OFFENCES CHAPTER III. PRINCIPALLY AFFECTING THE GOVERNMENT, THE Coinage Offences.-These offences are now regulated by the 32 & 33 Vic., c. 18. A prisoner was indicted under the analogous English section of s. 24 of this Act, for "knowingly and without lawful excuse feloniously" having in his possession a die impressed with the resemblance of the sides of a sovereign. The prisoner ordered dies impressed with the resemblance of the sides of a sovereign of the maker. The maker gave information to the police, who communicated with the authorities of the mint. The latter, through the police, gave the maker permission to give them to the prisoner. He did so, and they were found in the prisoner's possession:-Held, first, that it was necessary in the indictment to negative lawful authority or excuse, notwithstanding that the burden of proof lay upon the accused; secondly, that the word excuse" includes "authority," and, therefore, the indictment was good; thirdly, that there was no evidence to go to the jury of lawful authority or excuse, for the prisoner was only allowed to carry out his original intention, whatever that might have been, and no authority was given him to have the dies in his possession; fourthly, that the prisoner, being knowingly in possession of the dies, had sufficient guilty knowledge to constitute felony, whatever his intention as to their use might be, for there was nothing in the act to make the intent any part of the offence. (a) The words as to the (a) Reg. v. Harvey, L. R. 1 C. C. R. 284. 46 proof being on the accused, only alter the rules of evidence, and not the rule as to the description of the offence in the indictment. (a) The 32 & 33 Vic., c. 29, s. 26, applies to a trial on an indictment under s. 12 of the Coinage Act for feloniously having in possession counterfeit coin after a previous conviction for uttering counterfeit coin; and, therefore, the previous conviction cannot be proved until the jury find the prisoner guilty of the subsequent offence. (b) Where coin was counterfeited to resemble smooth worn shillings then in circulation, without any impression whatever upon them, it was held to be a sufficient counterfeiting. (c) By the old law, the counterfeit coin must have appeared to have that degree of resemblance to the real coin that it would likely be received as the coin for which it was intended to pass by persons using the caution customary in taking money; and the coin must have been in a complete and perfect state, ready for circulation. (d) Now, however, by the 32 & 33 Vic., c. 18, s. 32, the offence shall be deemed complete although the coin was not in a fit state to be uttered, or the counterfeiting thereof was not finished or perfected. By s. 30 any credible witness may prove the coin to be false or counterfeit. (e) The Imp. Act 16 & 17 Vic., c. 48, is not in force here. (f) But the Imp. Stat. 16 & 17 Vic., c. 102, respecting gold, silver, and copper coin, applies to this country. (h) The defendants were indicted under s. 18, of the Con. Stat. Can. c. 90, for having in their custody and posses (a) Ib. 288, per Bovill, C. J. (b) Reg. v. Martin, L. R. 1 C. C. R. 214, 39 L. J. (M. C.) 31; Reg. v. Goodwin, 10 Cox, 534 overruled. (c) Reg v. Wilson Leach, 285; Reg. v. Welsh, ib. 364; Arch. Cr. Pldg. 745. (d) Reg. v. Varley, 2 W. Bl. 682; Reg. v. Harris. 1 Leach, 165; Arch. Or. Pldg. 745. (e) See also s. 31. f) See 32 & 33 Vic., c. 18, s. 36. (g) Warner v. Tyson, 2 L. C. J. 105. sion counterfeit foreign coin, and dies and materials used for making the same. The recital in the indictment alleged "that in a certain foreign state, to wit, the United States of America, there was before and at the time of the committing of the offence hereinafter mentioned, a certain silver coin, commonly called and known as half dollar, struck under the authority of the Government of the said foreign state, and then actually current in the country of the said foreign state, although not current by law in the Province of Ontario." And in the body of the indictment the coin was described as follows:-" Each piece thereof resembling a piece of the current coin of the said United States of America, made and coined under the authority of the said United States, of the value therein of fifty cents each, and called therein half a dollar, and then actually current in the said United States of America, and also five dies, etc., used, constructed, devised, and adapted and designed for the purpose of counterfeiting and imitating the current silver coin of