place in which the offence is alleged to have been committed, by any other person, to any justice of the peace, or to a judge of any court authorized to issue warrants in cases of alleged offences against the criminal law, such justice of the peace or judge of the court may issue a warrant to enter, by day or night, such house of ill-fame or assignation, and if necessary use force for the purpose of effecting such entry whether by breaking open doors or otherwise, and to search for such woman or girl, and bring her, and the person or persons whose keeping and possession she is, before such justice of the peace or judge of the court, who may, on examination, order her to be delivered to her parent, husband, master or guardian, or to be discharged, as law and justice require."

as in

186. Parent or guardian procuring defilement.—Every one who, being the parent or guardian of any girl or woman,

(a.) procures such girl or woman to have carnal connection with any man other than the procurer; or

(b) orders, is party to, permits or knowingly receives the avails of the defilement, seduction or prostitution of such girl or woman.

is guilty of an indictable offence, and liable to fourteen years' imprisonment if such girl or woman is under the age of fourteen years, and if such girl or woman is of or above the age of fourteen years to five years' imprisonment. 53 V., c. 37, s. 9.

187. Householders permitting defilement of girls on their premises, -Every one who, being the owner and occupier of any premises, or having, or acting or assisting in, the management or control thereof, induces or knowingly suffers any girl of such age as in this section mentioned to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally, is guilty of an indictable offence and

(a.) is liable to ten years' imprisonment if such girl is under the age of fourteen years; and

the

(b.) is liable to two years' imprisonment if such girl is of or above age of fourteen and under the age of sixteen years. R.S.C., c. 157, s. 5; 53 V., c. 37, s. 3.

188. Conspiracy to defile.—Every one is guilty of an indictable offence and liable to two years' imprisonment, who conspires with any other person by false pretenses, or false representations or other fraudulent means, to induce any woman to commit adultery or fornication.

See comments,-under article 176,-on incest, adultery and fornication, ante. In a recent American case, (1) it was held that a count charging a conspiracy to induce a female to commit fornication may be joined in the same indictment with counts charging defendants with abduction of the same female for the purpose of prostitution, and with unlawfully detaining her in a house of ill-fame, though the first count charges a misdemeanor, and the others a felony; and that upon trial on such an indictment, a verdict finding the defendants " guilty as charged in the indictment," and fixing a punishment that might be inflicted under any one of the counts, is sufficient.

(1) Herman et al. v. People, S. C., 22 N. E. Rep. 471; 12 Cr. L. Mag. 222 et seq

The remarks of Baker, J., in rendering the judgment of the Illinois Supreme Court (31st October 1889), upon an appeal taken after conviction were, in effect, as follows:

"Annie Herman, Charles Busse and William Sickman, plaintiffs in error, were indicted in the Criminal Court of Cook county, and, upon trial and conviction before the Court and a jury, were sentenced to the penitentiary-Herman and Busse for five years each, and Sickman for four years. The first, second and third counts are based upon section 46 of the Criminal Code, as amended by the act approved June 16th, 1887, and in force July 1st, 1887, Laws 1887, p. 167; Rev. Stat. Ill. (ed. 1889), ch. 38, 46; The first count charges a conspiracy by false pretences, etc., to induce Catherine Sievers to have illicit criminal intercourse; the second charges a conspiracy to entice and take her away for the purpose of prostitution; and the third a conspiracy to entice and take her away for the purpose of concubinage. Under our statutes these three counts are for misdemeanors. Two other counts are predicated upon section 1 of the Criminal Code (Rev. Stat., ch. 38, 2). The one charges an entieement and taking away for the purpose of prostitution, and the other an enticement and taking away for the purpose of concu binage, Another count is based upon section 2 of "An act to prevent the prostitution of females; and it charges that plaintiffs in error, by force, false pretences and intimidation, detained and confined said Catherine Sievers in a room against her will for purposes of prostitution, etc. Under our statutes these three last counts charge felonies. The verdict returned by the jury at the trial was as follows: We, the jury, find the said defendants guilty in manner and form as charged in the indictment, and fix the punishment of the defendants Annie Herman and Charles Busse at imprisonment in the penitentiary for the term of five years each, and fix the punishment of the defendant William Sickman at imprisonment in the penitentiary for the term of four years." Upon this verdict the plaintiffs in error were sentenced to the penitentiary for the terms allotted to them respectively. The evidence and the instructions of the court are not preserved by a bill of exceptions. Only two questions arise upon the record. One of these is, is there a misjoinder of counts? and the other, is the verdict sufficiently explicit to sustain the judgment of the court?

