one, the acquittal of the others is the acquittal of that one also. 1 Hawkins P.C. 448. But one person alone may be tried for a conspiracy, provided that the indictment charged him with conspiring with others who have not appeared. Rex v. Kinnersley, 1 Str. 193, or who are since dead. Rex v. Nicholls, 2 Str. 1227, 13 East, p. 412(n).

And it has recently been held in Ontario, in a case under the Code, that one conspirator may be indicted and convicted without joining the others, although they are living and within the jurisdiction. R. v. Frawley (1894), 1 Can. Cr. Cas. 253 (Ont.).

A person was charged with conspiring with two others to obtain goods by false pretences from various tradesmen. During the trial a deputy chief constable was called and asked with reference to a shop opened by one of the persons charged who had pleaded guilty, "Did you make enquiries as to whether any trade had been done?" The answer was, "I did.” He was then asked, “Did you as a result of such enquiries find that any trade had been done?" and he answered, "I did not." It was held that the evidence was merely hearsay and inadmissible and the conviction was quashed. R. v. Saunders (1899), 63 J.P. 150.

The doctrines of commercial agency do not apply to prevent the operation of the criminal law. So where one Clark, a policy holder of a fire insurance company, conspired with Howse, their local agent, to defraud the company and handed to Howse for transmission to the company an unfounded proof of claim for pretended losses for fire, and obtained the money through Howse from the company, it was held that the knowledge of Howse of the falsity of the pretence could not be imputed as the knowledge of the company so as to affect the criminality of Clark. R. v. Clark (1892), 2 B.C.R. 191.

Upon a charge of conspiracy to defraud the Canadian Pacific Railway Co. by bribing clerks in the company's employ to illegally and fraudulently disclose information of the secret audits of trains to be made and to furnish such information to conductors to enable them to be prepared for the audits when made and at other times to be free to retain fares and to allow passengers to ride free or for a reduced fare, the court properly rejected evidence of conductors to the effect that if they knew the date of a proposed secret audit they would communicate it to the conductor whose train was to be audited for a purpose other than that of defrauding the company. The King v. Carlin (No. 2) (1903), 6 Can. Cr. Cas. 507 (Que.).

An indictment for conspiracy to defraud may properly charge that the conspiracy was with persons unknown, if neither the Crown nor the private prosecutor had definite information of the identity of the alleged co-conspirators. Where at the trial of such an indictment the name of one of the alleged co-conspirators is for the first time disclosed in the testimony of a Crown witness, that information may then be added to the statement or particulars of the indictment. R. v. Johnston (1902), 6 Can. Cr. Cas. 232.

It is a conspiracy to defraud a railway company for an employee of the audit office of the railway to agree with train conductors to sell to them secret information as to the time of special audits of passenger tickets on their trains, which information it was the duty of the accused as such employee to keep secret. The system of special audits on trains being designed to prevent the railway company being defrauded by irregularities not only on the train audited but on others, and being dependent for its effectiveness on the secrecy as to the time when it will take place, the disclosure of same for reward is evidence of an attempt to cause the company a financial loss, although such disclosure tended to prevent any loss on the occasion when such audits took place. Ibid.

In an indictment charging a conspiracy to defraud it is not necessary to set out overt acts done in pursuance of the illegal agreement or con

spiracy, not is it necessary to name the person defrauded or intended to be defrauded. Before the acts of alleged conspirators can be given in evidence there ought to be some preliminary proof to shew an acting together, but it is not necessary that a conspiracy should first be proved. R. v. Hutchinson (1904), 8 Can. Cr. Cas. 486, 11 B.C.R. 24.

