, J. (c) lb. 139, per Wilson, J. (d) Meg. v. Kinsman, 1 James, 62. (e) See, also c. 29, s. 9. (/') See as to customs 31 Vic, cs. 5, 6, 7, 43 & 44; also 33 Vic. c. 9, and 34 Tic. cs. 10 and 11. (g) Reg. v. Bathgate, 13 L. C. J. 299. CUSTOMS OFFENCES. 125 established according to the proyisions of 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 defi- nition 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 provi- sions 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 mat- ters, 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. (a) On a Statute somewhat similar to the 31 Vic, c. 6, s. 91 (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 information 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, (b) The grounds for holding a written information neces- sary were : the object of the information being to autho- rize the forcible breaking of a man's house, something is required to protect the Justice if sued for the entry jointly with the officer ; and the person, whose house is broken into, is entitled to know distinctly what the information was on which the Justice acted ; and proper evidence is (a) Reg. v. Bathgate, mpra. (bj Beg. v. Walth, 2 Allen, 387. 126 CttlMINAL LAW OF CANADA. required of these, and also to shew that the information is authorized by the Act. (a) Not opening a door, after a proper demand, is a suffi- cient 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. ■Semble that an order to enter given to a police officer, present with the revenue officer, would be sufficient, and that he would be presumed to be acting in aid. (b) 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, (c) An indictment for smuggling, under the (N. B.) Rev. Stat., c. 29, s. 1, charged, in the several counts, (1) that the defendant unlawfully landed alcohol, subject to duty, and thereby smuggled the same ; (2) that defendant un- lawfully landed alcohol, subject to duty, without report- ing to the Treasurer, and thereby smuggled, etc.; (3) that the defendant landed the alcohol without a permit, and thereby smuggled; (4) that the defendant landed alcohol without paying the duties : — Held (1) that the indictment was insufficient, as the mere unlawful landing of goods, without alleging any intent to defraud the revenue, did not constitute the offence of smuggling; (2) that the landing of goods, without reporting them to the (a) Reg. v. WaUh, 2 Allen, 387. (b) lb. (c) lb. 391, per Carter, C. J. CUSTOMS OFFENCES. 127 Treasurer, or without obtaining a permit, though it sub- jected the party to a penalty, did not amount to smug- gling ; (3) that the mere landing of goods, without a pre- vious payment of duty, is not a breach of the revenue laws, as the duty might be secured as pointed out in the Act ; and the fourth count was bad, in not negativing the fact that the duties were secured, (a) The Colonial Legislature has power to impose addi- tional grounds of forfeiture, for breach of the revenue laws, on goods subject to forfeiture, under an Act of the Imperial Parliament. (&)• In the Ally. Genl. v. Warner, (c) 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 shewn not to have transported or harboured 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 Cannot be proceeded against as a non-enumerated dutiable article under the Provincial Revenue Act s 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. It is liable to seizure and forfeiture, under the 17th sec- tion of that Act, for being landed without entry at the Treasury, (d) Spirits in casks, less than 100 gallons, are liable to forfeiture, under the 11 Vic, c 67, though the vessel in which they were imported is over 30 tons register, (c) (a) Beg. v. Cassidy, 4 Allen, 623. (6) Attv. Genl. and Myers, 2 Allen, 493. (c) 7 U. C. Q. B. 399. (d) lb. (e) Atty. Genl. v. Walsh, 2 Allen, 457. 128 CRIMINAL LAW 6f CANADA. In an information for the condemnation of goods as illegally imported, it is allowable, under a plea that they were not imported moda et forma, to shew-that the goods were landed through stress of weather, (a) In an information, at the suit of the Crown, for goods seized at the Gustom-House, there must have been a substantive allegation that the goods were imported and brought in in violation of the Custom-House regulations, and the omission of the words " against the form of the Statute" was fatal, (b) So in an information by the , Solicitor-G-eneral, pro Regina, for a forfeiture grounded on the importation of goods into the Province without payment of duties, the omission of the words " against the form of the Statute" was held fatal, (c) The omission of these words is pro- bably cured by the 32 & 33 Vic, c. 29, s. 23. In an information for a penalty under the Customs Act, 3 & 4 Wm. 4, c. 59, for knowingly harbouring smuggled goods, the scienter is a proper question for the jury ; and in such information, the particular illegal act, as that the goods were imported without payment of duties, etc., should be specified, and the informa- tion should expressly shew that the offence charged to have been committed was contrary to the form of the Statute, and saying merely that ihe statute gives a right to the penalty is not enough, (d) If a quantity of smuggled goods are purchased at one time, but seizures of them are made at different times, only one penalty for harbouring them can be recovered, (e) An entry at the Custom House declared that the packages contained articles not subject to duty, but some (a) Atty. Gail, v. Spafford Draper,, 333. [b. Solr. Genl. v. Darting, 2 L. C. R. 20. (c) A'o/r. Genl. v. Carter, 1L. C. R, 20. / d ) Reg. v. Aumond, 2 U. C. Q. B. 166. («) lb. CUSTOMS OFFENCES. 129 of them contained contraband goods: — Held that it was 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 Eev. Stat., c. 27, s. 10. (a) A revenue inspector, suing in the Queen's name for penalties under the 14 ,& 15 Vic, c. 100, is not liable for costs, because he comes within the ordinary common law rule, exempting the Crown from costs. (6) Under the (N . B.) 18 Vic, c. 36, a warrant to search for liquors in a dwelling-house in which a family resides, and no part of which is used as a shop or place for the sale of liquors, cannot issue, without the oath of three persons, stating their reasons for believing that liquors have been sold, or are kept in such dwelling-house for illegal sj'le. (c) Nor can such Warrant issue without such information to search for liquors in a dwelling-house in which a family resides, though there may be a shop or place in the house for the sale of liquors, (d) Proof that the house in which the liquor was seized was kept as an hotel will not justify a search warrant on the information of one person, as it cannot be judicially noticed that an hotel is a place for the sale of liquor, (e) Where liquor, legally imported, is condemned, under section 15, as being kept for illegal sale, the Justice has no power to •order the casks containing the liquor to be destroyed. (/) The onus of proving that the liquor was not intended for sale, in order to save it from forfeiture, under section 15, is thrown on the owner ; but to subject him to the penalty, under section 16, it must be proved that he in tended the liquor for illegal sale. (a J Beg. v. Southward, 3 -Allen, 387. (6) Ex parte Bogue, 3 L. C. R. 287. (c) Beg. v. Salter, 3 Allen, 321. (d) Ex parte Caldwell, 3 Allen, 393. (e) Beg. v. Salter, supra, 321. . (i) n. I 130 CRIMINAL LAW OF CANADA. An information nnder the Act need not state that the informer is a reputable person, (a) An order made nnder this Act, by a Justice of the Peace, to condemn liquors, with the packages in which they are contained, is indivisible ; and if bad as to the packages, cannot stand good as to the . rest, though the liquor is liable to forfeiture, (b) In a proceeding under this Act, the person summoned to shew why the liquor seized should, not be forfeited, has a right, before going into his proof, to be informed by the Justice who the complainant is, and what he has sworn to in the information, (o) An information, stating that intoxicating liquors are kept for illegal sale by A. " in his house or shop, or on the premises where he now dwells, in the County of 0." is not sufficiently certain to authorize the search of a dwelling-house under this Act. And such an informa- tion will not justify a search warrant, stating that there was a place in the dwelling-house for the sale of liquor, (d) A conviction under this Act must follow the form pre- scribed in the schedule, and not the form in the Summary Conviction Act. The form of conviction given stated that, in default of payment of the fine and costs of pros- ecution, the defendant should be imprisoned for three months, "unless the said several sums be sooner paid": — Held that a conviction under the Act, which, in addition to these sums, required the costs of distress and commit- ment to be paid, was bad. (c) Excise. — An indictment, under 31 Vic, c. 8, s. 143, for breaking a lock, etc., after other statements, alleged : — in which said warehouse certain goods for and in respect of (a) Reg. v. Salter, 3 Allen, 321. (6) Ex parte Breeze, 3 Allen, 390. (c) Ex parte Stevenson, 3 Allen, 391. (d) Ex parte Caldwell, 3 Allen, 393. (e) Ex parte Breeze, 3 Allen, 395. EXCISE OFFENCES. 131 ■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 : — Held that the redundant expression, "wore 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 reve- nue," apply apparently not to the opening of the lock, but to the keeping and securing of certain goods in the warehouse, and was therefore bad. (a) The indictment need not shew 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. (6) It has been held that, in a prosecution for selling liquor without license, the information need not be under oath, for the Act respecting tavern-keepers (c) gives all the forms that are to be followed in such cases, and the Con. Stat. Can., c. 103, s. 24, does not apply to the case, (d) In another case, the Court refused to grant a mandamus to compel two Justices of the Peace to issue execution upon a conviction under 6 ¥m. 4, c. 4, s. 2, for selling spiritu- ous liquors without license, the conviction having been founded on the written statement of the informer, and the oath of one other witness, there being a doubt under the Statute whether the information ought not also to be on oath, (e) . (a) Beg. v. Bathgate, 13 L. C. J. 303. (b) lb. ; see also as to excise 31 Vic, cs. 49 and 50; 33 Vic, c 9; and 34 Vic c. 15. (c)' Con. Stat. L. C, c. 6. (d) Ex parte Cousine, 7 L. C. J. 112. (e) Beg. v. McConnell, 6 U. C. Q. B. 0. S. 629. 132 CRIMINAL LAW OF CANADA* Now, in Ontario, prosecutions for selling liquor with- out license are to be conducted according to the practice and procedure and after the forms contained in the 32 & 33 Vic, c. 31. (a) Under s. 24 of the 32 & 33 Vic, c 31, all informations may be without oath or affirmation as to the truth thereof, unless some particular Act or law otherwise requires. A deputy revenue inspector may validly sign a plaint or information for selling liquor without a license, (b) The prosecutor is not bound to prove that the defendant had no license, as he is not called on to prove a negative, (c) Under the 29 & 30 Vic, c.51, ss. 249 and 254, a person holding a shop license for the sale of liquors was punish- able for an offence against law, under the latter section, for selling liquors at his shop in quantities less than a quart, (d) Where the jurisdiction of the Justices appeared on the conviction, the offence being alleged to have happened at the Town of Moncton, where it was heard and tried, and the conviction being in the form prescribed by the (N.B.) Eev. Stat., c. 138, and the place of sale spoken of at the trial appearing to be known to all parties, and no objection having been then made that it was not within the jurisdiction of the Justices : — Held that the jurisdic- tion sufficiently appeared, though it was not shewn by positive evidence that the offence was committed within the limits of the Town of Moncton. (e) A conviction under 28 Vic, c 22, for selling liquor with- out a license, omitted to state that defendant had been (a) See (Ont.) 32 Vic, c. 32, s. 25. ■ lb) Reynolds and JDwnford, 7 L. :C. J. 228. (c) Ex parte Parte, 3 Allen, 237 ; see post evid ; Re Barrett, 28 XT. C. Q. R. 561, per A. Wihon, 3. ; Rex v. Turner, 5 M. & S. 206. (d) Reg. v. Faulkner, 26 U. C. Q. R. 629, 3 L. C; G. 185. (e) Ex parte Dunlop 3 Allen, 281. > EXCISE OFFENCES. 133 convicted of selling "by retail" : — Held, on appeal to the Quarter Sessions, that the offence was not sufficiently stated in the conviction, and it was accordingly quashed : — Held, also, that the proper time for applying to amend the conviction, under the 29 & 30 Vic, c. 50, was at the time it was made, and that it could not afterwards be amended under the provisions of that Act. (a) In an appeal from a conviction for selling liquor con- trary to c. 22 of the (N.S.) Eev. Stat, the Court will allow the original summons to be amended, (b) 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 shewing no offence. So a conviction for that the said H. "did sell wine, beer, and other spirituous or fermented liquors, to wit, one glass of whisky, contrary to law," was held bad for uncertainty, as not shewing whether the offence was for selling without license, or during illegal hours, (c) In a conviction under the (N. B.) 15 Vic, c 51, which prohibits the sale of intoxicating liquors, except beer, ale, porter, and cider, it is insufficient to allege that the sale was " contrary to the Act of Assembly." The conviction should negative the exceptions in the Act. (d) The action of debt for the recovery of penalties given by this Act is a cumulative remedy, and does not take away the mode of proceeding prescribed by the Sum- mary Conviction Act, 12 Vic, c. 31. (e) A conviction for selling liquors without a license is bad if it do not specify the day on which the offence was committed. (/) (a) Bird v. Brian, 3 L. C. G. 60 ; see 32 and 33 Vic. u . 31, ». 68. (6) Taylor v. Marshall, 2 Thomson. 10. (c) Beg. v. Boggard, 30 TJ. C. Q. B. 152. (A) Ex parte Clifford, 3 Allen 16. (e) Ex parte ffartt, 3 Allen, 122. ( /; Beg. v. French, 2 Kerr, 121. 134 CRIMINAL LAW OF CANADA. It would seem that, after a first conviction has been leturned to the Sessions, and filed, the Justices, if they think it defective, may malfe out and file a second, (a) A conviction for selling liquor on a Sunday, in contra- vention of the (Ont.) 32 Vic, c. 32, s. 23, omitted to state that the liquor was not supplied, upon a requisition, for medicinal purposes ; held bad, and the conviction was quashed, (b) In Reid v. M'Whinnie, (c) it was held sufficient to state the offence in the conviction as selling " a certain spirituous liquor called whisky," though s. 254 of the 29 & 30 Vic, c 51, which created the offence, mentioned " intoxicating liquor of any kind," for intoxicating liquor and spirituous liquor were used in the Act as convertible terms, and in the Customs Act, of the same session, whisky was recognized as a spirituous liquor. The offence alleged was selling " a certain quantity, to wit, one pint" : — Held sufficient, without negativing that it was a sale in the original packages, within the exemption in s. 252 of the Act, for it would be judicially noticed that a pint was less than five gallons, or twelve bottles, which the packages must at least have contained, (d) Where a conviction on its face was dated on the 30th of April, and alleged the sale of liquors on the 12th of April in the same year : — Held no objection that the pro- ceedings were not stated to have been begun within the twenty days from the offence, limited by s. 259 of this Act, for the fact sufficiently appeared on the face of the conviction, (e) Certainty and precision are required in the statement and description of an offence under a penal statute, and (a) WiUy s. 22 for the first offence — it is not necessary to specify whether the conviction is for the first or second offence, as, from the punishment awarded, the Court would im- ply the first offence ; and as the offence is selling liquor without license, it is not necessary to state to whom the liquor was sold. S. 25 of the Act provides that the Magis* trate shall proceed in a summary manner, according to the, practice and procedure, and after the forms, contained in c. 103 Con. Stats, of Canada. It was held, there- fore, that the Magistrate following that Act, in awarding imprisonment in default of distress and commitment, 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, (a) This Statute was intended as a guide to Magistrates, and to prevent failure of justice. A conviction, therefore, is sufficient if it follows the form prescribed by the Statute. (6) Where the depositions returned to the Court by the convicting Magistrate, under a Certiorari, shewed 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, him- self swore that he believed a license was produced, but it was either not proved, or given in evidence : — Held that the return to the Certiorari was conclusive, and that the Court could not go behind it. (c) The informer is a competent witness, as he is expressly made so by the Statute, (d) (a) Reg. v. Strachan, 20 V. C. C P. 182; Re Allison, 10 Ex. 568, per Parke, B. ; Moffat v. Barnard, 24, U. 0. Q. B. 498 ; Egginton v. Lichfield, 5 B. & B. 103. (6) Beid v. M'Whinnie, 27 TJ. C. Q. B. 289. (c) Meg. v. Strachan, 20 U. C. C. P. 182. \d) lb. EXCISE OFFENCES. 139 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 describe it in the words of the Legislature, (a) 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 instance, 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, (b) In Reg. v. Lennox, (c) a conviction under a by-law of the Commissioners of Police, imposing a fine of $5 on a person holding a tavern license, for not exhibiting oveT his door the words " Licensed to sell wine, beer, and other spirituous and fermented liquors," was quashed, a greater fine than $1 not being authorized by law. A conviction under Con. Stats., U. C, c. 54, s. 254, which does not negative that the persons to whom the sale is made are travellers, or ordinary boarders, lodging at the place where the liquor is sold, or a requisition for medical purposes, is void. Where the proof must nega- tive the circumstances of exception, the allegations in the ' instrument of conviction ought to do the same, otherwise the conclusion contra formam Staluti will not remedy the defect, (d) Where a licensed victualler has opened his house on Sunday, within the prohibited hours, for the bona fide supply of refreshments to travellers arriving at an adja- cent railway station, the mere fact' that refreshment has (a) IReDonelly, 20 U. C. C.P. 165. ; Beg. v. King, 20 U. C. 0. P. 246. (6) lb. ; see , s. 13, for selling beer to be consumed on the pre- mises where sold, (e) The penalties imposed by the 3 Vic, c 47, for selling liquor without license, are recoverable before the Mayor of Frederickton, under the Act of Incorporation, 14 Vic, c 15, s. 67. The Mayor, being ex officio a Justice of the (a) Peache and Coleman, L. R. 1 C. P. 324. ( o) Peplow and Richardson, L. R. 4, C. P. 168. (c) Davis and Scrace, L. R. 4, C. P. 17? ; Taylor v. Humphries, 17 C. B. N. S. 539, followed ; Beg. v. Cumberland, 5 U. 0. L. J. 119, overruled. (d) Morgan and Medger, L. R. 5 C. P. 485 ; Copley and Burton, L. R. 5 C. P 489. Deal and Schoield, L. R. 3 Q. B. 8. .COMPOUNDING OFFENCES. 141 Peace, may, in that character, proceed for the penalties which, by the City Charter, are made recoverable be- fore the Mayor, (a) Under Con. Stats., L. C, c. 6, the convicting Magistrate has a discretionary power of giving any one of the three judgments mentioned in s. 32, ss. 38 and 39, and s. 40. (b) An appeal lies to the G-eneral 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, (c) Under the same Sta- tute, the convicting Magistrate has the right to grant costs, either upon conviction or dismissal of the prosecu- tion, and this even to attorneys: (d) In Ontario, the 32 Vic, c. 32, professes to amend and consolidate the several enactments relating to tavern and shop licenses. The Con. Stat. Can., c. 103, has been re- pealed by 32 & 33 Vic, c. 36 ; but it is apprehended that c. 31 of this Statute, as amended by 33 Vic, c. 27, will apply to prosecutions for selling liquor without license, in the same manner as the former Statute. Compounding Offences. — Compounding felony is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute, (e) It is a misdemeanor at common law, punishable by fine and imprisonment. (/) A prosecution is not the property of those who 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 ; (g) and in general, a prosecution can only be compromised by leave (a) Reg. v. Allen, 2 Allen, 435. (b) Ex parte Moley 7, L. C. J. 1. (c) Ex parte Thompson, 7, L. C. J. 10. (d) Ex parte Holey,! L. C. J. 1. (e) Kuss. Cr. 194-5 if) Arch. Cr. Pldg. 837. \g) Reg. v. Hammond, 9 Solr. Jour. 216, per BramweU, B. 142 CRIMINAL LAW OF CANADA. of the Court. A prosecution for selling liquor without license cannot be compromised without the leave of the Court, (a) Leave has been granted to compound a qui tarn action on the 32 Hy. 8, c. 9, for buying a pretended title, on paying the King's share into Court, (b) It is equally illegal to stipulate for the compromise of a charge amounting only to 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, (c) The 18 Eliz. c. 5, eontains provisions against com- pounding informations on penal Statutes. But this Sta- tute does not extend to penalties which are only recover- able by information before Justices, (d) The detendant was indicted for compounding a penal prosecution, instituted by him against one F., under 29 & 30 Vic, c. 51, s. 256. It appeared that F. had been convicted, under that Act, on the information of defen- dant, by the Police Magistrate of H., and a fine of $50 imposed upon him, and that, on an appeal therefrom, defendant, for $10, agreed with F. not to prosecute this appeal, but consented that the conviction should be quashed, which was accordingly done : — Held that as, in this case, the offence charged in the indictment was the compounding a penal action or prosecution that had been instituted, and as this was no offence at common law, at least as to that part of the penalty going to the informer, and as the 18 Eliz., c. 5, did not apply to the case, (e) the indictment would not lie either at common (a) Re Prater, 1 TJ. C. L. J. N. S. 326, per A. Wilson, J. (6 ) May q. t. v. Dettrick, 5 V. C. Q. B. O. S. 77. As to stifling a prosecution for felony, and the distinction between it and compounding felony, see William* v. Bayley, L. R. 1 E. & I. Apt). 200. (c) Dwight V. Ellsworth, 9 tf. C. Q. B. 540, per Robinson, C. J. (d) Reg. v. Mason, 17 U. C. C. P. 534 ; Rex r. Crop, 1 B. 4 Aid. 282. (e) Rex T. Crisp, supra. EXTORTION. 143 law or under the Stalute, and the conviction of the de- fendant was therefore ordered to be annulled, (a) Offences by Persons in Office. — An indictment lies against a person who wilfully neglects or refuses to execute the duties of a public office. (6) An indictment may be maintained against a deputy returning officer at an elec- tion for refusing, on the requisition of the agent of one of the candidates, to administer the oath to certain parties- tendering themselves as voters, (c) But the omission of the name of the agent from such indictment will vitiate, it. (d) . 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 in- dicted, while the principal legally holds the office, and even after the deputy himself has been dismissed from the office, (e) Extortion signifies the unlawful taking by any officer,, by colour of his office, of any money or thing of value that is not due to him, or more than his due, or before it is due. (f) This offence is of the degree of misdemeanor and all persons concerned therein, if guilty at all, are principals, (g) Two or more persons may be jointly convicted of extortion where they act together and con- cur 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 • (a) Beg. v. Maim, 17 XJ. C. C. P. 534 ; see also B. v. Stone, i C. & P. 379; B. v. Gotley, R. & R. 84; B. v. Best, 2 Mood. C. C. 125; Arch. Cr. Pldg. 837;. Macfarlane v. Dewey, 15 L. C. J. 85 ; 32 & 33 Vic, c. 21, s. 115. (6) Beg. v. Sennet, 21 XJ. C. C. P. 238, per Gait, J. (c) lb. (d) lb. .( ) Beg. v. Benjamin, 4 U. 0. C. P. 179. (/) Russ. Cr. 208. (ffj Beg. v. Titdale, 20 IT. 0. Q. B. 273, per Robinson, C. J. 144 CRIMINAL LAW OF CANADA. convicted, (a) It is not necessary that the indictment should charge the defendants with having acted cor- ruptly, (b) The courts do not quash indictments for extortion, but leave the defendants to demur, (c) The Stat, of West. 3 Ed. 1, c. 26, would seem to apply here. (d). 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 remuneration is provided for doing it, the party is to perform the duty without remuneration, (e) A clerk of the peace is an officer serving the Grown, and appointed to discharge public duties, and he cannot charge fees for any service for the remuneration of which no provision is made by Statute or otherwise expressly assigned to him by law ; (/) for it is a maxim of law that no fee can be demanded for services rendered in the adminis- tration of justice, except such as can be shown to have a clear legal origin, either as being specifically allowed in some Act of Parliament, or as being sanctioned by some court or officer that has been permitted by ancient usage to award a fee for the service, (g) All new offices erected with new fees, or old offices with new fees, are within the Stat. 34 Ed. 1, for that is tallage upon the subject, which cannot be done without common assent by Act of Parliament. (A) A clerk of the peace is not entitled to any fee from the parties to a (a) Reg. v. Tisdah, 20 XT. 0. Q. B. 273, per Robinson, C. J. [6, lb. (c) lb. 272, per Robinson, C. J. ; and see Rex v. Wadsworth, 5 Mod. 13. ( d) Bee Asicin v. London District Council. 1 IT. C. Q. B. 292. (c) lb. 295, per Robinson, 0. J. ; Graham v. drill, 2 M. & S. 295. (/) Askim v. London Dis. Council, 1 XJ. 0. Q. B. 292. (g) Hooker v. Qurnett, 16 U. 0. Q. B. 183, per Robinson, C. J. ; Price v. Perceval, S. L. C. A. 189; the London S- V. A. JR. 140. (h) The London S. V. A. JR. 140. EXTORTION. 145 cause for striking a special Jury, (a) 'the table of fees established and promulgated by the Courts, contains all the services for which clerks of the peace are entitled ix> charge, except that they are entitled to fees in all cases where such fees are authorized by Act of Parlia- ment; but no local tariff or user in particular counties can give any additional right. (6) In Ee Bamhart v. Justice^ Home District (c), a man damns, was moved for to compel the justices of the peace to make an order upon their treasurer to pay to Barn- hart, the late gaoler, several sums of money which he claimed, first, for the expense of a guard provided by him to prevent the escape of prisoners, rendered neces- sary, as he, said, by the insufficiency of the gaol; second, for expenses defrayed by him in retaking prisoners who had escaped from the gaol. The mandamus was refused, as a mandamus never issues except to admit or restore a person to an ascertained right, and the law makes no provision for these charges, but they rest in the discre- tion of the justices. It would be illegal, as manifestly contrary to duty, as well as public policy, in a judge to take from the party in whose favour he purposes to decide an undertaking, to indemnify him against all the consequences of his de- cision, (d) A conviction against a bailiff for exacting more than his legal fees was quashed, on the ground that the magistrate permitted an amendment in the informa- tion, and because no precise date of the offence was given, (e) The fees of office and taxes payable to the (a) Booker v. GhtrneU, 16 TJ. C. Q. B. ISO. ■(b) ReDartnell, 26 TJ. C. Q. B. 430. See as to auditing accounts of the Clerk of the Peace, Ee Poutiett and Corporation, LambUm, 22 U. C. Q. B. 80. (c) 5 TJ. 0. Q. B. 0. S. 507. {d) Ballard v. Pope, 3 TJ. C. Q. B. 320, per Robinson, C. J. (e) Ex parte Smith, 6 L. C. R. 488. 146 CBBtlNAL LAW OF CANADA. clerk of appeals, Queen's Bench, belong to, and form part of, the revenue of the Crown, (a) Sale of Offices.-A.i would seem that an indictment or information 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 appoint- ment to any office in which the public are interested, and that the public will be better served by having per- sons 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 tempta- tion to appoint improper persons. (6) 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 J6300 a year, if he would resign. R. accordingly placed his resignation in defendant's hands. The £500 was paid, and certain lands conveyed to secure the an- nuity; and it was further agreed that in the event of the resignation being returned, and R. continuing to hold the office, the money should be repaid, and the land re- conveyed. But R. did not undertake in any way to assist in procuring the appointment for the defendant. The latter having been appointed by the Government in ignorance of the agreement, an information was filed against him : — Held that this was an illegal transaction, as being, in fact, a purchase of the office, within the 5 & 6 Ed. 6, c. 18, and that an information might be sustained under this Act as for a misdemeanor ; but, at all events, if not sustainable under this Act, the British Act 49 Geo. 3, c. 126, clearly applied in this Province, and made it a (a) Beg. v. Holt, 13 L. C. B. 306. (&) Beg. v. Mercer, 17 U. O. Q. B. 625, per li'Lewn, J. ; and see Rubs. Civ 214 ; Bex v. Vaughan, 4 Burr., 2494 ; Bex v. Pottman, 2 Camp. 229. SALE OF OFFICES. 147 misdemeanor, (a) The ignorance of the Government as to the illegal agreement was immaterial, (b) In another case, a sheriff agreed with one 0. to give" the latter all the fees of his office, except for certain ser- vices 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 : — Held that this was a sale of the deputation of the office, and was clearly prohibited by the 5 & 6 Ed. 6, c. 16, and 49 Geo. 3, c. 126, and that the effect of it was to forfeit the office upon conviction under a proceeding by scire facias, (c) But if the defendant 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 minis- terial 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 sum annu- • ally out of the fees, he would not have brought himself, within the Statute, or done anything illegal, (d) The 49 Geo. 3, c. 126, .expressly extends the 5 & 6 EX 6, c. 16, to the Colonies ; at least such portions of it as are in their nature applicable, (e) The former Statute ex- pressly extends the 5 & 6 Ed. 6. c. 16, to the office of Sheriff: and .any act done in contravention of the latter Statute is indictable, though not expressly made so. (/) v An agreement whereby, after reciting that A. had car- ried on the business of a law stationer at G-., and had also been sub-distributor of stamps, collector of assessed taxes, etc., there, and th# he had agreed with B. for the sale of the said busijuese, and of all his goodwill and interest (a) Beg. v. Mercer, 17 U. C. Q. B. 602. (6) ib. (c) Beg. t. Moodie, 20 TJ. C. Q. B. 389. (d) Ib. 402, per Bobnmn, C. J ; Sf# also Faott ,v. Bulled;, 4 V. C. Q. B. 480. («) Beg. v. Jftreer.lTTJ. 0. Q; B. 602. (/) n- 148 CRIMINAL LAW OF CANADA. therein, to him, for the sum of £300. A., in consideration of the said sum of £300, agreed to sell, and B. agreed to purchase, the said business of a law stationer at Gr. ; and whereby it was further agreed that A. should not, 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 endeavours to introduce B. to the said business and offices, is illegal and void, as being a con- tract for the sale of an office within the 5 & 6 Ed. 6, c. 16, and also within the 49 G-eo 3, c. 126, which makes the offences prohibited by the former Statute misdemeanors.(a) 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, (b) 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." And when the Quarter Sessions have determined the charge, this Court cannot question the propriety of their decision, (c) A Court of Justice has power to remove its officers, if unfit to be trusted with a professional status and charac- ter. If an advocate, for example, were found guilty of crime, there is no doubt the Court would remove him. (d) And a criminal information will he against an officer who misconducts 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 op- Co) Hopkins v. Prescoti, 4 C. B. 578 ; and see Beg. v. Charretie, 13 Q. B. 447. (6) Ddisle and DeHsle, Bob. Dig. 89. (c) WUdes v. RusseU, £. E. 1, C. P. 722. (d) Be Wallace, L. B. 1, P. C. App. 295, per Lord Wextbwry. MISCONDUCT BY OFFICERS. 149 pressive, vindictive or corrupt motives, influenced the mind, and prompted the act complained against, (a) 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 : — Held that, even if his conduct were erroneously treated by the Judge as contemptuous, and, consequently, the adjudication of contempt would, on a full and deliberate examination, be found incorrect, this would afford no ground whatever for a criminal informa- tion, (b) It has been questioned whether a criminal information is proper in the case of a Judge of an inferior court of civil jurisdiction in relation to a matter over which he has exclusive jurisdiction, (c) In Reg. v. Ford (d), an application was made for leave to file a qui tarn information against a Judge of a Eecorder's Court, upon the grounds that he had falsified the records of the Court, and maliciously condemned applicant as guilty of felony, upon the verdict of his peers, when, as alleged, no verdict whatever was found by the jury. The facts to support the application were, that the jury came into Court to render their ver- dict, and the foreman pronounced a verdict of guilty. The counsel of the accused then personally questioned some of the Jury as to the grounds of their verdict, when one of them said that he did not concur in the verdict. The attention of the Court was not drawn to this dissent, nor did it appear that they were aware of it. A verdict of guilty was recorded by the presiding Judge, and when formally read to the jury by the clerk, no objection was made. The affidavits filed in answer totally denied that (o) Re Recorder and Judge D. C. Toronto, 23 U. C. Q. B. 376. (6) lb. fc) lb. (d) 3TJ.C.C. P. 209. 15l) CRIMINAL LAW Of CANADA. the Judge was actuated by any improper motive's, and alleged that he was throughout desirdtts of doing his duty in a fair and impartial manner, without bias or affection for or towards any person or persons whomsoever. , The affidavits further shewed that the Judge was not aware of what passed between the counsel of the accused and the jury, nor had he any information that the jury had not agreed, or the least intimation that there was any dissentient among them. The information was refused. * An attachment has been granted against Commissioners of a Court of Bequests, for trying a cause in which they were interested, (a) 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 indictment or criminal information in the Queen's Bench, (b) It is a well-established maxim of law that no one shall foe a judge in his own cause, and the general rule applic- able 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. (c) In oases of necessity, 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 protec- tion of an Act of Parliament, though he is a necessary party to its passing, as the G-overnor of a Colony, there being no analogy between judicial and legislative pro- ceedings in this respect, (d) A direct pecuniary interest in the matter in dispute disqualifies any person from acting as a Judge in such (a) Sex v. iPIntyre Taylor, 22. (6) Burns Jus., vol, iii. 144-5, 13 edn. (c) Phillips v. Eyre, L. B. 6, Q. B. 22, per Wittes, J. id) lb. 22, per Willes, J. OFFICERS INTERESTED. 151 matter, (a) The interest, however, which disqualifies at common law must be direct and certain, not remote or contingent, (b) The mere possibility of bias in favour of one of the parties- does not ipso facto avoid the Justice's decision; in order to have that effect, the bias must be shewn at least to be real. The Corporation of B. were the owners of water-works, and were empowered by Statute to take the waters of cer- tain 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 enquiry, the Justices granted the certificate. Two of the Justices were trustees of a hospital and friendly society respec- tively, each of which had lent money to the society on 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 cestui 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 honafide : — Held that the Justices were not disqualified from acting in the granting of the certificate, and the Court refused a certiorari for the pur- pose of quashing it. (c) But if a Judge is really biassed in favour of one of the parties, it would be very wrong in him to act, and seems the Court would interpose in such case, (d) (a) Beg. v. Band. L. R. 1 Q. B. 232. per Blackburn, J. (6) Beg. v. M. S. & L. By. Go., L. R. 2 Q. B. 339, per Mellor, I. (c) Beg. v. Band, L. R. l'Q. B. 230. (fit) lb. 233, per Blackburn, J. 152 CRIMINAL LAW OF CANADA. It seems no objection to a Justice that he is remotely connected with one of the parties, so long as there is no consanguinity or affinity, (a) 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 pres- ent disturbance, 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 delicto, while there is otherwise danger of escape, or to suppress ' an actual disturbance, and enforce the law while it is in the act of being resisted, (b) 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 $1,000, 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, (c) The giving io one person of a trade a benefit which another of the same trade does not get also, is a monopoly of the worst description ; (d) and a by-law passed for such a pur- pose would be void. Rules in restraint of trade are not criminal, though they may be void as against public policy, (e) Nor are strikes necessarily illegal, and their legality or illegality must depend on the means by which they are enforced, (a) Beg. v. Comrs. High Ways, St. Joseph, 3 Kerr, 583. See also on this sub- ject Wildes v. Bussell, L. R. 1 C. P. 722; Ex parte Leonard, 1 Allen, 269. (6) Powell v. Williamson, 1 U. C. Q. B. 166. per Robinson, C. J. (c) Pirie and the Corporation of Dundas, 29 IT. C. Q. B. 401. id) lb. 407, per A. Wilson, J. \e) Beg. v. Stainer, L. R. 1 C. C. It. 230, 39 L. J. (M. C.) 54. MONOPOLY. 153 and upon their 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, (a) " The Trade Unions Act, 1872," declares that the pur- poses of any Trade Union shall not, by reason merely that they are in restraint of trade, be deemed to be un- lawful, so as to render any member of such Trade Union liable to a criminal prosecution for conspiracy, or other- wise. By an Act of the last session of the Dominion Parlia- ment, 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 threat- ening 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 workman, 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 carry- ing on his business, or the number or description of any persons employed by him — shall be guilty of an offence against the Act, and shall be liable to imprisonment, with or without hard labour, for a term not exceeding three months. (a) Farrer v. Close, L. R. 4 Q. B. 612, per Bannen, J. ; Hilton v. Eckmly . &B. 47. 154 CRIMINAL LAW OF CANADA. 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 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 per- sons he follows such other person, in a disorderly manner, in or through any street or road. By the 32 & 33 Vic, c. 20, s. 42, assaults in pursuance •of any. unlawful combination or conspiracy to raise the rate of wages, are punishable as misdemeanors. These Statutes, in a great measure, assimilate the law as to trades unions and strikes to that existing in Eng- land. Several cases have been decided in England, which may assist in the construction of the Canadian Statutes, (a) A by-law of Frederickton, to regulate the public market, required the stalls in the market to be leased annually, and declared that the lessee of a stall should Teceive from the Mayor a license to occupy, and that any person occupying without license should be liable to a penalty: — Held, in a prosecution for the penalty, that "the only question was, whether the defendant had a license, (b) Champerty and Maintenance. — The offence of champerty (o) See Beg. v. Bykerdike, 1 M. & Rob, 179 ; Beg. v. Bovilam.de. 2 Den, 364, 17 Q. B. 671; Beg. v. DuffiM, 5 Cox, 404 ; Walsby v. Anley, 30 L. J. (M. C.) 121 ; O'Neill v. Longman, 4 B. & S. 376 ; O'Neill v. Kruger, 4 B. &. S. 389 ; Beg. v. DraiU, 10 Cox, 592, 601-2 ; Beg. v. Shepherd, 11 Cox, 325; Beg. v. Selsby, S Cox, C. C. 495; Milton v. Eckersly, 6 E. &B. 47-53; 24 L. J. Q. B. 353; Bornby v. Close, L. B. 2 Q. B., 153 ; Beg. v. Burnt, 8 C. & P. 642 ; Beg. y. Bern*, 5 Cox, C. C. 162. (6) Ex parte MiUigam,% Allen, 583; see as to forestalling, Wilson v. Corpora- tion, St. Catherines, 21 U. C. C. P. 462. CHAMPERTY AND MAINTENANCE:. 155 is dfefaed in the old books to be the unlawful mainten- ance of a suit* in consideration of some bargain to have part of the thing in dispute, or some profit out of it. (a) The object of the law is not so much to prevent the purchase or assignment of a matter in litigation, as the purchase or assignment of a matter in litigation, -with the object of maintaining and taking part in the litigation, (b) All the cases of champerty and maintenance are founded on the principle that no encouragement ishould be given to litigation by the introduction of parties to enforce thbse rights which others are not disposed to enforce, (c) The principles of the law of maintenance are recog- nised and adhered to in the modern cases, (d) But the general doctrines of the law are largely modified, and restrained in- their operation to cases where there is dan- ger of oppression or abuse ; (e) or where a man impro- perly, and for the purpose of stirring up litigation or strife, or of profiting by it, encourages others to bring actions, or make defences, which they have no right to make, (f) Champerty is punishable at common law. (g 1 ) It seems the Crown is bound by the law on this subject. In Smyth v. McDonald, (Ji) it was held that the Crown must first eject the occupant before selling land of which it is not in possession ; arid that neither the 32 Hy. 8, c." 9, nor the ordinary principles of the common law, allowed the conveyance of such land by the Crown, (t) The plaintiff" having recovered judgment against B. & ■{a) Carr v. Tannahill, 30 TJ. C. Garr v. Tamnahill, supra, 227, per Morrison, J. (e) Allan v. M'Heiey, I Oldright, 121, per Young, C. J. (/) lb. 122, per Young, 0- J. (g) Scott v. Henderson, 2 Thomson, 116, per HaUbwrton, C. J. the jury whether an alleged libel is contained in an official document and privileged communication. (6) In an action for libel, the evidence adduced at the trial, in proof of the libel, was, that the defendant, with some others, while at work in his field, were talking of prayer- meetings. Upon being told that the plaintiff, and others, were going to hold the next prayer meeting at his house, he stated that he had no objection to the others, but would not allow the plaintiff to come ; and, upon being pressed to state his reasons, said that the plaintiff had been guilty of bestiality. Upon being asked, on a second occasion, to withdraw his words, he refused, and said he was not mistaken, and would go and take his oath of it, if they liked to go down with him before the Magistrates. The learned Judge left the question of bona fides to the jury, directing them that, if the defendant, .through mis- take, bona fide believed what he stated, the occasion would justify the statement. The jury having found for the (o) Stace v. Griffith, L. B. 2 P. 0. App. 428, per Li. ChOmeford. \b)Jb. 186 CRIMINAL LAW OF CANADA. plaintiff, upon motion for a new trial, the Court held that, there being intrinsic evidence for the Jury to decide upon, the case could not properly be withheld from their decision; second, that the question being whether the defendant honestly believed what he said to be true, not whether it was in fact true, the case was properly left to the jury, and their decision was final, (a) This case was reversed in appeal, on the ground that the bonafidesis made out when the privilege is ascertained. The truth of the words is assumed to support the privi- lege, and the defendant is not called upon to prove it. (b) In some cases the presumption of privilege is alto- gether conclusive, and the law will not allow any evi- dence 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 community requires that all such public proceedings should be perfectly un- restrained 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 ex- punging all defamatory matters, if irrelevant from the proceedings, and of obliging the offending party to make satisfaction, (c) 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, (d) The defendant, hearing that a tradesman had been (a) M'Cullough v. M'Intee, 13 U. C. C. P. 438. (6) S. C. 10 U. C. L. J. 238, (in B. & A.) (e) Stamton v. Andrews, 5 U. C. Q. B. 0. S. 221, et seq., per Sherwood, J. (d) Damkim v. Ld. Paulet, L. R. 5 Q. B. 101, per Gockbwrn, C. J. LIBEL. 187 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 : Held that, even if the letter was a libel, it was a privi- leged communication, (a) 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 Eegistrar under the Statute, were wilfully false, such report not having been published by the vestry, held that the publication of it was not privi- leged, (b) A churchwarden having written to the plaintiff, the incumbent, 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 apart- ment, the correspondence was published without the plaintiffs permission, in the defendant's newspaper, with comments on the plaintiff's conduct : — 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, (c) A charge against the plaintiff of wrongfully taking the defendant's logs, sawing them into lumber, and sell- ing it, was contained in a letter written by the defendant, to one M., an intimate friend of his, who was a nearrelative to the plaintiff, but in no way interested or concerned in (a) Croft v. Stevens, 8 U. C. L. J. 280 ; 7 H. & N. 570. ft) Popham v. Picklmm, 8 U. C. L. J. 335 ; 7 H. & N. 891 ; 31 L. J. (Ex.) («) Kelly v. Tinting, L. B. 1 Q. B. 699; 35 L. J. (Q. B.) 231. 188 CRIMINAL LAW OF CANADA. 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 law suits, and the alleged interested motives of his attor- ney. M. being absent from the country, the letter was opened by his agents and relatives, and became public : — Held that this was not a privileged communication, (a) It seems the 67th section of 32 & 33 Vic, c. 29, will apply to cases of libel. In Hughes v. Dinorben, (b) to prove that libels declared on were written by the defen- dant, certain documents, admitted to be in his handwrit- ing, 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 comparison of the hand- writing in dispute, and no objection was made by defen- dant's counsel : — Held that these seven anonymous letters were admissible — that they were relevant to the issue to shew 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's instance, in a newspaper, it appeared that the editor, who was not indicted, before inserting the libel, shewed it to the prosecutor, who did not express any wish to suppress the publication, but wrote a reply, which was also inserted : — Held not such a defence for the parties indicted as to render a conviction illegal, (c) (a) Cormicle v. Wilton, 2 Kerr, 496 ; lb. 617 ; and see Andrews v. Wilxm, 3 Kerr, 86. (6) 32 L. T. Rep. 271. (c) Beg. v. nPElderry, 19 U- C. Q. B. 168. See, as to justification, Stewart y. Rowland!, 14 TJ. C. C. P. 485 ; Sill y. Hogg, 4 Allen, 108. RIOT. 189 Gn an application for criminal information for libel, the Court is placed in the position of a grand jury, and must have the same amount of information 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. Therefore, the application for a criminal information must be rejected, unless the libel is filed with the affidavit on which the application is based, (a) Under the Con. Stats. TL C, c. 103, a plea to an infor- mation for libel must allege the truth of all the matters charged. (6) 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 ambi- guous. 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, (c) 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 mean- ing was intended and proved, (rf) Riot. — This offence is defined to be a tumultuous dis- turbance of the peace, by three persons or more assembling together, of their own authority, with an intent mutually to assist one another against any 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 unlawful, (e) fa) Ex parte Qugy, 8 L. 0. B. 353. (b) Reg. v. Moylan, 19 TJ. 0. Q. B. 521. (c) Somers v. Honse, Holt 39. (A) Start v. Bragg, 10 Q. B. 908 ; Anonymous 29 TJ. C. Q. B., 462, per Wilson, J. {e) Beg. v. Kelly, 6 TJ. C. C. P. 372, per Draper, C. J. 190 CRIMINAL LAW OF CANADA. The difference between a riot and an unlawful assem- bly is this : the former is a tumultuous meeting of per- sons, upon some purpose which they actually execute with violence, 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 execute, (a) 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 to execute the purpose which, if executed, would make them rioters, (b) The case of Reg v. Kelly (c) fully maintains the dis- tinction between a riot and unlawful assembly. In this case, the defendant was indicted for riot and assault, and the jury found him guilty of a riot, but not of the assault charged : — Held that a conviction for riot could not be sustained, for the assault, the object of the riotous assem- bly, had hot been executed, but that the defendant might have been found guilty of forming part of an unlawful assembly, (d) It was considered that the assault was the enterprise of a private nature, in the words of the defini- tion of riot, and that it must be afterwards actually exe- cuted with violence to constitute the offence. 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; (e) 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 (o) Reg. v. Kelly, 6 U. C. C. P. 372 ; Rex v. Bwt, 5 C. & P. 154. (6) See Rues. Or. 387 ; Reg. v. Vincent, 9 C. & P. 91. ( c ) Supra. \i) lb. (e) R. v. Scott, 3 Burr, 1262; 1 W. Bl. 291 ; R. v. SaaVmry, 1 Ld. Baym 484 ; Salk, 593; Arch. Cr. Pldg. 841. RIOT. 191 treason, by levying war against the Queen, (a) The offence must also be accompanied with some such cir- cumstances either of actual force or violence, or, at least, of an apparent tendency thereto, as are naturally calcu- lated to inspire people with terror, such as carrying arms, using threatening speeches, turbulent gestures, etc. (6) But it is not necessary that personal violence should have been committed, (c) It is sufficient terror and alarm to sustain the indictment if any one of the Queen's subjects be in fact terrified (d) To some extent it is necessary that there should be a predetermined purpose of acting with violence and tumult, ; and if parties met together on a lawful and innocent occasion, 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, (e) But it seems to be immaterial whether the act intended to be done by the persons assembling be in itself lawful or unlawful. (/) "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, (g) In order to render him so liable, it must be shewn that he did something, by word or act, to take part in, help, or incite the riotous proceeding. (A) It is not necessary to constitute a riot that the Eiot Act (t) should be read. Before the proclamation can be read, a riot (a) Buss. Cr. 379. . , „ ™, „,„ ft) B. v. Hughes, 4 C & P. 373; Arch. Cr. Pldg. 842. (c) Clifford v. Brandon, 2 Camp, 369, per Mansfield, C. J. ; Buss. Cr. 379. (d) B. v. Phillips, 2 Mood. C. C. 252; C. & Mar. 602 j Arch. Cr. Pldg. 842. (e) Buss. Cr. 381. (f) lb. 380. (g) Beg. v. Atkinson, 11 Cox, 330, per Kelly, C. B. p, »j 31 Vic, c. 70. 192 CRIMINAL LAW OF CANADA. 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, (a) An assemblage of persons to witness a prize fight is an unlawful assembly, and every one present and coun- tenancing the fight is guilty of an offence, (b) By the common law, every private individual may lawfully endeavour, 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 dispersing, 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 boanden 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, it is the duty of 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, (c) This power and duty devolve upon a Governor of a colony, as well as others, in case of riot and rebellion, (d) By the 31 Vic, c. 70, s. 5, persons suppressing a riot are jus- tified, 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 (a) S. v. Funey, 6 C. & P. 81. (6) B. v. BelUngham, 2 C. & P. 234 ; R. v. Perkins, 4 C. & P. 537 : Arch. Cr. Pldg. 842-3. (c) PhUUps v. Eyre, L. K. 6 Q. B. 15, per WiUet, J. , (<«) lb. FORCIBLE ENTRY OR DETAINER. 193 tenements with menaces, force, and arms, and without the authority of the law. (a) It is a misdemeanor at common law, and there is no doubt an indictment will He at common law for a forcible entry, if accompanied by such circumstances as amount to more than a bare tres- pass, and constitute a public breach of the peace, (b) The object of prosecutions for forcible entry is to re- press high-handed efforts of parties to right them- selves ; (c) 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, (d) The Stats. 8 Hy. 4, c. 9, 8 Hy. 6, c. 9, 6 Hy. 8, c. 9, and 21 Jac. 1, c. 15, as to forcible entries, seem to be in force in this country, (e) 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 proceeded against as such, if no enquiry has before been made of the force, (h) It has been held that the private prosecutor, on an indictment for forcible entry or detainer, cannot be ex- amined as a witness, if the Court may order restitu- (a ) Rttss. Cr. 421. (V) B. v. Wilson, 8. T. R. 357 ; B. v. Bake, 3 Burr, 1731 ; Arch. Or. PIdg. 851. \c) Beg. v. Connor, 2 U. C. P. R. 140, peiBobinson, C. J. (d ) Newton v. Borland, 1 M. & Gr. 644 ; Butcher v. Butcher, 7 B. & C. 399 ; 1 M. & R. 220 ; Hillary v. Gay, 6 0. & P. 248 ; Russ. Cr. 421-2, (e) Ante p. 22. ( /) Boswell and Loyd, 13 L. C. R. 10 per Maguire, J. (g) Russ. Cr. 428. (A) lb. 194 CRIMINAL LAW OF CANADA. ticm.(a) 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, and the (Ont.) 33 Vic, c. 13. If, since the forcible entry, the prosecutor has been restored to possession, he may be a witness. (6) An inquisition taken before a Justice is bad if it ap- pears 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. 4, c. 9, expressly requires that persons who are to pass on such an inqui- sition should have lands of that value, (c) The notice is not required by the 8 Hy. 6, c. 9, but the uniform course of criminal proceedings makes 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 of his house or land upon a complaint of which he has no knowledge, (d) On an indictment for forcible entry or detainer of land, evidence of title in the defendant is not admissible (e) 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 goto trial, and were convicted, a writ of restitution was afterwards refused, though, semble, it would, in any case, have been improper to delay the trial for the reason urged. (/) An inquisition for a forcible entry, taken under 6 Hy. 8, c. 9, must shew what estate the party expelled had in (a) Reg. v. Httghson, Rob. Dig. 124 ; R. v. Raman, Ry. & M. 242 ; R. v. Williams, 4 Man. & R. 471 ; 9 B. & C. 549. (b) Reg. v. Sughson, swpra. ' (c) Rex v. M'Kreavy. 6 TJ. C. Q. B. 0. S. 620. (d) lb. 626, per Robinson, C. J. (e) Reg. v. Cokely, 13 U. C. Q. B. 521. (/) Reg. v. Connor, 2 U. C. P. R. 139. FORCIBLE ENTRY OR DETAINER. 195 the premises, and if it do not, the inquisition will be quashed, and the Court will order restitution, (a) The 8 Hy. 6, c. 9, was construed to authorize restitu- tion only in cases where the person expelled was seized of an estate of inheritance. . The 21 Jac. 1, 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 for a term less than a year, (b) When the inquisition, finding a forcible entry is quashed, the Court, upon the prayer of the party dispossessed under the Justices' writ, must award a writ of restitution to place him in possession, (c) It was formerly held that where the prosecutor had been examined as a witness, restitution should not be granted, (d) This was because the evidence Act, 16 Vic, c. 19, excluded any claimant or tenant of premises sought to be recovered in ejectment. The late Act does not affect criminal proceedings, so that the decision will still, perhaps, hold in Ontario. 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 in the land, there was a general verdict of guilty ; a writ of restitution was refused, it ap- pearing that- the lease of the land had expired, (e) Restitution cannot be awarded to one who never was in possession, or one who never has been dispossessed. (/) The Court of Queen's Bench had at common law no jurisdiction to issue a writ of restitution, except as part of the judgment on an appeal of larceny, (g-) But, by an equitable construction of the Statute^ it has now a dis- cretionary power to grant a writ of restitution, (h) (a) Mitchell v. Thomson, 5 IT. C. Q. B. 0. S. 620. (6) Bex. v. M'Kreavy, 625, per Robinson, C. J. (c) lb. 626, per Bobmson, C. J. id) Beg. v. Connor, 2 IT. C. P. R. 139. (e) Bex v. Jackson, Draper, 53. (/) Boswell cmdLfiy^, 13 L. ,C. R. 11, ptfrMaguin, J. (ff) Beg. v. Ld. Mayor jOondo/n, L. R. £,Q. B. 371. (h) Mitchell v Thompson, 5 U. 0. Q. B. 0. S. 628, per Robinson, C. J. 196 CRIMINAL LAW OF CANADA. Where the defendant, having been convicted at the Quarter Sessions on an indictment for forcible entry was fined ; but that Court refused to order a writ of restitu- tion, and the case was removed into the Queen's Bench by certiorari, and a rule obtained to shew cause why a writ of restitution should not be issued : — Held that it was in the discretion of this Court either to grant or refuse the writ ; and, under the circumstances, the ver- dict being against the charge of the learned chairman, and he having declined to grant the writ, and the prose- cutor's case not being favoured, it was refused, (a) The Court of Greneral 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, (b) 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 enquiry before a jury, on a regular inquisi- tion. The statement that the Justices in Court, or out of Court, may award a writ of restitution only holds to the extent above-mentioned, (c) 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 conviction, (d) 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, (c) But where the defendant, and persons with him, having entered a (a) Beg. v. Wightman, 29 U. C. Q. B. 211. (b) Boxwell and Loyd, 13 L. 0. E. 6. (c)Ib. (d) Bex v. WKreavy, 5 TJ. C. Q. B. 0. S. 629, per Sherwood, J. (e) Bex v. Smyth, 1 M. & Rob. 155 ; 5 C. & P. 201. NUISANCES. 197 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, (a) A wife may be guilty of a forcible entry into the dwel- ling-house of her husband, and other persons also, if they assist her in the force, although her entry, in itself, is lawful, (b) Nuisances. — It has been said there are three kinds of nuisances — namely, public, common, and private, (c) To constitute a public nuisance, the thing complained of mast be such as, in its nature or its consequences, is a nuisance, an injury or damage to all persons who come within the sphere of its operation, though it may be in greater or less degree, (d) Throwing noxious matter into Lake Ontario, or any other public navigable water, is a public nuisance, and the person guilty thereof is liable to an indictment for committing a public nuisance, or to a private action, at the suit of any individual distinctly and peculiarly in- jured, (e) So obstructions to navigable rivers are public nuisances. (/) So if one person has a mill, by prescrip- tion, in his soil, and another erects a mill upon his soil, by which the stream to the mill of the former is strait- ened or stopped, or by which too great a quantity of water runs thereto, so that the mill is endangered, and cannot grind as much as it was wont; this is a nuisance to the mill. (§■) The collection of a crowd of noisy and disorderly (a) Beg. v. Martin, 10 L. C. R. 435. (b) Bex. v. Smyth, 1 M. & Rob. 155 ; Arch. Cr. Pldg. 849. ( c) Little v. Ince, 3 U. C. C. P., 545, per Macaulay,. (J. J. (d) lb ; Beg. v. Meyers, 3 U. C. C. P. 333, per Macaulay, C. J. (e) Watson v. City Toronto Qas and Water Go., 4 U. C. Q. B. 158. (/) Brown and Gugy, 14 L. C. R. 213. (g) Mills v. Dixon, 4 U. C. C. P. 227, per Macaulay, C. J. 198 CRIMINAL LAW OF CANADA. people, to the annoyance of the neighbourhood, or out- side grounds, in which entertainments with music and fireworks are given, for profit, is a nuisance, for which the giver of the entertainment 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, (o) 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 indictment to remove it. (b) All disorderly houses are public nuisances, and may be indicted, (e) Where the defendants, as master and mistress resided in a house to which men and women resorted for the purpose of prostitution, but no indecency or disorderly conduct was perceptible from the exterior of the house : — Held that the defendants were guilty of keeping a disorderly house, (d) But a conviction, under the 32 & 33 Vic, c. 32, for keeping a house of ill fame, or being an inmate of such a house, adjudicating that the accused should pay a fine of $50 forthwith, and be im- prisoned for three months, unless the fine be sooner paid, is not warranted by s. 17 of the Statute, for im- prisonment is only authorized by the Act, when it has been awarded as a substantive punishment, (e) It would seem that though a Magistrate may have a general jurisdiction to hear any complaint against a dis- orderly inn or house, he has no right to issue a warrant to arrest a casual guest, quietly visiting a licensed tavern as a guest, at a time subsequent to the charge, and in no (a) Walker v. Brewster, L. R. 5 Sq. 25. ( b) Lawraaon v. Paul, 11 U. C. Q. B. 537, per Bobvitton, C. J. (c) Rubs. Cr. 442. (d) Beg. v. Rice,!,. R. 1 C. C. R. 21; 35 L. J. (M. C.) 93. (e) Re Slater, 9 TJ. C. L. J. 21. NUISANCES. 199 way present at or assisting in any disturbance or disorder, and this though the information dharges the house to be a common disorderly ill-governed house, and a common nuisance in the neighbourhood, and the warrant is to apprehend the keeper thereof, and all others found therein, (a) In general, all open lewdness, grossly scandalous, is indictable at common law, and it appears to be an estab- lished principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor, (b) 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 : — Held that the jury might well find the urinal to be a public place, and that, there- fore, the conviction was good, (c) By the 10 & 11 w"m. 3, c. 17, all lotteries are declared to be public nuisances, (d) Where one hundred and forty-nine lots of land were.sold by lottery, the person getting No. 1 ticket to have the first choice : — Held that ihis was a lottery,* though it did not appear there was any difference in the value of the lots. The lottery con- sisted in having a choice of the lots, and that choice was to be determined by chance, (e) A sale of land by lot, in which there are two prizes, comes within the Imp. Stat. 12 Geo. 2, c. 28. (/) So the non-repair of a highway, or the obstruction thereof, is a nuisance, indictable at common law. {g) A dam erected on a stream, without a proper apron or slide, in accordance with the 12 Vic, c. 87, is such a (a) Cleland v. Robinson, 11 TJ. C. C. P. 421, per Hagariy, J. (6) Buss. Cr. 449. (c) Reg. v. Harris, L. K. 1, C. C. E. 282. (d) Cronyn v. Widder, 16 TJ. C. Q. B. 361, per Robinson, C. J. (e) Power v. Oarmig, 18 TJ. C. Q. B. 403. .(/) Marshall v. Piatt, 8 TJ. 0. 0. P. 189. (g) Reg. v. Corporation Paris, 12 TJ. G. 0. P. 450, per Draper, C. J. 200 CRIMINAL LAW OF CANADA. private nuisance to the owners of saw logs ready to pass, but prevented from passing thereby, as may be abated by them, (a) The proper remedy for a public nuisance is by indict- ment. 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, (b) An indictjnent is the proper remedy in all cases, except when a charter, which is assumed to be a contract be- tween the parties obtaining it and the public that the road will be constructed, has been obtained to construct the road, and the work has never been done, in which latter case the proper remedy is mandamus. A mandamus nisi having issued to compel a municipal corporation to repair and build a bridge, it appeared, on the return, that the liability was disputed on several grounds, it being contended that the bridge did not be- long to the defendants, that it was not constructed on the site provided by the charter of the original company which built it, and was in an unfit and dangerous place, and that it should be repaired by another municipality': — Held that, under these circumstances, a mandamus would not lie, and that the applicants must proceed by indictment, (c) The circumstance that the thing complained of fur- nishes, on the whole, a greater convenience to the public than it takes away, is no answer to an indictment for a nuisance, (d) As to highways, the test, irrespective of (a) Little v. Ince, 3 U. C. C. P. 545-6. (5) Small v. G. T. R. Co. 15 TJ. C. Q. B. 283. (c) Reg. v. Corporation Haldimand, 20 U. C. Q. B. 574. (d) Reg. v. Bruce, 10 L. C. R. 117 ; Reg. v. Meyers, 3 XT. C. C. P. 323, per Macaulay, C. J. ; R. v. Ward, 4 A. & B. 384, 6 Nev. & M. 38. NUISANCES. 201 the balancing of the advantages against the impediments, is, whether the obstruction is prejudicial to the public to a degree amounting to a nuisance in fact, that is, directly, however beneficial collaterally, (a) Though a nuis- ance 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, (b) » 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 pri- vate, and though on the soil of another, (c) But a private individual cannot abate a public nuisance, unless by reason of some special inconvenience or prejudice to him- self, or an occasion to require and justify it. (d) 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, (e) The defendant was convicted by a jury of a nuisance in keeping in a building an excessive quantity of gun- powder. Having failed to establish at the trial that he had abated and prostrated the nuisance, the Court there- upon adjudged that he should pay to Her Majesty £50, and be imprisoned until the fine was paid, and ordered the Sheriff forthwith to abate the nuisance, by the imme- diate destruction of the powder. (/) Where the defendant neglects to abate the nuisance,, the Court will compel its abatement through the Sheriff. (a) Beg. v. Meyers, 3 IT. C. C. P. 323, per Macaulay, C. J. ; and see Rome v. Titus, 1 Allen, 326. lb) Beg. v. Brewster, 8 TJ. C. C. P. 208. \c) Little v. Inee, 3 U. C. C. P. 545, per Macaulay, C. J. \d) lb. 545, per Macaulay, C. J. ; and see Dimes v. Petley, 15 Q. B. 276 ; Beg. v. Meyers, supra, 333, per Macaulay, C. J. (e) Beg. v. Pattern, 13 L. 0. E. 311. (f) Beg. v. Dunlop, 11 L. C. J. 186. 