384. Every one is guilty of an indictable offence and liable On railway. to fourteen years' imprisonment who steals anything in or from any railway station or building, or from any engine, tender or vehicle of any kind on any railway. 55-56 V., c. 29, s. 351.

A conviction for stealing "in or from" a building charges only one offence and is not, because of the disjunctive, void for duplicity and uncertainty. R. v. Patrick White (1901), 4 Can. Cr. Cas. 430, 34 N.S.R. 436.

Indian

385. Every one who steals, or unlawfully injures or Things deremoves, any image, bones, article or thing deposited in or near posited in any Indian grave, is guilty of an offence and liable, on sum- graves. mary conviction, for a first offence, to a penalty not exceeding one hundred dollars or to three months' imprisonment, and for a subsequent offence to the same penalty and to six months' imprisonment with hard labour. 55-56 V., c. 29, s. 352.

386. Every one is guilty of an indictable offence and liable Things not to seven years' imprisonment who steals anything for the steal- otherwise ing of which no punishment is otherwise provided or commits provided in respect thereof any offence for which he is liable to the same punishment as if he had stolen the same.

for.

2. The offender is liable to ten years' imprisonment if he Subsequent has been previously convicted of theft. 55-56 V., c. 29, s. 356. offence.

Indictment.]-Where it is sought to make the accused liable to ten years' imprisonment, it is sufficient, after charging the subsequent offence, to state in the indictment that the offender was at a certain time and place, or at certain times and places, convicted of theft and to state the substance and effect only, omitting the formal part of the indictment and conviction, or of the summary conviction, as the case may be, for the previous offence, without otherwise describing the previous offence or offences. Section 851.

An indictment is not bad by reason of an omission to state who is the owner of any property therein mentioned, but the court may, if satisfied that it is necessary for a fair trial, order that a particular further describing the property be furnished by the prosecutor. Section 855 (b).

The form of procedure when a previous conviction for theft is charged, is regulated by secs. 963 and 964.

Evidence.]-M. was convicted of stealing goods, the property of S. The evidence to convict the prisoner with the crime was that of a policeman who had him in charge and who stated in cross-examination that he said to the prisoner that S. was a good-hearted man, and he (the policeman) thought that if S. got his goods back he might not prosecute. About an hour after this the prisoner told the policeman that if he went to a certain place in the woods, which he described particularly, he would find the goods. The policeman went to the place described and found the goods. It was held, following the rule laid down by Lord Eldon in Harvey's Case (2 East's P.C. 658), that the prisoner's statement to the policeman was improperly admitted. R. v. McCafferty (1886), 25 N.B.R. 396. Section 993, allowing evidence of guilty knowledge to be given by shewing the finding in the possession of accused of other stolen property, is

limited to cases where the charge is either "receiving" or "having in possession stolen property" (sec. 399) and, if a charge of theft is joined therewith, it would appear that such evidence must then be excluded. See note to sec. 993.

Upon a trial and conviction for theft the fact that evidence was admitted for the Crown in respect of a transaction between the complainant and the accused which had been the subject of a prior indictment against the accused for theft, on which prior indictment the accused had been acquitted, will not invalidate the conviction, if the jury were informed of such acquittal and instructed in accordance with the prior verdict that the first transaction was in fact a loan repayable on the date of the offence now charged. The King v. Menard, 8 Can. Cr. Cas. 80.

A warrant of commitment for trial on a charge of theft is sufficient if it states that the chattel was stolen from the informant's building, without also stating that the informant owned the chattel. R. v. Leete (1900), 7 Can. Cr. Cas. 301 (N.S.).

Speedy trial.]-A charge of theft preferred under the speedy trials clauses is sufficient if it states that the accused "unlawfully did steal," etc., without specifically averring a taking or converting "fraudulently and without colour of right and with intent," etc., in the words of sec. 347. As the statutory form of record under 'the speedy trials clauses (Code forms 60 and 61) framed in respect of a charge of theft, does not contain such particulars, the description of the offence following such form must be held sufficient in the "charge" and in all the proceedings prior thereto. R. v. George (1902), 5 Can. Cr. Cas. 469, 35 N.S.R. 42, affirmed in George v. The King, 8 Can. Cr. Cas. 401, 35 Can. S.C.R. 376.

See secs. 826-842 as to procedure on election for speedy trial without a jury.

Summary trial by police magistrate of city or town.]-See sec. 777. Where the accused consents to a summary trial before a city stipendiary magistrate, such magistrate is not bound to remand him under Code sec. 783, upon his pleading "not guilty," to a charge of theft where the value exceeds $10, but has a jurisdiction, apart from sec. 783, conferred by Code sec. 777, under which he may try the charge and impose the same punishment as might be imposed by a court of general sessions in Ontario. The King v. Bowers (No. 2), 6 Can. Cr. Cas. 264.

