(e) that it does not set out the words used where words used
are the subject of the charge; or,

(f) that it does not specify the means by which the offence
was committed; or,

(g) that it does not name or describe with precision any person, place or thing; or,

(h) that it does not in cases where the consent of any person, official or authority is required before a prosecution can be instituted, state that such consent has been obtained.

2. No provision contained in this Part as to matters which Not to reare not to render any count objectionable or insufficient shall be strict general proviconstrued as restricting or limiting in any way the general pro- sions of ss. visions of sections eight hundred and fifty-two and eight hun- 852 and 853. dred and fifty-three. 55-56 V., c. 29, ss. 613 and 616; 56 V., c. 32, s. 1.

Sufficiency of indictment.]-See note to sec. 852 and as to alleging property in one of several joint owners named "and others" and other details of description in certain cases specified, see sec. 864.

856. Any number of counts for any offences whatever may Joinder of be joined in the same indictment, and shall be distinguished counts. in the manner shown in form 63, or to the like effect: Provided Proviso. that to a count charging murder no count charging any offence other than murder shall be joined. 55-56 V., c. 29, s. 626.

Joinder of counts.]-Even before the Code, offences of the same character, though differing in degree, might be united in the same indictment, and the prisoner tried on both at the same time, and on the trial he might be convicted on the one and not on the other. Theal v. R. (1882), 7 Can. S.C.R. 397, 405.

The former rule was that if different felonies were stated in several counts of an indictment, while no objection could be made to the indictment on that account in point of law, the judge, in his discretion, might quash the indictment, or require the counsel for the prosecution to select one of the felonies and confine himself to that. That was technically termed putting the prosecutor to his election, and was done when the prisoner, by reason of two charges being inquired into at the same time, would be embarrassed in his defence, or, as it has been said, lest it should "confound" him in his defence, a matter however only of prudence and discretion, to be exercised by the judge. Per Ritchie, C.J., in Theal v. R. (1882), 7 Can. S.C.R. 397, 405. A separate trial may now be directed under sec. 857 in respect of any of the counts instead of, as formerly, putting the prosecutor to his election.

857. When there are more counts than one in an indictment Each count each count may be treated as a separate indictment. separate.

2. If the court thinks it conducive to the ends of justice to Separate do so, it may direct that the accused shall be tried upon any

trial.

Provision as one or more of such counts separately: Provided that, unless to theft. there be special reasons, no order shall be made preventing the trial at the same time of any number of distinct charges of theft, not exceeding three, alleged to have been committed within six months from the first to the last of such offences, whether against the same person or not. 55-56 V., c. 29, s. 626.

Order for trial separately.

Procedure on

Several counts. The word "may" is permissive and not imperative unless the context otherwise requires. R.S.C. 1906, ch. 1, sec. 34 (Interpretation Act).

Misjoinder of counts is no longer an objection except in the single instance named in sec. 856 that no other offence shall be joined to a charge of murder. An objection in point of form to one count would not necessarily affect the validity of the other count, and a sentence passed on two or more counts is by sec. 1005 validated "if any of such counts would have justified it."

Although the charges are cumulative as contained in the various counts, the trial, in the absence of an order for separate trial, is a single one, and by sec. 965 the former practice in regard to juries remains in effect except where expressly altered by or inconsistent with the Criminal Code. The number of peremptory challenges still depends on the quality of the most serious of the charges laid in the indictment (sec. 932), and not upon the number of offences which are included therein.

Several thefts within 6 months.]-Upon the trial at the same time and upon the same indictment of three distinct charges of theft alleged to have been committed within six months of one another by a prisoner, the jury must necessarily be placed in possession of the evidence upon all the charges before being required to find the verdict upon any of them, notwithstanding the danger that a jury might not separate and properly apply the evidence upon the different charges in dealing with them. See Re A. E. Cross (1900), 4 Can. Cr. Cas. 173 (Ont.).

858. Any order for trial upon one or more counts of an indictment separately may be made either before or in the course of the trial, and if it is made in the course of the trial the jury shall be discharged from giving a verdict on the counts on which the trial is not to proceed.

2. The counts in the indictment as to which the jury are so each count discharged shall be proceeded upon in all respects as if they had as if separate indictment. been found in a separate indictment. 55-56 V., c. 29, s. 626.

Directing separate trial of persons jointly indicted.]—Where several persons are indicted jointly, the Crown has the option of having them tried separately instead of together, and none of them can demand a separate trial as a matter of right. R. v. Weir (No. 4) (1899), 3 Can. Cr. Cas. 351 (Que.).

