dition was that described in s. 19. I am unable to assent to that proposition, and will give my reasons.

The authority of the Court and of the jury is sufficiently defined by ss. 19 and 966. The jury are not warranted in finding a verdict of acquittal because of insanity unless evidence is given before them that the accused was insane at the time of the commission of the offence. This is required by s. 966. I take the provision thus made to mean that there must under our Cr. Code, be some pertinent and affirmative evidence on the point dealing with the material time, which may of course be aided by appearance and conduct, and by the prisoner's version of the crime. But insanity such as s. 19 (1), defines cannot be properly determined by a jury without more evidence than mere appearance or conduct in the witness box, which may be simulated or deceptive. It cannot be that a jury, without experience or medical knowledge, and merely on looking at and listening to the prisoner, can offhand determine one of the most difficult of problems, and find that what they deem insanity existed at a date possibly months or more before the trial. Such a determination would be pure conjecture, and not a finding on facts proved. This is enforced by the fact that evidence presented must be such as to have the effect of rebutting or rendering disputable the presumption of sanity raised by s-s. 3, which existed at the antecedent time. The course of the trial in this case has an important bearing on whether, as a matter of law, such evidence as is thus required under ss. 19 and 966 was given. I refer to it and to the evidence given thereat only so far as is strictly necessary in order to elucidate the point which I desire to make clear. Fortunately there is no controversial evidence. The facts are clear and undisputed and are testified to by eye-witnesses. Cross-examination of the Crown witnesses was directed to establish and did establish that the prisoner's conduct had been excellent during the three years while he was confined in the penitentiary preceding the crime of August 28, 1926, including the last five or six weeks, during which he was aiding his fellow-immates in the work necessitated by the construction of the fence, as he was doing on the day of the crime. No action of the prisoner during that long time gave any hint of mental disturbance or warning of the likelihood of such an act as was committed. Nor was there evidence

of any unusual incident afterwards. All his associates working with him near the fence, including Thompson and Medley, were examined, as well as the warden and scout-guard, and his actions on that day were traced and described, so that when the Crown's case was closed the prisoner's sanity was definitely established and was not contested except on the one point, delusion.

The prisoner then gave evidence, and apart from his description of the incident alleged to be a delusion, all he said may be summed up in a few extracts (though repeated more than once) "He hit me with the door, me start jealous, because me good man me start mad and go in work take off my coat to unload with Thompson cement and Thompson say I take me all, Medley gave it in the hand . . . . me got mad for the boss and go take bar and come back again and hit him

I came back with the bar and hit him on the head, and don't know nothing that time . . . ." And when he is asked, why he says:-"Hit him, me mad with him;" and this he repeats later. He further says that, about eight days before this Jenkins said to him that "he had word from Warden, he said, for Ottawa not let you outside. Him says 'if you start going I got to shoot you." He says this scared him of Jenkins, and that Jenkins "no give work that morning" (i.e., of the murder). Asked why he killed Jenkins, he said: "I never thought myself kill, never fight in my life." Asked by his counsel after if he thought Jenkins was going to kill him, his reply was:-"Me never think nothing before, this morning me think much. . . . I think-too much scared-him hit me." Asked if he was trying to get away that morning, he says:"No, I get away, me see blood me go, were people on street.

There was evidence that the prisoner left the cart, from which the cement was being taken by his associates during its unloading, and reappeared, after it was finished, immediately behind Jenkins, whom he felled with an iron crowbar.

This crowbar was lying 175 ft. from where Jenkins was killed, so that there was both time to form the intent and to take means to carry it out, as well as motive. He himself said he had "come back again and hit him." He says that he ran away when he saw the blood, but he carried the crowbar cov

ered with blood, and only dropped it when, in a field half a mile off, he was confronted by a guard with a loaded revolver.

I can find in these facts no evidence which could properly be submitted to the jury as tending to discharge or disturb the onus resting upon the prisoner or as indicating insanity before or on August 28, 1926.

Hewart, L.C.J., in Rex v. True (1922), 16 Cr. App. R. 164, speaking of insanity and the rule that no one shall be convicted if labouring under natural imbecility or disease of the mind (and he defines it as stated in our s. 19(1)), said (p. 168):"That is a sufficient and salutary rule. In order that the accused person may come within it it must first be shown that at the time of the committing of the act he was labouring under a defect of reason, from disease of the mind.”

Nor can it be said that the verdict was unreasonable or not supported by the evidence. All of it strengthened the Crown's

case.

Lord Tenterden's statement of the duty of a Judge with regard to evidence fit to be submitted to a jury, is quoted by Cresswell, J., in Avery v. Bowden (1856), 6 El. & Bl. 972, at p. 974, 119 E.R. 1126, that:-"If the evidence was such that the jury could conjecture only but not judge, it ought not to go to the jury: that the onus was on the party offering the evidence; and that he, if he offered only evidence consistent with either supposition of fact, was not entitled to have it put to the jury."

