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PART XIX.

PROCEDURE BY INDICTMENT.

General Provisions as to Indictments.

843. It shall not be necessary for any indictment or any Need not be record or document relative to any criminal case to be written on parchon parchment. 55-56 V., c. 29, s. 608.

Indictments generally.]—“Wherever a person does an act which a statute on public grounds, has prohibited generally, he is liable to an indictment." Lord Denman, C.J., in Regina v. Buchanan, 8 Q.B. at p. 887. But where, in the clause containing the prohibition, a particular mode of enforcing the prohibition is prescribed, and the offence is new, that mode only can be pursued. The case is then as if the statute had simply declared that the party doing the act was liable to the particular punishment. Ibid.

ment.

844. It shall not be necessary to state any venue in the Statement body of any indictment, and the district, county or place named of venue. in the margin thereof shall be the venue for all the facts stated in the body of the indictment.

2. If local description is required such local description shall Local be given in the body of the indictment. 55-56 V., c. 29, s. 609. description.

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Venue.]-The venue mentioned in sec. 844 of the Criminal Code, means the place where the crime is charged to have been committed and, in cases where local description is not required, there is an implied allegation that the offence was committed at the place mentioned in the venue in the margin of the record. It is of no consequence whether or not the trial court should be considered an inferior court. Smitheman v. The King, 9 Can. Cr. Cas. 17, 35 Can. S.C.R. 490.

In indictments for embezzlement, where the money has been received in one county and the receipt denied in another county, the venue has been holden to be well laid in either county. And in this and in all other cases in which the offence is begun in one county and completed in another, the venue may be laid in either county. R. v. Murdoch, 8 English Law and Equity Reports, 577; R. v. Taylor, 2 Leach, 974.

The offence of fraudulent conversion of the proceeds of a valuable security, mentioned in Code sec. 355, consists of a continuity of acts-the reception of the valuable security, the collection of the proceeds, the conversion of the proceeds, and lastly, the failure to account for the proceeds; and where the beginning of the operation is in one district and the continuation and completion are in another district, the accused may be arrested and proceeded against in either district. R. v. Hogle (1896), 5 Can. Cr. Cas. 53.

The place of trial-the venue-is usually the place of the crime, i.e., the same county, district or place; and the trial then takes place by a 43-CRIM. CODE.

Unnecessary statement.

Form.

Mistake in heading immaterial.

Indictment

for pretend ing to send money, etc.,

in letter.

jury of that county or district taken from a panel summoned by the sheriff of the same. Mallot v. R. (1886), 1 B.C.R. pt. 2, p. 212; Sproule v. R., 1 B.C.R., pt. 2, p. 219, and sub-nom. Re Sproule, 12 Can. S.C.R. 140. But by reason of the extended jurisdiction of justices to hold preliminary enquiries in certain cases although the offences were not within the territory for which they were commissioned to be justices (see secs. 584-588), a committal for trial, and consequently the trial itself may be in another district. A justice has under sec. 653 jurisdiction to compel the attendance of an accused person for the purpose of a preliminary enquiry to be held by him if the charge against the person accused is that he has committed an indictable offence in any part of the same province, and is, or is suspected to be, or resides, or is suspected to reside, within the territorial limits of the justice's district. Section 653. Jurisdiction also attaches on a charge of receiving stolen property, if the theft took place within the justice's limits, or if the accused has the stolen property within such limits in his possession, although stolen or unlawfully acquired or unlawfully received elsewhere. Section 653. If, however, an accused person is brought before a justice charged with an offence committed out of the limits of the latter's jurisdiction but over which he has jurisdiction by reason only of such special provisions, the justice has a discretion after hearing both the prosecution and the defence on the question of removal, and at any stage of the preliminary enquiry, to order the accused to be taken by a constable before a justice whose territorial jurisdiction extends over the place where the offence was committed. Section 615.

Objection to venue.]-An objection to the jurisdiction in respect of venue had formerly to be raised by a special plea to the indictment. R. v. O'Rourke, 1 O.R. 464, which plea was required to be duly verified by affidavit or otherwise. R. v. Malott (1885), 1 B.C.R., pt. 2, p. 207; Malott v. R. (1886), 1 B.C.R., pt. 2, p. 212; but sec. 631 abolishes that form of special plea, and any such ground of defence may now be relied on under the plea of not guilty. Section 905 (2).

