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prison or place of confinement for any term less than two years. (16. s. 5.)
On BAILIFFS, &c., OF Division COURTS.—“If any officer or bailiff, or his deputy or assistant, be assaulted while in the execution of his duty, or if any rescue be made or attempted to be made of any property seized under a process of the court, the person so offending shall be liable to a fine not exceeding twenty dollars, to be recovered by order of the court, or before a Justice of the Peace of the county or city, and to be imprisoned for any term not exceeding three months; and the bailiff of the court, or any peace officer, may in any such case take the offender into custody (with or without warrant) and bring him before such court or justice accordingly." (Con. Stat. U. C. c. 19, s. 18+.)
The following is the form of conviction given in sec. 189 :
Be it remembered, That on this day of in the year of our Lord A. B. is convicted before (me, one) of her Majesty's Justices of the Peace for the county of acting under the Division Courts' Act, of having (note the offence); and I (or we) the said Justice (or Justices) do adjudge the said A. B. to forfeit and pay for the same the sum of
(or to be committed to the common gaol of the county of for the space of Given under (my) hand and seal, the day and year aforesaid.
J. S. [L. s.]
ATTEMPTS TO COMMIT OFFENCES.
At common law, every attempt to commit a felony or misdemeanor is in itself a misdemeanor. So long as the act rests in bare intention, it is not punishable; but if that intention be unequivocally manifested by any overt act, then it becomes an offence cognizable by the law. And the mere soliciting another to commit an offence is a sufficiently overt act to constitute such an attempt, though such solicitation may not have actually been acted upon. But many attempts to commit offences are offences by statute. Most of them would be misdemeanors at common law, but by statute either severe punishments are attached to them, or they are even made independent felonies.* (Roscoe's Crim. Evid. 278.)
* The justice may summon, with or without information in writing, the party complained of, .hear and determine the matter of complaint, convict on proof, adjudge payment of penalties, and proceed to recover the same. (See Ib. s. 188.) * The remarks of Chief Baron Pollock, on an attempt at arson, are so applicable to the general subject at present under consideration, that we quote them in full:-" It is clear," said he, “that every act committed by a person with a view of committing the felonies therein mentioned, is not within the statute; as, for instance, buying a box of lucifer matches with intent to set fire to a house. The act must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner under such circumstances that he has the power of carrying his intention into execution. If two persons were to agree to commit a felony, and one of them were, in the execution of his share in the transaction, to purchase an instrument for the purpose, that would be a sufficient overt act in an indictment for conspiracy, but not in an indictment of this nature.” And on an indictment for burglary and stealing certain goods, which were shown not to have been in the house at the time of the entry, Chief Justice Cockburn held that the prisoners could not be convicted of attempting to steal those goods: “I think," said he, “ attempting to commit a felony is clearly distinguishable from intending to commit it. “An attempt must be to do that which, if successful, would amount to the felony charged.”
With regard to attempts at felony in general, Con. Stat. C. c. 99, s. 68, enacts as follows:
“If on the trial of any person charged with any felony or misdemeanor, it appears to 'the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury may return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same; and thereupon such person shall be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the indictment.”+
ATTORNEY. In summary proceedings, the complainant and defendant are both entitled to conduct their case, and have all witnesses examined and cross-examined by themselves, or by their counsel or attorney; and the court is an open one. (Con. Stat. C. c. 103, ss. 29, 30. See ante p. 81.). In indictable offences the statutes do not anywhere give the accused the same privilege; and it is questionable whether he can claim the assistance of counsel or attorney as a right, although this is usually allowed by the magistrate. Neither, in indictable offences, is the place where the examination is taken to be deemed an open court. (Con. Stat. C. c. 102, s. 36. See ante p. 39.) It is entirely in the discretion of the justice to prohibit any person being present, if it appear that the ends of justice will be best answered by such a
+ If this section were explained to the jury upon the trial of prisoners charged with abusing female children, or other offences, where it is difficult to satisfy the jury that the offence was complete, many criminals who are very improperly acquitted would be convicted.
