prosecutor, or any witness for the prosecution, by such offence, although the person indicted is not convicted thereof, if the jury declares, as it may do, or if, in case the offender is tried without a jury, it is proved to the satisfaction of the court or tribunal by whom he is tried, that such property belongs to such prosecutor or witness, and that he was unlawfully deprived of it by such offence. And clause 3 provides that, if it appears, before any award or order is made, that any valuable security has been bona fide paid or discharged by any person liable to the payment thereof, or being a negotiable instrument, has been bona fide taken or received by transfer or delivery, by any person, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had, by any indictable offence been stolen, or if it appears that the property stolen has been transferred to an innocent purchaser for value who has acquired a lawful title thereto, the court or tribunal shall not award or order the restitution of such security or property.

This third clause makes an exception in favor of an innocent third party who has purchased, for value, the stolen property, and who has acquired a lawful title thereto, that is, a lawful title according to the law as to civil rights, of the province where the offence has been committed.

For instance, by the law of the Province of Quebec, "If a thing lost or stolen be bought in good faith in a fair or market or at a public sale, or from a trader dealing in similar articles, the owner cannot reclaim it, without re-imbursing to the purchaser the price he has paid for it." and "If the thing lost or stolen be sold under the authority of law, it cannot be reclaimed." (1)

The power to award restitution of property under the above Article, 838, extends to the PROCEEDS of the property as well as the property itself. Therefore, if the property stolen has been sold before the conviction, an application may be made to the court, before which the criminal is convicted, for the restitution of the proceeds, which, if they are in the hands of the criminal or of an agent who holds them for him, should be granted. (2)

(1) See Civ. Code L. C., Arts. 1489, 1490.

(2) R. v. Justices Cent. Crim. Ct., 17 Q. B. D. 598; 55 L. J. Q. B., 183; Aff. 18 Q. B. D., 314: 56 L. J. M. C. 25.

Where, after the trial and conviction of a prisoner for larceny, the judges who presided at the trial ordered property found in his possession, when arrested, to be disposed of in a particular manner, such property not being part of that stolen nor connected therewith, it was held that the order was bad, as the judges had no jurisdiction to make it. (1)

Clause 4 of the above article, 838, provides that nothing in that article contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent entrusted with the possession of goods or documents of title to goods, for any indictable offence under sections 320 or 363 of the Code.

768. Persons Jointly Accused.-If one of two or more prisoners charged with the same offence demands a trial by jury, and the other or others consent to be tried by the judge without a jury, the judge, in his discretion, may remand all the prisoners to gaol to await trial by a jury.

769. Election After Refusal to be Tried by Judge.If under Part LV. (2) or Part LVI. (3) any person has been asked to elect whether he would be tried by the magistrate or justices of the peace, as the case may, or before a jury, and he has elected to be tried before a jury, and if such election is stated in the warrant of committal for trial, the sheriff and judge shall not be required to take the proceedings directed by this part.

2. But if such person, after his said election to be tried by a jury, has been committed for trial, he may, at any time before the regular term or sittings of the court at which trial by jury would take place, notify the sheriff that he desires to re-elect; whereupon it shall be the duty of the sheriff to proceed as directed by section 766, and, thereafter, the person so committed shall be pro

(1) R. v. City of London, E. B. & E. 509; 27 L. J. M. C. 231, R. v. Pierce, Bell, 235.

(2) Part LV. (comprising Articles 782-808) relates to the Summary Trial of Indictable Offences. See post.

(3) Part LVI. (comprising Articles 809–831) relates to the trial of Juvenile Offenders for Indictable Offences. See post.

ceeded against as if his said election in the first instance had not been made.

770. Continuance of Proceedings Before Another Judge.-Proceedings under this part of the Code commenced before any judge may, where such judge is for any reason unable to act, be continued before any other judge competent to try prisoners under this part in the same judicial district, and such last mentioned judge shall have the same powers with respect to such proceedings, as if such proceedings had been commenced before him, and may cause such portion of the proceedings to be repeated before him as he shall deem necessary.

771. Election After Committal Under Part LV. or LVI.-If, on the trial, under Part LV. or Part LVI. of the Code, of any person charged with any offence triable under the provisions of this part, the magistrate or justices of the peace decide not to try the same summarily, but commit such person for trial, such person may, afterwards, with his own consent, be tried under the provisions of this part of the Code.

