2ND EDIT. REVISED STATUTES 1906 REMARKS court of appeal in the cases hereinafter provided for, and in no others. 2. Whenever the judges of the court of appeal are unanimous in deciding an appeal brought before the said court their decision shall be final. 3. If any of the judges dissent from the opinion of the majority, an appeal shall lie from such decision to the Supreme Court of Canada as hereinafter provided. Slightly altered. Sec. 743. Sec. 1014. No proceeding in error. Reserve of any question of law for the opinion of the court of appeal. No proceeding in error shall be taken in any criminal case. 2. The court before which any accused person is tried may, either during or after the trial, reserve any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto, or arising out of the direction of the judge, for the opinion of the court of appeal in manner hereinafter provided. 3. Either the prosecutor or the accused may, during the trial, either orally or in writing, apply to the court to reserve any such question as aforesaid, and the court, if it refuses so to reserve it, shall nevertheless take a note of such objection. 4. After a question is reserved, the trial shall proceed as in other cases. 5. If the result is a conviction, the court may in its discretion respite the execution of the sentence or postpone sentence till the question reserved has been decided, and shall in its discretion commit the person convicted to prison or admit him to bail with one or two sufficient sureties, in such sums as the court thinks fit, to surrender at such time as the court directs. 6. If the question is reserved, a case shall be stated for the opinion of the court of apSlightly altered. peal. It has been held by the Supreme Court of the North West Ter 2ND EDIT. REVISED STATUTES 1906 REMARKS ritories that, although the trial judge may, if he sees fit, grant a reserve case, during or after the trial, either upon application therefor, or of his own motion, leave to appeal against the trial judge's refusal to reserve a question of law cannot be granted by the court of appeal, except in the case of an application, to reserve the question having been made to the trial court during the trial, and refused. (111) It is a question of fact and not of law, whether the use of a slot machine for selling cigars, whereby customers obtained for the one price a number of cigars varying according to the working of the machine, is or is not a game of chance, a mixed game of chance and skill, or a game of skill only. (112) If the trial judge has no doubt that there was evidence of the offence to go to the jury, he should not reserve a case upon that point. (113) On an application for a reserved case, the evidence of a juror is not admissible to show 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 favored by the ten, because some of the latter had told them that the agreement of ten was sufficient to carry the verdict. (114) Sec. 744. Sec. 1015. Appeal from refusal to reserve. If the court refuses to reserve the question, the party applying may move the court of appeal as hereinafter provided. 2. The Attorney General or party so applying may on notice of motion to be given to the accused or prosecutor, as the case may be, move the Court of Appeal for leave to appeal. 3. The court of appeal may, upon the motion and upon considering such evidence, if any, as it thinks fit to receive, grant or refuse such leave. (115) Sec. 1016. Proceedings on appeal being granted. If leave to appeal is granted, a case shall be stated for the opinion of the Court of Ap (111) R. v. Toto, 8 Can. Cr. Cas., 410. But there are, at pages 414, 415, of the report, some comments questioning the correctness of the decision. (112) R. v. Fortier, 7 Can. Cr. Cas., 417. (113) R. v. Brindamour, 11 Can. Cr. Cas., 315. (114) R. v. Mullen, 6 Can. Cr. Cas., 363. (115) These two sections, 1015 and 1016, are formed from the old section 744, without any material alteration. 2ND EDIT. REVISED STATUTES 1906 REMARKS peal as if the question had been reserved. 2. If the sentence is alleged to be one which could not by law be passed, either party may without leave, upon giving notice of motion to the other side, move the Court of Appeal to pass a proper sentence. 3. If the Court has arrested judgment, and refused to pass any sentence, the prosecutor may, without leave, make such a motion. (115) Sec. 745. Sec. 1017. Evidence to be sent to the court of appeal. Meaning unchanged. Sec. 746. Sec. 1018. Powers of Court of Appeal upon hearing.Upon the hearing of any appeal under the powers hereinbefore contained, the court of appeal may, (a) confirm the ruling appealed from; or, (b) if of opinion that the ruling was erro'neous, and that there has been a mistrial in consequence, direct a new trial; or, (c) if it considers the sentence erroneous (e) make such other order as justice re- Sec. 1019. If no substantial wrong conviction stands. No conviction shall be set aside nor any new trial directed, although it appears that some evidence was improperly admitted or (116) These three new sections, 1018, 1019 and 1020, are taken from the old section 746, without any material alteration. 