jecting her testimony under oath if the court is satisfied that she is competent to be sworn. R. v. Armstrong (1907), 12 Can. Cr. Cas. 544, 15 O.L.R. 47.

On a trial for indecent assault upon a child under the age of fourteen, the child was examined on the "voir dire" and not sworn. On refusing to answer the Crown prosecutor had the trial adjourned. On the re-opening of the trial on the second day the child still absolutely refused to speak. Counsel for the Crown on being asked if he had any other evidence, offered two witnesses in corroboration of the child's evidence as told to them by the child, and also evidence of similar acts with others by the prisoner :Held, following The Queen v. Cole, 1 Phil. Ev. 508, that evidence not in support of the charges laid in the indictment, but referring to charges not laid, could not be received as corroborative evidence; and following Rex v. Kingham, 66 L.J.P. 393, evidence as to what the child told others could not be received. There being no other evidence for the prosecution the prisoner was acquitted. Rex v. South, 39 Can. Law Jour. 639, Bole, Co. J.

Sentence, Arrest of Judgment and Appeal.

1004. If the jury find the accused guilty, or if the accused Accused pleads guilty, the judge presiding at the trial shall ask him found guilty. whether he has anything to say why sentence should not be Question passed upon him according to law: Provided that the omission sentence. so to ask shall have no effect on the validity of the proceedings. 55-56 V., c. 29, s. 733.

Affidavits in mitigation of punishment.]-In Regina v. Dignam (1837), 7 A. & E. 593, the defendant was indicted for an assault and pleaded guilty. On his being brought up for judgment there were affidavits both in aggravation and in mitigation. A question arose, which affidavits were to be read first, and which of the counsel was to address the court first. The court (Denman, C.J., and Patteson, Williams and Coleridge, JJ.), after referring to the officers of the Crown office decided that the affidavits in aggravation should be first read, then the affidavits in mitigation; then the counsel for the Crown would be heard, and then the counsel for the defendant.

But if no affidavits are produced, the counsel for the defendant shall be first heard, and then the counsel for the prosecution. R. v. Bunts (1788), 2 T.R. 683; R. v. Sutton (1828), 7 A. & E. 594 (n).

before

1005. If one sentence is passed upon any verdict of guilty Sentence on more counts of an indictment than one, the sentence shall justified be good if any of such counts would have justified it. 55-56 V., c. 29, s. 626.

by any

out when

1006. When any sentence is passed upon any person after Where senta trial had under an order for changing the place of trial, the ence carried court may in its discretion, either direct the sentence to be venue carried out at the place where the trial was had or order the changed. person sentenced to be removed to the place where his trial would have been had but for such order, so that the sentence may be there carried out. 55-56 V., c. 29, s. 733.

Motion in arrest of judgment.

Deciding or reserving.

Discharge.

Sentence

during sitting

of court.

Sentence subsequent

ly.

1007. The accused may at any time before sentence move in arrest of judgment on the ground that the indictment does not, after amendment, if any, state any indictable offence.

2. The court may in its discretion either hear and determine the matter during the same sittings or reserve the matter for the court of appeal as hereinafter provided.

3. If the court decides in favour of the accused, he shall be discharged from that indictment.

4. If no such motion is made, or if the court decides against the accused upon such motion, the court may sentence the accused during the sittings of the court, or the court may in its discretion discharge him on his own recognizance, or on that of such sureties as the court thinks fit, or both, to appear and receive judgment at some future court or when called upon.

5. If sentence is not passed during the sittings, the judge of any superior court before which the person so convicted afterwards appears or is brought, or if he was convicted before a court of general or quarter sessions, the court of general or quarter sessions at a subsequent sittings may pass sentence upon him or direct him to be discharged. 55-56 V., c. 29, s. 733.

Arrest of judgment.]—A motion in arrest of judgment is not the proper manner to raise the question of jurisdiction, for such a motion can only avail when the indictment does not state any indictable offence. R. v. Hogle (1896), 5 Can. Cr. Cas. 53 (Que.).

If a defendant omit to challenge a juror on the ground that such juror entertains a hostile feeling against him, he cannot, after a verdict of guilty, ask on that ground to have the verdict quashed. R. v. Harris (1898), 2 Can. Cr. Cas. 75 (Que.).

When a defendant and one of the impanelled jurors have had an unpremeditated and innocent conversation, which could not bias the juror's opinion nor affect his mind and judgment, although such conversation is improper, it cannot have the effect of avoiding the verdict and constituting ground for a new trial. Ibid.