772. Trial of Accused.-If the prisoner, upon being so arraigned and consenting as aforesaid, pleads not guilty, the judge shall appoint an early day, or the same day, for his trial, and the county attorney or clerk of the peace shall subpoena the witnesses named in the depositions, or such of them and such other witnesses as he thinks requisite to prove the charge, to attend at the time appointed for such trial, and the judge may proceed to try such prisoner, and, if he be found guilty, sentence shall be passed as herein before mentioned; (I) but if he be found not guilty the judge shall immediately discharge him from custody, so far as respects the charge in question.

773. Trial of Offences Other Than Those for Which Accused is Committed.-The county attorney or clerk of the peace or other prosecuting officer may, with the

(1) See Art. 767 at p. 269, ante. See pp. 269-270, ante, as to costs, also p. 271, ante, as to COMPENSATION TO BONA FIDE PURCHASER OF STOLEN PROPERTY, and pp. 271-272, ante, as to RESTITUTION OF STOLEN PROPERTY.

consent of the judge, prefer against the prisoner a charge or charges for any offence or offences, for which he may be tried under the provisions of this part, other than the charges for which he has been committed to gaol for trial, although such charge or charges do not appear, or are not mentioned, in the depositions upon which the prisoner was so committed.

It seems, however, that when other charges than those for which the accused has been committed for trial are preferred against him, his consent to a speedy trial of such other charges must be shown. Thus, in a case where some prisoners were charged with having defrauded the prosecutor by means of the three-card monte game, they consented to be tried summarlly. When they were brought up for trial, the Crown attorney applied for and obtained leave to substitute a charge of combining to obtain money by false pretences; but the prisoners objected. The trial was then proceeded with, without the consent of the prisoners to be tried summarily for this substituted offence being obtained. And, upon error brought, it was held that the consent of the prisoners to be summarily tried on the substituted charge should distinctly appear, and that, by reason of its absence, the conviction was bad. (1)

774. Powers of Judge.-The judge shall, in any case tried before him, have the same power as to acquitting or convicting, or convicting of any other offence than that charged, as a jury would have in case the prisoner were tried at a sitting of any court mentioned in this part, and may render any verdict which may be rendered by a jury upon a trial at a sitting of any such

court.

By Article 711 of the Code, (which, together with Articles 712 and 713, post, will, under the terms of the above Article 774, apply to "Speedy trials of Indictable Offences"), it is provided that when the complete commission of the offence charged is not proved, but the evidence establishes an attempt to commit the offence, the accused may be convicted of such attempt. And Article 712 provides that when an attempt to commit an offence is charged, but the evidence establishes the commission of the full offence, the accused shall not be acquitted, but may be convicted

of the attempt, or the court may, in its discretion, direct such person to be indicted for the complete offence; but it also provides that after a conviction for such attempt the accused shall not be liable to be tried again for the offence which he was charged with attempting to commit.

Artidle 713 of the Code provides that if the commission of the offence charged against the accused includes the commission of any other offence the person accused may be convicted of any offence so included which is proved, although the whole offence charged is not proved, or he may be convicted of an attempt to commit any offence so included.

This article follows the common law rule (now considerably extended by the abolition of the distinction between felonies and misdemeanors), under which it is not necessary to prove, to the full extent laid, the offence charged in the indictment, provided the facts actually proved constitute an offence punishable by law, and for which the defendant may by law be convicted on that indictment. (1)

Under this rule, if, upon a charge of burglary and stealing goods, there be no burglary but only stealing proved, or, if upon an indictment for robbery there be proof of the stealing of the property but not that it was taken from the person by violence or putting in fear, the prisoner may be convicted of the simple theft. (2) Indeed, upon an indictment for burglary and stealing, the prisoner may be conviced either of burglary,, of entering a dwelling-house in the night with intent to commit an indictable offence therein, of housebreaking, of stealing in a dwelling-house to the amount of $25 (if the property stolen be laid in the indictment to be of that value), or simply of theft, according to the facts proved. (3)

Upon a charge of assaulting and unlawfully wounding and illtreating the prosecutor, and thereby occasioning him actual bodily

(1) R. v. Hollingberry, 4 B. & C. 330; R. v. Hunt., 2 Camp. 583; R. v. Williams, 2 Camp. 246.

(2) 2 Hale, 203.

(3) R. v. Compton, 3 C. & P. 418; R. v. Bullock, 1 Moo. C. C. 423; R. v. Brookes, C. & Mar. 543.