202 CRIMINAL LAW OF CANADA. An indictment had been preferred against the defendant, in a previous term, for a public nuisance, and judgment obtained ordering its abatement, the Court, on an affida- vit that the nuisance had not been abated, made a rule absolute for a precept to the Sheriff to abate the nui- sance, (as) A party is liable to fresh actions for continuing a nuis- ance. (6) 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) A conviction by a Magistrate for obstructing a highway, and order to pay a continuing fine until the removal of such obstruction, was held bad, as unwar- ranted by any Act of Parliament, (e) Twenty years' user will not legitimate a public nuis- ance. (/) The maxim that no length of time will legalize such nuisance generally holds ; (g) but as applied to a question 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 con- sideration, (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 (a) Reg. v. Hendry, 1 James, 105. (6) Drew 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. It. 1 Q. B. 702. 35 L. J. (Q. B.) 251. (dj Brass v. Huber, 18 IT. C. Q. B. 286, per Robinson, C. .T. \e) Reg. v. Huber, 15 IT. C. Q. B. 589. (f) Reg. v. Brewster, 8 IT. 0. C. P. 208. (fir) See R. v. Cross, 3 Camp. 227 ; 4 Bing. N. C. 183. (h) Rex v. Allan, 2 IT. C. Q. B. O. S. 105, per Maewulay, C. J. NUISANCES TO HIGHWAYS. 203 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, arti- ficially 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. (a) In the year 1826, the original town plot of London was surveyed under instructions from the Crown, and the plan of such survey, with the field notes, shewed that two of the streets, for obstructing portions of which the defendant was indicted, were extended to within four rods of the river Thames, which runs through that town. The overseer of highways for the years 1829, 1830, 1831, stated that he had traced the streets in question all through ; that the posts were there ; that he opened the streets by the posts ; that there was a road reserved four rods along the river bank; that one of the streets ran down to the river, and the pos(s were then four rods from the river when he opened that street. In 1832, one E. was duly instructed to survey a mill site in the town, and to lay off for the purchaser such ground as might be necessary, and he thereupon ran a line which crossed these t wo streets as designated upon the original plan, and cut off portions of several town lots laid out upon this plan. In 1839, a mill site was sold by the Crown land agent to one B. (under whom the defendant claimed), not ac- cording to R.'s survey, but according to a small plan ob- tained from the origirial surveyor; and the patent, which issued in 1846, appeared to grant the land designated on this plan, making no reservation of streets, but including (a) Beg. v. Meyers, 3 IT. C. 0. P. 352, peTMacaulay, (J. J. 204 CRIMINAL LAW OF CANADA. the extensions to the river of the streets in question, as laid out upon the original plan. Previously, also, to this sale, lots had been sold on these streets by the proper authorities ; the streets had been worked and improved, and one in particular was open to the river, and the other as far as where the ob- struction stood. Held, affirming the judgment of the Court of Common Pleas {a), that the evidence conclusively established that the streets in question had been laid out in the original survey of the town to within four rods of the river, and that this space was left open for public use ; that the existence of these streets as public highways was shewn bj the work on the ground at the original survey, and by the adoption, on the part of the Crown, of that work as exhibited on the plan thereof returned, which adop- tion was established by the disposition of lands according to that plan and survey ; that thereby these streets be- came public highways ; and although, prior to such adop- tion, the Crown would not have been bound by either plan or survey, after such adoption there was no power of making such an alteration as would be necessary to establish the defence set up. (b) Where, for a period of more than twenty years, there had been travelled roads through the Humber plains in the Township of Etobicoke, not laid out by any proper authority, but used by the public at pleasure, owing to the original allowances not having been opened. They were irregular in their direction, and varied, at times, in their course. On the 31st March, 1835, seven hundred acres, including the defendant's lo't, "with allowances for roads, as left by the survey of Deputy-Surveyor Hawkins, s a) 16 V. C. C. P. 145. r. v. Hunt, 17 XT. C. C. P. 443 (in E. & A.) KUISANCES TO HIGHWAYS. 205 and all other roads now travelled," were granted to trus- tees for Christ Church, Mimico, and subsequently trans- ferred by them to the Eector, under whom defendant held. One of such roads crossed defendant's land. It was proved that, during two years, statute labour had been performed upon it, and that it had been travelled for nearly fifty years. When the regular allowances were opened, defendant obstructed this road, and it ap- peared that other similar roads in the neighbourhood had been closed in the same manner : — Held that the road could not be considered a highway, for the evidence shewed not a perpetual dedication, but at most a permis- sion to use until the proper allowance was opened, when, if not before, the defendant had a right to close it. (2) That it was not a highway under the 29 &. 30 Yic, c. 51, s. 315, for it could not be said that statute labour 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. (3) That no right by dedica- tion could have been gained by the public while the fee remained in the Crown, and the permission of the Eector for the time being, or his tenants, could not bind his suc- cessors, (a) The 315th clause of the 29 & 30 Vic, c. 51, cannot be taken to mean that every bye road or short cut used by the Indians across the plains or fiats is to be established as a permanent highway. It only means that" roads which, under the provisions of that Act, are to acquire -the character of legal highways, should have that same legal character where they passed through Indian lands, as in other parts of their course, although they might jiot be public allowances made in any original survey, (a) Reg. v. Plmnkett, 21 TJ. C. Q. B. 536. 206 CRIMINAL LAW OF CANADA. nor had any public money been expended, or statute labour performed on them, (a) 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 shew 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 denned 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 : — Held, that there was not sufficient evi- dence to support the conviction, and it -was, therefore, quashed, (b) The roads of joint-stock companies are not public roads or highways, within the meaning of 22 Vic, c. 54, s. 336. (c) Under Con. Stats. U. 0., c. 54, s. 313, the fact of the Government surveyor having laid out a road in his plan of the original survey, would make it a highway, unless there was evidence of his work on the ground clearly inconsistent with such plan, (d) A public road, laid out in the original survey of Crown lands, by a duly authorized Crown surveyor, is a publie 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, (e) (a) Byrnes v. Bourn, 8V. C. Q. JB. 181. (6) Beg. v. Oueliette, 15 U. C. C. P. 260. (c) Meg. v. Brown and Street, 13 U. C. C. P. 356. (d) Carrick v. Johnston, 26 IT. C. Q. B. 69. (e) Beg. v. Hunt, 16 U. C. C. P. 145. NUISANCES TO HIGHWAYS. 207 The defendant being indicted for overflowing a high- way with water, by means of a mill dam maintained by him, objected that there was no highway, and could be no conviction, 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 impos- sible, owing to the overflow: The overflow was at other parts than those so enclosed : — Held that the conviction was clearly right, and the 335th section of the 29 & 30 Vic, c. 51, did not apply, because no other road had been in use in lieu of the proper allowance, nor had any road been established by law in lieu thereof, (a) The original public allowances for road made in the first survey of a township continued to be public high- ways, notwithstanding a new road deviating from any such allowance might have been opened under the pro- visions of the Statute 50 G-eo. 3, c. 1, or might have been confirmed as a highway by reason of statute labour or public money having been applied upon it. (b) Where, in the original plan of a township, a piece of ground was laid out as a highway, which was subse- quently granted by the Crown, in fee, to several indivi- duals, and was occupied by them, and others . claiming under them, for upwards of thirty years, and never had been used as a highway : — Held that an indictment for a nuisance for stopping up that piece of ground, claiming it as a highway, could not be sustained, (c) An indictment for obstructing a highway, laid out under 50 G-eo. 3, c. 1, could not be supported when the high- way had not been established in the manner marked out (a) Beg. v. Lees, 29 U. C. Q. B. 221. (6) Spalding v. Rogers, 1 TJ. C. Q. B. 269. (c) Bex v. 4-lUm, 2 TJ. C. Q. B. 0. S. 90. 208 CRIMINAL LAW OF CANADA. by that Statute, and could not, therefore, be considered as a public highway. And semble, in such a case, all the steps necessary to be taken before a highway could be legally established under that Act should be proved by the prosecutor to have been taken before the defendant could be found guilty, (a) 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 con- veyed to him the land to the water of the lake, there was no common or public highway along the beach, (b) 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 high- way, (c) A Government survey will prevail in establishing a highway against the right of a party in possession, to whom a patent afterwards issues, (d) 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 munici. pality, in 1866, passed a by-law shutting up the road ; but no conveyance was ever made to the plaintiff: — Held that the user for thirty years after the patent would be conclusive evidence of a dedication against the owner, and (a) Sex v. Sanderson, 3 TJ. C. Q. B. O. S. 103. (6) Parker v. Elliott, 1 U. C. C. P. 470. (c) Parker r. Elliott, supra, 490, per Sullivan, J. ,{d) Mwmtgoy v. Beg. 10 U. C. L. J. 122. NUISANCES TO HIGHWAYS. 209 that such, evidence was equivalent to a laying out by him, so that the road, under Con. Stat. U. 0, c. 54, s. 336, was vested in the municipality, (a) Under 4 & 5 Vic, c. 10, the District Council could not open a new road, except by by-law ; and where, therefore, no by-law was shewn : — Held that the road was not suf- ficiently established, and upon the evidence there was nothing to shew dedication, (b) A dedication of land to the public use takes effect from the intention of the person making it ; and merely open- ing or widening a street, for the convenience of the per- son doing it, or leaving land open where it is immediately adjacent to a highway, and permitting the public to use it, will not constitute a dedication, (c) 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 alterwards repaired and improved by statute labour and public money, and holes filled up in the part upon which the obstruction complained of was erected. After indictment, and ver- dict of guilty, it was held that there was sufficient evi- dence of intention to dedicate the street by the plan, by user and the declaration of the owner to establish a dedication, and that the verdict of guilty was in accord- ance with the evidence, (d) One H. owned a block of land fronting on Elizabeth Street, in Toronto, and running back to the centre of the block, between Elizabeth and Teraulay Streets. In lay- ing out the land, he ran a street or lane of forty feet from (a) Mutton v. Duck, 26 TJ. C. Q. B. 61. lb) Beg. v. Bankin, 16 TJ. C. Q. B. 304. !c) Bdford v. Baynet, 7 TJ. C. Q. B. 464. \d) Beg- v- Gordon, 6 TJ. C. C. P. 213. N 210 CRIMINAL LAW OF CANADA. Elizabeth Street to the limit of his own property, which was not enclosed or separated from the land adjoining. A short time after, and about seventeen years before the finding of the indictment, M^ the owner of the adjoining land to the east, fronting on Teraulay Street, erected a fence to enclose his own land, running across the head of the lane. H. had nothing t© do with the putting up of this fence, and there was no concert between him and M. as to the plan of survey, or the laying out of their respective properties. Gr., owning land bought from M., abutting on the head of the lane, threw down the fence, so as to make a thoroughfare to his own premises. The defendants, occupying lots in the lane, purchased from H., and contending that Gr. had no right to convert the lane into a thoroughfare to his own lot, re-erected the fence a few inches west of that pulled down, and thereupon Gr, procured them to be indicted for nuisance, in obstructing a public highway. A verdict of guilty was directed, subject to the opinion of the Court, on the facts above stated : — Held that the jury should have been directed to find whether the lane,, when first laid out, was dedi- cated by H. to the public as a highway generally, or whether, with reference to the Statute 13 & 14 Vic, c. 15, s. 1, there was an express reservation of any right by him. (a) In order to prove that a way was, in fact, public, evi- dence was given of acts of user extending over nearly seventy years, but during the whole period the land crossed by the way had been in lease. The Judge told the jury that they were at liberty, if they thought proper,, to presume from these acts a dedication of the way by the defendant, or his ancestors, at a time anterior to the- land being leased : — Held a proper direction, (b) {a) Beg. v. Spence, 11 IT. C. Q. B. 31. (6) Winter-bottom v. Lord Derby, L. K. 2 Ex. 316. NUISANCES TO HIGHWAYS. 211 A public highway may be established in this country by dedication and user ; but if the question arises be- tween the public and the owner of the land, in a newly settled part of the country, stronger evidence may be required than in a more settled and populous neighbour- hood. Land was granted to the Corporation of St. John,, in 1785, reserving a right to the Crown to enter on the land at any timej and erect barracks, batteries, etc. : — Held that this did not prevent the Corporation from dedicating a part of the land to the public for a highway, and that neither the running of lines across the land by officers of the Engineers, in 1816 and 1818, without proof of their instructions, nor the subsequent erection of a gate across the road, and occasionally closing the same, was sufficient evidence of the exercise of the reser- vation to vest the exclusive right to the land in the Crown, the road having, from that period, been con- stantly used by the public, and by the military only as a road, (a) Dedication of a road to the public may be presumed from long user, and the expenditure of statute labour on the road ; and a party may be convicted under the Act 5 Wm. 4, c. 2, s, 16, for encroaching upon such a road, as well as upon highways duly laid out under the Act. (6) There may, in certain cases, be a limited or partial dedication of a road by the public. The plaintiff was the occupier of an arable field, across which a foot way, from time immemorial, had been used by every person at his pleasure ; but the plaintiff and his predecessors had also, from time immemorial, ploughed up the foot way when, and in such parts, as they thought fit, and in (a) Reg. v. Deane, 2 Allen, 233. lb) Beg. v. Buchanan, 3 Kerr, 674. See as to dedication by the Crown, Cqle t. Maivtikll, 3 Allen, 183. 212 CRIMINAL LAW OF CANADA. other parts lifted the plough across it. The defendants were surveyors of highways, and, in order to repair the foot way, placed materials on it, making it a hard cause- way, so as to prevent the plaintiff from ploughing it up : — Held that the foot way was a highway, which, it must be assumed, had been dedicated to the public, subject to the condition that the owners of the soil might plough it up, and that there could at law be such a limited dedi- cation, and that the right to plough up the footpath, and thereby temporarily interfere with the use of it by the public, was reasonable, and not inconsistent with the dedication, (a) 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. (b) 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 incon- sistent therewith ; and the appropriation made to and adopted by the 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, (c) 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 inten- tion than many acts of enjoyment, (d) ; Va) Irnotdv.'siahsr,'!,. B. 6 Q. B. 433 (Ex. Chi.); Mercer v. Woodgate, L. E. 5 Q. B. 28 ; 39 L. J. (M. C. ) 21, affirmed. • (6' Bartlettv. Pratt, 2 Thomson, 11. (c) St. Mary New\ngton v. Jacobs, L. E. 7 Q. B. 53, per Mellor, J. Id) Mercer v. Wbdayttte', I/. E.'5Q. B. 32, per Hannen, J. ; Bawkins v. Baker, 1 Oldright, 423, per Des Barrel, J. NUISANCES TO HIGHWAYS. 213 To constitute a public highway by user, there must be an intention, expressed or implied, of dedication to the public on the part of the owner who permits such user, (a) Adoption by the public, and acquiescence, at least, if not user, are most material ingredients to constitute a bind- ing dedication, (b) 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 even 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, consequently, their adoption or assent becomes impor- tant. Such adoption and assent, in the case of allowances, are waived by the expenditure of public money in open- ing or repairing, the performance of statute labour, user, etc. ; but, without some evidence of adoption by user, or other manifestation, an allowance for road at common law would continue an allowance only, and not a road in fact, (c) A reservation inconsistent with the legal character of a dedication would be void, (d) It seems there may be a public highway without its being a thoroughfare ; at all events, if a highway were stopped at one end so as to cease to be a thoroughfare, it .wojild, 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 sit- (a) Leary v. Saunders, 1 Oldright, 17. (6) Bex, v. Irihab. St. Benedict, 4 B. & A., 447, 12 Ea. 192; Rex v. Allwn, 2 U. C. Q. B. O. S. 100, per BoWnstm,. C. J. (c) lb. 103-4, per Macaulay, 0. J. \d) Arnold v. Blaker, L. R. 6 Q. B. 437, per Kelly, C. B. 214 CRIMINAL LAW OF CANADA. uate, a, highway in legal contemplation, although it is a cul de sac. (") 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 dedi- cate. There is a difference between a cut 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, (b) The question of dedication or no dedication is a question of fact for the jury, (c) 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 «ach case, (d) The expenditure of public money on a road laid out thirty feet wide can only make it a pub- lic highway to that extent, and will not have the effect of extending it to a highway four rods wide, (e) Where a road has been used as a public highway, and the usual statute labour of the locality done upon it from year to year, this will, in the absence of explanation, establish the road as a public highway^/) But where it appear- ed, from the evidence that statute labour had been per- formed on part of the road in question, but only to a lim- ited extent, and not from time to time, so as to shew it was a road " whereon the statute labour hath been usuaEy performed " : — Held, not sufficient to establish the road as (a) Hawking v. Baker, 1 Oldright, 419-24 ; Rex v. Marquis, Devonshire, 4 A. & E. 713, per Patteson, J. (6) lb. 419. See also Poole v. Huikimon, 11 M. & W. 827 ; Bateman v. Black, 18 Q. B. 870, 21 L. J. Q. B. 406. (c) JBetfordv. Hayn& t \7 V . &. Q. B. 464 ; Reg. v. (JofAm,6U. C. G. P. 213; Meg. v. G. W. £. Co.. 12 TJ. 0. Q. B 251, per Robinson, 0. J. («0 Rex v. Allan, 2 TJ. C. Q. B. 0. S. 102, per Macaulay, J. (e) Basterach v. Atkinson. 2 Allen. 439. (/) Reg. v. Hall, 17 V. C. C. P. 286, per J. Wilson, J. NUISANCES TO HIGHWAYS. 215 a public highway under the 22 Vic. c. 54. (a) Where about fifteen years before the finding of the indictment the Township Council had built a bridge on tbe road, and expended money thereon, and statute labor had been ■done thereon : — Held, under the authority of s. 313, Con. Stats. U. 0., c. 54, it must be deemed a public high- way. (6) A party is punishable for nOn-performance of statute labour, and under Con. Stat. U. C. c. 55, s. 86, a warrant might have issued to imprison a person for non-perform- ance of statute labour without first summoning him to an- swer or making a conviction, (c) To save himself from fine a party must when called upon, perform his stat- ute labour within the division of the township in which he resides, (d) It seems a person who has land in a township, but is not himself resident there, is not liable to be convicted for non-performance of statute labor in the township where the land lies, (e) Where the President and Board of Police at Cobourg, under the Cobourg Police Act is- sued a warrant for non-performance of statute labour, to imprison for the remainder of the penalty for twelve days absolutely, and not unless the fine and costs should be sooner paid, and after alleging summons, appearance, con- viction, and warrant of distress, averred that part of the sum directed to be levied had been made, and that the Plaintift had no more goods -.—Held, that the warrant to imprison was clearly bad, because it was after part of the fine had been paid, and was for an absolute time and not unless fine and costs be sooner paid, (f) (a) Beg. v. Hall, 17 TJ. C. C. P. 282, per J. Wilson, J. lb) Prouse v. Corporation Mariposa, 13 TJ. C. C. P. 560. (c) Beg. v. Morris, 21 TJ. (J. Q. B. 392. Id) Gates v. Devenish, 6 TJ. C. Q. U. 260. (e) Moore v. Jarron, 9 TJ. C. Q. B. 233. See ((Ont ) 32 Vic. c. 36, s. 79-89. f) Wrigerson v. Board of Police Cobourg, 6 IT. C. Q. B. 0. S. 405. 216 CRIMINAL LAW OF CANADA. Nuisances to highways are of two classes : positive, as by obstruction, and negative, by want of sufficient repar- ation. A railway company by their charter were bound to re- store any highway intersected by their track " to its for- mer state, or in a sufficient manner not to impair its use- fulness." They constructed their road across a street in the city of Hamilton, which was sixty-six feet wide, and connected the street again by a bridge across the track forty feet two inches in width. Being indicted for a nuisance in thus making the street narrower than be- fore, and the jury having found the facts above mention- ed : — Held, that the} 7 might with propriety find this to be a sufficient compliance with the Act, and that the Defen- dants were not necessarily guilty of a nuisance because the bridge was not of equal width with the street cross- ed, (a) But where a railway company in passing over a high- way, had lowered the highway at the point of intersec- tion, so as footpaths in general, (c) •> Under 27 & 28 Vie, c. 101, s. 25, the owner is liable to a penalty if cattle, sheep, ete. t are found straying along any highway, notwithstanding they are under the control of a keeper at the time, (d) Three magistrates forming a part of the Court of Ses- sions, by whom the return of a precept issued under c. 62 of the Revised Statutes, for laying out a road is to be decided, are not the three disinterested freeholders con- templated by that Act. (e) The laying out of a public highway by Commissioners of Highways under the Act, 5, Wm. 4. c. 2, does not be- come invalid by reason of the neglect of the Commis- sioners 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, (f) On an indictment for nuisance to a highway, if the facts shew it to be a proceeding substantially for the trial of a civil right, the defendants may consent that the pros- ecutor 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, (g-) (a) Leconfieldv. Lonsdale, L. R. 5C. P. 657. (b) Holle and Whyte, L. R. 3 Q. B. 286. (c) Beg. v. Pratt, Ii R. 3 Q. B. 64. (d) Lawrence and King, L. R. 3 Q. B. 345. (e) Reg. v. Chipman, 1 Thomson, 292. (/) Brown v. M-Keel, 1 Kerr, 311. (g) Wltelan v. Beg. 28 TJ. C. Q. B. 53, per A. Wilson, J. INDICTMENT FOE NUISANCE. 233 Although a proceeding by indictment for a nuisance is criminal in form, the same evidence that would sup- port a civil action for an injury arising from the nuisance will support the indictment, (a) In Reg v. Rose (b) 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 8 Vic. c. 11, and that the defendant should therefore have been permitted 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 judg- ment If the indictment allege a nuisance to be near a cer- tain lot, and the evidence shows it to be on it, this will be a fatal variance, (c) Such variance could probably now be amended under the 32 & 33 Vic, c. 29, s. 71. It was doubtful whether after an indictment for nuis- ance to a highway had been removed by certiorari, and tried at the Assizes upon a nisi prius record, and the de- fendants found guilty on a motion afterwards made in term for judgment, upon the conviction the Court could under the 19 Vic, c. 43, s. 31C, give judgment out of term, (jd) After a verdict of acquittal on an indictment for nuis- ance 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 fa) Beg. v. Stephens, 2 U. C. L. J. N. S. 223, 14 W. R. "859. 6) 1 TJ. C. L. J. U5. (c) Reg. v. Meyers, 3 U. C. C. P. 305. . (d) Beg. v. G. T. R. Co., 17 TJ. C. Q. B. 165, per Robmson, C. J. See 29 & 30 Vic, o. 40, s. 4, etseq. 234 CRIMINAL LAW OF CANADA. the assent of the Attorney-General, (a) But the Court will arrest the judgment on an indictment for nuisance, so that a new indictment may be preferred, (b) Alter verdict of acquittal on an indictment for nuisance tried at the Assizes, a motion was made with the concur- rence of the Attorney-G-eneral, for a certiorari to remove the indictment.with a view to obtain a new trial, but no ground was shewn by affidavit, and the new trial was moved for on the same day, being the fourth day of term : — Held, that there was nothing to warrant the or- dering of a certiorari, and that the motion for a new trial could not be entertained until the Court were in posses- sion of the record, (c) When the case is tried at the As. sizes the motion for a new trial need not be made within the first four days of the ensuing term, for the rule of practice requiring a party to move for a new trial within the first four days of term only applies when the trial has been on a record emanating from this Court, (d) Obstructing the Execution of Public Justice. — An indict- ment for refusing to aid a constable in the execution of his duty, and to prevent an assault made upon him by persons in his custody, with intent to resist their lawful apprehension, need not shew thnt 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 defen- dant refused to prevent was the same as that which the prisoner made upon the constable ; neither is it any ob- jection that the assault is alleged to have been made with intent to resist their lawful apprehension by persons al- ready in custody, (e) A magistrate's warrant of commitment upon a convic- (a) Beg. v. WhitHer, 12 U. C. Q. B. 214. ■ 6) Beg. v. Bote, 1 U. 0. L. J. 145 ; Beg. v. Spence, 11 V. C. Q. B. 31. (c) Beg- v. Gzowaki, 14 U. C. Q. B. 591. (d) lb. 592, per Bobmion, C. .T. (e) Beg. v. Sherlock, h. R. 1 C. C. R. 20 ; 35 L. J. (M. C.) 92. OBSTRUCTING OFFICERS OF JUSTICE. 235 tion for a penalty following the form given in 11 & 12 Vic, c. 43, Schedule (10,) and addressed "To the consta- ble of D." can. only be executed by the parish constable, and not by a county police constable, stationed at D. A conviction for wounding the county police constable in the execution of such a warrant, with intent to resist the prisoner's lawful apprehension thereunder, was therefore quashed, (a) But if the warrant had been specially di- rected to the police constable, or generally to all other constables and police officer* of the division, the arrest would have been lawful, b) In an indictment for bbstructing an officer of Excise, under 27 & 28 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 of his duty, " under the authority of 27 & 28 Vic, c. 3," is not a defect of sub- stance, but a formal defect, which is cured by verdict, (c) Where the indictment is under ss. Ill and 112, for ob- struction by threats of force and violence, it is not neces- sary 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) A person resisting a constable in executing an execu- tion issued by a Justice of the Peace in the form K. in the schedule to the (N. B.) Rev. Stat., c. 137, is liable to an indictment, (e) The fact that the defendant did not know that the per- son assaulted was a peace officer, or that he was acting in the execution of his duty, furnishes no defence. (/) It is sufficient that the constable was actually in the execu- tion of his duty at the time of the assault, (g) (a) Beg. v. Sanders, L. R. 1 C. C. R. 75, 36 L. J. (M. C.) 87. (6) lb. 76, per Kelly, C. B. (c) Spelman v. Beg. 13 h. C. J. 154. (d) lb. 154, per Drummond, J. (e) Beg. v. M'Donald, 4 Allen, 440. ft) Beg. v. Forba, 10 Cox, 362. iD) lb. 236 CKIMINAL LAW OF CANADA. Refusing to aid and assist a constable in the execution of his duty, in order to preserve the peace, is an indict- able misdemeanor 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 de- fendant, 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, (a) Before a party can be guilty of the offence of obstruct- ing an officer in the execution of his duty, the latter must be acting under a proper authority, (b) 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, (c) Where an order was made by the Court of Quarter Sessions for payment of a sum of £169 16s. 6d. to F. S., for professional services rendered as an attorney-at-law, and the Clerk of the Peace, contrary to his duty in the matter, refused to record the order, and also to draw up, sign, and deliver to the County Treasurer, an order for payment of such sum to Mr. S., per Cockbwrn, C. J., this amounted to a misdemeanor in office, and justified the removal of the Clerk of the Peace therefrom. But if the latter thought the Court of Quarter Sessions were doing something illegal and unjustifiable, and if he entertained a belief that, when their attention was called to it, the (a) Reg. v. Brown, C. & Mai., 314 ; Arch. Cr. Pldg. 684-5. (b) Russ. Cr. 570 ; Rex v. Osmer, 5 Ea. 304. (c) Rues. Cr. 571. ESCAPES. ' 237 Court would rectify the error, it would be his duty to point out to the Court the mistake into which he sup- posed they had fallen, and a mere delay or strong re- monstrance would not amount to a misdemeanor. But if, from the outset, he determines that, whether the Court agree with him or not, he will not comply with their order, or when he perseveres in disobedience to it, after he has brought the matter before them, he is guilty of a misdemeanor, (a) Disobeying an order made by Justices of the Peace, at their Sessions, in due exercise of the powers of their juris- diction, is an indictable offence, (b) 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 dis- obedience is nevertheless an indictable offence, punish- able as a misdemeanor at common law. (c) So disobedi- ence to an order of one or more Justices is an offence punishable by indictment at common law. (d) Every person mentioned in the order, and required to act under it, should, upon its being duly served upon him, lend his aid to carry it into effect, (e) Escapes. — An escape is where one who is arrested gains his liberty, by his own act, or through the permission ox negligence of others, before he is delivered by the course of the law. (/) 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, (g) Tf a party in the custody of the law secure fo) Beg. v. Rusadl? 5 U. C. L> J. N. S. 132, per Cockburn, C. J. ; 17 W. E. 402. (6) Euss. Cr. 573 ; Bex. v. Robinson, 2 Burr, 799-800. (c) Bex Y. Harris, 4 T. E. 202 ; 2 Leach 549. (d) Bex. v. Balme, Cowp., 650; Bex v. Fearnley, 1 T. E. 316 ; Beg. v. Gould, 1 Salle, 381 ; Euss. Cr. 574. (e) lb. 575 : Bex v. Gash. 1 Starkie, 41. (f) Euss. Cr. 581. (g) lb. 581. 238 CRIMINAL LAW OF CANADA. his own escape, though without force, he is guilty of a high contempt, and punishable by fine and imprisonment, (a) 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 com- mon law. (6) In order that an officer may be liable for an escape, the party must be actually arrested, and legally imprisoned for some criminal matter, (c) The imprison- ment must also be continuing at the time of the escape, and its continuance must be grounded on that satisfaction which the public justice demands for the crime com- mitted, (d) A voluntary escape is where an officer, having the custody of a prisoner, charged with and guilty of a capital offence, knowingly gives 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 pur- sued, and taken again, before he has been lost sight of. (e) In the case of a voluntary escape, the officer has no more right to re-take 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 re-take the pri- soner at any time afterwards, whether he finds him in the same or a different county. * One W. was brought before Magistrates, in the custody of the defendant, a constable, to answer a charge of mis- demeanor ; and after witnesses had. been examined, Jie (a) Rusb. Cr. 281. (b) Rubs. Cr. 581 ; Beg. v. Allan, 1 C. & Mar. 295. (e) Rubb. Cr. 582. Id) lb. 583. (e) Riias. Cr. 583-4. PRISON BREACH. - 239 was verbally remanded until the next day. Being then brought up again, and the examination concluded, the Justices decided to take bail, and send the case to the assizes. The prisoner said he could get bail, if he had time to send for them, and the Justice verbally remanded him until the following day, teJling the defendant to bring him up then, to be committed or bailed. On that day, the defendant negligently permitted him to escape, for which he was convicted : — Held that W. 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 before the Magis- trates, until finally disposed of by commitment to custody, or discharged on bail, and that the conviction was pro- per, (a) "When a Sheriff refuses to produce a prisoner in his custody within twenty-four hours after notice, it is an escape, for which an action of debt will lie. (6) 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, (c) 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 any way aiding in his escape, before full atonement made, becomes particeps criminis. (d) Prison breach seems now to be an offence of the same degree as that for which the party was confined, (e) Imprisonment is no more than a restraint of liberty, and la) Beg. v. ShvMewarth^ V. C. Q. B. 372. (6) Wragg v. Jarvis, 4 V. C. Q. B. 0. S. 317. (c) Glass v. Wigmore, 21 TJ. C. Q. B. 37. (d) See Russ. Or. 607. (e) See 1 Edw. 2 Stat. 2. 240 CRIMINAL LAW OF CANADA. any place, in which a party may be lawfully confined is a prison within this statute, for it extends to a prison in law as well as a prison in deed, (a) There must be ah actual breaking of the prison and not such force and vio- lence only as may be implied by consf ruction of law. (b) The breaking need not be intentional (c) ; but it must not be from the necessity of an inevitable accident hap- pening without the contrivance or fault of the prisoner. (d) The Prison Act 1865, 28 & 29 Vic. c. 126, s. 37, which prohibits the conveyance into any prison, wi;th intent to facilitate the escape of a prisoner, of certain articles or " any other article or thing," includes a crowbar under the latter words, (e) Parliamentary Offences. — Members of either House of Parliament are not criminally liable for any statements made in the House, nor for a conspiracy to make such statements, (f) An order for an attachment against a member of parliament is illegal and may be set aside though no proceedings have been taken upon it, by the issue of the process or otherwise, (g) So the writ may be set aside before the defendant is actually arrested upon it. (h) A member of parliament is not liable for the penalty imposed by the Con. Stat. Can. c. 3, s. 7, for sitting and voting without having the property qualification requi- red by law. The penalty is only exigible from a person whose incapacity to become a member is decreed by s. 5. and whose election is radically null and void, (i) Mem- bers of provincial parliaments are priviliged from arrest in civil cases for a period of forty days, after the proro- (oj'Ruas. Cr. 592. '.Mjb. 594. (c) Bex v. Haswell, Russ. & Ry. 458. id) Rusa. Cr. 594. (t) Beg. ▼. Payne, L. R. 1 C. C. R. 27; 35 L. J. (M. 0.) 170. (/) Ex parte Wason, L. R. 4 Q. B. 573. (a) Beg. v. Gamble, 1 U. C. P. R. 222. (h) lb. (i) Morasse v. Guevremont, 5 L. C. J. US. PARLIAMENTARY OFFENCES. 241 gation or dissolution of parliament and for the same pe- riod before the next appointed meeting, (a) They hare the same privileges in this respect as members of parlia- ment in England (b) But this privilege 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 en- force 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 privi- lige of exemption from arrest, (c) A member of a pro- vincial 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, (d) On motion for a writ of habeas corpus to produce the body of a person claiming exemp- tion from arrest on the ground of the privilege of parlia- ment, two pipers purporting to be two indentures of election are not sufficient evidence of his being such member, to warrant the granting of the writ, (ej After conviction for breach of privilege, in case of libel, the court will not notice any defect in the warrant of commitment. (/ ) A prisoner committed by the House of Assembly to the Common G-aol " during pleasure " is discharged by prorogation, (g) (a) Wadsworth v. Boulton, 2 Chr. Rep. 76 ; Bennie v. Rankin, 1 Allen, I Sea. v. Gamble, 9 XJ. C. Q. B. 546. ("6) Beg. v. Gamble, supra ; but see Cuvillier v. Munro, 4 L. 0. R. 146. (c) lb. 552, per Draper, C. J. ; Long WelletUy'i ease, Rusb. & M., 639. id) Re Bedard, S. L. 0. A. 1. Mlb. (/) Re Tracy, S. L. C A. 478. \g) Ex parte Monk, 6- L. C. A. 120. P 242 CRIMINAL LAW OF CANADA. Gourts of law cannot inquire into the cause of com-* mitment by either House of Parliament, nor bail, nor dis- charge 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 arbi- trary, unjust and contrary to every principle of posi- tive law or natural justice, the court is not only compe- tent but bound to discharge the party, (a) The Courts have power, to issue writs of Habeas Corpus in matters of commitment by either House of Parlia- ment, and the commitment may be examined upon the return to the writ, (bj The Statutes 12 Vic. c. 27 and 14 & 15 Vic. c. 1, invest the House of Assembly with power to punish by imprisonment a deputy-returning- officer for malfeasance and breach of privilege, (c) (a) Ex pwrte Lavoie, 5 L. C. R. 99. . (6)J6. (c)./6. MURDER. 243 CHAPTER IV. OFFENCES AGAINST THE PERSON. Murder. — Where "a person of sound memory and dis- cretion unlawfully killeth any reasonable creature in be- ing, and under the Queen's peace, with malice afore- thought, either express, or implied by law, the offence is murder, (a) Malice is a necessary ingredient in, and the chief char- acteristic of, the crime of murder, (b) 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 ordinary 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 intentionally, 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 wilh circum- stances 1 hat shew 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 (a) Arch. Cr. Pldg. 623. I b) t.ee Re Anderson, 11 U. C. C. P. 62, per Richards, C. J. (O Rnss. Cr. 667. Id) M'Intyre v. M'Bean, 13 U. C. Q. B. 542, per Robinson, C. J. j Poitevin v. Morgan, 10 L. C. J., 97, per Badgley, J. le) Russ. Cr. 667. 244 CRIMINAL LAW OF CANADA. mind and formed design, and malice is implied by law from any deliberate cruel act committed by one person against another, however sudden, (a) 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 ap- pears, (b) The onus of rebutting this presumption, by extracting facts on cross-examination or by direct testi- mony, lies on the prisoner, (c) Persons present at a homicide may be involved in dif- forent 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 fel- onious participation in the act without a felonious parti- cipation 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. he killed, A. is guilty of murder, but the servant, if he knew not of A. 's malice, is guilty of manslaughter only, (d) 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. Bat a moral force, as a threat of duress or im- prisonment or even an assault to the peril of life is no le- gal excuse, (e) But if A. commit the act through an ir- responsible agent, as an idiot or lunatic, A. is guilty of murder as a principal. (/)• Murder may be committed upon any person within (a) Russ. Cr. 667. (6) Reg. v. M'Dowell, 25 TJ. C. Q. B. 112, per Draper, C. J. ; Sea. ». Atkinton, 17 U. 0. 0. P. 304. per J. WiUon, J. (c) lb; Rubs. Cr 669. id) lb.; Russ. Cr. 669. (e) lb. (f) lb. MURDER. 245 the Queen's peace ; and consequently to kill an alien en- emy within the kingdom, unless in the heat and actual exercise of war, is as much murder as to kill a regular- born British subject, (a) "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 killed within the description of murder. (6) If a wo- man is quick with child and any person strike her, whereby the child is killed, it is not murder or man- slaughter. By the 32 & 33 Vic, c. 20, s. 59, the unlaw- fully administering poison, or unlawfully using any in- strument, 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 nox- ious thing for such purpose is guilty of a misdemeanor. A child must be actually born in a living state before it can be the subject of murder, (c) and the fact of its hav- ing breathed is not conclusive proof thereof, (d) There must be an independent circulation in the child before it can be accounted alive, (e) But the fact of ihe child be- ing still connected with the mother by the umbilical cord will not prevent the killing from being murder. (/) The killing may be effected by shooting, poisoning, starving, drowning or any other form of death by which human nature may be overcome, (g 1 ) But there must be some external 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 (a) Rnss. Cr. 670. (&» lb. 670 et. seq. (c) R. v. Poultm, 5 C & P. 329. (d) R. v. Sellis, 7 C. & P. 850 : 1 Mood. C. G. 830 ; R. v. Crutchley, 7 C. & P. 814. t" (e) R. v. Enoch, 5 O. & P. 539 ; R. v. WHght, 9 C. & P. 754. ( /) R. v. Crutchley, supra ; R. v. Reeves, 9 C. & P. 25 ; R. v. Trilloe, 2 Mood. C. C. 260 ; Arch. Cr. Pldg. 625-6. (g) R.UBS. Cr. 674. 246 CRIMINAL LAW OF CANADA. disease which causes his death, the killing is not such as the law can notice (a) No act whatsoever shall be adjudged murder unless the person die within a year and a day from the time the stroke was received or cause of death administered, in the computation of which the whole day on which the stroke was administered is reckoned the first, (b) 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 con- stitute murder, for to accelerate the death of a person is sufficient, (c) So if a man is wounded, and the wound turns to a gangrene or fever from want of proper appli- cations 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 ; (d) 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, (e) If a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act intended or at- tempted were a felony, the killing is murder ; if unlaw- ful but not amounting to felony, the killing is manslaugh- ter. If a man stab at A. and by accident strike and kill B. it is murder, (/) and if A., intending to murder B., shoot at and wound C. supposing him to be B., he is guilty of wounding C. with intent to murder him, for he intends to kill the person at whom he shoots, (g) When a man has received such a provocation as shows that his act was not the result of a cool, deliberate judg- (o) Rubs. Or. 674. (6) Russ. Cr 700. (c) Arch. dr. Pldg. 625 ; B. v. Martin, 5 C. & P. 130. Id) Beg. v. Sollcmd, 2M. & Bob. 351. (e) Arch. (Jr. Pldg. 625. (/) Beg. v. Hunt, 1 Mood. C. C. 93 ; Arch. Cr. Pldg. 635. (g) Beg. v. Smith, 2 U. C. L. J. 19; Dears. 559; 25 h. J. (M. C.) 29. MURDER. 247 ment and previous malignity of heart, but was solely im- putable to human infirmity, his offence will not be mur- der, (a) But mere words or provoking, actions or ges- tures expressing contempt or reproach, unaccompanied with an assault upon the person, will not reduce the kill- ing from murder to manslaughter, though if immediately upon such provocation the party provoked had given the other a box in the enr, 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, (b) The giving of repeated blows with a heavy stick would furnish some evidence of mal- ice. By the light of modern authorities all questions as to motive, intent, heat of blood, etc., must be left to the jury, and should not be dealt with as propositions of law. (c) P. (the prisoner,) and D. (deceased), being brothers, were in the house of the latter, both a little intoxicated. D. struck his wife, and on P. interfering, a scuffle began. While it was going on D. asked for the axe, and when they let go, P. went out for it and gave it to him, asking what he wanted with it. D. raised it as if to strike P., and they again closed, when the wife hid the axe. When she came back P. was on the deceased choking him. The wife then pulled P. off. P. then got up, pulled off his coat, and went outside and squared himself and asked deceased to come out and fight, and said he was cowardly. Deceased went on to the doorstep and caught hold of the prisoner. They grappled and deceased fell undermost, prisoner on him. "While the scuffle was go- ing on D. struck P. twice. On getting up P. kicked him on the side and arm, and then ran across the garden, got (o) See Russ. Cr. 711 et sea. (6) Reg. v. M'Dowell, 25 U. C. Q. B. 112, per Draper, C. J. (c) lb. 115, per Draper, C. J. ; Reg. v. Eagle, 2 F. & F. 827. 248 CRIMINAL LAW OF CANADA. 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, 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 leav- ing the house the circumstances would have repelled the conclusion of malice, and the jury should have been so directed, but that whether what took place, at the fence was under a continuance of the heat and passion created by the previous quarrel, was under the circumstances a question for the jury, and was to be determined by their finding or negativing malice, (a) Killing in a sudden quarrel, where the circumstances afford no ground for inferring malice, generally amounts to manslaughter only, but there are many authorities which establish that, in the case of a sudden quarrel, when the parties immediately fight, there may be cir- cumstances indicating malice in the party killing, when the killing will be murder, (b) la) Beg. v. M'Dmeell, 25, U. C. Q. B. 108. (b) lb. 114, per Draper, C. J. MURDER. 249 The first count in the indictment alleged that the prisoner unlawfully and wilfully administered poison to F., with intent to do bodily harm, by means of which administering F. suffered bodily harm. The second count, founded on the 14 & 15 Vic, c. 19, s. 4, Charged the prisoner with inflicting grievous bodily harm by ad- ministering poison with intent to do bodily harm. It was proved that the prisoner, being about to leave his situation as manager of a shop, put into a sugar basin, which he knew would be used by F. (his successor), for his tea, a quantity of croton oil (an acid poison) ; that F. used some of the sugar, and immediately became ill, and suffered so much agony as to cause alarm for his life. Quare whether the prisoner had been guilty of any mis- demeanor, either at common law or by statute. Much discussion arose as to whether the facts of this case brought it within the Statute, which provides that if any person shall unlawfully and maliciously inflict, etc. The Court stated that, in consequence of the defendant having died since the argument, it had become unnecessary to deliver any judgment, (a) A married woman having become pregnant by the prisoner, and having herself unsuccessfully endeavoured 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 afore- said, she died. The prisoner neither administered the poison, nor caused it to be administered, nor was he present when it was taken, but he procured and de- livered it to the deceased, with a knowledge of the pur- pose to which the woman intended to apply it, and he (a) Reg. v. Hippinstale, 5 U. C. L. J. 166. 250 CRIMINAL LAW OF CANADA. ■was accessory before the fact to her taking it for that purpose: — Held that the prisoner was not guilty of mur- der, (a) 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 •examined 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 exami- nation 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 examination of the brain, in a position to negative, be- yond all reasonable doubt, the hypothesis of death from any other cause than that alleged : — Held that the evi- dence was sufficient to justify a conviction, (b) It was formerly necessary, in an indictment for mur- der, to set forth the manner in which,' or the means by which, the death of the deceased was caused ; and where an indictment 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 (o) Meg. v. Fretwell, 9 TJ. C. L. J. 138 ; L. & C. 161 ; 31 L. J. (M. C.) 145. t Meg. v. Downey, 13 L. 0. J. 193. . MUKDER. 251 the river, and was suffocated and drowned, of which suffocation, etc., the child died : — Held that, to support the indictment, it was necessary to prove that the death was caused by drowning or suffocation, (a) The 32 & 33 Vic, c. 20, s. 6, provides that it shall not be necessary, in any indictment for murder or man- slaughter, 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 man- slaughter, 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 feloniously, and especially that it was done of malice aforethought, and it must also be stated that the prisone'r murdered the deceased. (6) The word " murder" in the indictment is emphatically a term of art, (c) and it would be insufficient, in an in- dictment for murder, to state that the party did wilfully, maliciously, and feloniously, stab and kill, because it is equally indispensable to rise the artificiall erm "murder"' as it is to state that the offence was committed of " malice aforethought." The omission of either one of these ex- pressions would render the prisoner liable to a conviction for manslaughter only, (d) 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 afore- (a) Beg. v. Fermety, 3 Allen, 152. (b) Be Anderson, 11 U. C. C. P. 62, per Richard*, C. J. See also 32 & 33 Vic. c. 29, s. 27, and Sched. A. Cc) lb. 69. (d 76.53. 252 CRIMINAL LAW OF CANADA. thought, and judgment will be arrested when the indict- ment is defective in this respect, (a) The punishment of murder is death, (b) C. 29 of this Act, s. 106, et seq. 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, (c) It is of two kinds : — (1) Involuntary manslaughter, where a man doing an unlawful act, not amounting to felony, by acci- dent kills another, or where a man, by culpable neglect of a duty imposed upon him, is the cause of the death of 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 imme- diately kills him. (d) ' Manslaughter is distinguished from murder in want- ing the ingredient of malice ; and it may be generally stated that, where the circumstances negative the exist- ence of malice, in the legal sense, and the killing is un- lawful 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. He then imme- diately retreated up stairs, and the deceased asked the prisoner, who was standing at the top of the stairs, if he had got his (deceased's) money, to which the prisoner (a) Kerr v. Beg., 2 Rev. Critique, 238. (ft) 32 & 33 Vio,c. 20, s. 1. ( c) Re AnderSh, 11 U. C. C. P 63, per Mchards, J. (d) Arch. Cr. Pldg. 623. MANSLAUGHTER. 253 replied : " If you- come bothering me about your money, I will do something lo you," and immediately threw out of his hand a piece of iron, about four or five feet long, being the handle of a frying-pan, which struck the de- ceased 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, (a) The general doctrine seems well established, that that which constitutes murder, when of malice aforethought, constitutes manslaughter when arising from culpable negligence, (b) And it would seem that the doctrine of contributory negligence cannot apply so as to justify the prisoner, (c) 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„knowing 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, sed qucere as to this, (d) The case for the prosecution was that the deceased, being the domestic servant of the prisoner, who kept a lodging-house, had died in consequence of insufficient (a) Reg. v. Kennedy, 2 Thomson, 203. (6) Reg. v. Hughes^S IT. C. L. J., 153 ; 29 L. T. Rep. 266 ; Dears. & B. 248 ; 26 L.J. (M.C.)202. (c) See Reg. v. Dant, infra ; Reg. v. Swmdall, 2 C. & K. 230 ; Reg. v. Hut- chinson, 9 Cox, 555 ; but see R. v. BerchaU, 4 F. 4 F. 1087. (d) Reg. v. Dant, 13 W. R. 663 ; h. & C. 567 ; 34 L. J. (M. C.) 119. 254 CRIMINAL LAW OF CANADA. food and unwholesome lodging provided for her by the prisoner, or of the combined effect of those things, and a course of ill-treatment. It appeared, upon the evidence, that the deceased was a person of low intellect, and who had lived for about eighteen months in the service of the prisoner ; that during the whole of that time she had b^en very cruelly treated, badly lodged, and badly fed, by the prisoner ; that on the 21st of February, 1865, she had been taken to her aunt's by a person who was not called as a witness, and had died in the workhouse, on the 27th of the same month, from the effects of insufficient nourishment. But it also appeared that she was twenty- three years of age when she entered the prisoner's ser- vice ; that she had acted rationally as a servant, and had occasionally gone out on errands ; that in August her aunt had given the prisoner warning for her, but that, upon the prisoner saying that she had agreed to stay on, her mother and aunt had allowed her to do so ; that she was about, and opened the door to a witness, on the 1 3th of February ; and that, when she came to her aunt's, on the 21st of February, she was on foot. The Judge, in summing up, drew the attention of the jury to the dis- tinction between the cases of children, apprentices and lunatics, under the care of persons bound to provide for them, and the case of a servant of full age, and directed them that, if they were satisfied upon the evidence that the prisoner had 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 her control, and that her death was caused or accelerated by such neglect, they might find her guilty :- Held that the direction was MANSLAUGHTER. 255 right, but that the conviction mast be quashed, for that it appeared that the proximate cause of the death of the deceased, for which only the prisoner, on this indictment,, would be responsible, was the insufficient supply of fobd r and that the prisoner was not criminally responsible for that, as there was no sufficient evidence that the deceased! had lost the exercise of her free will, and was unable to withdraw herself from her mistress's dominion and con- trol, (a) The prisoner was convicted on an indictment which charged him with neglecting to provide food and clothing for his child, but omitted specifically to allege his ability to do so : — Held that the ability to provide was implied,, and therefore sufficiently averred in the use of the word " neglect." (b) "Where in an indictment of a single woman, the mother of a bastard child, for neglecting to provide it. with suffi- cient food, it was alleged that she neglected her duty, " daring all the time aforesaid being able and having the means to perform 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 cf her actual possession of means for nourish- ing 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 received relief adequate to the support of the child and herself: — Meld, that the allegation was not proved, and that the conviction could not be sup- ported, (c) Deceased, immediately after being struck by the pri- soner, had walked two miles to the police barrack, and ridden home a distance of four miles, the next morning. (x) Beg. v. Charlotte Smith, 13 W. E. 816; 1 U. C. L. J. N. S. 164. \b. Beg. v. Byland, L. E.1C. C. K. 99 ; 37 JL.. J. (M. C.) 10. (jj Reg. v. Chandler, 1 U. C. L. J. 135 ; Dears. 453 ; 24 L. J. (M. C.) 109. 256 CRIMINAL LAW OF CANADA. The doctor stated that the re-action caused by this walking and riding accelerated the death of the deceased ; that but for such exercise deceased would have had a better chance of recovery; that deceased died of compression of the brain ; that the blow was alone sufficient to cause such compres- sion, but that deceased was more likely to recover, if he had not so walked or ridden : — Held that the Judge was right in directing the jury that, if they believed the doc- tor's evidence, they should find the prisoner guilty, (a) If a man kill an officer of justice, either civil or crimi- nal, 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 endeavouring 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, (b) 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 intention, (c) 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 indict- ment 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. : Held that the party was '' found committing " the offence at 1 P. M. and might be arrested, when found committing or after a pursuit immediately commenced. But "immediately" means after the commission of the offence and not after its. discovery for the intention of the Statute was that the a) Beg. v. Flynn, 16 W. B. 319. 6) Arch. Cr. Pldg. 640. <0 /*• MANSLAUGHTER. 257 criminal should be apprehended immediately on the commission of the offence, (a) A person found committing an offence against the Larceny Act, 32 & 33, Yic. c. 21, may be immediately apprehended by any person without a warrant, provided, according to the rule laid down in Herman v. Seneschal, (b) and adopted in Roberts v. Orchard, (c) the person so ap- prehending 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 neces- sary 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, (d) The Police Act (N.B.) 11 Vic. c. 13 s. 22 does not autho- rize the arrest without warrant of known residents of the place, (e) In King v. Poe, (f) 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 ca- pacity of Magistrate that he may be able to judge whether it charges any offence to which the party ought to answer, (g 1 ) Where a Magistrate allows a prisoner to depart, with- out examining into the charge against him, with a direc- tion to appear the next morning at the police office, and in the meantime, on the ground that he was assaulted by the (a ) Dawning v. Camel, L. R. 2 C. P. 461. (6) 11 W. R. 184 ; 13 0. B. N. S. 392. (c) 12 W. R. 253 ; 2 H. & C. 768. (d) Leete v. Mart, 4 TJ. 0. L. J. N. S. 201. (e) Foley v. Tucker, 1 Hannay, 52. (/) 15 L. T. RepiN.iS.37. (g) Caudle v. Ferguson, 1 Q. B. 889 ; Bex v. Birniie, I M. & R. 160, 260 CRIMINAL LAW OF CANADA. 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 custody, 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 custody, and he took him into custody with a view of recovering the property taken away, that also might be within the au- thority 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 govern- ing the subject is : there is an implied authority to do all those things that are necessary for the protection of pro- perty entrusted to a person, or for fulfilling the duty which a person has to perform, (a) " Where a man is himself assaulted by a person, disturb- ing the peace in a public street, he may arrest the offen- der and take him to a peace officer to answer for a breach of the peace. (6) The fact that a patty is violently assaulting the wife and child of another is no legal justification for the latter, not being a peace officer, breaking into the house of the former in order to prevent the breach of the peace, (c) The prisoner assaulted a police constable in the execu- tion of his duty. The constable went for assistance and, (a) Allen, v. L. & S. W. By. Co. L. R. 6 Q. B. 68-9, per Blackburn, J. (6) Forrester v. Clarke, 3 XT: C. Q. B. 151, (c) Rockwell v. Murray, 6 XT. C. Q. B. 412 ; ffandcock v. Baker, 2 B. & P. MANSLAUGHTER. 261 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 j after another interval of fifteen minutes, the constable forced upon the door, entered and arrested the prisoner who wounded one of them in resisting his apprehension: Held that as there was no danger of any renewal of the original assault and as the facts of the case did not con- stitute a fresh pursuit the arrest was illegal, (a) A person unlawfully in another's house, and creating a disturbance and refusing to leave the house, may be for- cibly removed, but, if he had not committed an assault, the circumstances do not afford a justification for giving him into the custody of a policeman, (b) In all cases above mentioned, if the officer has not a legal authority or executes it in an improper manner, the offence will be manslaughter only. But if there is evi- dence of express malice it will amount to murder, (c) So ignorance of the character in which the officer is acting, will reduce the offence to manslaughter. But if a con- stable command the peace or shew his staff of office, this, it seems, is a sufficient intimation of his authority, (d) Where the fact of killing is proved, the defendant may rebut the presumption of malice arising therefrom, by proving 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 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 (a) Beg. v. Maraden, L. R. 1 C. C. R. 131 ; 37 L. J. (M. 0.) 80. (b) Jordan v. Gibbon, 3 F. & F. 607. (c) Arch. Cr. Pldg. 645-6. (d) lb. 645; and see Bex v. Higgi-ns, 4 U. C. Q. B. 0. S. 83. 258 CRIMINAL LAW OF CANADA. prisoner, when in custody before him the previous evening, gives verbal instructions to a constable to ap- prehend him and take him to the station house or gaol, such imprisonment is illegal and the Magistrate cannot justify the arrest, (a) Under the 1 Vic. c. 21, it is illegal in a Magistrate to cause the arrest of a party in the first in- stance, he must be first summoned before him. (b) Where a defendant has been brought before one Magis- trate and bailed by him, although a statute may require the presence of three to convict the prisoner — a second arrest for the same charge by the same complainant before the time appointed for the hearing is illegal, (c) 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, (d) Where a policeman saw a man, who was drunk, as- sault his wife, and within twenty minutes after took him into custody : — Meld that the policeman was justified in so doing, nothwithstanding that the man had left the spot, where his wife was saying he should " leave her alto- gether." (e) A constable may arrest a person without a warrant upon a reasonable charge, that is upon probable infor- mation that he has committed a crime. (/) It would appear that, a constable has nothing todomr- tute officii in a civil proceeding, and he can have no colour or pretence for acting without authority specially given by some process (g*) It is the duty of a person arresting any one on suspi- cion of felony to take him before a Justice of the Peace (a) Powell v. Williamson, 1 U. C. Q. B. 154. (b) Croukhite v. Sommerville, 3 U. C. Q. B. 129. \c) King y. On, 5 U. C. Q. B. O. S. 724. id) Deercourt v. Gorbishley, 1 IT. C. L. J. 156. (e) Beg. v. Light, 4 U- C. L. J. 97 ; Dears. & B. 332 ; 27 L. J. (M. C. ) 1. ( f) Bogeriv. Van TaOasnhurgh, 20 U. C. Q. B. 219, per BoUnson, C. J. iff) See Brown v. Shea, 5 U. C. Q- B. 143, per Bobwuon, C. J. MANSLAUGHTEB, 259 as soon as he Reasonably can ; and the law gives no autho- rity, even to a Justice of the Peace, to detain a person sus- pected but for a reasonable time till he may be examin- e d.(a) A private person not being by office a keeper of the peace or a Justice or constable cannot arrest on sus- picion of felony without a warrant, but must shew a fe-< lony actually committed, (b) But if a person is prepared to shew 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, (c) The general rule would seem to be that, at common law, if a a felony were actually committed, a person might be ar- rested without a warrant by any one, if he were reason- ably suspected of having committed the felony ; and if a constable had reasonable grounds for supposing that a felony had been committed, and reasonable grounds for assuming that a certain person had committed the sup- posed felony, he might arrest him, though no felony had actually been committed, (d) Neither a constable nor any other could arrest a person merely on suspicion of his having illegally detained goods, (e) A clerk in the service of a railway company, whose duty it is to issue tickets to passengers and receive the money, and keep it in a till under his charge, has no im- plied 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 protection of the company's proper- ty. (/) It would seem that, if a man in charge of a till (a) Ashley v. Dundaa, 5 U. C. Q. B. 0. S. 754, per Sherwood, J. (6) lb ; M'Kenzie v. Qibium, 8 TJ. C. Q. B. 100. (c) lb. 102, per Robinson, 0. J. \d) Madley v. Perks, L. K, 1 Q. B. 456, per Blackburn, J. («) lb. tf) Mien v. L. & S. W. Ry. Co. L. E. C Q. E. C5. 262 CRIMINAL LAW OF CANADA. 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, (a) Execusable 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 homi- cide per infortunqm or by misadventure. 2. Where a man kills another, upon a sudden encounter, merely in his own defence, or in defence of his wife, child, parent, or ser- vant, and not from any vindictive feeling, which is termed homicide se defendendo, or in self defence, (b) The 32 & 33 Vic, c. 20, s. 7, provides, that no punish- ment or forfeiture shall be incurred by any person who kills another by misfortune, or in his own defence, or in in any other manner, without felony. The 32 & 33 Tic, c. 20, s. 61, 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- deavours to conceal the birth thereof, is guilty of a misdemeanor. 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 jury must, in each case, say whether or no (a) Arch. Or, Pldg. 623. (6) lb. 623. CONCEALING BIRTH. 