A Treatise on Criminal Law as Applicable to the Dominion of Canada

any place, in which a party may be lawfully confined is a prison within this statute, for it extends to a prison in law as well as a prison in deed. (a) There must be an actual breaking of the prison and not such force and violence only as may be implied by construction of law. (b) The breaking need not be intentional (c); but it must not be from the necessity of an inevitable accident happening without the contrivance or fault of the prisoner. (d) The Prison Act 1865, 28 & 29 Vic. c. 126, s. 37, which prohibits the conveyance into any prison, with intent to facilitate the escape of a prisoner, of certain articles or any other article or thing," includes a crowbar under the latter words. (e)

Parliamentary Offences.-Members of either House of Parliament are not criminally liable for any statements made in the House, nor for a conspiracy to make such statements. (f) An order for an attachment against a member of parliament is illegal and may be set aside though no proceedings have been taken upon it, by the issue of the process or otherwise. (g) So the writ may be set aside before the defendant is actually arrested upon it. (h) A member of parliament is not liable for the penalty imposed by the Con. Stat. Can. c. 3, s. 7, for sitting and voting without having the property qualification required by law. The penalty is only exigible from a person whose incapacity to become a member is decreed by s. 5. and whose election is radically null and void. (i) Members of provincial parliaments are priviliged from arrest in civil cases for a period of forty days, after the proro

(a) Russ. Cr. 592.

(b) Ib. 594.

(d) Russ. Cr. 594.

(e) Reg. v. Payne, L. R. 1 C. C. R. 27; 35 L. J. (M. C.) 170.

(f) Ex parte Wason, L. R. 4 Q. B. 573.

(g) Reg. v. Gamble, 1 U. C. P. R. 222.

(h) Ib.

(i) Morasse v. Guevremont, 5 L. C. J. 112.

gation or dissolution of parliament and for the same period before the next appointed meeting. (a) They have the same privileges in this respect as members of parlia ment in England (b) But this privilege of exemption from arrest only extends to civil matters. In cases of treason, felony, refusing to give surety of the peace, all indictable offences, forcible entries or detainers, libels, printing and publishing seditious libels, process to enforce habeas corpus contempts for not obeying civil process if that contempt is in its nature or its incidents criminal, and generally in all criminal matters there is no privilige of exemption from arrest. (c) A member of a provincial parliament held at Quebec, the place where he is resident, arrested eighteen days after its dissolution for "treasonable practices", and, during his confinement, elected a member of a new parliament is not entitled to privilege from such arrest by reason of his election to either parliament. (d) On motion for a writ of habeas corpus to produce the body of a person claiming exemption from arrest on the ground of the privilege of parliament, two papers purporting to be two indentures of election are not sufficient evidence of his being such member, to warrant the granting of the writ. (e)

After conviction for breach of privilege, in case of libel, the court will not notice any defect in the warrant of commitment. (f)

A prisoner committed by the House of Assembly to the Common Gaol " during pleasure " is discharged by prorogation. (g)

(a) Wadsworth v. Boulton, 2 Chr. Rep. 76; Rennie v. Rankin, 1 Allen, 620; Reg. v. Gamble, 9 U. C. Q. B. 546.

(b) Reg. v. Gamble, supra; but see Cuvillier v. Munro, 4 L. C. R. 146.

(e) Ib.

(f) Re Tracy, S. L. C. A. 478.

(g) Ex parte Monk, S. L. C. A. 120.

Courts of law cannot inquire into the cause of commitment by either House of Parliament, nor bail, nor discharge a person who is in execution by the judgment of any other tribunal; yet if the commitment should not profess to be for a contempt, but is evidently arbitrary, unjust and contrary to every principle of positive law or natural justice, the court is not only compecent but bound to discharge the party. (a)

The Courts have power to issue writs of Habeas Corpus in matters of commitment by either House of Parliament, and the commitment may be examined upon the return to the writ. (b; The Statutes 12 Vic. c. 27 and 14 & 15 Vic. c. 1, invest the House of Assembly with power to punish by imprisonment a deputy-returningofficer for malfeasance and breach of privilege. (c)

CHAPTER IV.

OFFENCES AGAINST THE PERSON.

Murder.-Where a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the Queen's peace, with malice aforethought, either express, or implied by law, the offence is murder. (a)

Malice is a necessary ingredient in, and the chief characteristic of, the crime of murder. (b) The legal sense of the word malice as applied to the crime of murder is somewhat different from the popular acceptation of the term. When an act is attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit, a heart regardless of social duty, and deliberately bent upon mischief, the act is malicious in the legal sense. (c) In fact, malice, in its legal sense, means a wrongful act done intentionally, without just cause or excuse. (d) In general any formed design of doing inischief may be called malice, and, therefore, not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also in many other cases, such killing as is accompanied with circumstances that shew the heart to be perversely wicked is adjudged of malice prepense and consequently murder. (e) Malice is either express or implied. Express malice is when one person kills another with a sedate, deliberate

(a) Arch. Cr. Pldg. 623.

(b)ee Re Anderson, 11 U. C. C. P. 62, per Richards, C. J.

(d) M'Intyre v. M'Bean, 13 U. C. Q. B. 542, per Robinson, C. J.; Poitevin v. Morgan, 10 L. C. J., 97, per Badgley, J.

(e) Russ. Cr. 667.

mind and formed design, and malice is implied by law from any deliberate cruel act committed by one person against another, however sudden. (a)

On every charge of murder, where the act of killing is proved against the prisoner, the law presumes the fact to have been founded in malice, until the contrary appears. (b) The onus of rebutting this presumption, by extracting facts on cross-examination or by direct testimony, lies on the prisoner. (c)

Persons present at a homicide may be involved in different degrees of guilt; for where knowledge of some fact is necessary to make a killing murder, those of a party who have the knowledge will be guilty of murder, and those who have it not of manslaughter only. A felonious participation in the act without a felonious participation in the design will not make murder. Thus if A. assault B. of malice, and they fight, and A.'s servant come in aid of his master, and B. he killed, A. is guilty of murder, but the servant, if he knew not of A.'s malice. is guilty of manslaughter only. (d)

The person committing the crime must be a free agent, and not subject to actual force at the time the act is done. Thus if A. by force take the arm of B., in which is a weapon, and therewith kill C., A is guilty of murder but not B. But a moral force, as a threat of duress or imprisonment or even an assault to the peril of life is no legal excuse. (e) But if A. commit the act through an irresponsible agent, as an idiot or lunatic, A. is guilty of murder as a principal. (ƒ)

Murder may be committed upon any person within

(a) Russ. Cr. 667.

(b) Reg. v. M'Dowell, 25 U. C. Q. B. 112, per Draper, C. J.; Reg. v. Atkinson, 17 U. C. C. P. 304. per J. Wilson, J.

(d) Ib.; Russ. Cr. 669.

(e) Ib.

(f) Ib.

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