charged, or corpus delicti complained of, the prosecutor cannot be put to his election, nor the indictment be quashed, though it contain several counts, all alleging the commission of the offence in different ways; in other words, it is not objectionable to vary the statement in the indictment, in order to meet the evidence. (a)

The indictment contained two counts-the first, embezzlement as servant, the second for larceny, as bailee. At the close of the case for the prosecution, it was objected that the indictment was bad, for misjoinder of counts, and that the Court had no power to allow the counsel for the prosecution to elect on which count he would proceed. The Court overruled the objection, and, the counsel for the prosecution having elected to proceed upon the second count, the prisoner was convicted:Held, that the conviction must be affirmed. (b)

There is no objection to the joinder of counts for embezzlement and larceny as a servant, and on the latter count there may be a conviction for larceny as a bailee. (c)

It is not a misjoinder of counts to add statements of a previous conviction for misdemeanor, as counts to a count for larceny, under the 32. & 33 Vic., c. 21, s. 18; and the objection, at all events, could only be raised by demurrer, or motion to quash the indictment, pursuant to the 32 & 33 Vic. c. 29, s. 32. (d)

If the statements of the previous convictions are not treated as counts, but merely as statements made for the purpose of founding an enquiry to be entered into, only in the event of the prisoner being found guilty of the offence charged in the indictment; yet if they were not enquired into at all, and the jury was not charged with

(a) See Reg. v. School, 26 U. C. Q. B. 214; Arch. Cr. Pldg. 72.

(b) Reg. v. Holman, 9 U. C. L. J. 223; L. & C. 177; see also Reg. v. Ferguson, 1 U. C. L. J. 55; Dears. C. C. 427.

(c) 2 Russ. Cr. 247 n.

(d) Reg. v. Mason, 32 U. C. Q. B. 246; Reg. v. Ferguson, 1 Dears. 427.

them, so that the prisoner was not prejudiced by their insertion, and if, after a conviction on the count for larceny, a demurrer to these statements, as insufficient in law, is decided in favour of the prisoner, a court of error will not re-open the matter, on the suggestion that there is a misjoinder of counts. (a)

If there be an exception or proviso in the enacting clause of a Statute, it must be expressly negatived in the indictment. (b)

The rule is, that, when the enacting clause of a Statute constitutes an act to be an offence, under certain circumstances, and not under others, then, as the act is an offence only sub modo, the particular exceptions must be expressly specified, and negatived; but when a Statute constitutes an act to be an offence generally, and, in a subsequent clause, makes a proviso or exception in favour of particular cases, or in the same clause, but not in the enacting part of it, by words of reference, or otherwise, then the proviso is matter of defence or excuse, which need not be noticed in an indictment. (c)

The reason why the exceptions in the enacting clause should be negatived is because the party cannot plead to such an indictment, and can have no remedy against it, but from an exception to some defect appearing on the face of it. (d)

The statement of the time when an offence is committed was never considered material, so long as there was proof of the offence occurring before the preferring of the indictment. (e)

The 32 & 33 Vic., c. 29, s. 23, would seem to render an

(a) Reg. v. Mason, 32 U. C. Q. B. 246.

(b) Reg. v. White, 21 U. C. C. P. 354.

(c) Ib. 355, per Galt, J.

(d) Ib. 356, per Galt, J., and see Arch. Cr. Pldg. 62; Spieres v. Parker, 1 T. R. 141; R. v. Earnshaw, 15 Ea. 456; Rex v. Hall, 1 T. R. 320; Steel v. Smith, 1 B. & Ald. 94; Dwarris, 515-6.