263 the facts shew that there has been such a secret disposi- tion, (a) "Where it appeared that the prisoner put the dead body of her child over a wall, four and a-half feet high, which divided a yard from a field. The yard was at the back of a public-house, and was used by the occupiers of that and three other houses. There was no thoroughfare into or through the yard, and no entrance into it, except by a narrow passage through the street. The prisoner did not live in any of the four houses that had the use of the yard, and she must have passed from the street into the yard, in order to throw the body over the wall. A per- son looking over the wall from the yard would see body ; but persons going through the yard, or using it in the ordinary way, would not see the body. The field was a grass field, used by a butcher for grazing. It had no gate, except from the butcher's yard, and there was no public path through the field, nor any path in the field, that would take any one within sight of the body. No person going into the field, in their ordinary occupa- tion, would go near the body, or see it, nor would they see it unless they went up to the part of the wall where the body lay. The body was found by chance, by a child who was picking up flowers in the field, and went acci- dentally to the wall. There was nothing on or over the body, and nothing to conceal it, except its situation : : — Held that, under the Statute, there was evidence to go to the jury of a " secret disposition" of the body, (b) If a woman endeavour 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 (a) Reg. v. Broum, L. E. 1 C. U. K. 246-7 ; 39 L. J. (M. C.) 94, per BoiM, C.J. (I) lb. 244. 264 CRIMINAL LAW OF CANADA. it to some o'ther place when an opportunity offers, it is an offence within 9 Geo. 4, c. 81, s. 14. (a) Upon an indictment under 7 fm. 4, and 1 Vic, c. 85, s. 6, for causing abortion, it was proved that the woman requested the prisoner to get her something to procure miscarriage, and that a drug was both given by the pri- soner, and taken by the woman, with that intent, but the taking was not in the presence of the prisoner. It, however, produced miscarriage : — Meld 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, (b) Rape. — This offence has been defined to be the having unlawful and carnal knowledge of a woman by force, and against her will, (c) 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 appear- ance 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, (d) Where the woman consents to the connection, even though her consent is obtained by fraud, the act does not amount to rape. A woman, while in bed with her husband, permitted the prisoner, under the belief that he was her husband, to have connection with her : — Held that, in the absence Of proof that she was asleep, or unconscious, at the time the act of connection commenced, it must be taken that (a) Btg. y.~Perry v 1 IT. C. L. J. 135 ; Dears. 471 ; 24 L. J. (M. C.) 137. (b) Beg. v. Wilton, 3 U. 0. L. J. 19 ; Dears. & B. 127 ; 26 L. J. (M. C.) IS See also Beg. v. Farrow ; Dears. & B, 164. (c) Russ.Cr. 904. (d) Beg. v. Fletcher, L. R. 1 C. C. R. 39 ; 35 L. J. (M. C.) 172. EAPE. 265 her consent was obtained by fraud, and that the pri- soner's act did not amount to rape, (a) Having connection with a woman, under circum- stances which induce her to believe that it is heT hus- band, is not a rape, (b) But, in such case, the party is liable to be indicted for an assault, (c) The meaning of the phraseology in an indictment for rape that the prisoner " violently, and against her will, feloniously did ravish" the prosecutrix, is, that the woman has been quite overcome by force or terror, accompanied with as much resistance on her part as is possible under the circumstances, and so as to make the ravisher see and know that she is really resisting to the uttermost, (d) Where, on an indictment for rape, the evidence of the prosecutrix shewed that the prisoner, having followed her into the house, and, without her knowledge, bolted the door, succeeded, after she had several times escaped from him, in dragging and throwing her upon the bed, where he had connection with her, she making several attempts to get up, but being too exhausted to do so, the prisoner avowing that he had come on purpose, and, as she was in his power, he would do as he pleased ; that she resisted as long as she could, and then, before he had effected his purpose, screamed out, and called to her child, who was outside ; being 'corroborated as to the screams by the child, and by another witness, who heard cries, manifestly those of the prosecutrix ; it also appear- ing 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 (o) Reg. v. Barrow, L. R. 1 0. C. E. 156 ; 38 L. J. (M. C.) 20. (b) Reg. v. Francis. 13 U. C. Q. B. 116. (c) R. v. Saunders, 8 C. & P. 265 ; R. v. Williams, ib. 286 (d) Beg. v. Fick,16\T. C. C. P. 379. 266 CRIMINAL LAW OF CANADA. prisoner had been at his house, and abused her : — Held that this evidence shewed the woman was quite over- come by force or terror, accompanied with as much resistance on her part as was possible under the circum- stances, and so as to have made the ravisher see and know that she really was resisting to the utmost, and sustained the language of the indictment, that the pri- soner " violently, and against her will, feloniously did ravish" the prosecutrix. A conviction for rape was there- fore upheld, (a) in this case, the facts, as they appeared in evidence, were left to the jury, who were told that they must be satisfied, before convicting him, that the prisoner had had connection with the prosecutrix, " with force and violence, and against her will," and further, that " some resistance should be made, on the part of the woman, to shew that she really was not a consenting party." The Court, believing that all the substantial facts which should have been submitted to the jury, by way of direc- tion, were submitted to them, held the direction pro- per, (b) 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 judg- ment in the matter : — Held that he was guilty of rape, and that it was sufficient, in such a case, to prove that the act was done without the girl's consent, though not against her will, (c) . 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 (a) Beg. v. Mck, 16 TT. C. C. P. 379. (6) lb. (c) Beg. v. Fletcher, 5 U. C. L. J. 143 ; Bell, 63; 28 L. J. (M. C.) 85. EAPE. 267 was incapable of expressing consent or dissent, or from exercising any judgment upon the matter, from imbeci- lity of mind, or defect of understanding, and if she gave her consent, from animal instinct or passion, it would not be a rape, (a) "Where the charge was of assault, with intent to ravish, and the woman was insane, and there was no evidence as to her general character for chastity, or anything to aise a presumption that she would not consent, and the jury were directed that, if she had no moral perception of right and wrong, and her acts were not controlled by the will, she was not capable of giving consent, and the yielding on her part, the prisoner knowing her state, was not an act done with her will. The jury having con- victed, saying she was insane, and consented, it was held that the conviction could not be sustained ; for in the principal offence consent, from mere animal instinct, is a defence, even in the case of an idiot, and it is equally so in the lesser charge of assault, with intent to commit rape, particularly as there is no Act of Parliament de- claring the fact of criminal connection with an idiot or lunatic to be an offence, as in the case of children of tender years, (b) 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. (c) And a person may be convicted of attempting to have carnal knowledge of such child, even though she con- sents to the acts done, (d) But her consent will render the attempt no assault, (e) (a) Beg. v. Connolly, mpra, 317. (b) lb. (a) lb. 320, per Hagarty, J. (d) Beg. v. Beetle, h. E. 1 C. C. K. 10; 35 L. J. (M. C.) 60. (e) Beg. v. Cockbwm, 3 Cox, 543; Beg. v. 'Connolly, supra, 320, per Hagarty, J. CRIMINAL LAW OF CANADA. ' In the case of a child under ten years of age, if the indictment be for the misdemeanor of attempting to commit the statutable felony, consent becomes unimpor- tant; and in such case, on an indictment for the principal offence, there cannot be a conviction for the assault, if there be consent to what was done, nor for an assault independently charged, (a) In the case of girls from ten to twelve, on a charge of assault, with intent to carnally know, or indecent assault, or common assault, consent is a defence ; but the pri- soner may be indicted for attempting to commit the statutable misdemeanor, not charging an assault, in which case it seems consent is a 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. (6) 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, (c) 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 pos- session and against the will of her father or mother, or. (a) Beg. v. Connolly, 26 U. 0. Q. B. 323, per Hagarty, J. (6) lb. 323, per Hagarty, .T. See also Reg. v. Guthrie, L. R. 1 C. C. R. 241 ; 9 L. J. (M. C. ) 95 ; Beg. v. Oliver ; Bell 287 ; 30 L. J. (M. C.) 12. (c) Beg. v. Fick, 16 V. C. C. P. 379. ASSAULT AND BATTERY. 269 of any other person having the lawful care or charge of her, is guilty of a misdemeanor. A. 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 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 A. The latter made no enquiry, 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 pos- session ; but he had no reason to, and did not, believe that she was a girl of the town : — Held, that A. was not guilty of having unlawfully taken the girl out of the pos- session of her father, under the 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, (a) 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. (6) 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, (c) "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 not amount to an assault. (<£) So to lay one's hand gently ■on another whom an officer has a warrant to arrest, and (a) Reg. v. HibbeH, L. R. 1 0. C. R. 184 ; 38 L. J. {%L C.) 61. (6) Reg. v. Shaw, 23 U. 0. Q. B. 619, per Draper, C. J. (c) M'Curdy v. Swift, 17 TJ. 0. 0. P. 139, per A. Wilson, J. (dj Buss. Cr. 1025. 270 CRIMINAL LAW OF CANADA. to tell the officer that this is the man he.wants is no bat- tery. If the injury committed were accidental and un- designed it will not amount to a battery, (a) Where A., without any hostile intention, pulled the arm of B., the superintendent of a fire-brigade, the mo- ment the latter was engaged in directing the hose of the engine against a' fire, for the purpose of calling his atten- tion to an observation with respect to the effect of the- water upon the flames: — Held, that this was not such an assault as would justify B. in giving A. into the custody of a policeman, (b) There can be no assault where the party consents to the act done (c) On an indictment that the prisoner, in and upon on& D., a girl above the age of ten years, and under the age of twelve years, unlawfully did make an assault, and her,, the said 1)., 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 vio- lent 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 indict- ment : — 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 indict- ment also contained a charge of a more serious offence,. (a) -Rubs. Cr. 1025. (b, Coward v. Baddeky, 5 V. C. L. J. 262 ; 4H.4N. 478 ; 28 L. J. (Ex.) 260.. (e) Beg. v. Guthrie, L. R. 1 C. C. E. 243 : 39 L. J. (M. C.) 95, per BoviU, C. J.; Mid see Beg. v. Bade, ib. 12, per Pollock, C. B. ; Beg. v. Connolly, 26 U. C. Q, B. 320, per Sagwrty, J. ASSAULT AND BATTERY. 271 consequently the prisoner might be found guilty of either offence, (a) 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 Grod 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 shewed an attempt to murder, but if was moved, in arrest of judgment, that the Sessions had no jurisdiction, for that it was a capital crime within the Con. Stats. Can., c, 91, s. 5 : — 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 prosecution for felony under any statute, and that the conviction might be sustained as for an assault at com- mon law. (b) Using insulting and abusive language to a person in his own office and on the public street, and using the fist in a threatening and menacing manner to the face and head of a person, amounts to an assault, (c) A con- ductor on a train is not liable for an assault, under the Con. Stats. Can., c. 66. s. 106, in attempting to put a per- son off the cars who refuses, after being several times re- quested, to pay his proper fare ; the conductor, in en- fa) Beg v. Guthrie, L. E. 1 C. C. E. 241. (b) Beg. v. M'Evoy, 20 U. C. Q. B. 344. («) Beg. v. Homer, 17 U. C. Q. B. 555 ; Stephens v. Meyers, 4 C. & P. 350. 272 CRIMINAL LAW OF CANADA. deavouring to put the person off, being successfully resisted, and the person paying his proper fare on the conductor summoning others to his aid. (a) 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 war- rants 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 enact- ment only takes effect upon an acquittal, and the assault, to fall within the Act, must be an integral part of the fel- ony charged. (6)' On an indictment for murder the jury found the pris- oner guilty of an assault only, and that such assault did not conduce. to the death of the deceased : — Held, that the prisoner, under such finding, could not be convicted of the assault, under the (N. B.) 1 Rev. Stat. c. 149, s. 20, which authorizes a conviction of an assault, on a trial for murder, or manslaughter, or any felony including an as- sault, (c) Where the prisoners were indicted for murder, and the medical testimony shewed burning to be the direct and only cause of the death, but there was no evidence to connect any of the prisoners \?ith the burning, it was held that the prisoners could not be convicted of an as- sault, under the 32 & 33 Vic, c. 29, s. 51, for, although an (a) Beg. v. Faneuf, 5 L. C. J. 167. 16) Reg. v. Dingmwn, 22 U.C. Q. B. 283; Beg. v. Bird, 2 Den. C. C. 94. (c) Beg. v. Gregwn, 1 Hannay 36 ; and see Beg. v. Ryan, ib. 119, per Ritchie, C J. ASSAULT AND BATTEEY. 273 assault was proved, there was no evidence to shew that it conduced to the death, (a) Nor is this rule altered by the provision in the statute that there may be a conviction of assault, " although an assault be not charged in terms," for the statute in sub- stance places the concise form of indictment for murder or manslaughter on the same footing as if the death were charged by means of a personal assault. (6) It has been held, under the Con. Stats. Can., c. 99, s. 66, that there could be no conviction for an assault, un- less the indictment charged an assault in terms, or a felony necessarily implying an assault, (c) Now, however, s. 51 seems to amend the Con. Stats., and it is apprehended that under it there may be a con- viction of assault, though not charged in terms. It would seem that in the cases of murder by violence, rape, rob- bery, stabbing and the like, being all crimes which necessarily include an assault, a prisoner, if acquitted of the felony, can clearly be convicted of an assault, under this section, if the assault was included in and conduced to the felony ; and as the charge of either of these of- fences necessarily includes a charge of assault, he could be so convicted even, before the recent Act, without any charge of an assault' in terms. But when we take mur- der and manslaughter, the bare charge of which does not show an assault, the prisoner may now be convicted of an assault under the recent Act though not charged in terms, if the evidence shews an assault committed, in attempting to commit the felony charged, or as parcel thereof. But you cannot bring a case within this Act, by aver- ts) Beg. v. Ganes, 22 TJ. C. C. P. 185; following Beg. v. Bird., 2 Den: C. C. 94; Beg. v. Dingmdn, 22 V. 0. Q. B. 283. "1 Beg. v. Ganes, supra. Beg. v. Singman, supra. K 274 CBIMINAL LAW OF CANADA. ring 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 alle- gation of an assault ; where the felony is of such a na ture, that the mere charge of it is not also a charge of an assault (a) Shooting with intent to murder involves an assault, (ft) By the (N. B.) 12 Vic, c. 29, " whosoever shall ma- liciously by any means, manifesting a design to cause grievous bodily harm, attempt to cause grievous bodily harm to any other person, whether any bodily harm be caused to such person or not, shall be guilty of felony." An indictment charging the prisoner, with having mali- ciously 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 mani- fest the design, which constituted the felony, and there was no allegation following the words of the Act : — Held, also that the conviction could not stand for an assault as the Act did not apply, where the indictment was defec- tive, but where the evidence proved an assault under circumstances, not amounting to felony, (c) If the indictment does not* charge a felony, including an assault, the prisoner cannot be convicted of an assault under art, 17 (d) 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 (o) See Beg. v. Dingman, 22 U. C. Q. B. 283 ; Beg. v. Bird, 2 Den. C. C. 94. Beg. v. Beno and Anderson, 4 U. C. P. B. 296, per Draper, C. J. Beg. y. Magee, 2 Allen, 14, lb. ASSAULT AND BATTERY. 275 jury : there was evidence to go to them of grievous bo- dily harm, and that the question of whether the prisoner intended to inflict grievous bodily harm did not arise. The jury found the prisoner guilty of an aggravated assault, without premeditation, under the influence of passion : — Held that the assault was intentional in the understand- ing of the law ; that upon the facts, the jury were justi- fied in finding the defendant guilty of an assault with grievous bodily harm, and that the prisoner was proper- ly convicted of that offence, (a) An indictment charging a prisoner with shooting at A. B., with intent to do him grievous bodily harm, is well supported by evidence, shewing that he fired a loaded pistol, indiscriminately into a group, intending to do grie- vous bodily harm, and that he hit A. B. (b ) In construing the latter part of the 32 & 33 Vic, c. 20 s. 19, we should read the section as though the term malicious had been introduced. It is an essential element in a conviction, under this section, that the act which caused the unlawful wounding should have been done maliciously as well as. unlawfully, (c) The prosecutor and the prisoner were out at night, in separate punts on a creek, in pursuit of wild fool. The prisoner, who was jealous of any one going there to shoot, and had threatened to fire at birds, notwithstand- ing other persons might be between him and them, die- charged 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 se- riously Wounded, whereupon the prisoner rendered him help, assuring him that the injury was an accidental re- fa) Beg. v. Sparrow, 8 IT. C. L. J. 55; Bell, 298; 30 L. j. (M. C.)43. (6) Beg. v. Fret/well, 33 L. J. (M. C). 128 ; L. & C. 443. (c) Reg. v. Ward, L. E. 1 C. C. R. 356. 276 CRIMINAL LAW OF CANADA. suit 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 hurt- ing him. The prisoner was indicted for the felony of wounding, with intent to do grievous Jbodily harm, but was found guilty of the misdemeanor of unlawfully wounding, within the above section : — Held, that there was proof of malice which justified the conviction of the prisoner, (a) The Con. Stats. Can. c. 91 s. 37, applied only to com- mon assaults. (6) No words of provocation whatever can amount to an assault, (c) 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 pitch fork at him, standing within reach of it, or by holding up one's fist at him, or by drawing a sword, and waving it in a menacing manner, (d) Where some thirty persons, armed and riotously assem- bled in front of the plaintiffs 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 (o) Beg. v. Ward, L. R. 1 C. C. R. 356. (6) Re McKinnon, 2 V. C. L. J. N. S. 328, per A. Wilton, J. (c) The Toronto S. V. A. S. 170. (d) lb. 178-9. ASSAULT AND BATTERY. 277 would not have been necessary, perhaps, if the aggres- sors had been actually advancing upon the plaintiff, in the attitude of assaulting him, and still less if any of them had actually struck him. (a) 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 shew of violence, and, generally speaking, it must be left to the jury to as- certain as a question of fact whether the means of resis- tance adopted were justified by the nature of the attack. ■(b) If more force and violence be used than necessary to expel a party from a house, after he has been request- ed, and refused to leave, it cannot be justified, (c) 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 going out. (d) 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 pris- oner is sufficient justification of the act of the bailiff, in apprehending the prisoner, without proof of the previous proceedings authorizing the warrant, (e) Moderate correction of a servant or scholar, by his master, is not an assault. A master has not by law a right to use force in the correction of any servant, but an apprentice ; the moderate correction of a servant, who is an infant, may be justified. The beating of a servant of full age cannot be justified, and will form a sufficient i (a) Spires v. Barrick, 14 U. C. Q. B. 424, per Mobinsmi, C. J. (6) lb. 424, per Robinson, C. J. (c) See Glass v. O'Grady, 17 U. 0. C. P. 233. (d) lb. 236, per J. Wilson, J -.Dams v. Lennon, 8 U. 0. Q. B. 599. (e) Beg. v. Dams, 8 U. C. L. J. 140 ; L. & C. 64 ; 30 L. J. (M. C.) 159. 278 CRIMINAL LAW OF CANADA. . cause or excuse for departure, or for discharge from ser- vice by a master, on complaint. Wounding, kicking and tearing a person's clothes do not fall within the scope of moderate correction, (a) School-masters have a right of moderate chastisement 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 propor- tiQned 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, (b) 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 aggra- vation, (c) An indictment charged the prisoner, in the first count with " unlawfully, and maliciously wound- ing," and in the second count with unlawfully and ma- licously inflicting grievous bodily harm, the jury having found the prisoner guilty of an assault : — Held that the conviction was right, as the offences charged were mis- demeanors, and each of them necessarily included the lesser misdemeanor of an assault, (d) So a person, indicted for inflicting grievous bodily harm and actual bodily harm, may be convicted of a common assault, (e) A charge of assault and beating would be sustained by {a) Mitchell v. Defries, 2 U. C. Q. B. 430, per M'Lean, 3. (b) Brisaon v. Zafontaine, 8 L. C. J. 173. (c) Beg. v. Taylor, L. E. 1 C C. R. 194 ; 38 L. J. (M. C.) 106. (d) lb. (e) Beg. v. Oliver, 8 U. C. L. J. 55 ; Bell, 287 ; 30 L. J: (M. C.) 12 ; Beg. v. Yeadon, L. & C. 81 ; 31 L. J. (M. C.) 70. ASSAULT AND BATTEBT. 279 proof of an aggravated assault, as the aggravation is merely matter of evidence, (a) This offence is a misdemeanor (b) and is so punish- able. The punishment usually inflicted is fine, imprison- ment and sureties to keep the peace, (c) The Court of Quarter Sessions has a general power to fine and imprison in cfse of assault, (d) A charge of assaulting a bailiff in the execution of his duty, being a misdemeanor, is triable at the Sessions, (e) 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 vio- lence 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 effected, the .cir- cumstances might be such as to leave no doubt of an as- sault with intent to commit a rape, therefore an assault may amount to a capital felony, or a felony, or misde- meanor, according to the circumstances with which it is accompanied, (f) On motion to quash a conviction for an assault made by two Justices of the County of Norfolk, it was held that, stating the offence to have been committed at the defendant's place in the Township of Townsend was suf- ficient, for the Con. Stats. U. C, c. 3, s. 1, ss. 37, shewed that township to be within the County of Norfolk, of which county the convicting Magistrates were two of the Justices, and being a public statute, the Court would notice it judici- (a) lie M'Kinmon, 2 U. 0. L. J. N. S. 329, per A. Wilson, J. (b) See Reg. v. Taylor, L. E. 1 0. 0. B. 194. (c) Ovens v. Taylor, 19 U. C. C. P. 52, per Hagwrty, J. id) lb. 49. (e) Reg. v. Cause, 8 L. C. J. 281. (/) M'Curdy v. Swift, 17 U. C. C. P. 139, per A. Wilson, J 280 CRIMINAL LAW OF CANADA. ally ; also that it was unnecessary to shew on the face ot the conviction that complainant prayed the Magistrates to proceed summarily, for s. 1 of the Con. Stats. Can., c. 103, applied to the case, and s. 50 authorized a form of conviction which had been followed precisely, and if there was no such request, and therefore no jurisdiction, it should have been shewn by affidavit, (a) It was also held in this case that it was clearly no objection that the assault was not alleged to be unlawful. (6) But it has been held in Quebec that a conviction for assault will be quashed, if there is nothing to shew that the assault was made unlawfully, (c) (a) Beg. v. Shaw, 23 U. C. Q. B. 616. (b) lb. (c ) Ex parte Holden, 6 L. C. E. 481. See Beg. v. M' Donald, 4 Allen 440, as to conviction for assaulting a constable in the execution of his duty. BURGLARY. 281 CHAPTER V OFFENCES AGAINST PROPERTY. Burglary. — Burglary has been denned to be, a break- ing 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 na- ture of a mere trespass, is not sufficient. Thus if a man enter into 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 bur- glary, (b) 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 fast- ening, or by drawing,or bending them back, or by put- fa; 2 Rubs. Cr. 1. (6) lb. 2. (c) lb. 2. 282 CRIMINAL LAW OF CANADA. ting back the leaf of a window with an instrument, and even the drawing or lifting of a latch, (a) "Where the door is not otherwise fastened, the turning of the key where the door is locked oh the inside, or the unloosing any other fastening which the owner has provid- ed will amount to a breaking. (6) If a man enters by a door or window which he finds open, or through a hole' which was made there before, it is not burglary, (c) Where an entry was effected by taking* out the glass from a door it was holden to be burglary, (d) and where the defendant pulled down the sash of a window which had no fastening, 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. (e) 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, (g) 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. (A) Lifting up the flap of a cellar usually kept down by its own weight is a sufficient breaking for the purpose of burglary, (t) If a window be partly open, but not sufficiently to admit a (a) 2 Euss. Cr. 2-3 ; Rex. v. Owen, 1 Lewim, 35 per Bayley, J. ; Bex v. Law- rence, 4 C. & P. 231 ; Bex v. Jordan, 7 C. & P. 432. (6) 2 Rubb: Cr. 3. ( c) lb. 2 ; and see Bex. v. Lewis, 2 C. & P. 628 ; B. v. Spriggs, 1 M. & Rob. 357. (A) R. v. Smith, R. & R.417. (c) B. v. Haines, R. & R. 451. (/) B. v. Hyams. 7 C. & P. 441. (g) R. v. Hall, R. & R. 355. (A) R. v. Robinson, 1 Mood. C. C. 377. B. v. Russell , 1 Mood C. C. 377. BURGLABY. 283 person, the raising of it so as' to admit a person is not a breaking of the house, (a) It is burglary if a man obtain entrance to a house by means of the chimney, for though open it is as much closed as the nature of the structure will admit, (b) But an entry through a hole in the roof is not burglary, for a chimney is a necessary 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, (c) As to a breaking by fraud, where an act is done in fraudem legis the law gives no benefit to the party, so that if thieves obtain entrance, under pretence of busi- ness, as to arrest a suspected person or the like, if the other ingredients are also in the offence, it will amount to burglary, (d) It is also burglary if the entrance is obtained by con- spiracy, 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, (e) But if a servant, pretending to agree with a robber, open the door and let him in for the purpose of detecting and apprehending him, this is no burglary for the door is lawfully open . (/ ) There may also be a breaking in law where, in conse- quence 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, (g-) With respect to the entry, any, even the least entry, either with the whole or any part of the body, (at R. v. Smith, 1 Mood. C. C. 178 ; Arch. Cr. Pldg. 497. (6) 2 Buss. Cr. 4; Rex v. Brice, E. & E. 450. (c) Bex v. Spriggs, 1 M. & Bob. 357. -• (d) 2 Euss. Cr. 9. (e) lb. 10. (/ Reg. v. Johnson, C. &. Mar. 218. ( 2 Euss Cr. 8. 284 CRIMINAL LAW OF CANADA. hand or foot, or with any instrument or weapon intro- duced for the purpose of committing a felony, will be sufficient, (a) 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. S. 50 provides that whosoever enters the dwelling-house of another, with in- tent to commit any felony, therein, or being in such dwell- ing-house commits any felony therein, and, in either case, breaks out of the said dwelling-house in the night, is guilty of burglary. Every house for the dwelling and habitation of man is taken to be a dwelling-house in which burglary may be committed; (6) and this dwelling-house formerly included the out-houses, such as ware-houses, 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 communication between such building and dwelling-house, either immediate or by means of a covered and enclosed passage leading from one to the other, (c) 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, (d) But the occasional or temporary absence of the owner will not prevent it from being his dwelling-house, (e) How- . ) Beg. v. Gmmell, 26 U. C. Q. B. 312. 336 CRIMINAL LAW OF CANADA. into an agreement in writing with him, that the latter should pay $149 for the horses, or return them within a month : — Held, that this evidence, in conjunction with the writing, repelled the idea that the prosecutor parted with his property in consequence of any false pretence set up by defendant and concurred in by C . That the pro- perty was parted with under the agreement in writing,, and the defendant could not be held liable when the- prosecutor consented to the property passing from him,, under quite a different arrangement from that out of which the false pretence arose, (a) An indictment for obtaining from A. $1200 by false pretences, is not supported by proof of obtaining A.'s= promissory note for that - sum, which A. afterwards paid before maturity, inasmuch as it was an engagement or promise to pay at a future date, and, though remotely, the payment arose from the false pretence ; yet imme- diately and directly it was made, because the prosecutor desired to retire his note, and did so before it became due, and, though the false pretences, 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, (b) 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 should be in his power to do so. (c) A person who, by falsely representing himself to be another person, induces another to enter into a contract with him for board and lodging, and is supplied, accord- ingly, with various articles of food, cannot be indicted for obtaining goods by false pretences, the obtaining of (a) Beg. v. Connor, 14 U. C. C. P. 529. (6) Beg. v Brady, 26 U. C. Q. B. 13. (c) Beg. v. Waylor, L. R. 1 C. C. R. 4 ; 35 L. J. (M. C.) 61. FALSE PRETENCES. 337 the goods being too remotely connected with the false representation, (a) A conviction for obtaining a chattel by false pretences is good, although tbe chattel is not in existence at the time the pretence is made, provided the subsequent de- livery of the chattel is directly connected with the false pretence, and whether or not there is such a direct con- nection is a question for the jury, (b) The test is the continuance of the pretence down to the time of delivery, and the direct connection between the pretence and de- livery, (c) The word " obtain " in the 32 & 33 Vic, c. 21, s. 93, does not mean obtain the loan of, but obtain the property in, any chattel, and, to constitute an obtaining by false pretences, 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 of the chattel, is not an obtaining by false pretences within the Statute, (d) The term " valuable security," used in the Statute, means a valuable security to the person who parts with it on the false pretence, and the inducing a person to ex- ecute a mortgage on his property, it not appearing that the paper on which it was drawn belonged to the prose- cutor, is, therefore, not obtaining from him a valuable security within the meaning of the Act. (e) Upon an indictment for obtaining money by false pre- tences in change for a bank-note, it was proved that the note was one of a private bank, which had paid a divi- (o) Reg. v. Gardner, 2 TJ. C. L. J. 139 ; Dears. & B. 40 ; 25 L. J. (M. C. ) 100. See, however, comments on this case in Reg. v. Martin, L. B. 1 C. C. B. 56' infra. t (b) Reg. v. Martin, L. E. 1 C. C. B» 56 ; 36 L. J. (M. C.) 20. (c) lb. 60, per BoviU, C. J. (d) Reg. v. Kilham, L 'E. 1 C. C E. 261 ; 39 L. J. (M. C ) 109. (e) Reg. v. Brady, 26 U. C. Q. B. 13. 338 CRIMINAL LAW OF CANADA. deud of 2s. 4d. in the pound, and no longer existed : and that a neighbouring bank would not change it : — Held, that the above was not evidence from which it could be inferred that the note was of no value whatever, (a) 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. An indictment alleged that the prisoner was in the em- ploy of V., as a hewer 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. The pris- oner having been convicted : — Held, that, as there was evidence the prisoner had acted the false pretence, the conviction was right. (6) Where, on an indictment for attempting to obtain money by certain false pretences, the evidence shewed that the defendant had contracted to deliver loaves of a specified weight to any poor persons bringing a ticket from the relieving officer, and that the duty of the defen- dant was to return these tickets at the end of each week, together with a written statement of the number of loaves delivered by him to the paupers, whereupon he would be credited for that amount in the relieving offi- cer's book, and the money would be paid at the time stipulated in the contract. The defendant, having deli- vered loaves of less than the specified weight, returned the tickets, and obtained credit in account for the loaves so delivered, but, before the time for the payment of the money arrived, the fraud was discovered : — Held that this was a case within the Statute against false pretences, because the defendant had been guilty of a fraudulent (a) Reg. v. Evans, 6U.C.L.J. 262 ; Bell, 187 ; 29 L. J. (M. C.) 20. (6) Reg. v. Hunter, 16 W. K. 343; 10 Cox. 642; and see Reg. v. Carter- lb. 648. fai.se pretences. 339 misstatement of an antecedent fact, and had not merely sold goods to the prosecutors upon a misrepresentation of ■weight or quality. The Court suggested a qumre whether a case of this latter description is within the statute : — Held, also that, although the defendant had obtained only credit in account, and could not therefore have been convicted of the complete offence, he might have been convicted of an attempt to obtain money, he having done all that depended upon himself towards ob- taining it. (a) A. applied to B. for a loan upon the security of apiece of land, and falsely and fraudulently represented that a house was built upon it. B. advanced the money upon A. signing an agreement for a mortgage, depositing his lease, and executing a bond as collateral security : — Held, that A. was properly convicted of obtaining money by false, pretences, (b) Under the more receiit 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, (c) 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, (d) A servant, whose duty it was to obtain from his master's cashier as much money as he required for the payment of dues, asked for and obtained more than he knew was necessary, and applied the surplus to his own use : — -Held, that this was not larceny, but false pretences, (e) (a) Reg. r. JEagleton, 1 U. C. L. J. 179 ; Dears. 515 ; 24 L. J. (JVT. C. ) 158. See also Reg. v. Shertbobd, Dews. &B. 251 ; 26 L. J. (M. C.) 81; Reg. v. Lee, L. & C. 418 ; 33 L. J. (M. C.) 129 ; Reg. v. Ragg, Bell, 214 ; 29 L. J. (M. C.) 86. (6) Reg. v. Bwgon, 2 XI. G. Jj. J. 138 ; Dears & B. 11 ; 25 L. J. iM. C. ] 109. (c) See Reg. v. Abbott, 1 Den. 173 ; 2 0. & K. 630 ; Reg. v. Ross, Bell 208 : 29 L. J. (M. C.) 86; Reg. v. MeaUn, 11 Cox, 270; Arch. Cr. Pldg. 473. (d) Reg. v. Jessop, 4 U. C. L. J. 167 ; Dears. & B. 442 ; 27 L. J. (M. O.i 70 (e) Reg- v. Thompson, 32 L. J. (M. C.) 57 ; L. & C. 233. 340 CRIMINAL LAW OF CANADA. The prisoner was convicted upon an indictment, charg- ing him, with obtaining money and goods, by pretending that a piece of paper was a bank note, then current and worth £5. It was proved that he fraudulently passed the paper as the bank, note of an existing solvent firm, know- ing that the bank had stopped payment forty years be- fore. The proceedings in bankruptcy were not produced, and a witness for the prosecution proved, in cross exami- nation, that he was employed, by the bankruptcy com. missioners, to print certain indorsements in their presence which appeared on the notes, and, without which, no holder could obtain a dividend : — Held, that the convic- tion was right, (a) The prisoner represented to the prosecutor that a lot of land, on which he wished to borrow money, had a brick house upon it, and thus procured a loan on mortgage, when in fact the land was vacant : — Held, that he was properly convicted of obtaining the money under false pretences, (b) "Upon an indictment alleging that the prisoner ob- tained 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 par- cels 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 pri- soner's calling to try on the coat, it was found to be too small, and he was then measured for one, which he order- fa; Beg. v. Dawey, 16 W. E. 344 : 37 L. J. (M. C.) 52. (6) Beg. v. Buppel, 21 TJ. C. Q. B. 281. FALSE PRETENCES. 341 ed 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 parcels 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 prosecu- tor stated that, believing the bill of parcels to be a genu- ine 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 : — Beld, that there was evidence to go to the jury, and that the conviction was right, (a) "Where a prisoner, who had been discharged from ■ A's service, went to the store of 0. and S., and representing himself as still in the employ of A., who was a customer of 0. 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 so, walked out of the house,, with the parcel : — Held, that, under the 4 & 5 Vic, c. 25, s. 45, the prisoner was rightly convicted of having obtained the goods from O. and S. under false pretences, (b) The prisoner sold a mare to B. taking his notes for the purchase money, one of which was for $25, and a chattel mortgage on the mare as collateral security ; after this note had maturedhe threatened to sue on it, and pretended ihat he was in a position to do so. B. then got one E. to pay the money, the, prisoner promising to get the' notes from a (a) Beg. v. Steels, 16 W. E. 341. (b) Beg. v. Bobmion, 9 L. C. K. 278. 342 CRIMINAL LAW OF CANADA. lawyer's office where he said they were, and give them up next morning. This note, however, had been sold by the prisoner some time before, to another person who afterwards sued B. upon it, and obtained judgment The jury found that the prisoner falsely pretended, he had the $25 note in his possession, or under his control, with the motive of inducing B. to part with his money ; — Held, that the prisoner might be properly convicted of obtaining the $25 by false pretences, (a) It is a sufficient false pretence, within the Statute, to pretend that certain drafts, in return for which the prisoner obtained from the prosecutor a mortgage and a promissory note, were good and would be paid, whereas, it appeared that these drafts were worthless from first to last, and were merely fictitious, (b) 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, (c) The prisoner induced the prosecutor to purchase a chain from him, by fraudulently representing to him that it was 15 carat gold, when, in fact, it was only of a qual- ity a trifle better than 6 carat, knowing at the time that he was falsely representing the quality of the chain as 15 carat gold : — Held, that the statement that the chain was 15 carat gold, not being 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, was a sufficient. false pretence to sustain an indictment for obtaining money under false pretences, (d) The questions whether statements of a seller of an (a) Beg. v. Lee, 23 tT. C. Q. B. 340. (6) Reg. v. Brady, 26 U. 0. Q. B. 14, per Draper, C. J. (c) Beg. v. Ooss, Bell, 208; 29 L. J. (M CC) 90, per Erie, C. J. ; Beg. v. Bryan, Dears. & B. 265 j 26 L. J. (M. Cj 84. See also Beg. v. Watson, Dears, & B. 348 ; 27 L. J. (M. C. ) 18, per Erie, J. ; Beg. v. Levine, 10 Cox, 374. W) Beg. v. Ardley, L. R. 1 C. C. R. 301. FALSE PRETENCES. 343 article are matter of fact, or matter of opinion — state- ments of specfic facts, or mere exaggerated praise— are for the jury, (a,) It would seem, from these and other cases, that a spe- cific representation of quality, if known to be false, is within the Statute. It has been held that obtaining, by false pretences, the signature of the prosecutor to an acceptance of a bill of exchange, produced to him for that purpose by the de- fendant, with intent to defraud, was not indictable under the repealed (Imp.) Act, 7 & 8 G-eo. 4, c. 29, s. 53 (b) It would now be indictable under the 32 & 33 Vic, c. 21, s.95. Formerly, if on , an indictment for obtaining, etc., by false pretences, it was proved that the property was ob- tained in such manner as to amount to larceny, the de- fendant was entitled to an acquittal, the misdemeanor being merged in the felony, (c) The true meaning of this clause is, that, if the obtain- ing by false pretences is proved, as it is laid in the indict- ment, the defendant is not entitled to be acquitted of the misdemeanor, simply because the case amounts to lar- ceny, (d) 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 con- victed 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 (a) Beg. v. Ardley, L. R. 1 C. C. R. 304, per Sovill, C. J. (6) Beg. v. J)anger, Dears. & B. 307 ; 26 L. J. (M. C.) 185. (c) But see now 32 & 33 Vic. e. 21, s. 93. (d) See ante p. 79; Beg. Bulmer, L. & C. 476 ; 33 L. J. (M. C.) 171 ; 9 Cox 492; Arch. Cr. Pldg. 483. 344 CRIMINAL LAW OF CANADA. to show that the defendant had, by fraudulent misrepre- sentations of the business he was doing in a trade, in- duced the prosecutor to enter into a partnership agree- ment, and advance £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 ques- tion for the Court being, whether, upon such evidence, the jury were bound to convict the defendant : — 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, (a) Where a defendant, on an indictment for obtaining money by false pretences, has been found " guilty of lar- ceny," the Court has 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." (b) 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 jE20, which was received out of the borough : — 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. (e) Where the venue, in an indictment for obtaining sheep by false pretences, was laid in county E., where the per- son was convicted, and it appeared that the sheep had been obtained by the prisoner in county M., and that he conveyed them into county B., where he was appre- (a) Reg. v. Watmn. 4 TJ. C. L. J. 73 ; Dears. & B. 348: 27 L. J. (M. C.) 18 (6) Reg. v. Ewing, 21 U. C. Q. B. 523. ' ' (ej Reg. v. Leech, 2 TJ. C. L. J. 138 ; Dears. 642 ; 25 L. J. (M. U.) 77. FALSE PRETENCES. 345 hended : — Held, that he had been indicted in a wrong county, (a) It has been held that an indictment for obtaining money by false pretences must shew, on the face of it, a false pretence of an existing fact ; and where the pre- tence averred was, that the prisoner falsely pretended that he, having done certain work, there was money "due and owing" to him for and on account of the work, parcel of a larger sum claimed by him; whereas there was not then "due and owing" to him such money, being parcel, etc. After verdict of guilty had been re- corded, judgment was arrested, and the Court held that the indictment was bad, and the arrest of judgment proper, upon the ground that the false pretence of an existing fact was not sufficiently alleged, and that the averment would be proved by evidence of a wrongful overcharge, or misrepresentation of matter of law. (b) Our form of indictment for obtaining money by false pretences does not require the pretences to be set out, but simply, that the prisoner, " by false pretences, did obtain," etc. It is 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. To sustain an indictment for obtaining, or attempting to obtain, money by false pretences, the indictment must state with certainty the pretence of a supposed existing fact. 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, held insufficient — Blackburn, J. and Pigott, J, dubitantibus. (c) One D., being a postmaster at Berlin, transmitted to (a) Beg. v. Stanbvfy, 8 U. C. L; J. 279; L. & C. 128 ; 31 L. J. (M. 0.) 88. (6) Beg. v. Oates, 1 XJ. C. L. J. 135; Dears. 459; 24 L. J. (M. C.) 123. (c) Beg. v. Henahaw, L. & C. 444 ; 33 L. J. (M. C.) 132. 346 CRIMINAL LAW OF CANADA. <- defendant, at Toronto, several Post-Office orders, payable there, which defendant presented, and got cashed ; but it appeared afterwards that the money thus obtained had never been received by D.for defendant, and that frauds to a large extent had been thus committed. Defendant having been convicted, upon an indictment which charged him with having unlawfully, fraudulently, and knowingly, obtained from our Lady the Queen these sums of the moneys and property of our said Lady the Queen, with intent to defraud : — Held, that the indict- ment was good — that the 56th section of the Con. Stats. Can., c. 31, was not applicable to the case, and that it was unnecessary to allege an intent to defraud any par- ticular person, as the indictment was in the language of the Statute (a) creating the offence, and the same manner of allegation was sanctioned by c. 99, s. 29, of the Con. Stats, (b) — Held, also, that the indictment need not lay the money as the property of the Postmaster-G-eneral, and it was sufficient to lay it in Her Majesty, (c) 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 given to him. He then struck out of the first order " three of golden drop, three of fife," and, presenting both orders, obtained, in all, twenty-four bushels. The indictment charged that de- fendant 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 (a) Con. Stat. Can. c. 92, s. 73. (b) Reg. v. Dessaner, 21 TJ. C. Q. B. 231. (c) See now 32 & 33 Vic. c. 21, a. 93, FALSE PRETENCES. 347 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 0., of the goods and chattels of the said municipality, with intent to defraud : — Held, that the indictment was sufficient in substance, and not uncertain or double, but in effect charging that defendant obtained the order, and, by presenting it, ob- tained the wheat by false pretences, ( case is now provided for by the 32 & 33 Yic, c. 19, s. 15. Under s. 26, the forgery of a request for the payment of money is made felony, though it was formerly no of- fence, (c) A forged magistrate's order for a reward for apprehend- ing a vagrant, which appeared upon the face of it to be defective, as not being under seal or directed to the con- stable, etc., was holden not to be within the former stat- ute ; for, without these requisites, it was nothing more than the order of a mere individual, which the treasurer was not bound to obey; (d) such orders would be authorities, or requests within the above section. An instrument in the following form. $3.50. " Carick, 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. (a) Beg. v. It Donald, 12 IT. C..Q. B. 543. (b) B. v. Wilcock, 2 Buss. 498 ; Arch. Cr. Pldg. 579. (t) See Beg. v. Thorn, 2 Mood. C. C 210 ; C & Mar. 206. (d) B. v. Buehworth, R. & R. 317; Arch. Cr. Pldg. 583. FOBGEEY. 367 is an order for the payment of money, and not a mere request, (a) But an instrument as follows : — " Eenfrew, June 13, 1860. " Me. 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, (Sgd.) J. Almieas, p. p. is not an order for the payment of money, within the Con. Stats. Can. c. 94. (b) " Mk. "Wabken, — Please let the bearer, "William Tuke, have the amount often 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; (c) but it would not be a warrant for the payment of money, within the meaning of the Statute, (d) The true criterion as to the instrument being an order or not, is whether the person, to whom it is directed, could recover the amount on payment, (e) 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 shewn by evidence that it was intended for such person, or for whom it was intended. (/) Where the order was for $15, in favour of "bearer or R. R." and purported to be signed by one " B," and the fa) Beg. v. Steel, 13 TJ. C. C. P. 619. (6) Sea. v. Rmpelle, 20 TJ. C. Q. B. 260. (c) Beg. v. Tuke, 17 U. C. Q. B. 296. id) lb. 298, per Bobmion, C. J. (e) lb. 299, per Robinam, C. J. ; Beg. v. Carter, 1 Cox, C. C. 172 ; lb. HI; Beg. v. Dawson, 3 Cox, C. C. 220. (/) Beg. v. Parker, 15 IT. C. C. P. 15; Beg. v. Sndling, 6 Cox, 230; 1 Dears. 219. 368 CRIMINAL LAW OF CANADA. prisoner in person presented it to M., representing him- self to be the payee' and a creditor of " B " : — Held, that it might fairly be inferred to be intended for M., and a con- viction for forgery was sustained, (a) An indictment will not lie for forging or altering the Assessment Roll for a township, deposited with the clerk, (b) This would probably now be an offence with- in the 32 & 33 Vic, c. 19. An indictment for forging a note must allege that the note was forged. The defendant was convicted, at the Quarter Sessions, upon an indictment, charging that he, feloniously, did offer, dispose of, and put off a certain promissory note, purporting to be made by one F., for the sum of £4 10s., with intent to defraud, he, the said defendant, at the time he so uttered and published the said note, as aforesaid, then and there, well knowing the same to be forged. It ap- peared that some boys had been amusing themselves with writing promissory notes, and imitating persons' signatures, and among them was one with P.'s name. The papers were put in the fire, but one of them was carried up the chimney by the draft, and fell in the street, where it was picked up by the defendant. The latter did not know by whom, or with what intent, it had been made, though he suspected it was not genuine. A person, who was with him at the time, said he thought it was not genuine, and advised him to destroy it ; but defendant kept it, and afterwards passed it off, telling the person who took it that it was good : — Held, that, upon these facts, the defendant was guilty of a felonious uttering ; but the conviction was quashed, for the indictment was (a) Beg. v. Parker, 15 XT. C. C. P. 15 ; Beg. v. SneUing. 6 Cox. 230 : 1 Dears. 219 ■ (6) Beg. v. Preston, 21 U. C. Q. B. 86. FORGERY. 369 defective, in not stating expressly that- the note ; was forged, or that the defendant uttered it as true, (a) 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 competent 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, (b) The 10 & 11 Vic, c 9, re-enacted the provisions of the 9 Vic, c. 3, and the 16 Vic, c. 19, Con. Stats. U. C, c 32, removed the incapacity of crime or interest. This latter Statute did not supersede the former, and both are found- ed on the same principle, namely, to prevent the exclu- sion of witnesses, on the ground of interest in the subject matter of enquiry, the first being applicable to enquiries relative to forgery, the latter, general,, and also removing the disqualification attached to a conviction for crime, (c) The 32 & 33 Vic, c 19, s. 54 and c. 29, s. 62, now em- body all the provisions of the former enactments on these points. Where the prisoner was indicted for forging an order for the delivery of goods, and on the trial the only wit- nesses 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 was held, that, under the pro- viso in the 10 & 11 Vic, c. 9, s. 21 , there was not suffi- cient evidence to support a conviction, (d) (a) Reg- v. Dtmlop, 15 TJ. C. Q. B. 118. (6) Reg. v. Giles, 6 IT. C. C. P. 86, per Draper, C. J. (c) lb. 86, per Draper, C. J. Id) Reg. v. Giles, 6 TJ. C. 0. P. 84. As to what is sufficient corroboration, see Meg. v. M'Donald, 31 TJ. 0. Q. B. 337. 370 CRIMINAL LAW OF CANADA The offence of forgery is not triable at the Quarter Sessions, (a) Great care was formerly requisite in describing the in- strument in an indictment for forgery, but now it is suf- ficient to describe the same by any name or designation, by which the same may be usually known, or by the purport thereof, without setting out any copy or fac sim- ile thereof, or otherwise describing the same or the value thereof. (6) 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 (c) "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, otherwise an acquittal would have been directed on the ground that the misdemeanor was merged, (d) In an indictment for forging a receipt, it must be alleged that such receipt was either for money or goods, etc., as mentioned in the Con. Stats. Can., c. 94, s. 9. (e) Where the instrument is set out in hcec verba, in an in- dictment for forgery, the description of its legal character is surplusage, and unnecessary. (/) "Where an objection was taken to an indictment for forgery, that it concluded contra formam statuti, and that there was nothing to shew that the offence was against any Statute : — Held, that this averment was of no importance, for, if the offence was one against the Statute, it was sufficiently proven, and, if not against the Statute, (a) Beg. v. M'Dmald, 31 U. C. Q. B. 337 ; Beg. v. Dwnlop, 15 U. C. Q. B. 118 (b) 32 & 33 Vic. c. 19. s. 49. (c) See s. 51. (d) B. v. Evans, 5 C. & P. 553. But see now 32 & 33 Vie., o. 29, s. 50, ante, p. 78. (e) Beg. v. M'Corkill, 8 L. C. J. 283. (/) Beg. v. Carson, 14 V. C. C. P. 309; Beg. v. Williams, 2 Den. C. C. 61. CHEATS AND FRAUDS. 371 but an offence at common law, the allegation was im^ material and unnecessary, (a) It is no defence to an indictment for forging a note, that the prisoner may have expected, and fully intended, to pay it when it became due. (6) The offence of forgery, at common law, was only a misdemeanor, and it fell within the general class of cheats, (e) Cheats and Frauds. — These offences at common law consisted in the fraudulent obtaining the property of an- other, 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, (d) 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 33 Hy. 8. (e) 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 indictment must allege that the article was passed off by means of such false token or mark. 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 fraudu- lently painted, with intent to pass the picture off as the original work of the artist whose name was so painted, (o) Reg. v. Carson, 14 TJ. C. C. P. 309 ; Reg. v. Williams, 2 Den. C. C. 61. 6) Reg. v. Craig. 7 IT. C. C. P. 244. ic) 2 Rusa. Cr. 709 et seq. Id) Reg. v. Roy, 11 L. (J. J. 94, per Drwmmond, J ; and see 2 Rubs. Cr. 613. (e) 2 Russ. Cr. 613 ; Ward's case, 2 Str. 747. 372 CRIMINAL LAW OP CANADA and that he sold the same to H. F., with intent to de- fraud, 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: — Held, that such painting of the artist's name was putting a false token on the pic- tare, and that the selling by means thereof would be a cheat at common law, but that the want of such last averment was fatal, (a) Where a person contracts to deliver loaves of bread, of a certain weight, at a certain price, the delivery of a less quantity, (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, (b) False Personation. — Falsely personating a voter at a municipal election is not an indictable offence. Our sta- tute law contains no provision on the subject, nor is it an offence at common law. (c) It would seem that, in an indictment for this offence, there should be an averment negativing the identity of the defendant with the voter suggested to be personated, (d) Falsely assuming to vote in the name of another per- son, whose name appears on the list of voters, is made a misdemeanor, by Con. Stats. Can. c. 6, ss. 60 & 87, and can be tried only in a Criminal Court, and the fine im- posed on conviction in such Court, (e) A person cannot be convicted under the 14 & 15 Vic, c. 105, s. 3, of personating a " person entitled to vote," if the person personated be dead at the time, as the words can only mean a person entitled to vote at the time when the personation takes place. (/) To complete the offence of inducing a person to per- (o) Beg. v. Glosi, 4 U. C. L. J. 98 ; Dears. & B. 460 ; 27 L. J. (M. C.) 54. (*) Beg. v. Eaglehm, 1 TT. C. L. J. 179 ; Dears. 515 ; 24 L. J. (M. C.) 158. (c) Beg v. Hogg, 25 U. C. Q. B. 66. ; Beg. v. Dent, 1 Den. C. C. 159. lb. 68, per Hagwrty, J. Barrette v. Bernard, 14 L. U. ±t. 438. {/) Whitelty v. ChuppcU, L. R. 4 Q. B. 147. MALICIOUS INJURIES. 373 sonate a voter, at a municipal election, tinder the Imp. Act, 22 Vic, c. 35, s. 9, it is not necessary that the per- sonation should be successful, and a conviction for the offence was held good, though it did not set out the mode or facts of the inducement. («) Malicious Injuries. — Injuring or destroying private property is, in general, no crime, but a mere civil trespass, over which a Magistrate has no jurisdiction, unless by Statute, (b) 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 malici- ously done, (c) But malice conceived against the owner of the property, in respect of which it shall be committed, is not necessary, (d) It is not necessary that the damage done should, be of a permanent kind. Plugging up the feed pipe of a steam engine is an offence within s. 19 of this Act. The prisoner plugged up the feed-pipe of a steam engine, and displaced other parts of the engine in such a way as rendered it temporarily useless, and would have caused an explosion if the obstruction had not been discovered, and, with some labour, removed : — Held, that he was guilty of damaging the engine, with intent to render it useless, within the meaning of this clause, (e) It was held under the former Statute, 4 & 5 Vic, c. 26, s. 5, the words of which were not so comprehensive as the 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. (/) (a) Beg. v. Hague, 12 W. R. 310 ' (6) Powell v. Williamson, 1 U. C. Q. B. 155, per Robinson, 0. J. (c) Powell v. Williamson, supra. d) b. 66. e) Beg. v. Fisher, L. R. 1 G. C. R. 7 ; 35 L. J. (M. C.) 57. /) Beg. v. Daghertp, 2 L. C. R. 255. 374 CRIMINAL LAW OF CANADA. 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 6ense. (a) Ss. 20 & 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, (ft) 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 want of certainty, (c) The offence of wilfully injuring a fence, etc., under the (N. B.) lEev. Stats., c. 153, s. 11, is a misdemeanor, not punishable by summary conviction, (d) Arson at common law is an offence of the degree of felony, and has been described as the malicious and wil- ful burning of the house of another, (c) 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 misde- meanor 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 aliv/m non Icedas, and even by non-observance of that rule he would only commit a civil injury, and not a crime, (g) Arson, at common law, being an injury to the actual a) Beg. v. Bullock, LE.1C.CR 115 ; 37 L. J. (M. C.) 47. b) Madden v. Farley, 6 TJ. C. Q. B. 213, per Robinson, C. J. >) Ex parte Hook, 3 L. C. R. 496. id) Ex parte Mulhera, 4 Allen, 259. 'e) 2 Rues. Cr. 1024! f)Ib. g) Beg. v. Bryant, 12 TJ. C. C. P. 163-4, per Draper, C. J. ARSON. 375 possession, and not merely a wrong in destroying a valu- able property, when the Legislature extends the limits of the crime we must construe their enactments strictly, (a) 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. (6) 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 doit is not sufficient, (c) "Where a small faggot, having been set on fire on the boarded floor of a room, the boards were thereby " scorched black but not burnt," and no part of the wood was consumed, this was held not a sufficient burning, (d) Now, 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. The burning must also be malicious and wilful, other- wise it is only a trespass. No negligence or mischance, therefore, will amount to such a burning, (e) But malice against the owner of the property is not necessary. (/) The decisions with respect to burglary apply also to [a) M'Nab, v. M'Orath, 5 U. C. Q. B. 0. S. 522, per Bobinum, C. J. (6) K. v. Salmon, B. & E. 26 : B. v. Stallion, 1 Mood. 0. C. 398: Arch.Cr. Pldg. 909. {c)Ib. (d) B. v. Russell, G. & Mar. 541. (e) 2 Buss. Cr. 1025. (f) 32 & 33 Vie. o. 22, s. 66. 376 CRIMINAL LAW OF CANADA. arson, as to what may be considered a house, shop, etc. (a) A shop is defined to be a place where things are pub- licly 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. 4, c. 3, they clearly did not, because buildings used in carrying on any trade or manufacture were protected under a separate and distinct provision, although the term shop had been used before, and, in fact, by their adding the qualifica- tion used, in carrying on any trade or manufacture, the Legislature evinced that they intended to have reference to the purpose for which the building was actually used, at the time of the offence, (b) Where, on an indictment imder this Statute, it appear- ed that the building set fire to had not, for a year or more j been occupied as a shop ; it contained some iron in the cellar, but was otherwise not inhabited for any purpose; and it was contended that the building was a shop, with, in the meaning of the Statute, but, per Robinson, O.J., (e) 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 appropriate purpose. If left for a mo- ment animo revertendi it is still the dwelling-house of its possessor. A mere building, though fitted up, or intend- (a) M'Ndh v. M'Grath, 5 TJ. C. Q. B. 0. S. 522. (b) M'Nab v. M'Grath, supra, 520. ( c) lb. 519. ARSON. 377 ed, for any of these purposes, does not acquire its char- acter until it has been appropriated to its proper purpose, and, after it has been so appropriated, the use must be continued to the time of the offence, or, if discontinued, must be discontinued under such circumstances as indi- cate an intended immediate resumption. , 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 building used in carrying on the trade of a carpen- ter, within the 4 & 5 Vic, c. 26, s. 3. (a) A building, within the 32 & 33 Yic, c. 22, s. 7, need not necessarily be a completed or finished structure : it is sufficient that it should be a connected and entire structure, (b) 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, ail the walls, external and inter- i nal, of the house, being built and finished, the roof being on and finished, and a considerable part of the flooring 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 : — Held to be a building within the meaning of this section. Where the question of building or no building is pro- perly left to the jury, their finding is conclusive, (c) (a) Reg. v. Smith, 14 TJ. 0. Q. B. 546. (b) Reg. v. Manning, L. K. 1 C. C. E. 338. (c) lb. 378 CRIMINAL LAW OF CANADA. 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, for every person is deemed to intend the natural consequence of his own act. (a) But this doctrine can only arise where the act is wilful ; and, therefore, if the fire appear to be the result of accident, the party who is the cause of it will not be liable. On the other hand, where the defendant is charged with setting fire to his own house, the intent to defraud can- not be inferred from the act itself, but must be proved by other evidence. (6) It has been held, on an indictment under the Con. Stats. Can., c. 93, s. 4, against a person for setting fire to his own house, that it was necessary to prove an intent to injure or defraud, in order to shew the act to be un- lawful and malicious, within the meaning of the Sta- tute, (c) The Court will infer the act to be unlawful and malicious when the intent to injure or defraud is shewn, (d) An indictment, under this Statute, 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, (e) The 32 & 33 Vic, c. 22, s. 3, makes the intent part of the crime, and it is apprehended that the intent must now be alleged in the indictment, notwithstanding the above cases. (/) In Greenwood's case, the prisoner being indicted for unlawfully and maliciously attempting to burn his own house, by setting fire to a bed in it, it appeared in evi- dence that the house in question was so closely adjoining (a) See R. v. Farrington, R. & R. 207. (b) See Arch. Cr. Pldg. 511-2 ; R. v. GiUon, R. & R. 138. (c) Reg. v. Bryant, 12U. U. C. P. 161. (d) lb. (e) Reg. v. Bryam, supra ; Reg. v. Greenwood, 23 U. C. Q. B. 250. (J) See Arch. Cr. Pldg. 508. AESON. 379 to another house, both being of wood, and the space be- tween 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 shewn 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 shew 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 committed by another, the pri- soner's act was intended to conceal, it. (a) 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. (b) An in- dictment on s. 3 of the 32 & 33 Tic, c. 22, must allege the intent to injure or defraud, (c) Where the prisoners are indicted under the 32 & 33 Vic, c. 22, s. 3, for unlawfully, maliciously, and feloni- ously setting fire to a shop " of and belonging to " one of the prisoners, the averment of ownership is an imma- terial averment, which may be rejected as surplusage, and need not be proved ; and an intent to injure another person, whose name is not stated in the indictment, may (a) 23 XT. C. Q. B. 2S0. (b) Beg. v. March, 1 Mood. C. C. 182; Arch. Cr. Pldg. 512. (c) Beg. V. Pause, 1 C. & K. 73. 380 CRIMINAL LAW OF CANADA. be proved in support of the indictmsnt ; for, by s. 68 of the Act, it is not necessary to allege an intent to injure or defraud any particular person, (a) 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, malici- ously, and feloniously, setting fire to a house, etc. (b) The prisoner was charged with inciting one W. to attempt feloniously, unlawfully, and maliciously to set fire to a certain dwelling-house, by then and there satu- rating a blanket with coal oil, and placing it against said dwelling-house, and sprinkling coal oil upon the doors and sides thereof, and attempting to apply a burning match to said oil, said house being at the time inhabited. The evidence shewed that "W., after arranging, under the prisoner's directions, the saturated blanket, so that, if the flame were communicated to it, the building would have caught fire, lighted a match, and held it in his fin- gers till it was burning well, and then put it down to- wards 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. No fire was actually communicated to the oil or blanket : — Held, that these were overt acts immediately and directly tending to the execution of the principal crime, (c) and that the prisoner was properly convicted under the 32 & 33 Vic, c. 22, s. 12, of an attempt to commit arson, (d) On an indictment under the corresponding English sec. of 32_& 33 Vic, c 22, s. 8, it appeared that the prisoner, from ill-will and malice against a person lodging in a (a) Beg. v. Newbmlt, L. R. 1 C. C. R. 344. 