high constable or deputy high constable of the district of Montreal, (who seems to be more of a head or chief bailiff of the Criminal Courts than a police officer) nor by any other constable or officer unconnected with and not occupying the position of head or deputy head of the police force of a city town or the head or deputy head of a provincial or county police force.

But, quaere, suppose a constable or other peace officer not occupying the position of head or deputy head of a police force, were to receive and act upon such a warrant, and to find, on entering the suspected premises, a number of gaming instruments and some persons engaged there in playing, would he not have the right, (independently of any warrant), to apprehend such persons, under the authority of clause 3 of Article 552, ante, which provides that ANY PEACE OFFICER may arrest, without warrant, any one whom he finds committing an offence against this Act? Or, would the fact of such constable, or peace officer not being the proper officer authorized by Article 575 to receive and act upon a warrant to search a suspected gaming house debar him from making any valid arrest of persons found in the premises entered by him by virtue of such a warrant ?

A case somewhat in point has just arisen, in the city of Montreal. On the 14th October 1893, a warrant was issued, (under Article 575), by Police Magistrate Dugas to Deputy High Constable Bissonnette to search premises alleged to be kept by one Maloney as a common gaming house. Under this warrant Bissonnette with the assistance of several other officers entered the premises and found therein a number of gaming instruments consisting of cards, dice. balls, counters, roulette tables, card cutters or markers, etc., and five or six persons seated at a gaming table. The officers seized and carried away the gaming instruments together with several thousand dollars in cash and they apprehended Maloney and the five or six persons found in the premises On the following Monday (16th October). Maloney was charged under article 198 with the indictable offence of keeping a gaming house and Judge Dugas, after fixing a time for holding the preliminary investigation and after hearing special evidence as to the nature of the articles seized, ordered the destruction of the gaming instruments and the confiscation of the monies. With regard to the persons found in the premises, they were brought before Police Magistrate Desnoyers to be summarily tried under article 199 with the non-indictable offence of having been found playing in a common gaming house The counsel for the defendants raised the objection that Bissonnette the Deputy High Constable was not such an officer as is authorized under Article 575 to receive and execute a warrant to search a suspected gaming house, inasmuch as he was only a Deputy High Constable in connection with the Criminal Courts and not the head or deputy head of any police force, but that the proper officer to receive and execute such a warrant was the Chief or Deputy Chief of the police force of the City of Montreal, that the warrant and the entry thereunder of the premises in question being illegal, the arrest made at the same time of the defendants was also illegal and that therefore they could not be legally tried upon the charge preferred against them.

Judge Desnoyers took a note of the objection, the defendants pleaded not guilty, the trial was proceeded with, and at its close the Judge reserved his decision until the 23rd October 1893, when he rendered judgment against the defendants finding them guilty of being found playing in a gaming house and imposing a fine upon each. He held that whatever force there might be in the objections raised by the defendants' counsel they were of no avail in the case against the defendants, although they might be found to have some value in that branch of the transaction which related to the case against Maloney, as the keeper of the house, and in deciding that the defendants were regularly before him, he relied upon Articles 22, 24, 552, 557 and 843 and particularly upon Article 24," which," he said, gives any private individual the right of arresting without warrant any person whom he finds committing an offence," and Article 577 which (when read in connection with Article 843, provides that when any person accused of an offence is before a justice whether voluntarily or upon summons

or after being apprehended with or without a warrant, the Justice shall proceed to enquire into the matters charged against such person. (1)

Sections 9 and 10 of R. S. C., chap. 158, (which are unrepealed), empower a Police Magistrate to swear and examine, when brought before him, any persons found in any gaming house entered and searched under the provisions of Article 575. These sections are as follows:

46

The police magistrate, mayor or justice of the peace, before whom any person is brought who has been found in any house, room or place, entered in pursuance of any warrant or order issued under this Act, may require any such person to be examined on oath and to give evidence touching any unlawful gaming in such house, room or place, or touching any act done for the purpose of preventing, obstructing or delaying the entry into such house, room or place, or any part thereof, of any constable or officer authorized as aforesaid; and no person so required to be examined as a witness shall be excused from being so examined when brought before such police magistrate, mayor or justice of the peace, or from being so examined at any subsequent time by or before the police magistrate or mayor or any justice of the peace, or by or before any court, on any proceeding, or the trial of any indictment, information, action or suit in anywise relating to such unlawful gaming or any such acts as aforesaid, or from answering any question put to him touching the matters aforesaid, on the ground that his evidence will tend to criminate himself; and any such person so required to be examined as a witness who refuses to make oath accordingly, or to answer any such question, shall be subject to be dealt with in all respects as any person appearing as a witness before any justice or Court in obedience to a summons or subpoena and refusing, without lawful cause or excuse to be sworn or to give evidence, may, by law, be dealt with; but nothing in this section shall render any offender, under the sixth section of this Act, liable on his trial to examination hereunder." (Sec. 9.)