Conspiracy in obtaining a passport by false representations.]-In The King v. Brailsford, [1905] 2 K.B. 730, the defendants were indicted for conspiracy in obtaining a passport from the Foreign Secretary by falsely pretending it was required to be used by the defendant McCulloch, whereas the defendant intended and procured it to be used by some other person, to whom they sent it to be used by him in Russia in fraud of the foreign office regulations for the use of passports, to the injury, prejudice and disturbance of the lawful, free and customary intercourse between the subjects of the King and those of the Czar of Russia, to the public mischief of the subjects of the King and to the endangerment of the continuance of the peaceful relations between the King and the Czar and their subjects respectively. It was contended on behalf of the defendants, who were found guilty, that the indictment did not in law amount to a criminal conspiracy, but the court held that the indictment was good in law and the conviction was affirmed.

The offence of conspiracy to defraud under Code sec. 444 does not include a conspiracy to defeat a candidate's chances of election by the employment of unlawful devices. So a charge of conspiracy the particulars of which severally allege that the accused conspired to defraud a candidate at an election to the Saskatchewan Legislature, the electors of the division and the public, by illegally obtaining the return of the opposing candidate, does not disclose an offence under sec. 573 of the Code, for the acts alleged as the object of the conspiracy do not constitute an indictable offence either by statute or at common law. R. v. Sinclair (1906), 12 Can. Cr. Cas. 20 (Sask.).

Particulars of charge.]-Section 863 provides that "No count which charges any false pretences or any fraud or any attempt or conspiracy by fraudulent means, shall be deemed insufficient because it does not set out in detail in what the false pretences or the fraud or fraudulent means consisted. But the court may order that the prosecutor shall furnish a particular of the above matters or any of them. Section 859.

A copy of the particulars is to be given without charge to the accused or his solicitor and shall be entered in the record and the trial shall proceed in all respects as if the indictment had been amended in conformity with same. Code sec. 860. The court may have regard to the depositions, in determining whether a particular is required or not. Code 860.

An indictment charging that two parties named did conspire by false pretences and subtle means and devices to obtain from F. divers large sums of money of the moneys of F., and to cheat and defraud him thereof was held good although the means of the alleged conspiracy were not stated in detail. R. v. Kenrick (1843), 5 Q.B. 49. Lord Denman, C.J.. in that case said: "There have not been wanting occasions when learned judges have expressed regret that a charge so little calculated to inform a defendant of the facts intended to be proved upon him should be considered by the law as well laid. All who have watched the proceedings of courts are aware that there is danger of injustice from calling for a defence against so vague an accusation, and judges of high authority have been desirous of restraining its generality within some reasonable bounds. The ancient form, however, has kept its place and the expedient now employed in practice of furnishing defendants with a particular of the acts charged upon them is probably effectual for preventing surprise and unfair advantages.

In a case of conspiracy to do that which is not a crime or to do a wrong which is not well known as being the subject of a criminal conspiracy, the facts should be set out in the indictment that it may appear whether or not the conspiracy charged is an indictable offence. An indictment for conspiracy to cure another of a sickness endangering life, "by unlawful and improper means" and thereby causing his death is bad and should be quashed because it does not specify the unlawful and improper means nor indicate the specific crime or wrong intended to be relied upon. R. v. Goodfellow (1906), 10 Can. Cr. Cas. 425, 11 O.L.R. 359.

Particulars furnished under sec. 859 of the Code have not the effect of amending or extending the scope of the original indictment or charge, and the inclusion of a separate and distinct offence as a particular under a charge of conspiracy will not authorize a conviction which would otherwise not be within the scope of the indictment. R. v. Sinclair (1906), 12 Can. Cr. Cas. 20 (Sask.).

Joint indictment.]-After one of three prisoners in Rex v. Plummer, [1902] 2 K.B. 339, 18 T.L.R. 659, jointly indicted for conspiracy, had pleaded guilty, the other two were tried and acquitted. The first prisoner, who had not been sentenced was allowed to withdraw his plea, and the conviction was quashed.