6

Plaintiffs in error contend that, as three of the counts are for felonies, and the other three for misdemeanors, they are improperly joined; and that their motions to quash the indictment, and to compel the people to make an election, should have prevailed; and that it was error to deny such motions. It was a principle of the English law, and the rule has been adopted in some of our states, that there can be no conviction for a misdemeanor upon an indictment for a felony, even where the allegations of the indictment include such misdemeanor, the reason being that persons charged with misdemeanors had at their trials advantages not allowed to those arraigned for felony. * But such a practice does not obtain in this country and it is the established doctrine in this state that a defendant, put on his trial for a crime which includes an offence of an inferior degree, may be acquitted of the higher offence and convicted of the lesser. Carpenter v. People. 4 Scam. (Ill.) 197; Beckwith v. People, 26 Ill. 500; Kennedy v. People, 122 Id. 649, 13 N. E. Rep. 213. In 1 Bish. Crim. Pro. (2d ed.), ss 445, 446 it is stated in substance, that,' in states where there can be a conviction for misdemeanor on an indictment for felony, counts for felony and misdemeanor may, under some circumstances, be properly joined, as where both counts relate to the same transaction ・・・・・ In the late case of State v. Steward, 9 Atl. Rep. 559 (decided by the Supreme Court of Vermont), it is said: Although authorities can be found that lay down the rule that felonies and misdemeanors or different felonies cannot be joined in the same indictment, still the rule in this and most of the states is otherwise. It is always and everywhere permissible for the pleader to set forth the offence he seeks to prosecute in all the various ways necessary to meet the possible phases of evidence that may appear at the trial. If the counts cover the same transaction, though involving offences of different grade, the court has it in its power to preserve all rights of defence intact.' See, also, Stevick v. Commonwealth, 78 Pa. St. 460;* Hawker v. People, 75 N. Y. 487; Crowley v. Commonwealth,

...

1 Metc. (Mass.) 575, and State v. Lincoln, 49 N. H. 464. It is urged that the Court has in Lyons v. People, 68 Ill. 275, and Beasley v. People, 89 Id. 571, decided that counts for felony and for misdemeanor cannot be joined. We do not so understand those cases. The question of joining counts for felony and for misdemeanor in the same indictment did not arise in either case. In the Lyons Case one count was for burglary and the other was for petit larceny, and under the law as it then stood petit larceny was a felony; and it was held that, as the two counts were based on a single transaction they were properly joined. In the Beasley Case, also, all the counts were for felonies, and the question here under consideration was not at issue, and what was there said cannot be regarded as a decision of such question The reasons upon which was based the English rule against joining felonies and misdemeanors in the same indictment have ceased to exist, and that rule, if now enforced, would be purely technical and arbitrary, and would subserve no useful or beneficial purpose, and its tendency would be to embarrass, delay and prevent the administration of justice. Cessante ratione legis, ressat et ipsa ler. Besides this, the rule is inconsistent with the practice which has long and uniformly prevailed in this state, of permitting, upon an indictment for felony, a conviction for a misdemeanor, which is included in the greater offence charged. It would be unreasonable to hold that upon an indictment for a felony a defendant may be convicted of a misdemeanor, there being no count specifically charging such misdemeanor, and yet hold that, if there is such specific count, there can be no such conviction. We think the better rule to be to permit the joinder of counts, whether for felony or for misdemeanor, where one and the same criminal transaction is involved in the different counts, or the felonies and the misdemeanors charged form distinct stages in the same offence. In the indictment before us, the several counts are merely statements in various forms of the proceedings in one and the same transaction, and are not inconsistent with each other, and may well have formed parts of the same offence. It is not impossible that plaintiff's in error should have formed a conspiracy to induce Catherine Sievers to have illicit criminal intercourse, and conspiracies to entice and take her away for the purposes both of prostitution and concubinage; that they should actually have enticed and taken her away for the purposes of prostitution and concubinage, and should have confined her in a house or room against her will for purposes of prostitution. If two or more offences form parts of one transaction, and are of such a nature that a defendant may be guilty of both or all, the prosecution will not, as a general rule, be put to an election. The right of demanding an election, and the limitation of the prosecution to one offence, is confined to charges which are actually distinct from each other, and do not form parts of one and the same transaction. Goodhue v. People, 94 Ill. 37; Andrews v. People, 117 Id. 195; 7 N. E. Rep. 265. In our opinion there is no misjoinder of counts in this case, and it was not error to overrule the motion to quash the indictment and the motion to compel the prosecution to make an election.