Summary trial by magistrate without extended jurisdiction.]—See secs. 773, 778, 780, 781.

A "magistrate" under Code sec. 782 authorized to hold a summary trial by consent, but not being a police or stipendiary magistrate of a city or town having the additional jurisdiction conferred by Code sec. 777, must first proceed with the charge, if for theft exceeding $10, as on a preliminary enquiry until it is ascertained whether or not the evidence for the prosecution is sufficient to put the accused on his trial. If the magistrate is then of opinion that the evidence for the prosecution is sufficient to put the accused on his trial, and that the case is a proper one to be disposed of summarily, he may proceed with a summary trial under Code sec. 782. R. v. Williams (1905), 10 Can. Cr. Cas. 330, 11 B.C.R. 351.

But if it appears to the magistrate that the offence is one which, owing to a previous conviction of the person charged, or from any other circumstance, ought to be made the subject of prosecution by indictment rather than to be disposed of summarily, such magistrate may, before the accused person has made his defence, decide not to adjudicate summarily upon the case; but a previous conviction shall not prevent the magistrate from trying the offender summarily, if he thinks fit so to do. Code sec.

The magistrate, not having the extended jurisdiction of a city magistrate under sec. 777, may not impose a greater penalty for theft than six months with or without hard labour. Section 780.

Theft under $10.]-By the Criminal Code Amendment Act of 1900, the present sub-sec. 3 of sec. 777 was added, which declared that the present secs. 780 and 781 do not extend to or apply to cases tried under sec. 777. By the same Act these special powers exercisable by police and stipendiary magistrates in Ontario were extended to "police and stipendiary magistrates of cities and incorporated towns in every other part of Canada, and to recorders where they exercise judicial functions." (Now subsec. 2 of sec. 777.)

It would therefore appear that if the accused be charged with theft, under $10, he may, on "summary trial" in Ontario, before (a) a county court judge (being a J.P.); (b) a judge of sessions; or (c) a district magistrate, while any of those officials are exercising the powers of a "magistrate," under sec. 773, be punished only under the provisions of sec. 780, and the sentence will be limited to six months' imprisonment (with or without hard labour).

But if the accused comes before (d) a police magistrate; or (e) a stipendiary magistrate; sec. 780 no longer applies, and he may, on summary trial in Ontario, be sentenced to the same punishment as might be imposed on a trial before the general sessions on indictment.

Before the amendment it had been held in R. v. Randolph (1900), 4 Can. Cr. Cas. 165 (Ont.), that a person accused of the theft of less than $10 (not charged as stealing from the person) was liable on summary trial before a police magistrate to no greater term of imprisonment than 6 months because of sec. 780 which was held to apply although the magistrate was qualified to act under sec. 777 if the latter section applied to the charge.

It appears to have been intended by adding sub-sec. 3, to make it clear that where a prisoner elects to be tried before an official named in sec. 777, the punishment, if he is found guilty, is to be the same as if he were tried by a jury. Section 777 declares that in cases under that section a prisoner may be sentenced to the same punishment to which he would have been liable if he had been tried before the court of general sessions of the peace, and at such general sessions a greater punishment might by law be inflicted than where the magistrate convicts under secs. 780 and 781.

But in R. v. Hayward (1902), 6 Can. Cr. Cas. 399, after the amendment now embodied in sec. 777 (3) it was held by Sir John A. Boyd, president of the High Court (Ont.) that the punishment upon summary trial for the theft of property not exceeding $10 in value (and not being the offence of stealing from the person) is governed by Code secs. 773 and 780 and is therefore limited to six months' imprisonment; and that in view of the marginal note to Code sec. 777, i.e., "summary trial in certain other cases," sec. 777 should be considered as applying only to cases not specifically mentioned in sec. 773.

The Hayward Case follows the decision in R. v. Randolph without comment as to the alteration of the statute meanwhile and these decisions are adopted by Hanington, J., in Ex parte McDonald (1904), 9 Can. Cr. Cas. 368 (N.B.).

The class of offences to which sec. 777 was to apply is stated in the section itself in these words:-"any offence for which he may be tried at a court of general sessions of the peace." Had it been intended to restrict the class of offences to be dealt with under sec. 777 so as to exclude those specifically mentioned in 773, is it not reasonable to suppose that Parliament would have here inserted the word "other" and made the section in

Value of things stolen over $200.

Goods in process of manufac

ture.

terms apply to any other offence for which he may be tried at a court of general sessions?

Sentence after previous conviction.]-By the second sub-section the offender is liable to ten years' imprisonment if he has been previously convicted of theft.