BAIL. Bail (from the French bailler, to deliver) signifies the delivery of a man out of custody, upon the undertaking of one or more persons for him that he shall appear at a day limited, to answer and be justified by the law. It is a delivery or bailment of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance, he being supposed to continue in their friendly custody instead of going to prison.
The fullest instructions with regard to bail are given in Con. Stat. C. c. 102, ss. 48, 52, 56, 63, 44. (See ante, pp. 43, 45, 47, 63.)
“Any person who, being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in this province or elsewhere; and every person who counsels, aids, or abets such offender, shall respectively be guilty of felony; and shall be imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Consol. Stat. C. c. 91, s. 29.)
“Nothing in the last section contained shall extend,
Firstly.—To any second marriage contracted out of this province by any other than a subject of Her Majesty resident in this province, and leaving the same with intent to commit the offence; or
“ Secondly.—To any person marrying a second time, whose husband or wife had been continually absent from such person for the
space of seven years then last past, and was not known by such person to be living within that time; or
Thirdly. To any person who, at the time of such second marriage, had been divorced from the bond of the first marriage; or
“ Fourthly.To any person whose former marriage had been declared void by the sentence of any court of competent jurisdiction.” (16. s. 30.)
It should be remembered that neither the first and lawful wife, nor the first and lawful husband, are competent witnesses in proof of the marriage. If any person marry a woman within the prohibited degrees of consanguinity or affinity, his first wife being alive, it is nevertheless bigamy.
The first wife is not a competent witness for or against the prisoner, but the second wife is.
BRIBERY. AT ELECTIONS, &c.-By Candidates. The following persons shall be deemed guilty of bribery, and shall be punishable accordingly:
1. “Every person who shall, directly or indirectly, by himself or by any other person on his behalf, give, lend, or agree to give or lend, or shall offer, promise, or promise to procure, or endeavour to procure, any money or valuable consideration to or for any voter, or to or for any person on behalf of any voter, or to or for any other person, in order to induce any voter to vote or refrain from voting, or shall corruptly do any such act as aforesaid, on account of such voter having voted or refrained from voting at any election;
2. “Every person who shall, directly or indirectly, by himself or by any other person on his behalf, give or procure, or agree to give or procure, or offer, promise, or promise to procure, or to endeavour to procure any office, place or employment to or for any voter, or to or for any person on behalf of any voter, or to or for any other person, in order to induce such voter to vote or refrain from voting, or shall corruptly do any such act as aforesaid, on account of any voter having voted or refrained from voting at any election;
3. “Every person who shall, directly or indirectly, by himself, or by any other person on his behalf, make any gift, loan, offer, promise, procurement, or agreement as aforesaid, to or for any person, in order to induce such person to procure, or endeavour to procure, the return of any person to serve in Parliament, or the vote of any voter at any election;
4. “Every person who shall, upon or in consequence of any such gift, loan, offer, promise, procurement or agreement, procure or engage, promise or endeavour to procure the return of any person to serve in Parliament, or the vote of any voter at any election ;
5. “Every person who shall advance or pay, or cause to be paid, any money to or to the use of any other person, with the intent that such money, or any part thereof, shall be expended in bribery at any election, or who shall knowingly pay or cause to be paid any money to any person in discharge or re-payment of any money wholly or in part expended in bribery at any election;
“ And any person so offending shall be guilty of a misdemeanor, and shall also be liable to forfeit the sum of two hundred dollars to any person who shall sue for the same, with full costs of suit : Provided always, that the actual personal expenses of any candidate, his expenses for actual professional services performed, and bona fide payment for the fair cost of printing and advertising, shall be held to be expenses lawfully incurred, and the payment thereof shall not be a contravention of this act.” (23 Vic. c. 17, s. 1.)
By Voter.-" The following persons shall also be deemed guilty of bribery, and shall be punishable accordingly:
1. “Every voter who shall, before or during any election, directly or indirectly, by himself or by any other person on his behalf, receive, agree, or contract for any money, gift, loan