UTTERING.

474. Uttering counterfeit gold or silver coins.--Every one is guilty of an indictable offence, and liable to fourteen years' imprisonment, who utters any counterfeit coin resembling, or apparently intended to resemble or pass for, any current gold or silver coin, knowing the same to be counterfeit. R.S.C., c. 167, s. 10.

The word utler" includes "tender," and "put off." (See article 460 (f) ante).

This offence is punishable under the Imperial statute 24 & 25 Vict. c. 99, s. 9, with one years imprisonment, with or without hard labor, and with or without solitary confinement.

A "groat" is a sufficient description of the English silver four penny piece.(1)

Where a good shilling was handed to a Jew boy for fruit, and he put it into his mouth, under pretence of trying whether it was a genuine coin, and, then, (instead of the good shilling handed to him), he took, out of his mouth, a bad shilling, which he delivered to the prosecutor, saying it was not good: this, (which is one of the mode of ringing the changes), was held to be an uttering of the bad shilling. (2)

It is an "uttering and putting off," as well as a "tendering," if the counterfeit coin he offered in payment, though it be refused by the person to whom it is offered. (3)

The proof that the defendant knew the money to be counterfeit at the time of uttering it will be by circumstantial evidence. If, for instance, it be proved that the defendant uttered, either on the same day or at other times, whether before or after the uttering charged, base money, either of the same or a different denomination, to the same or a different person, or had other pieces of base money about him when he uttered the counterfeit money in question; this will be evidence from which the jury may presume a guilty knowledge (4)

475. Uttering light coins, medals, &c.—Every one is guilty of an indictable offence and liable to three years' imprisonment, who

(a.) utters, as being current, any gold or silver coin of less than its lawful weight, knowing such coin to have been impaired, diminished or lightened, otherwise than by lawful wear; or

(b.) with intent to defraud, utters, as or for any current gold or silver coin, any coin not being such current gold or silver coin, or any medal, or piece of metal or mixed metals, resembling, in size, figure and colour, the current coin as or for which the same is so uttered, such coin, medal or piece of metal or mixed metals so uttered being of less value than the current coin as or for which the same is so uttered; or

(c.) utters any counterfeit coin resembling or apparently intended to resemble or pass for any current copper coin, knowing the same to be counterfeit. R.S.C., c. 167, ss. 11, 14 and 16.

(1) R. v. Connell, 1 C. & K. 190.

(2) R. v. Franks, 2 Leach, 736.

(3) R. v. Welsh, 2 Den. 78; 20 L. J. (M. C.), 101; See R. v. Radford, 1 Den. 59: R. v. Ion, 2 Den. 475; 21 L. J. (M. C.) 166.

(4) R. v. Whiley, 2 Leach, 983; R. v. Foster, Dears. 456; 24 L. J. (M. C.) 134.

A person knowingly passed, as and for a half-sovereign, a medal of about the same size and color as a half-sovereign. On the obverse side was an impression of the Queen's head as on a half-sovereign, but with a different inscription. The medal itself, however, was not seen by the jury, it being lost in the course of being produced in evidence; and there was no evidence as to the appearance of the reverse side. It was held that there was some evidence that the medal was one, in size, figure, and color, resembling a half-sovereign. (1)

476. Uttering defaced coin.-Every one who utters any coin defaced by having stamped thereon any names or words, is guilty of an offence and liable, on summary conviction before two justices of the peace, to a penalty not exceeding ten dollars. R.S.C., c. 167, s. 18.

No prosecution for any offence under this article can be cominenced without the leave of the Attorney-General. (See art. 549, post )

477. Uttering uncurrent copper coins.-Every one who utters, or offers in payment, any copper coin, other than current copper coin, is guilty of an offence and liable on summary conviction, to a penalty of double the nominal value thereof, and, in default of payment of such penalty, to eight days' imprisonment. R.S.C., c. 167, s. 33.

478. Punishment after previous conviction.—Every one, who, after a previous conviction of any offence relating to the coin under this or any other Act, is convicted of any offence specified in this part, is liable to the following punishment:

(a.) to imprisonment for life, if otherwise fourteen years would have been the longest term of imprisonment to which he would have been liable;

(b.) to fourteen years' imprisonment, if otherwise seven years would have been the longest term of imprisonment to which he would have been liable ;

(c.) to seven years' imprisonment, if otherwise he would not have been liable to seven years' imprisonment. R.S.C., c. 167, s. 13.