Extradition.]-Conspiracy to defraud is in itself not an extraditable offence between Canada and the United States, but extradition will lie as for a separate crime in respect of an overt act of a conspiracy which constitutes one of the crimes mentioned in the extradition arrangement. And the extraditable offence of larceny or participation in larceny is charged sufficiently in an information laid on instituting extradition proceedings therefor, if, following a charge of conspiracy to defraud between the accused and another person and an embezzlement and theft by such other person in pursuance thereof, the information alleges that the accused "did participate in the said offence of embezzlement and theft." United States v. Gaynor; Re Gaynor and Greene (No. 3), 9 Can. Cr. Cas. 205 (P.C.

Robbery and Extortion.

445. Robbery is theft accompanied with violence or threats Robbery defined. of violence to any person or property used to extort the property stolen, or to prevent or overcome resistance to its being stolen. 55-56 V., c. 29, s. 397.

Theft with violence.]-The general doctrine at common law was that physical force, actual or apprehended, in taking property, is essential to constitute a crime of this kind. 1 Bishop 430.

The sudden taking of a thing unawares from the person, as by snatching any thing from the hand or head, is sufficient to constitute a robbery, if some injury be done to the person, or if there be some previous struggle for the possession of the property; or if the article is so attached to the person or clothes as to create resistance, however slight; not otherwise. 2 Bishop 968. And where a watch was fastened to a steel chain passing round the neck of its owner, one who snatched it away, breaking the chain, was held to be guilty of this offence. "For the prisoner could not obtain the watch at once, but had to overcome the resistance the steel chain made, and actual force was used for the purpose." Rex v. Mason, Russ. & Ry. 419. To snatch a pin from a lady's headdress, so violently as to remove with it a part of the hair from the place where it was fixed (Rex v. Moore, 1 Leach, 4th ed. 335), or to force an ear-ring from her ear (Rex

Penalty.

Robbery

with

violence.

v. Lapier, 1 Leach, 4th ed. 320, 2 East P.C. 557, 708), is robbery; but not, to snatch property merely from another's hand. Rex v. Baker, 1 Leach, 4th ed. 290, 2 East P.C. 702; Rex v. Macauley, 1 Leach, 4th ed. 287; Rex v. Robins, 1 Leach, 4th ed. 290, note.

If the robber has, in any way, disabled his victim, a simple taking then from the person is sufficient. And where a bailiff handcuffs his prisoner, under pretence of conducting him the more safely to prison, but really for the purpose of robbing him; then, if having so disabled him, he takes money from the prisoner's pocket, the offence is robbery. Rex v. Gascoigne, 1 Leach, 4th ed. 280, 2 East P.C. 709.

Threats of violence.]—If the thief obtains possession of the property stolen by threats made in such a manner as to create a reasonable apprehension of bodily harm in case of resistance, the taking is robbery. So that, where money was given to a person connected with a mob in a time of riot, on his coming to the house and begging in a manner which implied menace if it were not given him, the getting of this money was held to be robbery. Rex v. Taplin, 2 East P.C. 712. And where the threat was to tear down corn and the house, the giving under fear of this threat was deemed sufficient to constitute the taker a robber. Rex v. Simons, 2 East P.C. 731. See Rex v. Gnosil, 1 Car. & P. 504. Even where the danger was not immediate, but a threat was to bring a mob from a neighboring town, in a state of riot, and burn down the prosecutor's house, and the prosecutor parted with the goods through fear of this consequence, which he believed would follow refusal, but not otherwise from apprehension of personal danger, the crime was held to be committed. Rex v. Astley, 2 East P.C. 729; Rex v. Brown, 2 East P.C. 731. The offer of money, less than the value of the goods, will not make the act of taking less criminal. Rex v. Simons, 2 East P.C. 712; Rex v. Spencer, 2 East P.C. 712. To constitute robbery under mere threats of violence, the menace must be of a kind to excite reasonable apprehension of danger. 2 East P.C. 713; 1 Hawk. P.C. Curw. Ed. p. 214, sec. 8.

