2ND EDIT. REVISED STATUTES 1906 REMARKS 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 (Code, new section 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 reserved case as to whether a verdict of guilty on such indictment was valid or not. A count in an indictment charging that the defendant acting under a power of attorney fraudulently sold certain bank shares and fraudulently converted the proceeds "and did thereby steal the said proceeds" is not bad as charging two offences, and the reference to the fraudulent sale and fraudulent conversion are to be taken as descriptive of the means whereby the offence of stealing under a power of attorney was committed. (126) Where all of the evidence went to the jury on a charge of keeping a common gaming house but the trial judge gave an erroneous instruction favourable to the accused as to the meaning of the term "for gain," and the jury acquitted the accused although there was evidence unaffected by such instruction which, if believed, was sufficient for a conviction, an appellate court on a case reserved by the prosecution should decline to order a new trial which would place the accused a second time in jeopardy. (127) On a plea of insanity raised to a charge of theft a verdict of acquittal upon that ground cannot be disturbed on a reserved case granted to the Crown if there was any evidence, however unsatisfactory, to support the plea. (128) Where, although the reception of opinion testimony as to the illegality of a transaction is improper, a case is sufficiently made out without such opinion testimony, and the trial is without a jury, the conviction ought to stand. (129) If upon a case reserved, the appellate court finds that important depositions were improperly received in evidence, and is unable to say that no substantial wrong or miscarriage was occasioned by the irregularity, the conviction should be quashed, but a new trial may be ordered. (130) Leave to appeal to the Court of Appeal under these sections (126) R. v. Fulton, 5 Can. Cr. Cas., 36. (127) R. v. James, 6 Ont. L. R., 35. (128) R. v. Phinney, (No. 2), 7 Can. Cr. Cas., 280. See R. v. McIntyre, 31 N. S. R., 422. (129) R. v. Harkness, (No. 2), 9 Can. Cr. Cas., 199. And see R. v. Finnessey, 10 Can. Cr. Cas., 347. (130) R. v. Brooks, 11 Can. Cr. Cas.. 188; 11 Ont. L. R., 525. 2ND EDIT. REVISED STATUTES 1906 REMARKS should not be granted to a private prosecutor except under exceptional circumstances. (131) Leave to appeal will not be granted to a private prosecutor from the decision of a police magistrate holding a summary trial by consent merely upon the ground that the magistrate erred in rejecting certain evidence which was properly admissible but corroborative only. A reserved case upon an objection, taken before pleading, that the charge upon which the accused was arraigned for a speedy trial was not founded upon the evidence adduced at the preliminary enquiry should not be heard by the Court of Appeal until after the trial has been concluded, and then only in case of a conviction. (132) The improper reception of evidence before a county judge trying a case without jury under the "speedy trials" clauses will not entitle the prisoner to a new trial upon a case reserved, if the county judge certifies therein that, apart from the evidence objected to, there was sufficient evidence to compel him to find the prisoner guilty. (133) Upon an application for leave to appeal, after refusal of a reserved case, ample notice of the application should be given to the Attorney General, and the notice of motion should set forth the grounds relied upon. (134) It has been held that an accused person tried and acquitted in a criminal court is entitled to a copy of the record of such acquittal and of the indictment, without the fiat of or intervention by the Attorney-General of the province, and that a mandamus will lie to compel the delivery of certified copies. (135) Sec. 747. Sec. 1021. Leave to a convicted person to apply for a Meaning unchanged. new trial. Sec. 748. Sec. 1022. New trial by order of Minister of Justice. Unchanged. Leave to apply, under the above section, 1021, to the Court of Appeal, for a new trial on the ground that the verdict is contrary to the evidence, cannot be granted unless there has been a denial of justice: and this defect cannot be attributed to the verdict by reason of the jury, in rendering it, not considering the evidence of the accused as to facts tending to his acquittal. The jury, (131) R. v. Burns, (No. 1), 4 Can. Cr. Cas., 323. (132) R. v. Trepanier, 4 Can. Cr. Cas., 259. (133) R. v. Tutty, 9 Can. Cr. Cas., 544. (134) R. v. Lai Ping, 8 Can. Cr. Cas., 467. (135) R. v. Scully, 5 Can. Cr. Cas., 1; Aff. in appeal, sub. nom. Atty. Gen. v. Scully, 6 Can. Cr. Cas., 167. 