An indictment for stealing under a power of attorney which charges that the money appropriated was the proceeds of a sale made by the defendant while acting under a power of attorney will not be quashed for failure to allege that the power of attorney was one for the sale or disposition of property (sec. 356), but particulars will be ordered as to the date. nature or purport of the alleged power of attorney. The defect, being only a partial one, was cured by verdict, and cannot be given effect to upon a motion in arrest of judgment. R. v. Fulton (1900), 5 Can. Cr. Cas. 36 (Que.).

That a jury may correct their verdict, or that any of them may withhold assent and express dissent therefrom at any time before it is finally entered and confirmed is clear from numerous authorities; and the judge presiding over a criminal court cannot be too cautious in being assured that, when a result so serious to the party accused as a verdict of guilty is arrived at, all the jury understand the effect and concur in the decision; and if at any moment, before it is too late, anything occurs to excite suspicion on this subject, he should carefully assure himself that there

is no misapprehension in the matter. R. v. Ford (1853), 3 U.C.C.P. 209, 217, per Macaulay, C.J.

There is no legislative authority for amending the verdict of a jury in a criminal case, though an erroneous judgment may be in certain cases made right, when the case is being reviewed in a court of appeal. R. v. Ewing (1862), 21 U.C.Q.B. 523.

Where the misconduct of a jury can be so far impeached as to warrant the court in interposing to relieve against the verdict, application should be made to stay the judgment, for, after sentence pronounced, judgment cannot be arrested. R. v. Smith (1853), 10 U.C.Q.B. 99; R. v. Justices of Leicestershire, 1 M. & S. 442.

It has long been an established rule of law that no affidavit of a juror or of what a juror has said can be received for the purpose of upsetting the verdict of a jury as entered and confirmed. R. v. Lawson (1881), 2 P.E.I. Rep. 403 (following Lord Mansfield in Owen v. Warburton, 1 N.R. 326, and Lord Abinger and Parke and Alderson, BB., in Straker v. Graham, 3 M. & W. 721).

Computing term of imprisonment.]—The term of imprisonment in pursuance of any sentence runs from the day of the passing of such sentence, without interruption, except when especially provided otherwise by law. The revocation of a ticket of leave by the Crown, without cause assigned, works no interruption in the running of the sentence which shall terminate at the same time as if such license had never been granted. R. v. Johnson, 4 Can. Cr. Cas. 178.

It is unnecessary in a sentence of imprisonment to a penitentiary, or in the warrant issued in pursuance thereof, to state a date from which the imprisonment is to run, as under the Penitentiaries Act the term of imprisonment counts from the date of sentence unless otherwise ordered. The King v. Smitheman (No. 1), 9 Can. Cr. Cas. 10, affirmed in Smitheman v. The King, 9 Can. Cr. Cas. 17.

If the certificate of sentence to imprisonment in a penitentiary is ir regular for omission of the date of sentence, leave may be given on a habeas corpus motion to return an amended certificate correcting the omission. The King v. Wright, 10 Can. Cr. Cas. 461.

Concurrent sentences.]—There is no presumption that sentences passed at the one time are to be concurrent. Ex parte Bishop, 1 Can. Cr. Cas. 118.

1008. If sentence of death is passed upon any woman she Woman may move in arrest of execution on the ground that she is sentenced to pregnant.

death while pregnant.

2. If such a motion is made the court shall direct one or Inquiry more registered medical practitioners to be sworn to examine as to pregnancy. the woman in some private place, either together or successively, and to inquire whether she is with child of a quick child or not. 3. If upon the report of any of them it appears to the court Arresting that she is so with child, execution shall be arrested until she is delivered of a child, or until it is no longer possible in the course of nature that she should be so delivered. 55-56 V., c. 29, s. 730.

The practice above set out supersedes the old common law practice of calling a jury of matrons in such an event, as to which see Reg. v. Wycherly (1838), 3 C. & P. 261. Code sec. 1009.

execution.

Jury de

ventre in

spiciendo.

Judgment not to be

stayed or

reversed on certain grounds.

Indictment sufficient

after verdict notwith

standing certain objections.

Direction as to jury or jurors directory.

1009. No jury de ventre inspiciendo shall be empanelled or 55-56 V., c. 29, s. 731.

sworn.

1010. Judgment, after verdict upon an indictment for any offence against this Act, shall not be stayed or reversed,(a) for want of a similiter;

(b) by reason that the jury process has been awarded to a wrong officer, upon an insufficient suggestion;

(c) for any misnomer or misdescription of the officer returning such process, or of any of the jurors; or,

(d) because any person has served upon the jury who was not returned as a juror by the sheriff or other officer.