16). Re Anderson, 11 U. C. C. P., 69, per Hagarty, J. (ej See ante, p. 85. (d) Beg. v. Goodmm, 22 U. C. C. P. 338. •AKSON. 381 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 extinguished 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 malici- ous, and with intent to injure, so as to bring the case 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 : — Held, that, upon the finding of the jury, the prisoner was not guilty of felony ; for their finding was only that t 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 malicious setting fire to goods felony, (a) It is a felony, under 14 & 15 Vic, c. 19, s. 8, coupled with 1 "Wm. 4, 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 defraud an insurance company, by burning the goods. One of these Acts makes it felony to set fire to a house, {a) Reg. v. Child, L. E, 1 C. C K. 307. 382 CRIMINAL LAW 6P CANADA. 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 intention 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, (a) Upon an indictment under 7 Wm. 4, 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 : — Held, that a conviction upon the above facts and finding of the jury was right, (b) Perjury and Subornation of Perjury. — Perjury at com- mon law is defined, to be a wilful false oath by one, who being lawfully required to depose the truth in any pro- ceeding in a Court of Justice, swears absolutely, in a matter of some consequence to the point in question, whether he be believed or not. (c) Subornation of per- jury, by the common law, is an offence, in procuring a man to take a false oath, amounting to perjury, who ac- tually takes such oath, (d) These offences are now mis- demeanors, by the 32 & 33 Yic, c. 23. s. 1. An oath or affirmation, to amount to perjury, must be taken in a judicial proceeding, before a competent juris- diction ; and must also be material to the question de- pending, and false, (e) The swearing falsely by a voter, at an election of alder- man or common councilman for the city of Toronto, that he is the person described in the list of voters, not being (a) Beg. v. Lyons, 5 V. C. L. J. 70 ; Bell C. C. 38. (b) Beg. y. Spencer, 3 U. C. L. J. 19 ; Deare. & B. 131 : 26 L. J. (M. C.) 16. (c) 3 Buss. Or. 1. (d) lb. (e) B. v. Aylett, 1 T. B. 69 ; 3 Buss. Cr. 2. PERJURY. 383 made perjury by any express enactment, is not an oath upon which, by the common law, perjury can be assigned, not being in any judicial proceeding, or anything tend- ing to render effectual a judicial proceeding, (a) This would probably now be perjury, under the 32 & 33 Vic. c. 23, s. 2. Taking a false oath is not an offence in law, unless it be in a judicial proceeding, or on some other lawful occasion, on which it has been made an offence by law to swear falsely, (ft) Wilful and corrupt false swearing before a local marine board, lawfully constituted, upon a matter material to an enquiry, 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, (c) 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 ; conse- quently the proceeding of the Justices, in taking his evi- dence, is a valid judicial proceeding sufficient t6 make the prisoner's false swearing, in the course of it, perjury, (d) 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 mis- demeanor at common law. (e) In the latter case, A. was indicted for perjury in an affidavit made, under the Bills of Sale Act, for the purpose of having a bill of sale filed. The indictment was in the ordinary form. The affidavit was sworn before a Commissioner for taking affidavits in the Court of Queen's Bench. A having been found guilty, (a) Thomas v. Piatt, 1 U. C. Q. B. 217. (b) Hogle v. Bogle, 16 TJ. C. Q. B. 520, per Bobinson, C. J. (c) Beg. v. Tomlinaon, L. R. 1 0. C. R. 49 ; 36 L. J. (M. O.) 41. U) Beg- v. Fletcher, L. R. 1 C. C. R. 320. (e) B. v. Ghamrum, 1 Den. 432, 2 0. & K. 846 ; Beg. v. BodgMss, L. R. 1 C. C. R. 212; 39 L. J. (M. C.)14. 384 CRIMINAL LAW OF CANADA. it was held that the offence did not strictly constitute perjury ; but that, nevertheless, the conviction should be affirmed, because A. was guilty of taking a false oath, where an affidavit was required for the purposes of a Statute, which offence was sufficiently charged in the indictment, and was, under the circumstances, a common law misdemeanor, to the punishment, for which he might be sentenced, (a) It has been held that wilful false swearing in any affi- davit made in a judicial proceeding, and sworn before a Commissioner, legally authorized to take such affidavit, is perjury at common law ; (b) but this case must be treat- ed as modified by the preceding one. It is quite clear, from numerous authorities, that, unless the party administering the oath has competent author- ity to administer it, the false swearing will not amount to perjury. There must be authority to administer the oath in the particular proceeding, in which the witness is sworn. An affidavit made by the prisoner, in a review case tried before a Justice of the Peace, the affidavit being sworn before a Commissioner, authorized to take affida- vits in 'the Supreme Court, cannot under the (N.B.) 1 Rev. Stat. c. 161 s. 30, be made the subject of an indict- ment for perjury, for the words " officer authorized " mean an officer authorized to take affidavits in the par- ticular proceeding, in which the witness is sworn, (c) The person administering the oath must be exercising his jurisdiction, at the time the oath is administered, (d) On an indictment for perjury, committed upon the hearing of a complaint before a Magistrate, the informa- tion and complaint having been proved : — Held, upon a (a) Reg. v. Jtodgkisa, L. E. 1 C. C. R. 212. (b) Milner v. Gilbert, 3 Kerr, 617. (cj Beg. v. M'Intosh, 1 Hannay, 372. (d) M'Adam v. Weaver, 2 Kerr, 176. PEBJURY. 385 case reserved that, to give the magistrate jurisdiction, it was unnecessary to shew any summons, issued or any step taken, to bring the person complained of before the Magistrate, for, so long as he was present, the manner of his getting there was immaterial, (a) The complaint before" the magistrate was for selling liquor without licence, contrary to the fOnt.) 32 Vic, c. 32, and the indictment did not shew where the liquor was sold, and s. 25 of the Act requiring the proceedings, to be carried on before Magistrates, " having jurisdiction in the municipality, in which the offence is committed, " it consequently did not appear from the indictment that the Magistrate had jurisdiction, to hear the complaint or administer the oath, and the indictment therefore was insufficient in law. It would seem that it was also defec- tive, for not shewing that the person complained against was present, or that a summons issued, and that the Ma- gistrate was authorized to proceed ex parte, if the person complained against did not appear, after due service of the summons upon him. (b) Defendant, by verbal agreement, engaged to work as a farm servant with one T., on the 9th of April,. 1860, at $8 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. He left on the 21st of November, having told T., about three weeks previously, that he would like to go then, to which T. assented. Defendant complained of T., before a magistrate, for not paying his wages, and was indicted for perjury commit- ted on that occasion, and found guilty : — 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 (a) Beg. v. Mason, 29 XJ. C. Q. B. 431. (6) lb. 434, per Wilson,. J. Y 386 CRIMINAL LAW OF CANADA. the Con. Stats. U- 0., c. 75, and under the 12th section of the Act, gave the Magistrate jurisdiction to adjudicate on the matter, and afford redress, and the conviction was affirmed, (a) The prisoner was indicted for perjury com- mitted before a Police Magistrate, upon a summons taken out by him as an apprentice against his master, under the 4 Greo. 4 c. 34. s. 2, for non-payment of wages; — Held, that the Magistrate had jurisdiction to adjudicate upon the complaint, although the summons was not taken out until the relation of master and servant had ceased, and that, at any rate, he had jurisdiction to enquire into the existence of that relation, (b) The prisoner was convict- ed of perjury, alleged to have been committed upon the hearing of an application for an order of affiliation. The summons to the prisoner was not not produced on the trial, nor was secondary evidence given of its contents, nor was it proved that such summons had been served on the prisoner. The information laid by the mother was duly proved, and it was shewn that the putative father appeared before the Justices, and that evidence was given on both sides, and the prisoner gave the evi- dence which was the subject of the indictment for per- jury : — Held, that the father having appeared, and not having raised any objection to the summons, it was not necessary, in order to shew jurisdiction in the Justices, to refer to it, or give any evidence of its existence on the trial for perjury, (c) A woman, having obtained judgment against the de- fendant in a County Court, married, and afterwards, in her maiden name, took out a judgment summons against him in another district, which, on the hearing, the Judge amended by inserting her husband's name, and the de- fa; Reg. v. Walker, 21 U. C. Q. B. 34. (M Reg. v. Proud, L. R. 1 C. C. R. 71. (c) Reg. v. Smith, L. R. 1 C. C. R. 110 ; 37 L. J. (M. C.) 6. PERJURY. 387 fendant was then sworn and examined, and was after- wards indicted and convicted at that hearing : — Held,that he was improperly convicted, as he had been sworn in a cause in which there was no judgment, and in which the County Court had no jurisdiction, (a) The Con. Stats. TJ. C, c. 52, s. 73, empowers any Jus- tice of the Peace to examine, upon oath, any person who comes before him to give evidence touching loss by fire, in which a Mutual Insurance Company is interested, and to administer to him the requisite oath. The defendant was convicted on an indictment for perjury, assigned upon a clause in his affidavit, made in compliance with one of the conditions of a policy issued to him by a Mutual Fire Insurance Company, requiring the assured, in case of loss by fire, to deliver unto the company a detailed statement, under oath, of his loss, and value of the property destroyed. The policy of insur- ance containing this condition not having been produced : — Held, that, althoug-h the defendant's affidavit referred to the policy in such a way that its existence might have been fairly inferred, yet the conviction was bad, in con- sequence of the non-production of the policy, which would have shewn the authority 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 whatever, although the perjury assigned had been committed in complying with it. (6) The condition of the policy, in this case, required the assured to make an affidavit touching a loss by fire, in which the company was interested, and the clause of the Statute above referred to empowered the Justice to ad- fa) Reg. v. Pewce, 9 TJ. C. L. J. 333 ; 3 B. & S. 531 ; 32 L. J. (M. C,) 75. lb) Beg. v. Cktgan, 17 TJ. C. C. P. 530. 388 CRIMINAL LAW OF CANADA. minister an oath, in such case coming within the condi- tion; consequently, proof of the policy and condition was necessary to shew the authority of the Justice. By the 32 & 33 Vic, c. 23, s. 4, the Justice or Commis- sioner is now required to take the affidavit or declara- tion. 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 jurisdiction, so as to make false evidence, on the hearing, perjury, (a) The Clerk of a Division Court, acting under the 13 & 14 Yic, 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 appli- cation of the officer charged with the execution of the pro- cess. Both parties attended before a Barrister appointed by the Judge of the Court, who was ill. They thereby submit- ted to the jurisdiction, and an order was made under this section. The Judge afterwards granted a new trial, which took place. The defendant was convicted of per- jury, committed on the hearing, after the granting of the new trial : — Held, that both parties having appeared in the first instance, the proceedings then could not be con- sidered void, for want of a previous application by the bailiff, and were, consequently, final and conclusive. It was, therefore, not competent for the Judge to order a new trial, under s. 84 of this Act ; consequently, the proceedings on the second trial were irregular and extra- judicial, and the false swearing taking place on it, the (a) Beg. ». Western, L. E. 1 Q C. R. 122; 37 L. J. (M. C.) 81. PERJURY. 389 conviction was illegal, as there was no authority to ad- minister the oath, (a) The prisoner being indicted for perjury, in giving evi- dence upon a charge of felony against one E. G-., it appeared that the felony, if committed at all, was com- mitted in the County of Middlesex. The Justices, before whom the examination took place, entertained the charge and examined the 'witnesses within the City of London. The defendant's counsel objected, at the trial, that the Justices, being Justices of the County of Middle- sex, 1 had no jurisdiction, sitting in London, to examine into an offence committed outside the limits of that city. The objection being overruled, the point was reserved for the opinion of the Court : — Held, that the conviction was illegal on the ground taken, and it was, therefore, reversed, (b) The provisions of the 23 Vic, c. 2, s. 28, that all affida- vits required therein may be taken before " any Justice of the Peace," does not empower a Justice of the Peace to administer the oath anywhere in the Province, but only in the place where he acts as such Justice. The same' interpretation of the Act applies to Commissioners for taking affidavits mentioned therein, (c) Where the jurat of an affidavit states the place, it is prima facie evidence of administering the oath there, (d) A person is indictable who gives false evidence before a Grand Jury, on a bill of indictment, and the false swear- ing may be proved by the evidence of other witnesses, examined before them on the same bill, (e) That part of the oath upon which the perjury is assigned must be material to the matter then under the Considera- te) Beg. v. Doty, 13 TJ. C. Q. B. 398. (6) Beg. v. Bow, 14 TJ. C. C. P. 307. (c) Beg. v. Atkinson 17 TJ. C. C. P. 295. (d) lb. 301, per J. Wilson, J. (e) B. x.Hughes, 1 C. & K. 519; Arch. Cr. Pldg. 815. 390 CRIMINAL LAW OF CANADA. tion of the Court, (a) But perjury may be assigned upon a man's testimony as to the credit of a witness, (b) So every question, in cross-examination, which goes to the witness's credit, as whether he has before been convicted of felony, is material for this purpose, (c) In R. v. Tyson (b) a doubt was however expressed by Kelly, C. B., and Byles, and Lush, J. J., whether a false statement, which goes only to the credit of the person making it, can be the subject of an assignment of per- jury, (d) Upon the trial of one S. for robbery, the prisoner, in support of an alibi , swore, first, that S. was in a certain house at the time of the robbery ; secondly, that S. had lived in that house for the last two years ; and, thirdly, that he had never, been absent from it more than two or three nights together during that time. In fact, S. had been confined in prison during one of these two years : — Held, that the second and third allegations were material, as tending to render more credible the truth of the first, and that the prisoner was rightly convicted of perjury assigned upon them, (e) Where a prisoner, charged with robbery before a Magistrate, having cross-examined the prosecutor, whe- ther he had not, the day before that of the alleged robbery, met him (the prisoner) in company with M.," and pro- posed to him to commit a burglary, and the prosecutor having denied this, the prisoner called M. to prove it, the Court held that M.'s evidence was not material to the (a) R. v. Griepe, 1 Ld. Raym, 256 ; R. v. Nickol, 1 B. & Aid. 21 ; R. v. Townsmd, 10 Cox, 356 ; 4 F. & F. 1089 ; Arch. Cr. Pldg. 816. (6) 2 Salk. 514. (o) R. v. Laves, 3 C. & K. 26; iJ. v. Overton. 2 Mood. C. C. 263 ; C. & Mar. 655. (dj See also R. v. Gibbons, L. & C. 109; 31 L. J. (M. C.) 98; Arch. Cr. Pldg. 817. (e) Reg. v. Tysun, L. E. 1 C. C. K, 107 ; 37 L. J. (M. C.) 7; 16 W. R. 317. PERJURY. 391 issue, so that it could be made the subject of an indict- ment for perjury, (a) On the trial of A. for perjury in an affidavit made by him, and used on the taxation of costs, the signature to the affidavit was proved to be in A.'s handwriting, but the Commissioner, who had administered the oath, was un- able to identify A., as the person who made the affidavit. B. was therefore called as a witness, and swore that the affi- davit was used before the taxing-master, when A. was present, and that it was then publicly said that it was A.'s affidavit. B. was afterwards indicted for perjury on A.'s trial, and it was held that the above evidence, given by him on that trial, was material as corroborative evi- dence of the affidavit having been made by A. (b) On the trial of an action of trover the plaintiffs case was that the defendant had tricked him out of the goods, the subject of the action, while the plaintiff was drunk. The defendant's case was that he had fairly bought the goods from the Plaintiff, who had sent for the goods from a railway station, where they were lying, had signed a delivery note for them, and had then sold them to the defendant. The defendant, who was called as a wit- ness in support of his own case, swore that the plaintiff's name on the delivery note was plaintiff's writing, and that he saw him write it. It was held that this evidence was material to the issue, and, upon which, therefore, perjury might be assigned ; the question in the action being, whether the plaintiff had been imposed on by a fraud while drunk, and it. therefore, became essential to ascertain, whether the handwriting on the delivery note, was his, as a step in ascertaining whether or not he was drunk at the time of the transaction", (c) (a) B. v. Murray, 1 F. & P. 80. (b) Beg. v. Alaop, 5 C. L. J. N. S. 159 ; 11 Cox, 264. (c) Beg. v. Naylor, 11 Cox, 13 ; 16 W. R. 374. 392 CRIMINAL LAW OF CANADA. It is still a moot point whether, on an indictment for perjury, the materiality of the matter, on which the false swearing is proved, is a question of fact for the jury, or a question of law for the Judge, but according to the better opinion, it ought to be regarded in the latter light, (a) Some doubt has been thrown upon the doctrine that the matter, upon which perjury is assigned, must be ma- terial to the enquiry. Erie C. J., in Reg. v. Mullany (8) suggested it, as worthy of careful consideration, whether a person might not be guilty of perjury, who swears falsely on a matter immaterial to the enquiry, with in- tent, to mislead the Court, (c) In this case, after judgment against A., in a County Court suit, the Judge asked him whether his names were not Bernard Edward Mullany, preparatory to making an order for immediate payment of the debt, or for payment by instalments. A. had been sued by the names Bernard Edward Mullany, and he answered that his name was Edward Mullany only. The Judge, therefore, struck out the case. A. was indicted for perjury in stating that his • name was Edward Mullany only, contrary to the fact as proved, and it was held that the evidence as to his name was material, and that he was therefore properly convicted of perjury, (d) Now, by the 32 & 33 Vic, c. 23, s. 7, all evidence, and proof whatsoever, whether given or made orally, or by, or in any affidavit, affirmation, decla- ration, 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 subornation of perjury. (a) Reg. v. Courtney, 7 Cox, 111 ; 5 Ir. L. R. N. S. 434 ; R. v. DunsUm, Ry. & M. 109 ; but see R. v. Lavey, 3 C. & K. 26 ; R. v. Goodard, 2 F. & F. 361 ; Arch. Cr. Pldg. 817-8. (6) L. & C. 593 : 34 L. J. (M. C.) 111. (c) Arch. Cr. Pldg. 818. (d) lb. PERJURY. 393 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, (a) The false oath must be taken deliberately and inten- tionally ; for, if done from inadvertence or mistake, it can- not amount to voluntary and corrupt perjury, (b) It would seem that perjury may be assigned, when the oath is administered upon the common prayer book of the Church of England, (c) Where, in an indictment for perjury, the defendant, was alleged to have sworn that no notice of the disqua- lification of a candidate for Township Councillor had been given previous 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 : — Held, that the assignment of perjury was not proved as an election, under the Municipal Act, is commenced when the returning officer receives the nom- ination of candidates, and it is not necessary to consti- tute an election, that a poll should be demanded, (d) The false oath must be clear and unambiguous. Where a joint affidavit made by defendant and one D., stated * * each for himself, maketh oath, and saith that, etc., and that he, this deponent, is not aware of any adverse claim to or occupation of said lot. The defendant having been convicted of perjury upon this latter allegation : — Held, that there was neither ambiguity nor doubt in what each defendant said ; but that each, in substance, (a) R. v. Pedley, 1 T^each, 327 ; R. v. Schlmnger, 10 Q. B. 670; 17 L. J. (M. C.) 29 ; Arch. Cr. Pldg. 818. (6) lb. 818-9. (c) M'Adam, v. Weaver, 2 Kerr, 176 ; Rokeby v. Langston, 2 Keb. 314. (d) Reg. v. Cowan, 24 TJ. C. Q. B. 606. 394 CRIMINAL LAW OF CANADA. stated that he was not aware of any adverse claim to or occupation of said lot. (a) 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, (b) To constitute perjury at common law, it is not neces- sary that an affidavit should be read or used; for the crime is 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, (c) 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 affidavit 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, (d) In the affidavit in question in this case there was no statement as to where it had been sworn, either in the jurat or elsewhere, except the marginal venue, " Canada, County of G-rey, to wit " ; but the contents showed that it related to lands in the County of Grey, and it was proved that defendant subscribed the affidavit ; that the party before whom it purported to have been sworn was a Justice of the Peace for that County, and had resided there for some years, and subscribed the jurat as a Jus- tice of the Peace ; that the affidavit, had'been received, through the Post Office, by the agent of the Crown (a) Meg., v. Atkinson, 17 U. C. C. P. 295. (5) Jackson v. Kissel, 26 TJ. 0. Q. B. 346, per Draper, C. J. (c) Milner v. Gilbert, 1 Allen, 57. (dj Beg. v. Atkinson, 17 U. C. C. P. 295. PERJURY. 395 Lands there, by whom it was forwarded to the Commis- sioner of Crown Lands, and that, subsequently, a patent for the Lot issued to the party in whose behalf the affida- vit had been made : and this was held evidence from which it might be inferred that the affidavit was sworn in the County of Grey, and that the jury had properly so inferred: — Held, also, that if the affidavit was sworn in the County of Grey, the proof of the swearing by the Justice of the Peace, and the taking of the oath by the defendant, were made out by proving their signa- tures, (a) It has been held that, on an indictment for perjury, the defendant must appear and submit to the jurisdiction of - the Court, before he can be allowed to plead, and that this rule applied to misdemeanors as well as felonies, (b) An indictment for perjury charged that it was commit- ted on the trial of an indictment against A. B., at the Court of Quarter Sessions for the County of B.,on the 11th of June 1867, on a charge of larceny: — 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, (c) This decision was, to some extent, founded on the provisions of the Con. Stats. C. c. 99, s. 39 & 51. The 32 & 33 Vic, c. 23, s. 9, are the same in substance, so that the decision will still hold. Although, in an indictment for obtaining money or goods by false pretences, the property in the money or (a) See Beg. v. Greenland, L. R. 1 C. C. R. 65, as to affidavits under the 7 Geo. 4, e. 23. (b) Reg. v. Maxwell, 10 L. 0. R. 45. (c) Beg. v. Macdonald, 17 U. 0. C. P. 635. 396 CRIMINAL LAW OF CANADA. goods must be alleged, yet on reciting such a prosecu- tion, upon which to found a charge of perjury, it seems the same particularity would not be necessary, 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, (a) An indictment for perjury stated that a cause was pending in the County Court, in which A. and B. were plaintiffs 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 account, purporting to be a bill of account between a certain 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, cor- ruptly, 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. : — Held, that the indictment was suf- ficiently certain, (b) An indictment for perjury 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 it did not state what the misdemeanor was, so as to shew that the Court had jurisdiction to try it, nor did it expressly aver that the Court had such jurisdiction : — Held, that the indictment was good, (c) The 32 & 33 Vic, c. 23, s, 9, renders it unnecessary to set forth the authority to administer the oath. This Act (a) Reg. v. MacdoncM, 17 U. C. C. P. 638, per A. Wilson, J. : Rex v. Mason, 2 T. R. 581. (b) Reg. v. Webster, 5 IT. C. L. J. 262 ; 1 F. & F. 515. (c) Reg. v. Dimming, L. R. 1 C. C. R. 290. PERJUKY. 397 was passed to do away with technical forms of in- dictments, and where an indictment contains every aver- ment required by this section, it is by the express terms of the section sufficient, although it does not contain any express or equivalent averment that the Court had com- petent authority to administer the oath, (a) Where it appeared, on the face of an indictment for perjury, that the statement complained of was made be- fore a Justice of the Peace, in preferring a charge of lar- ceny committed within his jurisdiction, it was held unnecessary to allege expressly that he had authority to administer the oath, (b) In an indictment for perjury, which charged the de- fendant 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. U. (the defendant) being so sworn as aforesaid, it then and there became material to enquire and ascertain, etc. : — Held, bad, as not sufficiently shewing that the alleged perjury was committed at the said proceedings, and that the words " upon the trial " should have been used, (c) In 32 & 33 Vic, c. 23, s. 9, " the substance of the of- fence charged " means that the charge must contain such a description 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, (d) Where a prosecutor has been bound by recognizance (a) Reg. v. Dunning, L. E. 1 C. C. E. 294-5, per Channel, B. (6) Beg. v. Callaghan, 20 TJ. C. Q. B. 364. (c ) Reg- v. Roes, 1 Oldright, 683 : and see 32 & 33 Vie. c. 29, Sch. A. Perjury 291. (d) Reg. v. Macdonald, 17 XT. C. C. P. 638, per .4. Wilson, J. ; Rex v. Home, CWp. 682. 398 CRIMINAL LAW OF CANADA. 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 in- dictment against the defendant, the Court will not quash the indictment because there is a variance in the specific charge of perjury contained in the information, and that contained in the indictment, provided the indict- ment sets forth the substantial charge contained in the information, so that the defendant has reasonable notice of what he has to answer, (a) An indictment for perjury, based upon an oath alleged to have been made before the " Judge of the General Sessions 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 Mon- treal," that being the proper title of the Judge, may be amended after plea of not guilty, (b) Where an attempt to incite a woman to take a false oath consisted of a letter written by defendant, dated at Bradford, in the County of Simcoe, purporting but not proved to bear the Bradford post mark, and addressed to the woman at Toronto, where she received it : — Held, that the case could be tried in York; but semble per Draper, C. J , if the post mark had been proved, and the letter thus shewn to have passed out of the defendant's hands in Simcoe, intended for the woman, the offence would have been complete in that county, and the indict- ment only triable there ; per Hagarty, J., the defendant would still, in that case, have caused the letter to be received in York, and might be tried there, (c) Quare, if the woman had committed the offence, it should have been (o) Beg. v. Broad, 14 TJ. C. C. P. 168; (6) Beg. v. PelleHer, 15 L. C. J. 146. («) Beg. v. Clement, 26 TJ. C. Q. B. 297. PEHJURY. 399 charged as a misdemeanor, or as the statutory offence of perjury, (a) But now the 32 & 33 Vic, c. 23, s. 10, contains provi- sions 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, (b) It has been held, under the 14 & 15 Vic, c. 100, s. 1, (c) 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 are proved to be Justices for a borough only, (d) By 26 Vic, c 29, s. 7, it is enacted that witnesses be- fore commissioners for enquiring into the existence of corrupt practices at elections shall not be excused from answering questions, on the ground that the answers thereto may criminate 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": — iJeZ^, that, " except in cases of indict- ments for perjury," applies only to perjury committed before the commissioners ; and, therefore, on an indict- ment for perjury, committed on the trial of an election petition, evidence of answers to commissioners appointed to enquire into the existence of corrupt practices at the election in question is not admissible, (e) (a) Beg. v. Clement, 26 XT. C. Q. B. 297 ; see ante, p. 84. lb) Meg. v. Hodgkiss, L. E. 1 C. C. B. 212: 39 L. J. (M. C.)14; Byallsv. Beg. 11 Q. B. 781. ^ (c; See 32 & 33 Vic, o. 29, s. 71. (d) Jieg. v. Western, L. B. 1 C, C. E. 122; 37 L. J. (M. C.) 81. (e) Beg. v. Buttle, L. B. 1 C. C. B. 248. 400 CRIMINAL LAW OF CANADA. 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, (a) 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, (b) 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 statements : but there was no direct evi- dence that they were true — a conviction for perjury was supported. The prisoner, having laid an information against a pub- lican for keeping open after lawful hours, swore, at the hearing, that he knew nothing of the matter, except what he had been told, and that he did not see any per- son leave the house after eleven o'clock. Perjury having been assigned on this allegation, he was convicted. To establish that it was false, the magistrate's clerk proved a statement by the prisoner, when laying the information, that he had seen four men leave after eleven o'clock, and that he could swear to one "W. : and two other witnesses proved that the prisoner had made a statement to this same effect to them. It was further proved that W. did leave after eleven — that, at the hearing, the prisoner had acknowledged that he had offered to smash the case for 30s. — and that he had talked of making the publican pay to settle it. A third witness proved that he had heard the prisoner offer to settle it for £1 : and a fourth wit- fa) B. v. Soulier, 2 Den. 396; 21 L. J. (M. C.) 57; 3 C. & K. 236; B. v. Webster, 1 F. & F. 515 ; B. v. Braithwaite, ib. 638 ; Beg. v. Shaw, L. & C. 579 ; 34 L. J. (M. C.) 169 ; Arch. Cr. Pldg. 822. (6) Ib. see also B. v. Mwcot, 10 Mod. 194: B. v. Lee, 2 Kusa. 650 ; B. v. Gardner, 8 C. & P. 737 ; B. v. BoberU, 2 C. & K. 607. CONSPIRACY. 401 ness proved that the prisoner owned he had received 10s. to smash the case, and was to receive 10s. more : — Held, that the evidence was sufficient to establish the falsehood of the prisoner's statement made on oath, and that he was properly convicted of the perjury alleged, (a) 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 Halton has jurisdiction to take an information, and to apprehend and bind over, a person charged with perjury committed in the County of Wellington, (b) See 31 Vic, c. 1, s. 6, sixteenthly, as to powers of officer to administer oath, and what statements shall be perjury. Conspiracy. — A conspiracy is an agreement by two persons, or more, to do, or cause to be done, an act pro- hibited 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. (c) It is otherwise defined as a crime which consists either in a combination and agreement by persons to do some illegal act, or a combination and agreement to effect a legal purpose by illegal means, (d) Conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act, by unlawful means. So long as such design rests in intention only, it is not indictable. But where two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, cap- fa) Beg. v. Hook, 4 U. V. L. J. 241 ; Dears & B. 606 ; 27 L. J. (M. C.) 222. (6) Beg. v. Owrrie, 31 TJ. C. Q. B. 582. (c) Beg. v. Boy, 11 L. C. J. 93, per Drwmmond, J. \d) Beg. v. Vincent, 9 C. & P. 91, per Aldersm, B. ; Beg. v. Boy supra, 92, per Drummond, J. Z 402 CHIMINAL LAW OF CANADA. able of being enforced if lawful, punishable if for a criminal object, or for the use of criminal means, (a) The conspiracy or unlawful agreement is the gist of the offence, (b) As it is thus complete, by a mere combination of per- sons, to commit an illegal act, or any act whatever, by illegal means, the parties will be liable, though the con- spiracy has not been actually carried into execution, (c) The actual execution of the conspiracy need not be alleged in the indictment, (d) 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 agree- ment amongst themselves, would not have been ille- gal, (e) 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. (/) It is sufficient to constitute a conspiracy if two, or more, persons combine, by fraud and false pretences, to injure another, and it is not necessary that the acts agreed to be done should be acts which, if done, would be cri- minal. It is enough if they are wrongful, i. e. amount to a civil wrong, (g) , A fraudulent agreement, by a member of a partnership, {a) Mulcahy v. Beg. L. R. 3 E. & I. App. 306-317-328. (6) Borsenpm v. Beg., 16 XT. 0.. Q. B. 543; B. y. Sewwrd, 1 A. & E. 706 : 3 L. J. (M. C.) 103 ; B. v. Bichardaon, 1 M. & Rob. 402 ; B. v. Kenrick, 5 Q. B. 49 : 12 L. J. (M. Q,) 135 ; 3 Buss. Cr. 116. (c) Beg. v. Boy, 11 L. C. J. 92, per Drummond, J. \d) lb- (e) Bex. v. Mawbey, 6 T. R. 636, per Grose, J. ; 3 Rubs. Cr. 116. (/) Beg. v. Wwrburton, L. R. 1 C. C. R. 276, per Cockbnrn, C. J. : 40 L. J. (M. C.) 22. {g) lb. 276, per Gocibwrn, C. J. CONSPIRACY. 403 with third persons, wrongfully to deprive his partner, by false entries, and false documents, of all interest in some of the partnership property, in tajdng accounts for 4he division of the property, on the dissolution of the partnership, was held to be a conspiracy, although the offence was completed before the passing of the corres- ponding English section of the 32 & 33 Vic, c. 21, s. 38, (by which a partner can be criminally convicted for feloniously stealing the partnership property) ; for the object was, to commit a civil wrong, by fraud and false pretences, and that is a conspiracy, (a) It appears that an indictment lies not only wherever a conspiracy is entered into for a corrupt or illegal pur- pose, but also where the conspiracy is to effect a legal purpose by the use of unlawful means, and this although such purpose be not effected (b) But in an indictment for conspiracy, an offence pro- hibited by penal law must be set forth either in the averment of the end or means. The indictment ought to shew that the conspiracy 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 end or the means, upon which an indictment for conspiracy should rest, (c) All the definitions of conspiracy shew 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 indictment the means by which the un- fa) Beg. v. Warburton, L. R. 1 C. C. R. 274. (6) Beg. v. TaMm'% Cam. 8 Mod. 11; Beg. v. Beit, 6 Mod. 185; 3 Russ. Cr. 116. (c) Beg. v. Bay, 11 L. C. J. 89-93, per Dnmmond, J. 404 CRIMINAL LAW OF CANADA. lawful end was attained, or sought to be reached ; while in the second class, the means, or overt acts, must be specially set forth, (a) In this case, the object was alleged to be to " cheat and defraud private individuals ;" but as this was not neces- sarily a penal offence, and no penal offence was shewn in the averment 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, (b) An indictment, charging that defendants, H., 0., and D., were Township Councillors of East Nissouri, and T., Treasurer, that defendants, intending to defraud the Council of £300 of the moneys of said Council, falsely, fraudulently, and unlawfully, did combine, Conspire, confederate, and agree among themselves, unlawfully and fraudulently to obtain and get into their hands, and did then, in pursuance of such conspiracy, 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 shew what the parties conspired to accomplish; third, the unlawful conspiracy, which is the gist of the 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 (a) Beg. v. Boy, 11 L. C. J. 93, per Drummond. J. (b) lb. CONSPIRACY. 405 alleged that any unlawful means were had in order to get the money into the possession of the Treasurer, (a) 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, (b) Whenever a joint participation in an enterprise is shewn, any act done in furtherance of the common design is evidence against all who were, at any time, concerned in it. (c) 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, (d) But, in general, proof of concert and connection must be given before evidence is admissible of the acts or decla- rations of any person not in the presence of the pri- soner, (e) The prosecutor may go into general evidence of the nature of the conspiracy before he gives evidence to connect the defendant with it. (/) 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 followed the person into the crowd. One of them was seen to lift the tail of the coat of a man as if to ascertain, (a) Horseman v. Reg. 16 U. C. Q. B. 543. fbj Mulcahy v. Beg. L. R. 3 E. & I. App. 317, per Willes, J. ; R. v. Brissac, 4 Ea. 171, per G-rose, J. (c) Reg. v. Slavin, 17 U. C. C. P. 205 ; and see R. v. SMlard, 9 C. & P. 277; R. v. Blake, 6 Q. B. 126; 13 L. J. (M. J.) 131. (d) Reg, v. Fellowes, 19 U. C. Q. B. 48 ; and see R. v. Parsons, 1W. Bl. 322 • R. v. Murphy, 8 (}. & P. 297. (e) 3 Buss. Cr. 161 ; The Queen's Case, 2 Brod. k B. 302 ; Reg. v. Jacobs, 1 Cox, C. C. 173 ; Reg. v. Duffield, 5 Cox, C. C. 404. (f) R. v. Hammond, 2 Bsp. 718. 406 CRIMINAL LAW OF CANADA if there was anything in his pocket, but making no visi- ble 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 pre-concert other than this proceeding :— Held, not to be sufficient evidence 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 act, there being no other evidence of the conspiracy than the act so done, (a) 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. (6) But where the conspiracy is to obtain money from certain persons, it is necessary to state who they are, for the cons- piracy is to cheat them, (c) In a conspiracy to obtain goods, it is not necessary to specify the goods, or describe them, as in an indictment for stealing them, stating them as " divers goods " would be sufficient, (d) Conspiracy is an offence at common law independently, of the 33 Ed. 1, c. 2. (e) A conspiracy to kidnap is a mis- demeanor. (/) A conspiracy to charge a man falsely with treason fel- ony or misdemeanor is indictable : but it is not an indict- able offence for two or more persons to consult and agree to prosecute a person, who is guilty, or against whom there are reasonable grounds of suspicion, (g) (a) Reg. v. Taglor, 8 C. L. J. N. S. 54; 25 L. T. Reps. N. S. 75. (b) Beg. v. Macdonald, 17 V. C. C. P. 638, per A. Wilson, J. ; Bex v GiU B. & Aid. 204. ' ' (c) lb. (d) Reg. v. Boy, 11 L. C. J. 92, per Drwmmond, J. (e) Reg. v. Boy, 11 L. C. J. 92. (f) Ex parte Blossom, 10 L. C. J. 41 per Badgley, J. (g) B. v. Best, 1 SaJk. 174, 2 Ld. Raym. 1167. CONSPIRACY. 407 A conspiracy to impose pretended wine upon a man, as and for true and good Portugal wine, in exchange for goods is indictable, (a) 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 pur- pose of selling goods at prices grossly above their worth. (b) So a conspiracy 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, (c) So a conspiracy to injure a man in his trade of profession ; ( d) so a conspiracy, by false and fraudulent representations, that a horse bought by one of the defendants from the prosecutor, was unsound, to in- duce him to accept a less sum for the horse than the agreed price, (e) So a conspiracy to raise the prices of the public funds by false rumours, as being a fraud upon the public ; (/) so a conspiracy by persons, to cause them- selves to be reputed men of property, in order to defraud tradesmen ; (g) so a conspiracy to defraud by means of false representations of the solvency of a bank or other mercantile establishment ; (h) so a conspiracy by traders, to dispose of their goods in contemplation of bankruptcy with intent, to defraud their creditors ; (t) so a conspiracy to procure the defilement of a girl, (/) or a conspiracy to induce a woman, whether chaste or not, to become a common prostitute, (k) But an indictment will not lie for a conspiracy to com- (a) B. v. Macarty, 2 Ld. Raym. 1179. (6) .R. v. Lewis, 11 Cox, 404. per Willes, J. (c) B. v. Taylor, 1 Leach, 47. (d) B. v. JEccles, 1 Leach, 274. (e) B. v. Carlile, 23 L. J. (M. 0.) 109. (/) Bex, v. De Berenger, 3 M. & S. 67. (g) B. v. Boberts, 1 Camp. 399. (ft) B. v. Esdaile, 1 F. & F. 213. (*) B. v. Hall, 1 F. & P. 33. \j) B. v. Mears, 2 Den. 79; 20 L. J. (M. C.)59. (k) B. v. Howell, 4 F. & F. 160. 408 CRIMINAL LAW OF CANADA. mit a mere civil trespass, (a) or for a conspiracy to de- prive a man of an oESce under an illegal trading com- pany, (b) If, however, the parties conspire to obtain money by false pretences of existing facts, it seems to be ho objec- tion to the indictment for conspiracy that the money was to be obtained through the medium of a contract, (c) A conspiracy to commit a felony or misdemeanor is indict- able, (d) Even, before the 32 & 33 Tic, c. 29, s. 50, although the evidence, in support of an indictment for conspiracy, shewed 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 conspiracy, (e) From the very nature of conspiracy, it must be between two persons at least, and one cannot be convicted of it, unless he has been indicted for conspiring with persons to the jury unknown. (/) A man and his wife cannot be indicted for conspiring alone, because they constitute one person in law. (g) But one person alone may. be tried for a conspiracy, provided the indictment charged him with conspiring with others who have not appeared, (A) or who are since dead, (i) (a) B. v. Turner, 13 Ba. 228. (6) B. v. Stratton, 1 Camp. 549 n. (c) B. v. Kewrick, 5 Q. B. 49; Dav. & M. 208; 12 L. J. (M. C.) 135. id) B. v. Pollmcm, 2 Camp, 229 n. ; Arch. Cr. PIdg. 938-9. (e) Beg. v. Button, 11 Q. B. 929; 18 L. J. (M. C.) 19; B. v. NeaU, 1 Den. 36, 1 (J. & K. 591. (/) Arch. Cr. PIdg. 942. iff) n. (h) B. v. Kmnersley, 1 Str. 193. (i) B. v. Sicholls, 2 Str. 1227. CONSPIRACY. 40? "Where the indictment charged that A. B., and C. cons- pired together, and with divers other persons to the jurors unknown, etc., and the jury found that A. had cons- pired 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, (a) (a) S. v. Thompson, 16 Q. B. 832; 20 L. J. (M. C.) 183 ; Arch. Cr. Pldg. 942. 410 CRIMINAL LAW OF CANADA. 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 com- mon 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 of denning and setting down the crime and the punishment, and not generally in words that are but cir- cumstance 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 construing a remedial Statute, the substance of its provis- ions must be looked to, (e) and the Court will construe it liberally, (f) (a) Beg. v. Morris. L. R. 1 C. C. R. 95, per Byles, J. (6) See Beg. v. O'Brien, 13 U. C. Q. B. 436 ; see also Beg. f. Brown, 4 U. C. 'Q. B. 149, per Bobimon, C. J. ; Wilt v. Lai, 7 U. C. Q. B. 537, per Robinson, *C. J. (c) Dwarris, 634. Id) Atty. Genl. v. Mackingtcsh, 2 U. C. Q. B. O. S. 497. ie) Beg. v. Proud, L. R. 1 C. C. R. 74, per Kelly, C. B. i f) M'Farlcme v. Lindsay, Draper, 142 ; Dwarris. 614. MISCELLANEOUS STATUTES. 411 In construing the Consolidated Statutes of Canada, the Court may refer to the original enactments, in order to arrive at a right conclusion, (a) No man can be de- prived of any right or privilege, under any statutory enactment, by mere inference, or by any reasons founded solely upon convenience or inconvenience. Statutes are to be construed in reference to the principles of the com- mon 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 innovation upon the common or then existent law, further than the case absolutely re- quired ; and Judges must not put upon the provisions of a Statute a construction not supported by the words, (b) 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, (c) In general, the Court will not ascribe re- trospective force to new laws affecting rights, unless, by express words or necessary implication, it appears that such was the intention of the Legislature, (d) But the Court cannot refuse to give effect to an ex post facto Statute, which is clearly so in its terms, (e) A pri- soner is liable to be indicted, on the 29 & 30 Vic, c. 2 and 3, for unlawfully invading Quebec on a day antece- dent to the passing of the Statute. (/) 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 per- fectly clear, from the context, that a different sense ought to be put on them, (g) A Statute must be taken as it is, (a) Whelan v. Beg. 28 U. C. Q. B. 108. (6) Beg. v. Vonhoff. 10 L. C. J. 293, per Drwmmcmd, J. (c) Atty. ffenl. v. HaUiday, 26 U. C. Q. B. 414, per Draper, C. J. ; Evans v. Williams, 11 Jur. N. S. 256. (d) Phillips v. Eyre, L.E.6Q. B. 23, per Willes, J. (e) Beg. v. Madden, 10 L. C. J. 342. (/) lb. (g) Beg. v. Chandler, 1 Hannay, 551, per Bitehie, C. J. 412. CRIMINAL LAW OF CANADA. and when its object is to protect public interests, its clauses must be received in that light, (a) A statutory enactment should be so construed as to make the remedy co-extensive "with the mischief it is intended to pre- vent, (b) Where two Statutes are in pari materia, and by the enactments of the latter Statute expressly connected to- gether, they are to be taken as one Act. (c) 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, (d) In general, an affirmative Statute does not alter the common law. (e) Where general words follow particular ones, the rule is to construe them as applicable to persons ejusdem generis, (f) In accordance with this principle, the words "or other persons whatsoever," in the Con. Stats. U. C, c. 104, s. 1, cannot be taken to include all persons doing anything whatever on a Sunday, but must be taken to apply to persons following some particular calling of the same description as those mentioned, (g) There can be no estoppel against an Act of Parliament. If the transaction contravening the Act be in reality illegal, no writing or form of contract, or colour given, can prevent an inquiry into the actual facts, (h) It would seem that the principle of estoppel does not apply as against the public interest, (i) {a) Beg. v. Patton, 13 L. C. R. 316, per Mondelet, J. ib) Beg. v. Allen, L. R. 1 0. C. R. 375, per Cocleburn, C. J. (c) Beg. v. Beveridge, 1 Kerr, 68, per Chip-man, C. J. id) Dwarris, 571. (e) Dwarris, 4734, and see Levmger v. Beg. L. R. 3 P. C. App. 282. (/) Sandvman v. Breach, 7 B. & C. 100. (g) ffespeler and Shaw, 16 IT. C. Q. B. 104, per Robinson, C. J. ; see also Beg. v. ffynes, 13 U. C. Q. B. 194 ; Beg. v. Syhester, 33 L. J. (M. C.) 79 ; Beg. v. Tinning, 11 U. C. Q. B. 636 ; Beg. v. Armstrong, 20 U. C. Q. B. 245 ; amte, p. 325-6. (A) Battersbey v. Odell, 23 V. C. Q. B. 482. (*) See Beg. v. Ewing, 21 U. C. Q. B. 523. MISCELLANEOUS STATUTES. 413 It is a general rule, that subsequent Statutes, which add accumulative penalties, and institute new methods of proceeding, do not repeal former penalties and methods of proceeding, ordained by preceding Statutes, without negative words. Nor has a later Act of Parliament ever been construed to repeal a prior Act, unless there be a contrariety or repugnancy in them, (a) In Foster's case, (b) it was held that the law does not favour 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, that all trials for treason shall be according to the course of. the common law, and not otherwise, does not take away 35 Hy. 8, c. 2, for trial of treason beyond sea. (e) The rule is, leges posterities priores contrarias 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 affirma- tive, the last shall repeal the first. So, if there be a " contrariety in respect of the form prescribed," a repeal will also be affected, (d) The 31 Vic, c. 14, seems now to be the governing enactment, 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, (e) and the 29 & 30 Vic, cs. 2, 3, and 4,, respectively, to the whole of Canada, (f) * The Imp. Stat. 11 & 12 Vic, c. 12, did not override the (a) Dwarris, 532-3. ' 11 Rep. 63. Beg. v. Sherman, 17 IT. C. C. P. 168, per J. Wilson, J. (5) 11 Rep. 63. (c) Beg. v. Sherman, 17 u . u. (J. ±". IBS, per (d) See O'FlaQhertyv. M'Dowell, 4 Jur. N. S. 33; Reg. v. Sherman, supra, 170, per A. Wilson, J. (e) Con. Stats. U. C. C. 98. (/) See also the 31 Vic, c. 16, and 33 Vic, c. 1, 414 CKIMINAL LAW OF CANADA. 3 Vic, c. 12, (a) 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 Imp. Sta- tute. (6) The prisoner was convicted, upon an indictment under Con Stats. U. 0., c. 98, s. 1, containing three counts, each charging him as a citizen of the United States, the first count alleging that he unlawfully and feloniously entered Upper Canada, with intent to leyy war against Her Majesty ; the second, that he was in arms within Upper Canada, with the same intent ; the third, that he committed an act of hostility therein, by assaulting cer- tain of Her Majesty's subjects, with the same intent. The prisoner's own statement, on which the Crown rested, was, that he was a Roman Catholic priest, born in Ireland, and was a citizen of the United States. It was contended, on moving for a rule nisi for a new trial, that, on the prisoner's own statement, which the Crown had made their only evidence on the point, and were, therefore, bound to accept as true, he was a British sub- ject ; that the additional statement made by the prisoner, that he was a citizen of the United States, though equally true, could not affect the legal consequences of the first, for the native allegiance, of necessity, was the earliest attaching from his birth : that the prisoner could never relieve himself from the duties and obligations of native allegiance, and, therefore, he violated our laws as a British subject, and not as a " citizen or subject of any foreign state or country," and, consequently, was not liable to be convicted under the Statute. But it was held that, although he was born in the British domi- nions, 'he might become amenable to the provisions of (a) Beg. v. School, 26 U. C. Q. B. 212. (&) Beg. v. Slavin, 17 TJ. C. C. P. 205. MISCELLANEOUS STATUTES. 415 the Act, by becoming a naturalized subject of a foreign state ; and his own declaration was evidence of that fact, and was precisely of the same force and character as that of his being a natural born subject of G-reat Britain. The Court further considered, that, though the natural allegiance of the prisoner continued as it is, "a debt of gratitude, which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance," yet, as the prisoner had committed a most flagrant breach of duty as a subject, and distinctly repudiated that relation, and asserted a status entirely at variance with it, there was no obligation on the part of the Sovereign to recog- nize the relation of subject as still continuing ; but the prisoner might, at the option of the Crown, be treated as a naturalized citizen of a foreign state, (a) Another important case on the construction of this Statute is that of Reg. v. Lynch, (b) In this case, the charge was the same as in the last ; but it differed from it chiefly in the fact that, after it was proved for the pro- secution that the prisoner had declared himself, on at least two occasions since his arrest, in writing, to be an American citizen, and that he came to Canada as such, his counsel called a witness on his behalf, who proved that he was born within the Queen's allegiance. It was held, that, although, where a person is born within the Queen's dominions, the rule is, " once a British subject, always one," yet the Crown might waive the right of allegiance, and try him as an American citizen, which he claimed to be. If the prisoner appeared clearly to be a British subject, and there was no evidence that he was an American ci- tizen, he would still be indictable under our statute (a) Reg. v. M'Mahon, 26 U. C. Q. B. 195. (6) 26 U. C. Q. B. 208. 416 CRIMINAL LAW OF CANADA. law for substantially the same felony, with some variation of "statement, (a) His offence in such case, would partake of the nature of treason, and where the Crown has a right to deal with a party as a traitor, they may proceed against him as guilty only of felony, (b) The prisoner having been indicted, under Con. Stats., U. C, c. 98, as a citizen, of the United States of America, was convicted of having, as such, joined himself to divers other evil disposed persons, and having been unlawfully and feloniously in arms against the Queen, within Upper Canada, with intent to levy war against Her Ma- jesty. It was sworn the prisoner had said he was a Ame- rican citizen, and had been in the American army, and 'there was no evidence offered to contradict this, and the Court held it evidence against the prisoner as his own admissions, and declarations of the country to which he belonged, (c) 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 infernce being irresist- ibly that they came from the United States. The prisoner was seen among them, armed with a revolver. The Ca- nadian 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, a) See 31 Vic, c. 14, s. 3; Reg. v. Lynch, 26 U. C. Q. B. 211. (o) See 31 Vic, c. 14, s. 3: Reg. v. Lgncl (6) Reg. v. M'Mahm, 26 U.C. Q. B. 201. ic) Reg. v. Slavm, 17 U. C. C. P. 205. MISCELLANEOUS STATUTES. 417 some of them left their valises behind, and the prisoner said " Pick up the valises, the boys may want them, we do not know 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. It was also held that even, if he carried no arms, on which the evidence was not uniform, being joined with, and part, of an armed body, which had entered Ontario from the United States, and attacked the Canadian vol- unteers, he would be guilty of their acts of hostility, and of their intent ; and that, if he was there to sanction with his presence, as a clergyman, what the rest were doing, he was in arms as much as those who were ac- tually armed, (a) It was proved that a large body of invaders landed from the American side of the river. They were armed with rifles and bayonets, marched in order and had offi- cers with them, some in uniform and some in plain clothes with green flags, with harps and drums. They took prisoners, and confined them. They said they were going to take Canada, and have farms. Two fights took place with the Queen's troops at Fort Erie, and near Pddgway, and men were killed on both sides. The pris- oner was identified as one of the invaders. The prisoner asserted that he came over with the invaders as reporter (a) Beg. v. If Malum, 26 U. C. Q. B. 195. AA 418 CRIMINAL LAW OF CANADA. 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 encou- raging the prosecution of the unlawful design, must in- volve 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 subjects thereof, (a) Where it was proved that several hundreds of armed men landed in this Province from the United States of America ; that, very shortly afterwards, the prisoner came from the same place ; that he was with them all the night, previous to an attack made by them on the Canadian volunteers, and was, early in the morning, on which the attack was made, seen carrying a rifle and bayonet, simi- lar to those carried by the invaders, and altogether diffe- rent from those used by Her Majesty's troops : it was also shewn that this armed body was organized ; that it encamped and marched in military order ; that it took prisoners, engaged Her Majesty's troops, and killed several of them : — Held, evidence of an intent, on the part of the prisoner, to levy war against Her Majesty the Queen, and that this intent, as laid down in Frosts case, (b) may be collected from the acts of the accused, the helium, percussum of the body, with which he is identified, and does not require the passing of a resolution, or a ver- bal, or written declaration, plainly expressive of a pur- pose to levy war. (c) In this case, it was further proved that 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 (a) Beg. v. Lynch, 26 U. C. Q. B. 208; and see Beg. v. School, ib., 214 lb) 9 C. & P. 150. (c) Beg. v. SUmn, 17 U. C. C. P. 205. MISCELLANEOUS STATUTES. 419 armed enemy the night before : — Held, evidence that he was in arms, in Upper Canada, with intent to levy war, notwithstanding his statement that he had found the weapons, with which he was armed, upon the road, and the fact that there was evidence of his having been un- armed the night before. It is not necessary, in order to render a party amenable to the Statute, that he should actually have arms upon his person ; it is quite sufficient that he is present, and concerned with those who are armed, even, though he do not carry arms himself; for all who are present at the commission of the offence are principals, and are alike culpable in law. (a) In this case, evidence was admitted, against the pris- oner, of the engagement above alluded to, although the same took place several hours after his arrest -.—Held, that the evidence had been properly received, as shew- ing, to some extent, that the engagement in question had been contemplated by the parties, while the prisoner was with them before his arrest. In Reg. v. School, (b) the prisoner was indicted in two sets of counts, one charging him as a citizen of the Uni- ted States, the other as a subject of Her Majesty; but the corpus delicti in all the counts was the same, viz. the levying of war or intent to do so. — It was contended on the trial that the Crown should elect on which set of counts it would proceed ; on the ground that the prisoner was thereby forced to defend himself against two dis- tinct offences, and was thereby embarrassed in his de- fence ; but the Judge refused to call upon the Crown to elect, and the Court confirmed his ruling ; it would seem on the ground that the corpus delicti and the overt acts (a) Beg. v. Slamim, 17 U. C. C. P. 205. (6) 26 V. C. Q. B. 212. 420 CRIMINAL LAW OF CANADA. constituting it, as alleged in all the counts, were the same, and the difference in statement was only to meet the evidence. The third section of the Con. Stats., U. 0., c. 98, as amended by the the 29 & 30 Yic, c. 4, is as follows, " every subject of Her Majesty, and every citizen or subject of any foreign state or country, who has, at any time hereto- fore, offended, or may, at any time hereafter offend against the provisions of this Act is, and shall be, held to be guilty of felony, and may, nothwithstanding the provisions hereinbefore contained, be prosecuted, and tried before any Court of Oyer and Terminer, and General Gaol delivery in, and for, any county, in Upper Canada, in the same manner as if the offence had been committed in such county, and, upon such conviction, shall suffer death as a felon. " The prisoner being in- dicted under this section, and charged as a citizen of the United States, was acquitted on proving himself to be a British subject. He was then indicted under the same section as a subject of Her Majesty, and pleaded autrefois acquit. It was held that the plea was not proved ; for by this section the offence, in the case of a foreigner, and a subject, is substantially different, and that the section intended to preserve a distinction between the offences committed by a foreigner and a subject of Her Majesty ; that, when the prisoner was charged as a British subject, the Act, (in the second section) required proof, not only of the status as such subject, but also of the joining with fo- reigners in the commission of it, and the same evidence, irrespective of national status, which would convict the foreigner, would not convict the subject, and the prisoner, therefore, was not in legal peril on the first indictment, (a) Under s. 11, of the 28 Vic, c. 1, for repressing outrages (a) Beg. v. Magrath, 26 U. C. Q. B. 385. MISCELLANEOUS STATUTES. 421 on the frontier, the Court can only order restoration of property seized, when it appears that the seizure was not authorized by the Act. (a) 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 employed in the manner pointed oat by the ninth section, (b) It would seem that the 32 & 33 Vic, c. 29, regulating the procedure in criminal cases, is not limited to felonies or offences existing at the time of the passing of the Stat- ute, but applies to offences created by subsequent Statutes, and establishes a general rule of practice and procedure, in all cases that may come before the Court for adjudication, for it would appear that a Statute affect- ing procedure is not restricted to offences actually com- mitted at the time of its coming into operation, (c) At all events, the (N. B.) Rev. Stats, c. 159, s. 16,by which, on a trial for felony, the jury is authorized to acquit of the fel- ony, and find a verdict of guilty of misdemeanor if the evidence warrants it, applies, as a rule of procedure, to all criminal cases, and is not confined to felonies existing at the time of the passing of the Statute. Therefore, on an indictment for a felonions assault, under the Act 25 Vic, c. 10, passed subsequent to the revised Statute, the prisoner may be found guilty of an assault only, (d) The 32 & 32 Vic, c 20, s. 26, provides that whosoever unlawfully abandons or exposes any child, being under the age of two years, whereby the life of such child is endangered, or the health of such child has been, or is likely to be, permanently injured, is guilty of a misde- meanor. (a) Re Georgian, 25 U. C. Q. B. 319. 6) lb. (c) See Reg. v. Ryan, 1 Hannay, 116. \d) lb. 422 CRIMINAL LAW OF CANADA. As this Statute uses the word " unlawfully," it would seem that it only applies to persons on whom the law casts the obligation 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 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, (a) It would seem, also, if the child dies the glause does not apply, but the prisoner would be guilty of murder or manslaughter, according to the circumstances, (b) 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 — 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. (c) 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 (a) Beg. v. White, L. E. 1 C. 0. E. 311. (6) See ib. 314, per Blackburn, J. (c) Beg. v. White, L. E. 1 C. C. E. 311. MISCELLANEOUS STATUTES. 423 with shavings and cotton-wool, and A., with the conniv- ance 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 Gr. by the next train, which would leave M. in ten minutes from that time. She said nothing as to the contents of the hamper, which was addressed, "Mr. Carr's, Northoutgate, Grisbro. With care, 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 Gr. at 8.15, p.m. At 8.40, p.m., the hamper was delivered at its ad- dress. The child died three weeks afterwards from causes not attributable to the conduct of the prisoners. On proof of these facts at the trial, it was objected, for the prisoners, that there was no evidence to go to the jury that the life of the child was endangered, and that there was no abandonment and exposure of the child, within the meaning of the Statute. The objections were over- ruled, and the prisoners found guilty : — Held, by a major- ity of the fifteen Judges, that the conviction should be affirmed, (a) The 32 & 33 Vic, c. 32, contains provisions respecting the prompt and summary administration of cri min al jus- tice, in certain cases. It repeals' and substantially re-en- acts the provisions of the former Statute, Con. Stat. C, c. 105, so that the decisions under the old will equally apply to the new Act. The prisoner was convicted, by the Police Magistrate for the City of Toronto, for that she " did on," etc., " at the said City of Toronto, keep a common disorderly bawdy house on Queen Street, in the said City," etc., and (a) Beg. v. Falkingham, L. E. 1 C. C. R. 222. 424 CRIMINAL LAW OF CANADA. and committed to gaol, at hard labour, for six months. A habeas corpus and certiorari issued, in return to which the commitment, conviction, information, and depositions were brought up, On application for her discharge, no motion being' made to quash the conviction : — Held, (1). No objection that the commitment stated the of- fence to have been committed on the 11th of August, in- stead of the 10th, as in the conviction, the variance not being material to the merits, and the Court, not being able to go behind the return and commitment which it set forth. (2) Nor that the commitment charged that the prisoner " was the keeper of," and the conviction "that she did keep," both differing from the Statute, which designates the offence as "keeping any disorderly house," etc., for it would seem the Court could not go behind the com- mitment, and all these expressions conveyed but one idea. (3) Nor that the commitment did not shew that the offence was committed within the " Police limits " of the city, the words used in the Act ; for, the limits of the City of Toronto were assigned by a publjc Statute, and the Municipal Institutions Act, creating the Police Court and Magistrate, and the whole body of police, contains nothing to shew that there are any police limits differing from the ordinary city limits. • (4) Nor that the commitment did not follow the form of conviction given in the Statute, in shewing that the party was charged before the convicting magistrate i. e., charged as the Statute required, namely put upon her trial, and asked whether she was guilty or not guilty, nor whether she pleaded to the charge or confessed it. It might, and probably would, be a defect in the convic- tion if it did not pursue the statutory form, in shewing MISCELLANEOUS STATUTES. 