Value of things stolen over $200. Goods in process of manufacture. terms apply to any other offence for which he may be tried at a court of general sessions? Sentence after previous conviction.]-By the second sub-section the offender is liable to ten years' imprisonment if he has been previously convicted of theft. When a prisoner is convicted, on a summary trial before a police magistrate, of theft, he cannot be sentenced under the second sub-section to more than seven years' imprisonment although he has been previously convicted of theft, unless such previous conviction has been charged in the information by analogy to sec. 851 and proved in accordance with sec. 963, and where in such a case a greater punishment is inflicted, the Court of Appeal upon an application under sub-sec. 2 of sec. 1016 of the Code, will set aside the sentence and pass what it considers a proper sentence. R. v. Edwards (1907), 17 Man. R. 288. When a previous conviction is not charged in the indictment or information, neither a judge nor a magistrate has any right to ask a prisoner after conviction, whether he has been previously convicted or not, either with the view of ascertaining whether the prisoner is liable to any increased punishment in such case, or with the view of determining what the proper sentence within the ordinary maximum provided by the statute in the particular case should be. R. v. Edwards (1907), 17 Man. R. 288. Probably the case last mentioned will not apply to evidence given by the Crown in rebuttal to evidence given for the defendant of his good character or other evidence in mitigation of sentence. 387. If the value of anything stolen, or in respect of which any offence is committed for which the offender is liable to the same punishment as if he had stolen it, exceeds the sum of two hundred dollars the offender is liable to two years' imprisonment, in addition to any punishment to which he is otherwise liable for such offence. 55-56 V., c. 29, s. 357. 388. Every one is guilty of an indictable offence and liable to five years' imprisonment who steals, to the value of two dollars, any woollen, linen, hempen or cotton yarn, or any goods or articles of silk, woollen, linen, cotton, alpaca or mohair, or of any one or more of such materials mixed with each other or mixed with any other material, while laid, placed or exposed, during any stage, process or progress of manufacture, in any building, field or other place. 55-56 V., c. 29, s. 347. Stage, process or progress of manufacture.]-Goods may be within this section though the texture is complete if they have not yet been brought into saleable condition. R. v. Woodhead, 1 M. & Rob. 549. On an indictment under the English statute, 18 Geo. II., ch. 27, for stealing yarn out of a bleaching ground, the evidence was that the yarn had been spread upon the ground, but was afterwards taken up and thrown into heaps in order to be carried into the house, in which state some of it was stolen by the prisoner, Thompson, B., held that the case did not come within the statute, as there was no occasion to leave the yarn upon the ground in the state in which it was taken by the prisoner as a stage, process or progress of manufacture. Hugill's Case, 2 Russell Cr. 6th ed. Offences Resembling Theft. ture. 389. Every one is guilty of an indictable offence and liable Fraudulentto two years' imprisonment, when the offence is not within the ly disposing of things enlast preceding section, who, having been entrusted with, for trusted for the purpose of manufacture or for a special purpose connected manufacwith manufacture, or employed to make, any felt or hat, or to prepare or work up any woollen, linen, fustian, cotton, iron, leather, fur, hemp, flax or silk, or any such materials mixed with one another, or having been so entrusted, as aforesaid, with any other article, materials, fabric or thing, or with any tools or apparatus for manufacturing the same, fraudulently disposes of the same or any part thereof. 55-56 V., c. 29, s. 348. breach of 390. Every one is guilty of an indictable offence and liable Criminal to seven years' imprisonment who, being a trustee of any pro- trust. perty for the use or benefit, either in whole or in part, of some other person, or for any public or charitable purpose, with intent to defraud, and in violation of his trust, converts anything of which he is trustee to any use not authorized by the trust. 55-56 V., c. 29, s. 363. Trustee.]—The expression "trustee" means a trustee on some express trust created by some deed, will or instrument in writing, or by parol, or otherwise, and includes the heir or personal representative of any such trustee, and every other person upon or to whom the duty of such trust has devolved or come, whether by appointment of a court or otherwise, and also an executor and administrator, and an official manager, assignee, liquidator or other like officer acting under any Act relating to joint stock companies, bankruptcy or insolvency, and any person who is, by the law of the Province of Quebec, an "administrateur" or "fidéicommissaire"; and the expression "trust" includes whatever is by that law an "administration" or "fidéicommis." Section 2(39). Any property.]