2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 66 rejected, or that something not according to law was done at the trial or some misdirection given, unless, in the opinion of the Court of Appeal, some substantial wrong or miscarriage was thereby occasioned on the trial: Provided that if the Court of Appeal is of opinion that any challenge for the defence was improperly disallowed, a new trial shall be granted. (116) Sec. 1020. When some count only affected, sentence as to rest. If it appears to the Court of Appeal that such wrong or miscarriage affected some count only of the indictment, the Court may give separate directions as to each count and may pass sentence on any count unaffected by such wrong or miscarriage which stands good, or may remit the case to the court below with directions to pass such sentence as justice may require. 2. The order or direction of the court of appeal shall be certified under the hand of the presiding chief justice or senior puisné judge to the proper officer of the court before which the case was tried, and such order or direction shall be carried into effect. (116) Leave to appeal will not be granted by an appellate court, on the ground of the admission of irrelevant evidence, if, in the opinion of the court, the reception of such evidence did not occasion any substantial wrong or miscarriage on the trial. (117) Even if the trial judge should, in his charge, to the jury, direct them erroneously on a certain point, a new trial should not be granted if there was ample evidence of guilt apart from the point in question, and if, in the opinion of the court of appeal no substantial wrong or miscarriage was occasioned by the error. (118) An unqualified instruction to the jury, on a prosecution for theft against the finder of goods, that the pledging of same by him constitutes theft, is a misdirection entitling the accused to a new trial. (119) Where comment has been made, in contravention of the Canada Evidence Act, upon the failure of the accused to testify, the same (117) R. v. Callaghan, 8 Can. Cr. Cas., 143. (118) R. v. Higgins, 36 N. B. R., 18. (Cited, more fully, at p. 57, ante). (119) R.v. Slavin, 7 Can. Cr. Cas., 175. 2ND EDIT. REVISED STATUTES 1906 REMARKS is a substantial wrong to the accused, and entitles him to a new trial. (120) The temporary absence of a juror for a few minutes without the permission or knowledge of the court is not such a defect as necessitates a new trial regardless of the question whether any substantial prejudice of the accused has resulted therefrom. Where the only evidence given during such temporary absence was unfavorable to the accused and no possible prejudice has resulted, a reserve case should not be granted nor leave given to appeal. (121) A person charged with perjury committed in a civil action is entitled to have put in evidence those parts of his testimony in the civil action which may explain or qualify the statements in respect of which the perjury is charged; and the refusal to admit such testimony is a "substantial wrong." (122) Where a conviction has been made without the legal proof required by law of an essential part of the crime, such defect is a "substantial wrong or miscarriage at the trial," and the conviction. must be set aside. (123) Where an indictment for burglary charges only the breaking and entering with intent, and does not charge a breaking out of the dwelling-house, and the evidence shews that two windows had been disturbed sufficiently to allow of an entrance, one of them being previously closed and the other partly open, but it does not appear by which of them the entrance was made, it is error to instruct the jury that an entrance by either is sufficient, and the misdirection is a substantial wrong to the accused entitling him to a new trial. (124) Where on an indictment for a principal offence and for an attempt to commit such an offence, the evidence is wholly directed to the proof of the principal offence, the jury's verdict of guilty of the attempt only will not be set aside, although there were no other witnesses in respect of the attempt than those whose testimony, if wholly believed, shewed the commission of the greater offence. It is within the province of the jury, to believe, if it sees fit to do so, a part only of a witness' testimony and to disbelieve the remainder of the same witness' testimony, and it may therefore credit the testimony in respect of a greater offence only in so far as it shews a lesser offence. (125) An indictment for stealing under a power of attorney which (120) R. v. King, 9 Can. Cr. Cas., 426. (121) R. v. McLean, 11 Can. Cr. Cas., 283; 39 N. S. R., 147. (122) R. v. Coote, 8 Can. Cr. Cas., 199. (123) R. v. Drummond, 10 Can. Cr. Cas., 340. (124) R. v. Burns, 7 Can. Cr. Cas., 95; 39 C. L. J., 789. (125) R. v. Hamilton, 4 Can. Cr. Cas., 251. |