Penalty. A competition for a prize offered for the nearest estimates of the number of votes to be cast at a coming election and the sale of certificates of admission thereto in consideration of money paid or services performed, does not constitute a lottery offence under Code sec. 236. The King v. Johnston (1902), 7 Can. Cr. Cas. 525. The proprietors of a weekly newspaper distributed to the public promiscuously a number of medals each bearing a different number and the words "Keep this, it may be worth £100. See the Weekly Telegraph today." Numbers were arbitrarily selected for prizes by them and the winning numbers were published weekly in their paper. The object of the scheme was to induce the public to buy the paper. Information as to the winners could be obtained without any payment, or sending in any coupon. The newspaper proprietors were found guilty of holding and carrying on a lottery within the Gaming Act, 1802. Wills v. Young, [1907] 1 K.B. 448. Lottery-Proceedings against corporation.]—In the Province of Alberta which has no grand jury system, a corporation may be compelled to answer to an indictable offence (ex gr. conducting a lottery scheme) by a formal written charge in lieu of an indictment, such charge being laid by the Attorney-General or by his direction or with the consent or order of a judge and notice thereof being served on the corporation under section 918 of the Revised Code. R. v. Standard Soap Co. (1907), 12 Can. Cr. Cas. 290. Prize dependent upon chance without skill-Illusory condition.]— Where tickets for a drawing by lot are sold as part of a scheme for the disposal of goods, and the holder of the winning ticket is required by the conditions of the drawing to shoot a turkey at fifty yards in five shots in order to win the prize, such circumstance does not necessarily take the case outside of the lottery sections of the Criminal Code. It is a question for the jury whether such condition was imposed as a contest of skill, or as a mere pretence in evasion of the lottery law. Where the evidence shews that any person could easily comply with the condition and the jury found the advertiser of the scheme guilty of advertising a lottery, the verdict will be supported as, in effect, finding that there was no real element of skill involved in the condition. The King v. Johnson, 6 Can. Cr. Cas. 48, 14 Man. R. 27. Sweepstake on horse race.]-In Hardwick v. Lane, [1904] 1 K.B. 204, the Divisional Court (Lord Alverstone, C.J., and Lawrance and Kennedy, JJ.), held that a sweepstake on a horse race is an illegal lottery within the Gaming Act, 1802. Search for gambling paraphernalia.]-The finding of lottery tickets and other paraphernalia of a lottery on the premises entered under a search order for instruments of gaming does not in itself constitute a primâ facie case nor shift the onus of proof to the defence. Section 985 which declares that the finding of instruments of gaming upon an order of search under Code sec. 641, shall constitute primâ facie evidence that the place is used as a common gaming house and that play was going on, has no application to a charge under section 236 for selling lottery tickets. R. v. Hong Guey (1907), 12 Can. Cr. Cas. 366 (B.C.). Search order for lottery devices.]-See sec. 641. Examination of person arrested on search order.]-See sec. 642. 237. Every one is guilty of an indictable offence and liable to five years' imprisonment who,— dead. (a) without lawful excuse, neglects to perform any duty Not buryeither imposed upon him by law or undertaken by him ing the with reference to the burial of any dead human body or human remains; or, (b) improperly or indecently interferes with or offers any Indignity human body or human remains, to dead indignity to any dead 55-56 V., c. 29, s. 206. At common law.]-Exposing the naked dead body of a child in or near the highway and within view therefrom is a common law nuisance. R. v. Clark, 15 Cox C.C. 171. And to leave unburied the corpse of a person for whom the accused was bound to provide Christian burial, was an indictable misdemeanour, if the accused were shewn to have been of ability to provide such burial. R. v. Vann (1851), 2 Den. 325; R. v. Stewart, 12 A. & E. 773; Jenkins v. Tucker (1788), 1 H. Bl. 90. It is also a common law misdemeanour to remove without authority a corpse from a grave in a church burial ground; R. v. Sharpe, Dears. & B. 160; 7 Cox 214; or to sell a dead body without lawful authority for the purpose of dissection. R. v. Lynn, 1 Leach 479, 1 R.R. 607; R. v. Gilles, R. & R. 366 (n); R. v. Cundick, Dowl. & Ry. 13; R. v. Duffin, R. & R. 365. Stranger undertaking to bury.]