Page images
PDF
EPUB

(x.) The expression" shipwrecked person" includes any person belonging to, on board of or having quitted any vessel wrecked, stranded, or in distress at any place in Canada; R.S.C., c. 81, s. 2 (h.)

(y.) The expression "Superior Court of Criminal Jurisdiction" means and includes the following courts:

(i.) In the province of Ontario, the three divisions of the High Court of Justice;

(ii.) In the province of Quebec, the Court of Queen's Bench.

(iii.) In the provinces of Nova Scotia, New Brunswick and British Columbia, and in the North-west Territories, the Supreme Court;

(iv.) In the province of Prince Edward Island, the Supreme Court of Judicature;

(v.) In the province of Manitoba, the Court of Queen's Bench (Crown side);

(z.) The expression "territorial division" includes any county, union of counties, township, city, town, parish or other judicial division or place to which the context applies; R.S.C., c. 174, s. 2 (g).

(aa). The expression "testamentary instrument" includes any will, codicil, or other testamentary writing or appointment, as well during the life of the testator whose testamentary disposition it purports to be as after his death, whether the same relates to real or personal property, or both; R.S.C., c. 164, s. 2 (i).

(bb.) The expression "trustee " means a trustee on some express trust created by some deed, will or instrument in writing, or by parol, or otherwise, and includes the heir or personal representative of any such trustee, and every other person upon or to whom the duty of such trust has devolved or come, whether by appointment of a court or otherwise, and also an executor and administrator, and an official manager, assignee, liquidator or other like officer acting under any Act relating to joint stock companies, bankruptcy or insolvency, and any person who is, by the law of the province of Quebec, an "administrateur" or "fideicommissaire"; and the expression "trust" includes whatever is by that law an administration or "fidéicommission"; R.S.C., c. 164, s. 2 (c).

((

[ocr errors]

(cc.) The expression "valuable security" includes any order, exchequer acquittance or other security entitling or evidencing the title of any person to any share or interest in any public stock or fund, whether of Canada or of any province thereof, or of the United Kingdom, or of Great Britain or Ireland, or any British colony or possession, or of any foreign state, or in any fund of any body corporate, company or society, whether within Canada or the United Kingdom, or any British colony or possession, or in any foreign state or country, or to any deposit in any savings bank or other bank, and also includes any debenture, deed, bond, bill, note, warrant, order or other security for money or for payment of money, whether of Canada or of any province thereof, or of the United

Kingdom or of any British colony or possession, or of any foreign state, and any document of title to lands or goods as herein before defined wheresoever such lands or goods are situate, and any stamp or writing which secures or evidences title to or interest in any chattel personal, or any release, receipt, discharge or other instrument, evidencing payment of money, or the delivery of any chattel personal; and every such valuable security shall, where value is material, be deemed to be of value equal to that of such unsatisfied money, chattel personal, share, interest or deposit, for the securing or payment of which, or delivery or transfer or sale of which, or for the entitling or evidencing title to which, such valuable security is applicable, or to that of such money or chattel personal, the payment or delivery of which is evidenced by such valuable security; 53 V., c. 37, s. 20.

(dd.) The expression "wreck" includes the cargo, stores and tackle of any vessel and all parts of a vessel separated therefrom, and also the property of shipwrecked persons;

(ee.) The expression "writing" includes any mode in which and any, material on which, words or figures whether at length, or abridged are written, printed or otherwise expressed, or any map or plan is inscribed.

4. Meaning of expressions in other Acts. The expression "mail, "mailable matter," "post letter," "post letter bag," and " post office" when used in this Act have the meanings assigned to them in The Post Office Act, and in every case in which the offence dealt with in this Act relates to the subject treated of in any other Act the words and expressions used herein in respect to such offence shall have the meaning assigned to them in such other Act.

[ocr errors]
[ocr errors]

The Post Office Act," assigns to the above expressions the following meanings:

The expression "MAIL includes every conveyance by which post letters are carried, whether it is by land or by water;

The expression "MAILABLE MATTER " includes any letter, packet, parcel, newspaper, book or other thing which by this Act, or by any regulation made in pursuance of it, may be sent by post;

75

The expression 44 POST LETTER means any letter transmitted by the post or delivered through the post or deposited in any post office or in any letter box put up anywhere under the authority of the Postmaster General, and a letter shall be deemed a post letter from the time of its being so deposited or delivered to the time of its being delivered to the person to whom it is addressed; and a delivery to any person authorized to receive letters for the post shall be deemed a delivery at the post office; and a delivery of any letter or other mailable matter at the house or office of the person to whom the letter is addressed, or to him, or to his servant or agent, or other person considered to be authorized to receive the letter or other mailable matter, according to the usual manner of delivering that person's letters shall be a delivery to the person addressed:

The expression "POST LETTER BAG" includes a mail bag, basket or box, or packet or parcel, or other envelope or covering in which mailable matter is conveyed whether it does or does not actually contain mailable matter;

The expression "post office" means any building, room, post office railway car, street letter box, receiving box or other receptacle or place where post letters or other mailable matter are received or delivered, sorted, made up or despatched;

5. Offences against Imperial Statutes.-No person shall be proceeded against for any offence against any Act of the Parliament of England, of Great Britain, or of the United Kingdom of Great Britain and Ireland, unless such Act is, by the express terms thereof, or of some other Act of such Parliament, made applicable to Canada or some portion thereof as part of Her Majesty's dominions or possessions.