(e) Reg. v. Hamilton, 16 U. C. C. P. 355, per Richards, C. J.

averment of time unnecessary, in any case where time is not of the essence of the offence. (a)

It was formerly necessary that an indictment for homicide should set forth the manner of the death, and the means by which it was effected. (b)

But it is not now necessary that an indictment for murder or manslaughter should set forth the means by which the death of the deceased was caused. When a Statute makes the means of effecting an act material ingredients in the offence, it is necessary that the means should be set out in the indictment; for an indictment must bring the fact of making an offence within all the material words of the Statute, and all necessary ingredients in the offence must be alleged. (c)

Where a Statute provides that "whosoever shall maliciously, by any means, manifesting a design to cause grievous bodily harm," etc., attempt to cause grievous bodily harm to any person, the means should be set out with such particularity as necessarily to manifest the design which constitutes the felony, or there should be an allegation following the words of the Act. (d)

It would seem, therefore, that in an indictment, on the 32 & 33 Vic., c. 20, s. 20, for attempting, "by any means calculated to choke," etc., to render any person insensible, with intent, etc., should set forth the means, for they are material as to the offence. But it would, no doubt, be sufficient to follow the forms in the sched. to the 32 & 33 Vic., c. 29, in any case to which they are applicable. It is not necessary that the proof should, in all cases, tally with the mode of death laid in the indictment. Where an indictment charged the prisoner with felo

(a) See Mulcahy v. Reg. L. R. 3 E. & I. App. 322, per Willes, J. (b) See Reg. v. Shea, 3 Allen, 130-1, per Carter, C. J.

(e) See Reg. v. Magee, 2 Allen, 16 per Carter, C. J.; Arch. Cr. Pldg. 60-3. (d) Reg. v. Magee, supra.

niously striking the deceased on the head with a handspike, giving him thereby a mortal wound and fracture, of which he died: it was proved that the death was caused by the blow on the head with the handspike, but that there was no external wound or fracture, the immediate cause of death being concussion of the brain, produced by the blow:-Held, that it is sufficient if the mode of death is substantially proved as laid, and it is not necessary that all the intermediate steps between the primary cause and the ultimate result should be also alleged and proved. (a)

The venue of legal proceedings is intended to shew where the principal facts and circumstances in the proceedings occurred, or were alleged to have occurred, with a view to shew that the Court and jury have jurisdiction in the matter. It was formerly necessary to state in the indictment the venue expressly, or, by reference to the venue in the margin, to every material allegation. (b)

But now, by the 32 & 33 Vic., c. 29, s. 15, it is not necessary to state any venue in the body of any indictment. S. 11, of this Statute, relates to procedure only, and does not authorize any order for the change of the place of trial of a prisoner, in any case where such change would not have been granted under the former practice. The Statute does away with the old practice of removing the case, by certiorari, into the Queen's Bench, and then moving to change the venue. (c)

Under s. 9, of this Statute, the offence may be alleged to have been committed in any District, County, or place through any part whereof the coach, waggon, cart, carriage, or vessel, boat or raft passed, in the course of the journey or voyage during which the offence was commit

(a) Reg. v. Shea, 3 Allen, 129.

(b) Reg. v. Atkinson, 17 U. C. C. P. 299-300, per J. Wilson, J. (c) Reg. v. McLeod, 6 C. L. J. N. S. 64; 5 Ú. C. P. R. 181.

ted, and the indictment need not state the place where the offence was actually committed. (a)

Where an indictment stated an assault committed upon one Marsh, at Frederickton, in the County of York, but the assault was proved to have been committed on board a steamboat, on the River St. John, in the course of its passage from St. John to Frederickton, before the steamboat arrived within the County of York, and while it was passing through another County :-Held, that the indictment was sufficient, and that it was unnecessary to allege the facts as they actually occurred. (b)

6.

It would seem that no objection to the caption of an indictment, for an allegation that the Grand Jurors were sworn and affirmed," can be sustained without shewing that those who were sworn were persons who ought to have affirmed, or that those who affirmed were persons who ought to have sworn. (c)

Where an indictment for felony lays a previous conviction, notwithstanding that, when the prisoner is given in charge to the jury, the subsequent felony must be read alone to them, in the first instance, it is no objection to the indictment that the previous conviction is laid at the commencement. (d)

Where a prosecutor has been bound, by recognizance, to prosecute, and give evidence, against a person charged with perjury, in the evidence given by him on the trial of a certain suit, and the Grand Jury have found an indictment against the defendant, the Court will not quash the indictment because there is a variance in the specific charge of perjury contained in the information, and that contained in the indictment, provided the indictment sets

(c) Mulcahy v. Reg. L. R. 3 E. & I. App. 306.

(d) Reg. v. Hilton, 5 U. C. L. J. 70; Bell, 20; 28 L. J. (M. C.) 28.