-The expression "property" as here used includes every kind of real and personal property, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods. Section 2 (32). It covers not only such property as was originally in the possession or under the control of the accused, but also any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise. Section 2(32). So where certain promissory notes were given to the accused for the specific purpose of paying certain other notes with the proceeds it was considered that an indictment for the misappropriation of the notes themselves would have been sufficient. R. v. Barnett (1889), 17 O.R. 649. Consent of Attorney-General.]—No proceeding or prosecution against a trustee for a criminal breach of trust, as defined in this section, shall be commenced without the sanction of the Attorney-General. Section 596. It is not necessary that the indictment should allege the consent of the Attorney-General. Knowlden v. R. (1864), 5 B. & S. 532; R. v. Barnett (1889), 17 Ont. R. 649. But it seems that if the consent be stated on the Public servants refusing to deliver up property lawfully demanded. Penalty. Fraudulently taking cattle. Fraudulently refusing to deliver up cattle. Defacing brand on cattle. record, it must be proved if traversed. Knowlden v. R. (1864), 5 B. & S. at p. 549, per Cockburn, C.J. Where trustee a co-owner.]—A conviction for theft may be made against a co-owner fraudulently misappropriating the fund (Code secs. 347, 352) although the facts also prove the offence of criminal breach of trust under sec. 390. McIntosh v. The Queen (1894), 5 Can. Cr. Cas. 254, 23 Can. S.C.R. 180. 391. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, being employed in the service of His Majesty or of the Government of Canada or the Government of any province of Canada, or of any municipality, and entrusted by virtue of such employment with the keeping, receipt, custody, management or control of any chattel, money, valuable security, book, paper, account or document, refuses or fails to deliver up the same to any one authorized to demand it. 55-56 V., c. 29, s. 321. Municipality.]—-The expression "municipality" includes the corporation of any city, town, village, county, township, parish or other territorial or local division of any province of Canada, the inhabitants whereof are incorporated or have the right of holding property for any purpose. Section 2(21). Valuable security.]-This term is defined by sec. 2(40). Indictment.]-In every case of theft or fraudulent application or disposition of any chattel, money or valuable security under sec. 359 (e) or 391 the property in any such chattel, money or valuable security may, in any warrant by the justice before whom the offender is charged, and in the indictment preferred against such offender, be laid in His Majesty, or in the municipality, as the case may be. Code sec. 868. 392. Every one is guilty of an indictable offence and liable to three years' imprisonment who, (a) without the consent of the owner thereof fraudulently takes, holds, keeps in his possession, conceals, receives, appropriates, purchases or sells, or fraudulently causes or procures, or assists in the taking possession, concealing, appropriating, purchasing or selling of any cattle which are found astray; or, (b) fraudulently refuses to deliver up any such cattle to the proper owner thereof, or to the person in charge thereof on behalf of such owner, or authorized by such owner to receive such cattle; or, (c) without the consent of the owner, fraudulently, wholly or partially obliterates, or alters or defaces, or causes or procures to be obliterated, altered or defaced, any brand or mark on any cattle, or makes or causes or procures to be made any false or counterfeit brand or mark on any Evidence.]-Sec. 989 of the Code is as follows:-In any criminal prosecution, proceeding or trial, the presence upon any cattle of a brand or mark, which is duly recorded or registered under the provisions of any Act, ordinance or law, shall be prima facie evidence that such cattle are the property of the registered owner of such brand or mark; and where a person is charged with theft of cattle, or with an offence under paragraph (a) or paragraph (b) of sec. 331A respecting cattle, possession by such person or by others in his employ or on his behalf of such cattle bearing such a brand or mark of which the person charged is not the registered owner, shall throw upon the accused the burden of proving that such cattle came lawfully into his possession or into the possession of such others in his employ or on his behalf, unless it appears that such possession by others in his employ or on his behalf was without his knowledge and without his authority, sanction or approval. 