2. Where the offence charged is an offence created by any statute, or subjected to a greater degree of punishment by any statute, the indictment shall, after verdict, be held sufficient, if it describes the offence in the words of the statute creating the offence, or prescribing the punishment, although they are disjunctively stated or appear to include more than one offence, or otherwise. 55-56 V., c. 29, s. 734.

Formal defects in indictment.]—Merely formal defects in an indictment were at common law cured by verdict. R. v. Goldsmith (1873), L.R. 1 C.C.R. 74; R. v. Hutchinson, 8 Can. Cr. Cas. 486, 491.

Disqualification of juror.]—A person of the same or a similar name to that of a qualified juror and who is served in mistake for the qualified juror, but who is not himself upon the list of persons from which alone jurors may properly be summoned, is not a qualified juror under sec. 921, and his acting as such is a good ground for ordering a new trial. Such defect in the qualification of a juror goes to the jurisdiction of the tribunal and is not cured by sec. 1010. R. v. McCraw (1906), 12 Can. Cr. Cas. 253.

1011. No omission to observe the directions contained in any Act as respects the qualification, selection, balloting or distribution of jurors, the preparation of the jurors' book, the selecting of jury lists, the drafting of panels from the jury lists or the striking of special juries, shall be a ground for impeaching any verdict, or shall be allowed for error upon any appeal to be brought upon any judgment rendered in any criminal 55-56 V., c. 29, s. 735; 56 V., c. 32, s. 1.

case.

This section does not cure defects in the procedure by which the jury is chosen from the panel returned. R. v. Boyd (1896), R.J.Q. 2 Q.B. 284. A panel returned contained the names of Robert Grant and Robert Crane, and Robert Grant was called but Robert Crane by mistake answered to the name and was sworn without challenge. Before the jury left the box the mistake was discovered. It was held that a conviction was invalid because the prisoner had not had an opportunity to challenge Robert Crane. R. v. Feore (1877), 3 Que. Law Rep. 219.

Affidavits of jurymen.]—A juror cannot shew on oath that he did not agree to the verdict as rendered or that he consented to it without concurring in it in order to secure his discharge. But affidavits are admissible from the other jurors to support and confirm the presumption that the proceedings of the jury were correct and that there has been no misconduct. R. v. Carlin (No. 1), 6 Can. Cr. Cas. 365 (Que.).

On an application for a reserved case the evidence of a juror is not admissible to shew that he and another juror had refused to agree with the opinion of the other ten jurors, and had failed to object on the recording of the verdict favoured by the ten because some of the latter had told them that the agreement of ten was sufficient to carry the verdict. R. v. Mullen (1903), 6 Can. Cr. Cas. 363 (Ont.).

1012. An appeal upon all issues of law and fact shall lie Appeal from conviction by from any conviction by the judge without the intervention of a judge of jury for any offence mentioned in section four hundred and trade conninety-eight to the court of appeal in the province where such spiracy. conviction is made; and the evidence taken upon the trial shall form part of the record in appeal, and, for that purpose, the court before which the case is tried shall take note of the evidence, and of all legal objections thereto. 52 V., c. 41, s. 5.

Trade combines.]—The right of appeal where the defendant elects trial without a jury, is limited to an appeal from the conviction, and the Crown has no appeal from an acquittal on other counts of the indictment. The King v. Elliott, 9 Can. Cr. Cas. 505.

of indictable

1013. An appeal from the verdict or judgment of any court Appeal in or judge having jurisdiction in criminal cases, or of a magis- other cases trate proceeding under section seven hundred and seventy-seven, offences. on the trial of any person for an indictable offence, shall lie upon the application of such person if convicted, to the court of appeal in the cases hereinafter provided for, and in no others.

2. Whenever the judges of the court of appeal are unani- Decision mous in deciding an appeal brought before the said court their final when. decision shall be final.

case of

3. If any of the judges dissent from the opinion of the Appeal in majority, an appeal shall lie from such decision to the Supreme dissent. Court of Canada as hereinafter provided. 55-56 V., c. 29, s. 742.

Court having jurisdiction in criminal cases.]—A magistrate trying a charge of theft of goods of the value of less than $10 under the summary trials procedure (Code secs. 773 and 778) with the consent of the accused, but not having authority to proceed under sec. 777 is not a "court or judge having jurisdiction in criminal cases" within sec. 1013 allowing an appeal by way of a case reserved. R. v. Hawes (1900), 4 Can. Cr. Cas. 529 (N.S.).

Appeals as to indictable offences.]-The appeal is restricted in the first place by section 1014 to questions of law which are reserved by the judge and on which a case is stated by him for the opinion of the Court of Ap