this Part with respect to goods to which a false description has been applied, and with respect to selling or exposing, or having in possession, for sale, or any purpose of trade or manufacture, goods with a false trade description, shall apply accordingly. 55-56 V., c. 29, s. 444. 337. The use of any figure, word or mark which, according Trade to the custom of the trade, is commonly taken to be an indica- description. tion of any of the matters hereinbefore referred to in the interpretation of the expression 'trade description,' is a trade description within the meaning of this Part. 55-56 V., c. 29, s. 443. 338. To constitute a false document it is not necessary that False the fraudulent intention should appear on the face of the docu- document. inent, but it may be proved by external evidence. 55-56 V., c. 29, s. 421. False document.]-The definition of a false document given in the Code (see sec. 335, sub-secs. (f) and (j)) makes no change in the law but merely defines in statutory form what had by judicial construction in the courts been held to constitute a false document, the making of which with the knowledge and intent mentioned in the statute is declared to be forgery, and the uttering of which with like knowledge by one who uses, deals with, or acts upon it as if it were genuine, is made an indictable offence punishable in like manner as forgery. Per Burton, J.A., in Re Murphy (1895), 2 Can. Cr. Cas. 578, 583. Where a fraudulent conspiracy was entered into between two persons in pursuance of which one of them opened an account in a bank in a fictitious name and gave to the other a cheque, for which the latter knew there were no funds, drawn in the fictitious name, and the same was negotiated by the payee in furtherance of such conspiracy by obtaining another bank to cash the same on the faith of its being a genuine cheque, the cheque is a "false document" both by the Criminal Code and at common law. Re Murphy (1894), 2 Can. Cr. Cas. 562; s.c. in appeal (1895), 2 Can. Cr. Cas. 578. An instrument may be the subject of forgery although in fact it should appear impossible for such an instrument as the instrument forged to exist, provided the instrument purports on the face of it to be good and valid as to the purposes for which it was intended to be made. R. v. Sterling (1773), 1 Leach 996; R. v. Portis (1876), 40 U.C.Q.B. 214. Altering genuine document.]—Making a false document includes altering a genuine document in any material part, and making any material addition to it or adding to it any false date, attestation, seal or other thing which is material, or by making any material alteration in it, either by erasure, obliteration, removal or otherwise. Section 466 (2). Where the forgery consists of the alteration of the time of maturity of an endorsed note, the intent to prejudice someone (see sec. 466) or to defraud may be inferred if the facts warrant the conclusion that either the maker or the endorser might be defrauded, although it appears that the prisoner fully intended to retire the note. R. v. Craig (1858), 7 U.C.C.P. 241. R. v. Hodgson, 2 Jurist N.S. 453. Outbuilding, when to be part of dwellinghouse. Entrance into build 339. A building occupied with, and within the same curtilage with, any dwelling-house shall be deemed to be part of the said dwelling-house if there is between such building and dwelling-house a communication, either immediate or by means of a covered and inclosed passage, leading from the one to the other, but not otherwise. 55-56 V., c. 29, s. 407. 340. An entrance into a building is made as soon as any ing defined. part of the body of the person making the entrance, or any part of any instrument used by him, is within the building. Entering by artifice or breaking. As to provisions relating to 2. Every one who obtains entrance into any building by any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, shall be deemed to have broken and entered that building. 55-56 V., c. 29, s. 407. Application of Part. 341. The provisions of this Part respecting the application of a false trade description to goods extend to the application false trade to goods of any such figures, words or marks, or arrangement descriptions. or combination thereof, whether including a trade mark or not, as are reasonably calculated to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose manufacture or merchandise they really Idem. Idem. are. 2. The provisions of this Part respecting the application of a false trade description to goods, or respecting goods to which a false trade description is applied, extend to the application to goods of any false name or initials of a person, and to goods with the false name or initials of a person applied, in like manner as if such name or initials were a trade description.. 55-56 V., c. 29, s. 443. False name or initials as a false trade description.]-The three requisites to bring the marking within this term are stated in sec. 335 (k). It seems that all three conditions there specified must exist concurrently in order to constitute the offence of applying a false trade description by means of a false name or initials. As to false trade descriptions generally, see secs. 487 and 488. 342. The provisions of this Part with respect to false trade descriptions do not apply to any trade description which, on the twenty-second day of May, in the year one thousand eight hundred and eighty-eight, was lawfully and generally applied to goods of a particular class, or manufactured by a particular method, to indicate the particular class or method of manufacture of such goods: Provided that where such trade descrip- Proviso. tion includes the name of a place or country, and is calculated to mislead as to the place or country where the goods to which it is applied were actually made or produced, and the goods. are not actually made or produced in that place or country, such provisions shall apply unless there is added to the trade. description, immediately before or after the name of that place or country, in an equally conspicuous manner with that name, the name of the place or country in which the goods were actually made or produced, with a statement that they were made or produced there. 55-56 V., c. 29, s. 455. 343. The provision of this Part with respect to trading As to stamps shall not apply to any trading stamp issued by a manu- trading stamps. facturer or vendor before the first day of November, one thousand nine hundred and five. 4-5 E. VII., c. 9, s. 2. Trading stamps.]-See secs. 506-508. Theft Defined. 