(1871), L.R. 6 Q.B. 293. The accused persons are not entitled as of right to severance of trial; R. V. McConohy (1874), 5 Revue Legale (Que.) 746, per Monk, J., Q.B., Montreal; but the Crown is so entitled if the case is one in which a severance is practicable; 2 Hawkins, P.C., ch. 41, sec. 8; 1 Bishop's Crim. Prac. 1034. A severance is not allowed in the trial of indictments for conspiracy or for riot. Starkie's Crim. Plead. 36. And separate trials were refused where the charge was subornation of perjury; R. v. Gravel (1877), per Ramsay, J., Court of Queen's Bench, Montreal; (not reported) referred to in Taschereau's Criminal Code of Canada, page 696. On an indictment of three persons jointly, for publishing blasphemous libels in certain numbers of a newspaper, two of them whose names were on it as editor and publisher respectively, having already been convicted on a charge of publishing similar libels in another number of the paper, it was held that the third, whose case was that he was not connected with the paper at all, ought (on his application) to be tried separately, as his trial with the others might possibly prejudice him in his defence, especially as he desired to call them as witnesses, while it did not appear that his separate trial could at all embarrass the case for the prosecution as the prosecutor would be entitled to give any evidence in his power to fix the defendant with a joint liability for the acts of the others. R. v. Bradlaugh and others (1883), 15 Cox C.C. 217 (Coleridge, L.C.J.). The trial judge has a discretion at the close of the case for the prosecution to submit the case of one of the defendants separately to the jury, if no evidence is to be given on his behalf; but he is not bound to do so. R. v. Hambly (1859), 16 U.C.Q.B. 617, (Robinson, C.J., McLean and Burns, JJ.). When either the defendant or the prosecution desire to call one of the accused to give evidence for or against a co-defendant, a separate trial should be asked for. Where persons are jointly indicted but are tried separately, one of them is a competent witness against the other although the defendant so called has not been tried and has not been discharged on a nolle prosequi, and although he has not pleaded to the indictment. R. v. Winsor, 10 Cox C.C. 276. Before the Canada Evidence Act, where prisoners were indicted jointly, and all pleaded not guilty, but having severed in their challenges, the Crown elected to proceed against three of them leaving the fourth to be tried separately, it was held that he was a competent witness on behalf of the other prisoners. R. v. Jerrett (1863), 22 U.C.Q.B. 499 (Hagarty, J., and Adam Wilson, J.). But if several prisoners jointly indicted were jointly tried and had been given in charge to the jury the former rule was that one of them while in such charge could not be called as a witness for another. R. v. Payne (1872), 12 Cox C.C. 118 (court for crown cases reserved). Now, by the Canada Evidence Act, every person charged with an offence is a competent witness for the defence whether the person so charged is charged solely, or jointly with any other person (sec. 4). That section does not make the accused person a compellable witness. It. however, makes it possible for the accused to go into the witness box if he so desires, at the same time providing that the failure of the person charged to testify shall not be made the subject of comment by the judge or by counsel for the prosecution in addressing the jury (sub-sec. 5 of sec. 4), Can. Evidence Act, R.S.C. 1906, ch. 145. Where persons are jointly indicted and one pleads guilty and is sentenced before the trial of the other is concluded, the prisoner so sentenced is rendered not only a competent but a compellable witness for or against the other. R. v. Jackson (1885), 6 Cox C.C. 525; R. v. Gallagher (1875), 13 Cox C.C. 61. Where the accused person becomes a witness he is not excused from answering any question upon the ground that the answer may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person; (Canada Evidence Act, sec. 5), provided, however, that if the witness objects to answer upon that ground and if but for the Canada Evidence Act or a provincial statute, as the case may be, he would upon such objection have been excused from answering the question then, although the witness shall be compelled to answer, yet the answer so given shall not be used or be receivable in evidence against him in "any criminal trial or other criminal proceeding against him, thereafter taking place" other than a prosecution for perjury in giving such evidence; Canada Evidence Act, sec. 5. See also R. v. MeLinehy (1899), 2 Can. Cr. Cas. 416. Where two prisoners are being jointly tried for an offence, a voluntary admission made by one of them is evidence against himself only, and if it implicates a fellow prisoner the trial judge should warn the jury that the statement is evidence only against the person making it and should not be considered in weighing the evidence against the fellow prisoner. Semble, the prisoner jointly charged and likely to be implicated by the statement of the other accused person, would have good ground for applying to be separately tried, in order to prevent the statement being