See article 628, post, as to indictment, and article 676, post, as to procedure, in cases in which a previous conviction is charged.

A second offence, to be punishable, as such, must be one committed after a conviction for a previous offence. For instance, suppose A. were to pass a base coin on the first of August, another on the second of August, and still another on the third of August, thus making three distinct offences; and suppose in the first instance, he is prosecuted and convicted of the offence committed on the third of August, he cannot, upon a subsequent indictment being laid against him, for either of the previous offences be charged with and punished as having been previously convicted of the offence of the third of August: or, suppose, again, that he is, in the first instance, prosecuted, after the third of August, for the offence of the first of August and convicted of such first offence, say, on the tenth of August, he cannot upon a subsequent indictment being laid against him, for either of the offences of the second or third of August be charged with and punished as having been previously convicted of the offence of the first of August; the principle upon which the law proceeds in providing a severer punishment for the repetition of an offence being this, not because the offender has committed the offence more than once, but because

(1) R. v. Robinson, L. & C. 604; 34 L. J. (M. C.), 176,

when an offender has committed and been convicted of an offence he is looked upon as incorrigible, and as treating with contempt his first conviction, if, afterwards, he repeats the offence; but, if the repetition of the offence takes place without his having been convicted, he cannot be said to have treated with contempt a conviction which has not yet taken place; and, therefore, each repetition of the offence, when it takes place before any actual conviction, is looked upon and dealt with as merely a first offence, and is punishable as such. This point was raised, at Montreal, in 1887, upon a petition for habeas corpus, before the late Chief Justice Dorion, who quashed a conviction for an offence charged as a second offence, because such second offence was committed prior to the dat of the conviction for the first offence. (1)

Before the prisoner has pleaded guilty or been found guilty of the subsequent offence, the previous conviction cannot be given in evidence. (2)

If the prisoner is found guilty of the subsequent offence, and, then, upon being asked whether he has been previously convicted, denies that he has, and the jury, upon the proof, find that he has not been so previously convicted, it has been held, under the English statute, (in which however the distinction between a felony and a misdemeanor is still recognised), that he is entitled to be acquitted of the whole charge, inasmuch as, under the English Act the whole charge is a felony, and he cannot be convicted merely of the uttering, which by the English Act is a misdemeanor; (3) although it was held that, after such acquittal, he could, under the English Act, be re-indicted for the uttering, merely, and that he could not, to such indictment, plead autrefois acquit. (4) But, with us, if the prosecution were to fail in proving the previous conviction, the verdict would stand good as to the offence actually proved. (See Art 675 post.)

PART XXXVI.

ADVERTISING COUNTERFEIT MONEY.

479. In this part, the expression "counterfeit token of value" means any spurious or counterfeit coin, paper money, inland revenue stamp, postage stamp, or other evidence of value, by whatever. technical, trivial or deceptive designation the same may be described. 51 V., c. 40, s. 1.

480. Every one is guilty of an indictable offence and liable to five years' imprisonment, who

(a.) prints, writes, utters, publishes, sells, lends, gives away, circulates or distributes any letter, writing, circular, paper, pamphlet, handbill or any written or printed matter advertising, or offering or purporting to advertise or offer for sale, loan, exchange, gift or distribution, or to furnish, procure or distribute, any counterfeit token of value, or what purports to be a counterfeit token of value,

(1) Lambe v. Hall, & Hall, Petitioner, Court of Queen's Bench, Montreal, (not reported). See 1 Hawk P. C. 72. Tuttle v. Com. 2 Gray, (Mass.) 505; Com. v. Daley, 4 Gray, (Mass.) 209; People v. Rutter, 3 Cowen, (N. Y.) 347.

(2) Article 676, post; R. v. Martin, L. R, I C. C R., 214; 39 L. J. (M. C.) 31. (3) R. v. Thomas, L. R., 2 C.C.R., 141; 44 L. J. (M. C.) 42.