This was approved by Willes, J., in Phillipson v. Hayter (1870), L.R. 6 C.P. 38, at p. 43.

It has further the authority of Viscount Finlay in Everett v. Griffiths, [1921] 1 A.C. 631, at p. 668, where he says:-"‘The question as to what constitutes evidence fit to be left to the jury is a question of law for the Court. For this purpose a mere scintilla of evidence is not enough. There must be evidence on which the jury might reasonably come to a conclusion in favour of the plaintiff: per Willes J. in. ..Ryder v. Wombwell (1868), L.R. 4 Ex. 32, [at p.] 39. If the evidence lead only to conjecture it is not fit for the consideration of the jury: per Willes J. in Phillipson v. Hayter [supra], citing Lord Tenterden and Cresswell J."

In Reg. v. Layton (1849), 4 Cox C.C. 149, Rolfe, B., said

(pp. 155-6):-“A man must be presumed to be sane till he proves the contrary. The question, therefore, for the jury would be, not whether the prisoner was of sound mind, but whether he had made out to their satisfaction that he was not of sound mind."

In the Abramovitch case, 7 Cr. App. R. 145, Channell, J., said (p. 147):-"It is for the defence to prove insanity. That may sometimes be done by proving absence of motive, but it has been well said that absence of proved motive is a very different thing from proved absence of motive. Here it cannot even be said that there is no evidence of motive. The appellant himself stated that he had done it because he had lost all his money in gambling."

In Rex v. Jesshope (1910), 5 Cr. App. R. 1, Alverstone, L.C.J., said (p. 4):-"Whatever may be said as to the weak condition of the man, we have the clearest evidence that he entertained vindictive feelings against the deceased. We should require very strong evidence of general tendency to insanity to satisfy us that he did not know what he was doing." See also Rex v. Kopsch (1925), 19 Cr. App. R. 50, and Rex v. Hawkes, supra.

Sudden frenzy is not a defence (Rex v. Aughet (1918), 13 Cr. App. R. 101, at p. 106; Rex v. Holt (1920), 15 Cr. App. R. 10; Rex v. Creighton (1908), 14 Can. C.C. 349; Rex v. Jessamine (1912), 1 D.L.R. 285, 19 Can. C.C. 214 (C.A. (Ont.)).

I do not think that any such statement as is found in Russell can possibly dispose of this appeal. The case has passed beyond an academic stage, as the jury have found their verdict; and, if the ground taken at the trial is untenable, and if the proposition now put before us is unsound, as in my judgment is the case, our only authority to set the verdict aside is that it is unreasonable or cannot be supported having regard to the evidence.

I am therefore unable to agree that upon either of the grounds put forward there is any ground for a new trial, and, in view of the evidence adduced in the course of the trial, I do not think this Court is in a position under the recent provisions of the Cr. Code to set aside the verdict.

I would affirm the conviction.

New trial ordered.

REX v. CRAWFORD.

New Brunswick Supreme Court, Appeal Division, Hazen, C.J., White and Grimmer, JJ. November 10, 1926.

Intoxicating Liquors III B 1—Having─Licensed vendor-Expiry of licence-Absence of mens rea-Palpable injustice.

Where to construe a penal statute as creating an offence in the absence of mens rea would work a palpable injustice and there is no express language indicating any such intention on the part of the Legislature, a Court will not uphold a conviction thereunder in the face of clear proof of absence of mens rea. Where therefore a licensed vendor in New Brunswick has legally acquired a stock of liquor and at its expiry his licence has not been renewed a conviction and confiscation order in respect of the possession of liquor legally acquired after the expiry of his licence, will be quashed upon appeal.

Intoxicating Liquors VII E-Confiscation order-Fatal defects.

A confiscation order for liquor allegedly illegally in the possession of an accused will be quashed where neither the quantity of liquor nor the nature of the containers is specified, especially where the statute under which it purports to be made specifies a form of order, in which both these particulars are set out.

Appeal by defendant from his conviction and a confiscation order made by a Magistrate upon a charge of illegal possession of liquor. Reversed.

P. J. Hughes, K.C., for appellant.

C. L. Dougherty, for Crown.

The judgment of the Court was delivered by

GRIMMER, J:-This is an appeal under s. 176 of the Intoxicating Liquor Act, 1916 (N.B.), c. 20, as amended by 1926 (N.B.), c. 26. Under this section as originally passed the convictions or orders of Magistrates or Justices of the Peace imposing any penalty or punishment for violation of the provisions of the Act were final and no appeal would lie therefrom save in the case of the person convicted being a licensee or if the conviction was for an offence committed on or with respect to the licensed premises, or when the person convicted had been sentenced to imprisonment, when an appeal would lie to a Judge of the Supreme Court sitting in Chambers without a jury, and by s-ss. 1 and 2 the method for perfecting the appeal was provided.

By the Act of 1926 referred to, s. 176 (1) of the Liquor