But if the trial of the defendants jointly instead of separately would work an injustice to any of them, the presiding judge may, on due cause being shewn, exercise his discretionary right to direct a separate trial. Ibid.

Whether or not a separate trial shall be granted on the application of a defendant is a matter in the discretion of the court. R. v. Littlechild

(1871), L.R. 6 Q.B. 293. The accused persons are not entitled as of right to severance of trial; R. V. McConohy (1874), 5 Revue Legale (Que.) 746, per Monk, J., Q.B., Montreal; but the Crown is so entitled if the case is one in which a severance is practicable; 2 Hawkins, P.C., ch. 41, sec. 8; 1 Bishop's Crim. Prac. 1034. A severance is not allowed in the trial of indictments for conspiracy or for riot. Starkie's Crim. Plead. 36. And separate trials were refused where the charge was subornation of perjury; R. v. Gravel (1877), per Ramsay, J., Court of Queen's Bench, Montreal; (not reported) referred to in Taschereau's Criminal Code of Canada, page 696.

On an indictment of three persons jointly, for publishing blasphemous libels in certain numbers of a newspaper, two of them whose names were on it as editor and publisher respectively, having already been convicted on a charge of publishing similar libels in another number of the paper, it was held that the third, whose case was that he was not connected with the paper at all, ought (on his application) to be tried separately, as his trial with the others might possibly prejudice him in his defence, especially as he desired to call them as witnesses, while it did not appear that his separate trial could at all embarrass the case for the prosecution as the prosecutor would be entitled to give any evidence in his power to fix the defendant with a joint liability for the acts of the others. R. v. Bradlaugh and others (1883), 15 Cox C.C. 217 (Coleridge, L.C.J.).

The trial judge has a discretion at the close of the case for the prosecution to submit the case of one of the defendants separately to the jury, if no evidence is to be given on his behalf; but he is not bound to do so. R. v. Hambly (1859), 16 U.C.Q.B. 617, (Robinson, C.J., McLean and Burns, JJ.). When either the defendant or the prosecution desire to call one of the accused to give evidence for or against a co-defendant, a separate trial should be asked for. Where persons are jointly indicted but are tried separately, one of them is a competent witness against the other although the defendant so called has not been tried and has not been discharged on a nolle prosequi, and although he has not pleaded to the indictment. R. v. Winsor, 10 Cox C.C. 276.

Before the Canada Evidence Act, where prisoners were indicted jointly, and all pleaded not guilty, but having severed in their challenges, the Crown elected to proceed against three of them leaving the fourth to be tried separately, it was held that he was a competent witness on behalf of the other prisoners. R. v. Jerrett (1863), 22 U.C.Q.B. 499 (Hagarty, J., and Adam Wilson, J.). But if several prisoners jointly indicted were jointly tried and had been given in charge to the jury the former rule was that one of them while in such charge could not be called as a witness for another. R. v. Payne (1872), 12 Cox C.C. 118 (court for crown cases reserved).

Now, by the Canada Evidence Act, every person charged with an offence is a competent witness for the defence whether the person so charged is charged solely, or jointly with any other person (sec. 4). That section does not make the accused person a compellable witness. It. however, makes it possible for the accused to go into the witness box if he so desires, at the same time providing that the failure of the person charged to testify shall not be made the subject of comment by the judge or by counsel for the prosecution in addressing the jury (sub-sec. 5 of sec. 4), Can. Evidence Act, R.S.C. 1906, ch. 145.

Where persons are jointly indicted and one pleads guilty and is sentenced before the trial of the other is concluded, the prisoner so sentenced is rendered not only a competent but a compellable witness for or against the other. R. v. Jackson (1885), 6 Cox C.C. 525; R. v. Gallagher (1875), 13 Cox C.C. 61.

Where the accused person becomes a witness he is not excused from answering any question upon the ground that the answer may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person; (Canada Evidence Act, sec. 5), provided, however, that if the witness objects to answer upon that ground and if but for the Canada Evidence Act or a provincial statute, as the case may be, he would upon such objection have been excused from answering the question then, although the witness shall be compelled to answer, yet the answer so given shall not be used or be receivable in evidence against him in "any criminal trial or other criminal proceeding against him, thereafter taking place" other than a prosecution for perjury in giving such evidence; Canada Evidence Act, sec. 5. See also R. v. MeLinehy (1899), 2 Can. Cr. Cas. 416.

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. Semble, the prisoner jointly charged and likely to be implicated by the statement of the other accused person, would have good ground for applying to be separately tried, in order to prevent the statement being put in even with such warning, as evidence before the jury by which he is to be tried. R. v. Martin (1905), 9 Can. Cr. Cas. 371 (Ont.).