43.5- that the party was charged, more especially as, by the second section of the Act, the jurisdiction is made to de- pend upon the fact of the party being charged before the convicting Justice. That point, however, was not de- cided, the Court merely intimating that it might or might not be a defect in the conviction. Unless the commit- ment must contain all that the conviction does or ought to contain, it is unnecessary to state the information in it, and the more especially as, by the form given by the Statute, it does not appear necessary that the information should be set out in the conviction. (5) Nor that the conviction was not sustained by 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, for the commitment would not be void on the face of it because of a variance between the original informa- tion and the conviction, made after hearing evidence. But if the prisoner had been charged with the informa- tion, and, on being called on to answer, had confessed the information, and then had been convicted of matter not contained in the information, no doubt the conviction could be quashed ; but, even in that case, while it stood unreversed, it would warrant a commitment following its terms. (6) Nor that no notice had been put up, as required by s. 25 (a) of the same Act, to shew 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 en- actment, could not be made to depend on the omission of the Clerk to post up such notice. It was contended this notice was necessary, as it was alleged more power- is conferred upon the Police Magistrate under this Act (a) 32 & 33 Vic, c. 32, a. 26. 426 CRIMINAL LAW OF CANADA. than ordinarily belongs to a person administering justice in that capacity, inasmuch as the Con. Stats. U. C, c. 54, s. 369, (a) enables any ordinary Justice of the Peace, on the requisition of the Mayor, to act in the Police Office of a city, and dispose of ordinary business. (7) Nor that the evidence was unsatisfactory and in- sufficient to warrant the conviction, for when a proper commitment is returned to a Habeas Corpus, and there was evidence, the Court will never enter into the ques- tion, whether the Magistrate has drawn the right conclu- sion from it. (8) Nor that the offence of " keeping a common disor- derly bawdy house " was not sufficiently certain for the legal meaning of the last two words is clear, and a house will not be less a public nuisance because it is found to be disorderly as well as bawdy, and if keeping a dis- orderly house be no offence, the term becomes mere sur- plusage, and would not vitiate an ' otherwise sufficient statement. But the Statute does give jurisdiction over persons charged with keeping any disorderly house, house of ill-fame, or bawdy house, (b) 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 re- quirements of s. 25 was received, though offered with a view to shew 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. (c) On an application for a writ of Habeas Corpus at com- mon law, it seems affidavits may be received, but not if I a) Now 29 & 30 Vic, c. 51, s. 367. b) Beg. v. Muwo, 24 IT. C. Q. B. 44. c) lb. 53, per Draper, C. J. MISCELLANEOUS STATUTES. 427 the writ is applied for under the Statute of Charles, (a) for it confers no power to receive them. Affidavits might, perhaps, be received that no such sentence passed, but not to impeach it ; and " also as to matter of fact, but not of law. (b) "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, (c) It would seem that a Judge of the Superior Court could not, on habeas corpus, enquire into the con- clusion at which the Magistrate, acting under this. Statute, has arrived, provided he had jurisdiction over the offence charged, and had issued a proper warrant upon that charge ; but it seems the Judge might enquire into what that charge was, or whether there was a charge at all. (d) 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 per- son is charged before him, prior to the formal examina- tion of witnesses) reduce the charge into writing, and try the party upon the charge thus reduced to writing ; 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. (e) 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 (a) 31 ( lb) Efi. (c) lb. ! 31 Car. 2, c 2. s M'Kmnon, 2 U. C. L. J. N. S. 327, per A. Wilson, J. 327, per A. Wilson, J. (d) lb. 328, per A. Wilson, 3. (e) lb. 329, per A. Wilson, J. 428 CRIMINAL LAW OF CANADA. writing, and must read it to the prisoner, and ask him whether he is guilty or not. (a) It appeared, on an application for a habeas corpus, that the information laid before a Police Magistrate, and war- rant to apprehend, were for an assaulting and beating, but it was disputed whether, upon the examination and trial, this was all the charge made, or whether he was not then charged with an aggravated assault, under Con. Stats. Can., c. 105, s. 1, ss. 4, and whether, when he plead- ed guilty, he did so under the former or the latter charge. The information seemed to be laid under "Con. Stats. Can., c. 91, ss. 37 and 38, for an assault and beating, while the conviction purported to be under Con Stats. Can., c. 105, (b) and imposed the punishment prescribed by the latter Statute. Numerous contradictory affidavits were filed, the Justice alleging that the defendant was charged with an aggravated assault, and, with full know- ledge of the fact, consented to the charge being summar- ily disposed of by the Justice, according to the Statute, while the defendant contradicted this, and alleged that he would not have pleaded guilty if he had known the charge was of aggravated assault. Four several war- rants of commitment were in the Gaoler's hands, upon one, at least, of which the prisoner was detained in cus- tody: They were all for the same offence, one having been, from time to time, substituted for the other : — Held, that 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, la) Re M'Kirmon, 2 U. C. L. J. N. S. 329. per A. Wilson, J. (6) 32 & 33 Vic, o.32. MISCELLANEOUS STATUTES. 429 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 re- newed in term, (a) The Con. Stats, U. C, c. 76, (b) contain provisions respecting apprentices and minors. Where the defendant, a Justice of the Peace, convicted one R., an apprentice, of having absented himself from his master's service without leave, and adjudged that he should give sufficient security to make satisfaction to his master, according to the Statute, and, in default of such satisfaction, be imprisoned in the Common Gaol for two months, unless the said satisfaction should be sooner given. The conviction was quashed — first, because the articles of apprenticeship were not within the Act, for it appeared that the apprentice was a minor, and the art- icles were not executed by any one on his behalf, and, secondly, because it could not be sustained under the 10th clause of the Con. Stat, for two months' imprison- ment, or under the 11th clause, because the satisfaction to be given was not ascertained, and, as it was not ascer- tained, it amounted to an absolute imprisonment for two months, which was not authorized by the Statute, (o) The Oon. Stats. U C, c. 75, consolidates the various -enactments respecting master and servant. This Act has been amended by the 29 Vic, c. 33. The Act does not apply to the case of school trustees and school teachers, and if a trustee is convicted under it, as a master, the con- viction will be quashed, (d) A. engaged B. and his hired man, C, to build a house Ke M'Kinnon, 2 U. C. L. J. N. S. 324. 6) 14 & 15 Vic., c. 11. \c) Reg. v. Robertson,, 11 V. C. Q. B. 621. d) Re Joke, 19 U. C. Q. B. 197. 430 CRIMINAL LAW OP CANADA. for him, and agreed to pay B. his ordinary wages, and $1 per diem for C. A., making default, was convicted before a Magistrate under the Act, and ordered to pay B. $15.50 for C.'s services. A. appealed, but the appeal was adjourned to another sessions, when the conviction was quashed. B. then obtained a summons to shew cause why a certiorari should not issue, to return the order quashing the conviction into the Queen's Bench : — Held, that the applicant had a right to a certiorari ; but it would seem that the proceedings to reinstate the con- viction were unnecessary under the circumstances, for, admitting that the Superior Court should quash the order on any ground, the conviction must still rest on its own merits, and it did not clearly appear that the case was within 1!he Act : — Held, also, that the agreement referred to did not come within the second branch of the Con. Stats, s. 3. It would seem, also, that the terms used in the first branch of this section refer to agreements where master, journeymen and labourers belong to the same calling, and one engages the other to work for him in its exercise, (a) A conviction of a servant for absenting himself from his master's employmont does not determine the contract of service, (b) A workman entered into a contract with a master to serve him for the term of two years ; he absented himself, during the continuance of the contract, from his master's service, and, under 4 Geo. 4., c. 34, s. 3, he was sum- moned before Justices, convicted and committed to prison. After the imprisonment had expired, and while the term still continued, he refused to return to his mas- ter's service, and was again summoned before Justices, (a) Be Doyle, 4 XT. C. F. R. 32 ; as to a hiring within the second branch of this section, see Reg. v. Walker, 21 17. C. Q. B. 34. (6) Unwin and Clark, L. B. 1 Q. B. 417. MISCELLANEOUS STATUTES. 431 when he stated he considered his contract determined by the commitment. The Justices found that he, bona fide, believed that he could not be compelled to return to his employment, and dismissed the summons. The question for the opinion of the Court was whether the Justices had power to commit the respondent to prison a second time : — Held, that, although the servant had not returned to the service, yet, as the contract continued, he had been guilty of a fresh offence, for which, notwithstanding his conviction and imprisonment, he could be convicted a second time, and that his bona fide belief that he was not legally liable to return to the service, being a mistake in law, did not constitute a valid excuse for his absence, (a) A conviction under the Con.. Stats., c. 75, must shew that the person, against whom the complaint is lodged, was a servant at the time of the. conviction or order ; that the complaint was upon oath, and in what manner the wages are due. (b) The Con. Stats. U. C, c. 49, s. 43, et seq. provides for the establishment and regulation of tolls, on roads con- structed 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 89 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 exemption, and the fact of ex- emption being claimed, so that the Court could see that an offence was commitled. Where a person passed through the gate on the 10th of (a) Uwwm and Clark, L. K. 1 Q. B. 417. (ft) Helps and Eno, 9 U. 0. L. J. 302. 432 CRIMINAL LAW OF CANADA. January, the collector giving him credit, as was usual between them, and on the 20th they had a settlement, and the toll for the 10th was then demanded and paid, jsemble, that a conviction for such demand, if illegal, could not be supported, (a) Section 91, ss. 7, exempts any person, with horse or carriage, 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 attending it, on the day so prescribed, (b) A waggon of the seller carrying artficial manure to the farm of the purchaser, is within the exemption from toll, in the 5 & 6 Vm. 4, c. 18, s. 1, as " a carriage employed in conveying manure for land, (c) 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 shewing 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 shewing in what respect the taking of toll was unlawful, (d) (a) Beg. v. Campion, 28 V. C. Q. B. 259. (6) Smith v. Barnett, L. R. 6 Q. B. 36, per Blackburn, J. * (c) Potter and, Tucker, L. R. 5 Q. B. 224 ; see (Ont.) 32Vic, c. 40 ; Con. Stat*. •Can., c. 86, s. 3. Id) Beg. v. Brown, 4 U. C. Q. B. 147. MISCELLANEOUS STATUTES. 433 Where tolls, fixed by the Commissioners, are 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, is not liable to a summary convic- tion, for the Statute was intended to prevent the taking of more or less toll than the Commissioners have ap- pointed, (a) The following conviction — " Home District, to wit : Be it remembered, that on the 16th day of January, in the year of our Lord 1849, at the City of Toronto, in the District aforesaid, Thomas Haystead is convicted before me, S. Gr. Lynn, one of Her Majesty's Justices of the Peace for the said District, for that he the said Thomas Haystead did, on the 14th day of January, instant, evade payment of toll, at the toll-gate situate on the Vaughan Branch of the Albion Planked Road ; and I, the said Jus- tice, adjudge the said Thomas Haystead, for his said of- fence, to forfeit and pay 10 shillings, and also to pay the sum of thirteen shillings and seven pence for costs, and, in default of immediate payment of the said sums, to be imprisoned in the gaol of this city for the space of one month, unless the said sums shall be sooner paid ; and I direct that the said sum of ten shillings shall be paid to the Albion Road Company, and I order that the said sum of thirteen shillings and seven-pence shall be paid to me, the convicting Justice. G-iven under my hand and seal, etc.," was held bad, in omitting, first, any statement of the information ; second, the summons and appearance or default of the accused ; third, his plea, denying or con- fessing ; fourth, the evidence, and also in not shewing 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, because it (a) Reg. r. Brown, 4 U. U. Q. B. 147. BB 434 CRIMINAL LAW OF CANADA. did 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, (a) A conviction, under s. 95 of this Act, stating that de- fendant wilfully passed a gate without paying, and refusing to pay, toll, was held good, and sufficiently shewing a demand of toll. Quaere, whether it would be sufficient to allege that he wilfully passed without paying, and without, in any way, shewing a demand, (b) It was also held, in this case, that the non-exemption of the de- fendant, 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 re- quisite to shew 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, (c) In this case it was objected, (1) that M., the keeper and lessee of the gate, had no authority to exact toll ; (2) that the Corporation had been dissolved ; (3) that no Board of Directors had been appointed since 1866 ; (4) that, if legally appointed, they could not lease the gate ; (5) that the lease to M. had expired ; (6) that he could not take advantage of the penal clauses in the Act ; (7) that it was not shewn that any toll had been fixed, but : — Held, that (a) Reg. v. Hayatead, 7 U. C. Q. B. 9. (6) Reg. v. Caister, 30 TJ. C. Q. B. 247. c lb. MISCELLANEOUS STATUTES. 435 these objections could not be taken, for, where assuming the facts to be true, the Magistrate has jurisdiction, the conviction only can be looked to : — Held, also, as to ob- jections 1, 4 and 6, that they were otherwise untenable, and, as to Nos. 2, 3, and 5, that the existence of the Cor- poration could not be enquired into, on the application to quash the conviction, (a) "Where the defendant, having been convicted on the information 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, (b) The 32 & 33 Tic, 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 car- riage, 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 " caution." The alteration caused a train, which would have 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 : — Held, that this was obstructing a train, within the meaning of the above clause, (c) The Act is not limited to mere physical obstructions. The prisoner, who was not a servant of the railway com- pany, stood on a railway, between two lines of rails, at a point between two stations ; as a train was approaching (a) Reg. v. Cawter, 30 U. C. Q. B. 247. (6) Stewart and £lackbwrn,25 V. C. Q. B. 16. (c) Reg. r. Hadfield, L. E. 1 C. C. E. 253; 39 L. J. (M. C.) 13L 436 CRIMINAL LAW OF CANADA. he held up his arms, in the mode used by inspectors of the line -when desirous 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, as the prisoner intended that it should, caused the driver to shut off steam and diminish speed, and led to a delay of four minutes : — Held, that the prisoner had obstructed a train, within the meaning of the Statute, (a) The 13 & 14 Vic, c. 74, contained provisions prohibit- ing 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 misdemeanor, and various decisions took place as to what kind of contract was within the Act. (6) 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 conviction under the Pawn-brokers' Act, Con. Stats. Can .j c 61, for neglecting to have a sign over the door, as directed by the 7th section, is not sustained by evidence of one transaction alone, for the penalty attaches only on persons " exercising the trade of a pawn-broker," as men- tioned in the first section, and a single act of receiving or (a) Beg. v. Hardy, L. B 1 C. C. E. 278. (6) See Beg. v. Hagar, 7 U. C. C. P. 380; Beg. v. Baby, 12 V. C. Q. B. 346: Totten v. Watmn, 15 IT. C. Q. B. 392; Little v. Keating, 6 U. 0. Q. B. O. S. 265. MISCELLANEOUS STATUTES. 437 taking a pawn or pledge is not an exercising the trade or carrying on the business of a pawn-broker, (a) The return of convictions by Justices of the Peace is now regulated by the 32 & 33 Vic, c. 31, s. 72, the 33 Vic, c. 27, s. 3, and (Ont.) 32 Tic, c. 6, s. 4. The Consolidated Statute of Upper Canada has been repealed, (b) Under the former Statute a Justice of the Peace »was liable for a separate penalty of £20, for each conviction of which a return was not properly made to the Sessions, (c) Justices were not jointly liable in one penalty, but each in a separate penalty for not returning convictions, (d) 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 to have received, so that they might be made to account for it (e) The illegality of a conviction is no excuse for not re- turning it, but, if on that account the fine had not been levied, a return should be made explaining the circum- stances. (/) An order for the payment of money made by a Justice, under the Con. Stats. U. C, c. 75, is not a conviction, which it is necessary to return, (g) 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, (h) I a) Reg. v. Andrews, 25 U. C. Q. B. 196. b) See 32 & 33 Vic, c. 36. c) Donogh, g. t. v. jtongworth, 8 TJ. C. C. P. 437. d) Metcalf, q. t. v. Reeve, 9 IT. C. Q. B. 263. e) O'Reilly, q. t. v.Allan, 11 U. C. Q. B. 415, per Robinson, C. J. (/) O'Reilly, q. t. v> Allan, supra, (g) Rwnney, q. t. v. Jones, 21 U. C. Q. B. 370. (A) Keeuahait, q. t. v. Egleson, 22 U. C. Q. B. 626 ; see also OUard, q. t. v. Owens, 29 TJ. C. Q. B. 515; Grant, q. t. v. M'Fadden. 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. 438 CRIMINAL LAW OF CANADA. The form of order given in the schedule to Con. Stats. U. C, c. 123, respecting the costs of distress for rents, and penalties not exceeding $80, states the unlawful charges to have been taken from the complainant, " under a dis- tress for (as the case may be)." In an order under this Statute, it is sufficient to follow the statutory form m statmg " a distress for rent," and it is unnecessary to state such suit to have been under $80, in order to shew juris- diction, and the words " (as the case may be) " direct only the insertion of mere words, specifying the kind of dis- tress, rent or penalty, and an order, in other respects in the statutory form, is not liable to be set aside on the above grounds, (a) 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 Magistrates have no summary jurisdiction, when the accumulated penalties are more than £10. When the inspector, in a corporate town, is the infor- mer, he is not entitled to half the penalty, (b) The Statute only applies to flour made in this Pro- vince, (c) The 8 Vic. c. 45, (d) was passed to prevent the profana- tion of the Lord's day. Defendant was convicted, under the 8 Vic, c. 45, " 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 inas- much as he, and his men, did make, and haul in hay, on the said day." He appealed to the Quarter Sessions, a) Beg. v. Stewart, 25 U. C. Q. B. 327. 6) Beg. v. Beekman, 2 U. C. Q. B. 57. M lb. id) Con. Stats. U. C, c. 104. MISCELLANEOUS STATUTES. 439 where the question was tried before a jury, and the conviction affirmed. The proceedings having been re- moved by certiorari to this Court : — Held, that the Statute, 13 & 14 Vic, c. 54, extended to convictions under this Act, and authorized the trial by Jury ; though, in the 8' Vic, o. 45, there is a provision for appeal to the Ses- sions, but not for such trial ; that the conviction must be quashed, 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. The Court also inclined to think the conviction was bad, for not negativ- ing the exception in the Statute, by stating that the work done was not one of necessity, (a) And it seems clear the conviction was bad, on the latter ground, for the excep- tion is contained in the clause creating the offence, (b) 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 " within the meaning of the excep- tion in the first section, (e) A note made on Sunday, in payment of goods sold, on that day, is void as between the original parties, but not as against an indorsee for value, and without notice, (d) The giving or taking security, as an ordinary mortgage of personal property, on a Sunday is not void as a " buy- ing -or selling, " within the Act. (e) But all sales or agreements for a sale of real or per- sonal property made on a Sunday are void. (/) By 1 & 2 fm, c, 32, s. 32. " If any person shall kill (a) kespeler and Shaw,\ 35 L. J. (M. C.) 204. (e) Beg. v. Frost, Dears. 474; 24 L. J. (M. C.)116; Beg. v.. Larkin, Dears. 365; 23 L. J. (M. 0.) 125. (/) Beg. v. Fullarton, 6 Cox, 194 ; Arch. Or. Pldg. 207 ; but see Beg. v. Byrnes, 3 6. & K. 326. (g) Beg. v. Senecal, 8 L. C. J. 287. 504 CRIMINAL LAW OF CANADA. A count on an indictment charging a prisoner with unlawfully and carnally knowing- and abusing a girl, under the 32 & 33 Vic, c. 20, s. 52, and also with an assault at common law, might be objectionable, on the ground of duplicity, (a) "Where different felonies are charged in different counts of an indictment, and an objection is taken to the indict- ment, 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 pro- ceed. (6) Counts under the 39 G-eo. 3, c. 85, for embezzling bank notes, might have been joined with counts for larceny at common law, (c) and the prosecutor would not, at the opening 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, (d) 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 indictments for forgery, where one count is inserted for forgery, and another for uttering the forged instrument, (e) It would seem that, where there is only one offence (a) Beg. v. Guthrie, L. E.1C. C. E. 242, per Bovill, C. J. (6) Ymmg v. B. 3 T. E. 106 ; Beg. v. Seywood, L. & C. 451 ; 33 L. J. (M. C.) 133 ; Arch. Cr. Pldg. 70. (e) Bex v. Johnson, 3 M. & S. 539. (d) Beg. v. Cummings, 4 U. C. L. J. 184, per Draper, C. J. (c) Bex v. BUckson, 8 C. & P. 43, per Parke, B. PLEADING. 505' charged, or corpus delicti complained of, the prosecutor cannot 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, (a) The indictment contained two countsr-the first, em- bezzlement as servant, the second for larceny, as bailee. At the close of the case for the prosecution, it was ob- jected that the indictment was bad, for misjoinder of counts, and that the Court had no- power to allow the counsel for the prosecution to elect on which count he would proceed. The Co # urt overruled the objection, and, the counsel for the prosecution having elected to proceed upon the second count, the prisoner was convicted : — Held, that the conviction must be affirmed, (b} 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, (c) 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 & 33 Vic. c. 29, s. 32. (d) If the statements of the previous convictions are not treated as counts, but merely as statements made for the purpose of founding an enquiry 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 enquired into at all, and the jury was not charged with (a) See Reg. v. School, 26 TJ. C. Q. B. 214; Arch. Cr. Pldg. 72. (6) Reg. v. Solmdn, 9 TJ. C. L. J. 223 ; L. & C. 177 ; see also Reg. v. Fer- guson, 1 TJ. C L. J. 55 ;. Dears. C. C. 427. (c) 2 Buss. Cr. 247 n. (d) Reg. v. Mason, 32 TJ. C. Q. B. 246 ; Reg. v. Ferguson, \ Dears'. 427- 506 CRIMINAL LAW OF CANADA. them, so that the prisoner was not prejudiced by their insertion, and if, after a conviction on the count for lar- ceny, a demurrer to these statements, as insufficient in law, is decided in favour of the prisoner, a court of error will not re-open the matter, on the suggestion that there is a misjoinder of counts, (a) If there be an exception or proviso in the enacting clause of a Statute, it must be expressly negatived in the indictment, (b) 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 favour of particular 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 indictment, (c) 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. (d) The statement of the time when an offence is com- mitted was never considered material, so long as there was proof of the offence occurring before the preferring of the indictment, (e) The 32 & 33 Vic, c. 29, s. 23, would seem to render an (a) Beg. v. Maim, 32 TJ. C. Q. B. 246. (6) Beg. v. White, 21 V. C. C. P. 334. (c) lb. 355, per Gait, J. {a) lb. 356, per Gait, J., and see Arch. Cr. Pldg. 62 ; Spieres v. Parker, 1 T. K. 141 ; B. v. Earmhaw, 15 Ea. 456 : Bex v. Hall, 1 T. R. 320 ; Steel v. Smith, 1 B. & Aid. 94 ; Dwarris, 615-6. (e) Beg. v. Hamilton, 16 tT. C. C. P. 355, per Bichards, C. J. PLEADING. 507 averment of time unnecessary, in any case where time is not of the essence of the offence, (a) It was formerly necessary that an indictment for homi- cide should set forth the manner of the death, and the means by which it was effected. (6) But it is not now necessary that an indictment for murder or manslaughter should set forth the means by which the death of the deceased Was caused. When a Statute makes the means of effecting an act material in- gredients in the offence, it is necessary 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 ingre- dients in the offence must be alleged, (c) "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 particularity as necessarily to manifest the design which constitutes the felony, or there should be an allegation following the words of the Act. (d) It would seem, therefore, that in an indictment, on the 32 & 33 Vic, c. 20, s. 20, for attempting, " by any means calculated 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 sched. to the 32 & 33 Vic, c 29, in any case to which they are applicable. It is not necessary that the proof should, in all cases, tally with the mode of death laid in the indictment. "Where an indictment charged the prisoner with felp- (a) See Mulcahy v. Beg. L.E.3E.4 I. App. 322, per Willes, J. ib) See Beg. v. Shea, 3 Allen, 130-1, per Carter, C. J. c) See Beg. v. Magee, 2 Allen, 16 per Carter, 0. J. ; Arch. Cr. Pldg. 60-3. d) Beg. v. Magee, supra. 508 CRIMINAL LAW OF CANADA. * niously striking the deceased on the head with a hand- spike, 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 imme- diate cause of death being concussion of the brain, pro- duced by the blow : — 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, (a) The venue of legal proceedings is intended to shew where the principal facts and circumstances in the pro- ceedings occurred, or were alleged to have occurred, with a view to shew that the Court and jury have jurisdiction in the matter. 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, (b) But now, by the 32 & 33 Vic, c. 29, s. 15, it is not necessary to state any venue in the body of any indict-, ment. S. 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 certiorari, .into the Queen's Bench, and then moving to change the venue, (c) Under s. 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, car- riage, or vessel, boat or raft passed, in the course of the journey or voyage during which the offence was Commit- tal Beg. v. Shea, 3 Allen, 129. (6) Beg. v. Athmson, 17 U. C. C. P. 299-300, per J. Wilson, J. (c) Meg. v. McLeod, 6 C. L. J. N. S. 64 ; 5 UT C. P. R. 181. PLEADING. 509 ted, and the indictment need not state the place where the offence was actually committed, (a) "Where an indictment stated an assault committed upon one Marsh, at Frederickton, 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 passage from St. John to Frederickton, before the steam- boat arrived within the County of. York, and while it was passing through another County : — Held, that the indict- ment was sufficient, and that.it was unnecessary to allege the facts as they actually occurred, (b) ' 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 shewing that those who were sworn were persons who ought to have affirmed, or that those who affirmed were persons who ought to have sworn, (c) . Where an indictment for felony lays a previous con- viction, notwithstanding that, when the prisoner is given in charge to the jury, the subsequent felony must be read alone to them, in the first instance, it is no objection to the indictment that the previous conviction is laid at the commencement, (d) 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 in- dictment against the defendant, the Court will not quash the indictment 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 (a) See Beg. v. Webster, 1 Allen, 589. (6) lb. (c) Mulcahy v. Beg. L. R. 3 E. & I. App. 306. \d) Beg. v. Hilton, 5 U. C. L. J. 70 ; Bell, 20; 28 L. J. (M. 0.) 28. 510 CRIMINAL LAW OF CANADA. forth the substantial charge contained in the information; so that the defendant has reasonable notice of what he has to answer, (a) An application to quash an indictment should be made in limine by demurrer or motion, or the defendant should wait the close of the evidence for the prosecution to de- mand an acquittal, (b) Applications to quash an indictment are considered ap- plications to the discretion of the Court, (c) A defective indictment may be quashed on motion as- well as on demurrer, (d) 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, 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 G-rand Jurors, in the list, and in the panel, was held suf- ficient ground for quashing an indictment for felony. (/) Where an indictment charges no offence against law, the objection may- be properly taken in arrest of judg- ment, or the indictment may be demurred to, or a writ of error will lie. (g 1 ) 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. (A) An objection to an indictment, as insufficient in law, (o) Beg. v. Broad, 14 TX. C. C. P. 168. (6) Beg. v. Boy, 11 L. 0. J. 90, per Drunmcmd, J. See 32 & 33 Vic. c. 29 s. 32. ' (c) Beg. v. Bdyea, 1 James, 227, per Dodd, J. ; Bex v. Sunt, 4 B & Ad. 430 id) Beg. v. Bathgate, 13 L. C. J. 299. (e) Beg. v. Belyea, supra, 225 per Dodd, J. (f) lb. 220. (a) Beg. v. Clement, 26 U. C. Q. B. 300, per Draper, C. J. . (h) Horseman v. Beg. 16 U. C. Q. B. 544, per Bobinsbn, C. J. PLEADING. 511 made after the swearing of the jury, and after the pri- soner was given in charge to them, was held not too late ; for otherwise there never could be a motion in arrest of judgment, (a) Semble, an objection may be made at any time for a substantial, but not for a formal, defect, and that the 32 & 33 Tic, c. 29, s 32, only applies to the lat- ter. (&) The forms of indictment in the 32 & 33 Vic, c. 29, schedule A., are intended as guides, to simplify forms of indictments. Ihey cannot apply to cases to which they are not applicable, so as to misinform a person of the nature of the offence with which he stands charged, (c) The use of the forms is discretionary with the person framing the indictment, (d) The forms of indictment in the schedule L, title XL, of of the (N. B.) Rev. Stats., were inapplicable to offences not referred to in that title, (e) It has been held that, before pleading to an indictment, the defendant must submit to the jurisdiction of the Court. (/) The prisoner must plead in abatement before he pleads in bar. [g) No more than one plea can be pleaded to any indict- ment for misdemeanor or criminal information. (A) (a) Beg. v. Byland, L. E. 1 C. C. E. 99 ; 37 L. J. (M. C.) 10. (b) lb. (c ) Beg. v. Cii/mmings, 4 TJ. C. L. J. 188-9, J)er Spragge, V. C. (d) lb. (e) Beg. v. M'Lcmghlin, 3 Allen, 159. (f) Beg. v. Maxwell, 10 L. 0. R. 45. (g) Whelanv. Beg. 28 IT. 0. Q. B. 47. (h) Beg. v. Charlemorth, 1 B. & S. 460 ; 31 L. J. (M. C.) 26. 512 CRIMINAL LAW OF CANADA. CHAPTER X. PRACTICE. Justices of the Peace were appointed in the reign of Edward the first, .and their appointment has been con- tinued until the present time., (a) Under the Con. Stats. Can. c. 100, s. 3, the oath of qua- lification, by a Justice of the Peace must have been taken before some Justice of the Peace of the County for which he intended to act. It could not be adminis- tered by the Clerk of the Peace for such County, under the writ of Dedimus Potestatem issued with the Commis- sion of the Peace, (b) The 29 Vic, c. 12, recites that certain Justices had, theretofore, in error taken and subscribed the oath of qua- lification before a Clerk of the Peace of the District or County, or before a Commissioner assigned, by Dedimus Potestatem, to administer oaths and declarations, and it confirms such oaths so taken and indemnifies the Justice from all penalties, and forfeitures in respect thereof. The Act also prescribes before whom oaths shall, hereafter, be taken. A certificate purporting to be under the hand and seal of the Clerk of the Peace, that there was no declaration of the Justice's qualification filed in his office, is not suffi- cient proof that the Justice is not properly qualified, (c) The Justice, in this case, signed a recognizance in the. (a) Reg. v. Atkinson, 17 TJ. C. C. P. 300, per J. WiUon, J. (b) Herbert, 9. t. v. DowsweU, 24 U. C. Q. B. 427. (cj Reg. v. White, 21 TJ. C. C. P. 354: PBACTICE. 513 name of " N. Dickey, J. P." and the certificate shewed that no oath of qualification was filed by " Nathaniel Dickey." It .seems this would not be sufficient, and that the identity of the Justice acting, with the one whose qualification was filed, should have been proved, (a) Under 29 & 30 Vic, c. 51, s. 357, "a Police Magistrate for a city, is ex officio, a Justice of the Peace for the Coun- ty, in which such city lies, and by s. 360, a Justice of the Peace for a county in which a city is, may try and inves- tigate any case in a city, where the offence has been committed in the county, or union of counties, in which such city is, or which such city adjoins, (b) Under s. 357 as amended by s. 38, of the (Ont.^ 31 Tic, c. 30, an alder- man is not ex offecio legally authorized to act as a Justice of the Peace, until he has taken the oath of qualification as such, (c) The plain import of ss. 356, 360, 367 and 373, 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 offences committed within the city, and County res- pectively, (d) Under the Commission of the Peace, Justices have a general power for conservation of the peace, and the ap- prehension and commitment of felons. The Commission gives them jurisdiction in all indictable offences, to dis- charge, admit to bail, or commit for trial, (e) The maxim, omnia prcesumuntur rite esse actu, does not apply to give jurisdiction to Justices, or other inferior (a) Reg. v. White, 21 TJ. C. C. P. 354. (b) Beg. v. M osier, 4 U. C. P. R. 64. (c) Reg. v. Boyle, 4 U. C. P. K. 256. (A) Beg. v. Morton,, 19 IT. C. C. P. 27, per Chaynne, J. (ej Connors v. Darling, 23 U. C. Q. B. 543, per Govxm, 3. GG 514 CRIMINAL LAW OF CANADA. tribunals. (0) On this principle, in a prosecution for a penalty, under a by-law of a corporation, the by-law must be proved; for it must appear on the face of the proceed- ings that there is jurisdiction. Q>) A Justice's jurisdiction depends, not on jurisdiction over the subject matter, but, over the individual arrest- ed, and to give him that jurisdiction, there should be an information properly laid, (c) Where a limited authority is given to Justices of the Peace, they cannot extend their jurisdictian to cases, not within it, by finding as a fact that which is not a fact, and their warrant in such a case will be no protection to the officer who acts under it. (d) "Where a Statute gives to Justices a discretion, whether they will do a particular thing, it does not 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, (e) 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 jurisdiction. The conviction would be bad on its face, all the proceedings being before the Court. (/) In a prosecution before Justices, their jurisdiction is ousted by the accused setting up a claim of right, ; yet that claim must be bona fide, and the mere belief of the accused unsupported by any ground for the claim, will be insufficient, (g) {a)' Reg- v. Atkinson, 17 V. C. C. P. 302. ( b) Beg. v. Wortman, 4 Allen, 73 ; Bex v. All Saints, Southampton, 7 B. & C. 785. (c) Caudle v. Ferguson, 1 Q. B. 889 ; Friel v. Ferguson, 15 U. C. C. P. 594, per A. Wilson, J. (d ) The Ha/idee, 10 IA C, E. 101 ; The Scotia S. V. A. B. 160. (e) Beg. v. Boteltr, 4 B. 4 S. 959 ; 33 L. J. (M. C. ) 101. (/; Ke McKmnon, 2 U. O. L. J. N. S. 327, per A. Wilson, J.. . PRACTICE. 515 The jurisdiction is not ousted by the accused setting up a claim of right, which cannot by law exist, (a) On 'the hearing of a complaint for assault, under the 32 & 33 Vic, c. 20, s. 43, if it be shewn that a bona fide ques- tion as to the title to land is involved, the jurisdiction of the Justices is at once ousted, by s. 46, and the Justices cannot proceed to enquire into, and determine by sum- mary conviction, any excess of force alleged to have been used in the assertion of title, (b) The matter may still be disposed of by indictment, if it be a proper case for such a proceeding, (c) A complaint under s. 43 cannot be withdrawn by the complainant, even with the consent of the Justice, (d) The reason why the complainant is prevented from with drawing the charge before the Magistrate is, that he has made it a public matter, and that the person charged has the right to have it tried, and because, also, the com- plainant has made his election to have the case so dis- posed of, from which he cannot withdraw, (e) 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, (g) But if Justices, in their own discre- tion, refuse to hear a complaint which is the subject of an indictment, the Court will not compel them to go On. (h) The fact that the defendant pleads guilty to the charge cannot deprive the Justice of the discretion he has to ad- judicate on the case, under s. 46. (a) Hudson v. McRae, 4 B. & S. 585; 33 L. J. (M. C.) 65. (b) Beg. v. Pearson, L. R. 5 Q. B. 237. (c) lb. 239, peilmsh, J. (d) Re ConkUn, 31 IT. 0. Q. B. 160. « (e) lb. 168, per Wilson-, 3. See also !ta»i# v. Tedd, 5 C. B. 553; Vaughton and BradsRwur, 9 C. B. N. S. 103. ( /) Sex v. Tod, Str. 53U (g) Sex v. Justices Cumberland, 4 A & E. 695. (h) Reg. v. Higham, 14 Q. B. 396; Re Gonldin,, supra, 167, per Wilson, J. 516 CRIMINAL LAW OF CANADA. The adjudication means the Justice's final judgment or sentence to be pronounced, (a) If the Justice adjudi- cate, the defendant will be entitled to the certificate, under s. 44, and if he do not adjudicate, there will be no certificate,- and so there will be no bar to any subsequent proceedings, (b) There is no right to a certificate unless there has been a hearing upon the merits, (c) A certificate under s. 44, given by a Justice on a charge of assault and battery, is a defence to an indictment, founded on the same facts, charging an assault and bat- tery, accompanied by malicious cutting and wounding, so as to cause grievous or actual bodily harm, (d) So, a former conviction by a Justice is a bar to an indictment for felonious stabbing, (c) The certificate is also a bar to an indictment for assault, with intent to commit rape. (/) 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 ap- plied to amend the information by adding the words " falsely imprison." This being refused, the complainant offered no evidence, and a second information was at once laid, including the charge of false imprisonment. The Magistrate refused to give a certificate of dismissal of the first charge, or to proceed further thereon, but en- dorsed on the information " Case withdrawn by permis- sion of Court, with the view of having a new infor- mation laid " : — Held, that the information might be amended, but, as the original was under oath, that it must be re-sworn. Semble, under the circumstances, the more correct course would have been to go on with the original case, and, under s. 46, to refrain from adjudicating, (g - ) (o) Re Conklin, 31 TJ. C. Q. B. 166, per Wilson, J. (6) lb. 166, per Wilson, J. ; Hwrtteg v. Bindmarsh, L. R. 1 C. P. 553 (c) Be Conklin, 31 U. C. Q. B. 168, per Wilton, J. Id) lb. 165, per Wilson, J. : Reg. v. Ebringtim, 1 B. & S. 688. (e) Jteg. v. Walker, 2 M. & Rob. 446 j Be Conklin% supra, 165, per Wilson, J. (/) lb. ; Be Thompson, 6 H. 4 N. 193 ; 6 Jur. N. S. 1247. \g) Be Conklim,, supra, 160. PRACTICE. 517 Justices of the Peace have no jurisdiction to convict summarily, at common law, in any case, but, in all cases> a direct legislative authority must be shewn, or the con- viction will be illegal, (a) At common law, Justices had no summary jurisdic- tion to try complaints for assaults. That jurisdiction was derived solely from the 4 & 5 Vic, c. 27, s. 27. It seems that, under the 32 & 33 Yic, c. 20, s. 43, the prayer for summary jurisdiction should appear on the face of the conviction, (b) The 32 & 33 Vic, c. 31, as amended by the 33 Vic, c 27, confers power on Justices to convict summarily, in certain cases, and prescribes the duties of Justices of the Peace out of sessions, in relation to summary convictions and orders. Under s. 5„ of this Statute, a variance be- tween the information, complaint, or summons, and the' evidence adduced on the part of the informant, or com- plainant, is not fatal if the defendant has not been de- ceived or misled thereby, or has no defence on the merits, (c) The object of the Legislature, in this provision, seems to have been to prevent the failure of justice in cases where, by the old law, very great technical precision was required, and that before a tribunal where great legal ac- curacy could hardly be expected, (d) It may be doubt- ful, 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 the adjourning the hear- ing to a future day. (e) On an information for selling spirituous liquors with- out a license, contrary to the by-laws of the Town of (a) Brots v. Huber, 18 U. C. Q. B. 286, per Bobinion, C. J. (.b) He Switzer, 9 U. C. L. J. 266. (c) See Ex parte Dunlap, 3 Allen,. 281. See also s. 21 and 22, (d) lb. 283-4, per Garter, 0. J. («) lb. 284, per Carter, C. J. 518 CRIMINAL LAW OF CANADA. Moncton, the illegal sale was proved, but there was no evidence of the by-laws, and the Justices convicted the defendant of selling,' contrary to the Statute to regulate the sale of spirituous liquors, 17 Vic, c. 15, : — Held, that, as it did not appear that the defendant was misled, or had any defence on the merits, the variance between the information and the conviction was not fatal, since the (N. B.) Kev. Stat., c 138, s. 1, which is, in substance, the same as s. 5 of the present Act. (a) 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 in- formation 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. (b) A Justice has no authority, either under the 32 & 33 Vic, c 30 or c 31, to issue a summons or warrant for the arrest of a party without an information properly laid. The laying of the information is necessary to give the Justice jurisdiction, even where a crime is committed over which he might have jurisdiction, (c) It is the duty of a Justice to have an information laidj and, when properly laid, he has power over a person, to bring him up to answer a charge, (d) An information, by a person who has no authority to make it, is the same as no information, and does not authorize the issue of a summons or warrant, (e) An information, to be tried before two Justices, is good, though only signed by one. (/") (o) Ex parte Dunlap, 3 Allen, 281. ibjEx'purte Eagles, 2Hamnay, 54', per BUchie, C. J. > , (c) See Appleton v. Lepper, 20 U. C. C. P. 142, per Hagarty, J. ; Powell v. Wittwmton, 1 XT. C. ,Q. B, 154; Friel v. Ferguson, 15 TJ. C. C. P 584- ex parte Eagles, 2 Habnay, 53-4,'per AitcAie, C. J. •" ' (d) Connors v.D&rlmg, 23 U. C. Q. B. 546, etseq., per Hagartg, J. (e) Ex parte Eagles, supra, 54, per Mitchie, C. J. (f) Falconbridge q. t. v. Tourangeau, Bob. Dig. 260. PRACTICE. 519 Unless a Statute require that the information should be in writing, or on oath, it need not be so. (a) Where power is given, by an Act, to a Justice to issue a summons upon complaint made on oath, and the party to be summoned appears and defends the suit, without any summons being issued, he cannot afterwards object that there was no complaint on oath, that being only a preliminary step to authorize the summons to issue, (b) A complaint charging a " clandestine removal of pro- perty " does not justify or require the issuing of a war- rant, as for a criminal offence, and the utmost that it does justify is the issuing of a summons under the Act relating to petty trespasses, (c) 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, (d) "Where a Statute creates several offences, one of which is charged in an information, a conviction of another offence, the subject of the same penalty, will be bad. In a prosecution under the Con: Stats. L 0., c. 6, the con- viction must exactly conform to the charge in the infor- mation, (e) In a complaint for breach of a by-law, it is not neces- sary 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 specifying it is valid. Service of a copy of a sum- (a)Friel v. Ferguson, 15 IT. C. C. P. 594; Re ConMn, 31 U. C. Q. B. 168, per A. Wilson, J. ; see s. 24. (6) Ex parte Wood, 1 Allen, 422. This case was on a local act, 6 Wm. 4, c. 44, as to recovery of seamen's wages. (c) McNelMs v. GaHshore, 2 XT. C. C. P. 471, per McLean, J. (d) Thompson and Durnford, 12 L. C. J. 287, per Machay, J. («) 76. 285. 520 CRIMINAL LAW OF CANADA. mons, issued by a Magistrate, followed by appearance of the defendant, is sufficient, (a) Where two or more persons may commit an offence under an Act, the information may be jointly laid against them, (b) 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, (c) 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, (d) At Petty Sessions, an information was laid against two defendants, charging that they did unlawfully use g un and kill two pheasants, contrary to the 1 & 2 W~m. 4, 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 defendant imposing a penalty of £3 : — Held, that it was in the discretion of the Justices whether they would hear the charge separately or not, that as the penalty was im- posed on every person acting in contravention of the Statute, each defendant was separately liable to the whole penalty ; and that, separate convictions were right, al- though the prisoners were charged on a joint informa- tion, (e) It is conceived that the ground of the decision, in this case, will apply to the Con. Stats. U. C, c. 104, s. 7, and that, where there are several defendants, they may be (a) Corignam v. Harbour Oomr». Montreal, 5 L. C. B. 479. (6) Beg. v. UtUechUd, L. E. 6 Q. B. 295, per hmh, J. (e) lb. 295, per Mellor, J. (d) lb. 296, per Hannen, 3. (c) Beg. v. Litllechild, supra. PRACTICE. 521 tried together and separate penalties imposed on each, for s. 7 imposes a separate penalty on any person. 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 : — Held, that the con- viction should clearly shew whether the damage, injury or spoil complained of, is done to real, or personal pro- perty, stating what property, and in consequence of s. 29, where a private person is prosecutor, should also shew the amount, which the Justice has ascertained to be rea- sonable compensation for such damage injury or spoil, [a) The offence, created by the Statute, is damaging pro- perty, not taking and carrying it away, (b) It is sufficient, if a conviction follows the forms set out in the Statutes, for the- forms are intended as guides to Justices, and, otherwise, they would prove only snares to entrap persons, (c) A conviction following the form, (L.) (N.B.) 1 Rev. Stat. 391, is sufficient. It would be no objection, however, if the conviction stated the name of the informer, or party, laying the information, (d) Where a form of conviction was not sanctioned by any express Statute, a Justice was bound to follow such form; as would be sufficient under 2 .Wm. 4, c. 4., which sup- plied a form to be used in all cases of summary convic- tion, except where a form is specially given for the par- ticular case, (e) (a) Reg. v. Caswell, 20 TX. C. C. P. 275. : (b) lb. (cj Reg. v. Shaw, 23 TJ. C, Q. B. 618, per Draper, U. J. ; ReM v. McWhmmie, 27 U. C. Q. B. 289 ; Reg. v. Hyde, 16 Jur. 337 ; Re AlMson, 10 Ex. 561. (d) Ex parte Eagles, 2 Hannay, 53, per Ritchie, C. J. ; Reg. v. Johnson, 8 Q. B. 102. (e) Moore v. Jarron, 9 TJ. C. Q. B. 233. See 32 & 33 Vie., e. 31, s. 50. 522 CRIMINAL LAW OF CANADA. The name of the informant or complainant must in some form or other appear on the face of the convic- tion, (a) The place, for which the Justice acts, must be shewn y and it must be alleged that the offence was com- mitted within the limits of his jurisdiction, or facts must be stated, which give jurisdiction beyond those limits, (b) The offence, of which the defendant is convicted, must be stated with certainty, otherwise the conviction will be quashed. A conviction " for wilfully damaging, spoil- ing, and taking, and carrying away six bushels of apples of the said Rogers, whereby the defendant committed an injury to the said goods and chattels "was held not to contain a statement of an offence, for which a conviction ' could take place, (c) "Where an information, in a conviction, charged the de- fendant with measuring or surveying lumber, intended for exportation in violation of the Act of Assembly, 8 Vic, c. 81, and the evidence referred to three distinct acts, but it did not appear for which of them the defendant had been convicted : — Held, that the conviction was bad for uncertainty, (d) A conviction adjudging the defendant to be imprisoned for twenty-five days, or payment of £5 and costs, in the alternative, is bad. (e) A conviction, by two Justices for taking lumber fe- loniously or unlawfully, is bad, for it should not have been in the alternative. If the conviction was unlawful only, not felonious, it should have shewn how it was unlawful, and it should have shewn, also, that the offence came under our statute^ which gave the Justices power to convict. (/) (a) Re Bennesy, 8 U. C. L. J. 299. (6) Beg. r. Shaw, 23 U. C. Q. B. 618, per Draper, C. J ; Bex v. Edwards, 1 Ea. 278: (c) Eastman v. Beid, 6 IT. C. Q. B. 611. • (d) Beg, v. Stevens, 3 Kerr, 356. (e) Beg. v. Wortman, 4 Allen, 73. (fj Beg. v. Craig, 2i/0.Cv Q. B. 552. PEACTICE. 523 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 con- duct, in having at Montreal, Canada East, some time be- tween the 17th January and 16th March, 1867, fraudu- lently embezzled or misapplied, about live hundred cords of wood, government property intrusted to his charge as an Assistant-Commissiariat-Storekeeper, and which, at at the latter date, was found deficient," and, thereupon, on the said conviction, the i Court, forthwith, sentenced the petitioner, among other penalties, to be imprisoned, with hard labour, for six hundred and seventy-two days. The Court held that it did not appear there had been preferred 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, (a) In describing the offence in convictions, it is not suffi- cient to state, as the offence, that which is only the legal result of certain facts, but the facts themselves must be specified, so that the Court may judge whether they amount in law to the offence. A conviction, by a Magistrate, stated that defendant did, on etc., at etc., being a public highway, use blasphe- mous language contrary to a certain by-law passed! almost in the words of the Con. Stats. U. C. c. 54, s. 282 ss. 4, but there was no statement of the particular lan- (a).B& Moore, 11 L. C. J. 94., 524 CRIMINAL LAW OF CANADA. guage used, it was held bad as the statement in the con- viction was only the legal result of certain facts, and the facts themselves were not set ont. (a) The particular words used should have been stated. As a general rule, where an Act in describing the offence makes useof 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 particular 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 des- cription 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 Legislature speaks, in general terms, the conviction must state what act in particular was done, by the party offending, to enable him to meet the charge, (b) 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 falsi- fied 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 the owner may enter upon the grantee, with as little ceremony as he might enter upon a disseizor, (c) Where a conviction, which had been affirmed on ap- peal to the Sessions, was brought up by certiorari, con- trary to the 32 & 33 Vic, c. 30, s. 71, as amended by the (a) Re Donnelly, 20 TJ. C. C. P. 165. (I) Re DonmUy, 20 TJ. C C. P. 167, per Hagarty, C. J.; and see Rem v. Sparling, 1 Str. 497 ; Reg. v. Scott, 4 B. 4 S. 368 ; Reg. v. Nott, 4 Q. B. 768, as to particular applications of these principles. (c) Davis v. Stewart, 29 U. C. Q. B. 446, per Wilton, J. ; 4 Bla. Com. 393. PRACTICE. 525 33 Vic, c. 27, s. 2, which enacts that in such case no certiorari shall issue : — 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, (a) It would seem that a conviction by a Justice may be quashed, unless it is sealed. (6) A conviction will be quashed, if it appears that the offence was for a felony, and that the defendant was not put on his defence, or allowed to cross-examine the wit- nesses, (c) A conviction will be quashed, if the summons states no place where the offence was committed, although the place appear on the face of the conviction, (d) But under the 14 & 15 Yic, c. 95, a conviction by a Justice, awarding imprisonment, and also for damages and costs, will be sustained, (e) The Court will not give costs against a public officer, on quashing a conviction. (/) It seems the Court have no power to allow costs in quashing a conviction, (g) "Where Justices have power to award costs, on a sum- mary conviction, they must specify the amount, (h) The Justices' Summary Convictions Act (N.B.) 12 Vic, c. 31, gave no general power to award costs on convic- tions ; and, on convictions under this Act, they can only (a) Beg. v. Johnson, 30 U. G. Q. B. 423. (b ) Haacke v. Adamson, 14 TJ. C. C. P. 201. See also M' Donald v. Stuckey, 31 TJ. C. Q. B. 577 ; 32 & 33 Vic. c. 31, s. 42. (c) Ex parte Lindsay, Rob. Dig. 73. (d) Ex parte Leonard,-^ L. C. R. 480. (e) Ex parte M' Quirt, Rob. Dig. 75. (f) Ex parte De Beniljeu., 1 L. C. J. 15. (g) Beg. v. Stevens, 3 Kerr, 356. (h) Ex parte Bartt, 3 Allen, 122. 526 CRIMINAL LAW OF CANADA. be awarded when given by the Statute creating the offence«(a) 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, (ft) A judgment for too little is as bad as a judgment for too much ; and a conviction for one month instead of two months is, therefore, bad. (c) An information or complaint may be amended ; but if on oath, it must be re-sworn, (d) A conviction, inflicting one penalty for two offences, is bad. (e) Where the defendant is summarily eonvicted, at one time, of several offences, the Justice has power, under 32 & 33 Vic, c, 31, s. 63, to award that the imprisonment, under one or more of the convictions, shall commence at the expiration of the sentence previously pronounced. (/) Under the 7 & 8 G-eo. 4, c. 28, the practice of the Judges was, where more than one case of felony was established against a man, and he was convicted of them at one and the same time, to make the sentence of im- prisonment for the two or three offences, as the case might be, commence at the expiration of the sentence first awarded, (g) Judgment may be rendered by two Justices of , the Peace, in a case heard by three, when, by the Statute, (a) Ex parte Clifford, 3 Allen, 16. (6) Ex parte Marry, 14 L. 0. J. 163. (c) Ex parte Slack, 7 L. C. J. 6. Id) Re Conklin, 31, U. C. Q. B. 160. \e) Oorignam, v. Harbour Gomra.. Montreal, 5 L. C. R. 479. (/) Beg. v. Cuibush, L. R. 2 Q. B. 379. {g) lb. 382, per Cockbwrn, C. J. PRACTICE. 527 one Justice might have heard and determined the case, (a) It seems that, where a Statute directs Justices of a division to do a certain act, any Justice of the county may do it. So, also, where Justices in or near a place are empowered (b) Where a Statute empowers two Justices of the Peace to convict, a conviction by one only is. not sufficient, (c) The 32 & 33 Vic, c. 30, defines the duties of Justices of the Peace, out of Session, in relation to persons charged with indictable offences. When a person accused of felony, committed in Canada, is brought up before a Justice for examination, and dis- charged by the Justice, such discharge does not operate as a bar to the same person being again brought up be- fore another Justice, and committed upon the same charge, upon the same or different evidence, (d) On charges of indictable offences, the Justice must proceed in the manner pointed out by the 32 & 33 Vic, c 30, s. 29, et seq. : witnesses must be examined against the defendant, as prescribed by the Statute ; for even if a party is examined before the Magistrate, yet if the prosecutor does not appear, and no Witnesses are ex- amined, the commitment will be illegal. The plaintiff was arrested upon a warrant issued by the defendant, a Magistrate, and brought before him. Defendant ex- amined the plaintiff, but took no evidence, said he could not bail, and committed the plaintiff to gaol, on a war- rant reciting that he was charged before him, on the oath of W. H., with stealing. The plaintiff did not ask to have any hearing or investigation, or produce, or offer (a) JExpwrte TrowUy, 9 L. C. J. 169. See Ex parte Brodeur, 2 L. C. J. 97. (6) Reg. v. Vhetep., 3i Allen, 269. c) Ke Gram, 1 U. C. L. J. N. S. 302 ; 1 L. C. Gr. 189. \d) Beg. v. Morton, 19 U. C. C. P. 26, per Ctwynne, J. 528 CRIMINAL LAW OF CANADA. to procure, any evidence on his behalf, or to give bail to the charge : — Held, that the commitment, without appear- ance of the prosecutor, or examination of any witnesses, or of the plaintiff, according to the Statute, or any legal confession, was an act wholly without, or in excess of, the jurisdiction of the Magistrate, and illegal, (a) 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. (6) "Where a warrant was directed to the constable of Thorold, in the Niagara District, authorizing him to search the plaintiff's house, at the Township of Louth, in the same district, it not appearing that there was more than one person appointed to the office of constable of Thorold : — Held, that the direction to the Constable of Thorold, not naming him, to execute the warrant in the Township of Louth, was good; for, although a war- rant to a peace officer, by his name of office, gives him no authority out of the precincts of his jurisdiction, yet such authority may be expressly given on the face of the warrant, as in this case, (c) A warrant, though irregular, is a justification to the officer who executes it, because they are not to canvass the legality of the process they execute, or set up their privates Opinion against that of the Justice as to the good- ness of the warrant, (d) The warrant of a Justice is only prima facie not con- clusive evidence of its contents; as, for instance, a recital (a) Connors v. Darling, 23 U. C. Q. B. 541. (6) Reg. v. Duvaney, 1 Hannay, 571. (c) Jones v. Ross, 3 U. C. Q. B. 328. {d) Ovens v. Taylor, 19 U. C. C. P. 56, per Hagarty, J. ; Painter v. Liverpool Gas Co. 3 A. & E. 433. ^^ PRACTICE. 529 in the warrant that an information was laid prior to its issue is only prima facie evidence of that fact, (a) 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, (b) 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. A prisoner was convicted three several times on the same day for using the above 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) cus- tody thenceforward " : — Held, that 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; but, 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 contin- gency, were likewise uncertain, and the prisoner was, therefore, entitled to his discharge, (c) A Justice of the Peace, while sitting in discharge of his duty examining parties upon a criminal charge, has power to protect himself from insult, and to repress dis- (a) Friel v. Ferguson, 15 U. C C. P. 584. lb) Armstrong v. M'Gaffirey, 1 Hannay, 517. (c) Beg. v. Scott, 2U.O. L. J. N. S. 323. HH 530 CRIMINAL LAW OF CANADA. order, by committing for contempt any person who shall violently or indirectly interrupt his proceedings, or con- duct himself insultingly towards the Justice. "Where any person present behaves himself in such a manner as to obstruct the Justice's proceeding, he may, upon view of the improper behaviour, and without any formal pro- ceeding, order him at once into custody, and direct him to be withdrawn, so as to remove at once the obstruction to the administration of justice, or may commit him till 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 punishment, without adjudging him formally, after a summons, to appear for hearing to such punish- ment on account of his contempt, and a hearing of his defence, and making a minute of such sentence, (a) It has been doubted whether a Justice of the Peace, executing his duty in his own house, and not presiding in any Court, can legally punish for a contempt com- mitted there. (6) A commitment by a Justice for a contempt, if there be no recorded conviction, should shew 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 wa*y shew the fact of conviction, and the manner of it. (c) A warrant to a constable to commit for contempt, con- taining a direction to detain the party till he shall pay the costs of his apprehension and conveyance to gaol, is defective. The Statute 3 James 1, c. 10, only authorizes such ex- fa) Ke Clarke, 7 TJ. C. Q. B. 223. ... M ._ . lb, (6) M'Kenzir v. Mewbwrh, 6 U. C. Q. B. O. S. 486. (c) ■" PRACTICE. 531 penses to be levied of the offender's goods ; and if he could be imprisoned till he paid them, it would be neces- sary 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 com- mit 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, (a) Therefore, the Court, in adjudicating on a case of con- tempt, will not enter into the truth of the alleged facts constituting the contempt. A Justice's warrant of commitment for an indefinite time is bad. A commitment is also bad which directs the prisoner to be kept in custody until the costs are paid, without stating what is the amount of the costs. The reason is, that, hi such a case, the gaoler does not know what sum to accept as sufficient for the prisoner's release. (&) In respect to warrants committing prisoners on charges of offences committed, it has been held not necessary to state, on the face of them, that the Justice had informa- tion on oath, which could justify him in binding the de- fendant to keep the peace, (c) A warrant of commitment must state the place where the offence was committed, otherwise it will be defec- tive, (d) 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, (a) Ee Clarke, 7 V. C. Q. JhS. 223. . (6) Dawson v. Fraser, 7 IT. C. Q. B. 391. (e) lb. (d) Ee Babe, 3 V. C. P. E. 270. 532 CRIMINAL LAW OF CANADA. 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 exactly pursue that authority, (a) It is not necessary that, in the warrant of commitment, the offence should be described with the nicety and technical 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 cri- minal proceedings, either by indictment or otherwise, and that specific offence cannot be included under a general term, which compendiously covers a great va- riety of criminal offences, (b) As the term felony includes a number of crimes, rang- ing 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 provi- sions 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, (c) Defects in stating an offence in a warrant of commit- ment are not fatal, for there is not the same necessity foT 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 (a) Re Andersm, 11 IT. (J. C. P. 54. (6) Beg. v. Young ; The St. Alban's Said, 3, per Badgley, J. (e) lb. 3, per Badgley, J. PRACTICE. 533 for imprisonment appears on the evidence, the ends of justice are not allowed to be defeated by a want of pro- per form in the warrant, but the Court will rather see that the error is corrected, (.a) The Court has authority, in virtue of its inherent jurisdiction at common law, when a prisoner charged with felony is brought up on a Habeas Corpus, to look not merely at the commitment, but also at the deposi- tions ; and though the former be informal, yet, if the latter shew that a felony has been committed, and that there is a reasonable ground of charge against the pri- soner, he will be remanded, and not bailed, with a view to amending the warrant, as above mentioned, (b) It would seem that, where proceedings are taken by Habeas Corpus and Certiorari, under the 29 & 30 Vic, c. 45, the evidence may also be looked at on the return to the Certiorari, (c) 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 commitment 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 detention, (d) Before section 3 of this Statute, there was no way of enquiring into the truth of the facts, as stated in the re- turn. Section 3 provides that, in all cases coming within the Act, although the return to any writ of Habeas Corpus shall be good, and sufficient in law, it shall be lawful for (a) Re Anderion, 20 TJ. C. Q. B. 162, per Bobvnson, C. J. ; Bex v. Mwrks, 3 Ea. 157. (6) Ee Anderson, 11 IT. C. C. P. 56. (c) Beg. v. Levecque, 30 TJ. C. Q. B. 509. (d) Beg. v. Mosier, 4 U. C. P. K. 64. 534 CRIMINAL LAW OF CANADA. the Court, or for any Judge before whom such writ may be returnable, to proceed to examine into the truth of the facts set forth in such return, by affidavit or by affir- mation, where an affirmation is allowed by law. As to the writ of Certiorari, which is always issued along with the Habeas Corpus, in order to bring up the deposiiions and papers, Chief Justice Draper, in Ee Burley, (a) declared that it could not properly be issued in vacation, returnable before a Judge in Chambers, but that the writ must be returnable before the Court in Banc. But now the 29 & 30 Vic, c. 45, s. 5, authorizes a return of the writ " to any Judge in Chambers, or to the Court." ■ Before this Act, writs of Certiorari had, in practice, issued in vacation, by order of a Judge in Chambers, but, as the power to do so was doubted, the Act was passed to remove the doubt. (6) The prisoner may contradict the return to the writ of Habeas Corpus, by shewing 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, (c) 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, (d) Justices should not omit any part of a prescribed form of commitment, lest the part omitted be material and ren- der the warrant invalid, (e) ' When a Justice follows the words used by the Legis- lature, the Court will hold that he intended them in the same sense, but, if he uses other words, he ought to be la) 1 U. C. L. J. N. S. 43. lb) Beg. v. Mosier, 4 TJ. (}. P. R. 70, per J. Wilson, J. (c) Bailey's case, 3 E. & B. 614. {d) Beg. v. Boyle, 4 TJ. C. P. R. 256. (e) Re Beebe, 3 TJ. C. P. R. 373, per ffagarty, J. PRACTICE. 