-The neglect to decently bury a dead human body by a person who has undertaken to do so and has removed the body with that expressed intent is an indictable offence under this section, although such person was, apart from such undertaking, under no legal obligation in respect of the burial. R. v. Newcomb (1898), 2 Can. Cr. Cas. 255. Coroner's right.1-A coroner has a legal right to direct a disinterment for the purposes of holding an inquest. R. v. Clerk (1702), Holt 167; R. ✓. Bond (1716), 1 Str. 22; Jervis on Coroners, 6th ed. 37. Any disposition of a corpse to obstruct or prevent a coroner's inquest when one ought to be held is a common law misdemeanour. R. v. Stephenson, 13 Q.B.D. 331; R. v. Price, 12 Q.B.D. 247. Vagrancy. body. 238. Every one is a loose, idle or disorderly person or Vagrant. vagrant who,— support. (a) not having any visible means of subsistence, is found No visible wandering abroad or lodging in any barn or outhouse, or means of in any deserted or unoccupied building, or in any cart or wagon, or in any railway carriage or freight car, or in any railway building, and not giving a good account of himself, or who, not having any visible means of maintaining himself, lives without employment; (b) being able to work and thereby or by other means to Not mainmaintain himself and family, wilfully refuses or neglects taining family. to do so; (c) openly exposes or exhibits in any street, road, highway Indecent or public place, any indecent exhibition; exhibitions. Begging. Loitering on highway. Disorderly conduct. Wanton disturbances. Destroying property. Night walker. Keeping house of ill-fame. Frequenting. Supported by prostitution. (d) without a certificate signed, within six months, by a priest, clergyman or minister of the Gospel, or two justices, residing in the municipality where the alms are being asked, that he or she is a deserving object of charity, wanders about and begs, or goes about from door to door, or places himself or herself in any street, highway, passage or public place to beg or receive alms; (e) loiters on any street, road, highway or public place, and obstructs passengers by standing across the footpath, or by using insulting language, or in any other way; (f) causes a disturbance in or near any street, road, highway or public place, by screaming, swearing or singing, or by being drunk, or by impeding or incommoding peaceable passengers; (g) by discharging firearms, or by riotous or disorderly conduct in any street or highway, wantonly disturbs the peace and quiet of the inmates of any dwelling-house near such street or highway; (h) tears down or defaces signs, breaks windows, or doors or door plates, or the walls of houses, roads or gardens, or destroys fences; (i) being a common prostitute or night walker, wanders in the fields, public streets or highways, lanes or places of public meeting or gathering of people, and does not give a satisfactory account of herself; (j) is a keeper or inmate of a disorderly house, bawdy- (k) is in the habit of frequenting such houses and does not Describing the offence.]-A summary conviction for being "a loose, idle In Quebec it has been held that a conviction under the vagrancy clauses of the Criminal Code must find that the accused is a loose, idle or disorderly person or vagrant and a conviction which merely declares that the accused was guilty of being drunk and causing a disturbance is invalid. R. v. Harkness (1906), 12 Can. Cr. Cas. 54, per Hutchinson, J. The correctness of the decision in the Harkness Case is doubted. Section 238 gives an enlarged statutory meaning to the word vagrant and includes with the definition many offences of varied description enumerated in its items (a) to (1) inclusive. It would seem more in harmony with the procedure of the Code and with the fundamental principles of criminal law that the accused should be charged in the information with the precise offence of the particular item of the statutory definition relied upon. The better way would no doubt be to charge that the accused is a vagrant in that he was found wandering abroad not having any visible means of subsistence and not giving a good account of himself, or (as the case may be) in that he caused a disturbance in a public place by being drunk, or other specific offence set out in sec. 238. Section 723 (3) declares that the description of any offence in the words of the Act creating the offence shall be sufficient. but this does not deprive the accused of his right to be informed of the nature, time and place of the offence to which he is called upon to plead. (a)-No visible means of support.]-By a proviso in sec. 239 no aged or infirm person shall be convicted as a loose, idle or disorderly person or vagrant, for any reason coming within paragraph (a) of this section, in the county of which he has for the two years immediately preceding been a resident. A person suspected of being a confidence man had registered at a hotel and on the same day was arrested at a railway station as a suspicious character. On his person were found two cheques one for $700 and another for $900 which were sworn to be such as are used by confidence men, also a mileage ticket nearly used up issued in the name of another person and $8 in cash. He offered no explanation of the cheques or ticket and gave no information about himself. It was held that he could not be Iroperly convicted as a vagrant on the evidence. R. v. Bassett, 10 Ont. Prac. R. 386, per Osler, J. Before a person can be convicted under subsec. (a), he must have acquired in some degree a character which brings him within it as an idle person, who has no visible means of maintaining himself, for example, not "paying his way" or being apparently able to earn a livelihood but without means yet lives without employment. Ibid. If the accused resides for a portion of the year with his parents at their request, they being able and willing to provide for his support, a conviction for vagrancy under Cr. Code sec. 238 (a) because "not having had any visible means of maintaining himself he had lived without employment" should be quashed. Semble, although it may appear that part of the money by which the accused is supported with his parents had been acquired by him by his gaming, etc., prior to the time of the offence charged, and that the accused while so resident with his parents idled away his time in places of public resort, such does not justify a conviction for vagrancy. R. v. Riley, 2 Can. Cr. Cas. 128. (b)-Failure to maintain the family.]-In order to constitute a wilful refusal or neglect on the part of a husband to maintain his family, under Cr. Code sec. 238 (b), it is necessary that he should be under a legal obligation to do so, and his failure to maintain his wife, who had left him without valid cause and refused to return, is not an offence under that section. R. v. Leclair (1898), 2 Can. Cr. Cas. 297; Flannagan v. Overseers (1857), 3 Jurist N.S. 1103; Morris v. Edmonds, 18 Cox C.C. 627. To constitute a wilful refusal or neglect by a husband to maintain his wife, there must be an absence of any reasonable ground for believing the refusal or neglect to be lawful. A husband who has been ordered by a civil court in an action brought by his wife for separation to pay to his wife an interim alimentary allowance is relieved from that liability in the Province of Quebec on proof that the wife is supporting herself by immorality, and a criminal prosecution against him for non-support will be dismissed on the like proof. Anonymous case H v. H— (1902), 6 Can. Cr. Cas. 163. (c)-Indecent exhibition in public place.]-Semble-The term "public place" includes a place to which the public have access only upon payment for admission, ex gr., a theatre. Ex parte Ashley, 8 Can. Cr. Cas. 328. See also Code sec. 208. (d)-Begging.]—It must be shewn that the wandering about and begging is a mode of life with the accused, and the section does not apply where persons with regular occupations temporarily out of employment through a "strike" go about seeking public contributions in aid of a general fund to sustain the strikers and their families. Pointon v. Hill, 12 Q.B.D. 306. (e)-Loitering, etc.]—A licensed cabman who contrary to a city ordinance loitered on the street near the entrance of a hotel and solicited passengers to hire his cab was held not within this provision where no obstruction of passengers was shewn. Smith v. The Queen, 4 Montreal L.R. 325. As to religious gatherings on streets and highways and their regulation by local laws and by-laws. See R. v. Watson (1896), 6 Can. Cr. Cas. 331, and note ibid., page 338. (f)-Causing disturbance.]—It is not sufficient to charge merely that the accused was drunk on a public street without alleging further that he caused a disturbance in such street by being drunk. Ex parte Despatie, 9 Legal News (Montreal) 387; R. v. Daly, 24 C.L.J. 157, 12 Ont. Prac. 411. "Disturbing the inhabitants" of a town was held by Wilson, C.J., to mean annoying them, as by making a noise which interferes with the thoughts or proceedings of others. R. v. Martin (1886), 12 O.R. 800. It is distinguishable from the term "creating a disturbance," which applies either to raising a clamour, commotion, quarreling or fighting, and refers to conduct of the nature of a breach of the peace. Ibid. The disturbance should be of the nature of a nuisance. Thomson v. Mayor of Croydon, 16 Q.B. 708. It may also be observed that the mere fact of drunkenness in a street is not sufficient to create an offence under sec. 238 (f), nor would the drunkenness and the making of a disturbance combined necessarily bring the case under the vagrancy clauses. Sub-section (f) declares a person a vagrant who causes a disturbance in a street, etc., by screaming, swearing or singing, or by being drunk, or by impeding or incommoding peaceable passengers. It is obvious that singing in a street road or public place is not necessarily a cause of disturbance and is not prohibited unless that result follows, and, in the same way, the state of drunkenness must cause a disturbance or it will not bring the drunken person within these sections of the Code. The offence of being drunk on a public street is a municipal one, regulated in many provinces by their municipal Acts and municipal by-laws passed thereunder. Slandering a person in a restaurant open to the public is not an offence under sec. 238, either as an obstruction to passenger by using insulting language, or as a disturbance incommoding passengers. R. v. Mercier (1901), 6 Can. Cr. Cas. 44, 20 Que. S.C. 28. (f)-Disorderly conduct in public place.]-A licensed saloon and billiard hall is a "public place" under Rev. Cr. Code, secs. 197 and 238, and a person causing a disturbance therein by being drunk is liable as a vagrant. The King v. Kearney (1907), 12 Can. Cr. Cas. 349. |