A Treatise on Criminal Law as Applicable to the Dominion of Canada

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 steamboat arrived within the County of York, and while it was passing through another County:-Held, that the indictment 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 conviction, 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 indictment 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 Reg. v. Webster, 1 Allen, 589.

(b) Ib.

(d) Reg. v. Hilton, 5 U. C. L. J. 70; Bell, 20; 28 L. J. (M. C.) 28.

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 demand an acquittal. (b)

Applications to quash an indictment are considered applications 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 Grand Jurors, in the list, and in the panel, was held sufficient ground for quashing an indictment for felony. (ƒ)

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)

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. (h)

An objection to an indictment, as insufficient in law,

(a) Reg. v. Broad, 14 U. C. C. P. 168.

(b) Reg. v. Roy, 11 L. C. J. 90, per Drummond, J. See 32 & 33 Vic. c. 29,

s. 32.

(e) Reg. v. Belyea, supra, 225 per Dodd, J.

(f) Ib. 220.

(g) Reg. v. Clement, 26 U. C. Q. B. 300, per Draper, C. J.

(h) Horseman v. Reg. 16 U. C. Q. B. 544, fer Robinson, C. J.

made after the swearing of the jury, and after the prisoner 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 Vic., c. 29, s 32, only applies to the lat ter. (b)

The forms of indictment in the 32 & 33 Vic., c. 29, schedule A., are intended as guides, to simplify forms of indictments. They 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. (f)

The prisoner must plead in abatement before he pleads in bar. (g)

No more than one plea can be pleaded to any indictment for misdemeanor or criminal information. (h)

(a) Reg. v. Ryland, L. R. 1 C. C. R. 99; 37 L. J. (M. C.) 10. (b) Ib.

(e) Reg. v. Cummings, 4 U. C. L. J. 188-9, per Spragge, V. C. (d) Ib.

(e) Reg. v. M Laughlin, 3 Allen, 159.

(f) Reg. v. Maxwell, 10 L. C. R. 45.

(g) Whelan v. Reg. 28 U. C. Q. B. 47.

(h) Reg. v. Charlesworth, 1 B. & S. 460; 31 L. J. (M. C.) 26.

CHAPTER X.

PRACTICE.

JUSTICES of the Peace were appointed in the reign of Edward the first, and their appointment has been continued 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 Commission of the Peace. (b)

The 29 Vic., c. 12, recites that certain Justices had, theretofore, in error taken and subscribed the oath of qualification 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 U. C. C. P. 300, per J. Wilson, J. (b) Herbert, q. t. v. Dowswell, 24 U. C. Q. B. 427.

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 County, 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 investigate 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 Vic., c. 30, an alderman 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 respectively. (d)

Under the Commission of the Peace, Justices have a general power for conservation of the peace, and the apprehension and commitment of felons. The Commission gives them jurisdiction in all indictable offences, to discharge, admit to bail, or commit for trial. (e)

The maxim, omnia præsumuntur rite esse actu, does not apply to give jurisdiction to Justices, or other inferior

(a) Reg. v. White, 21 U. C. C. P. 354. (b) Reg. v. Mosier, 4 U. C. P. R. 64.

(d) Reg. v. Morton, 19 U. C. C. P. 27, per Gwynne, J.

(e) Connors v. Darling, 23 U. C. Q. B. 543, per Gowan, J.

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