the United States of America, made and coined under the authority of the Government of the said foreign state, and then actually current in the country of the said foreign state, of the value, etc." The defendants demurred to the indictment on the ground that the offence created by the statute under which the indictment was framed, is the having in possession coin counterfeited to resemble, or dies, etc., for the purpose of imitating any foreign gold or silver coin described in the 16th section; but, in this case, the coin was not alleged to have been either gold or silver, nor was it alleged that it was not current in this Province. The Court held it quite clear that the offence created by the Statute is the having in possession counterfeit coin resembling some of the gold or silver coins referred to in the 16th section of the Act; . that the recital did not on examination help the subsequent part of the indictment; and that to bring the offence within the Statute, it was necessary to allege that the coin was not current by law in this Province, and the indictment was consequently bad. But as to the dies, it was held that this latter allegation was not essential, as the intention of the Legislature, in using these words in the Statute, was to indicate that the having possession of such dies, etc., would be an offence, whether the foreign coins they were designed to imitate were coins current or not in the Province. The indictment was quashed for insufficiency. (a) It is conceived this case will apply to an indictment under s. 22 of the present Act, and that such indictment must contain allegations shewing the coin to be that described in sections 18, 19, 20, and 21 of the Act. Foreign Enlistment Offences.-The 33 & 34 Vic., c. 90, is now the governing enactment on this subject. It extends to the whole Dominion of Canada, including the adjacent territorial waters. (b) This statute is highly penal in its character. (c) It, however, strengthens the hands of the Government, and enables it to fulfil more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty's subjects towards belligerent foreign States with whom Her Majesty is at peace. It should be so construed as, on the one hand, to give, if possible, due and full execution to its main purpose, and, on the other hand, not to strain its provisions, so as to fetter the private commerce of Her Majesty's subjects beyond the express limits which the statute, for (a) Reg. v. Tierney, 29 U. C. Q. B. 181. (b) See 8. 2. (c) The Gauntlet, L. R. 3 Ad. & Ec. 388, per Sir R. Phillimore. the general interests of the public weal, has prescribed. (a) The 59 Geo. 3, c. 69, was in force here until the passing of the former statute, and the local enactment, 28 Vic., c. 2, was passed in aid of it, though any provisions of the local statute in conflict with the Imperial Act would not prevail against the latter. (b) The local enactment will now be void in so far as it is repugnant to the Imp. 33 & 34 Vic., c. 90, but no farther. (c) The decisions under the old Act are produced here, although the writer is not prepared to pronounce that they are all applicable to the present statute. A warrant of commitment, issued under the 59 Geo. 3, c. 69, is sufficiently certain if it charges the prisoner with attempting or endeavouring to hire, retain, engage, or prevail on to enlist as a soldier, in the land or sea service, for, or under, or in aid of Abraham Lincoln, President of the United States of America, and in the service of the Federal States of America. The foregoing is also a sufficient description of the foreign power in the warrant; the power being one whose existence the Court is bound to notice judicially, and the words relating to the Federal States being rejected as surplusage. In such a warrant, it is not necessary to allege that the accused is a British subject, the law presuming him to be such until the contrary appears. It is also unnecessary in the warrant to negative a license from Her Majesty the Queen to do the act or acts concerning which the complaint is laid. (d) A direction to the gaoler to keep the prisoner in the common gaol, "until he shall thence be discharged by due course of law, or good and sufficient sureties be received for his appearance," is sufficient-the latter (a) The International L. R. 3 Ad. & Ec. 332, per Sir R. Phillimore. (b) Rey. v. Sherman, 17 U. C. C. P 66; Reg. v. Schram, 14 U. C. C. P. 318. (c) See s. 2; see also Imp. Stat. 28 & 29 Vic. c. 63, s. 2. (d) Re John Smith, 10 Ư. C. L. J. 247. H |