Penalty.

Advertising reward and immunity for offender.

Making use

of words in advertise

ment to like effect.

Advertising that money advanced on property stolen will be paid.

Printing advertise

ment.

standing that he had no power to apprehend the felon, that the goods were never restored, and that the defendant had no power to restore them. R. v. Ledbitter, 1 Mood. C.C. 76.

Where A. was charged with corruptly receiving from B. money under pretence of helping B. to recover goods theretofore stolen from B. and with not causing the thieves to be apprehended the following questions were left to the jury:-(1) Did A. mean to screen the guilty parties or to share the money with them? The answer was no. (2) Did A. know the thieves and intend to assist them in getting rid of the property by promising B. to buy it? The answer was no. (3) Did A. know the thieves and assist B. as her agent and at her request in endeavouring to purchase the stolen property from them, not meaning to bring the thieves to justice? The answer was yes. It was held that B. was properly convicted. R. v. Pascoe, 1 Den. 456, 2 C. & K. 927, 18 L.J.M.C. 186.

Form of indictment.]-The jurors for Our Lord the King upon their oath present that A.B. on (time and place), unlawfully and corruptly did take and receive from one C.D. certain money and reward to wit, the sum of five dollars of the monies of the said C.D. under pretence (and upon account) of helping the said C.D. to certain goods and chattels of him the said C.D. before then stolen, taken and carried away, to wit (describe goods), the said A.B. not having used all due diligence to cause the person by whom the said goods and chattels were so stolen, taken and carried away as aforesaid, to be brought to trial for the same; against the form of the Criminal Code, sec. 182.

183. Every one is liable to a penalty of two hundred and fifty dollars for each offence, recoverable with costs by any person who sues for the same in any court of competent jurisdiction, who,

(a) publicly advertises a reward for the return of any pro

perty which has been stolen or lost, and in such advertisement uses any words purporting that no questions will be asked; or,

(b) makes use of any words in any public advertisement purporting that a reward will be given or paid for any property which has been stolen or lost, without seizing or making any inquiry after the person producing such property; or,

(c) promises or offers in any such public advertisement to return to any pawnbroker or other person who advanced money by way of loan on, or has bought, any property stolen or lost, the money so advanced or paid, or any other sum of money for the return of such property; or,

(d) prints or publishes any such advertisement. 55-56 V., c. 29, s. 157.

Limitation.]-A prosecution taken against the proprietor of a "newspaper" for publishing an advertisement offering a reward for the recovery of stolen property under paragraph (d) must be commenced within six months from the commission of the offence. Section 1140 (d).

184. Every one is guilty of an indictable offence and liable False declato two years' imprisonment, who knowingly and wilfully signs ration in respect to a false certificate or declaration, when a certificate or declara- execution tion is required, with respect to the execution of judgment of of judgment death on any prisoner. 55-56 V., c. 29, s. 158.

Escapes and Rescues.

of death.

under sen

185. Every one is guilty of an indictable offence and liable Being at to two years' imprisonment who, having been sentenced to im- large while prisonment, is afterwards, and before the expiration of the tence of term for which he was sentenced, at large within Canada with- imprisonout some lawful cause, the proof whereof shall lie on him. 55-56 V., c. 29, s. 159.

Certificate of sentence.]-The fact of the sentence being in force when the defendant was found at large is sufficiently proved by the certificate of the conviction and sentence, if the judgment remains unreversed, and this although it appears on the face of the certificate that the sentence was one which could not legally have been inflicted on the defendant for the offence of which according to the certificate he had been convicted. R. v. Finney, 2 C. & K. 274.

Escapes.]-See secs. 189 and 190.

Ticket of leave.]-It may be proved as a defence that the prisoner is at large conditionally under a license or ticket of leave or otherwise and that the conditions have been observed. R.S.C. 1906, ch. 150. The license issued under the authority of that statute may be revoked by the GovernorGeneral either with or without cause assigned. R. v. Johnson, 4 Can. Cr. Cas. 178 (Que.). The revocation by the Crown without cause assigned does not interrupt the running of the sentence, and the latter terminates at the same time as if no license had been granted. Ibid.

Pardon.]-A pardon is a good defence. R. v. Miller, 2 W. Bl. 797, 1 Leach C.C. 74; but the sentence revives if the terms of a conditional pardon are not observed. R. v. Madan, 1 Leach C.C. 223; Aickles' Case, 1 Leach C.C. 390.