(4) Id. Mellor, J.

or giving or purporting to give, either directly or indirectly, information where, how, of whom, or by what means any counterfeit token of value, or what purports to be a counterfeit token of value, may be procured or had; or

(b.) purchases, exchanges, accepts, takes possession of or in any way uses, or offers to purchase, exchange, accept, take possession of or in any way use, or negotiates or offers to negotiate with a view of purchasing or obtaining or using any such counterfeit token of value, or what purports so to be; or

(c.) in executing, operating, promoting or carrying on any scheme or device to defraud, by the use or by means of any papers, writings, letters, circulars or written or printed matters concerning the offering for sale, loan, gift, distribution or exchange of counterfeit tokens of value, uses any fictitious, false or assumed name or address, or any name or address other than his own right, proper and lawful name; or

(d.) in the execution, operating, promoting or carrying on, of any scheme or device offering for sale, loan, gift or distribution, or purporting to offer for sale, loan, gift or distribution, or giving or purporting to give information, directly or indirectly, where, how, of whom or by what means any counterfeit token of value may be obtained or had, knowingly receives or takes from the mails, or from the post office, any letter or package addressed to any such fictitious false or assumed name or address, or name other than his own right, proper or lawful name. 51 V., c. 40, ss. 2 and 3.

As to prima facie evidence of the fraudulent character of any letter circular or paper relating to counterfeit tokens, see article 693, post.

Ꮲ Ꭺ Ꭱ Ꭲ XXXVII.

MISCHIEF.

"Part XXXIV (1) is founded on the provisions of 24 & 25 Vict. c. 97, in which the word maliciously very frequently occurs.

"Section 381 (2) is meant to give what we believe to be the legal effect of that word. The first portion of the section is intended to meet such state of facts as that in the case of Reg. v. Child, (3), where a man,-who, out of malice to a fellow lodger, made a bonfire of her furniture on the floor of her room, not meaning that his landlord's house should catch fire,-escaped punishment.

(1) Part XXXIV of the English Draft corresponds with part XXXVII of the present Code.

(2) Sec. 381 of the English Draft corresponds with our article 481.

(3) Reg. v. Child, L. R., I C.C.R., 307; 40 L. J. (M. C.) 127.

"Under the proviso, (1), a tenant for years, burning his landlord's house, commits an offence, though, in so doing, he burns his own leasehold and a freeholder burning his own house commits an offence, if he does so with intent to defraud the insurers

"The rest of this part re-enacts 24 & 25 Vict. c. 97, with little substantial alteration.' Eng. Commrs'. Rep.

481. Preliminary.-Every one who causes any event by an act which he knew would probably cause it, being reckless whether such event happens or not, is deemed to have caused it wilfully, for the purposes of this part.

2. Nothing shall be an offence under any provision contained in this part, unless it is done without legal justification or excuse, and without colour of right.

3. Where the offence consists in an injury to anything in which the offender has an interest, the existence of such interest, if partial, shall not prevent his act being an offence, and, if total, shall not prevent his act being an offence, if done with intent to defraud. R.S.C., c 168, ss. 60 and 61.

482. Arson.—Every one is guilty of the indictable offence of arson, and liable to imprisonment for life, who wilfully sets fire to any building or structure, whether such building, erection or structure is completed or not, or to any stack of vegetable produce or of mineral or vegetable fuel, or to any mine, or any well of oil or other combustible substance, or to any ship or vessel, whether completed or not, or to any timber or materials placed in any shipyard for building or repairing or fitting out any ship, or to any of Her Majesty's stores or munitions of war R.S.C., c. 168, ss. 2 to 5, 7, 8, 19, 28, 46 and 47.

Arson, at common law, was a felony, and was the malicious and wilful burning of the house of another. (2) The burning of a party's own house did not come within this definition: although the burning of a man's own house in a town or so near to other houses as to create danger to them was a great misdemeanor at common law; (3) and, to constitute arson at common law, there must have been an actual burning of the whole or some part of the house, (4) although it was not necessary that any flame should be visible. (5) It will be seen, by the above article, 481, that a person will be guilty of arson even if he be the owner of the building, etc., if he wilfully sets fire to it, with intent to defraud · and if he be not the owner of, but have only some partial interest in the building, etc.. he will be guilty of arson by wilfully setting fire to it, whether he does it with intent to defraud or not. It will be seen, that, instead of the words wilful burning, used in the common law definition of arson, the words used in article 482 are, wilfully sets fire to, merely; and the burning of any part of the building, etc., however slight, will be sufficient, although the fire be afterwards extinguished. (6)

(1) Clause 3 of article 481.

(2) 3 Inst. 66; 4 Bl. Com. 220.

(3) 1 Hale 568; 2 East, P. C. 1027.

(4) 1 Hale 569

(5) R. v. Russell, 1 C. & M. 541; R. v. Stallion, R. & M., C C.R., 398 : R. v. Parker, 9 C & P. 45.

(6) 1 Hawk. c. 39, s. 17; 1 Hale, 569; Dalt. 506.