535 more precise, (a) It is, however, the duty of the Court to take care that, in all cases brought before them, Jus- tices shall have the full protection io which the law en- titles them. (6) 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 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. (c) The 32 & 33 Vic, c. 31, s. 86, provides that, after a case has been heard and determined, one Justice may issue all warrants of distress or commitment thereon. By 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 de- termined. It is, therefore, not necessary that a warrant of distress or commitment should be signed by two Jus- tices, though two are required to convict ; nor is it neces- sary that the Justice who commits should also have heard and determined, {d) 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 per- son sought to be committed has not been made a party to the application,, refuse a Mandamus to compel the issu- ing of the warrant, (e) The Con. Stats. TJ. C, c 126. 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 commit- tal Re Anderson, 11 U. C. C. P. 63. (6) Croukhite v. SommervUle, 3 TJ. C. Q. B. 131, per Robinson, C. J. (o) Beg. v. Boyle, 4 TJ. C. P. R. 256. (d) Re Crow, 1 TJ. 0. L. J. N. S. 302. le) Re Helaney v. Macnab, 21 TJ. C. C. P. 563. 536 CKIMINAL LAW OF CANADA. ment 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, (a) Where the defendant, a Justice of the Peace, issued his warrant, under Con. Stats. Can., c. 103, s. 67, to com- mit 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 warrant the amount of the costs of distress, commitment and conveyance to gaol : — 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 shew either a want or excess of jurisdiction, but the warrant was irregular in omitting these particulars, and there was, consequently, an irregular exercise of jurisdiction, (b) 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 pub- lished in the Gazette, and from its publication, only, the the Act ceased : — Held, that the defendants were justified in making the conviction and issuing the warrant, and [a) Ee Ddaney v. Maenab, 21 U. 0. C. P. 563. (6) Dickson v. Orabb, 24 U. C. Q. B. 494. PRACTICE. 537 could not be held liable by reason of the warrant being executed after the Act ceased, (a) < , The warrant of commitment should shew before whom the conviction was had. It lies on the party alleging that there is a good and valid conviction to sustain the commitment to produce the conviction, (b) Where a prisoner is in custody of a gaoler, under several warrants, the Magistrate cannot withdraw them, or any of them, from the gaoler's hands, because they are for his protection ; but the gaoler ought to know which is the operative warrant, otherwise he may not know whether he is to discharge the prisoner from custody at the end of the time specified in one or in the other, (c) A warrant ought to set forth the day and year wherein it was made, and it is safe, but perhaps not necessary, in the body of the warrant, to shew 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 shewn on the face of the warrant, for the omission may be shewn 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, (d) A final commitment, for want of sureties to keep the peace, must be in writing. Where, however, a person had been brought up before a Justice, on a charge of threatened assault, and was ordered, by the Justice, to find sureties to keep the peace, he offered bail, who (a) Clamp v. Lawrason, 6 XT. C. Q. B. 0. S. 319. See 31 Vie. c. 1, s. 7, thirty-fifthly, sixthly, and seventhly. (5) Re Craw, 1 U. 0. L. J. N. S. 302; 1 L. C. G. 189. (c) Re McKinnon, 2 XT. C. L. J. N. S. 329. (d) Beg. v. Bern, 4 XT. C. P. R. 292, per Draper, C. J. 538 CRIMINAL LAW OF CANADA. were rejected as not being householders, and, being thus prevented from immediately obtaining bail, he remained in custody of a police constable for three hours, during which time the Justice frequently visited him, to ascer- tain if he had found bail, and at night he was taken to the gaol, where he remained until the following morn- ing, when he was discharged on bail being procured : — Held, that this was not a final commitment for want of sureties, and that, consequently, it did not require a writ- ten warrant, for the detention was no longer than might be reasonably necessary for ascertaining whether the party could find some one who would become his surety, (a) The time allowed for this purpose must always de- pend on the circumstances of each case, (b) A commitment in default of sureties to keep the peace should shew the date on which the words were alleged to have been spoken, and contain a statement to the effect that complainant is apprehensive of bodily fear, (c) 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, (d) Sometimes, in cases of indictable offences, an inquisi- tion is taken by a Coroner, and the prisoner is committed for trial on the verdict of the Coroner's jury. The find- ing of a Coroner's inquest is equivalent to the finding of a Grand Jury, and a defendant may be prosecuted for murder or manslaughter upon an inquisition, which is the record of the finding of a jury sworn to enquire con- cerning the death of the deceased, super visum corporis. Such an inquisition amounts to an indictment, (e) (a) Lyndtm v. King, 6 U. C. Q. B. 0. S. 566. (6) lb. (c) Re Ross, 3 TJ. C. P. R. 301. {d) Reg. v. Vendette, 8 L. C. J. 284. («) Meg. v. Ingham, 5 B. & S. 257 ; 33 L. J. (Q. B. ) 183 ; Arch. Cr. Pldg. 116 - PRACTICE. 539 An inquest held by a Coroner on a Sunday, being a judicial act, is invalid, (a) A Coroner cannot take a second inquisition on the same body, the first inquisition being valid and subsisting. (b\ A Barrister cannot insist on being present at a Coro- ner's inquest, and upon examining and cross-examining the witnesses, (c) Imprisonment is imposed for different purposes. It may be tor prevention, as by a constable, to hinder a fray, or, by any person, to restrain a misdemeanor or prevent a felony, or for secwrity, in criminal cases, before investi- gation or trial, or until sureties for the peace are given ; or in coercion, to ensure the performance of some particu- lar act, es in cases of actual contempt, until the contempt be purged, and in cases of supposed contempt, as for not making a return of legal process, 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 pay- ment of pecuniary fines, or punitive, as in criminal sen- tences, (d) Where a party, undergoing an imprisonment on con- viction of felony, has been released on bail, in conse- quence, of the issue of a writ of error, and such writ of error is subsequently quashed, he may be re-imprisoned for the unexpired term of his sentence, on a warrant of a Judge of the Court of Queen's Bench, signed in Cham- bers, 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." (e) The period of a man's imprisonment must be certain, (o) Re Cooper, 6 TJ. C. L. J. N. S. 317. \b) Beg. v. White, 7~U. C. L. J. 219; 3 E. & E. 137; 29 L. J. (Q. B.) 257. (c) Agnew v. Steiaart, 21 TJ. C. Q. B. 396. (d) M'lnnes v. Davidson, 4 TJ. C. P. R. 189, per A. WiUon, J. ( e ) Ex parte Spel/man, 14 L. C. J. 281. 540 CRIMINAL LAW OF CANADA and not dependent on the will of the officer, who is char- ged with the imprisonment. Every judicial act is sup- posed 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, (a) An adjudication mentioned in the margin of the war- rant of commitment, where there are several warrants each for a distinct period of imprisonment, that the term of imprisonment mentioned in the second, and third warrants shall commence at the expiration of the time mentioned in the warrant 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 imprison- ment would nevertheless be quite sufficient, the only dif- ference being that all the warrants would be running at the same time, instead of counting consecutively, (b) A witness, who, on the usual application, has been or- dered to withdraw from the Court Room, is guilty of con- tempt, if after his examination he communicates facts dis- closed in evidence at the trial, to another witness not examined at the time of the disclosure, (c) In this case, the rule for attachment was discharged, the defen- dant swearing, in answer, that he did not enter the Court Eoom during the trial, till called as a witness, that he communicated the fact without any intention of in- fo; Beg. v. Scott, 2 U. C. L. J. N. S. 324, per J. WUam, J. (b) He Crow, 1 U. 0. L. J. N. S. 302 ; 1 I. C. G. 189. See 32 & 33 Vic, c. 31, 8. 63. (c) Beg. v. M'OorUll, 8 L. C. J. 282. PRACTICE. 541 fluencing the evidence to be given by the witness, or of committing a contempt of Court, and in utter ignor- ance of there being any impropriety in so doing. The af- fidavit, further, stated that the deponent was wholly unconscious of the possibility of his conduct being consi- dered a contempt. An attachment will not be granted against a witness, for not obeying a subpoena, 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, (a) A subpoena, to attend on the 10th September, and so from day to day, was served on the 11th September, and the witness attended for several days, and knew that the cause was not tried : — Held, that he was guilty of a con- tempt in subsequently absenting himself. Where a wit- ness accepted the conduct money, and went with the person who served him with the subpoena, and remained at the Court several days, an attachment 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 shewn to him, and he also swore that he attended the Court as a Juror, and left in consequence of ill health with the intention of returning, his absence appearing to be wilful. (6) 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, (c) (a) Mehmey v. Morrison, 1 Allen, 240. (b) Johnson v. WilUston, 2 Allen, 171. (cj Gilbert v. OampbeU, 1 Hannay, 258. 542 CRIMINAL LAW OF CANADA. But, if he had objected to the sum when tendered, it would have been an answer to the application, (a) It is not necessary to shew that the witness was called on his subpcena, if it is shewn by other satisfactory evi- dence that he did not attend, (b) An attempt, by a third person to prevent a suitor from laying his case before the Court, by threats of bringing him into disgrace and disrepute, is a contempt of Court and subjects the offender to a heavy fine, (c) A frivolous opposition, made to retard a judicial sale, is a contempt of Court, (d) 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 Chambers for a writ of Habea s Corpus is guilty of contempt, (e) 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 cri- minal jurisdiction conferred upon him by Con. Stats. L. C. c. 77, s. 72, has no power to pronounce such advo- cate in contempt for conduct of the above description, or ■ to impose a tine, and that the proceedings for such con- tempt could only be legally, and properly, taken in the full Court of Queen's Bench. (/) An order was made for the delivery of infant children by the father to the mother. On an application to com- (a) Gilbert v. Campbell, 1 Hannay, 258. (6) Meloney v. Morrison, 1 Allen, 240. (e) Re Unlock, 13 W. R. 278; 1 L. C. G. 25. (d) Thomas v. Pepm, 5 L. C. J. 76. (e) Beg. v. Ramsay, 11 L. C. J. 152; S. C. L. R. 3 P. C. App. 427. (/) lb- PRACTICE. 543 mit the father for a contempt, in not obeying this order, it appeared that, in his absence from home, the children had been removed from his honse, and taken to the United States by his son aged fifteen. They denied collusion, the son saying that he acted "without his father's know- ledge or consent, but the father took ho 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 : — Held, that he was not excused from obeying the order, and was in contempt, (a) Affidavits disingenuously drawn up, with a view of pre- senting inferences, and giving colour to the transactions, to which they refer, inconsistent with the whole truth, even through true as far as they go, should be read with suspicion and carry but little weight, (b) A contempt of Court being a criminal offence, no per- son can be punished for such, unless the specific offence charged against him be distinctly stated, and an opportu- nity given him of answering, (c) To contempts of Court committed by an 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, (d) 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 jus- tice generally in the Court, was discharged by the Judicial Committee of the Privy Council, as it substituted a pen- alty and mode of punishment, which was not the appro- fa) Beg. v. Allen, 5 IT. 0. P. E. 453. 6) lb. \c) Ke Pollwrd, L. E. 2 P. C. App. 106. (d) Be Wallace, L. It. 1 P. C. App. 295, per Ld. WesOmry. 544 CRIMINAL LAW OF CANADA. priate and fitting punishment for the qffence. The letter, though, a contempt of Court and punishable 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, whatever, 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 con- tempt of Court, or to inflict a professional punishment of indefinite suspension for an act not done professionally, and which, per se, did not render the party committing it unfit to remain a practitioner of the Court, (a) The power to punish for contempt is inherent in all Courts, and is a necessary condition of their exis- tence. In Canada, this power is not confined to con- tempt in the face of the Court, or to pending cases, or to resistance to process ; but it extends to the punishment of all contemptuous publications, calumniating or mis- representing its judicial opinions as a Court, or the opi- nion or order of any Judge of the Court, pronounced or made either in term, or in vacation, whether in Gham- bers, 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 integrity of the tribunal, or any of its members, {b) An attachment against a Sheriff", for not obeying a rule (a) Re Wallace, L. R. 1 P. C. App. 283 ; 1 Oldright, 654. (b) Reg. v. Ramsay, 11 L. C. J. 158. PRACTICE. 545 to bring in the body, cannot be granted in vacation by a single Judge at Chambers, (a) Where an attorney of this Court, practising in an in- ferior Court has charged, and the Judge has allowed, costs clearly not sanctioned by law, this Court will punish by fine and attachment, (b) Any Court of Eeeord has power to fine and imprison for contempts, committed in the face of the Court, (c) 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 contempla- tion of law, a record of such commitment, which may be drawn up when necessary, (d) The 32 & 33 Vic, c. 81, s. 65. et seq, as amended by the 33 Vic, c, 27, provides for appeals in cases of summary convictions. The Con. Stats. U. C. c 114, giving an appeal to the Sessions, on conviction of a person in any matter cogniz- able by a Justice of the Peace, not being a crime, seems to be still in force. The Act only applies to a matter " not being a crime." (e) The first Statute would seem to regulate appeals from any of the criminal Statutes of Canada. Under the latter, notice of appeal must be given within four days, after the making of the order or conviction complained against, and eight days before the first Court of General Sessions of the Peace, to be held not sooner than twelve days next, after the order decision or conviction. An appeal, under the former Statutes is subject to the following conditions. If the conviction or order he made more than twelve (a) Bex v. Sheriff, Niagara, Draper, 343. (8) Bex v. Whitehead, Taylor, 476. (c) Armstrong v. M'Caffrey, 1 Hannay, 517. (d) Ovens v. Taylor, 19 IT. C. C. P. S3, per Kagarty, J. («; Re Meyers. 23 TJ. C. Q. B. 613, per Draper, J. ; Butt v. Coaant, 1 B. & B. 574. II 546 CRIMINAL LAW OF CANADA. days, before the sittings of the Court, to which the appeal is given, such appeal shall be made to the then next sit- tings 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 prosecu- tor, 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. The words, within four days after conviction, exclude the day of conviction, {a) The person, appealing from a summary conviction by a Justice, must comply 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, (b) "W^here, 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 Ses- sions, to which the appeal is made, (c) It was held, under the former Statutes, that the form of recognizance to try an appeal, given in the schedule to the Con. Stats. Can. c. 103, p. 1130, was sufficient though {a) Scott v. Dickson, 1 U. C. P. R. 366. (6) Kent v. Olds, 7 U. C. L. J. 21. (c) lb. PRACTICE. 547 the condition differed in form from that provided for by c. 99, s. 117. (a) Before an appeal can be entertained, it is clearly in- cumbent on the appellant to shew his right to appeal, by proving compliance with the 33 Tic, c. 27, s. 1, ss. 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) A notice of appeal following the form given in the Con. Stats. Can. c. 103, p. 1130, and stating " that the for- mal conviction drawn up and returned to the Sessions^, is not sufficient to support the conviction, etc." is suffi- ciently particular to allow all objections being raised, which are apparent on the face of the conviction or order, (c) It appears to be the established practice for the Ses- sions to hear appeals on the first day, but there is no law compelling them to do so. (d) One D. M., having been on the 27th of August, 1862, convicted before Justices of the Peace, " for allowing card-playing at his inn, and other disorderly conduct during this year" was fined $20 and costs. On judg- ment being pronounced, he remarked that he would pay the fine, etc., but he " would see further about it. " On the 30th of August, notice of appeal was given to the prosecutor, and to one of the convicting Justices, and, on the 11th of September, the appeal came on at the Quarter Sessions, when the Court decided that the right to ap- peal was waived and lost by reason of the plaintiff, fo) Ke Wilson, 23 XT. C. Q. B. 301. (6) Ke Meyers, 23 XT. C. Q. B. 611. (c) Helps and Eno, 9 XT. C. L. J. 302. (d) Ke Meyers, 23 XT. C. Q. B. 614, per Draper, C. J. 548 CRIMINAL LAW OP CANADA. having paid the fine and costs. The Court, 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 appeal to the convicting Justice, nor provide for a stay •of the leA T y, it might be reasonably inferred that he paid the fine and costs, to prevent the distress and sale, which might have taken place, although he had at the moment of conviction, given the most formal notice of appeal, (a) The Court should rather lean to the hearing of appeals than to dismissing them on technical grounds, (b) An appeal from a conviction for selling liquor without license, contrary to the (Out.) 32 Vic, c. 32, must be tried by the chairman of the G-eneral Sessions without a jury, (c) It has been held that, on appeals from summary con- victions, under Con. Stats Can., c. 91, s. 37, to the Court of General Sessions of the Peace, the appellant could not, of right, demand that a jury be empanelled to try the ap- peal, and that it was discretionary with the Court, under c. 99, ss. 117 and 119, to try the appeal or to grant a jury, (d) A trial by jury was warranted by the 13 & 14 Vic, c. 54. (e) It would appear that, as the law now stands, it is dis- cretionary with the Court to grant a jury at the request of either appellant or respondent. But, if a jury be not so demanded, it is imperative on the Court to try the ap- peal, and they shall be the absolute Judges, as well of (a) Re Justices, York, 13 U. C. C. P. 159. (b) lb. 162, per Draper, C. J. ; Sex v. Justices, Norfolk, 5 B. & A. 992. (c) See s. 36 ; Re Brown, 8 C. L. J: N. S. 81. (d) Gikhen and Eaton, 13 L. C. R. 471 ; 10 TJ. <\ L. J. 81. le) Hespeler and Shaw, 16 U. C. Q. B. 104. PRACTICE. 549 the fact as of the law, in respect to the conviction or de- cision appealed from, (a) When the appeal is under the Con. Stats. TJ. 0., c. 114, the Court may, at the request of either party, empannel a jury. (6) The Court of Quarter Sessions has power to adjourn the hearing of a part-heard appeal to a subsequent Ses- sions, (c) The 33 Vic, c. 27, s. 1, ss. 3, declares that the Court shalj have power, if necessary, from time to time, by order en- dorsed 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 continu- ance of the same sessions or sittings, (d) It would seem, however, that no recent Statute confers power to adjourn the hearing of an appeal, under the Con. Stats. U. C, c. 114 Under this Statute there is n& power of adjournment, and the appeal must be heard at the Court of Quarter Sessions appealed to, for the Act pro- vides that the Court shall, at such sessions, hear and de- termine the matter of such appeal, (e) Where, therefore* such Court, after proof of entry and notice of the appeal, adjourned the further hearing, by order, until the next sittings, and then made an order quashing the conviction, the orders were quashed, (f) So it is quite clear from the language of this Statute, that the costs of an appeal from a Justice's conviction, as well as the appeal itself, must be determined at the sessions appealed to. (g) An appeal, dismissed for want of prosecution, may, at (a) See 32 & 33 Vic, c. 31, o. 66. See also 33 Vic'., c. 27, s. 1 ss. 3. (6) See s. 3. (c) Meg. v. Guardians, Cam. Union, 7 IT. C. L. J. 331. id) Ramisley v. Hutchinson, L. R. 6 Q. B. 305. (e) Re McCtmber, 26 TJ. C. Q. B. 516, following Rig. v. Baton, 11 Q. B. 379. (/) lb. (g) Beg. v. Murray, 27 XT. C. Q. B. 134. 550 CRIMINAL LAW OF CANADA. the instance of the appellant, and satisfactorily account- ing for his non-appearance, be reinstated, (a) The 4 Wm. 4, c. 4. ss. 17 and 18, were, in substance, the same as the Con Stats. U. 0., c. 114. On an appeal to the Sessions, under the 4 Wm. 4, c. 4, evidence, differ- ing from, or additional to, that produced before the con- victing Justice, might have been' received and gone to the jury, although the general principle of appeals is, that a judgment is to be rendered upon the same facts that were before the inferior tribunal. It was held to be the intention of the Legislature, in passing the above Statute, to allow an open trial, by a jury, upon such evidence as might be adduced there. (6) The 32 & 33 Vic, c. 31. s. 66, now provides that no ■witnesses shall be examined who were not examined be- fore the Justice, on the hearing of the case, and this whether the appeal is tried by the Court or a jury. The Con. Stats. U. 0. c. 114, contains no analogous provision. When a prisoner had been convicted before Justices of the Peace, under the Petty Trespass Act, and fined, and on appeal to the Quarter Sessions, the Justices there ad- mitted more evidence than had been heard" on the con- viction, and this fresh evidence adduced, evidently, influ- enced the verdict of the jury at the Sessions, and the accused was acquitted ; but, on receiving the opinion of the Attorney-General that the additional evidence should not have been admitted, they confirmed the conviction and ordered it to be recorded, but took no notice of the acquittal. The Court made absolute a rule for a manda- mus, compelling them to enter the acquittal, (c) Where a rule nisi, for a mandamus to the Sessions, commanding them to hear an appeal, called upon the. (a) Ke Smith, 10 U. C. L. J. 20. (6) Sex v. Justices of Batkvrst, fl IT. O. Q. B. 0. S. 74. (c) Rex v. Justices, Bathurst, 4 U. C. Q. B. O. P. 340. PRACTICE. 551 Court of Quarter Sessions, in and for the United Counties, etc., instead of the Justiees 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 enlargement waived the objection, and this seems to have been acquiesced in by counsel and by the Court, (a) In fact, it seems that, in all cases, formal and technical objections are waived by an en- largement, (b) 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 re- quest, the case was postponed until the following day, and the respondent, then objected to the jurisdiction, as it was not shewn 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 post- pone, (c) 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 ap- peal was not afterwards prosecuted or entered, if it has net been abandoned according to law, to order the pay- ment of reasonable costs, by the party giving the notice. There is nothing in the Con. Stats. TJ. C, c. 114, to au- thorize an order that a defendant, who has appealed and been acquitted by a jury, upon his trial, shall 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, (a) Re Justices, York, 13 TJ. C. C. P. 159. (6) Beg. t. Allen, 5 TJ. C. P. R. 453-8. (c Re Meyers, 23 TJ. C. Q. B. 611. 552 CRIMINAL LAW OF CANADA. an indictment was preferred for non-payment thereof, and, on this indictment, the defendant was found guilty ; — Held, that the indictment could. not be supported, either at common law or under the Statute, (a) The Court will not give costs, on adjourning an ap- peal, unless the objection is made at the time of the ad- journment, (b) 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 judgment is pronounced, (c) 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 required by the Act, is regu- lar, (df Where a rule for amendment is opposed, the costs must be paid by the successful party, (e) "Where one of the Justices, before whom a person was convicted 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. (/) Under the Rev. Stat., c. 95, an appeal under the River Fisheries Act, must be made to the Sessions, (g) The 32 & 33 Vic, c. 30, s. 41, empowers the Justice be- fore whom a prisoner is charged with an indictable offence, to remand, from time to time, for such period as (a) Beg. v. Orr, 12 TT. 0. Q. B. 57. (6) Re M' Cumber, 26 U. C. Q. B. 516. (c) Budenberg and Roberts, L. R. 2 C. P. 292. (d) Re Delaney v. MadMab,<21 V. 0. C. P. 563. h) M'Kay v. M'Kay, 2 Thomson, 75. if) M'Kay v. M'Kay, 2 Thomson, 75. (g) Gough v. Morton, 2 Thomson, %0. PRACTICE. 553 may be' reasonable, not exceeding eight clear days at any one time. S. 42 authorizes a verbal remand where the time does not exceed three clear days. A remand for an unreasonable time would be void; (a) It seems doubtful whether a Judge sitting in Cham- bers has power, on an application of a prisoner for his discharge on a bad warrant, to remand him. (6) On discharging a jury charged with a prisoner, because they are unable to agree, the Court has power, and it is the duty of the Judge, to remand the prisoner to gaol until delivered in due course of law, or to the next ses- sions of the Court, fixing or not fixing the day, as the case may be.(c) When prisoners are remanded to prison, after the dis- agreement 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 com- mitment for the offence originally charged, (d) It would seem that the Con. Stats. TJ. C, c. 112, as to the reservation of points of law in criminal cases, only cpnfers on the Sessions authority to state a case for the opinion of the Superior Court, where the original hearing and conviction is, at the Sessions, and that, when a sum- mary conviction is appealed to the Sessions, there is no power to reserve a case on such appeal, (e) . The appellant, having been convicted before Justices of having pretended to be a physician, contrary to 29 Vic, c. 34, s. 34, appealed to the Quarter Sessions and was found guilty. The chairman having reserved cer- tain questions for the opinion of the Court, it was held that the Sessions had no power to reserve a case for the SI («) a) Connors v. Darling, 23 TJ. C. Q. B. 547-51, per Hagarty, J. [b\ Be Carmichael, 10 TJ. C. L. J. 325. (c) Ex parte Blossom, 10 L. C. J. 32, per Monk, J. (d) lb. 41, per Badgley, J. (e) Pomeroy and Wilson, 26 TJ. C. Q. B. 45. 554 CRIMINAL LAW OF CANADA. opinion of the Court, under the Statute, for the appellant was not a person " convicted of treason, felony, or misde- meanor," within the Statute, nor would the case fall within ss. 3 or 4 of the Statute, (a) Prior to the passing' of the 20 Vic, c. 61, Oon Stats. U. C, c. 113, it was doubtful whether, after the affirmance of a conviction : by the Sessions, a further appeal lay to either of the Superior Courts of common law. (b) The 20 Vic, c. 61, has been repealed, (c) and it would seem that the law now stands as before the passing of this Statute. The Court would not hear an appeal under this Sta- tute, unless' its provisions, and the rules of Court pre- scribing the preliminary steps, were strictly complied with, (d) In this case, the rule or order appealed from was made before Hilary Term, 1865. The case was not transmitted to the Superior Court, pursuant to s. 2, on or before the first day of the term next after the making of the rule or order appealed from. Second, the notice required by the first rule of Court, dated 13th February, 1858, was not transmitted with the papers. Third, the third rule was not complied with, as the papers sent to the Supe- rior Court shewed that, on a motion for a new trial, the defendants were to appear on the 27th December, and were bailed to appear for sentence ; but it was not shewn whether they appeared for sentence, or were sentenced, or were in prison, or discharged on bail, to appear and receive judgment. Fourth, nor was the fourth rule ob- served, as the papers therein referred to were not deli- fa) Pomeroy and Wilson, 26 IT- C. Q. B. 45 ; See also Yearke v. Bingleman, 28 IT. C. Q. B. 551. (6) Reg. v. Watson, 7 IT. C. C. P. 495 ; Victoria P. R. Go. v. Simmons, 15 U. C. Q. B. 303: Reg. v. Hussey, 2 U. C. P. R. 194. (c) See 32 & 33 Vic, c. 36, Sched. B. (d) Reg. v. Hatch, 15 U. C. C. P. 461. PRACTICE. 555 vered to the Clerk of this Court, until after the first day of the sitting of the Court, in Easter Term, 1865. For these reasons, the Court declined to hear the appeal. The Judge of the ^Sessions of the Peace, being vested with all the powers of two Justices of the Peace, by c, 102, s. 1, and c. 103, s. 82, of the Con. Stats. Can., and by c. 102, s. 3, of the Con. Stats, of Lower Canada, no appeal lies from a conviction rendered by him under Con. Stat. L. C, c. 6. (a) The 29 & 30 Vic.,, c. 45, was passed to extend the re- medy, by Habeas Corpus, and enforce obedience there- unto, and prevent delays in the execution thereof. In doubtful cases, the Court always inclines in favour of liberty, (b) It, therefore, is the duty of a Judge hearing an application for discharge, under a writ of Habeas Cor- pus, when a prisoner is restrained of his liberty, under a Statute, to discharge him, unless satisfied, by unequivocal words in the Statute, that the imprisonment is warranted by the Statute, (c) It is also the duty of the Judge, when doubting the sufficiency of the warrant of commitment, to discharge the prisoner, (d) It would seem that a Judge, in Chambers, has, at com- mon law, power to issue writs of Habeas Corpus, in cases not within the 31 Car. 2, c. 2. (e) 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 shew cause why a writ of Habeas Corpus should not issue, instead of at once ordering the issue of the writ, (f) (a) Ex parte Slack, 7 L. C . J. 6. (b) Beg. v. Boyh, 4 U. C. P. E. 264, per Morrison, J. (e) Re Slater, 9 TJ. C. L. J. 21. (d) Re Beebe, 3 U. C. P. R. 270. (e ) Re M'Kirmon, 2 TJ. C. L. J. N. S. 327, per A. Wilson, J. (f) Re Boss, 3 U. G. P. R. 301. 556 CRIMINAL LAW OF CANADA. A Judge, sitting in Banc during term, in the Practice Court, has no authority, under Con. Stats. U. C, c. 10, s. 9, to grant a rule nisi for a writ of Habeas Corpu* ad subjiciendum ; for, until the rule is moved, there is no cause or business depending, in relation to the prisoner's conviction or commitment. "Where such rule had been issued there, returnable in full Court, it was discharged on this preliminary objection, (a) At common law, the Judges of the Superior Courts of common law for Ontario have power to direct the issue of writs of Habeas Corpus ad subjiciendum, in vacation, returnable either in term or vacation, (b) The 29 & 30 Vic, c. 45, s. 1, confers full authority on any of the Judges of either of the Superior Courts of law or equity in Ontario to award, in vacation time, a writ of Habeas Corpus ad subjiciendum, under the Seal of the Court wherein the application shall be made. "Where the proper remedy is by writ of error, a Habeas Corpus will not be granted, (c) 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 respondendum, (d) As the Imp. Stat. 56 Geo. 3, c. 100, is not in force in this country, it is, at least, doubtful whether a Judge, in Chambers, has 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 (a) Beg. v. Smith, 24 TJ. C. Q. B. 480. (b) Ee Hawkins. 3 U. C. P. E. 239. (c) Ee M'Kitmm, 2 U. C. L. J. N. S. 327. (d) Barber v. O'Hara, 8 L. 0. E. 216. PRACTICE. 557 materials, a Judge, sitting in Chambers, refused to dis- charge the prisoner, (a) The 29 & 30 Vic, c, 45, expressly excepts persons im- prisoned for debt, or by process in any civil suit. It would seem, therefore, that the writ cannot now be obtained in the case of a person confined under a capias ad respondendum, in a civil suit. A Habeas Corpus will not be granted to bring up a pri- soner under sentence of conviction at the Sessions for larceny. (6) A Judge has no jurisdiction, on a writ of Habeas Corpus, to liberate a person found guilty of simple larceny, and sentenced to be imprisoned in the Penitentiary for life, although it may appear that the sentence is illegal. The Judge to whom an application for such .writ is made, having no jurisdiction to reverse the sentence, must ab- stain from giving an opinion upon the legality or illega- lity of such sentence, (c) 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, (d) At common law, a writ of Habeas Corpus, ad testifican- dum, may be issued to the "Warden of the Provincial Penitentiary, to bring a convict for life before a Court of Oyer and Terminer, and generalgaol 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, (e) Under the 4 & 5 Vic, c. 24, s. 11, a Court of Oyer and (a) Re Bigger, 10 U. C. L. J. 329 ; Re Hawkins, 9 IT. C. L. J. 298, doubted. See, however, Re Rurwiman v. Armstrong, 2 TJ. C. L. J. N. S. 165. (6) Beg. v. Crabbe, 11 TJ. C. Q. B. 447. (c) Ex parte Plante, 6 L. C. R. 106. (d) Beg. v. Boyle, 4 V. C. P. R. 256. (e) Beg. v. Townsend, 3 IT. 0. L, J. 134. 558 CRIMINAL LAW OF CANADA. Terminer 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, (a) 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 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, (b) A prisoner is not entitled to a Habeas Corpus, under the 31 Car. 2, c. 2, unless there be a " request, in writ- ing, by him, or any one on his behalf, attested and sub- scribed by two witnesses, who were present at the deli- very of the same." (c) As a general rule, the affidavit on which an order for a writ of Habeas Corpus is moved should be made by the prisoner himself, or some reason, such as coercion, shewn for his not making it. The affidavit should be entitled, in one or other of the Superior Courts, though it is discretionary with the Judge to whom the application is made, to receive an affidavit of a different kind, or one not sworn by the prisoner himself! (d) (a) Beg. v. Tcmmsend, 3 U. C. L. J. 184. (6) Beg. v. Phipps, 4 TJ. C. L. J. 160. (c) Re Carmehad, 1 TJ. C. L. J. N. S. 243. \d) Re Boss, $ TJ. C. P. R. 301 ; 10 TJ. C. L. J. 133. PRACTICE. 559 It is sufficient to return to a writ of Habeas Corpus a copy of the warrant under which the prisoner is detained, and not the original, (a) 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, (b) Where a prisoner is brought up upon a writ of Habeas ' Corpus, and the return shews a commitment bad upon the face of it, the Court will not, on the suggestion that the conviction is good, adjourn the case, for the purpose of having the conviction brought up, and amending the commitment by it. (c) "Where a prisoner is, under a writ of Habeas Corpus, discharged from close custody, on the ground that the warrant of commitment charges no offence, he is not, under 31 Oar., 2, 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 first arrest, (d) 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, (e) 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. (/) (a) Re Boss, 3 V. C. P. R. 301: 10 U. C. L. J. 133. (5) Re Carmichael, 10 U. C. L. J. 325. (c) Re Timson, L. R. 5. Ex. 267. (d) Re John Cwrmichael, 1 U. C. L. J. N- S. 243. (e) Bex v. Fitzgerald, 3 U. C. Q. B. 0. S. 300; (/) Re Boyle, 4 TT-.C-IYR. 261, per Morrison, J. 560 CRIMINAL LAW OF CANADA. Although Justices of the Peace, exercising summary jurisdiction, are the sole Judges of the weight of evidence given before them, and no other of the Queen's Courts will examine whether they have formed the right con- clusion 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. (a) "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 will enquire whether the case was within their jurisdiction or not. Thus, where the nature of the charge is doubtful, and, in the course of the enquiry, 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. (6) "Where a fact is to be proved which is the very essence of the enquiry, and there is evidence before the Justices on the one side and the other, the Court will not, although they may think that, upon the evidence, the Justices have come to a wrong conclusion, review their decision. In all cases in which Justices have to decide a colla- teral 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 de- cision, 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 (a) (6) Re M'Kmrum, 2 TJ.'C. L. J. N. S. 327-8, per A. Wilson, J. PRACTICE. 561 conflict of evidence, it is contrary to principle and prac- tice to interfere, (a) The Court of Queen's Bench cannot review thei de- cision of an inferior tribunal, on a matter, within its jurisdiction, and on which it has heard evidence and arrived at a conclusion. Where a charge was preferred to a Court of Quarter Sessions, under 1 Vm, & M., c. 21, s. 6, against a Clerk of the Peace, for a misdemeanor in his office, and evidence was taken, and the Court decided that the charges were proved, and dismissed the Clerk of the Peace from his office, and appointed another person in his place : — field, on a quo warranto information against the person so ap- pointed, that the sufficiency of the evidence was a ques- tion entirely for the Court of Quarter Sessions, and the decision of that Court could not be reviewed by the Court of Queen's Bench, (b) Except when applied for, on behalf of the Crown, a certiorari is not a writ of course, (c). The granting or re- fusing of the writ rests in the discretion of the Court, and, where the proceedings sought to be removed were completely spent, and no benefit would arise from re- opening them, the order was refused, (d) The Court must be satisfied on affidavits that there is sufficient 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. 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 proaeed, in a summary way, in such case, he is en- titled to a certiorari ebc debito justitice, because he has no la) Ex parte Vaughan, L. E. 2 Q. B. 116, per Cockbwrn, C. J. 6) Beg. v. Russell, 5 U. C. L. J. N. S. 129 ; 17 W. R. 402. \c) Beg. v. Justices, Surrey, L. B. 5 Q. B. 466. (d) Beg. v. Ld. Newbormigh, L. E. 4 Q. B. 585. 562 CRIMINAL LAW OF CANADA. other remedy, being bound by the judgment of the in- ferior jurisdiction, (a) 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 justitice ; but, where the applicant is not a party grieved, who substantially 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 it thinks that no good would be done to the public, it is not bound to grant it, at the instance of such a person, (bj "When a Statute gives an appeal, this does not take- away the right to a certiorari. The right can only be taken away by express words ; and, for this reason, the power given to a Judge by the (N. B.) Eev Stat., c. 161, s. 32, 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 conviction, (c) Many authorities establish that a writ of certiorari may, in some cases, be granted, though expressly taken away by Statute, (d) Thus, the writ may be granted,, notwithstanding 31 Vic, c. 42, s. 21, provided there be ground for the belief that the conviction was had without proof, where the Act provides that it shall be on proof to the Satisfaction of the Justice, (e) So a writ of certiorari will be granted to remove a con- viction to the Superior Court, notwithstanding it is taken away by the Con. Stats. L. C, c. 6, s. 49, under which the conviction was had. (/) (a) See Beg. v. South Holland D. C. 8 A & E. 429. (b) Beg. v. Justices, Surrey, L. R 5 Q. B. 472-3. (c) Ex parte Montgovnnry, 3 Allen, 149. See also Bex v. Gingras S L C A. 560. (d) Beg. v. Haggard, 30 U. C. Q. B. 156. per Bichards, C. J. (e) Ex parte Morrison,, 13 L. C. J. 295. (/) Ex parte Church, 14 L. C. K. 318. See also ex parte LcUonde, 15 L C J. 251. PRACTICE. 563 If a Statute declares that a certiorari shall not issue, it, nevertheless, may issue where there is a plain excess of jurisdiction, for the prohibition in the Statute would not be held to apply when the Justices or Sessions had inter- fered in a matter not within their jurisdiction, (a) So it lies where there is an absence of jurisdiction in the con- victing Justice, or a conviction, on its face, defective in substance, (b) An enactment that proceedings of an inferior Court shall be final, does not take away the jurisdiction of the Supreme Court to review the proceedings, under a writ of certiorari, (c) There can be no certiorari after judgment, and the only course then is a writ of error, (d) Nor can an indictment be removed, by certiorari, from the Court of General Ses- sions to the Queen's Bench, after verdict and before judg- ment, even by the consent of parties, for their consent will not authorize an unprecedented course in a criminal case, (e) After verdict of acquittal for nuisance, on an indict- ment tried at the Assizes, a motion was made, witb the concurrence of the Attorney-G-eneral, for a certiorari, to remove the indictment, with a view to obtain anew trial, no ground being shewn by affidavit : — Held, that there was nothing to warrant the ordering of a certiorari (/) 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 : — Held, that a certiorari might issue to re- move the order quashing the conviction, (g) (a) Sespeler and Shaw, 16 TJ. C. Q. B. 104. (6) Be Watts, 5 TJ. C. P. B. 267. (c) Barnahy v. Gardiner, 1 James, 306. (d) Beg. v. Grdbbe, 11 TJ. C. Q. B. 447 ; Meg. v. Smith, 10 TJ. C. Q. B. 99. (e) Beg. v. Lafierty, 9 U. C. Q B. 306. » (/) Reg. v. Gzowski, 14'TJ. C. Q. B. 591. (ff) Be Doyle, 4 TJ. C. P. B. 32. ■564 CRIMINAL LAW OF CANADA. Where a conviction, under the 8 Vic, c. 45, is appealed to the Sessions, and tried before a jury, and affirmed on the appeal, a certiorari will lie not to examine the finding •of the jury on the facts, or whether they had before them sufficient evidence of the offence, but to determine whether the Justices had exceeded their jurisdiction in ■convicting for an offence, which was not within the Sta- tute, (a) A certiorari will lie for excess of jurisdic- tion, and illegality in the proceedings of Commissioners appointed by the G-overnor of the Province, under the Ordinance, 31 G-eo. 3, c. 6, for the building and repairing of churches, (b) But a party, imprisoned for contempt of the Court of Sessions, cannot have his conviction re- moved by certiorari, (c) In a prosecution, under the Act 5 Wm. 4, c. 2, for non- performance of Statute labour, 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 af- fidavits, in answer to an application for a certiorari to remove the proceedings in such a prosecution, stated that the party had been duly notified, the Court made the rule absolute, in order to ascertain what the notice really was, the appellant having in his affidavit denied notice, (d) Mere irregularities, in the proceedings of the Superior Court, are not sufficient to justify the granting of a writ of certiorari ; but there must be proof that actual injustice has been done, (e) Where a defendant applies for a cer- tiorari to remove an indictment, he must shew that it is probable the case will not be fairly or satisfactorily tried in the Court below, and if difficulties in point of law form (a) Hespder and Shaw, 16 U. C. Q. B. 104. lb) Bex v. Oingras, S. L. C. A. 560. (c) Ex parte Failures de St. Heal, S. L. C. A. 593. (d) Ex parte Ferguson, 1 Allen, 663. («) Ex parte Gawthier, 3 Tj. C. E. 498. PRACTICE. 565 the ground of the application, they must be specifically stated, and no mere general statement will suffice, (a) Where the defendant,, having been convicted on the information of a toll gate keeper of evading toll, appealed to the Sessions, wljere he was tried before a jury, and acquitted, this Court refused a writ of certiorari to re- move the proceedings, the effect of which would be to put him a second time on trial. (6) It would seem that after an acquittal at the Sessions, the writ cannot be granted ; at all events, at the instance of a private prosecu- tor.^) 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, (d) Two persons were convicted of selling intoxicating liquors without licence, in a township, where the sale of intoxicating liquors, and the issue of licences authorising the sale, were prohibited under the " Temperance Act of 1864," 27 & 28 Vic, c. 18. A memorandum of the con- viction simply stating it to have been a conviction for selling liquor, without a licence was given by the Jus- tices 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 licence is prohibited by a by-law, it is still an offence under (Ont), 32 Vic, c. 32, to sell liquor without a licence, and even if the conviction had been under the Temperance Act of 1864, and not under (Ont.) 32 Vic, c. 32, it was amendable under 29 & 30 Vic, c 50. (e) But, as neither the (Ont) 32 Vic, c 32, or the 27 & 28; Vic, c. 18, authorize an appeal to anj|Court, it would (a) Re KeUett, 2 XT. C. P. R. 102 ; Beg. «. Jowle, 5 A. & E. 539 ; Reg. v. Josephs, 8 Dowl. P. C. 128. (6) Re Stewart, 2 L. C. G. 24. \c) lb. See Beg. v. Laffertry, 9 U. C. Q. B. 306. Id) Ex parte Vaillancowrt, 16 L. C. R. 227. [ £ i (e) Re Watts, 5 XT. C. P. R. 267. 566 CRIMINAL LAW OF CANADA. defeat their objects to grant a certiorari to remove a con- viction for the purpose of quashing it, in respect of a matter, not appearing upon the conviction itself to be a defect rendering it bad, and which, if the appeal had not been taken away would have been rectified on an appeal, (a) Proceedings had under the 31 Vic, c. 42, s. 18, are of such a character, as to be susceptible -of being removed, by certiorari, (b) An Ecclesiastical decree of the Archbishop of Quebec, for the erection of a parish is not a civil proceeding, subject to revision by certiorari, so long as no proceed- ingshave been taken for obtaining a ratification of such decree by the civil authorities, (c) The powers exercised by commissioners, under the 2 Vic, c. 29, s. 4, as to erec- tion of parishes are not judicial powers, subject to revi- sion by certiorari (d) 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. '(e) A certiorari only substitutes the Superior Court for, the Court below, and, whatever ought to have been done: there, had the case remained there, it must be the duty of Superior Court to do, when the case is removed, (f) An application for a certiorari should be made at the first term, after the conviction, but where the Justice had no jurisdiction in the matter, a certiorari was granted, though a term had elapsed (g) Where an appeal from: a summary convictm^ is made to a Judge of this Court, (a) Re Watts, 5 IT. C. P. R. 270, per Chirynne, J. <6j Ex -parte Morrison, 13 L. C. J. 295 (c) Ex parte Guay, 2 L. C. R. 292. id) Ex parte Lecours, 3 L. C. R. 123. (e) Ex parte Gunvmmg, 3 L. C. R. 110. i f) Beg. v. Wightman, 29 TJ. C. Q. B. 214, per Morrison, J. ig) Ex parte Mulhern, 4 Allen 259. PRACTICE. 567 under the (N.B.) 1 Eev. Stat. c. 161, s. 32, which, provides that an appeal from a summary conviction shall be made s i in the same manner as from a judgment in a civil suit, (a) and refused, by him, a subsequent application to this Court 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 con- viction appeared to . be sufficient on the merits, (b) An A application for. a .certiorari to remove proceedings under the Highway Act, 13 Vic, c. 4, though no time is limited, bylaw, should be made without unreasonable delay.. But a delay of one term isnot unreasonable, (c) , .TJ ft£ ,»' aw'A t,v,"i (,dJ,jRex. v. \ Jmtf^^ Ifewmftl^, Draper 121. .„»,'•■- .8.»\(tS> fe) Bex v. CHiitlas, Eob. Dig. 74. unix fi ,»s y,\ (f) Ex parte Boyer, 2 L. C. J. 188-9; ex parte Prefantaine, ib. 202. a,;\ {-,\ 568 CKIMINAL LAW OF CANADA. parties therein concerned, may shew 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 1 the Sessions; to remove the conviction affirmed by the Ses- sions. The caption of the order made by the Sessions, affirming the conviction of the defendant, stated it to have been made by the Chairman, and J. K. and "W". Gr. T Justices. On the ex parte application for the certiorari, 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, 1 that the notice required by the Statute should have been given to the Chairman of the Sessions, and his associates or any two of them, as required by the Statute, and the certiorari being obtained without such notice was set aside, (a) 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, that such a proceeding is not notice to the Justices, and, in such a case, the Court have quashed the certiorari upon motion to 1 do so. (b) ' 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 shewn to a rule nisi, to quash the conviction, (c) (a) Beg. v. ElUs, 25 U. C. Q. B. 324. (b) lb. 326, per Morrison, J. ; Bex v. Mcholle, 5 T. E. 281 n. : Bex v. Battis- laim, 5Dowl. P. C. 539. (c) Beg. v: Petermtm, 23 tT. C. Q. B. 516. PRACTICE. 569 In Ellis' case, notice was given to the convicting Jus- tices, but not to the Chairman of the Sessions, or his as- sociates ; and, in Peterman's case, notice was given to the Chairman of the Sessions, but not to the convicting Jus- tice. It would seem therefore that notice to both parties is necessary. 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) No notice is necessary, 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 assign- ing any grounds, (b) The cases before referred to (c) apply only, when the writ is obtained by the defendant with the view of quash- ing the conviction, (d) An application to a Judge, in Chambers, for a certior- ari; should be by a summons or rule nisi, in the first in- stance, (e) Where a rule nisi, for a certiorari, is discharged, because the affidavits are improperly entitled, the application may be renewed on amended affidavits. (/) Where a certiorari is applied for, to remove a convic- tion with a view to quashing it, before the return to thfe 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 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 1 on a tech- fa) Ke Taylor v. Davy, 1 TJ. C. P. B. 346. (I) Beg. v. Murray, 27 V. U. Q. B. 134. (c) Beg. v. ElUs, 25 TJ. C. Q. B. 324; Beg. v. Petemdn, 23 U. C. Q. B. 516. (&) Beg. v. Murray, supra. (e) Ex parte Howell, 1 Allen, 584. ( f ) Ex parte Bustin, 2 Allen, 211. 570 CRIMINAL LAW OF CANADA. nica! objection, without costs, and, under tke circum- stances of the case, an amendment was not .allowed.! (a) Where a rule nisi was obtained, to shew cause why a certiorari 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 shewn 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." (6) On applications to quash convictions, . the convicting Justice must be made a party to the rule . (c) The writ of certiorari, issuing under the provisions of the, 12 Vic, c. 41, must be addressed to the Justice ofithe Peace making the conviction, and not to the bailiff effect- ing the service of such writ, and such writ of certiorari addressed to the bailiff is a nullity, and will be super- seded, (d) So a writ of certiorari, addressed tothe super- intendent of police, (and which ought to have been ad- dressed 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 mo- tion to that effect, to rectify the error in the address of the first writ, (e) ..>■•■ Under the 12 Vic, c. 41, the original writ, and not a cOpy, must be served on the* convicting Justice,; but it is, ,,. not necessary ;to serve a copy of the writ upon the com- plainant. (/). (a) Beg, v. Mortfon, 27 TJ. C. Q. B. 132. (6) Re 'Barrett, 28 '"IT. C. Q. B. 559. (c) Reg. v. Law, 27 V. C. Q. B. 260. (d) Beg. v. Barbeau, 1 L. C. R. 320. (e) Piton and Lemome, 16 L. C. R. 316. ( / ) Ex parte Mliau, 4 L. C. R. 129. PRACTICE. 571 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 had been brought up by Habeas Corpus and certiorari, under the 29 & 30 Vic, c. 45, 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 cer- tiorari, issued at the common law, so long as it was regu- larly 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 conviction by certiorari, (d) , The defendant pannot, by motion, compel a petitioner for certiorari to proceed upon such writ, but the, proper course for the defendant is to issue a. procedendo, (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 consti- tuted in Quebec, (g) It seems that no appeal will lie from a judgment rendered on a writ of certiorairi. (h) . The return of the notice of motion for a writ of certior- ari may be made by a bailiff; but, if under his oath of office, it is insufficient. Such return must be proved upon oath, as required by the 13 G-eo, 2, c 18, s. 5. (i) (a) Ex parte Lahayes; 6 L. C. R. 486. (6) Beg. v. Levecque, 30, XJ. C. Q. B. S09 . (c) lb. 513, per Wilson, J. ; Beg. v. Heltier, 17 Q. B. 229 ; Beg. v. Hyde, 16 Jur. 337. •■.•;■ (d) Beg. v. Zevecque, supra, 512, per Wilson, J. (e) Ex parte Morisset, 2 L. C. E. 302. if) Boston and Leliewe, 14 L. C. K. 457. Iff) H>- (A) Basin and Gremer, Kob. Dig. 28. (i) Ex parte Adams, 10 L. C. J. 176, overruling ex parte Boy, 7 L. C. J. 109. 572 CRIMINAL LAW OF CANADA. 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 plwno without previous notice to the Jus- tice, (a) A motion to compel a Justice to return the original papers, under a writ of certiorari, will_ be granted without costs against the Justice. (b) But, in one case, such mo- tion was granted with costs, (c) Full faith and credit will be given to a Justice's or of- ficer's return to a writ of certiorari, and, if the return shew that the conviction was had upon the confession of the defendant, the latter will not be permitted to go be- hind the return, and shew, by affidavits of parties, that he made no confession, and that the return is false, and that the conviction was really had without any proper confession whatever, (d) It would seem that, if material evidence, given before a Justice,is omitted from the return to a certiorari, because he neglected to note it when given, either; unintentionally or because he thought it, at the time, 1 to have no particu- lar bearing on the case, he might be allowed to amend his return by setting it out as part of the written evidence, if he remembered what it was, and if both parties con- curred in the correctness of the addition ; but, after the evidence has been returned, the Justice could be allowed to amend the notes from his own recollection, only with the concurrence of the witness, if he had signed the de- position. «Though particular evidence may have been given before the Justice, the Judge cannot, on the return to the certiorari, act upon such evidence, if it is not re- ia) Ex parte Dames, 3 L. C. R. 60. 6) Ex parte Doners, 7 L. C. E. 428. c) Ex parte Terrien, 7 L. C. R. 429. (di) Ex parte Mottrigtm, 13 L. C. J. 295.. PRACTICE. 573 turned with the certiorari, and there is no affidavit stating that such evidence was given. Evidence given before the Justice, but not returned in obedience to the certiorari, cannot be supplied by affi- davits, (a) "Where a certiorari simply requires a return of the evidence, the Justice need not return the conviction, or a copy of it. (b) If the Justice should have returned the conviction, but had not done so, he would be allowed an opportunity to do so, and amend his return. If he had already returned the conviction to the Clerk of the Peace, he might shew that fact, or he might transmit a copy of it instead, stating why he could not return the original.(c) If the Justice did not truly return the proceedings, he would be liable for making a false return, (d) A return of affidavit and warrant only is insufficient, (e) A party appearing to support a conviction cannot ob- ject to the cause being proceeded with, because the Jus- tice's return to the certiorari is not under seal, (f) In a case where, owing to a mistake in the Crown Office, a rule to re%rn a writ of certiorari, and afterwards a rule foT an attachment issued, although a return had, in fact, been filed — more than six months having thus expired since the conviction — the Court were asked to allow process to issue against the Justice for the illegal conviction, as of a previous term, but the application was refused, (g-) "Where a rule nisi for a certiorari, to remove a conviction, (a) Reg. v. M'Naney, 7 C. L. J. N. S. 325-6, per Wilson, J. ; 5 TJ. C. P. E. 438. (b) lb. 325. (c) lb. 326, per Wilson, J. (A) lb. 325, per Wilson, J- (e) Rex v. Desgagne, Bob. Dig. 73. (f) Reg. v. Oulton, 1 Allen, 269. (g) Be Joice, 19 TJ. C. Q. B. 197. 574 CRIMINAL LAW OF CANADA. is discharged, the successful party is not entitled to the costs of opposing the rule, (a) Where an objection is taken that there is some irre- gularity in obtaining the allowance of a certiorari, or in the issue of the writ itself, if moved against as a sub- stantive matter, the Court might give an opportunity to amend ; but if urged against the quashing of a bad con- viction, no such opportunity is afforded, (b) In shewing 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 Ma- jesty, 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 shewn as a defect against quashing a bad conviction, and, semble, 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 entirjjfe- confined to one particular Judge, so as to exclude aiMotlier Judge from sitting and holding the Court, shoUm 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 jurisdiction of the adjourned Court is not confined to the trial of offences committed before the adjournment, or of indictments previously found, (e) (a) Ex parte Daley, 1 Allen, 435. See as to costs, Reg. v. Ipstones, L. R. 3 Q. B. 216. (I) Reg. v. Hoggard, 30 U. C. Q. B. 156-7, per Richards, C. J. (c) lb. 152. (d) Reg. v. Dermis, 3 Allen, 425. per Carter, C. J. (e) lb. 423. PRACTICE. 575 County Courts have no jurisdiction in penal actions, unless it is expressly given them by Statute, (a) County Courts have jurisdiction, under Con. Stats. U. C, c. 124, s. 2, to try an action for a penalty against a Justice of the Peace, where the penalty claimed does not exceed $80.(6) 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, (c) Under 32 & 33 Vic, c. 20, s. 48, the Sessions of the Peace cannot try the offences specified in sections 27, 28, and 29 of that Act. A similar provision is made by c. 21, s. 92, as to certain offences under it. By c. 29 of the same year, s. 12, no Court of General or Quarter Sessions, or Eecorder's Court, nor any Court but a Superior Court, having criminal jurisdiction, shall have power to try any treason, or any fiyny punishable with death, or any libel. The excepfllsis contained in the last three named 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. (d) As the Court of Quarter Sessions has no jurisdiction in perjury, a recognizance to appear for trial on such a charge at the Sessions is wrong ; but a certiorari to re- fa,) O'Beilly q. t. v. Allan, 11 TJ. C. Q. B. 526. (b) Brash q. t. v. Taggart, 16 U. C. C. P. 415. (c) Beg. v. M'Donald, 31 U. C. Q. B. 337-9; Beg. v. Yarrington, 1 Salt. 406 ; Bex v. Maynes, K. & M. 298 ; Bex v. Higgins, 2 Ea. 5; Butt v. Gonant, 1 B. & B. 548 : ex parte Bartlett, 7 Jur. 649 ; Beg. v. Dunlop, 15 XT. C. Q. B. 118 : Bea v. Currie, 31 IT. C. Q. B. 582. (d) Beg. v. M'Donald, supra, 339, per Wilson, J. 576 CRIMINAL LAW OF CANADA. move it will be refused, if the time for the appearance of the party has gone by. (a) The Quarter Sessions is a Court of Oyer and Terminer, and a venire de novo may be awarded to it by the Queen's Bench. (6) If an order of Justices, in Sessions, be defective in one part, it may be quashed as to that, and confirmed as to the rest, if the different parts can be separated, (c) Defendant was convicted of an assault at the Quarter Sessions, and fined ; but, during the same Sessions, and on the second day after the sentence was pronounced, on filing an affidavit of his own, he obtained a new trial, and was acquitted at the following Sessions. It was not shewn that the Sessions had granted a new trial, solely on the affidavit of the defendant : — Held, that the Sessions might grant a new trial, though there had been a judg- ment, and sentence pronounced at the same Sessions, and that the Superior Court had no authority to review the judgment of the Sessions, in ordering a new trial, (d) The Court of Quarter Sessions has? a general power to adjourn, unless an Act of Parliament plainly intimates an intention that they should not have such power, (e) The power of adjournment of any matter of which the Court of Sessions may be seized is inherent in the Court, and such adjournment need not be to the next, but may be to any future, Court. Nor need there be a formal adjournment, if some proceeding is adopted by the Court which, virtually, amounts to an adjournment. (/) "Where a Statute enables two Justices to do an act, the Justices, sitting in Quarter Sessions, may do the same (a) Reg. v. Carrie, 31 TJ. C. Q. B. 582. (hi Beg. v. M'Donald, 31 U. C. Q. B. 338, per Wilson, J. ; Campbell v. Rea 11 Q. B. 799-814. (c) Beg. v. Simpson, 1 Hannay, 32. (d) Reg. x. Fitzgerald, 20 U. C. Q. B. 546. (e) See Beg. v. Murray, 27 U. C. Q. B. 134. (/) Beg. v. Justices, Westmoreland, L. K. 3 Q. B. 457. PltACTICE. 577 act ; for they are not the less Justices of the Peace, be- cause they are sitting in Court in that capacity, (a) It would seem that the Chairman of the Quarter Ses- sions cannot make any order of the Court, except during the Sessions, either regular or adjourned, (b) 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. (c) In this case, it was held that the Sessions might grant a new trial at the same sittings or sessions at which the conviction took place. 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 coun- sel, 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 Chairman 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 held, on the authority of Holborn v. Danes, (d) that the Court had power to revoke the order quashing the conviction, for they could alter their judgment at any time during the same Session, (e) It seems that the fact of a Bench warrant having no (o) Fraser v. Dickson, 5 TJ. C. Q. B. 233, per Robinson, C. J. (6) Be Coleman, 23 U. C. Q. B. 615. (c) Reg. v. Fitzgerald, 20 TJ. C. Q. B. 546, per Robinson, C. J. (d) 2 SaJk. 494-606, U) M'Lean and M'Zean, 9 U. C. L. J. 217. KK 578 CRIMINAL LAW OF CANADA. seal does not make it invalid (a), and a warrant of com- mitment, under the seal of the Court, or signature of the chairman, is not necessary, (b) An attorney-at-law has no right to act as an advocate in a Court of Quarter Sessions, (c) 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, (d) It seems that the Judges of every Court have power to regulate its proceedings, as to who shall be admitted to- ad; as advocates, and that there is no positive rule of law to prevent any Court of justice from allowing the attor- ney, even of a private individual, from acting as an advo- cate, (e) But it would seem that these remarks can only hold when there is no Statute excluding the person per- mitted to act. (/) The 32 & 33 Vic, c. 30, s. 35, gives Justices power to proceed in private, and thereby to prevent counsel, attor- ney, or any other person, from appearing in behalf of the accused, {g) But, under c. 31 of the same year, ss. 29 and 30, counsel have a right to be heard. Defendant having been convicted, at the Quarter Ses- sions, in June, 1863, judgment was reserved, and a special case stated for the opinion of the Court of Common Pleas. The questions thus reserved not having been heard or disposed of, the case was duly adjourned, from time to time, and was again brought up at the Sessions in March, 1864, upon motion lor judgment, on the part of the prose- cution, and a rule nisi granted for a new trial in the fourth sittings of the Sessions after conviction. The rule (a) Fraser v. Dickson, 5 U. C. Q. B. 234, per Robinson, C. J. 16) Ovens v. Taylor, 19 U. C. C. P. 49. (c) Beg. v. Erridge 3 U. C. H J. 32. (d) Ke Brooke, 10 U. C. L. J. 49. See also Ee Zapenotiere, 4 TJ. C. Q. B 492 (e) Beg. v. Carter, 15 L. C. K. 295-6, per Meredith, J. if) See Be Judge, G. C. York, 31 TJ. C. Q. B. 267. (g) See ib. 271. PEACTICE. 579 nisi was afterwards discharged. The defendant appealed from that decision : — Held, that, as before the rule nisi was granted, a case was stated under the Con. Stats. U. C, c. 112. s. 2, which had not been heard or disposed of, and, as the third section of the Act provides that the Superior Court shall, in such case, hear, and finally de- termine, the questions stated, the Court of Sessions were no longer in possession of the matter, either to pass sen- tence or to grant a new trial; that there was nothing legally before this Court, and that it could not be called on to review the decision of the Court of Sessions, (a) The power of fining and imprisoning, necessary to constitute a Court, of Eecord, must be a general power, and a limited power of fining and imprisoning, such as the power to impose a specific pecuniary penalty and a certain number of days' imprisonment, does not constitute a Court of Record. (6) 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 jury- man, 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 ex- ceeded its jurisdiction, (c) "Where an indictment will lie for a misdemeanor, an information may also be sustained, (d) 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, (e) The abuse was ef- fectually puta stop to by the 4 & 5 "W". .& M., c. 18, which (o) Beg. v. Bmlfbee, 23 U..C. Q. B. 457. lb) Toimg v. Woodcock, 3 Kerr, 554. (c) Ke Pater, 5 B. & S. 299 ; 10 Jur. N. S. 972. (d) Beg. v. Mercer, 17 U. C. Q. B. 630-1, per Burnt, J. (e) Arch. Cr. Prac. 17. 580 CRIMINAL LAW OF CANADA. 