of the Court to allow a view or not. It is, therefore, no irregularity to allow the jury to have a view of premises where an alleged offence has been committed, after the Judge has summed up the case. (a)

The Court ought to take such precautions as may be necessary to prevent the jury from improperly receiving evidence out of Court. Where, at proceedings on a view, evidence was received in the absence of the Judge, the prisoners, and their counsel, the Court for Crown cases reserved held that it is for the Court, before which the trial takes place, to ascertain whether such irregularity has taken place, and that they could not reverse the conviction, on the ground of a mere statement of what the Judge was informed. Quare, whether, if such irregularity had occurred, this Court would have jurisdiction to order a venire do novo, as for a mis-trial. Quære, also, whether, if the facts were thus tried, and found to be as alleged, they ought to be entered on the record, so as to give an opportunity of taking advantage of the defect by writ of error, or whether the question could be properly raised by a case stated for this Court. (b)

The Judge has a discretion to adjourn the trial when the counsel engaged in it becomes so ill as to be unable to proceed. One of the prisoner's counsel at the trial, whilst he was addressing the jury, at the close of the case, was suddenly seized with a fit, and incapacitated from proceeding further. No adjournment, however, was applied for; but the other, who was the senior counsel, continued the address to the jury, on the prisoner's behalf, without raising any objection that he was placed at a disadvantage by his colleague's disability. It did not, moreover, appear that the prisoner had been pre

(a) Reg. v. Martin, L. R. 1 C. C. R. 378. (b) Ib.

judiced by the absence of the counsel alluded to:-Held, no ground for a new trial; but, in such case, if a postponement had been asked, in consequence of the illness, it would have been in the discretion of the Judge to have granted it or not, and to have adjourned it for an hour or two, or to another day, or for several days, or until the following Court, as might have been thought reasonable. (a)

Objections, which it is intended to insist on afterwards, must be distinctly raised at the trial; and as the Judge presiding is authorized by the Con. Stats. U. C., c. 112, to reserve any question of law for the opinion of the Court, it is the more necessary that his attention should be drawn to every matter of law which is relied on for the prisoner, whether by way of suggestion on the defence, or of exception to the Judge's ruling, or direction at the trial. (b)

The objections should also be noted by the Judge, for the Court cannot notice grounds of objections taken in rules unless they appear in the Judge's notes; and it is the duty of counsel, on moving, to ascertain whether the objections they rely on were noted by the Judge who presided at the trial. If they do not appear to be noted, a reference should be made to the Judge to have the notes amended before they are made the grounds of a motion. (c)

There is nothing to prevent the Judge, on a criminal trial, having the notes of the evidence taken in writing by another person. (d)

The 32 & 33 Vic., c. 29, s. 32, provides that every objection to any indictment, for any defect, apparent on

(a) Reg. v. Fick, 16 U. C. C. P. 379.

(b) Reg. v. Craig, 7 U. C. C. P. 241, per Draper, C. J.

(c) Reg. v. Des Jardins C. Co., 27 U. C. Q. B. 380, per Morrison, J. See also Cousins v. Merrill, 16 U. C. C. P. 120.

(d) Duval dit Barbinas v. Reg., 14 L. C. R. 75, per Meredith, J.

MM

the face thereof, must be taken by demurrer, or motion to quash the indictment, before the defendant has pleaded, and not afterwards. The object of this Statute was to prevent waste of time and labour in criminal trials, and to compel a legal defence to be resorted to at the earliest possible stage. The Court, therefore, will not arrest judgment after verdict, or reverse judgment in error, for any defect apparent on the face of the indictment, which could have been taken advantage of under this clause. (a)

The defendant is not in all cases, of acquittal, entitled to a copy of the indictment laid against him; and, where the charge was for obtaining goods by false pretences, copies of the indictment and papers, were refused. (b)

A copy of an indictment for high treason may be obtained by consent of the Attorney-General. (c)

The 32 & 33 Vic., c. 29, s. 26, provides that on an indictment for any offence laying a previous conviction, the offender shall in the first place, be arraigned upon so much only of the indictment as charges, the subsequent offence, and if he pleads not guilty, the jury shall be charged, in the first instance, to enquire concerning such subsequent offence only.