Under the rule of the common law a person on trial for an offence was neither competent nor compellable to give evidence for or against himself, and co-defendants on trial for an offence could not be called as witnesses for or against themselves or each other. The new law only declares that such persons shall be competent witnesses, and the old law which declares that they are not compellable to give evidence remains in force. R. v. Connors (1893), 5 Can. Cr. Cas. 70, 3 Que. Q.B. 100.

The rule of the English criminal law-that no one can be compelled to criminate himself-still prevails, and therefore in criminal cases no person accused of an offence, whether indicted and tried alone or jointly with others, can be required to give evidence, although he may do so of his own accord. R. v. Connors (1893), 5 Can. Cr. Cas. 70, 3 Que. Q.B. 100.

The decision in the Connors Case is to be preferred to dicta in the Ontario case of R. v. Blais, 10 Can. Cr. Cas. 354, 358, in which it was said in effect that where two prisoners are jointly indicted but an order is made for their separate trial, the one is an admissible witness for the other and is bound to testify although he may prevent his evidence being used against himself at his subsequent trial.

Two or more persons cannot be jointly indicted for perjury. R. v. Phillips, 2 Str. 921.

Where two prisoners jointly indicted have been convicted, and a ques tion has been reserved for the consideration of the court for crown cases reserved on behalf of one of them, that court has power, if it shall be of opinion that the objection raised is valid and that it affects the conviction of both prisoners, to quash the conviction of the other prisoner as well as that of the prisoner on whose behalf the question has been reserved. Reg. v. Saunders, [1899] 1 Q.B. 490.

Where two persons are jointly indicted for murder and one pleads guilty and the other not guilty, and the trial upon the latter plea results in an acquittal, leave should be granted the other defendant to change his plea of guilty to one of not guilty, if the circumstances of the case are such that the verdict of acquittal already given in respect of the one would be absolutely inconsistent with the guilt of the other who had pleaded guilty. R. v. Herbert (1903), 6 Can. Cr. Cas, 214 (Ont.).

Particulars.

case of

859. The court may, if satisfied that it is necessary for a May be fair trial, order that the prosecutor shall furnish a particular, ordered in (a) of what is relied on in support of any charge of per- perjury, etc. jury, the making of a false oath or of a false statement, fabricating evidence or subornation, or procuring the commission of any of such offences;

(b) of any false pretenses or any fraud charged;

(c) of any attempt or conspiracy by fraudulent means;
(d) stating what passages in any book, pamphlet, newspaper
or other printing or writing are relied on in support of a
charge of selling or exhibiting an obscene book, pamphlet,
newspaper, printing or writing;

(e) further describing any document or words the subject
of a charge;

(f) further describing the means by which any offence was committed;

(g) further describing any person, place or thing referred to

in any indictment. 55-56 V., c. 29, ss. 613, 615 and 616. Ordering particulars of indictment.]—Particulars furnished under sec. 859 have not the effect of amending or extending the scope of the original indictment or charge, and the inclusion of a separate and distinct offence as a particular under a charge of conspiracy will not authorize a conviction which would otherwise not be within the scope of the indictment. R. v. Sinclair (1906), 12 Can. Cr. Cas. 20 (Sask).

When an indictment for defamatory libel consisting of words harmless in themselves, but importing by innuendo an imputation of dishonourable conduct contains in addition to the enunciation of the incriminating words an allegation of the sense in which they should be understood the Crown will be allowed to prove extrinsic circumstances which impute this meaning to them. It is not necessary to enumerate these circumstances in the indictment, and the accused is sufficiently guarded against surprise by the right that he has to demand particulars. Failing to do so, he will not be allowed to object to the admission of the evidence above mentioned and the question of its legality is not one which can be reserved for the opinion of the Court of Appeal. R. v. Molleur (No. 1), 12 Can. Cr. Cas. 8. The ordering of particulars to be furnished to the accused by the Crown in respect of an indictment for theft is a matter of judicial discretion. R. v. Stevens, 8 Can. Cr. Cas. 387.

Where the Crown is unable to specify in detail the several sums alleged to have been received and misappropriated by a Government employee and the prosecution is laid for theft of a sum aggregating the deficit appearing upon the employee's books and returns, particulars should be ordered against the Crown only with regard to the direct proof of details so as not to exclude general evidence based upon the balances returned from time to time. With the consent of the Crown, an order may be made for the delivery of particulars shewing what statements of account made by the accused are proposed to be put in evidence for the prosecution, and what sums are alleged to have been wrongfully omitted therefrom or wrongfully inserted therein. The King v. Stevens (1904), 8 Can. Cr. Cas. 387 (N.S.).