2ND EDIT. REVISED STATUTES 1906 REMARKS jury, and proceed with the second trial at the same sittings of the court. The reference, in the above section, 930, to the "impanelling" of a new jury, is to the selection of the twelve who are to try the charge and not to the impanelling of jurors under the venire to the sheriff. A second venire is unnecessary to constitute a second jury qualified to re-try the case at the same sittings. Upon such second trial at the same sittings, it is not necessary to ask the accused to plead again to the indictment or to again read the indictment to him. (74). Sec. 729. Sec. 961. Taking verdict or other proceeding of the court on Sunday not invalid. Unchanged. Sec. 732. Sec. 962. Stay of proceedings by Attorney General. Unchanged. The Attorney General may exercise the power conferred by this section of entering a nolle prosequi to an indictment for criminal libel, although the proceedings were instituted by a private prosecutor; and the discharge of the accused, upon the entry of a nolle prosequi, by the Attorney General, to an indictment for criminal libel, is a judgment for the defendant entitling him, under section 1045, to his costs against the private prosecutor. (75). Sec. 676. Sec. 963. Proceedings when a previous offence is charged. (76). 66 Sec. DEFENCE OF INSANITY. Sec. 736. Sec. 966. Insanity of accused at time of commission of offence. Meaning unchanged. Sec. 737. Sec. 967. Insanity of accused on arraignment or trial. Meaning unchanged. Sec. 739. Sec. 968. Insanity of person brought up to be discharged for want of prosecution. Meaning unchanged. Sec. 740. Sec. 969. Custody of insane persons. Unchanged. Sec. 741. Sec. 970. Insanity of person imprisoned. Unchanged. WITNESSES AND ATTENDANCE. c. 677. Sec. 971. Attendance of witnesses. Unchanged. Sec. 678. Sec. 972. Compelling attendance of witnesses. (74) R. v. Gaffin, 8 Can. Cr. Cas., 194. (75) R. v. Blackley, 8 Can. Cr. Cas., 405. Meaning unchanged. (76) These two sections 963 and 964 are formed from the old section 676 without any material alteration. 2ND EDIT. REVISED STATUTES 1906 REMARKS stance. Sec. 678a. Sec. 973. Warrant against witness in the first inMeaning unchanged. Sec. 679. Sec. 974. Witness in Canada but beyond jurisdiction of court may be subpoenaed. (77). Sec. Sec. Sec. 975. Proceedings when subpoena disobeyed. (77). to one another. (77). Sec. 680. Sec. 977. Procuring attendance of witness who is a prisoner. When the attendance of any person confined in any prison in Canada, or upon the limits of any gaol, is required in any court of criminal jurisdiction in any case cognizable therein by indictment, the court before whom such prisoner is required to attend, or any judge of such court or of any superior court or county court, or any chairman of General Sessions, may, before or during any such term or sittings at which the attendance of such person is required, make an order upon the warden or gaoler of the prison, or upon the sheriff or other person having the custody of such prisoner, (a) to deliver such prisoner to the person named in such order to receive him; or, (b) to himself convey such prisoner to such place. 2. The warden, gaoler or other person aforesaid, having the custody of such prisoner, when so required by order as aforesaid, upon being paid his reasonable charges in that behalf, or the person to whom such prisoner is required to be delivered as aforesaid, shall, according to the exigency of the order, convey the prisoner to the place at which he is required to attend and there produce him, and then to receive and obey such further order as to the said court seems meet. Altered, as here set forth. Witnesses, (whether subpoenaed or not), as well as parties are protected from arrest while going to the place of trial, while attend (77) These three new sections,-974, 975 and 976,-are formed from the old section 679 without material alteration. 2ND EDIT. REVISED STATUTES 1906 REMARKS ing there for the purpose of testifying in the cause, and while returning home; (78) and this privilege extends to a witness coming from abroad without a subpoena. (79) But it has been held that the privilege from arrest allowed to a witness summoned before a Court sitting in another judicial district from that in which he lives, does not apply where he is charged with a criminal offence committed by him during the time in which he is in such district for the purpose of giving evidence. (80) EVIDENCE ON TRIAL. Sec. 690. Sec. 978. Admissions may be taken on trial. Unchanged. 