•

The other question is, whether the verdict is sufficient to sustain the judgment of the court. The verdict found the defendants guilty in manner and form as charged in the indictment.' As we have seen, the six different counts are not inconsistent with each other, and it is possible the evidence may have been such as to establish guilt under each and all of them; and as the evidence is not in the record, it is to be presumed that such was the case. The punishments fixed by the verdict were five years in the penitentiary for two of the defendants and four years in the penitentiary for the other defendant. These penalties were legally applicable to each and every count, and were no greater than was authorized for either of the offences for which the defendants were tried. This not only tends further to show the defendants were found guilty upon all the counts, but also indicates they were not damnified by the form of the verdict. Besides this, not one of the counts in the indictment charges an offence which, under the statutes of the state, is deemed infamous. We are unable to take any view of the case that renders it probable, or even possible, that the rights of plaintiffs in error might have been injuriously affected by the fact that the jury in their verdict did not specify any particular count or counts, but returned a general verdict of guilty upon all the counts submitted to them. We find no error in the record, and the judgment is affirmed."

189. Carnally knowing idiots &c.-Every one is guilty of an indictable offence and liable to four years' imprisonment who unlawfully and carnally knows, or attempts to have unlawful carnal knowledge of, any female idiot or imbecile, insane or deaf and dumb woman or girl, under circumstances which do not amount to rape but which prove that the offender knew, at the time of the offence, that the woman or girl was an idiot, or imbecile, or insane or deaf and dumb. R.S.C., c. 157, s. 3; 50-51 V., c. 48, s. 1.

190. Prostitution of Indian woman, -Every one is guilty of an indictable offence and liable to a penalty not exceeding one hundred dollars and not less than ten dollars, or six months' imprisonment

(a) who, being the keeper of any house, tent or wigwam, allows or suffers any unenfranchised Indian woman to be or remain in such house, tent or wigwam, knowing or having probable cause for believing that such Indian woman is in or remains in such house, tent or wigwam with the intention of prostituting herself therein; or

(b.) who, being an Indian woman, prostitutes herself therein; or (c.) who, being an unenfranchised Indian woman, keeps, frequents or is found in a disorderly house, tent or wigwam used for any such purpose.

2. Every person who appears, acts or behaves as master or mistress, or as the person who has the care or management, of any house, tent or wigwam in which any such Indian woman is or remains for the purpose of prostituting herself therein, is deemed to be the keeper thereof, notwithstanding he or she is not in fact the real keeper thereof. R.S.C., c. 43, s. 106; 50-51 V., c. 33, s. 11.

PART XIV.

NUISANCES.

191, A common nuisance.—A common nuisance is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all Her Majesty's subjects.