put in even with such warning, as evidence before the jury by which he is to be tried. R. v. Martin (1905), 9 Can. Cr. Cas. 371 (Ont.). Under the rule of the common law a person on trial for an offence was neither competent nor compellable to give evidence for or against himself, and co-defendants on trial for an offence could not be called as witnesses for or against themselves or each other. The new law only declares that such persons shall be competent witnesses, and the old law which declares that they are not compellable to give evidence remains in force. R. v. Connors (1893), 5 Can. Cr. Cas. 70, 3 Que. Q.B. 100. The rule of the English criminal law-that no one can be compelled to criminate himself-still prevails, and therefore in criminal cases no person accused of an offence, whether indicted and tried alone or jointly with others, can be required to give evidence, although he may do so of his own accord. R. v. Connors (1893), 5 Can. Cr. Cas. 70, 3 Que. Q.B. 100. The decision in the Connors Case is to be preferred to dicta in the Ontario case of R. v. Blais, 10 Can.. Cr. Cas. 354, 358, in which it was said in effect that where two prisoners are jointly indicted but an order is made for their separate trial, the one is an admissible witness for the other and is bound to testify although he may prevent his evidence being used against himself at his subsequent trial. Two or more persons cannot be jointly indicted for perjury. R. v. Phillips, 2 Str. 921. Where two prisoners jointly indicted have been convicted, and a question has been reserved for the consideration of the court for crown cases reserved on behalf of one of them, that court has power, if it shall be of opinion that the objection raised is valid and that it affects the conviction of both prisoners, to quash the conviction of the other prisoner as well as that of the prisoner on whose behalf the question has been reserved. Reg. v. Saunders, [1899] 1 Q.B. 490. Where two persons are jointly indicted for murder and one pleads guilty and the other not guilty, and the trial upon the latter plea results in an acquittal, leave should be granted the other defendant to change his plea of guilty to one of not guilty, if the circumstances of the case are such that the verdict of acquittal already given in respect of the one would be absolutely inconsistent with the guilt of the other who had pleaded guilty. R. v. Herbert (1903), 6 Can. Cr. Cas, 214 (Ont.). Particulars. ordered in case of 859. The court may, if satisfied that it is necessary for a May be fair trial, order that the prosecutor shall furnish a particular,— (a) of what is relied on in support of any charge of per- perjury, etc. jury, the making of a false oath or of a false statement, fabricating evidence or subornation, or procuring the commission of any of such offences; (b) of any false pretenses or any fraud charged; (c) of any attempt or conspiracy by fraudulent means; (e) further describing any document or words the subject (f) further describing the means by which any offence was committed; (g) further describing any person, place or thing referred to in any indictment. 55-56 V., c. 29, ss. 613, 615 and 616. Ordering particulars of indictment.]-Particulars furnished under sec. 859 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). When an indictment for defamatory libel consisting of words harmless in themselves, but importing by innuendo an imputation of dishonourable conduct contains in addition to the enunciation of the incriminating words an allegation of the sense in which they should be understood the Crown will be allowed to prove extrinsic circumstances which impute this meaning to them. It is not necessary to enumerate these circumstances in the indictment, and the accused is sufficiently guarded against surprise by the right that he has to demand particulars. Failing to do so, he will not be allowed to object to the admission of the evidence above mentioned and the question of its legality is not one which can be reserved for the opinion of the Court of Appeal. R. v. Molleur (No. 1), 12 Can. Cr. Cas. 8. The ordering of particulars to be furnished to the accused by the Crown in respect of an indictment for theft is a matter of judicial discretion. R. v. Stevens, 8 Can. Cr. Cas. 387. Where the Crown is unable to specify in detail the several sums alleged to have been received and misappropriated by a Government employee and the prosecution is laid for theft of a sum aggregating the deficit appearing upon the employee's books and returns, particulars should be ordered against the Crown only with regard to the direct proof of details so as not to exclude general evidence based upon the balances returned from time to time. With the consent of the Crown, an order may be made for the delivery of particulars shewing what statements of account made by the accused are proposed to be put in evidence for the prosecution, and what sums are alleged to have been wrongfully omitted therefrom or wrongfully inserted therein. The King v. Stevens (1904), 8 Can. Cr. Cas. 387 (N.S.). Copy to be furnished. Regard to In Taylor v. The Queen, [1895] 1 Q.B. 25, it was held that an indictment for receiving goods, knowing the same to have been unlawfully obtained