Change of venue.]-See secs. 884-886.

845. It shall not be necessary to state in any indictment that the jurors present upon oath or affirmation.

2. It shall be sufficient if an indictment begins according to form 63, or to the like effect.

3. Any mistake in the heading shall upon being discovered be forthwith amended, and whether amended or not shall be immaterial. 55-56 V., c. 29, s. 610.

Courts with jurisdiction to try indictment.]-See secs. 580, 582 and 583.

Special Cases.

846. It shall not be necessary to allege, in any indictment against any person for wrongfully and wilfully pretending or alleging that he inclosed and sent, or caused to be inclosed and sent, in any post letter, any money, valuable security or chattel, or to prove on the trial, that the act was done with intent to defraud. 55-56 V., c. 29, s. 618.

Falsely pretending to mail money.]-See sec. 407.

etc.

847. Every indictment for treason, or for an offence against Indictment any of the sections, seventy-six to eighty-six inclusive, shall for treason, state overt acts, and no evidence shall be admitted of any overt act not stated unless it is otherwise relevant as tending to prove some overt act stated.

2. The power of amending indictments in this Part contained Amendment. shall not extend to authorize the court to add to the overt acts stated in the indictment. 55-56 V., c. 29, s. 614.

by tenant or

848. An indictment may be preferred against any person Indictment who steals any chattel let to be used by him in or with any for stealing house or lodging, or who steals any fixture so let to be used, lodger. in the same form as if the offender was not a tenant or lodger, and in either case the property may be laid in the owner or person letting to hire. 55-56 V., c. 29, s. 625.

Theft of fixtures, etc., by lodger.]-See sec. 360.

fact and

849. Every one charged with being an accessory after the Accessories fact to any offence, or with receiving any property knowing after the it to have been stolen, may be indicted, whether the principal receivers. offender or other party to the offence or person by whom such property was so obtained has or has not been indicted or convicted, or is or is not amenable to justice, and such accessory may be indicted either alone as for a substantive offence or jointly with such principal or other offender or person.

2. When any property has been stolen any number of re- Joining ceivers at different times of such property, or of any part or receivers. parts thereof, may be charged with substantive offences in the same indictment, and may be tried together, whether the person by whom the property was so obtained is or is not indicted with them, or is or is not in custody or amenable to justice. 55-56 V., c. 29, s. 627.

Accessories after the fact.]—See secs. 71 (definition); 76 (in treason); 267 (in murder); 574 and 575 (punishment).

Receivers.] See secs. 399-403 (punishment), and 954, 993 and 994 (procedure and evidence).

If it be proved that one of the persons charged with jointly receiving, separately received any part of the property, the jury may convict him separately under the indictment against two or more.

Section 954.

850. In any indictment against any person employed in the Indictment post office of Canada for any offence against this Act, or against in respect to any person for an offence committed in respect of any person

post office

so employed, it shall be sufficient to allege that the offender, or employees. such other person, was employed in the post office of Canada at the time of the commission of such offence, without stating further the nature or particulars of his employment. 55-56 V., c. 29, s. 624.

Indictment 851. In any indictment for an indictable offence, comcharging mitted after a previous conviction or convictions for any indictprevious convictions. able offence or offences, or for any offence or offences, for which a greater punishment may be inflicted by reason of such previous conviction, it shall be sufficient, after charging the subsequent offence, to state that the offender was at a certain time and place, or at certain times and places, convicted of an indictable offence or offences, or of an offence or offences, as the case may be, and to state the substance and effect only, omitting the formal part of the indictment and conviction, or of the summary conviction, as the case may be, for the previous offence or offences, without otherwise describing the previous offence or offences. 55-56 V., c. 29, s. 628.

Substance of

offence stated.

In popular language.

In the words of the enactment or otherwise.

Form.

Charging previous conviction.]—See secs. 568, 963, 964 and 982.

General Provisions as to Counts.

