person, cheats in playing at any game or in holding the stakes, or in betting on any event. 55-56 V., c. 29, s. 395.

Where the loser in a card game was informed shortly after its termination that he had been cheated and thereupon, in a 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.

Winning by fraud at tossing with coins falls under this section. R. v. O'Connor, 15 Cox, 3.

To constitute the offence of cheating at common law it is necessary to shew, (1) that the act has been completed, (2) that there has been injury to the individual. R. v. Vreones, [1891] 1 Q.B. 360.

witchcraft,

443. Every one is guilty of an indictable offence and liable Pretending to one year's imprisonment who pretends to exercise or use any to practise kind of witchcraft, sorcery, enchantment or conjuration, or etc. undertakes to tell fortunes, or pretends from his skill or knowledge in any occult or crafty science, to discover where or in what manner any goods or chattels supposed to have been stolen or lost may be found. 55-56 V., c. 29, s. 396.

Fortune telling.]-It was held by the Ontario Court of Appeal in R. v. Marcott (1901), 4 Can. Cr. Cas. 437, that, to uphold a conviction under sec. 443 of the Code, there must be evidence upon which it may be reasonably found that the accused was asserting or representing, with the intention that the assertion or representation should be believed, that he had the power to tell fortunes, with the intent, in so asserting or representing, of deluding and defrauding others.

Where on a prosecution for undertaking to tell fortunes, it appears that the prediction of the future for which payment was made was expressly stipulated to be only a delineation made pursuant to rules laid down in published works on palmistry, etc., an acquittal should be directed, as the contract negatives any intention to deceive. The King v. Chilcott (1902), 6 Can. Cr. Cas. 27.

The word "undertakes," as used in this section of the Code, implies an assertion of the power to perform, and a person undertaking to tell fortunes impliedly asserts his power to tell fortunes and in doing so is asserting the possession of a power which he does not possess and is thereby practising deception, and when this assertion of power is used by him with the intent of deluding and defrauding others the offence aimed at by the enactment is complete. Per Armour, C.J.O., in R. v. Marcott (1901), 4 Can. Cr. Cas. 437; Penny v. Hanson (1887), 18 Q.B.D. 478; R. v. Entwistle, [1899] 1 Q.B. 846; Monck v. Hilton, 2 Ex. D. 268.

The word "pretend" in itself implies that there was an intention to deceive and impose upon others. R. v. Entwistle, ex parte Jones (1899), 63 J.P. 423.

A conviction

The mere undertaking to tell fortunes is an offence. obtained upon the evidence of a person who was a decoy, but not a dupe or a victim, was affirmed. R. v. Milford (1890), 20 Ont. R. 306.

23-CRIM. CODE.

Conspiracy to defraud.

444. Every one is guilty of an indictable offence and liable to seven years' imprisonment who conspires with any other person, by deceit or falsehood or other fraudulent means, to defraud the public or any person, ascertained or unascertained, or to affect the public market price of stocks, shares, merchandise, or anything else publicly sold, whether such deceit or falsehood or other fraudulent means would or would not amount to a false pretense as hereinbefore defined. 55-56 V., c. 29, s. 394.

Conspiracy to defraud.]-A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. But where two agree to carry it into effect, the very plot is an act in itself and is the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. Mulcahy v. R. (1868), L.R. 3 H.L., Eng. & Ir. App. 306, 317, Archbold's Crim. Evid., 21st ed. 1104; R. v. Roy, 11 L.C.J.

89.

The conspiracy itself is the offence, and whether anything has been done in pursuance of it or not is immaterial. R. v. Gill (1818), 2 B. & Ald. 204; R. v. Seward (1834), 1 A. & E. 706; R. v. Richardson (1834), 1 M. & Rob. 402; R. v. Kenrick (1843), 5 Q.B. 49.

It is not necessary to prove that the defendants actually met together and concerted the proceeding; it is sufficient if the jury are satisfied from the defendants' conduct either together or severally, that they were acting in concert. R. v. Fellowes (1859), 19 U.C.R. 48, 58; Farquhar v. Robertson, 13 P.R. (Ont.) 156.

The jury may group the detached acts of the parties severally, and view them as indicating a concerted purpose on the part of all as proof of the alleged conspiracy. R. v. Connolly (1894), 1 Can. Cr. Cas. 468 (Ont.).

When the existence of the common design on the part of the defendants has been proved, evidence is then properly receivable as against both of what was said or done by either in furtherance of the common design. Ibid.

A conspiracy to defraud is indictable, although the conspirators have been unsuccessful in carrying out the fraud. R. v. Frawley (1894), 1 Can. Cr. Cas. 253 (Ont.).

A conspiracy to defraud is indictable, although the object was to commit a civil wrong, and although if carried out the act agreed upon would not constitute a crime. R. v. Defries (1894), 1 Can. Cr. Cas. 207 (Ont.).

Any overt act of conspiracy is to be viewed as a renewal or continuation of the original agreement made by all of the conspirators, and, if done in another jurisdiction than that in which the original concerted purpose was formed, jurisdiction will then attach to authorize the trial of the charge in such other jurisdiction. R. v. Connolly (1894), 1 Can. Cr. Cas. 468.

The bare consulting of those who merely deliberate in regard to the proposed conspiracy, although they may not agree on a plan of action, is of itself an overt act. Ibid.

One person alone cannot be guilty of a conspiracy, and if all the alleged conspirators are prosecuted for such a conspiracy and all are acquitted but

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.

defined.

445. Robbery is theft accompanied with violence or threats Robbery 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