When a prisoner is convicted, on a summary trial before a police magistrate, of theft, he cannot be sentenced under the second sub-section to more than seven years' imprisonment although he has been previously convicted of theft, unless such previous conviction has been charged in the information by analogy to sec. 851 and proved in accordance with sec. 963, and where in such a case a greater punishment is inflicted, the Court of Appeal upon an application under sub-sec. 2 of sec. 1016 of the Code, will set aside the sentence and pass what it considers a proper sentence. R. v. Edwards (1907), 17 Man. R. 288.

When a previous conviction is not charged in the indictment or information, neither a judge nor a magistrate has any right to ask a prisoner after conviction, whether he has been previously convicted or not, either with the view of ascertaining whether the prisoner is liable to any increased punishment in such case, or with the view of determining what the proper sentence within the ordinary maximum provided by the statute in the particular case should be. R. v. Edwards (1907), 17 Man. R. 288. Probably the case last mentioned will not apply to evidence given by the Crown in rebuttal to evidence given for the defendant of his good character or other evidence in mitigation of sentence.

387. If the value of anything stolen, or in respect of which any offence is committed for which the offender is liable to the same punishment as if he had stolen it, exceeds the sum of two hundred dollars the offender is liable to two years' imprisonment, in addition to any punishment to which he is otherwise liable for such offence. 55-56 V., c. 29, s. 357.

388. Every one is guilty of an indictable offence and liable to five years' imprisonment who steals, to the value of two dollars, any woollen, linen, hempen or cotton yarn, or any goods or articles of silk, woollen, linen, cotton, alpaca or mohair, or of any one or more of such materials mixed with each other or mixed with any other material, while laid, placed or exposed, during any stage, process or progress of manufacture, in any building, field or other place. 55-56 V., c. 29, s. 347.

Stage, process or progress of manufacture.]—Goods may be within this section though the texture is complete if they have not yet been brought into saleable condition. R. v. Woodhead, 1 M. & Rob. 549.

On an indictment under the English statute, 18 Geo. II., ch. 27, for stealing yarn out of a bleaching ground, the evidence was that the yarn had been spread upon the ground, but was afterwards taken up and thrown into heaps in order to be carried into the house, in which state some of it was stolen by the prisoner, Thompson, B., held that the case did not come within the statute, as there was no occasion to leave the yarn upon the ground in the state in which it was taken by the prisoner as a stage, process or progress of manufacture. Hugill's Case, 2 Russell Cr. 6th ed.

Offences Resembling Theft.

ture.

389. Every one is guilty of an indictable offence and liable Fraudulentto two years' imprisonment, when the offence is not within the ly disposing of things enlast preceding section, who, having been entrusted with, for trusted for the purpose of manufacture or for a special purpose connected manufacwith manufacture, or employed to make, any felt or hat, or to prepare or work up any woollen, linen, fustian, cotton, iron, leather, fur, hemp, flax or silk, or any such materials mixed with one another, or having been so entrusted, as aforesaid, with any other article, materials, fabric or thing, or with any tools or apparatus for manufacturing the same, fraudulently disposes of the same or any part thereof. 55-56 V., c. 29, s. 348.

breach of

390. Every one is guilty of an indictable offence and liable Criminal to seven years' imprisonment who, being a trustee of any pro- trust. perty for the use or benefit, either in whole or in part, of some other person, or for any public or charitable purpose, with intent to defraud, and in violation of his trust, converts anything of which he is trustee to any use not authorized by the trust. 55-56 V., c. 29, s. 363.

Trustee.] The expression "trustee" means a trustee on some express trust created by some deed, will or instrument in writing, or by parol, or otherwise, and includes the heir or personal representative of any such trustee, and every other person upon or to whom the duty of such trust has devolved or come, whether by appointment of a court or otherwise, and also an executor and administrator, and an official manager, assignee, liquidator or other like officer acting under any Act relating to joint stock companies, bankruptcy or insolvency, and any person who is, by the law of the Province of Quebec, an "administrateur" or "fidéicommissaire"; and the expression "trust" includes whatever is by that law an "administration" or "fidéicommis." Section 2 (39).

Any property.]-The expression "property" as here used includes every kind of real and personal property, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods. Section 2(32). It covers not only such property as was originally in the possession or under the control of the accused, but also any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise. Section 2(32). So where certain promissory notes were given to the accused for the specific purpose of paying certain other notes with the proceeds it was considered that an indictment for the misappropriation of the notes themselves would have been sufficient. R. v. Barnett (1889), 17 O.R. 649.

Consent of Attorney-General.]-No proceeding or prosecution against a trustee for a criminal breach of trust, as defined in this section, shall be commenced without the sanction of the Attorney-General. Section 596.

It is not necessary that the indictment should allege the consent of the Attorney-General. Knowlden v. R. (1864), 5 B. & S. 532; R. v. Barnett (1889), 17 Ont. R. 649. But it seems that if the consent be stated on the