by false pretences, is good without setting out the false pretences, for, the gist of the offence being the receipt of the goods with knowledge that they had been unlawfully obtained by some false pretence, it is sufficient to so allege without specifying the nature of the pretence (Mathew, J., and Charles, J.). The court there refused to treat as a binding authority the unreported case of Reg. v. Hill decided in 1851 and noted in 2 Russell on Crimes, 5th ed., 482, 6th ed., 437, in which the contrary had been held at the Gloucester assizes. Mathew, J., said that for many years it had been the practice not to set out the particular false pretences by which the money or goods were alleged to have been obtained, in an indictment for "receiving"; and Charles, J., decided the case "on the broad ground that the indictment contains all the allegations which it is necessary to prove in order to bring home the offence charged to the defendant." On an indictment under Code sec. 477, for unlawfully and with intent to defraud, signing a promissory note by procuration, although the name signed is the name of a testamentary succession or of an estate in liquidation (e.g., "Estate John Doe"), an order will be made against the Crown to furnish particulars of the names and capacities of the persons representing such estate at the time when the offence is alleged to have been committed, and directing that the defendants be not arraigned until after the particulars have been delivered. Reg. v. Weir (1899), 3 Can. Cr. Cas. 155 (Que.). 860. When any particular as aforesaid is delivered a copy shall be given without charge to the accused or his solicitor, and it shall be entered in the record, and the trial shall proceed in all respects as if the indictment had been amended in conformity with such particular. 2. In determining whether a particular is required or not, depositions. and whether a defect in the indictment is material to the substantial justice of the case or not, the court may have regard to the depositions. 55-56 V., c. 29, s. 617. Libel, etc. Special Cases. 861. No count for publishing a blasphemous, seditious, obscene or defamatory libel, or for selling or exhibiting an obscene book, pamphlet, newspaper or other printed or written Sufficiency. matter, shall be deemed insufficient on the ground that it does not set out the words thereof. Specifying sense. Proof necessary. 2. A count for libel may charge that the matter published was written in a sense which would make the publishing criminal, specifying that sense without any prefatory averment showing how the matter was written in that sense. 3. On the trial it shall be sufficient to prove that the matter published was criminal either with or without such innuendo. 55-56 V., c. 29, s. 615. 862. No count charging perjury, the making of a false oath Perjury. or of a false statement, fabricating evidence or subornation, or Statements procuring the commission of any of these offences, shall be unnecessary. deemed insufficient on the ground that it does not state the nature of the authority of the tribunal before which the oath or statement was taken or made, or the subject of the inquiry, or the words used or the evidence fabricated, or on the ground that it does not expressly negative the truth of the words used. 55-56 V., c. 29, s. 616. 863. No count which charges any false pretense, or any False fraud, or any attempt or conspiracy by fraudulent means, shall pretenses. be deemed insufficient because it does not set out in detail in what the false pretenses or the fraud or fraudulent means consisted. 55-56 V., c. 29, s. 616. Conspiracy to defraud.]—An indictment for conspiracy to defraud is valid without setting out any overt acts and the name of the person injured or intended to be injured need not be stated therein. R. v. Hutchison (1904), 8 Can. Cr. Cas. 486 (B.C.). False pretences.]-It is submitted that this section does not mean that the false pretence need not be set out at all. While Meredith, C.J., in his judgment in R. v. Patterson (1895), 2 Can. Cr. Cas. 339, speaks of the "addition of the words unnecessarily setting out in what the false pretences consisted," and expresses the view that the indictment would have been fully authorized if laid "without alleging in what the false pretence consisted," it will be observed that Rose, J., limits his opinion to the case of an indictment in which the false pretence is not set out in detail. How and in whom Property may be Laid. 864. An indictment shall be deemed sufficient in the cases Statements sufficient in following:certain cases. (a) If it be necessary to name the joint owners of any real or personal property, whether the same be partners, joint tenants, parceners, tenants in common, joint stock companies or trustees, and it is alleged that the property belongs to one who is named, and another or others, as the case may be; (b) If it is necessary for any purpose to mention such persons and one only is named; (c) If the property in a turnpike road is laid in the trustees or commissioners thereof without specifying the names of such trustees or commissioners; (d) If the offence is committed in respect to any property in the occupation or under the management of any public |