Without lawful excuse.]-Upon a summary conviction of the defendant and the passing of sentence of four months' imprisonment, for breach of a provincial law, the magistrate of his own motion required the defendant to enter into a recognizance to appear when called upon (a procedure not authorized in such cases) and upon doing so the defendant was released. The defendant having been afterwards imprisoned under a warrant issued two months after the date of sentence, held that the term of imprisonment is to be counted from the day of passing sentence and that the defendant was not liable as upon an escape to make up the period for which he was so at liberty, as there was no mens rea and the magistrate's action was a "lawful excuse" quoad the defendant. R. v. Robinson (1907), 12 Can. Cr. Cas. 447, per Riddell, J.

The time during which a person under sentence is improperly at liberty through an erroneous order for bail, is not to be counted as part of the term of imprisonment. R. v. Taylor (1906), 12 Can. Cr. Cas. 245, per Stuart, J.

ment.

Penalty.

Assisting prisoner of

war to

escape. Assisting while at large on parole.

Prisonbreach.

186. Every one is guilty of an indictable offence and liable to five years' imprisonment who knowingly and wilfully,

(a) assists any alien enemy of His Majesty, being a prisoner of war in Canada, to escape from any place in which he may be detained; or,

(b) assists any such prisoner as aforesaid, suffered to be at large on his parole in Canada or in any part thereof, to escape from the place where he is at large on his parole. 55-56 V., c. 29, s. 160.

That

Imperial statute.]-This offence is also covered by the Imperial Statute, 52 Geo: III., ch. 156, known as the Prisoners of War Escape Act. statute in terms applies to His Majesty's dominions and is consequently still in force in Canada. See also Code sec. 589.

Section 1 of that Act as varied by 54 & 55 Vict. (Imp.), ch. 69, sec. 1, provides that every person who shall from and after the passing thereof knowingly or wilfully assist any alien enemy of His Majesty being a prisoner of war in His Majesty's dominions, whether such prisoner shall be confined as a prisoner of war in any prison or other place of confinement or shall be suffered to be at large in His Majesty's dominions or any part thereof on his parole, to escape from such prison or other place of confinement or from His Majesty's dominions if at large on parole, shall, upon being convicted thereof, be adjudged guilty of felony and be liable to be transported as a felon for life or for such term not less than three years and not exceeding either five years or any greater period authorized by the enactment, at the discretion of the court. The same section also provides that where under any Act now in force or under any future Act a court is empowered or required to award a sentence of penal servitude, the court may in its discretion, unless such future Act otherwise provides, award imprisonment for any term not exceeding two years with or without hard labour.

187. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, by force or violence, breaks any prison with intent to set at liberty himself or any person confined therein on any criminal charge. 55-56 V., c. 29,

s. 161.

Evidence.1-The proof required is: (1) the nature of the offence for which the prisoner was imprisoned; (2) the imprisonment and the nature of the prison; and (3) the breaking of the prison. Roscoe Crim. Evid., 11th ed., 837.

Any prison.]-The expression "prison" includes any penitentiary, common gaol, public or reformatory prison, lock-up, guard room or other place in which persons charged with the commission of offences are usually kept or detained in custody. Section 2(30).

Prison breach.]-An actual breaking of the prison with force, and not merely a constructive breaking, must be proved. If a gaoler sets open the prison doors and the prisoner escapes the latter is not guilty of prison breach. 1 Hale P.C. 611; and if the prison be fired and he escapes to save his life, this is not prison breach unless the prisoner himself set fire to the prison or procured it to be done. Hale P.C. 611.

If other persons without the prisoner's privity or consent break the prison and he escapes through the breach so made he is not guilty of breaking but only of the escape. 2 Hawk., ch. 18, sec. 10.

Force essential to the offence.]—Where a prisoner made his escape over the prison walls and in doing so threw down some bricks from the top of the wall which has been placed there loose without mortar in the form of pigeon holes for the purpose of preventing escapes, it was held that he was properly convicted of prison breach. R. v. Haswell, Russ. & Ry. 458.

Retaking prisoner.]-See note to sec. 189.

Escape.]-See secs. 189-196.

to break

188. Every one is guilty of an indictable offence and liable Attempt to two years' imprisonment who attempts to break prison, or prison.

who forcibly breaks out of his cell or makes any breach therein with intent to escape therefrom. 55-56 V., c. 29, s. 162.

189. Every one is guilty of an indictable offence and liable Penalty. to two years' imprisonment who,

after

(a) having been convicted of any offence, escapes from any Escapes lawful custody in which he may be under such conviction; conviction.

or,

(b) whether convicted or not, escapes from any prison in Escaping which he is lawfully confined on any criminal charge. from prison. 55-56 V., c. 29, s. 163.

Whether convicted or not.]—These words being inserted, it is no longer a defence as it was at common law that the accused had been subsequently indicted for the original offence and acquitted. 1 Hale 611; R. v. Waters, 12 Cox 390.