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 misde- meanor before he shall have taken, or shall have deliv- ered to him, a recognizance, from the person procuring such information, to be exhibited in the penalty of £20, conditioned to prosecute such information with effect." The remedy, by criminal information, obtains in Que- bec, 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, (a) A party, applying for a criminal information, must de- clare that he waives all other remedies, whether by civil action or otherwise. (6) It is an established rule, that no application for a crim- inal information can be made against a Justice, for any- thing done in execution of his office, without previous notice, (c) 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 the same term, (d) 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, (e) A motion for a rule for a criminal information,, once discharged for irregularity or insufficiency of proof, can- not be renewed by amending the irregularity or supply- ing the deficiency of proof. > The person, in whose behalf the application is made, (o) Ex parte Gugy, 9 L. C. R. 51. (6) lb. See als<* B. v. Sparrow, 2 T. R. 198; WaUeg v. Cooke, 16 M. & ('«)• B. v. Hemimg, 5 B. & Ad. 666. (d) Beg. v. Heustia, 1 James, 101; Re Complaint Bustard v. Schofield 4 TJ. C. Q. B. 0. S. 11. (f) lb. PRACTICE. 581 cannot move the rule in person, (a) The motion must be made by a barrister or counsel, (b) To support a motion for leave to file a criminal infor- mation against a Justice of the Peace, the affidavits should not be entitled in a suit pending, (c) A criminal information must be signed by the Clerk of the Crown or Master of the Crown Office, (d) An information in the name of the Attorney-General will be dismissed with costs, on an exception d la forme, it being signed by certain attorneys styling themselves " procureurs du Procureur General," inasmuch as the Attorney-G-eneral, when appearing for Her Majesty* can- not act by attorney, (e) A criminal information by the Attorney-G-eneral 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 " : — Held, on demurrer, that the information was good, 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 rejected. (/) (a) Mx pttirte Gvgy, 9 L. C. R. 51. 6) 1 Chit. Rep. 602. (c) Re Complaint Bustard v. Schofield, 4 U. C. Q. B. 0. S. 11 ; R. v. Harri son, 6 T. R. 60. Id) Xeff. t. Crooks, 5 TJ. C. Q. B. 0. S. 733. (e) Atty. Gml. v. Laviolette, 6 L. C. J. 309. ( f) Atty. Genl. v. JUacpherson, L. R. 3 P. C. App. 268. 582 CRIMINAL LAW OF CANADA. A criminal information, being the mere allegation of the officer who files it, maybe amended, (a) In an information for intrusion, the venue may be laid in any District, without regard to the local situation of the premises, (b) 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 evidence of title, under a Grown lease, (c) On applications for criminal informations, the Court is in the position of a Grand Jnry, and requires the same amount of evidence as would warrant a Grand Jury in finding a true bill, (d) 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 sales- man 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 con- tained no legal evidence of publication, holding that such evidence was necesary, and that an affidavit on informa- tion and belief was not legal evidence. Semble, a defect in the affidavits, on which the rule nisi for a criminal in- formation has been obtained, can be supplied by a state- ment in an affidavit of the defendant, made in "shewing cause against the rule, (e) 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 (a) Ke Conktm, 31 U. C. Q. B. 167, per Wilson, J. (5) Atty. Genl. v. DockHader, 5 U. 0. Q. B. 0. S. 341. (c) Reg v. Sinnott, 27 U. C. Q. B. 539- Id) Ex parte Gugy, 9 L. C. It. 51. (e) Beg. v. Stanger, L. B. 6 Q. B. 352. PBACTICE. 583 misrepresented, the Court will discharge the rule, very probably with costs, (a) The reason why parties are committed to prison by Justices, before trial, is for the purpose of ensuring or. making certain their appearance to take then\ trial, and the same principle is to be adopted on an application for bail. It is not a question as to the guilt or innocence of the prisoner. On this account, it is necessary to see whether the offence is serious and severely punishable, and whether the evidence is clear and conclusive, (b) Where the charge against a prisoner is that he pro- cured a person to set fire to his house, with intent to de- fraud an Insurance Company, and it is shewn that the prisoner attempted 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, (c) The principle, upon which a party committed to take his trial for an offence may be bailed, is founded chiefly Upon the legal probability of his appearing to take his trial. §uch probability does not exist, in contemplation of law, when a crime is of the highest magnitude, the evi- dence, in support of the charge, strong, and the punish- ment the severest known to the law. (d) On an application by prisoners in custody, on a charge •of murder under a coroner's warrant, it is proper to con- sider 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, (e) (a) R. v. Wittett, 6 T. K. 294 ; B. v. Williamson, 3 B. & Aid.- 582; Arch. Cr. Pldg. 113. (6) Beg. v. Brynes, 8 TJ. C. L. J. 76 ; Beg. v. Scai/e, 9 Dowl. P. C. 553. c) lb. id) Ex parte Maguire, 7 L. 0. R 59. |e) Beg. v. Mullady,A IT. C. P. K. 314. 584 CRIMINAL LAW OF CANADA. Where a person charged with murder applies for bail,. . the Judge will look to the gravity of the offence, the weight of evidence and the severity of the punishment, • and may refuse bail, (a) A prisoner, confined upon a charge of arson, may be be admitted 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, (b) A prisoner, in cus- tody for larceny, may be admitted to bail, when the evi- dence discloses very slight grounds for suspicion, (c), So a prisoner charged with murder may, in some cases, in the exercise of a sound discretion, be admitted to bail. On a 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 charging a felony in it, so that the prisoner would not be entitled to bail on the ground of the defective commit- ment, (d) 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 Provincial to the Home G-o- vernment on the subject, (e) 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. (/) Prisoners charged with murder cannot be admitted to bail, unless it be under very extreme circumstances, as (a) Ex parte Corriveau, 6 L. C. E. 249. (6) Ex parte Maguire, 7 L. C. E. 57. (c) Sex. v. Jotoes, 4 TT. C. Q. B. O. S. 18. Id) Eex v. Higgins, 4 U. C. Q. B. 0. S. 83. (e) Eex v. Fitzgerald, 3 U. C. Q. B. 0. S. 300. (f ) Ex parte Blossom, 10 L. C. J. 71, per Meredith, J. PRACTICE. , 585 where facts are brought before the Court, to shew 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, (a) Accessories after the fact, who have, merely, harboured prisoners guilty of murder, may be admitted to bail. (6) T^ie Con. Stats. L. 0., c. 95, excepts persons committed for treason or felony, as well as persons convicted or in execution by legal process, who are not entitled to bail in term or vacation, (c) The Court may order bail in a case of perjury, (d) By the words of the Con. Stats, L. C, c. 95, it is obligatory upon the Judge in a case of misdemeanor to admit to- bail. (e) All misdemeanors, whether common or otherwise, are bailable. Under the 32 & 33 Tic, c. 30, it is obligatory upon Justices of the Peaccto admit to bail in all cases of misdemeanors. The Statute is equally binding upon the Judges of the Superior Courts. (/) The word " shall," in s. 56 of this Statute, is impera- tive, (g) Several persons were accused of a misdemeanor, and r in the opinion of the Judge presiding, the evidence ad- • duced was positive against them. Two juries had been, discharged, because they could not agree upon a verdict. The Court ordered them to be committed to gaol, without bail or mainprize, to be tried again at the next term, and not to be discharged without further order from the Court, (h) (a) Meg. v. Murphy, 1 James, 158. ' ■ (b) lb. (e) Ex parte Blossom, supra, 31, per Monk, J . (f) Ex parte Blossom, 10 L. C. J. 73, per Meredith, J. (g) lb. 35, 67-8. (h) Reg. v. Blossom, 10 L. 0. J. 29. 586 CRIMINAL LAW OF CANADA. In the above case, the prisoners were indicted for con- spiring to kidnap one Gr. N. S., and steal and carry him away into the 'United States. The Grand Jury found a true bill against them, for misdemeanor. The prisoners pleaded not guilty, and were arraigned for trial on the 29th September, 1865. The jury, after thr-ee days' delib- eration, being unable to agree, were discharged. Oh the 17th of October following, the said prisoners were again put upon trial, on the same indictment, before another jury. This jury also disagreed, and, after nine days' de- liberation, were also discharged : — Held, that, under these circumstances, the prisoners were entitled to bail, by virtue of the Con. Stats. L. 0., c. 95 ; that a prisoner is entitled to bail for misdemeanor, not only before but after indictment found against him, and that the fact of two successive juries having disagreed rendered the right of the prisoners to bail unquestionable,: (a) "Where prisoners have 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 with- out bail, or mainprize to stand their trial at the next term, and not to be discharged without further order from the said Court is void, for the Con. Stats. L. O, c. 95, s. 4, ss. 3, is restrictive of the power to bail, only when the pris- oner is detained under an order for some offence, for which, by law, the prisoner is not bailable, and, in this case, the offence being a misdemeanor, was clearly bail- able. Such order, therefore, will be no bar to the grant- ing of bail by any competent Court or Judge, (b) The word "may," in the 32 *& 33 Vic, c. 30, s. 52, must be considered as conferring a power, and not as giving a (a) Ex parte Blossom, 10 L. C. J. 30. (6) lb. 35-46. PRACTICE. 587 discretion. The object of the Act is to declare that one Justice cannot bail in felony, but may in misdemeanor, (a) 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 com- mon law, unless prevented by some Statute. (6) 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 inno- cence as to entitle him to his discharge on bail, (c) Where the prisoners were convicted at the Sessions, on an indictment 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, (d) for the Con. Stats. U. C, c. 112, vests the discretion to bail, upon a case re- served, in the Court which tried the prisoners, (e) The fact of one Assize having passed over since the •committal of the prisoners, without an indictment having been preferred, is, in itself, no ground for admitting them to bail ; and it can have no other influence than to induce a somewhat closer examination of the evidence on which the prisoner is committed. Where the prisoner does not bring himself within the 31 Car. 2, 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. (/) After the accused has pleaded not guilty to an indict- ment, no default can be recorded against him without (a) Ex 'parte Blossom, 10 L. 0. J. 67, per Meredith, 3. (b) Kmg v. On; 5 TJ. C. Q. B. O. S. 724. (c) Ex parte Blossom, 10 L. 0. J. 45, per Badgley, J; (d) Beg. v. Sage, 2 XS. C. P. E. 138. (e) lb. 139, per Robinson, C. J. if) Beg. v. Mullady, 4 IT. C. P. . E, 314. 588 CRIMINAL LAW OF CANADA. notice, unless it be on a day appointed for his appear- ance, (a) Where a party accused of perjury has been arraigned and pleaded not guilty, and no day certain has been fixed for the trial, and no forfeiture of his bail has been de- clared, 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, (b) If 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 liberated from confinement, (c) A person, accused of theft, had given a recognizance of bail, but after the finding of the indictment against him, by the G-rand 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 recognizance having been entered into by the defendant, of the signature of the Justices of the Peace thereto, and its return into the Supreme Court, and the non-appearance of the party to plead to the in- dictment. A copy of this rule, together with a copy of the affidavit, was served on each of the defendants : — Held, that the rule nisi was proper, instead of a proceed- ing by scire facias, and that such judgment might be pro- perly entered on an affidavit of the service of the rule nisi therefor on the bail, and their failing to shew cause, (d) Where bail entered into a recognizance, conditioned for the appearance of their principal to answer a charge (a) Reg. v. Croteau, 9 L. C. E. 67. (b) Atty. Genl. v. Samlieu, 3 L. C. J. 117. (e ) JEx parte Blossom, 10 L. C. J. 68, per Meredith, J. (d) Beg. v. Thompson, 2 Thomson, 9 ; affirmed by Beg. v. Cudihey, 1 Old- right, 701. PRACTICK. 589 of 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 ac- cused, to answer a charge of rape, and, therefore, his non- appearance to answer that charge was no breach of the Tecognizance. (a) 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 G-rand Jury had not, owing to absence of witnesses, an opportunity of finding a bill, and the recognizance was estreated, a rule was made absolute for the relief of the bail, (b) Defendant, having entered into a recognizance to ap- pear at a certain Assizes, attended until the last day, when he left, assuming, as no indictment had been found, that -the charge against him of a breach of the Foreign .Enlistment Act was not intended to be prosecuted. He was, however, called, and his recognizance estreated. The Court, under the circumstances, relieved him and his sureties, under the Gon. Stats, U. C, c. 117, s. 11, on payment of costs, and on his entering into a new recog- nizance to appear at the following Assizes, (c) It is no ground for discharging the estreat of a recogniz- ance of bail that the accused did not receive from the Justice, who took the recognizance, the notice directed to be given by the 7 "Wm. 4, c. 10, s. 8. (d) When a recognizance is entered into for the appear- (a) Reg. v. Wheeler, 1 U. C. L. J. N. S. 272. (6) Reg. v. Ritchie, 1 IT. C. L. J. N. S. 272. (c) Reg. v. M'Leod,. 24.TJ. 0. Q.. B. 458. {d) Reg. v. Schram, 2 U. 0. Q. B. 91. 590 CRIMINAL LAW OF CANADA. ance of the accused in the Court of Queen's Bench, it is the duty of the Judges of that Court to estreat the recog- nizance in the event of forfeiture, (a) Where a prisoner charged with felony had been ad- mitted to bail upon an order of a Judge in Chambers, and an application 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 : — Held, that a Judge in Cham- bers had 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 fic- titious, the order was conditional upon the failure of the prisoner to find new sureties within a specified time. (6) An application for bail must be made upon affidavits- entitled " In the Queen's Bench," verifying copies of the depositions.^ 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 information, examination, etc., may be re- ceived, 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) The institution of Grand Juries, if not carefully (a) Beg. v. Croteau, 9 E. C. K. 67. (6) Beg. v. Mason, 5 U. C. L, J. N. S. 205 ; 5 U. 0. P. R. 125. (c) Beg. v Barthelmy, 1 B. & B. 8; Dears. 60. (d) Arch. Cr. Pldg. 89. (e) Beg. v. Clicmberlain^ 1 TJ. C. L. J. N. S. 157 : ib. 142. See also Con Stats. U. C. o. 106, s. 9. PRACTICE. 591 guarded, is liable to abuse, as it furnishes facilities for fraud and oppression by giving an opportunity to a wicked person to go before a secret tribunal, and, without notice to the party accused, to get 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 in- famous wrong maybe inflicted upon him if innocent. — The 32 & 33 Vic, c. 29, s. 28, was passed with a view to suppress vexatious proceedings of this description. It is not necessary that the performance of any of the conditions mentioned in this Statute should be averred in the indictment, or proved before the petty jury, (a) When the indictment is preferred by the direction, or with the consent in writing, of a Judge of one of the Su- perior Courts, it is for the Judge, to whom the application is made for such direction or consent, to decide what ma- terials ought to be brought before him, and it is not ne- cessary to summon the party accused, or to bring him before the Judge, (b) Where three persons were committed for conspiracy, and afterwards the Solicitor-G-eneral, 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 unobjectionable, (c) 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 plaintiff guilty thereof, the plaintiff may (a) Knmdden v Beg., 5 B. & S. 532 ; 33 L. J. (M. C.) 219. (6) Beg. v. Bray, 3 B. & S. 255 ; 32 L. J. (M. C.) 11. (c) Knowlden v. Heg. supra ; Arch. Or. Bldg. 5. 592 CRIMINAL LAW OF CANADA. be tried on this finding for the criminal offence without the finding of the G-rand Jury, {a) The evidence, offered to a Grand Jury is evidence of accusation only. It is to be given and heard in secret according 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 state- ment be made, the person may be punished. The oath may be administered by the foreman ; but it can only be administered, when the jury are assembled as such. The law requires that twelve members should be pre- sent for the purpose of any enquiry, and twelve of them must assent to any accusation. When a charge is presented to a Grand Jury, they should consider first whether the accused is capable of committing the crime, and this involves the criminal lia- bility of infants, persons non compotes mentis, married wo- men, etc. A reasonable conclusion only is required, 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 accused should clearly appear, either expressly or by ne- cessary implication, from the circumstances, (b) The record of a conviction for murder set out, in the caption, that the indictment was found at a general ses- sion of Oyer and Terminer and General Gaol Delivery, be- fore the Chief Justice of the Common Pleas, duly assigned, and under, and by virtue of, the Statute, in that behalf jo) Bichavrdson v. Can. W. F. Ins. Go. 17 U. C. C. P. 343, per J. Wilson, J. ( See Charge of Mr. Jus. Bwrns, 8 IT. C. L. J. 6. PRACTICE. 593 duly authorized and empowered to enquire, etc., setting •out the authority to hear and determine, as formerly given in commissions, but not to deliver the gaol. It was $hen stated that, at the said session of Oyer and Terminer and "G-eneral G-aol Delivery, the prisoner appeared and plead- ed, and the award of venire was, " therefore let a jury thereupon immediately come," etc. This record was re- turned to a writ of error, directed, " To our Justices of Oyer and Terminer, for our County of 0., assigned to de- liver 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 commission had issued, or been dispensed with by order of the Q-overnor, for such Courts are now held not under commissions, but by virtue of the Statute, Con. Stat. U. C„ c. 11, as amended by 29 & 30 Vic, c. 40, and, as the record sufficiently shewed the absence of any commission, it must be presumed that it seemed best to the Grovernor not to issue one. The record shewed the Court to be held by a person competent to hold it, either with or without a commission, and wag> therefore, sufficient, (a) 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 shew whether a commission had issued or not, because he Would only have authority if named in the commission, or appointed by one of the Superior Court Judges. It would seem, also, that, if the caption had been de- fective, it might have been rejected altogether, under Con. Stats. Can., c. 99, s. 52. In the same case, it was objected that, the only author- ity shewn being that of Oyer and Terminer, the award (a) Whelm v. Beg. 28 TJ. C. Q. B. 2. 594 CRIMINAL LAW OF CANADA. " therefore let a jury thereupon immediately come" was unauthorized and a special award of venire facias was re- quisite: — 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 shewed no authority to de- liver the gaol ; that, in this country, by the Jury Act, Con. Stat. U. C, c. 31, both have the same powers, the general precept to summon a jury being issued by both before the Assizes, (a) A Judge of Assize, as such, may, by force of the Statute, 27 Edw. 1, c. 3, deliver the gaol without any special com- mission for that purpose, (b) The Court is bound to take judicial notice of the powers of a Court of General G-aol 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, (a) As to serving on juries, infancy has been considered a ground of disqualification, on account of the probable de- ficiency 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. 1, c. 38, being in the affirmative, leaves infants disqualified as at common law. (d) 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 intend- ed as a disqualification, but merely as an exemption ; for, (o) Whelan v. Beg. 28 U. G. Q. B. 2. (M lb. 44, per A. Wikm, J. (c) lb. 85, per Richards, C. J. (d) Mulcahp v. Beg. L. R. 3 E. & I. App. 315, per Willes, J. PRACTICE. 595 if they were put upon the panel, they could not be chal- lenged, (a) The 3 & 4 ¥m, 4, c. 91 makes a clear distinction be- tween disqualification and exemption. Where, therefore, a juryman was returned whose age exceeded sixty years, that fact only operated in his favour, as an exemption, but was not a ground for challenge, as a personal disqual- ification. By this Statute, every one between the ages of twenty-one and sixty was qualified. By the Con, Stats. U. C, c. 31, s. 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. It would seem that if a man over sixty years was returned as a juror, he could not be chal- lenged, for s. 98 of the Act only allows a challenge in the event of the juror not being duly qualified, (b) An alien, qualified and resident as the Statute pre- scribes, may be a juror in Nova Scotia, (c) By s. 12 of our Statute no man, not being a natural born or naturalized subject of Her Majesty, shall be qual- ified to serve as a grand or petit juror. Now, that juries demeditate Knguce have been abolished, an alien is never admitted as a juror in this Province. Under the authority of the 29 & 30 Vic, c. 71, a proclamation issued on the 15th December, 1866, sepa- rating the County of Peel from the County of York, from and after the 1st of January, 1867. On the 23rd of November preceding, the usual precept had been sent to the Sheriff of the United Counties of York and Peel, for summoning jurors for the Winter Assizes for York, to be held on the 10th of January, 1867, and the Sheriff re- (o) Mulcahy v. Beg. L. K. 3E. & I. App. 323. (b) See Mulcahv v. Reg. , supra. (c) Beg. v. Burdell, 1 Oldright, 126. 596 CRIMINAL LAW OF CANADA. turned his panel to that precept, containing fifty-four jurors from York and thirty from Peel. Only those from York, however, attended, and, the venue being un- changed, the proceeding on trial was under the 29 & 30 Yic, c. 51, s. 58. The prisoner was tried by a jury de meditate lingua, including six of these jurors, upon an in- dictment found and pleaded to at the previous Assizes in October. The prisoner applied for a new trial, or a ven- ire de novo in effect, because the panel of jurors was drafted from the jury-list of the United Counties before the severance of the union, upon a precept previously is- sued, and addressed to the Sheriff of the United Counties; and because the panel of petit jurors returned to the Courts of Oyer and Terminer and Greneral G-aol Delivery, held for the County of York alone, on the 10th of January, 1867, contained the names of jurors, some living in the County of York, and some in the County of Peel, or, in other words, the Court at which the prisoner was tried was a Court held in and for the County of York alone ; the jurors could only be good and lawful men of that county ; there was no precept for the summoning and returning a panel of jurors, addressed to the Sheriff of that county. No panel was drafted from the jury-list of that county, but all the jurors were drafted, summoned, and returned under the authority of a precept addressed to the Sheriff of the United Counties, and in obedience to the provisions of the Statute applicable to such Coun- ties as united : — Held, per Draper, C. J., the objection, which was only to the due observance of certain rules, though involving a question of merits, in this sense, that every person has a right to be tried by a jury of good and lawful men, returned according to law to discharge that duty, if available at all, could only be taken by writ of error ; per Hagarty, J., no objection would lie. (a) (a) Beg. v. Kennedy, 26 V. C. Q. B. 326. PRACTICE. 597 The Con. Stats. U. 0., c. 81, s. 139, provides that no omission 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. In the above case, possibly, the array might have been quashed, because the Sheriff's return to the Court, which sat only for the County of York, contained the names of jurors resident out of that county, (a) In Ontario, the usual practice, as to summoning jurors, is as follows : — A precept, signed by the Judges, who are always named in both commissions of Oyer and Terminer and Gaol Delivery, goes to the Sheriff, to return a general panel of jurors, and that precept is returned into Court on the first day of the Assizes with the panel, and from the names contained 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 G-aol 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 De- livery, 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. D. G, c. 31, there has been a previous precept issued for the re- turn of juroTS to that Court ; and Justices of both these Courts have the same powers by the Act. (b) "Where a Court is held under a special commission, be- gun 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 necessary that the jury should be impanelled (a) Bey. v. Kennedy, 26 U. C. Q. B. 331, per Draper, C. J. (6) Whelan v. Beg. 28 V. 0. Q. B. 84-5, per Bichardi, C. J. 598 CRIMINAL LAW OF CANADA. from the jury-book for the latter year, (a) This might be requisite if the Act forbade a juror, duly summoned, to serve after the delivery of the new book to the Sheriff.(fc) It has been held that an alien, indicted for felony, has a right to be tried by a jury de meditate linguce. (c) The 32 & 33 Vic, c. 29, s. 39, enacts that juries de meditate lingua shall not, hereafter, be allowed in the case of aliens. "Where a prisoner has been arraigned on a charge of uttering 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 uf forgery, and could not, therefore, be legally tried here for any other offence. This question must be determined by the Court, (d) 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. (e) The principle applies in criminal as well as civil cases, though, in some cases, it rests with the jury to determine ajnixed ques- tion of law and fact. (/) The jury are bound to follow the direction of the Court in point of law ; and where a jury attempted to persist in returning a verdict contrary to the direction of Pol- lock, 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. {a) Mulcahy v. Reg. L. R. 3 E. & I. App. 306. (6) lb. 316, per WiUea, J. (c) Beg. v. Vonhoff, 10 L. C. J. 292; Reg. v. Miller, 8 L. C. J. 280. (A) Reg. v. Poxton, 10 L. C. J. 212. (e) Wimeor v. Reg., L. R. 1 Q. B. 303, per CocMmm, G. J. (f) Gray v. Reg., 1 E. & A. Reps. 504, per Sir J. B. Robinson, Bwrt. PRACTICE. 599 He peremptorily directed them to return a verdict ac- cording to his direction in point of law. (a) The jury have a right, after the summing up and con- clusion of the case, and afier retiring to their room to deliberate, to return to open Court, and re-examine any of the witnesses whose evidence was not well under- stood by them, (b) The strictness of the rules regarding juries, and the conduct of trials, has been much relaxed in modern times, (c) The, misconduct, or irregular and improper conduct of juries, will only have the effect of vitiating their ver- dict, when it is such that the result of the trial has been influenced by it, or when there is any sufficient and reasonable ground to believe that such influence or effect has been produced by it. (d) There is a substantial distinction in regard to miscon- duct 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, (e) The fact that one of the jury, on a trial for felony, during a recess which took place in the progress of the trial, not being in charge of any officer, or other person, entered a public-house, and mentioned the subject of the trial to A., and had some slight conversation with other parties as to it, is, in the absence of evidence that the juror, or the verdict, was influenced by this, not suffi- cient to vitiate the verdict, or amount to a mis-trial. ( f) When a juror has separated from his brethren, and (a) Beg. v. Robinson, 1 V. C. L. J. N. S. 53; 4 F. & F. 43. (b) Beg. v. Loy.nere, 8 L. C. J. 281. \c) Beg. v. Kennedy, 2 Thomson, 207, per Halliburton, C. J. (d) lb. 212, per BH3S, J. . answer, he was com- mitted to prison for contempt of Court, and a con- viction of the defendant being, under these circum- stances, impossible the jury, at the request of the counsel for the prosecution, and against the protest of the counsel for the defendant, were discharged without giving any verdict : — Held, that the defendant ought not to be al- lowed to put a plea upon the record stating the above facts, but that they ought to appear as an entry on the record. An entry was made upon the record accordingly ; when it was, further, held that, Whether or no, the Judge had power to discharge the jury, what took place did not amount to a verdict of acquittal, nor was the prisoner en- titled 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, (b) 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, (c) In criminal cases, not capital, where the verdict is so inconsistent and repugnant, or so ambiguous and uncer- tain, that no judgment can be safely pronounced upon it, a venire de novo may be awarded, (d) (a) Reg. v. CJwleworth, 9 TJ. C. L. J. 48. (6) Reg. v. Charlesworth, supra. (c) Winsor v. Reg., L. B. 1 Q. B. 305, per Coctburn, C. J. 320-1, per MtUor, J. (d) Reg. v. Healey, 2 Thomson, 332-3, per Bliss, J. PRACTICE. 603 "Where, on. an indictment for murder, the jury returned a verdict, in ■writing, in the following words : " Guilty of murder, with a recommendation to mercy, as there is no evidence to show malice aforethought and premedita- tion " : — Held, that the verdict was too ambiguous and uncertain to allow the Court to pronounce any judgment upon it. (a) A recommendation to mercy is no part of the ver- dict, (b) If it were shewn that, upon the jury delivering their verdict 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 prac- tice, (c) A jury may correct their verdict, or any of them may withhold assent and express dissent therefrom, at any time before it is finally entered and confirmed, (d) It is irregular for counsel to question the jury directly, and not through the Court, as to the grounds of their verdict, (e) # It would appear that the right of a jury to find a gen- eral verdict, in a criminal case, and to decline to find the facts specially, cannot be questioned, especially when the verdict is one of acquittal. (/) It is doubtful whether a verdict can be received and recorded on a Sunday, (g) (a) Beg. v. ffealey, 2 Thomson, 331. (b) See Beg. v. Trebilcock, 4 TJ. (J. L: J. 168 ; Dears. & B. 453. (c) Beg. v. Fdlowes,. 19 TJ. C. Q. B. 50, per Bobinson, C. J. ; and see Beg. v. Ford, 3 TX. C. C. P. 217-8, per Maccmlay, C. J. (d) Beg. v. Ford, supra, 217, per Maccmlay, C. J. (e) lb. If) Beg. v. Spence, 12 IT. C. Q. B. 519. (£) Winter v. Beg. L. K. 1 Q. B. 308-317-322. 604 CRIMINAL LAW OF CANADA. The Con. Stats. U. C, c. 113, 20 Vic, c. 61, has been repealed except sections 5,46 and 17. By the 32 & 33 Vic, c 29, s. 80, no appeal lies: to the Court of Error and Appeal in any criminal case where the conviction has been affirmed, by either of the Superior Courts of common law, on any question of law reserved for the opinion of such Court. Prior to the 20 Vic, c. 61, an appeal lay to the Superior Court, on any question reserved by the Sessions, or a Court of Oyer and Terminer, under the 14 & 15 Vic, c. 13. The latter Statute has not been repealed, and a question, reserved at the Sessions, or at a Court of Oyer and Ter- miner, may be adjudicated on by the Superior Court in Banc. The following rules may still apply to the unrepealed Statute : — lstly, In all cases of appeal from the judgment of the Court of Quarter Sessions, under the said Statute, notice of such appeal shall be given by the person convicted, or his attorney, to the county attorney for the county in which the conviction shall have taken place, within six days from the time of sentence being passed ; or, in case there shall be no county attorney for such county, then to the Clerk of the Peace thereof; and an affidavit of ser- vice of such notice shall be filed in the Superior Court appealed to, with the papers directed by the said Statute to be transmitted from the Court of Quarter Sessions. 2ndly, A copy of the indictment, and of any subse- quent pleadings, and of the verdict endorsed upon the indictment, shall be sent with the proceedings directed by the said Statute to be transmitted ; and that, where the new trial has been moved for, upon the ground that the evidence did not warrant the conviction, a full state- ment of the evidence shall be sent with the case, signed and certified in the same manner. PRACTICE. 605 3rdly, Every case sent from the Quarter Sessions shall state whether judgment on the conviction was passed or postponed, or the execution of the judgment respited ; and whether the person convicted is in prison, or has been discharged on recognizance of bail to appear and receive judgment 4thly, In every such case of appeal from a Court of Quarter Sessions, the original case, signed by the Eecorder or Chairman of the Court, and four copies of such case, one for each Judge and one for the county attorney or other counsel for the Crown, shall be delivered to the Clerk of the Court appealed to, at least four days before the sitting of the said Court ; provided that, where the new trial has been moved upon the evidence only, one copy of the report of the evidence in full need be filed, in addition to the statement of the evidence which has been certified ; and that, when any case is intended to be argued by counsel, or by the parties, notice thereof be given to the Clerk of the Court appealed to, at least two ■days before the day appointed for argument, which shall be one of the paper days during the term. In Reg. v. Beclfwith, (a) effect was given to an objec- tion that rules numbers 5, 6 and 7, under this Act, were not complied with. The Court has no power to order a new trial, or to prevent a verdict of guilty from going into effect, on a criminal case reserved under the 14 & 15 "Vic, c. 13, but only to decide upon any particular legal exceptions raised upon the pleadings, or the evidence, or upon the general question, which is strictly one of law, whether there was legal evidence to sustain the indictment, taking it in as strong a sense against the defendant as it will bear, and (a) 8 TJ. C. C. P. 274. 606 CRIMINAL LAW OF CANADA. supposing the jury to have given credit to it to its fall ex- tent, (a) The question, can there be a new trial in case of felony is one which may be properly reserved. (6) 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, sup- ported the indictment ; the Court held that they had no jurisdiction to consider the case, (c) "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 indictment being preferred, or for other pur- poses, (d) In Reg. v. McEvoy, (e) the Court, under the facts shewn, 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 lat- ter course was adopted because it was doubted whether the judgment could properly be arrested, where the in- dictment, 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. (/) Where, on an appeal from a conviction affirmed at the Sessions, it appeared that the point in question was purely (a) Reg. v. Baby, 12 TJ. C. Q. B. 346. (6) Reg. v. D' Aoust, 10 L. 0. J. 221, per Mmdelet, J. ; S. C. 16 L. 0. R. 493, per Meredith, X. o) Beg. v. O'fonfc, %,. R. ! 1 C. C. R. 54 ; 36 L. J. (M. OJ 16. (d) Big. v. Rose, 1 TJ. 15. L. J. 145 ; Reg. v. Spence, 11 TJ. C. Q. B. 31 ; Reg. v. Orr, 12 U. C. Q. B. 57. See ante p. 234 ; Reg. v. Spence, mfra. (e) 20 TJ. 0. Q. B. 344. J if) -Beg. v. Fmnety, 3 Allen, 132. PEACTICE. 607 one of law, and there could be no object in sending the case down for a new trial, the judgment was arrested, (a) The Court may, in certain cases, stay the entry of judgment until a new indictment is preferred, but, in such case, the indictment must be removed by certior- ari, (b) In criminal matters, foreign law should not be brought before the Court, (c) American authorities, though en- titled to respect, will not be received as binding in our Courts, (d) Nor are English decisions absolutely binding in this country, (e) 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 over- ruled by the Judge trying the cause, the Court in Banc has authority to enquire into the validity of these objec- tions, though the record does not state that the prisoner's counsel moved in arrest of judgment. The presence of the prisoner at the argument may be waived by consent of parties, (f) The Court of Queen's Bench, in appeal, will adjudicate on a reserved case of misdemeanor in the absence of the defendant, who has fled beyond the jurisdiction of the Court, (g) "Where a man charged with felony is being tried, what- ever may have been his position in life, he must take his place in the dock ; but the misdemeanant, if on bail, is not obliged to do so. (h) In criminal cases, it is always entirely in the discretion • (a) Reg. v. Ruhidge, 25 IT. C. Q. B. 299. ,\b) dictment to be taxed by the master, and that the said costs should be allowed to the Municipality as the prosecutors 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 amotion to set aside the side bar rule, when both parties are before the Court, or it might come up on opposing a motion for an attachment, for non-payment of the costs taxed after demand made, as required by the Statute, (a) The defendant, after a de- mand 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 : — Held, that he was not justified in, afterwards, issuing an attach- ment for the costs of an affidavit of the demand of pay- ment, and the costs subsequently incurred, (b) The Statutes authorizing the granting of new trials, in criminal cases, have been repealed, and now, throughout (o) Reg. v. Gordon, 8 IT. C. C. P. 58. (b Beg. v. Harper, 2 Allen, 433, 632 CRIMINAL LAW OF CANADA. the Dominion, there is one uniform law, similar to that of England, on this point, (a) By the law of England, no new trial can be granted in case of felony. (6) Such was also the law of Quebec, even prior to the recent Statute, (c) and in Nova Scotia.^) "When the indictment has been removed into the Queen's Bench, by certiorari, and is tried at the Assizes, ii seems the Court has power to grant a new trial, where an individual or a corporation has been acquitted on a charge of misdemeanor, (c) The Crown, or the prosecutor, had no right to a new trial, under the Statutes, in case of an acquittal. (/) Superior jurisdictions cannot grant a new trial upon the merits, but only for an irregularity, (g-) It would seem that the Court of Queen's Bench will not grant a new trial, after conviction of misde- meanor at the Assizes, and before judgment, upon the Judge's report of the evidence, (h) The Court has power, at common law, to grant a new trial in any case of misdemeanor, tried at the Assizes, on a record from the Queen's Bench, (i) But until the passing of the 20 Vic, c. 61, a new trial could not be granted in any criminal case in Ontario, tried at a Court of Oyer and Terminer and Graol Delivery, or Quarter Sessions, (j) Where an indictment is preferred at the Sessions, or (a) See 32 & 33 Vic. o. 29, s. 80. lb) Reg. v. Bertrand, L. R. 1 P. C. App. 520; Beg. v. Murphy, L. R. 2 P. C. App. 535. (c) Beg. v. D' Aoust, 10 L. C. J. 221 ; S. d.,,9 L. C. J. 85, overruled; Beg. v. Brme, 10 L. O. R. 117 ; Gibb v. Tilstone, 9 L. C. R. 244. (d) Beg. v. Kennedy, 2 Thomson, 203. (e) Beg. v. G. T. R. 15 U. C. Q. B. 121; but see Beg. v. Johnson, 6 TJ. C. L. J. 287 ; 6 Jut. N. S. 553 ; 8 W. R. 236. (f) Beg. v. Seddons, 16 U. C. O. P. 395, ver A. Wilson, J. (g) Yearke v. Bvngleman, 28 U. C. Q. B. 557, per Richards, (X J. ; Bex y. Oxford, 13 Ea. 416 n. (h ) Yearke v. Bingleman, supra, 557, per Richards, C. J. (i) Beg. v. Fellmoes, 19 U. C. Q. B. 51, per Bobinson, C. J. (j) Reg. v. Mtegerald, 20 TJ. C. Q. B. 546. PBACTICE. 633 at a Court of. Oyer and Terminer, it seems the indictment may be removed into the Queen's Bench, and sent down to trial on a nisi prius record, with a view to applying for a new trial, in the event of an adverse verdict, (as) It seems, also, the indictment, if tried at the Sessions, or at a Court of Oyer and Terminer, might be removed into the Queen's Bench after verdict, but before judgment ; and that the proper course, at the trial, would be to apply to- the Judge to stay the giving of judgment until the in- dictment could be removed, (b) 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 that Court by certiorari, and is sent down to be tried at nisi prius, as all the incidents of a trial at nisi prius attach to it, a new trial maybe granted after conviction, (d) It would seem that the foregoing remarks as to new trial, when the record is tried on the nisi prius side of the Court, can only hold, if at all, when the charge is of misdemeanor. When the charge is of felony, no new trial can be granted, though the indictment has been removed byi certiorari, and sent down to trial at the assizes, on a nisi prius record, (e) Many cases were decided, under the 20 Vic, c. 61, while it was in force. It only authorized/ a new trial on any point of law, or question of fact, raised at the trial (/) It was, at least, extremely doubtful whether affidavits (a) Reg. v. Lafferty, 9 U. C. Q. B. 306. (b) Reg. v. Smith, 10 U. C. Q. B. 99. See also Reg. v. Ozowski, 14 TJ. C. Q. B. 591. (c) Reg. v. D' Aoust, 10 L. C. J. 223. (d) S. G. 16 L. C. B. 494n5, per Meredith, J. See also Arch. Cr. Pldg. 178. (e) Reg. v. Rertrand, ;L. B. 1 P. C. App. 520, overruling, Reg. v. Scaife, 17 O B 238^ (/) See Gray v. Reg., 1 E. & A. Bep. 501 ; Reg. y. Crozier.17 U. C. Q. B. 275 : Reg. v. Oxentine, 17 U. C. Q. B. 295 ; Reg. v. Haanbly, 16 U. C. Q. B. 617 ; Reg. v. Chubba, 14 IT. C. O. P. 32 ; Reg. v. Finkle, 15 U. G. G. P. 453. 634 CRIMINAL LAW OF CANADA. cpuld be received on an application for a new trial, under the 20 Vic, c. 61. [a) Defendant was convicted, at a Recorders Court, of obstructing a highway, on contradictory evidence, the result of the verdict being to shew that he and several others, whose houses and enclosures had been standing for sixty years, were encroaching upon the street. A new trial having been refused ; on appeal, the indict- ment and evidence only was returned to this Court, with a copy of the rule nisi. The Court, under these circum- stances, considering the importance of the case, and that the grounds of the judgment below, and the charge and direction of the Recorder to the jury, were not given to them, directed a new trial, contrary to the usual rule, which was affirmed, that such appeals will not be granted on questions; of evidence, (b) A Court of Quarter Sessions, in virtue of its own original jurisdiction at common law, has no power to grant a new trial, on an appeal from a Justice's con- viction, (c) Where, after conviction for a capital felony, the pro- ceedings were discovered to have been illegal, there hav- ing been no associate Judge sitting in Court during the trial, on motion, on behalf of the Crown, (the prisoner not moving in any way) the indictment and conviction with the prisoner were brought up on certiorari and Habeas Corpus, and an order made, setting aside all pro- ceedings j and remanding the prisoner to custody, with a view to a new trial, (d) It was no ground for a new trial that several witnesses (a). See Beg. v. Chubbe, 14 XT. C. 0. P. 36, per A. Wilson, J.;; Beg. v. Beck- with, 8 XL C. C. P. 274 ; Beg. v. Crosier, 17 V. G. Q. B. 275 ; Meg. v. Oxentine, 17 tT. C. Q. B. 295; Beg. v. Fitzgerald, 20 U. C. Q. B. 546; Beg. v. Hamilton, 16 U. CC.P. 340; Beg. v. Mellroy, 15 U. O. 0. P. 116. (&)■ Beg. v. M 'Lean, 22 TJ. C. Q. B. 443. (c) Yearke v. Bingleman, 28 BF. Q. Q. B. 551. (d) Beg. v. Sullivan, 15 U. C. Q. B. 198. PRACTICE. 635 •were examined for the Crown, whose names were not on the back of the indictment, (a) In the case of felony or treason, if a conviction takes place against the weight of evidence, the Judge passes sentence, and respites execution till application can be made to the mercy of the Crown'.' (b) It would seem that is the proper course to adopt now in Canada, in cases Where, formerly, a new trial might be had by Statute, (c) 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 appellate jurisdiction, but is confined, as a Court of Error, to errors appearing on the face of the record, (d) In Ontario, appeals to the Court of Error and Appeal were, in criminal cases, confined to such as arose under the Con. Stats. TJ. C, c. 113. respecting new trials. But such right of appeal is now abolished. It is the inherent prerogative right, and,, in all proper cases, the duty of the Queen in Council, to exercise an appellate 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 a& may be, the due administration of justice in an individual case, but also to preserve, gener- ally, the due course of procedure. The exercise of this branch of the prerogative, in criminal cases, is to be cautiously admitted, and is to be regulated by a consider- ed) Reg. v. M' Malum, 26 U. C. Q. B. 195. (6) Ye/mlce and Bingleman, 28 TJ. C. Q. B. 557, per Richards, C. J. \c) See Reg. v. BenPrand, L. R. 1 P. C. App. 520-536 ; Reg. v. Murphy, L. R. 2 P. C. App. 552, per Sir Wm. Erie; Reg, v. Kennedy, 2 Thomaon, 216, per Bliss, J. {d) Duval dit Barbinas v. Reg., 14 JJ. C. R. 82. 636 CRIMINAL LAW OF CANADA. atipn of circumstances r and consequences, Leave to ap- peal will only be granted under special circumstances, such as when a case raises questions of great and general importance in the administration of justice, ox where the due and orderly administration of the law has been inter- rupted, or diverted into a new course, which might create a precedent for the future ; and also when there is no other means of preventing these consequences, then it will be proper for the Judicial Committee to advise the allowance of such appeal, (a) It is doubtful whether an appeal, J^es 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 reference to the Judicial Committee, under the 3 & 4 fm. 4, c. 41, s. 4. (b) Special leave to appeal to the Privy Council was gran- ted 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, (c) 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, ( a) Beg. v. Bertrand, L. K. 1 F. C. App. 520. See also Falkland Islands Co. v. Beg., 10 U. C. L. J. 167 ; 1 Moore's P. C. Cases, N. S. 299. (h) Be Ramsay. L. E. 3 P. C. App. 427. (c) Beg. v. Murphy, L. R. 2 P. C. App. 535. PRACTICE. 637 in such journal, comments on the administration of jus- tice by that Court, with liberty, to the Judges of the Su- preme Court, to object to the competency of such appeal at the hearing, (a) Special leave to appeal will be granted where the question raised is one of public interest, involving the constitutional rights of a Colonial Legislative Assem- bly.W Permission was given to appeal, in formd pauperis, in a case in which the appellant was not heard in the Court below, and was denied leave to appeal to Her Ma- jesty in Council, the decision being, in fact, ex parte, (c) Leave to appeal from an order of the Supreme Court of Nova Scotia, suspending an attorney, and barrister from practising in that Court, has been granted, though, under the circumstances, it was incumbent on the appel- lant to apply to Her Majesty, in the first instance, to ad- mit the appeal. On a suggestion of the injury and delay which an application to Her. Majesty would create, the appeal was allowed by the Privy Council, (d) Special leave to appeal was granted, under the circum- stances shewn in Reg. v. Murphy, (e) 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 dis- charged from prison, the Judicial Committee declined to enter upon the merits of the case, or to pronounce an (a) Ee M'Dermott, L. E. 1 P. C. App. 260. (6) The Speaker of the Legislative Assembly of Victoria v.' Glass, L. E. 3 P. 0. App. 560. (5 George v. Beg., L. E. 1 P. C. App. 389. (d) Ee Wallace, t. E. 1 P. C. App. 292-3. \e) L. E. 2 P. 0. App. 538. 638 CRIMINAL LAW OF CANADA. opinion upon the legal objections to the conviction, the- prisoner having obtained the substantial benefit of a free pardon. They, accordingly, dismissed the appeal, (a) It seems the Privy Council would entertain an appeal: from the Court of Error and Appeal for Ontario, without express leave of such Court, (b) No appeal to England is expressly given by our Stat- utes, in criminal cases, but several appeals to the, Privy Council have been made in the Dominion. .., (a) Lemen v. Beg., la. R. 1 P. C. App. 536. (6) Whdan v. Beg., 28 U. C. Q. B. 186, per Draper, C. J. ; Nmker v. YetHa^ L. R. 1 P. C. App. 1; Ko Rhine v. Snadden, L. R. 2 P. C. App. 50. 1.178 INDEX, PA8E ABANDONING CHILD— (see Child) 421 ABDUCTION— Of girl under sixteen 268-9 ABORTION.... 249-264 ABSENCE OF PRISONER— When immaterial 607 ACCESSORIES— Before and after the fact 102 Only in felonies , 102 In misdemeanors all are principals 102 May be to new statutory felonies 102-3 No accessory to felony unless felony committed 1 03 Manslaughter, no accessories before the fact in 103 But may be after the fact. 103 Offence of accessory distinguishable from that of principal in second degree , 103 What authority or procurement renders man liable as 103-4-6-6 Distinction between civil and criminal cases 104 Procurement, how effected 106 Consequences if authority not pursued........ 106 After the fact, what constitutes 107 Wife not accessory for receiving her husband 106 Accessories relieved from responsibility when principal does not pursue authority 107 Accessories to felonies created by Statute * . 106-7 Act as to accessories 107-8 ACCOMPLICE— (see Evidence) ADJOURNMENT— Of trial, when granted 608-9 Of Sessions (see Sessions) 640 INDEX. PAGE ADMINISTERING POISON 249, 50, 64 ADMINISTRATION— (see Summary Administration of Criminal Justice) ADMIRALTY COURTS— Jurisdiction of (see Piracy) 122 ADVOCATE— (see Attorney) AFFIDAVITS— ! Disingenuously drawn up 543 Receiving under Act as to prompt and summary administra- tion of Criminal Justice 426 On application for writ of Habeas Corpus 426-7' AGENT— Liable for act done under authority of his principal 104 AGGRESSIONS— Lawless by subjects of foreign countries at peace with Her Majesty 413 et seq. 31 Vic, c. 14, as to 413-4 British subject by birth may become citizen of foreign state 414-5 May be so treated at option of Crown 415-6 Evidence of being subject of foreign state 415-6-8 Of entering Canada with intent to levy war 416-7-8-9 Person acting in any character is liable 417-8-9 Evidence of engagement several hours before arrest of prisoner is admissible 410 Duplicity inindictment 419-20 No objection of corpus delicti the same in all Counts, ,. 419-20 Offence of foreigner and subject is different ,„ 420 28 Vic, c. 1, as to repressing outrages on frontier 420-1 AMENDMENTS— Of indictments 503 AMERICAN AUTHORITIES— Not binding here 607 ANNOTATIONS— Of miscellaneous Statutes 410 et seq. INDEX. 641 PAGE ANNULLING CONVICTION— Legal effect of... 524 APPEALS— In oases of summary convictions 545 In matter not a crime 545 Procedure on 545-6 Recognizance to try, form of „ 546-7 Notice of appeal 547 Usually heard first day 547 Waiver of right to appeal 547-8 Jury, trial by 548 Ad j ourning appeal i 549 Reinstating 549-50 Evidence on „ 550 Enlargement, what it waives 551 Costs on 551-2 Allowing without affidavit 552 From Sessions to Superior Courts of Law 554-5 To Superior Court when question reserved at Sessions or Court of Oyer and Terminer 604 Rules as to must be complied with 604-5 To Privy Council, when allowed 635-6 When leave granted, and on what terms 637-8 APPLICATION— To Crown for pardon 635 APPRENTICES AND MINORS— Act Con. Stat. U. O, c. 76, as to 429 When apprentice is minor, articles must be executed by some one on his behalf 429 Absolute imprisonment not authorized 429 ARRAY— When quashed 597 Directing to Coroner 618 ARREST OF JUDGMENT— When case reserved , 606-7 When indictment on a Statute contains charge of offence at common law 606 OO 642 INDEX. PAGE ARREST OF JUDGMENT (Continued)— Objections on motion, how limited 606 Presence of prisoner may be waived 60T ARREST— By Magistrate, Constable, etc., et seq. (see Manslaughter) 256> ARSON— Actual burning must be 375- Another, house of 374-5- Attempt to commit %..• 380 Building, what is 377 Burglary, decisions as to apply to arson 375-6- Burning must be actual 375- And, malicious and wilful 375 Construction of Statutes 374-5 Definition ; 374 Evidence of intent to defraud when man sets fire to his own house 378- That house insured 480-1 What is sufficient 379 Goods, setting fire to 380-1 In own use, with intent to defraud 381-2 Grain, setting fire to stack of 382 Indictment for setting fire to own house 378 Must allege intent to defraud 378 ; Surplusage in , 379 Arson, term of art..... 380> Intent to defraud inferred from act itself, when house of third person set fire to 378 Act must be wilful 378 When own house set fire to, must be actual evidence . . . 378 What is sufficient , 379-80 Jury, finding of, conclusive 377 Malicious burning must be 375. Married woman not liable for setting fire to house of husband 370 Negligence in burning 375 Occupied, house must be 376 Must be intention of returning 377 Owner of house, whether liable 374-5 Returning, must be intention of 376-7 INDEX. 643 PAGE ARSON (Continued)— Shop, what is 376 Statutes, construction of ......374-5 Surplusage in indictment 379 Wife (see Married Woman). ASSAULT AND BATTERY— Aggravated, what is 275 On indictment for, may be convicted of common 278-0 Bodily harm, what amounts to assault, with grievous 274-5 Firing loaded pistol into group shews intention to do .grievous' bodily harm 275 Capital felony, assault may in some cases amount to 279 Carnal knowledge, attempt to have, may be assault 270 Charge of offence which includes assault 272-3 Common assault, when there may be conviction of 270-1 Con. Stat. Can., c. 91, did not apply to 276 Complaint of, under 32 & 33 Vic. , c. 20, s. 43, cannot be withdrawn 515 Conductor on train not liable for assault 271-2 ' Consent, can be no assault where there is (see Rape) 270-1 Conviction, sufficient in stating assault committed within Township 279-80 Need not shew that complainant prayed Magistrate to proceed summarily .' 280 Nor that assault made unlawfully 280 Correction, moderate, is j usf ifiable (see Master) 277 Crime, including assault, may be conviction of assault, on indictment for ' 272 But the crime must include assault 272 And the assault must conduce to the death , 272-3 Indictment need not charge assault in terms 273 Definition 269 Force, excess of, not justifiable 276-7 Indictment, for carnally knowing girl, may be conviction of assault on .'. 270 When indictment charges common assault 271 Need not charge assault in terms 273 When should set out mean3 uced to inflict grevious bodily harm 274 644 INDEX. PAGE ASSAULT AND BATTERY (Contiwed)— For inflicting grevious bodily harm 274-5 For shooting with intent to do 271 Charging aggravated assault 278 Intention necessary to make act assault 269-70 Justification of assault in self defence, what amounts to 276-7 Of shooting with pistol 276 No justification of excessive force 279 Maliciousness, necessary in assault, under 32 & 33 Vic, c. 20", s. 19 275 Master, moderate correction by, is justifiable 277-8 Misdemeanor, assault is 279 Punishment of 279 Provocation, words of, cannot amount to assault 276 School teacher 277 Servant, moderate correction, of justifiable 277-8 Sessions have power to try 279 What is assault 270-1-4 ATTACHMENT— Against Sheriff 544-5 Against Attorney 545 ATTEMPTING— To commit misdemeanor 84 To commit felony 85-7 ATTORNEY— Charging costs not authorized by law 545 Cannot act as advocate in Court of Sessions 578 No right to appear before Justices in charges of indictable offences 578 But may in case of summary convictions 578 AUTREFOIS ACQUIT— When a good plea in bar 420-496 BAIL— Principles, on which granted 583 Not when offence is serious and evidence strong 583-4 Probability of non-appearance 583 On charges of perjury arson, larceny, murder, treason, felony and misdemeanor... 584-5 INDEX. 645 PAGE BAIL (ConUwued — On application for, Court may look at information and remedy commitment 584 Lapse of year from imprisonment 584 If prisoner about to die 584 Accessories after the fact 585 Persons, in execution by legal process ,. 586 Obligatory, in case of misdemeanor as well after as before indictment found 585-6 After two trials and discharges of jury for disagreement 586-7 • One Justice may bail in misdemeanor, but not in felony 586-7 When case reserved, Court which tried prisoners must bail... 587 One Assize having passed over without committal of prisoner. 587 Forfeiting, after plea of not guilty 587-8 If offence bailable may be relieved at any time, on giving proper sureties 588 Practice as to entering up judgment on the recognizance 588 Relief from estreated recognizance .*.....%. .588-9 When Judges of Queen's Bench should estreat 589-90 Rescinding order for bail 590 When better sureties may be ordered 590 Application made on affidavits entitled in the Queen's Bench 590 Certifying commitment, information, etc 590 BARRISTER— Not allowed at Coroner's inquest 539 Motion for Criminal Information must be made by (see Coun- sel) 581 BATTERY— (see Assault) BIGAMY— Absence of first wife, when defence 162-3 After absence for seven years, prosecution must prove that prisoner aware of existence '. 163 Banns, when marriage contracted by valid 165 Marriage by' in, case of minors 165-6 Common law of England, as to marriages introduced 21-2,164 Consent, age of 167'8 Marriage, before age of, must be ratified 168 England, Common and Statute law of, introduced 21-2,164 646 INDEX. PAGE BIGAMY (Continued)— Evidence — Extract from register of marriage 161 Of reputation will not suffice 161-2 Must be direct proof 161-7 Admission of first Marriage sufficient 162 First wife, not admissible till proof of first marriage 162 What sufficient of marriage celebrated in State of New York 152 Onus of proof 163 JSxigi facias, when may issue 168 Eirst marriage must be valid 160 Foreign Country, when marriage in' will be held invalid here 167 Foreign jurisdiction, statute extends to bigamy committed in 168 Indictment for bigamy committed in States 168 Jewish marriage, written contract not essential to validity of 167 Licence, marriage by, when parties under age 164-5 Marriage, first must be legal 160 Second need not 161 Laws in relation to .*. 164 By man with sister of deceased wife 165 In Ireland 167 Jewish 167 Of Squaw and Lower Canadian 167 In foreign country, by persons not British subjects 167 Minors may marry by banns 165-6 Onus of proof , when on prosecution 163 Presumption that person not heard of for seven years is dead 164 But not that he is living 164 Second marriage need not be valid ". 160-1 Sister, marriage with, of deceased wife 165 Soldier, convicted of bigamy not discharged from military service 168 Statutes 32 & 33 Vic, c. 20, s. 58 160 4 Ed. 6 Stat. 3, c. 5 160 1 Jac. 1, m. 11 160 26 Geo. 2, c. 33,.., 164 28 & 29 Vic, c 64 166 5 & 6 Wm. 4, c. 54 165 "What is bigamy : 161-3-4 INDEX. 647 PAGE BIGAMY (Continued)— Wife, first not admissible as witness 162 Absence of first 162 Deceased, marriage with sister of 165 BILL OF EXCEPTIONS— Does not lie in criminal cases ...„ 489 BIRTH— (see Concealing Birth). BURGLARY— Breaking necessary 281 Must be actual 281-2 By fraud 283 Chimney, entrance by, is burglary 283 Conspiracy, entrance by, is burglary 283 Daytime, no burglary in 285 Only housebreaking 286 Definition * 281 Dwelling-house, what is ...., 284 Formerly included out-houses, etc 284 Must be inhabited 284 Entering necessary ; 281 By open door or window 282 Other cases of 282 By chimney 283 By conspiracy 283 In night „ 284 Own house 286 .Fraud, breaking by 283 Inhabiting house necessary 284 Occasional absence immaterial 284-5 Intent must be to commit felony 285 To commit trespass insufficient 285-6 Night, burglary can only be committed in : . . . 285 When it commences and ends 285 Breaking and entering need not be both in same 285 Own house, man cannot commit burglary in 286 Roof, entry through hole in, not burglary 283 Statutes 284-5-6 Time of committing 285 648 INDEX. PAGE: BURGLARY (Continued)— What is burglary 284 CAPTION— Of record of conviction may be amended 593 CERTIORARI— Whether it can issue in vacation 534 When granted, of course 561-2" When Court has discretion 561-2 Must be obtained on affidavit 561 What words in Statute take away right to 562-3 None after verdict or judgment, or acquittal 563-5- To remove order, quashing conviction on appeal to Sessions 563 When conviction affirmed 564 When imprisoned for contempt of Court 564 Mere irregularities not sufficient 564 Difficulties in point of law 565 What proceedings may be removed by 564-5-6- Only substitutes superior for inferior Court 566 Application for should- be made in first term, or within six months after conviction 566-7 This rule does not apply to Crown • 567 Notice to convicting Justice 567-8-570- And to Chairman of Sessions 568-9 No notice necessary when writ obtained by private prosecutor 569 Application for should be by summons 569^ Renewing en amended materials 569 Entitling affidavits, rules, etc 569-70- Addressing writ 570 Serving 570-1 Quashing conviction on return to 571 Judgment on 571 Return of notice of motion for 571 Return to by Justice 572-3 Full faith and credit given to 572 If material evidence omitted 572-3 Returning conviction .' 573 Under seal 573 Attachment, for not returning 573 Costs 573-4 INDEX. 649 page; CERTIORARI (Continued)— Amending, quashing. 574 Compelling petitioner to proceed on 571 CHALLENGES TO JURORS— Over prescribed age, no ground of 594-5 Object of 613 Right of peremptory, by Crown 613- Right of Crown to direct Jurors to stand aside 613-4 None in misdemeanor except for cause 614 What is ground of 614-5 Re-opening right of ., 615-6' Prisoner is entitled to challenge for cause before exhausting peremptory 617 But this right may be waived 617-9 ' Peremptory, when allowed 617-8 For cause, when good 614-8 Array, challenge to, direction to Coroner 618 When to be made , 619-20 Rules as to order in which taken 620 Mode of trying right to 620 CHAMPERTY AND MAINTENANCE 154 Common law offences 155 Crown bound by law 155 Object and principles of law 155 Sharing in profits essential 158 Suit pending, whether must be 156-8 Titles, selling pretended 159 Act 32, Hy. 8, c. 9, as to 20, 159 Repealed in Ontario 159' What is offenee within .' 159 What is Champerty 155-6-7-8-9 CHEATS AND FRAUDS— Actual prejudice must be 371 Common Law offence 371 Definition ::. 371 False token or mark 371 Indictment must allege that article passed off by false token .. 371 And that selling was by means thereof 372r <650 INDEX. PAGE €HEATS AND FRAUDS (Coutvrmedy^ .. Prejudice must be actual , , 371 Private fraud, what is 372 Token mast be false 371 XJHILD— Unlawfully abandoning and exposing 421 Act only applies to persons bound to maintain 422 Does not apply if child dies , 422 What is offence within Statute. 422-3 •CHOSES IN ACTION— Assignable at Law (see Larceny) 159-60 CHURCHES— Maintenance of good order in . . , 444 Act must be done during divine service 444 Commitment without first issuing warrant of. distress ......... 444 -CIRCUIT COURTS OP NEW BRUNSWICK— Jurisdiction of 574 CIVIL ACTION— Suspension of, when felony disclosed in evidence 73 Exceptions to rule 75 COERCION— • By master or workman 153-4 •COINAGE OFFENCES 109-112 Imperial Statutes in force 110 Indictment should negative lawful authority or excuse 109 And bring offence within Statute 111-2 Resemblance to real coin 110 Evidence of possession of other counterfeit coin admissible on indictment , . : 479-80 COMMISSIONS— For holding Courts of Oyer and Termmer 592-3 •COMMITMENT— Warrant for indefinite time 531 Need not shew information on oath, but must state place of committing offence 531-7 Certainty and precision in 532 INDEX. 651 PAGE COMMITMENT (Continued)— Court will look at depositions .532-3 Should follow forms 534-5 Signing of by one or two Justices 535 Issuing of, when discretionary 535-6 Should ascertain amount of costs 536 Executed under Act after repeal 536-7 Should shew before whom the conviction was had 537 ■Cannot be withdrawn from gaolor"s hands 537 Should set forth day and year : . . . 537 And authority of Magistrate *. 537 Should be in writing 537 Final for want of sureties to keep peace (see Warrant) 537-8 COMPLAINT OF ASSAULT— Under 32 & 33 Vic, c. 20, s. 43, cannot be withdrawn 515 Justices will be ordered to hear it 515 Discretion of Justice 515 Adjudication and certificate 516 "What certificate bars 516 Amending information '....516-26 COMPOUNDING FELONY 141 Compromising prosecution, only by leave of Court 141-2 Informations on Penal Statutes 142-3 Misdemeanor, compounding of, illegal 142 Prosecution, compounding 141-2 Qui tarn action 142 CONCEALING BIRTH— Secret disposition depends on circumstances of each case 262-3 What is 263-4 CONCILIUM— ; When granted .' 627 CONSENT— By prisoner 626 CONSPIRACY— Agreement, unlawful, is gist of offence 401-2 Indictable, though no offence, without 402 Object need not be unlawful or criminal 402 652 INDEX. PAGE CONSPIRACY (Continued)— By member of copartnership 402-3 Common law offence 406 Concert, proof of 405 Contract, no objection that money was to be obtained by 408 Definition 401 Evidence when joint participation 405 Of concert 405 General nature of conspiracy 405 Of conspiracy to commit larceny 405-6 Execution of purpose not necessary 402 Need not be alleged in indictment 404 Felony committed in pursuance of 408 Gist of offence, unlawful agreement is .; 402 Indictable, what conspiracies are 406-7-8-9 Indictment need not allege execution of conspiracy 402 Lies, where object is to effect legal purpose by illegal means ■ 403 Must shew object or means unlawful 403 When means should be set out. 403-4 Laying property in Municipal Corporation 404 Shewing object of conspiracy 404 Alleging unlawful agreement 404 And unlawful means 405 Setting out pretences in conspiracy to obtain money by false 406 Specifying goods 406 Inference, conspiracy matter of ,. 405 Joint participation, all liable for 405 Misdemeanor, conspiracy to kidnap is 406 Object need not be unlawful 402 If unlawful, means need not be. 403 When felonious, conspiracy not merged 408 One person cannot be guilty of 408 Participation, liability in case of joint 405 Purpose, when corrupt or illegal, indictment lies 403 Two persons must combine 408-9 CONSTRUCTION OP STATUTES— According to common law 410-1 INDEX. 