393. Every one who unlawfully and wilfully kills, wounds Unlawfully or takes any house-dove or pigeon, under such circumstances injuring pigeons. as do not amount to theft, is guilty of an offence and liable, upon complaint of the owner thereof, on summary conviction, to a penalty not exceeding ten dollars over and above the value of the bird. 55-56 V., c. 29, s. 333. Section 345 declares that in contemplation of law tame pigeons are capable of being stolen so long only as they are in a dovecote or on their owner's land. 394. Every one is guilty of an indictable offence and liable Penalty. to three years' imprisonment who, (a) without the consent of the owner thereof, (i) fraudulently takes, holds, keeps in his possession, col- Fraudulentlects, conceals, receives, appropriates, purchases, sells ly taking, possessing, or causes or procures or assists to be taken possession of, etc., drift collected, concealed, received, appropriated, purchased timber. or sold, any timber, mast, spar, saw-log or other description of lumber which is found adrift in, or cast ashore on the bank or beach of, any river, stream or lake, or (ii) wholly or partially defaces or adds or causes or pro- Defacing cures to be defaced or added, any mark or number on any such timber, mast, spar, saw-log or other description of lumber, or makes or causes or procures to be made any false or counterfeit mark on any such timber, mast, spar, saw-log or other description of lumber; or, (b) refuses to deliver up to the proper owner thereof, or to Refusing to the person in charge thereof, on behalf of such owner, or deliver to authorized by such owner to receive the same, any such 21-CRIM. CODE. mark on same. owner. Possessing trees, etc., without being able to account therefor. Destroying documents of title. timber, mast, spar, saw-log or other description of lumber. 55-56 V., c. 29, s. 338. Evidence.]-In any prosecution, proceeding or trial for any offence under section 394 a timber mark, duly registered under the provisions of the Timber Marking Act, on any timber, mast, spar, saw-log or other description of lumber, shall be prima facie evidence that the same is the property of the registered owner of such timber mark. Possession by the accused, or by others in his employ or on his behalf, of any such timber, mast, spar, saw-log or other description of lumber so marked, shall, in all cases, throw upon him the burden of proving that such timber, mast, spar, saw-log or other description of lumber came lawfully into his possession, or into the possession of such others, in his employ or on his behalf. Code sec. 990. In Robitaille v. Mason, 9 B.C.R. 499, the plaintiff took possession of Mason's float, which he found adrift on a lake. Mason, although aware that plaintiff claimed a lien for salvage, made no move towards recovering the float until after twelve weeks, when he in company with a constable, demanded it, and on plaintiff refusing to give it up without compensation, he was arrested without a warrant and taken to gaol, and subsequently an information laid against him under this section of the Code for taking and holding timber found adrift, was dismissed. It was held that the arrest was the joint act of Mason and the constable, and that Mason was therefore liable for damages for false imprisonment. 395. Every one who, having in his possession, or on his premises with his knowledge, the whole or any part of any tree, sapling or shrub, or any underwood, or any part of any live or dead fence, or any post, pale, wire, rail, stile or gate, or any part thereof, of the value of twenty-five cents at the least, is taken or summoned before a justice of the peace, and does not satisfy such justice that he came lawfully by the same, is guilty of an offence and liable, on summary conviction, to a penalty not exceeding ten dollars over and above the value of the article so in his possession or on his premises. 55-56 V., c. 29, s. 340. A conviction stated that C. had on his premises a quantity of chopped wood, to wit, about half a cord, belonging to F. which said F. states was stolen from him, and that said C. could not satisfactorily account for its possession. It was held that the conviction was bad, because the enactment 32 & 33 Vict., ch. 21, sec. 25, under which it was made, (re-enacted in Code sec. 395) applied to trees attached to the freehold, not to trees made into cordwood, and because cordwood is not "the whole or any part of a tree" within the statute. Re Caswell (1873), 33 U.C.Q.B. 303. 396. Every one who destroys, cancels, conceals or obliterates any document of title to goods or lands, or any valuable security, testamentary instrument, or judicial, official or other document, for any fraudulent purpose, is guilty of an indictable offence and liable to the same punishment as if he had |