"Every person so required to be examined as a witness, who, upon such examination, makes true disclosure; to the best of his knowledge, of all things as to which he is examined shall receive from the judge, justice of the peace, magistrate, examiner or other judicial officer before whom such preceding is had, a certificate in writing to that effect, and shall be freed from all criminal prosecutions and penal actions, and from all penalties, forfeitures and punishments to which he has become liable for anything done before that time in respect of the matters regarding which he has been examined; but such certificate shall not be effectual for the purpose aforesaid, unless it states that such witness nade a true disclosure in respect to all things as to which he was examined; and any action, indictment or proceedings pending or brought in any court against such witness, in respect of any act of gaming regarding which he was so examined, shall be stayed, upon the production and proof of such certificate, and upon summary application to the court in which such action, indictment or proceeding is pending, or any judge thereof, or any judge of any of the superior courts of any province." (Sec. 10.)

704. Evidence in cases of Gaming in stocks, etc. Whenever, on the trial of a person charged with making an agreement for the sale or purchase of shares, goods, wares or merchandise in the manner set forth in section two hundred and one, it is established that the person so charged has made or signed any such contract or agreement of sale or purchase, or has acted, aided or abetted in the making or signing thereof, the burden of proof of the bonâ fide intention to acquire or to sell such goods, wares or merchandise, or to deliver or receive delivery thereof, as the case may be, shall rest upon the person so charged.

(1) R. v. Louis Aaron and others, Montreal Police Court, 23rd October 1893.

705. Evidence in certain cases of libel. —(As amended by 56 Vic., c. 32.) In any criminal proceeding commenced or prosecuted for publishing any extract from, or abstract of, any paper containing defamatory matter and which has been published by, or under the authority of, the Senate, House of Commons, or any Legislative Council, Legislative Assembly or House of Assembly, such paper may be given in evidence, and it may be shown that such extract or abstract was published in good faith and without ill-will to the person defamed, and if such is the opinion of the jury, a verdict of not guilty shall be entered for the defendant. R.S.C., c. 163, s. 8.

706. Evidence in cases of polygamy, etc. In the case of any indictment under section two hundred and seventy-eight (b), (c) and (d), no averment or proof of the method in which the sexual relationship charged was entered into, agreed to, or consented to, shall be necessary in any such indictment, or upon the trial of the person thereby charged; nor shall it be necessary upon such trial to prove carnal connection had or intended to be had between the persons implicated. 53 V., c. 37, s. 11.

707. Evidence of stealing ores or minerals.—In any prosecution, proceeding or trial for stealing ores or minerals the possession, contrary to the provisions of any law in that behalf, or any smelted gold or silver, or any gold-bearing quartz, or any unsmelted or otherwise unmanufactured gold or silver, by any operative, workman or labourer actively engaged in or on any mine, shall be prima facie evidence that the same has been stolen by him. R.S.C., c. 164, 8, 30.

708. Evidence of stealing timber.-In any prosecution, proceeding or trial for any offence under section three hundred and thirtyeight a timber mark, duly registered under the provisions of the Act respecting the Marking of Timber, on any timber, mast, spar, saw-log or other description of lumber, shall be primâ facie evidence that the same is the property of the registered owner of such timber mark; and possession by the offender, or by others in his employ or on his behalf, of any such timber, mast, spar, saw-log or other description of lumber so marked, shall, in all cases, throw upon the offender the burden of proving that such timber, mast, spar, saw-log or other description of lumber came lawfully into his possession, or into the possession of such others in his employ or on his behalf. RS.C.. c. 174, s. 228.

709. Evidence in cases relating to public stores.-In any prosecution, proceeding or trial under sections three hundred and eightyfive to three hundred and eighty-nine inclusive for offences relating to public stores proof that any soldier, seaman or marine was actually doing duty in Her Majesty's service shall be primâ facie evidence that his enlistment, entry or enrolment has been regular.

2 If the person charged with the offence relating to public stores mentioned in article three hundred and eighty-seven was, at the time at which the offence is charged to have been committed, in Her Majesty's service or employment, or a dealer in marine stores, or a

dealer in old metals, knowledge on his part that the stores to which the charge relates bore the marks described in section three hundred and eighty-four shall be presumed until the contrary is shown. 50-51 V., c. 45, s. 13.

710. Evidence in cases of fraudulent marks on merchandise.—In any prosecution, proceeding or trial for any offence under Part XXXIII, relating to fraudulent marks on merchandise, if the offence relates to imported goods evidence of the port of shipment shall be prima facie evidence of the place or country in which the goods were made or produced. 51 V., c. 41, s, 13.

2. Provided that in any prosecution for forging a trade mark the burden of proof of the assent of the proprietor shall lie on the defendant.