653 PAGE CONSTRUCTION OF STATUTES (Continued)— Affirmative do not alter common law 412 Consolidated Statutes, Court may refer to original enactments 411 Expost facto, when given effect to 411 General words following particular 412 Parimateria, Statutes in, taken as one Act 412 Penal construed strictly 410 Remedial construed liberally 410 Remedy, construed in advancement of 412 Repeal of former by subsequent 1.77-8, 413 Retrospective effect . . . , 411 Words taken in ordinary sense 411 CONTEMPTS— In Dominion Parliament 10 In Local Legislatures (see English law in force) 11 Before Justices of the Peace 529 By witness in not obeying subpoena 540 Of Court 542 Article in newspaper 543 Disobedience of order 542-3 Punishment of in Canada . . '. 543-4-5 Sessions may fine and imprison for 579 CONVICTIONS— On application to quash, convicting Justice should be made a party 570 Convictions, return of by Justices, Acts as to 437 Separate penalty for each conviction 438 Illegality of conviction 437 Orders for payment of money 437 To what Court returnable 437 Convictions Summary, appeals from (see Summary, Convic- tions, Appeals) , 545 CONVICTION— Under Con. Stat. Can. c. 93, s. 28, for damaging property . . 521 Sufficient to follow forms 521 Where no form given by Statute '. 521 Name of informant must appear > 622 And place of Justice acting 522 654 INDEX. PAGE CONVICTION (ConUtmed}— Certainty in ; 522 In alternative 522-? Not sufficient, to state legal result of facts 523-4 Following words of Statute 524 Reversing effect of 524 Quashing 524-5 Must be sealed 525 Costs 525-6 When 'bad 526 Imprisonment awarding on 526 COPY— Of indictment, when granted 610 CORONER- Inquisition of 538 Inquest on Sunday 539 Second on same body 539 Barrister cannot insist on bring present at 539 Depositions before, proof of 476 CORPORATION— Punishable for libel 169 Attachment against for non-payment of costs 630 COSTS— On convictions before Justices 525 Attorney charging, when not allowed by law 545 In general, none allowed in Crown cases 629 When allowed in, application for, etc 630 When rule nisi for mandamus served 630 Against Corporation 630 On dismissing appeal to Sessions 630 By defendant prosecuting certiorari 630-1 Side bar rule to tax 631 Attachment for, when justified 631 counsel- No right \o appear before Justices on charges of indictable offences * 578 But may in case of summary convictions 578 INDEX. 655- page COUNSEL (Contimwd)— Only two can be heard on behalf of prisoner 611 Motion for criminal information by 581 Bight to cross-examine witnesses and address jury 611-2" Right of Crown Counsel to reply 612 COUNTY COURTS— Jurisdiction of 575 COURT— Forging seal or acting under process of 348-9 Of Record has power to fine and imprison for contempt .... 545 Power necessary to constitute 579 Of Oyer and Terminer, what authority to hold should be given to Judge and Queen's Counsel 592-3- CREDITORS -Assignment to defraud Money bond is personalty, within 13 & 14 Vic, c. 53 -. . 447 CRIME— Including assault, may be conviction of assault, on indictment for 272" CRIMINAL INFORMATION— Against officer for miscpnduct 148-9-50 In case of libel 189 Lies where indictment lies 579, Recognizance to prosecute 579-80 Party applying must waive all other remedies 580 Notice of the motion must be given , 58O Time, within which to be moved for 580 Renewing 580 Must be made by Barrister or Counsel. 581 Entitling affidavits, requisites of , .' 581-2 Defects in, how supplied 582 Signing information 581 For assault on Members of Parliament 581 Amending, evidence, venue, etc 582 CRIMES IN GENERAL \ 71 Attempt to commit misdemeanor is misdemeanor 84 Attempt to commit felony is misdemeanor 85> •656 INDEX. PAGE CRIMES IN GENERAL (Continued)— Attempt to procure a woman to make affidavit that A., father of illegitimate child,. is misdemeanor 84 On indictment for felony or misdemeanor, jury may find prisoner guilty of attempt to commit it 84 Civil Action — Suspension of 73 When felony disclosed in evidence 73 Suspended till acquittal or conviction of felon 73-4 What sufficient prosecution 74 When rule applies 73 When it does not 74 Jury cannot try felony in civil action 74-5 Judge must decide whether case shall go to jury 75 Exceptions to general rule, under Temperance Act, 1864 75 In case of Crown ■. 76 Quebec, law in, different from other Provinces 76 . ■Civil and Criminal Proceeding — Distinction between '... 72 Crimes considered local 72 — Cognizable only where committed 72 Concern public 73 Mean offences punishable by indictment 76 Divided into felonies and misdemeanors 79 What are indictable 79-80-1-2-3 Nature and incidents of 71 etseq. Criminal proceedings, what are 72 Distinction between civil and criminal proceeding 72 Of Public wrongs from private 73 Definition ; 71 Election, neglecting or refusing to administer oath at, indict- able '. ■ 83 Felony defined 76 When crime becomes 77 Attempt to commit, is misdemeanor 85 On indictment for, jury may find prisoner guilty of at- tempt to commit 84-5 Attempt to commit, must tend to execution of principal crime 85-6 Must appear that attempt might have been completed . . 86 INDEX. 657 PAGE CRIMES IN GENERAL (Contvimed)— Attempting to commit distinguishable from intending to commit • 87 Offence made which was before misdemeanor 78 Misdemeanor is merged 78 Now Statute alters this 79 Effect of this Statute 79 Inciting to commit misdemeanor is misdemeanor 84 Indictment, for what crimes it lies 79-80-1-2-3 For whatever openly outrages decency -, 80 For violation of positive command in Act 80 For act not an offence at common law 80-1 Where a Statute forbids or enjoins an act 81 Inference that every person intends the natural consequences of his own act 88 Intention, act resting in, not indictable 87 Misdemeanor, what is 79-87 Attempt to commit is 84 Attempt to commit felony is 85 Inciting to commit misdemeanor is 84 When none committed 87 On indictment for, jury may find prisoner guilty of lesser misdemeanor 84 Disregard of positive command in Statute indictable as 87 How differs from felonies 88-9 Punishment of 89 Misprision of felony 79 Motives in criminal proceedings 87-8 When material and when not 88 Penalty, when annexed to offence in clause of Act creating it, no indictment lies , 82 Public officer,, refusing to discharge duties, indictable 83 Public wrongs distinguished from private 73 Remedy when cumulative 82 Returning officer indictable for entering names in poll- book .. 82 Soliciting and inciting to commit felony when none commit- ted, is misdemeanor 87 Statute on which indictment framed, effect of repeal of 77-8 Creating offence, repeal of 78 PP 658 INDEX. PAGE CRIMES IN GENERAL (Continued)— Altering quality of oflence, substituting new mode of punishment , 78 Annexing new punishment to common law misdemeanor 78 Making offence felony which was before misdemeanor, effect of 78-9 CRIMINAL LAW— Right to legislate upon vested in the Dominion Parliament (see English Laws in Force) 8 CROWN— Application to for pardon, when proper 635 Right of Counsel representing to reply 612 Prosecutions, how they differ from civil suits 612-3 Cases, may stand in paper for argument with civil suits 627 CUSTOMS OFFENCES— Not criminal proceedings 72; Acts as to 124 " Against form of Statute " when required in information . . 128 Breaking building, what justifies 125-6- Colonial Legislature, power to impose additional grounds of forfeiture 127 Conviction, under (N.B.) 18 Vic, c. 36 130 Costs, revenue inspector not liable for 129 Entry indivisible 128-9 Gunpowder, importation of 127 Indictment, when lies under 31 Vic. , c. 6 124 Allegations in 124-5 When insufficient 126-7 Information, written on oath when necessary 125 Whether it lies under 8 & 9 Vic, c 93 127 Plea to 128 Must have contained allegation " against the form of the Statute " *. 128 Must specify, particular illegal act 128 Need not state that informer reputable person 130 When not sufficiently certain 130 Jury, scienter proper question for 128 Justice, presence of at breaking required 125 INDEX. 659 PAGE CUSTOMS OFFENCES (Continued)— When should demand admittance 126 Onus of proof 129 ■Order, when indivisible 130 Own goods, whether information lies for smuggling 127 Penalty, when only one recoverable 128 Seizure when justified 126 Smuggling 124 etseq Spirits, when liable to forfeiture 127 Stress of weather, landing of goods, under may be shewn 128 Warrant, under 18 Vic, c. 36 129 DAMAGING PROPERTY— Conviction for 521 DEATH— Of prisoner renders it unnecessary to give judgment 249 Warrant to execute sentence of 629 DISTINCTIONS— Between civil and criminal proceedings 72 Between larceny embezzlement, and the obtaining of money by false pretences 349 Between murder and manslaughter 252 DIVISION COURT— (see Court) DOCK— d to stand in 607 DOMINION PARLIAMENT- (see English laws in force) DRUNKENNESS— Effect of on criminal liability (see Temperance Act) 94 EDUCATION— Promotion of, in Quebec — Conviction under 14 & 15 Vic, c 97 442 EJUSDEM GENERIS— Rule as to words 325-6,412,440 EMBEZZLEMENT— Account, general deficiency of...! 325 • Accounting for several sums 329 660 INDEX. PAGE EMBEZZLEMENT (Continued)— Acts of embezzlement, not exceeding three within sis months 328-9 Agent, words, or other, do not extend meaning of previous (see ejusdem generit) ......325-6 Banker, meaning of term in Statute 325-6 Clerk, who is 322-3 Construction of words "or other agent " : . . . » 325-6 ■Counts for, joining with counts for larceny 504-5 Definition 320 Distinction between and larceny 349-50 Employment, money must formerly have been received by virtue of 321-2 Not now necessary 331-2 To receive money sufficient 323-4 Entry in ledger of sum received 324 Evidence of 324 Form of indictment (see Indictment). Friendly Society, officer of 321 Indictment for embezzling cheque 329 Laying property 329-30 Forms of, in Statute 330-1 Only apply to one species of 330-1 For larceny 331 Specifying coin in 331 Stating property of partners and ] oint owners 323 Joint owners (see Indictment)... 323 Larceny, embezzlement now amounts to 328 Married woman, property of 321 Master, receiving money from and for 326-7 Money, embezzlement of 329 Property in 329-30 When sufficient to allege embezzlement to be of 331 Officer of friendly society 321 Particular sum, receipt of 324-5 Partners (see Indictment). Possession in master or owner 326-7-8 Receipt from third persons 326-7 From master or owner 327-8 Return, intention to 324 School trustee 321-2 INDEX. 661 PAGE EMBEZZLEMENT (Continued)— Servant, who is 322-3-4-330 Trade, rules in restraint of 321 Treasurer of County 320-1 Trustee acting on one occasion 322 What is ...320-1 ENGLISH DECISIONS— Not binding here 607 ENGLISH LAWS IN FORCE— British North America Act , 7-8 Constitution granted by 8-9 Colonial Act repugnant to Imperial, void 12 Colonies, modes of acquisition 1 Laws prevailing in each case 1-2 No rule as to 16 Coinity of nations prevails between Colonial Parliament and Tribunals of Mother Country 13 Common and Statute Law extending to Colonies, distinction between , 17 Rule that Common Law applies 1 7-18 Exception that Statute Law applies 17-18 Contempt, power to imprison for, by Dominion Parliament. . 10 By Local Legislature 10-11 Criminal Law, right to legislate on, by Dominion Parliament, 8 By Local Legislature 8-9 Crown, can create Local Legislative Assembly in Colony 6 Dominion Parliament 9-10 Right to legislate on Criminal Law 8 Power to imprison for contempt 10 Same as House of Commons, in England 10 English Laws, only such as are of general and universal ap- plication introduced by 14 Geo. 3, c. 83 20 Did not apply to Acts already in force 20 Forcible entry, Statutes as to in force 22 Grant of legislative powers to Colony cannot be recalled 12 Imperial Parliament has still power to bind Colonies by legis- lation 12 Right of legislation on some subjects reserved to 13-14 Imperial Statutes affecting different Provinces 3-4-5 662 INDEX. PAGE ENGLISH LAWS IN FORCE (Contwued)— When they extendtopolonies 15 Imprisonment for contempt, power of not inherent in colonial assemblies 10-11 But power to preserve order is 11 Introduction of English Criminal Laws on much same footing in all Provinces 17 Local Legislature's right to legislate on Criminal Law 8-9 No power to imprison for contempt 10-11 But have power to preserve order 11-12 Lotteries, Act as to, in force , 19-22 Manitoba, how acquired 2 How formed 6 Grant of legislative powers to 9 Jurisdiction of General Court in 6 Marriage, Common and Statute Law of England, as to intro- duced '. .21-2 New Brunswick, how acquired 2-3 Grant of legislative powers to 7 Nova Scotia, how acquired 2-3 Grant of legislative powers to 7 Ontario, how acquired 2 Grant of legislative powers to 6-7 Practice, English Law introduced in . . : 20 Provinces, only such laws as are applicable and necessary in- troduced 18 English Statutes of general and universal application ap- ply to 18-19 Quebec, how acquired . 2 Grant of legislative powers to 6-7 Bepeal in England of Act introduced into Colony, effect of.. 14-15 Statutes introduced : 32 Hy. 8, c. 9 •. . .- 20 20 Geo. 2, c. 19 21 5 & 6 Ed. S..c. 16 .- . . 21 49 Geo 3, c. 126 \ 21 1 W. & M., c. 18 21 8 & 9 Wm. 3, c. 27 22 33 Hy. 8. c. 20 22 26 Geo. 2, c. 33 22 INDEX, 663 PAGE , ENGLISH LAWS IN FORCE (Continued)— Mutiny Act 22 Statutes not introduced : 5Eliz.,c.4 21 28 Geo. 3, c. 49 21 Statute, whole clauses of must be applicable before it can be in force 21 Time, lapse of should render Colonial Courts cautious in adopting English Statutes 15 Titles, Statutes as to buying disputed, in force here 20 ENLARGEMENT— Waives all formal and technical objections 550-1 TERROR — When indictment lays previous convictions 610-11 Writ of, Jies for substantial defects appearing on the face of record 620-1 Matter decided as strictly legal proposition ■ 621 Where venire facias addressed to improper parties 621 Must be founded on some question of law which could not have been reserved • 621 Discretion of Judge not reviewable in 621-2 Improper disallowance of challenge 622 On adjudication for contempt 622 For improper award of venire de novo 622 To reverse judgment of Sessions 622 Upon summary convictions 622 'On judgments 623 Where, in fact, and not in law, Court in which proceedings taken ■. 623 Form of writ 623 Fiat of Attorney-General 623-4 Assigning new on argument 624 ' What matters can be raised on record, so as to be examined in .' 624-5 Not the rulings of the Judge or his directions to the jury 625 What a prisoner can consent to, to purge error 626 Concilium forargument 627 664 INDEX. PAGE ESCAPE— What is .' 237-9 High contempt and misdemeanor .- 238 Party must be actually arrested and legally imprisoned 238 Negligent and voluntary 238 What is negligent 238-9 Custody of law, how long it continues 239 EVIDENCE— "U- WcUOaa^, Q^X^y)sv^. kfc*J> '11$, Absence of witnesses from country not sufficient to render de- position admissible j 477" Accomplice, evidence of sufficient 459 Should be corroborated 459 But evidence need not affect identity of accused, or shew him guilty party 469 Rule only of practice 460 Acquittal, of one prisoner in order to call him as witness for another jointly indicted 453 Discretionary, at close of prosecutor's case 454 Obligatory at close of prisoner's 454 Copy of record of 485 . Affirmative, burden of proof on party asserting 450 Proof that no inducement held out 468 Application to Crown for pardon in case of improper con- viction ^ 489 Authority, inducement held out by person in 467" When confession to person in, admissible 473 Bill of Exceptions does not lie in criminal case 489 Breach of peace, proof of 486-7" Burden of proof, rules as to 449 Lies on party asserting affirmative 450 Except where negative proof is peculiarly within know- ledge of party...... 459 Caution should be given to prisoner before making con- fession ; 468-9 Challenges, prisoners severing in, when one may be witness for, the other 456> Charge not the same as that on which deposition taken. . . .477-8 Child, when competent witness 457 Close of case, no evidence admissible after 488 INDEX. 665 PAGE. EVIDENCE (Continued)— Competency of witnesses 457-8- • Confessions, rule as to, different in criminal from that in civil cases 449 Must be free and voluntary .• 467 If under oath, inadmissible 467 But this rule only applies when charge is against prisoner himself 467-8 Need not appear affirmatively that no inducement held out 468 Inducements to confess 468-9-70 Caution, what necessary 469-70 Examinations before commissioner in bankruptcy 470 Made under the hope of being permitted to turn King's evidence 471 To constable, by accused in his custody 471-2 Advice on moral grounds 472-3 How introduced 473 Subsequent warning or caution, after inducement held out 473-4 Names of others in 474 Duty of magistrate, in receiving 475 Confidential communications, witness not compelled to dis- close ; 461 Consistent with prisoner's guilt, all circumstances must be, and inconsistent with innocence 451 Contradicting witness, 200 Minutes of boundary line Comrs. not judgment 233 Municipal Corporation, power to open new roads. 220 Must keep same in repair 223 Corporation of County has jurisdiction over road between Townships 224 Bridge between two counties 225 New trial, after verdict of acquittal 233-4 Non-repair, of indictable 199-221 Nuisances to, of two classes 21& 682 INDEX. PAGE HIGHWAYS (Conimmed)— Ontario, how highways have accrued in 202 Opening by Municipal Corporations 220 Petition, under 12 Vic, c. 35 to adjust surveys 225-6 Question of dedication for jury 214 Whether road, highway, mixed question of law and fact 214 Railway Co. when bound to repair bridge 224 Return of laying out, not necessary 232 Road Companies liable for non-repair of highways 221-2 Sea shore whether highway on 208 Shutting up lane, street, public road by gate , 218-9 ■Shutting up by by-law 219-20 Under (N.B.) 1 Rev. Stat., c. 66 220 Statutes 5 & 6 Wm. 4. c. 50; 27 & 28 Vic, c. 100; 5 Wm. 4, c. 2 232 Statute labour on road makes highway 214 But must 1 be usually done 214-5 Penalty for non-performance of 215 Within division of Township 215 Must be resident inDivision . . . . 215 Warrant to imprison for non-performance of 215 Surveyor, road laid out by 206 Thoroughfare may be public highway though not 213 Rule, when claimed by dedication 214 Toll Companies, when liable to keep roads in repair 223 User for thirty years evidence of dedication 208-9 User for seventy years, when land in lease 210 User and dedication establish highway 211 But stronger evidence in newly settled district 211 Dedication may be presumed from 211 But is only evidence of dedication 212 When makes highway 213 Variance on indictment. 233 Velocipede may be obstruction : . . . 217 Via trita does not compose whole road 224 Waggon standing in highway is nuisance 217-8 What is highway < 203-4-5-6-7 Width of road preserved 224 HOMICIDE — (see Justifiable Homicide and Excusable Homicide) INDEX. 683 PAGE IGNORANCE— Of law no defence * 96 But may be ground for application to Government 96 Of fact, is defence 97 IMPERIAL ST ATUTES T (see English Laws in force) IMPRISONMENT— Different purposes for which imposed 539 Re-imprisonment , 639 Period must be certain 529,39-40 Day of discharge 540 . Porabsolute time, under 4 & 5 Vic, c. 27 447-8 Where conviction for several offences 526 INDIAN LANDS— Acts relating to sale of 436 INDICTABLE OFFENCES— (see Crimes in General) 79 Duties of Justices on charges of 527 Discharge by one does not prevent another from acting ..... 527 Justice must proceed as directed by the Statute 527-8 Indictment may be preferred, though Justice refuse to pro- ceed 528 Warrant of arrest 528-9 INDICTMENT— (see Pleading, and the different titles through the book) Copy of, when granted 610 INFANTS— Criminal liability of (see Persons Capable of Committing Crimes — Abandoning) 90 INFORMATION OR COMPLAINT— Amending 526 INSANE PERSONS- ' Criminal liability of (see Persons Capable of committing crimes) , 92 INTENDING TO COMMIT FELONY— (see Crimes in General) 87 INTOXICATING LIQUORS; SALE OF— Act 27 & 28 Vic, c. 17, as to .' 440 684 INDEX. PAffiE INTOXICATING LIQUORS,' SALE OF (Contvrmed)^- Objeotof 441 Limited to where Temperance By-law is in force 441 Penalty, to whom it belongs. , 441 Conviction, must adjudge it to such person 442 JOINT PARTICIPATION— In unlawful act renders all liable 99-100-405 When act committed in prosecution of unlawful purpose .... 10© JUDGE— Decides Law 598 Misconduct by (see Office, Offences by Persons in) I45 JUDGMENTS— Courts giving out of term 233 Staying the entry of, arresting, etc 606-7 JURORS— Howsummoned 593-4-T Qualifications and exemptions 594-5 Aliens 595 Drafting panel of, from list for United Counties, on precept therefrom, when trial takes place in one of Counties, after severance of union 595-6> Selecting from panel returned into Court, in obedience to pre- cept 597 Venire facias after issue joined 597 From what jury-book empanelled. 597-8 De meditate Ivnguas not allowed 59ft Examining as to qualification , 618 Swearing of thirteen 618-9 JURY— On appeals from summary convictions 548 Can only decide on facts 598 Cannot try whether prisoner extradited from States for for- gery 598 Must follow direction of Court in point of law 598-9 After retiring may return and re-examine witnesses. 599' Misconduct of, when vitiates verdict 599 1 Separation of. . . .* 599-600* INDEX. 685 PAGE JURY (Continued)— Refreshments to . . . , ■. 600 Discharging, when proper 600-1-2 When it does not operate as an acquittal 601-2 Death or illness sufficient . . ' . 601 To obtain evidence 601 Carrying from town to town in a cart 602 Rightto find general verdict 603 JUSTICES OF THE PEACE— Appointment of 512 Oath of qualification , . . . 512 Proof of qualification 512-3 Jurisdiction in City and County 513 Under Commission of Peace 513 Maxim omrna prosswrmmtw rite esse actu 513-4 Must have jurisdiction over individual 514 Information must be laid 514-18 What gives jiirisdiction ,. 514 Ousting by claim of right . .. 514 By question as to title to land 514 Power to convict summarily 517 Rendering judgment >. 526-7 Acting for Division or County '. . t . 527 "Where Statute empowers two, conviction by one 527 Duties of, in relation to indictable offences 527 May commit for contempt 529-30 And for continuing periods 529 Doubtful whether Justice acting in his own house can com- mit 530 Requisites of commitment 530 Warrant to constable 530-1 Justice exclusive judge of contempt 531 Con. Stats. U. C, c. 126, passed expressly for protection of 535-6 JUSTIFIABLE HOMICIDE— Of three kinds 261-2 JjARCENY— Act of stealing, must formerly have been separate indictment for each 311 Three may now be inserted in one indictment. . ...... 311-12 INDEX. LARCENY (Continued)— . PAGE Acte or deed not subject of larceny 311 Agreement unstamped 290-1 Attempting to commit 100-1 Animo furandi necessary 292-3 Bailee, porter is , 303-4 Whether animw fwrandi, at time of obtaining, is neces- sary 303-4 Hirer of horses from livery 304-5 Lessee of pawn.' 3Q5 Agent of Express Company 305-6 Married woman * 30g Distinction between bailee and servant 308-9" Bailment, what is 303-4 Must be to re-deliver same chattel or money 304 Delivery of goods for sale 305. To Express Company 305-6 Bond, when subject of larceny 290 Carrying away necessary . . ., 292 But least removing sufficient 292 Certificates, subject of 290 Choses in action not subject of 290 Coin, species of, need npt be alleged ..: 312 Consent, goods taken by . . .292-3 Continuous taking when thing not subject of (see Taking) . . 291-2 Deed passed before notary not subject of 311 Definition 281 Distinction between false pretences and 349, Felonious intent, goods must be taken with 292 Fraudulent obtaining of goods by which property does not pass - 29» Possession parted with through fraud 299 Property so parted with 299 Property obtained by sale 301 Fruit, stealing growing 3^ Goods subject of larceny must be personal 290 And subject of property 291 Dogs, stealing of 291 Animals ferce natwm 291 Grand Larceny abolished 292 INDEX. - 687 PAGE- LARCENY (Continued)— Husband stealing goods of with wife's privity 308 Indictment lies for three takings within six months 311-2' Sufficient to follow forms 312 Need not allege value 312 Must specify valuable security 313 What is surpluBagein 313 Laying property in notes 313 In master or servant 314 In father or son 314 When gift of personal property mter vwos 314 When there is administratrix — 315 Where goods are property of partners or joint owners . . . 315 Or tenants in common, or parishoners of church 315 Or when larceny is committed by lodger 317 Injury done to two or three trees may be added together 311 Joint owners laying property in (see Indictment) 315 Jury, what questions are for 306 Lodger, on theft by, property in goods laid in owner 317 Lost property, larceny of , 293 General rule as to 293-4 Belief at time of finding that owner can be ascertained . . 294 Belief that goods abandoned 294 Property mislaid 294-5 Means of ascertaining owner .295-6 Felonious intent at time of finding „ 296 What is lost property 295 Married woman may be bailee 308 Cannot steal goods of husband 308 Menace, stealing by 303 Miller stealing meal 309 Money, person may be bailee of 306 Proof on indictment- for stealing . ' 312-3 Obtaining possession lawfully 297 Obtaining fraudulently is , 297-8 Obtaining property fraudulently is not (see Fraudulent, Ob- taining, etc.) 298 Partners, laying property of, in indictment (see Indictment) 315-6 Pawn, selling of, not larceny 305 Petty larceny abolished 292 688 INDEX. PAGE XARCENY (Continued)— Police Court, stealing or destroying information in 310 Possession obtained by trick 302-3 When possession of servant determined, he may after- wards commit larceny (see Obtaining, etc., Fraudulent, etc 307-8 Post letter, whether larceny can be committed of 296-7 Potatoes are subject of 292 Proof on indictment for stealing money 312-3 Property, larceny cannot be committed of things not the subject of 291 If property passes, can be no larceny 297 If owner intends it to pass, it will pass, and no larceny be committed 297-8 Servant may pass , . .298-9 Or cashier of bank 299 But now larceny by Statute 299 When property does pass 300 When obtained by false sale 301 When in bailee 301-2 Laying in indictment (see Indictment). Record, stealing or destroying 310 Returning goods may negative anvmo fura/ndi 293 But no defence that prisoner intended to 293 Robbery, larceny included in 287-3Q0 Sale,. false, byfsaud : . . . .'. ..'.-. . , 301 Servant may pass property - . -. 298 • May be guilty bf larceny (see Bailee) 308-9 Several takings may now be laid in indictment {see Continu- ous, etc., Takings, etc.) ... - .' ., .- 311-2 Shareholder in Company cannot commit larceny from 309-10 Ship at sea, larceny on board ;." 317 Subjects of 290-1" Surplusage, what is 313 'Taking, must not be continuous act with severance, when thing not subject of larceny 291 Should be interval 291-2 What is continuous taking 292 Trespass, larceny includes 292-7 Trick, possession obtained by 302-3 INDEX. PAGE LARCENY (Continued)— Value need not be stated .......... 312 Is immaterial „< W. 317 Venue, when goods stolen on journey ; 316 When taken in Maine 317 Or from ship on sea 317 Verdict, when sustainable, • . .* 317 Weaver, when guilty of larceny » . 309 Wife (see Husband). Will, must be taking against . . .•- 292-7-300 LAW— Foreign, not binding '607 ' Mistake in, no defence ; 96 But may be ground for application to Government 96 LAWLESS— Aggressions by subjects of foreign country at peace with Her Majesty (see Aggressions). mm LIBEL— •• ( ' Action, when lies for against Corporation ..'... 169 Affidavit in judicial proceeding' is privileged . . 174 Bill of rights, principle of, applies to petition to Lieutenant-, . Governor"; — ._ 176 Malice destroys privilege in petition '. : . . 176 Intended to protect petitioners applying to Crown 177 Applies to public rights only 177 Bona fides necessary when matter otherwise libellous. . . . . 181 Case, after closing, cannot put in evidence •. . 488 Commons, House of, staying proceedings for publishingVotes of.... - 177 Comparison of dispffted writing tk '.:...■■.. 188 Libel may be proved by 188 > Courts, reports of proceedings may be published 171 _' Ground of privilege . .'. .... 172 Ex parte proceedings of '......_ ./.. ;. . 172 Dignity of Court cannot lje regarded -..'■...... 172 Privilege protects publicaM^of proceedings of open Po- ' lice Court dn charge of iiHctable offence .*.,... 173 • Corporation, action for libel lies against . . ._ 169 KR • _-. if 690 % INDEX. PAGE LIBEL (Continued) — , - May also baindicted ........ : 169 Criminal. informwon, on application for Court ia position of Grand Jury .......". ' 189 Must have same evidence as Grand Jury 189 Libel itself must be filed '. 189 Legal,, evidence of publication '. 582 Debate An Parliament, publication of privileged 178 But must be fair report of 179 Defence for defendant, to shtffr that publication without his authority , 177 What sufficient defence to rend,er conviction illegal 188 Ex parte proceedings of Courts, publication of, privileged 172 House < of Commons, staying proceedings for publishing votes of.!.... ..: 177 Indictable offence, proceedings on charge of, may be pub- lished , .173 Indictment, lies for libel whenever action lies 168-9 May be maintained against all concerned in joint publi- cation of libel , ' 169 Inuendo in .' 189 Individual, libel upon, what is h 168 Information (see Criminal information) Inp-atitude, to charge man with, is libellous ...:....:..... 170 Inuendo, use of W. 189 For Court to say whether capable of bearing meaning assigned to it (see Indictment) 189 Joint publication of libel, all liable for , . 169 Judicial proceedings, fair report of, protected 174 Judge t© determine privilege 183-4 ■ Should ask Jury whether matter published bona fide. 185 Judges,. acts, wordAor writings of, in judical capacity, privi- leged ...T 174 Jury, what questions are for 170 When evidence of malice, extrinsic or intrinsic, jury i"v • must determine privilege 183 ' 1 6 Cannot determine whether libel contained in official document -^fc- 18t> li^Pc Can determine wheth^pfiefendant honestly believed truth of his statements .# 185-6 INDEX. 691 PAGE LIBlL (Gontmued)— Jurymen, acts, words, and writings of, in official capacity, privileged 174 Magistrates, report of proceedings before, privileged, but must act within jurisdiction 172-3 Malice, proof of express 181 When libel privileged, proof of express malice must be given 181 Meaning of, in legal sense 181-2 To prove express malice may shew that libel untrue .... 182 Libellous expressions in a privileged communication may be evidence of actual malice 182 When express malice shewn, defendant may prove state- ment true ■*. 182 Judge fco determine whether inference of malice repelled 183 When Jury decide 183-4 Members of Parliament not liable for statements in Parlia- ment (see Parliament) ] 78 Memorial to Secretary of State privileged 175 Military officer, report by, in ordinary course of duty, privi- leged 174 Obscene writings, publication of, indictable 171 Test of obscene publication 171 No defence that object lawful 171 Open Police Court, proceedings of, on charge of indictable offence, may Ije published , . : 173 Magistrate's Court, proceedings of, may be published . .173-4 But not, if enquiry carried on in private 173-4 Parliament, Members of, not liable for statements in 178 Publication of debates in, privileged 178 Publication of speech in, with intent to injure, is unlawful 179 Beport of proceedings in, may be published 179 Personal libel, what is 169 Petition to Lieutenant-Governor, when privileged (see Bill of Bights) : ]75 Plea, to information for : 189 Police Court, when proceedings of, may be published (see Court, OjSen, etc.) 173 Presumption that party intends what libel is calculated to effect 371 692 INDEX. PAGE LIBEL (Gontvimed)— Privileged communication, what is . 174 et seq. Report in writing by military officer 174 Statement bona fide, where party interested 174-5 Memorial to Secretary of State - 175 Communications to Executive Government 175 Petition to Governor .. . 175 Petition to Queen , 176 Party acting in good faith, in matter of business, having personal interest 179 Privilege must result from right or duty 179-180 Meaning of privileged communication 180 When privileged, miis't be proof of express malice 181-2 Proper coarse at trial, when communication privileged . . 185 Presumption of privilege iii some cases conclusive . 186 As to proceedings in Parliament and in Courts of Justice 186 Defence, when not absolutely privileged 186 What is privileged 187-8 Comments on acts' of public men 184 1 Proceedings in Courts of Justice, publication of, privileged (see Courts, Judicial Proceedings) '.. . . . 171 Publication (see Joint, Action, Indictment, Obscene). ; Public men, commeritB on acts Of, privileged , . . 184 Reports of Parliamentary proceedings, debates, etc., may be published (see Debates, Parliament) 178-9 Secretary of State, memorial to, privileged 175 Senate, staying proceedings for publishing votes of 167 . Sessions cannot try. ..... 575 Speech in Parliament, when may be published 179 Trial, proper course at, incase of privileged communication. . 185 Truth of libel important in determining malice 182 Question is whether defendant honestly believed it true 182 When material for plaintiff to prove that statements are . not true. .... .'. 183 What is libel 169-170 Witnesses, acts, words arid writings of, may be published.'. . . 174 Writing, comparison of disputed, with that proved genuine .. 188 LIQUOR- Selling without licence (see Excise offences) 130 et seq INDEX. 693 PAGE LIQUOR (Continued)—' ■■'■■■ ; Act as to 441 To whom penalties belong. . . ,-■••• 441-2 Conviction under 442 LOCAL— ' Crimes are considered ...........'. 72 LOCAL LEGISLATURES^- ■■■;<> .■; -i . (see English Laws in force) > i t;ui.;'w «-. •>■' LORD'S DAY, PROFANATION OF— Act 8 Vic, c. 45, as to 438 Trial by jury on appeal to Sessions from conviction 439 Conviction should state defendant to be of some calling named in Act • 439 Travellers, who are. 439 Note or mortgage on Sunday 439 Sales or agreements for 439 Killing or taking game .■. 440 Farmer, not within Act 440 magistrates- No power to convict summarily under Act for repressing riots at elections (see Justices of the Peace) „ 448 MAINTENANCE— Common law offence : . .. 155 Crown bound by law :."'. 155 Modern law, object of '. 155 Sharing in profits essential . . .'.. . .'. 158 Suit pending whether must be (see Champerty) : 156-7 MALICIOUS INJURIES— . Act must be wilfully and maliciously done 373 But malice against owner, not necessary 373 Damage need not be of permanent kind ,..•!.. 373 Damaging property, under Con. Stats. Can., c. 93, s, 28. ; ... 521 Instrument need not be used , 374 Machine or engine ,, » 373 Summary remedy . . . , -. ., 374 Wound, meaning of- -, 374 \ 694 INDEX. PAGE MANITOBA— (sec English Laws in force)— MANSLAUGHTEIU- Accelerating death by other cause unimportant ' 255-6 Accessories in 103 Apprehension without warrant by constable 256-7 By private person 257 Not on mere suspicion 259 Must shew felony actually committed 259-60 Arrest without warrant 257 By Magistrate for misdemeanor committed in his view , 257 , Must.be breach of peace ..''..'. '..".' :'257 When illegal . . .257-8 Second arrest for same charge ."..'..' 258 By constable for breach of peace 258 By Policeman 258 By Constable, without warrant on reasonable charge. .258-9 In civil proceeding 258 Offender must be taken before Justice .258-9 By private person : . 259 By clerk in serviceof By. Co .259-60 Must shew felony actually committed 259-60 By person who is assaulted 260 Assaulting wife does not justify 260 When illegal .. . . . .....'... ''.. .260-1 Assault, when it justifies arrest (see Arrest) 260 Authority, officer arresting must have 256-61 Civil proceeding, arrest by constable in 258 Constable may arrest for breach of peace 258 For suspicion of felony .258-9 Must have legal authority (see Authority, Apprehension, Arrest) 256-61 Definition of 252 Felony, arrest for suspicion of 259-60 When actually committed (see Arrest) '. 259-60 Involuntary manslaughter 252 Knowledge of character in which officer acts, must be . . . .256-61 Malice, not in 252 Neglect to provide food : . 255 Negligence, culpable, may amount to 253-4 INDEX. ' 695 PAGE MANSLAUGHTER (Contvrmed)— . Officer of justice, killing of 256 Peace, arrestfor breach of ... - 258 Private person, arrest by («.e Arrest) 259-60 Removal of person unlawfully in bouse 261 Servant, killing of domestic 253 4 Suspicion of felony, arrest for _. 259-60 Voluntary manslaughter 252 MARRIAGE— English Law as to, introduced (see Bigamy) 21-2 MASTER AND SERVANT— Act Con. Stat. U. C, c. 75, as to ' .'. . 429 Does not apply to school trustee*and school teacher . v , 429 Certiorari lies to remove conviction 430 What agreements within Act 430 Conviction does not determine contract of service 430-1 Must shew that person servant at time, 431 Complaint must be upon oath 431 Jurisdiction under 12 Vic, u. 55 442 MERGER— Of lesser offence in greater 78-9 Of false pretences in larceny . : t . . 343 When object of conspiracy felonious . 408 MISDEMEANOR— What is {see Crimes in General) .79 MISPRISION OP PELONY..... 79 MISTRIAL— Venire de novo for 608 Vitiates- and annuls verdict , 627 MOLESTATION OR OBSTRUCTION— [ By master or workman (see Strikes — Trades' Union Act) . '.. 154 MONOPOLY-- By-law as to market stalls 154 Eor exempting new manufactures j L . 152 Rules in restraint of trade t . 152 Strikes not necessarily, illegal mm .< , .'.'1152-3 696 - INDEX. PAGE MOTIVES, WHEN IMPORTANT 87-8 ■MURDER— Adniinisteijng poison; . . 249-50 Agent,. must be a free '. 244 All liable for committing, in prosecution of unlawful purpose 98-9 Attempting another act 246 Corporal injury, must be 245 Definition.. 243 Degrees, persons may be liable in different 244 Disease by which death accelerated '■ 246 Evidence, what is 247-8 As to cause of death 250 Indictment, setting forth manner of death. . . .' 250-1 Must state act done feloniously, and of malice afore- thought. . 251 Eor wounding, with intent to murder ....'.'..- 251-2 Infant in womb,' when subject of ,: 245 Jury, what questions are for 247 Killing, different means of .....' ,-.' 245 Malice, necessary ingredient in , 243 Express and implied 243-4 Medical evidence of cause of death , 250 Presumption that all homicide malicious 244 Provocation reduces offence to manslaughter 246-7 Punishment of 252 Queen's peace, must be under '. . 244-5 Sudden quarrel, when killing in, amounts to 248 Wounding, with intent to murder 251-2 Year, must die within^ \ 246 NEW BRUNSWICK— (see Englfth Laws uifotoe). V.! NEW TRIAL— When it must be moved for, .within first four days of term 234 Not now granted in case of felony. 631-2 When indictment removed by certiorari, and tried at assizes 632-3 After acquittal or conviction of misdemeanor 632 By superior jurisdictions 632 By Sessions , 634 Repealed Act as to ,.\ .'. 633-4 Proper course to adopt where formerly granted 635 INDEX. 697 PAGE NOTES OF EVIDENCE— . Beading to witnesses those taken at former trial 489-90 Judge may have them taken by third person 609 NOVA SCOTIA— (see English Laws in force). NUISANCES— Abatement of 201 Boom in river ..-. .'. 201 Fine for non-abatement ' 201 Compelling through Sheriff 201-2 Action lies for, to navigable waters 197 Fresh actions for continuing nuisance 202 Where action lies indictment lies 202 Civil right, course when indictment for trial of 232 Convenience no defence 200-1 Court, questions for. 22-8 Dam may be 199-200 Disorderly houses 198 Evidence on indictment for 233 Highway, non-repair of, is -. 199 Ill-fame, conviction for keeping house of 1 98 Indictment lies for public 197 Is.proper remedy for 200 Course, when proceeding by, is substantially for trial of civil right... 232 Lewdness, open and scandalous, indictable 199 Lotteries are public nuisances 199 Act as to, in force .19-22 Magistrate, jurisdiction of, on complaint against disorderly house 198 Mandamus (see Highway) Navigable rivers, obstruction of 1%7 New trial after verdict of acquittal ." 233-4 Private and public j 197 Remedy (see Indictment) Summary conviction by Justice *. . 202 Time of erecting nuisance immaterial , 201 No length of legitimates nuisance ., . . 202 User will not legitimate J 202 OBJECTIONS— In arrest of judgment 607 698 w INDEX. ■ . PAGE OBJECTIONS (Cmttvrmed)— To Judge's ruling or direction should be raked at trials : . . ■. . 609 To indictment for defect apparent on its face 609-10 OBSTRUCTING ENGINE OE CARRIAGE— Act 32 & 23 Vic, c. 22, s. 40, as to ' 435 What is offence within 435 Not limited to physical obstructions. .... , .,.:... .435-6 OBSTRUCTING THE EXECUTION OF PUBLIC JUSTICE— Acting in execution of duty, and under preper authority. . . .235-6 Aid indictment, for refusing to 234 Refusing to aid constable is misdemeanor 236 Constable, indictment for refusing to aid 234 Refusing to aid 236 Conviction for wounding constable, when quashed 235 Disobeying order of justices 237 Order of Queen in Council 237 Excise, indictment for obstructing officer of 235 Indictment for refusing to aid constable 234 For obstructing officpr of excise 235 What is necessary to support 236 Knowledge of character in which officer acts not necessary . . 235 Obstructing officer of excise 235 Constable in executing an execution 235 Officer must act under proper atithority 236 Gw^^m^^f^% : 235 OFFICE, OFFENCFJS BY PERSONS IN— Attachment granted against Commissioners for trying cause in which interested '. 150 Bailiff, conviction of, when quashed 145 •Clerk of Crown, resigning office, when illegal ;...;.. 148 Clerk of Peace cannot charge any fees not given by law ...... 144 Not entitled to any fees for striking special jury 144-5 Table of fees contains all charges 145 Criminal information will lie against officer for misconduct . . 148 When granted against Judge 149-150 Deputy Returning Officer indictable for refusing to administer oath ...:...:. 143 Extortion, what is 143 INDEk. 699 OFFICE, OFFENCES BY PERSONS IN (Continued)— Indictment for. - , , j : .' 144 Is misdemeanor '. , 143 Two or more may be guilty of 143 Fees in different cases. . .''....';'.. 1' 144-5 Gaoler, fees to which entitled. 145 Indemnity, would be illegal for Judge to take 145 Indictment, when lies, when good .'...''.,... 143 Lies at common law for sale of office 146 Judge taking indemnity '... 145 Misconduct by i. .....'. 149 Cannot act in his own case .... . 350 Exception '...'.' 150 Must be direct pecuniary interest '. 150-1 If really biassed; wrong to act ". - '.'. , 151 If remotely connected with one of parties, no objection . . 152 Justice, when can act, if himself assaulted . <. _ 152 Neglect to execute duties indictable . . » . , 143 Registrar and deputy may be jointly guilty of misdemeanor. . 143 Removal of officers 148 Sessions competent to try charge against Clerk of Peace .... 148 Sheriff, sale of office illegal 146-7 Statutes as to, ,-...-, 147 In force here 21 OFFICERS OF JUSTICE— Killing of (see Manslaughter) ,'.''. 256 ORDER RESPECTING DISTRESS FOR RENT— Sufficient to follow tho form given in the Con. Stats. U. C.,' c. 123 , .438 OVERSEER OF POOR OF PARISH^ Liable to indictment for not accounting 448 OYER AND TERMINER— Whether Commissions now necessary for holding 0°ujt. of . . 592^-3 PARDON— Does not remove effect of attainder by Court Martial 463 Effect of, on appeal to Privy Council 637-8 **. 700 INDEX. PAGE PARLIAMENT— . Publication of debates in (see Libel) . 178- PARLIAMENTARY OFFENCES— Members of Parliament net liable ior statements in House . . 240' Attachment against 240 Penalty for voting without property qualification ...... 240 Privilege from arrest : , 240 Does not apply to criminal cases .... 241 Evidence of being Member 241 . ... - ..it. Warrant of commitment 241 Prorogation, discharge of prisoner by 241 Courts, power of, to enquire into commitments by Parliament 242 Habeas Corpus 242 PARTNER— Agreement to defraud copartner 402-3 Conviction for selling liquor without license will lie against . . 135 Laying property of, in indictment for larceny 315 PAWNBROKERS' ACT— Only applies to persons exercising trade of pawnbroker 436-7 PEACE— Final commitment for want of sureties to keep 537-8 Must be in writing. : 537 And shew date on which words spoken 538. Articles of peace exhibited in open Court 538 PENAL ACTIONS— . County Courts cannot try .' 575 PENAL SERVITUDE— Sentencing for 44& When Act does not apply 447 PERJURY— Affidavits, before whom sworn: 38J> Taking without authority 394 \ Need not be read or used 394 Which Court would not receive 394 • Evidence of place of swearing 394-5 ' Ambiguous, oath must not be . - , 393-4 INDEX. 701 PAGE PERJURY (Contimted)— Amending indictment , , 398-9 Assignment of perjury, proof of . . , 393 Must be two witnesses. . , 400 Authority (see Jurisdiction)', Belief of fact . , 393 Church of England (see Prayer Book). Common Law offence, when affidavit not sworn in judicial proceeding 383-4 Credit of witness, false swearing as to 390 Definition .$?.'. 382 Deliberate, false swearing must be 393 Evidence, of assignment of perjury 393 As to place of swearing affidavit 394-5 Must be two witnesses, or proof of material facts .400-1 False, inatter sworn must b$, ..... . „ 382-393 •Grand Jury, false evidence before 389 Indictment, shewing authority $0 administer oath 385-396-7 When sufficient 395 Certairfty in* , . . 390 Substance of offence charged — - „ . . . 397 Quashing, amending, etc 398-9 Does not give sufficient notice to prisoner to dispense with notice to produce. 481 Insurance cases, perjury in .• 40] Insurance company, affidavit as to loss by fire 387-8 Judge, materiality of matter sworn is question for '. 392 Judicial proceeding, swearing must be in 382-3-4 -Jurat stating place of swearing 389 Need not state such place.. 394 No part of affidavit 394 -Jurisdiction, oath must be taken before competent 382 »» Affidayit'in review case 384 Must be exercising when oath administered 384 Whenthereis * .384-5-6-7-8-9 Of Court, must be submitted to _ 395 -Juryj what questions are for 392 Justice) where may take affidavit _ 389 Magistrate taking affidavit without authority 394 702 INDEX. PAGE PERJURY (Contkmed)— Jurisdiction of, over person committing perjury in another county ' 401 Materiality of matter sworn . : . . .382-9-390-1-2 All evidence now material .......: 392 Misdemeanor, perjury is 382 Affidavit not taken in judicial proceeding is 383 Oath must be taken deliberately and intentionally. 393 Must be clear and unambiguous * 393 Place, Jurat stating 389-394 Pleading, must jfirst submit to jurisdiction 395 Prayer book of Church of England, oath taken on 393 Quashing indictment 397-8 Sessions cannot try 575 Signatures, effect of proving: '.......: : . L ' 395 Surplusage in indictment ■. 399 Variance in charge ^f •. 397-8 Venue '- ." 398-9 Voter false swearing by '...'.. .382-^3 Witn^ses, when bound to answer criminatory questions .... 399 When two required . . . . 400-1 Persons separately indicted may be for each other . 456 PERSONATION— {sen False personation). PERSONS— Capable of committing crimes 90 Drunkenness, how it affects criminal liability '. 94 Feme Covert not liable for crime committed in her husband's presence 95 But this only presumption and may be rebutted 95 Protection does not extend to crimes mala m se as treason, murder, etc.. 95-6 Nor semble to misdemeanors ■ '. 9(j Infants, general rule as to criminal liability of 90 Statute creating new felony does not bind 92 Under seven, not liable 91 Rule between seven and fourteen 91 Under fourteen cannot commit rape _ 91 But may be principal in' second degree 92 Non Compotes Mentis, rule as to criminal liability of persons92-3-4 INDEX. • 703 PAGE PERSONS (Continued}— Subjection to power of others,, rule as to criminal lability, of persons in 94_5_6 Wife, when accessory 9g In .office, offences by , . ..143-352 PETTY TRESPASSES— Conviction under Con. Stats. IT. C, c. 105 "442-3 Where there is bona fide claim to the land 443-4 PIRACY— , Acts in force as to .■ 121 Admiralty jurisdiction 122 British Court, no power to punish foreigner 124 Commissions, not necessary 120-1 Inland lakes of Canada within admiralty jurisdiction 123 Jurisdiction, over ships in rivers of foreign territory. .' 122 Over British 44M^>ough no proof of register, or ownership of vessel .'. , V 122-3 Over vessel 20 or 30 miles from sea ». . . . _^ _ . . . 123 Where sea flows between two pdints of land ... ^T.. . . . 123 Magistrates may take cognizance of all offences committed on lakes of Canada , 123-4 PLEADING— Acquittal on good indictment is bar to subsequent, for same offen.e 4.96 Act of Parliament, indictmenton 491 Limitation or exception in distinct clause of, need not be stated :... 137-506 Against form of Statute, indictment concluding 494_5_g ' Amendment of indictment, not at common law 503 Defect in laying property ...#.... 593 Case must be decided on indictment in amended form . . 503 Must be made before verdict. . , .. .' ...:....' 503 Arrest- Of judgment when indictment charges no offence against tevr ., . - - v 510 Assault, conviction of, no bar to indictment for manslaughter 499 Aui/refois acquit, test of validity of plea ; . . . 490 Must be in legal peril on first indictment. 420 496-7 Trial must proceed to its legitimate conclusion by ver- dict ' 4917- 704 • INDEX. PAGE PLEADING {Continued)— • , '■: Meaning of legal jeopardy -j. . . ..■. 497-8 Only pleas known to law 498 When good 498-9, 602 Only aj?ply when decision on same accusation in sub- stance '. ■. 499-500 First indictment insufficiently laying property 500 Proof of pleas 500 Caption of indictment, objection to 509 Certainty essential to charge 491 Charge of offence, what sufficient : 491 Conjunctive statement, when proper. 493 Contra formam statuU, effect of omission of 494-5 Can only be objected to by demurrer 495 Where two ormore Statutes. ; . .; 495 Concluding against particular Statute should follow its language . ...^WM 496 Conviction- previous may be good plea in bar (see Previous Coiurifi^Lon)* 496 Demuirar must be to entire count or plea -501 Treading not guiltv, when overruled 501 . Description of offence in words of Statute 492-3 Matter of, mustbe provedas laid 5. 502 Duplicity, what is 419-20, 504 Election, when prosecutor put to 504-5 Enacting clause of Statute, exception or proviso in, must be expressly negatived. 137-506 Need not, if in subsequent clause. 506 Formal defects in indictment, when objected to 510-1 Forms of indictments 511 Use of discretionary ' 511 Homicide, indictment for, need not set forth manner of death 507 Indictment, when should follow words of Statute 492-3 On Statute creating new offence 492 Conjunctive statement in 493 Christian: and surname must be stated 493 Surplusage in ^ 493-4 On Con. Stat. Can., c. 6,s. 20 '. 501 Sufficient description of list of voters 501 Requisites under this Statute 502 INDEX. 705 PAGE PLEADING (Contvimed)— Caption, quashing 509-10 i Laying previous conviction 609 Quashing is discretionary with Court 510, When and for what objections the Court will quash 510 Jeopardy, meaning of term ' 496-7 Jurisdiction must be submitted to before pleading 511 List of persons entitled to vote 501 Material allegations only require proof 493-4 Means of committing offence, when to be set out . .' 507 Misjoinder of counts 504-5-6 Motion, quashing indictment on 510 Names must be stated in indictment 493 Objection to indictment, when taken 510-1 Offence created by Statute 491 Indictment should bring it within Statute 492 One plea only can be pleaded 511 Order of pleading 511 Plea, of autrefois acquit 496 If overruled may plead not guilty 500 Describing Statute passed in two years , 501 Only one can be pleaded 511 Postponement of trial on amendment of indictment 503 Previous conviction, indictment for 509 Proof need not. in all cases tally with statements in indict- ment 507-8 Quashing indictment for duplicity 504 For variance between information and indictment . . . .509-10 How and when quashed 510 Statute, indictment on 491 Creating new offence 492 Plea describing, as passed in two years. 501 Surplusage does not vitiate an indictment 493 Conclusion of indictment for perjury 494 Time of committing offence need not be averred 506-7 Trial, postponement of, on amending indictment 603 "Variance, quashing indictment for 509-10 Venue in indictment 508 Order to change 508 In case of offences committed on carriages, etc 508-9 SS 706 INDEX. PAGE PLEADING (Contvtmed)— Voters, feloniously omitting names from list of 501-2 POISON— Administering of 249-50 POLICE COURT— Stealing records of 3-10 PRACTICE-^-(/See the different titles throughout the Book)... 512-638 Adjournment of Sessions 549-576 Of trial : 608 Amending, information 516-526 Appeals from summary convictions ' 545 To Superior Courts 604 To Privy Council 635 Assault, complaint of 515 Bail, when granted 583 Certiorari, when granted 561 Challenges, when allowed 613 Commitment, warrant of 531 Contempts before Justices 529 Of Court of Sessions 579 Conviction following forms 521 When sufficient 526 Costs against public officer 525 On summary convictions '. 525 Attorney charging, when not sanctioned by law 545 On appeal to Sessions 551 In Crown cases 629-30 Counsel, who may act as 578 Two only allowed 611 Criminal information 579 English law introduced in 20 Error, when writ of, lies 620 Grand Juries 590-1 Habeas Corpus 553 Imprisonment, purposes for which imposed 539 Indictable offences, duties of Justices in relation to 527 Information before Justices 518 Jurors, exemptions, qualifications of, etc 594 INDEX. 707 PAGE PRACTICE (Continued)— Justices of the Peace 5] 2-560 New trials 631-2 Privy Council, appeal to. 635 Record, Court of 579 Remand by Justice 552-3 Summary convictions, duties of Justices on 517 View, when allowed 607-8 Warrant of arrest 528 PREVIOUS CONVICTION— Statement of, added to count for larceny 505 Indictment laying 509 Practice on 610-11 Certificate of 611 PRINCIPAL— Liable for what he authorizes 103-4-5 Agent also liable •(see Agent) .104 PRINCIPALS— In first degrfee, must be present, assisting 97 And (participating 97 Principals in second degree 97-8-9-100-1-2 Indictment against -• 102 prison breach- Is escape by force '. 237 Is of same degree as offence for which party confined 239 Must be actual breaking 240 Need not be intentional 240 " Article or thing," in prison Act, includes crowbar 24Q PRIVY COUNCIL- Appeals to ., 63i> When and under what circumstances leave to appeal to, granted 636-7-8 PROCEDURE IN CRIMINAL CASES— Act as to, is not limited to felonies, or offences existing at time of passing 421 (N. B.)Rev. Stat. c. 159, s. 16 421 708 INDEX. PAGE PROCESS— Penalty under 22 Geo. 2, o. 45, for sueing out 448 PROPERTY— Damaging, conviction for 521 PROSECUTION— All liable forj act, committed in prosecution of unlawful pur- pose 98-9-100 PROSECUTIONS— By Crown, how they differ from civil suits 612-3 PUNISHMENT— Cumulative under 4 Vic, c. 30 448 QUARTER SESSIONS— (see Sessions) QUEBEC, PROVINCE OP— (see English Laws in Force) RAPE— Age of consent (see Infant) 267-8 Assault, having connection with woman who believes it is her husband is ' 265 Attempt to commit, may be convicted of on indictment for. . 85 Attempt to ravish , r 267-8 Child from ten to twelve 267-8 Consent, must be absence of . - . , 264 ' Even in case of idiot 264 Or though obtained by fraud 264 3y wife under supposition that it is her husband 264-5 Child under ten cannot give 267 But may to render attempt no assault 267-8 Child from ten to twelve, consent is defence on charge of assaulting ' 268 Contradiction (see Prosecutrix) Definition : 264 Emission of seed need not be proved , 268 Evidence, statement of prosecutrix 268 Not bound to disclose connections with other persons. .463-4 Force, necessary ingredient in 264-5-6 Fraud, consent obtained by 264-5 Husband cannot commit rape on his wife 264-5 INDEX. 709 3 PAGE RAPE (Continued)— Infant under fourteen cannot commit 91 Idiot, must be evidence that without consent of (see Consent) 266-7 Prosecutrix cannot be contradicted if asked as to connection with other 1 persons ' 463-4 Wife (see Husband) Will, must be against 264-6 RECEIVING STOLEN GOODS— Accessory, mere receipt did not constitute 351-2 Conviction, proof of previous 356 Crime, stealing must be 352 Embezzled goods 353 Evidence, of felonious 355 -6 Ofthief 356 Felony, principal crime, must be 353 Husband adopting wife's receipt 355 Joint receipt need not be proved 364 Knowledge that goods stolen 355 Evidence of 479 Misdemeanor at common law 351 Mixture, .proof of receiving 354 Possession must be parted with by thief 355 Previous conviction, proof of 356 Receipt must be of stolen goods 353 Bydefendant 355 Separate receipts 354-5 Stealing of goods 352 Stolen goods (see Receipt) Wife receivingin presence of husband 355 Witnesses may prove that other articles found in prisoner's possession , 479-80 * RECORD— What is 483, et seq. Proofof .... 484 Court of, has power to fine and imprison for contempts 545 What power of fining and imprisoning necessary to consti- tute 579 Of conviction, caption may be amended 592-3 710 INDEX. PAGE REMAND— By Justices 552-3 By Court '553 How detained in latter case 553 REPEAL OP STATUTE— When effected 77-8 REPLY— Reception of evidence in 488 Right of Grown counsel to 612 RESERVATION OP POINTS OP LAW— Act as to, only authorizes Sessions to reserve case when origi- nal hearing and conviction there 553-4 No other Court can interfere till case is heard and finally de- termined 578-9 Court can only decide on points raised 605-6 Cannot order new trial or prevent verdict from going into effect 605-6 What points can be reserved '. 606-8-21 Arrest of judgment 606 When it is desired to take the opinion of Court on rulings of Judge 625-6 RESTITUTION— Writ of, in case of forcible entry 195 Jurisdiction of Court of Queen's Bench as to 195-6 RETURNING OFFICER— Recording names of persons as voting who refuse to take oath 82 RETURN TO HABEAS CORPUS— Disputing truth of , 533-4 REVERSING CONVICTION— Effect of 524 REVISED STATUTES (N.B.)— Offence committed before not triable under 448 RIOT— Defined 189 Difference between and unlawful Assembly 190 Must relate to private quarrel 190-1 INDEX. 711 PAGE RIOT (Continued)— Three persons or more must be engaged in 190 Must be force and violence 191 And violence must be premeditated 191 Presence among rioters, does not render a person liable .... 191 Riot Act need not be read 191-2 Suppressing riot, power of private persons, and Governor of colony to 192 When forcible entry amounts to 193 RIVERS — (see Nuisances, Highways, etc.) Benefit of obstruction immaterial 231 Capacity of, material 228 Court must decide what constitutes navigable 228 Freshet, capacity of stream in 229-30 Jury, under direction of Court, must find whether navigable 228 Lake Ontario, portion of, navigable 229 Navigable, what are 229 Piers, indictment will not lie for erecting 230-1 Portages, whether stream, navigable 228 Tide, flux and reflux of, not necessary to constitute navigable water 229 Rivers above, flow of 223-30 Usage, immemorial not necessary 227-8 What is navigable water 229-30 Not such as may be obstructed by ploughing and harrow- ing 229 Capacity in Spring freshets 229 Must be capable of transporting property 229-30 Wiers, only prohibited in navigable rivers . .231-2 ROBBERY— Aggravated larceny 287 Animus fwrandus necessary 288 Carrying away, necessary in 289 Definition : 287 Duress, obtaining signature by 289 Election on indictment 289 Eelonious taking necessary 288 Fear necessary ingredient , 287 Must precede taking 288 712 INDEX. PAGE ROBBERY (Continued)— Force necessary ingredient 287 i Goods must be of some value 288 Indictment, election on 289 Several counts in 289 Person, goods must be taken from 288- Presence, goods must be taken in 288 Sudden taking, when robbery 288 Taking, actual, necessary , 289 Value, goods must be of some 288 Will, goods must be taken against 288 RODT— How distinguished from riot (see Riot) 190 RULES— ' Under the Criminal Appeal Act 604-5- SALE— Of office (see Office, offences by persons in 146 SEDUCING SOLDIERS OR SAILORS TO DESERT— Act now in force, how construed 118 Imprisonment under 119 Trial by Court of Oyer and Terminer ] 19-120 Summary conviction of offender ' 119- Indictment, when not sufficiently certain or precise 1 20 Mutiny Act of '67, to whom it relates 120 Warrant of commitment,, when bad 120 Soldier must first answer to constituted tribunals 120-1 Volunteer triable by court martial 121 SENTENCE— Of death, warrant to execute 629 Of prisoner convicted of felony 629 SESSIONS— Assault, may try 279' But not if capital felony 279 Charge against Clerk of Peace for misdemeanor in office, can try 148 Forgery, cannot try 370- Libel, cannot try 575- INDEX. 713 PAGE SESSIONS (Continued)— Perjury, cannot try », 575 Can only reserve case for opinion of Superior Court when original hearing at 553-4 Is Court of Oyer and Termmer 576 Can alter judgments at same sessions or sittings 576-7 Adjourn, has general power to 576 Adjournment of, is continuance of same sessions or sittings . . 549 When Court of Queen's Bench can review proceedings of. — 561 Cannot make any order except during the Sessions, regular or adjourned 577 Bench warrant, seal to 577-8 Attorney acting as advocate in 578 When case stated for opinion of Superior Court, jurisdiction gone 578-9 May fine and imprison for contempt 579 Awarding costs on discharging appeal 630 SMUGGLING— (see Customs Offences) 124 STATUTES— Annotations of miscellaneous 413, etseq. Construction of (see Construction of Statutes) 410, et seq. Court will judicially notice public 487 What are public 487 STATUTE LABOUR— (see Highway) STRIKES— Act as to 153 Construction of (see Monopoly) 154 SUBORNATION OF PER JURY— (see Perjury) 382 SUMMARY ADMINISTRATION— * Of criminal justice 423 et seq. Act 32 & 33 Vic, c. 32, as to 423 Commitment, variances in 424 Not following form of conviction 424-5 Conviction not following statutory form 424-5 Not sustained by information 425 Notice shewing Court to be Police Magistrate's 425 714 INDEX. PAGE SUMMARY ADMINISTRATION (Continued)— Evidence before Magistrate immaterial when there is proper commitment 426 When charge of keeping disorderly house sufficiently certain 426 Charge, Magistrate may ascertain nature and extent of 427 And reduce it to writing 427-8 Of assault and beating is not charge of aggravated assault . .428-9 SUMMARY CONVICTIONS— Justices had no power at Common Law • 517 Act 32 & 33 Vic, c. 31, as to 517 Variance between information and evidence 517-18 Information must be laid 518 When in writing, or on oath 519 When sufficient 518-9 For several offences 519 Joint information 520 Appeals from, to Sessions 545 No power to reserve a case on 553 SUNDAY— (see Lord's Day). SURETIES TO KEEP PEACE- Final commitment for want of '. . 537 What is.. , 538 Should shew date 538 SUSPENSION— Of civil remedy, when felony disclosed in evidence 73 Exceptions to rule 75 TELEGRAPHIC DESPATCH— Divulging contents of j 445 Con. Stats. Can. , c. 67, s. 16, does not apply between third parties 445-6 TEMPERANCE ACT 440 Limited to places where temperance by-law is in force 441 Conviction under 442 THREATENING TO ACCUSE— What is within 32 & 33 Vic, c. 21, s. 46 445 INDEX. 715 PAGE TITLES— Selling pretended. : 159 Act 32 Hy. 8, o. 9 .159 • In force here 20 Intention of Statute 159 No conviction on admission 159 Repealed in Ontario '. 159-60 What is offence within 159 TOLLS ON ROADS OP JOINT-STOCK COMPANIES— Act Con. Stats. U. C, c. 49, s. 43 431 Does not apply to person altogether exempt 431 Place of worship, going to, or returning from 432 Waggon conveying manure . 432 ■Conviction mu-it shew that defendant summoned and heard, and set out evidence; and shew information, plea, and de- mand oftoll 432-3 But need not, if form given by 32 & 33 Vic, c. 31, s. 50, is followed 434 Conviction, when it sufficiently shews demand and non-ex- emption 434 Need not name time for payment of fine 434 When Magistrate has jurisdiction, conviction only can be looked at 434-5 No offence to exact tolls fixed by Commissioners 433 If once acquitted on appeal, cannot be tried a second time . . 435 TRADES' UNION ACT 153-4 TRIAL— Objections at 488-609 • Should be noted by Judge 609 Adjournment of, granted for illness of counsel 608-9 UNLAWFUL ASSEMBLY— Assemblage of persons to witness prize fight is 192 How distinguished from riot (see Riot) 190 UNLAWFUL PURPOSE— All liable for acts committed in prosecution of 98-9-100 VAGRANTS— Act 32 & 33 Vic, c. 28, as to , 444 716 INDEX. PAGE VAGRANTS (Continued)— Conviction should shew that person asked to give account of himself . 445 Evidence should shew where person found 445 And that person is common prostitute 445 VARIANCE— On indictment for nuisance to a highway 233 VENIRE BE NOVO— Where verdict uncertain and ambiguous 602-628 In case of improper disallowance of challenge 617-627 In case of mistrial - '. 627 Distinction between, and new trial 627 In case of abortive trial for misdemeanor or felony 627 After verdict, on charge of felony upon a good indictment before competent tribunal, etc 628 VENIRE FACIAS— Award of ,. 593-4 VENUE— Of legal proceedings..' 508 VERDICT— Ambiguous or uncertain 602-3 Recommendation to mercy, no part of 603 Court should be careful that it is unanimous 603 May bo corrected before recorded 603 Counsel questioning jury as to grounds of 603 Right to find general 603 Recording oh Sunday 603 VIEW— Always discretionary to grant, in criminal cases 607-8 Evidence, how taken on 608 WARRANT— Setting forth day and year when made, and authority of magis- trate , 537 Direction of ' 528 Though irregular, it is justification. 528 Is only prima facie evidence of its contents .528-9 INDEX. 717 PAGE WARRANT (ContiiMied)-- Of commitment for indefinite time 531 Need not state that Justice had information on oath 531 Should shew place where offence committed 531 Technical precision of indictment not required ' 532 Not sufficient to call the offence a felony or misdemeanor .... 532 Particularity in » 532 Under 31 Vic, c. 16 535 One or two Justices issuing and signing 535 How Justice compelled to issue 535-6 To execute sentence of death 629 WIFE— Accessory, when may be 96 Criminal liability of . . .■ 94-5-6 WITHDRAWING— Complaint for assault 515 WITNESSES— (see Evidence) No incapacity from crime or interest 369 Two required in perjury 400 And in treason 461 When guilty of contempt in not obeying subpoena 540 Confined in Penetentiary, how evidence obtained 557-8 Examined by Grand Jury, whose names are not on back of indictment. 634-5 EKRATA. Page 9— Reference (c) for 8 C. L. J. u. 122, read 8 C. L. J. N. 5. 122. Page 66 — Reference (a) /or ante p., read ante p. 55. Page 66— Reference (b)for ante p., read ante p. 52. Page 66 — Reference (e)for 4t45, read 44r-5. Page 75— Reference (e) line 3, for 3 U. v. Q. B, read 3 U. C. Q. B. Page 75— Reference (e) line 3, for Marsh 6 B. C. 551, read 6 B. & C. 551. Page 96— Reference (ft) for Reg. v. Mayor Tewkesbury, L. R. Q. B. 635, per Black- burn, J., read L. R. 3 Q. B. Page 153— Reference (6) omitted 6 E. &. Page 263— Line 13 from top, the omitted after see. Page 9M — Line 3 from bottom, will omitted before not.