2ND EDIT. REVISED STATUTES 1906 REMARKS being sole judge of the weight of such evidence, was at liberty to refuse to believe it. (136) In deciding whether there should be a new trial on the ground that the verdict against the accused was against the weight of evidence, the question is whether or not the verdict is one which the jury as reasonable men ought not to have found. A new trial will not be granted merely because the trial judge is dissatisfied with the verdict and favors an acquittal. (137) A motion for a new trial can only be made before the court of appeal, upon leave therefor granted by the court before which the trial has taken place. (138) An application for a new trial on the ground of the discovery · of new evidence, instead of being made under section 1021, should be made to the Minister of Justice under section 1022. (139) It is misdirection, entitling the accused to a new trial, for the trial judge to charge the jury that the onus is upon the accused to prove, by a preponderance of testimony,' an alibi set up in defence. (140) Where the defence is an alibi, and there is evidence tending to support it, the Court, in view of the universal rule that the burden is upon the prosecution to shew, beyond a reasonable doubt, the commission of the offence by the accused, should tell the jury that, if they have a reasonable doubt of the presence of the accused at the time when and the place where the offence was committed, they should acquit. (141) Upon a criminal trial it is the duty of the trial judge, in his charge to the jury, to define the crime charged, and to explain to the jury the difference between it and any other offence for which the jury may convict the accused under the same indictment. Failure to instruct the jurv in a trial for murder upon the distinction between murder and manslaughter is a ground for ordering a new trial. A court of criminal appeal should direct a new trial upon a case reserved by the trial judge after the trial in respect of such omission in the judge's charge to the jury, although no objection thereto was taken by the defendant's counsel during the trial. (142) There is no provision in the Criminal Code authorizing the Court. to grant a new trial to the Crown on the ground that the verdict of acquittal is against the weight of evidence. (143) (136) R. v. Molleur, Que. Jud. Rep., 15 K. B., 1; Can. Ann. Dig.. (1906), 91. (137) R. v. Brewster, 4 Can. Cr. Cas., 34. (138) R. v. Fouquet, Que. Jud. Rep., 14 K. B., SS. (139) R. v. Sternaman, 1 Can. Cr. Cas., 1. (140) R. v. Myshrall, 8 Can. Cr. Cas., 474; 35 N. B. R., 507. (141) S. v. Harvey, 13 Cr. Law Mag., 22. (142) R. v. Wong On, (No. 3), 8 Can. Cr. Cas., 423; 10 B. C. R., 555. (143) R. v. Phinney, (No. 2), 7 Can. Cr. Cas., 280. 2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 749. Sec. 1023. Suspension of sentence in case of appeal. — The sentence of a court shall not be suspended by reason of any appeal, unless the court expressly so directs, except where the sentence is that the accused suffer death or whipping. 2. The production of a certificate from the officer of the court that a question has been reserved, or that leave has been given to apply for a new trial, or of a certificate from the Minister of Justice that he has directed a new trial, shall be a sufficient warrant to suspend the execution of any sentence of death or whipping. 3. In all cases it shall be in the discretion of the court of appeal in directing a new trial to order the accused to be admitted to bail. Slightly altered, as here set forth. Sec. 750. Sec. 1024. Appeal to Supreme Court of Canada. Any person convicted of any indictable of fence, whose conviction has been affirmed on an appeal taken under section ten hundred and thirteen may appeal to the Supreme Court of Canada against the affirmance of such conviction: Provided that no such appeal can be taken if the court of appeal is unanimous in affirming the conviction, nor unless notice of appeal in writing has been served on the Attorney General within fifteen days after such affirmance or such further time as may be allowed by the Supreme Court of Canada or a judge thereof. 2. The Supreme Court of Canada shall make such rule or order thereon, either in affirmance of the conviction or for granting a new trial, or otherwise, or for granting or refusing such application, as the justice of the case requires, and shall make all other necessary rules and orders for carrying such rule or order into effect. 3. Unless such appeal is brought on for hearing by the appellant at the session of the Supreme Court during which such affirmance takes place, or the session next 2ND EDIT. REVISED STATUTES 1906 REMARKS thereafter if the said court is not then in session, the appeal shall be held to have been abandoned, unless otherwise ordered by the Supreme Court or a judge thereof. 4. The judgment of the Supreme Court shall, in all cases, be final and conclusive. Altered, as here set forth. The power given by this section to a judge of the Supreme Court of Canada to extend the time for the service on the Attorney General of notice of appeal in a reserved crown case, may be exercised after the time limited for the service of such notice. (144) Sec. 751. Sec. 1025. Appeals to Privy Council abolished. Meaning unchanged. PART XX. PUNISHMENTS, FINES, FORFEITURES, COSTS, AND RESTITUTION OF PROPERTY. Interpretation. Sec. 974. Sec. 1026. Definition of Court. In the sections of this Part relating to suspended sentence, unless the context otherwise requires, 'Court' means and includes any Superior Court of criminal jurisdiction, any judge or court within the meaning of Part XVIII and any magistrate within the meaning of Part XVI. Slightly altered, as here set forth. PUNISHMENT GENERALLY. Sec. 931. Sec. 1027. Punishment only after conviction. Sec. 932. Sec. 1028. Degrees in punishment. Unchanged. This section applies as well to proceedings under the Summary Convictions clauses as to proceedings by indictment. Where both fine and imprisonment are provided as the authorized punishment for a statutory offence upon summary conviction, the magistrate may, in his discretion impose either a fine alone or an imprisonment alone, or both, unless the particular statute specially provides otherwise. (1) Sec. 934. Sec. 1029. Fine or penalty in discretion of court. (144) R. v. Gilbert, 27 Can. L. T., 158. (1) Er p. Kent, 7 Can. Cr. Cas., 447. Unchanged. |