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

ually, but that he was employed in fraudulently putting it off. (a)

Thus, upon a charge of uttering counterfeit coin, in order to prove guilty knowledge, evidence is admissible of a subsequent uttering by the prisoner of counterfeit coin of a different denomination. (b)

A false and fraudulent statement to a pawnbroker, that a chain offered as a pledge is of silver, is indictable under the 7 & 8 Geo. 4, c. 29, and, upon the trial of such an indictment, evidence is admissible of similar misrepresentations made to others about the same time, and of the possession of a considerable number of chains of the same kind. (c)

A declaration by a subscribing witness (who was dead) to a deed, that he left the country because he had forged a name thereto, is not admissible, on the ground that it is hearsay evidence. (d)

But the description, given by a person of his suf ferings, whilst labouring under disease and pain, is not hearsay evidence, and will be admitted. (e)

When the prisoner was indicted, under the Con. Stats. Can, c. 93, s. 4, for setting fire to his own house, it was held that his verbal admissions that the house was insured were sufficient to prove that fact, though the policy was not produced, nor its non-production accounted for. (f)

The admissions proved were that the prisoner requested or procured one S. to set fire to the house, stating that he had his house insured, and asked him if he would not set fire to it. He also stated that "his insurance

(a) Reg. v. Brown, 21 U. C. Q. B. 335, per Robinson, C. J.

(b) Reg. v. Foster, 1 U. C. L. J. 156.

(e) Reg. v. Berube, 3 L. C. R. 212.
(f) Reg. v. Bryans, 12 U. C. C. P. 161.

would run out next day, and that he, S., must set fire to the house that night." The prisoner afterwards told S. that he must set fire to the building before noou, for that his insurance would then expire." The evidence also shewed that a sum had been awarded to the prisoner for his insurance, in payment of which he was seen to have a bill of exchange on London in his possession. (a)

The prisoner, a solicitor, was indicted for perjury, in having sworn that there was no draft of a certain statutory declaration made by a client. No notice to produce the draft had been given to the prisoner, and upon his trial it was proved to have been last seen in his possession. Secondary evidence having been given of its contents:-Held, that, in the absence of such notice, secondary evidence was inadmissible. (b) The form of an indictment for perjury does not convey sufficient notice to the prisoner to produce the document to dispense with a notice to produce. (c)

A dying declaration is only admissible in evidence where the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declaration. (d)

Therefore, upon an indictment for using instruments, with intent to procure abortion, the dying declaration of the woman was held inadmissible. (e)

The question whether a dying declaration is admissible is for the consideration of the Judge who tries the case, but the weight of it is for the jury. (ƒ)

To render the proof of a declaration admissible as a dying declaration, there must be proof that the person

(a) Reg. v. Bryans, 12 U. C. C. P. 161.

(b) Reg. v. Elworthy, L. R. 1 C. C. R. 103; 37 L. J. (M. C.) 3.

(d) Reg. v. Mead, 2 B. & C. 605, per Abbott, C. J.

(e) Reg. v. Hind, 7 U. C. L. J. 51; Bell, 253; 29 L. J. (M. C.) 147.
(f) Reg. v. Charlotte Smith, 13 W. R. 816.

who made it was, at the time, under the impression of almost immediate dissolution, and entertained no hope of recovery.

Vague and general expressions, such as "I will die of it!" "I will not recover!" "It is all over with me!" are insufficient to allow the proof of the declaration of a deceased person. (a)

The result of the decisions as to the admissibility of dying declarations is, that there must be an unqualified belief in the nearness of death; a belief, without hope, that the declarant is about to die; and the burden of proving the facts that render the declaration admissible is upon the prosecution. (b)

It is said that dying declarations ought to be admitted with scrupulous and almost superstitious care. They have not necessarily the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subjected to cross-examination, and is in no peril of prosecution for perjury. There is also great danger of omissions and immaterial misrepresentations, both by the declarant and the witness. (c) The statements may be incomplete, and, though true as far as they go, may not constitute the whole truth. They may be fabricated, and their truth or falsehood cannot be ascertained; and experience shews that implicit reliance cannot, in all cases, be placed in the declarations of a dying man, for his body may have survived the powers of his mind or his recollection, if his senses are not impaired by pain, or otherwise may not be perfect, or for the sake of ease and to be rid of the importunity of those around him, he may say, or seem to say, whatever they suggest. (d)

(a) Reg. v. Peltier, 4 L. C. R. 3.

(b) Reg. v. Jenkins, L. R. 1 C. C. R. 192, per Kelly, C. B.

(d) Re Anderson, 20 U. C. Q. B. 181, per M'Lean, J.

On a trial for murder, a written declaration of the deceased was put in evidence for the prosecution. The declaration was made on oath to a Magistrate's clerk about thirteen hours before death. The clerk asked the deceased, before he took down her statement, whether she felt she was likely to die. She said "I think so from the shortness of my breath." Her breath was then extremely short, and her answers were disjointed from its shortness. The Clerk said, "Is it with the fear of death before you that you make these statements, and have you any present hope of your recovery?" She said "None." The

Clerk then wrote out her statement, and added to it the above conversation, in the form of a statement by the deceased, but he omitted the word "present" before "hope." He then read over to the deceased what he had written, and she then added the words "at present" after "hope," and signed the declaration :-Held, that the statement was not admissible in evidence, as it did not appear to have been made under a settled hopeless expectation of death, inasmuch as the deceased had expressly qualified the words "no hope" by inserting after them the words" at present." (a)

In a prosecution for selling liquor without licence, under the Con. Stats. L. C., c. 6, s. 32, it is not necessary that the person who bought the liquor should be produced as a witness. It is sufficient to call a person who saw the sale, and saw what was paid. Nor is it necessary to call the person to whom the liquor was sold to prove that it was "fermented" liquor. A person who tasted

the liquor may prove this. (b)

A conviction, made by a Justice of the Peace, when duly returned, according to the Statute, to the Court of

(a) Reg. v. Jenkins, L. R. 1 C. C. R. 187; 38 L. J. (M. C.) 82.

(b) Thompson and Durnford, 12 L. C. J. 285.

Quarter Sessions, and filed by the Clerk of the Peace, becomes a record of that Court, and may be proved as any other similar record without producing the original. (a)

A conviction, by a Justice, for an assault and battery is a record, and a record of our own country, and so not proveable when directly denied by an examined copy, as in the case of a foreign judgment, but by the production` of the record itself. The course in such case is to produce the original record of conviction, which may be made up by the Justice at any time, and may be procured upon a writ of certiorari from this Court, either to the Justice or to the Quarter Sessions, if the record has been returned thither. Or, perhaps, it may be produced (when it can be so obtained) without the formality of a writ of certiorari.

In case of the death of the Justice who made the conviction, the writ may go to his executor. (b)

There is a well-settled distinction between proving the record of a different Court, from that in which the evidence is offered, and a record of the same Court. A Court will look at its own minutes, while sitting under the same Commission, when another Court would require more formal proof. (c)

The minutes of a Court of General Quarter Sessions are, in themselves, evidence, in the same Court, of the facts therein stated, without any other proof that the matter there recorded took place. Therefore, a recognizance, in a case of bastardy, taken under the Act 2 Vic., c. 42, before the Court itself, in open Court, is proved by the production of the minutes of the Sessions containing the entry. (d)

(a) Graham v. M'Arthur, 25 U. C. Q. B. 484, n.

(b) Thomson v. Leslie, 9 Ú. C. Q. B. 369.

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