2ND EDIT. REVISED STATUTES 1906 REMARKS medical care and nursing, whereby such other's death was caused, but not alleging any duty to supply such care and nursing, is bad, as not disclosing an offence known to the law, because of the omission of such allegation: and an indictment for a conspiracy to cure another of a sickness endangering life, "by unlawful and improper means," and thereby causing such other's death, is likewise 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. (5) Each count of an indictment must contain a statement of all the essential ingredients which constitute the offence charged; and in charging the offence of uttering a forged instrument the indietment must aver that the defendants made use of or uttered the instrument knowing it to have been forged. (6) A count, charging the accused with having committed perjury during his examination as a witness, at an inquest before a coroner and a jury, is not invalid by reason of its omitting, in describing the tribunal at which the alleged perjury was committed, to mention the jury, it being held that the tribunal was sufficiently identified. (7) An indictment that "A. B. attempted to kill and murder C. D.," sufficiently discloses an indictable offence; and the court has the power to allow it to be amended so as to read that "A. B., with intent to commit murder, shot at C. D." (8) Where the statutory form of indictment is not followed but the indictment contains all the averments which the statute requires, the addition of other unnecessary averments does not invalidate the indictment, although it might not be sufficient at common law. (9) Sec. 612. Sec. 854. Offences may be charged in the alternative. A count shall not be deemed objectionable. on the ground that it charges in the alternative several different matters, acts or omissions which are stated in the alternative in the enactment describing any indictable of fence or declaring the matters, acts or omissions charged to be an indictable offence, or on the ground that it is double or multifarious. (10) (5) R. v. Goodfellow, 10 Can. Cr. Cas., 424; 11 Ont. L. R., 359. (6) R. v. Weir. (No. 5), 3 Can. Cr. Cas., 499. (7) R. v. Thompson, Can. Cr. Cas., 265. (8) R. v. Mooney, 11 Can. Cr. Cas., 333; Que. Jud. Rep., 15 K. B., 57. (9) R. v. Coote, 8 Can. Cr. Cas., 199. (10) Taken from the first part of paragraph 1 of the old section 612; the remainder of par. 1, and the whole of par. 2 of that old section being made into section 892, post. 2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 613. Sec. 855. Count not objectionable or insufficient because of omission of certain statements. No count shall be deemed objectionable or insufficient for the reason only, (a) that it does not contain the name of the person injured, or intended, or attempted to be injured; or, (b) that it does not state who is the owner of any property therein mentioned; or, (c) that it charges an intent to defraud without naming or describing the person whom it was intended to defraud; or (d) that it does not set out any document which may be the subject of the charge; or, (e) that it does not set out the words used (f) that it does not specify the means by 2. No provision contained in this part as to matters which are not to render any count objectionable or insufficient shall be construed as restricting or limiting in any way the general provisions of sections 852 and 853. Altered as here set forth. 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. (11) An indictment for conspiracy to defraud may properly charge that the conspiracy was with persons unknown, if there was no definite information of the identity of the alleged co-conspirators; and where, at the trial of such an indictment, the name of one of the co-conspirators is, for the first time, disclosed in the testimony of a Crown witness, that information may be added to the statement of particulars of the indictment. (12) (11) R. v. Hutchinson, 8 Can. Cr. Cas., 486; 11 B. C. R., 24. (12) R. v. Johnston. 6 Can. Cr. Cas., 232. 2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 626. Sec. 856. Joinder of Counts. Any number of counts for any offences whatever may be joined in the same indictment, and shall be distinguished in the manner shewn in form 63, or to the like effect; Provided that to a count charging murder no count charging any offence other than murder shall be joined. (13) Sec. 857. Each count may be treated as a separate indictment. When there are more counts than one in an indictment each count may be treated as a separate indictment. Sec. Sec. 613. Sec. 615. 2. If the court thinks it conducive to the ends of justice to do so, it may direct that the accused shall be tried upon any one or more of such counts separately: Provided that, unless there be special reasons, no order shall be made preventing the trial at the same time of any number of distinct charges of theft, not exceeding three, alleged to have been committed within six months from the first to the last of such offences, whether against the same person or not. (14) Sec. 858. Order for trial separately. Any order for trial upon one or more counts of an indictment separately may be made either before or in the course of the trial, and if it is made in the course of the trial the jury shall be discharged from giving a verdict on the counts on which the trial is not to proceed. 2. The counts in the indictment as to which the jury are so discharged shall be proceeded upon in all respects as if they had been found in a separate indictment. (14) PARTICULARS. Sec. 859. Particulars may be ordered. The court may, if satisfied that it is necessary for a fair trial, order that the prosecutor shall furnish a particular, (13) This new section, 856, contains only the first paragraph of the old section 626; sections 2, 3 and 4 of that old section being made into sections 857 and 858, infra. (14) Subsections 2, 3 and 4 of the old section 626 are made (differently arranged) into these two new sections, 857 and 858. 2ND EDIT. REVISED STATUTES 1906 REMARKS (a) of what is relied on in support of any charge of perjury, 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; (d) stating what passages in any book, pamphlet, newspaper or other printing or writing are relied on in support of a charge of selling or exhibiting an obscene book, pamphlet, newspaper, printing or writing; (e) further describing any document or words the subject of a charge; (f) further describing the means by which any offence was committed; (g) further describing any person, place or thing referred to in any indictment. (15) Sec. 617. Sec. 860. Copy particulars to be supplied to the acUnchanged. cused. 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. 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 showing 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. (16) SPECIAL CASES. Sec. 615. Sec. 861. Libel. No count for publishing a blasphemous, seditious, obscene or defamatory libel, or for selling or exhibiting an obscene book, (15) Taken, in part, from the provisoes in the old sections 613, 615 and 616. (16) R. v. Stevens, 8 Can. Cr. Cas., 387. 2ND EDIT. REVISED STATUTES 1906 REMARKS pamphlet, newspaper or other printed or written matter, shall be deemed insufficient on the ground that it does not set out the words thereof. 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 shewing 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. Altered, as here set forth. Sec. 616. Sec. 862. Indictments for perjury, etc. No count charging perjury, the making of a false oath, or of a false statement, fabricating evidence or subornation, or procuring the commission of any of these offences, shall be 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. (17) Sec. 863. Indictment for False pretense. No count, which charges any false pretense, 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 pretenses or the fraud or fraudulent means consisted. (18) Sec. 35 HOW AND IN WHOM PROPERTY MAY BE LAID. Sec. 619. Sec. 864. Sufficiency of statements in indictments. Meaning unchanged. Sec. 620. Sec. 865. Property of a corporate body. Meaning unchanged. Sec. 621. Sec. 866. Indictment for stealing ores or minerals. In any indictment for any offence mentioned (17) Taken from the first part of paragraph 1 of the old section 616. (18) Taken from the first part of par. 2 of the old section 616. |