711. Full offence charged.-Attempt proved.—When the complete commission of the offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of such attempt and punished accordingly. R.S.C., c. 174, s. 183.

See Article 64 and comments and authorities, at pp. 40-42, ante, as to what constitutes an attempt to commit a crime.

The provision contained in the above Article 711 was derived from sec. 9 of the Imperial statute 14 and 15 Viet, c. 100, by which, after reciting that offenders often escaped conviction by reason that such persons ought to have been charged with attempting to commit offences, and not with the actual commission thereof, it was enacted that, "if on the trial of any person charged with any felony or misdemeanor it shall appear to the jury upon the evidence that the defendant did not complete the offense charged but that he was guilty only of an attempt to commit the same, such per-on shall not by reason thereof be entitled to be acquitted, but the Jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried." It was held that upon this clause the defendant could only be convicted of the attempt to commit the very offence with which he was charged, 1) and that the jury could not convict of an attempt which was made a felony by statute, but only of an attempt which was a misdemeanor. (2) Where an indictment charged A. with rape and B. with aiding him, and the Jury found A guilty of attempt to commit rape and B. of aiding in the attempt, it was contended that this finding amounted to an acquittal of B., as the case was not within sec 9 of 14 and 15 Viet,, c. 105, but the objection was overruled, and the conviction of B., for misdemeanor was affirmed. (3)

It was recently held by the court of Queen's Bench (Appeal Side, at Montreal, that a verdict of attempt to assault was not irregular. (1)

712. Attempt charged. —Full offence proved.—When an attempt to commit an offence is charged but the evidence establishes the commis

(1) R. v. McPherson, Dears & B. 197; 26 L. J. (M. C.) 134.

(2) R. v. Connell. 6 Cox. 178.

(3) R. v. Hapgood, L. R., 1 C.C.R., 221; R. v. Wyatt, 39 L. J. (M. C.) 83, S. C. (4) Leblanc v. R. (Dec. 1892), 1 Mon. Law. Dig. 133; 16 L. N. 187.

sion of the full offence, the accused shall not be entitled to be acquitted, but the Jury may convict him of the attempt, unless the court before which such trial is had thinks fit, in its discretion, to discharge the Jury from giving any verdict upon such trial, and to direct such person to be indicted for the complete offence.

2. Provided that after a conviction for such attempt the accused shall not be liable to be tried again for the offence which he was charged with attempting to commit. R.S.C, c. 174, s. 184.

713. offence charged-Part only proved.-Every count shall be deemed divisible; and if the commission of the offence charged, as described in the enactment creating the offence or as charged in the count, includes the commission of any other offence the person accused may be convicted of any offence so included which is proved, although the whole offence charged is not proved; or he may be convicted of an attempt to commit any offence so included :

2. Provided, that on a count charging murder, if the evidence proves manslaughter but does not prove murder, the Jury, may find the accused not guilty of murder but guilty of manslaughter, but shall not on that count find the accused guilty of any other offence.

This Article follows the common law rule, (now considerably extended by the abolition of the distinction between felonies and misdemeanors), under which it is not necessary to prove, to the full extent laid, the offence charged in the indictment, provided the facts actually proved constitute an offence punishable by law, and for which the defendant may by law be convicted on that indictment. (1) Thus, where an offence at common law was subjected by statute to a higher degree of punishment when committed under certain special circums tances, if, upon an indictment under the statute, the prosecutor proved the commission of the offence but failed to prove the special circumstances required by the statute to augment the punishment, the defendant could be convicted of the common law offence. (2)

Under this rule, if upon an indictment for burglary and stealing goods, there be no burglary but only stealing proved, or if upon an indictment for robbery there be proof of the stealing of the property but not that it was taken from the person by violence or putting in fear, the prisoner may be convicted of the simple theft. (3) Indeed, upon an indictment for burglary and stealing the prisoner may be convicted either of burglary, of entering a dwelling-house in the night with intent to commit an indictable offence therein, of housebreaking, of stealing in a dwelling-house to the amount of $25, (if the property stolen be laid in the indictment to be of that value) or simply of theft, according to the facts proved. (4)

Upon an indictment for assaulting and unlawfully wounding and ill-treating the prosecutor and thereby occasioning him actual bodily harm the defendant may be convicted of a common assault. (5)

(1) R. v. Hollingberry, 4 B. & C. 330; R. v. Hunt., 2 Camp. 583; R. v. Williams, 2 Camp. 246

(2) Hale, 191, 192.

(3) 2 Hale, 203.

(4) R. v. Compton, 3 C. & P. 418; R. v. Bullock, 1 Moo. C. C. 423; R. v. Brookes, C & Mar. 543.

(5) R. v. Oliver, Bell, 287; 30 L. J. (M. C.) 12; R. v. Yeadon, L. & C. 81; 31 L. J. (M. C.) 70.

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