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. It seems, moreover, that where the Crown intends to make use of such a confession, the prisoner jointly charged, and likely to be implicated by such a statement of the other accused, would have ground for applying, before the commencement of the trial, to be tried separately, so as to prevent the statement being put in as evidence at his trial, even with the judge's warning. (81) This section permits an admission of any "fact" to be made, at the trial, by the prisoner or his counsel, so as to dispense with proof, but the section does not apply to an alleged consent of prisoner's counsel to put in, as evidence, previous depositions of other persons which are not properly evidence against the prisoner. (82) Evidence given on the trial of another person, including the evidence of the prisoner then called as a witness, may, with the consent of the prisoner's counsel, be admitted in evidence both for and against the prisoner. (83) At the trial of an indictable offence, the presiding judge may with the consent of counsel for the Crown and for the accused respectively, adjourn the hearing to a private house within the same county for the purpose of taking there the evidence of a witness, (78) Meekins v. Smith. 1 H. Bl., 636; Randall v. Gurney, 3 B. and Ald., 252; Walpole v. Alexander, 3 Doug., 45. (79) 1 Tidd's Prac., 195, 196; Greenleaf on Evid., 16 Ed., vol. 1, 507. (80) Ewan, Ex p., 2 Can. Cr. Cas., 279. (81) R. v. Martin, 9 Can. Cr. Cas., 371. (82) R. v. Brooks, 11 Can. Cr. Cas., 188; 11 Ont. L. R., 525. (83) R. v. Fox, 7 Can. Cr. Cas., 457. 2ND EDIT. REVISED STATUTES 1906 REMARKS who is too ill to be moved therefrom, and may order that the Court and jury proceed there for that purpose. The accused is bound by the consent of his counsel in such a matter, which does not go to the jurisdiction of the Court. (84) Sec. 691. Sec. 979. Certificate of former trial upon the trial of an indictment for perjury. Unchanged. Sec. 692. Sec. 980. Evidence of coin being false or counterfeit. Meaning unchanged. Sec. 981. Evidence on proceedings for advertizing counterfeit money. Unchanged in meaning. Sec. 694. Sec. 982. Proof of previous conviction. Unchanged. Examination of witness as to previous conviction. Proof of previous conviction of witOmitted here. (85) Sec. 695. Soc. 696. ness. Proof of attested instrument. Omitted here. (86) Sec. 697. Sec. 983. Evidence at trial for child murder. Sec. 698. Sec. 699. Sec. 700. Sec. 701. Unchanged. Handwriting comparison. Omitted here. (87) Omitted here. (89) Cross examination as to previous written Sec. 701a. Sec. 984. Proof of age of boy, girl, child, etc. Το prove the age of a boy, girl, child or young person for the purposes of sections two hundred and eleven, two hundred and fifteen, two hundred and forty-two, two hundred and forty-three, two hundred and forty-five, two hundred and ninety-four, three hundred and one, three hundred and two, three hundred and fifteen and three hundred and sixteen, any entry or record by an incorporated society or its officers having had the control or care of the boy, girl, child or young per (84) R. v. Rogers, 6 Can. Cr. Cas., 419. (85) Made into section 12 of the new Canada Evidence Act, post. (86) See section 32 of the new Canada Evidence Act, post. (87) See section 8 of the new Canada Evidence Act, post. (88) Made into section 9 of the new Canada Evidence Act, post. (89) Made into section 10 of the new Canada Evidence Act, post. (90) Made into section 11 of the new Canada Evidence Act, post. 2ND EDIT. REVISED STATUTES 1906 REMARKS son at or about the time of the boy, girl, 2. In the absence of other evidence, or by Sec. 702. Sec. 985. Presence of gaming instruments, proof of gaming character of house. When any cards, dice, balls, counters, tables or other instruments of gaming used in playing any unlawful game are found in any house, room or place suspected to be used as a common gaming house, and entered under a warrant or order issued under this Act, or about the person of any of those who are found therein, it shall be prima facie evidence, on the trial of a prosecution under section two hun-dred and twenty-eight or section two hundred and twenty-nine, that such house, room or place is used as a common gaming house, and that the persons found in the room or place where such instruments of gaming are found were playing therein, although no play was actually going on in the presence of the officer entering the same under such warrant or order, or in the presence of the persons by whom he is accompanied. Sec. 703. Slightly altered, as here set forth. Sec. 986. Other evidence of house being a common gaming house. In any prosecution under section two hundred and twenty-eight for keeping a common gaming house, or under section two hundred and twenty-nine for playing or looking on while any other person is playing in a common gaming house, it shall be prima facie evidence that a house. i |