Escape without force.]—It is an offence by a prisoner to escape from lawful confinement, though no force or artifice be used on his part to effect such purpose. Thus, if a prisoner go out of his prison without any obstruction, the doors being opened by the consent or negligence of the gaoler, or if he escape in any other manner, without using any kind of force or violence, he will be guilty of a misdemeanour. R. v. Nugent, 11 Cox 64.

Force in preventing escape of prisoner.]—It is laid down by the late Mr. Justice Stephen, in his Digest of the Criminal Law, article 199, that the intentional infliction of death or bodily harm is not a crime when it is done by any person in order to retake or keep in lawful custody a traitor, felon, or pirate who has escaped or is about to escape from custody, although such traitor, felon or pirate offers no violence to any person, provided that the object for which death or harm is inflicted cannot be otherwise accomplished. See also Code secs. 40-45, inclusive.

Lord Hale (1 Hale P.C. 489) says: "If a person be indicted of felony and flies, or being arrested by warrant or process of law upon such indictment escapes and flies, and will not render himself, whereupon the officer or minister cannot take him without killing of him, this is not felony, neither shall the killer forfeit his goods, or be driven to sue forth his pardon, but upon his arraignment shall plead not guilty, and accordingly it ought to be found by the jury. But if he may be taken without severity,

it is at least manslaughter in him that kills him, therefore, the jury is to inquire whether it were done of necessity or not."

Sir Michael Foster draws especial attention to the distinction between cases of bare flight and cases of resistance to arrest (Foster C.L. 270), and he says: "Where a felony is committed and the felon fleeth from justice, or a dangerous wound given, it is the duty of every man to use his best endeavours for preventing an escape; and if in the pursuit the party fleeing is killed, where he cannot otherwise be overtaken, this will be deemed justifiable homicide; for the pursuit was not barely warrantable, it is what the law requireth and will punish the wilful neglect of."

Sergeant Hawkins (1 Hawk. P.C. 81), says that, "First, if a person having actually committed a felony will not suffer himself to be arrested, but stand on his own defence or fly, so that he cannot possibly be apprehended alive by those who pursue him, whether private persons or public officers, with or without a warrant from a magistrate, he may be lawfully slain by them. Secondly, if an innocent person be indicted of a felony where in truth no felony was committed, and will not suffer himself to be arrested by the officer who has a warrant for that purpose, he may be lawfully killed by him if he cannot otherwise be taken; for there is a charge against him upon record, to which, at his peril, he is bound to answer. Thirdly, if a criminal, endeavouring to break the gaol, assault his gaoler, he may be lawfully killed by him in the affray."

And it is laid down in 1 East P.C. 330, touching the safe custody of persons arrested and in confinement, that after an arrest once legally made, if the party escape, the officer may lawfully kill him—(1) in the case of a felony actually committed; (2) or whether committed by him or not if he had been arrested upon a proper warrant; (3) or hue and cry had been raised against him by name; (4) or he had stood indicted for felony; but if in any of these cases the officer might otherwise have taken him, it will be at least manslaughter.

Escape from reformatory or industrial school.]-Every one sentenced to imprisonment or to be detained in any reformatory prison, reformatory school, industrial refuge, industrial home or industrial school, who escapes or attempts to escape therefrom, may, at any time, be apprehended without warrant and brought before any magistrate, who, upon proof of his identity, and of the escape or attempt to escape, if the escape or attempt to escape be from a reformatory prison or a reformatory school, shall remand him thereto for the remainder of his original term of imprisonment or detention. R.S.C. 1906, ch. 148, sec. 22.

If the escape or attempt to escape be from an industrial refuge, industrial home or industrial school, the magistrate may remand the offender thereto for the remainder of his original term of imprisonment or detention; or if the officer in charge of such refuge, home or school certifies in writing that the removal of the offender to a place of safer or stricter imprisonment is desirable, and if the governing body of such refuge, home or school applies for such removal, and if sufficient cause therefor is shewn to the satisfaction of such magistrate, the magistrate may order the offender to be removed to and to be kept imprisoned, for the remainder of his original term of imprisonment or detention, in any reformatory prison, or reformatory school, in which by law such offender might be imprisoned for an indictable offence, and when there is no such reformatory prison or reformatory school, the magistrate may order the offender to be removed to and to be so kept imprisoned in any other place of imprisonment to which the offender may be lawfully committed. R.S.C. 1906, ch. 148, sec. 23.

In the case of any escape or attempt to escape aforesaid, whether the term of imprisonment or detention has expired or not, the magistrate