This article is in the exact words of the corresponding section of the English Draft Code; and the following are the remarks thereon of the Royal Commissioners:

"With regard to nuisances, ・・・ we have, in sections 151 and 152—(1), drawn a line between such nuisances as are and such as are not to be regarded as criminal offences. It seems to us anomalous and objectionable upon all

(1) Similar to our articles 192 and 193.

grounds that the law should in any way countenance the proposition that it is a criminal offence not to repair a highway when the liability to do so is disputed in perfect good faith. Nuisances which endanger the life, safety or health of the public stand on a different footing.

By the present law, when a civil right such as the right of way is claimed by one private person and denied by another, the mode to try the question is by an action. But when the right is claimed by the public, who are not competent to bring an action, the only mode of trying the question is by an indictment or information, which is in form the same as an indictment or information for a crime. But it was very early determined that though it was in form a prosecution for a crime, yet that as it involved a remedy for a civil right, the Crown's pardon could not be pleaded in bar. See 3 Inst. 237. And the legislature, so recently as in the statute 40 and 41 Vict. c. 14, again recognized the distinction. The existing remedy in such cases is not convenient, but it is not within our province to suggest any amendment. The other sections are mostly re-enactments of statutes; but sections 153 and 158 (1) are declaratory of the common law, thongh we have suggested the addition of hard labor to the punishment."

Public and private nuisances.-The term " nuisance" is derived from the French word nuire, to do hurt or to annoy.

..

A common or public nuisance, under the common law, is such as in its nature or its consequences is "an injury or damage to all persons who come within "the sphere of its operation, though it may be so in a greater degree to some "than to others (2). According to Blackstone it is an offence against the public order and economical regimen of the State, being either the doing of a "thing to the annoyance of the king's subjects or the neglecting to do a thing "which the common good requires" (3). For example, if, in the operation of a manufactory, such as a dye-works, a tallow furnace, a smelting house, a tanning factory, or a lime-pit for cleaning skins,-volumes of noxious smoke or poisonous effluvia are emitted; to persons who are within, the reach of these operations and whose health may be thereby endangered, a nuisance, in the popular sense of the term, is committed. So, also, an obstruction in a highway is, to all who have occasion to travel upon it, a nuisance. It may be a greater nuisance to those who have to travel over it daily than it is to a person using it only once a year; but it is more or less a nuisance to every one who has occasion to use it, and it is therefore a common or public nuisance, (4) although not of so serious a character as a nuisance endangering life or health.

Where, however, the thing complained of is such as to be limited to one or only a few individuals, it is a private nuisance. For instance, if a man by building up a wall darkens the ancient windows of one or of several different dwelling houses, this is only an injury or a nuisance to the particular persons who live in them. It does not affect the public generally and he is not, in thus acting, necessarily guilty of a common nuisance (5).

Of course it is needless to remark that a private nuisance cannot be the subject of a criminal prosecution. A nuisance is not a criminal offence unless it is a common nuisance; and, as will be seen by articles 192 and 193 even a common nuisance is not always and under all circumstances a criminal offence. Article 191 defines what common nuisances are; and article 192 specifies which of them are indictable as criminal offences, by enacting that a common nuisance, is so indictable which endangers the lives safety or health of the public or which, (though not dangerous to life &c.), occasions injury to the person of any individual. (6)

(1) Sections 153 and 158 are similar to our articles 194 and 206, post. (2) Soltau v. DeHeld, 2 Sim. N. S. 142

(3) 4 Bl. Com. 166.

(4) See Att. Gen. v. Sheffield Gas Consumer's Co., 3 De G., M. and G. 304 ; Imperial Gas Light & Coke Co. v. Broadbent, H. L. Ca. 600; Crowder v. Tinkler, 19 Ves. 617 Reg v. Train, 2 B. and S. 640; Jones v. Powell, Palm. 539; Bliss v. Hall, 4 Bing. N. C. 183; Broom's Com. L. 706, 894.

(5) Soltau v. DeHeld, 2 Sim. N. S. 143.

(6) See further comments under article 192 post.