344. Every inanimate thing whatever which is the property Things of any person, and which either is or may be made movable, capable of being is capable of being stolen as soon as it becomes movable, although stolen. it is made movable in order to steal it: Provided that nothing growing out of the earth of a value not exceeding twenty-five Proviso. cents shall, except in cases hereinafter provided, be deemed capable of being stolen. 55-56 V., c. 29, s. 303. 1 Larceny at common law.]-Nothing but personal goods could be the subject of larceny at common law. Archbold Cr. Plead. (1900), 406. Things real or which "savoured of the realty" were excluded, and title deeds could therefore not be the subject of larceny. 1 Hale 510. Nor could bonds, bills of exchange, etc., they being mere choses in action. Hawk., ch. 33, sec. 35; R. v. Watts (1854), Dears. 326. And there could not be a larceny of a corpse, as it was not the subject of property. R. v. Haynes (1614), 12 Co. Rep. 113. But see Code sec. 237, as to improper interference with a dead human body or human remains. Water supplied by a water company to a consumer and standing in his pipes, might be the subject of larceny at common law. Ferens V. O'Brien (1883), 11 Q.B.D. 21. There could be no larceny at common law of things which adhere to the freehold, such as corn, grass, trees and the like, or lead or other thing attached to a house. Archbold Cr. Plead. (1900), 406. The severance of them was a mere trespass. Ibid. But if the owner or a stranger severed Living creatures capable of being stolen. Living creatures wild by nature. Idem. Idem. Idem. Parts of living creatures. them and another man came and stole them, or if the thief severed them at one time, and after abandoning same came at another time and took them away, it was larceny. R. v. Foley (1889), 17 Cox C.C. 142. But the mere severance by the wrongdoer at one time and the taking away by him at another were not sufficient to constitute larceny unless he had, between the severance and the taking away, intended to abandon his wrongful possession of the article severed. If the wrongdoer did not intend to abandon his possession, but merely left the article concealed on the land after severence, until he could conveniently return and carry it away, then the severance and carrying away were treated as one continuous act although a considerable time may have elapsed between the severance and taking away, and there is no larceny at common law. R. v. Townley (1871), L.R. 1 C.C.R. 315. Theft under the Code.]-The fraudulent conversion and removal of many things which would not be the subject of larcency at common law is now punishable as theft under secs. 344-388 inclusive. The subject matter of the offence under sec. 397, i.e., "anything capable of being stolen," is not restricted to things capable of being stolen by the accused, but includes anything which comes within the definition given in sec. 344 of things capable of being stolen. R. v. Goldstaub (1895), 5 Can. Cr. Cas. 357, 10 Man. R. 497. 345. All tame living creatures, whether tame by nature or wild by nature and tamed, shall be capable of being stolen: Provided that tame pigeons shall be capable of being stolen so long only as they are in a dovecot or on their owner's land. 2. All living creatures wild by nature, such as are not commonly found in a condition of natural liberty in Canada, shall, if kept in a state of confinement, be capable of being stolen, not only while they are so confined but after they have escaped from confinement. 3. All other living creatures wild by nature shall, if kept in a state of confinement, be capable of being stolen so long as they remain in confinement or are being actually pursued after escaping therefrom, but no longer. 4. A wild living creature shall be deemed to be in a state of confinement so long as it is in a den, cage or small inclosure, stye or tank, or is otherwise so situated that it cannot escape and that its owner can take possession of it at pleasure. 5. Wild creatures in the enjoyment of their natural liberty shall not be capable of being stolen, nor shall the taking of their dead bodies by, or by the orders of, the person who killed them before they are reduced into actual possession by the owner of the land on which they died, be deemed to be theft. 6. Everything produced by or forming part of any living creature capable of being stolen, shall be capable of being stolen. 55-56 V., c. 29, s. 304. Larceny of animals.]—Animals feræ naturæ, or wild animals, were not the subject of larceny at common law unless reclaimed, and then only in case they were animals fit for food. 4 Bl. Com. 235, 2 Bishop Cr. Law 683. There could be no larceny of the following at common law, although reclaimed-dogs, cats, ferrets, squirrels, parrots, singing birds. 2 Bishop Cr. Law 684. Or of ferrets, though tame and saleable. R. v. Searing (1818), R. & R. 250. Birds, bees and silkworms, kept respectively for food, labour or profit, were the subjects of larceny as well as their produce. 2 Russ. Cr., 5th ed., 233. The taking of tame pigeons from a dovecote might be larceny at common law. R. v. Cheafor (1851), 2 Den. 361. Section 345, specially declares that they shall constitute the subjects of theft so long only as they are in a dovecote, or on their owner's land. 346. Oysters and oyster brood shall be capable of being Oysters. stolen when in oyster beds, layings, or fisheries which are the property of any person, and sufficiently marked out or known as such property. 55-56 V., c. 29, s. 304. 347. Theft or stealing is the act of fraudulently and with- Theft out colour of right taking, or fraudulently and without colour defined. of right converting to the use of any person, anything capable of being stolen, with intent, (a) to deprive the owner, or any person having any special (b) to pledge the same or deposit it as security; or, 2. Theft is committed when the offender moves the thing Time when or causes it to move or to be moved, or begins to cause it to theft. become movable, with intent to steal it. 3. The taking or conversion may be fraudulent, although Secrecy. effected without secrecy or attempt at concealment. 4. It is immaterial whether the thing converted was taken Purpose of for the purpose of conversion, or whether it was, at the time taking. of the conversion, in the lawful possession of the person converting. 55-56 V., c. 29, s. 305. Intent to steal.]-The present statutory definition of theft as contained in sections 347 and 348 of the Code is mainly a declaration of the common law. |