If, when, found guilty of the subsequent offence, the prisoner denies that he was previously convicted or stands mute of malice, or will not answer whether he is guilty or not guilty, the jury should then be charged to inquire concerning such previous conviction. (d)

Where an indictment contains, one count for larceny, and allegations in the nature of counts for previous convictions for misdemeanors, and the prisoner, being arraigned on the whole indictment, pleads not guilty, but

(a) Reg. v. Mason, 32 U. C. Q. B. 246.
(b) Reg. v. Senecal, 8 L. C. J. 286.
(c) Rex v. M'Donel, Taylor, 299.
(d) See Reg. v. Harley, 8 L. C. J. 280.

is not tried till a subsequent Assize, when he is given in charge on the count for larceny only, this does not amount to error, for he was properly given in charge to the jury, and, having been arraigned and his plea entered at a previous Assize, could not be prejudiced by any mistake in his arraignment. (a)

Under the English Acts, 5, Geo. 4, c. 84, s. 24, and 8 & 9 Vic., c. 113, s. 1, which are, in substance, the same as our 32 & 33 Vic., c. 29, s. 26, omitting the proof of the identity contained in the latter Act, it was held that the certificate of a previous conviction, required by these Acts, is sufficient, if it purports to be signed by an officer having the custody of the records, although that officer is therein described as the Deputy Clerk of the Peace of a Borough.(b)

The 32 & 33 Vic., c. 29, s. 45, provides that all persons tried for any indictable offence shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto, by counsel learned in the law.

Two counsel only can be heard on behalf of prisoners indicted for criminal offences, and persons tried for felonies may make their full defence by two counsel, and no more, before a jury wholly composed of persons skilled in the language of the defence. (c)

After two counsel had addressed the jury, on behalf of the prisoner, a third rose to do so, but was stopped by the Court. (d)

At the close of the case for the prosecution of three prisoners, defended by separate counsel, one was acquitted, and was called as a witness on behalf of one of the two remaining. This witness criminated the other

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

(b) Reg. v. Parsons, L. R. 1 C. C. R. 24; 35 L. J. (M. C.) 167. (c) Reg. v. D' Aoust, 9 L. C. J. 85.

(d) Ib.

prisoner :-Held, that the counsel of the prisoner criminated had a right to cross-examine and address the jury on the evidence so given. That, as this right had been refused, the conviction of the prisoner must be quashed, although the Court had offered to put the questions suggested by his counsel. (a)

It has been held that, in cases of public prosecutions for felony, instituted by the Crown, the law officers of the Crown, and those who represent them, were, in strictness, entitled to the reply, though no evidence was produced on the part of the prisoner. (6) But in Ontario, a counsel for the Crown, not being himself the Attorney or Solicitor General, had no right to reply in an ordinary prosecution for crime, where no witnesses were called for the defence. (c) Now, however, the right of reply shall always be allowed to the Attorney or Solicitor General, or to any Queen's Counsel, acting on behalf of the Crown. (d)

A Clerk of the Crown in Quebec, being a Queen's Counsel, has a right to be heard in a criminal case, on behalf of the Crown, notwithstanding Con. Stats. L. C., c. 77, s. 75; and the duties and powers of Clerks of the Crown not being defined in their commissions, nor by Statute, the Court will look to the English law, and the the powers and duties of the Master of the Crown Office there, as a guide in deciding on the duties and powers of Clerks of the Crown in Quebec. (e)

Crown prosecutions differ from ordinary civil suits; for, if the Queen be prosecutor, there can be no non pros. or non-suit or demurrer to evidence. The prosecutor

(a) Reg. v. Luck, 1 U. C. L. J. 78; 3 F. & F. 483. See also Reg. v. Coyle, 2 U. C. L. J. 19.

(b) Reg. v. Quatre Pattes, 1 L. C. R. 317.

(c) Reg. v. McLellan, 9 U. C. L. J. 75. (d) 32 & 33 Vic. c. 29, s. 45, ss. 2.

(e) Reg. v. Carter, 15 L. C. R. 291.