852. Every count of an indictment shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some indictable offence therein specified.

2. Such statement may be made in popular language without any technical averments or any allegations of matter not essential to be proved.

3. Such statement may be in the words of the enactment describing the offence or declaring the matter charged to be an indictable offence, or in any words sufficient to give the accused notice of the offence with which he is charged.

4. Form 64 affords examples of the manner of stating offences. 55-56 V., c. 29, s. 611.

Sufficiency of the indictment.]-The examples in Code Form 64 of the description of offences in indictments are intended to illustrate the provisions of Code sec. 852, relating to the form of counts; and the operative effect of form 64 is not restricted to the validating of counts in respect only of the particular offences for which examples are given in the form, but extends to counts for other offences. R. v. Skelton (1898), 4 Can. Cr. Cas. 467 (N.W.T.).

An indictment only states the legal character of the offence and does not profess to furnish the details and particulars. These are supplied by the depositions and the practice of informing the prisoner or his counsel of

any additional evidence not in the depositions which it may be produce at the trial. Mulcahey v. R. (1868), L.R. 3, H.L. 306. J.; Downie v. R. (1888), 15 Can. S.C.R. 358, 375.

intended to Per Willes,

Each count of an indictment must contain a statement of all the essential ingredients which constitute the offence charged. R. v. Weir (No. 5) (1900), 3 Can. Cr. Cas. 499 (Que.).

Every count of an indictment shall contain so much detail of the circumstances of the alleged offence as is sufficient to give the accused reasonable information as to the act or omission to be proved against him, and to identify the transaction referred to: Provided that the absence or insufficiency of such details shall not vitiate the count. Section 853.

A count may refer to any section or sub-section of any statute creating the offence charged therein, and in estimating the sufficiency of such count the court shall have regard to such reference. Section 53 (2).

Every count shall in general apply only to a single transaction. Section 853 (3).

In Reg. v. Aspinall, 2 Q.B.D. 48, Brett, L.J., said: "An indictment must contain an allegation of every fact necessary to constitute the criminal charge preferred by it. As in order to make acts criminal they must always be done with a criminal mind, the existence of that criminality of mind must always be alleged."

An indictment multifarious in that it combines a charge of a failure to provide necessaries for a child under sixteen under secs. 242 and 244 with a charge of an attempt to murder the child and to which indictment the prisoners pleaded, is sufficient upon which to base a conviction thereon for the latter offence without a formal amendment of the indictment, where the presiding judge has withdrawn from the jury that portion of the charge based upon secs. 242 and 244. R. v. Lapierre (1897), 1 Can. Cr. Cas. 413 (Que.).

In O'Connell v. The Queen (1841), 11 Clark & Finnelly's Reports, 155, Baron Parke (Lord Wensleydale) said (pp. 295-296): "The practice has grown up. and much increased in modern times, of introducing many counts into one indictment, and though we know practically that these are most frequently descriptions, only in different words, of the same offence, they are allowable only on the presumption that they are different offences, and every count so imports on the face of the record.

"It is the duty of the court acting between the Crown and the accused, and the right of the accused, to have the charge of each offence properly and finally disposed of on the record, so that the accused as well as the Crown may know for what offence the punishment was inflicted, and for what not; and so that the accused may plead his conviction in bar of another indictment for the offence for which he was punished, and that the Crown may also know that it might again prosecute for that offence for which he was not. Ibid; and see Castro v. The Queen, L.R., 6 App. Cas. 229 and 235."

An indictment for perjury which charged that the false evidence was given before a coroner, whereas the evidence was in fact taken before the coroner and a jury and not only by the coroner is sufficient for the words of the indictment were "sufficient to give the accused notice of the offence with which he was charged." R. v. Thompson (1896), 4 Can. Cr. Cas. 265 N.W.T.

An indictment that at a specified time and place the accused did attempt to "pick the pocket" of a person named is sufficiently explicit to charge an attempt to commit theft from the person. R. v. Morgan (No. 2), 5 Can. Cr. Cas. 272, per Armour, C.J.O.

An indictment is sufficient in form if it contains all the allegations essential to constitute the offence and charges in substance the offence

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