Used to extort.]-Where the loser in a card game was informed shortly after its termination that he had been cheated and thereupon, in the bonâ fide belief (whether mistaken or not) that such was the case, assaulted the winner and by force took from him a part of the money won in the game, such assault and re-taking does not constitute theft or robbery. But under such circumstances the accused may properly be convicted of common assault. R. v. Ford (1907), 12 Can. Cr. Cas. 555, 13 B.C.R. 109.

Obtaining money from a woman by threat to accuse her husband of an indecent assault, is not robbery. Rex v. Edwards, 5 Car. & P. 518, 1 Moody & R. 257.

After the taking has been effected, the crime is not purged by giving back the thing taken. 1 Hale P.C. 533; Rex v. Peat, 1 Leach, 4th ed. 228, 2 East P.C. 557. The offence is complete although the person assaulted delivered with his own hand the property to the assailant, if the necessary other circumstances concurred. 1 Hale P.C. 533.

Extradition.]-Robbery is an extraditable offence between the British possessions and the United States of America by the Ashburton treaty of 1842.

446. Every one is guilty of an indictable offence and liable to imprisonment for life and to be whipped who,

(a) robs any person and at the time of, or immediately before or immediately after, such robbery, wounds, beats, strikes, or uses any personal violence to, such person; or,

(b) being together with any other person or persons robs, Joint or assaults with intent to rob, any person; or, robbery. (c) being armed with an offensive weapon or instrument Robbery robs, or assaults with intent to rob, any person. 55-56 V., c. 29, s. 398.

Robbery with violence and wounding.]—On a indictment for “robbery with violence and wounding" which does not expressly charge either common assault or assault occasioning bodily harm, a verdict of "guilty of assault as charged but not guilty of robbery" is improperly recorded and the result is a mis-trial. R. v. Edmonstone (1907), 13 Can. Cr. Cas. 125 (Ont.).

The jury should have been directed to reconsider the case with a view to finding definitely the character of the assault and as to the wounding and should have been instructed as to the different verdicts which they might find on the indictment. Under the circumstances a new trial should be granted on the whole case as if no verdict had been rendered. Ibid. Form of indictment for robbery by two or more persons.]-That on at A.B. and D.H. together, in and upon one J.N. unlawfully did make an assault and him the said J.N. in bodily fear and danger of bodily harm then and there together unlawfully did put, and the moneys of the said J.N. to the amount of from the person and against the will of the said J.N., then unlawfully and violently together did steal, take and carry away, against the form of the statute in such cases made and provided and against the peace, etc. (If one only of them be apprehended, it will charge him by name together with a certain other person, or certain other persons, to the jurors aforesaid unknown.)

while
armed.

447. Every one who commits robbery is guilty of an indict- Penalty able offence and liable to fourteen years' imprisonment. 55-56 for robbery. V., c. 29, s. 399.

See note to sec. 445.

,, intent to

448. Every one who assaults any person with intent to rob Assault with him is guilty of an indictable offence and liable to three years' imprisonment. 55-56 V., c. 29, s. 400.

Indictment.]-When the complete offence of robbery is charged but not proved and the evidence establishes an attempt to commit the offence, the accused may be convicted of such attempt and punished accordingly. Section 949. An assault with intent to rob is a form of attempt to rob. Section 72. On a count for robbery the accused may be convicted of any offence the commission of which would be included in the commission of robbery and which is proved; or he may be convicted of an attempt to commit any offence so included. Section 951. An attempt to assault with intent to rob is in itself an indictable offence. Section 571.

When an attempt to commit an offence is charged but the evidence establishes the commission of the full offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt, unless the court where the trial takes place, thinks fit in its discretion to discharge the jury from giving any verdict upon such trial and to direct such person to be indicted for the complete offence. Section 950. After a conviction for the attempt the accused is not liable to be tried again for the offence which he was charged with attempting to commit. Section 950 (2). If

rob.