6. Punishments.-Every one who commits an offence against this Act is liable as herein provided to one or more of the following punishments :

(a.) Death;

(b.) Imprisonment; (c.) Whipping;

(d.) Fine;

(e.) Finding sureties for future good behaviour;

(f.) If holding office under the Crown, to be removed therefrom;

(9.) To forfeit any pension or superannuation allowance;

(h.) To be disqualified from holding office, from sitting in Parliament and from exercising any franchise;

(i.) To pay costs;

(j.) To indemnify any person suffering loss of property by commission of his offence.

PART

II.

MATTERS OF JUSTIFICATION OR EXCUSE.

7. General rule under common law. All rules and principles of the common law which render any circumstances a justification or excuse for any act, or a defence to any charge, shall remain in force and be applicable to any defence to a charge under this Act except in so far as they are hereby altered or are inconsistent herewith.

8. General rule under this Act.—The matters provided for in this part are hereby declared and enacted to be justifications or excuses in the case of all charges to which they apply.

9. Children under seven.-No person shall be convicted of an offence by reason of any act or omission of such person when under the age of seven years.

10. Children between seven and fourteen.—No person shall be convicted of an offence by reason of an act or omission of such person when of the age of seven, but under the age of fourteen years, unless

he was competent to know the nature and consequences of his conduct, and to appreciate that it was wrong.

It is well established, as a general principle, that the essence of a criminal offence is the evil or wrongful intent with which the act is done. This is the doctrine embodied in the legal maxim, Actus non facit reum nisi mens sit rea, "the act itself does not make a man guilty unless his intention were so." (1)_Of course this principle is not to be taken as absolute and without limitation. For instance, whenever the law positively forbids a thing to be done, it becomes

44

thereupon ipso facto illegal to do it wilfully, or in some cases even igno

rantly. (2) In general however, the intention of the party at the time of committing an act charged as an offence is as necessary to be proved as any other fact laid in the indictment, though it may happen that the proof of "intention consists in shewing overt acts only, the reason in such cases being "that every man is prima facie supposed to intend the necessary or even "probable or natural consequences of his own acts." (3)

But a child within the age of seven is considered without any capacity to discern good from evil or right from wrong, and is so conclusively presumed to be incapable of crime that this presumption cannot be rebutted. Between the ages of seven and fourteen there is still a presumption, but only prima facie, that the child is incapable, that is, the presumption is one which may be rebutted by clear and conclusive evidence of actual capacity. Therefore, when a child between seven and fourteen is charged with an offence it must be proved not only that he committed the act, but that he did it with a guilty knowledge of wrong doing. (4) This primà facie presumption of incapacity will, undoubtedly, grow weaker and become easier of rebuttal as the child advances towards its fourteenth year. In one case, an infant, between eight and nine was found guilty of burning two barns, and, as it appeared, upon examination, that he had malice revenge craft and cunning, he was condemned to be hanged, and was executed accordingly. (5) In another case a child of ten, after killing his companion hid himself, and as it appeared by his hiding that he could discern between good and evil he was hanged. (6) And in 1748, at Bury Assizes, before Lord Chief Justice Willes a boy of ten was convicted on his own confession of murdering his bedfellow, a girl of about five years old, and as the whole of the boy's conduct shewed undoubted tokens of a mischievous discretion the judges all agreed that he was a proper subject for capital punishment. (7)

[ocr errors]
[ocr errors]
[ocr errors]

9

[ocr errors]

44

11. Insanity. No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility, or disease of the mind, to such an extent as to render him incapable of appreciating the nature and quality of the act or omission, and of knowing that such act or omission was wrong. 2. A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.

(1) Broom's Leg. Max. 6th Ed: 300.
(2) Broom's Leg. Max. 6th Ed: 301.

Reg. v. Prince, L. R., 2 C. C. R. 154.
(3) Broom's Leg. Max. 6th Ed: 304.
R. v. Moore, 3 B. and Ad. 188.

Reg. v. Hicklin, L. R. 3 Q. B. 375.

(4) 4 Bl. Com, 23.: 1 Bish. New Cr. Law Com. p. 219; Rex v. Owen, 4 Car.

and P. 236; Rex v. Groombridge, 7 C. and P. 582.

(5) Russ. Cr. 5th Ed 119; Dean's case, 1 Hale 25, note (u.)

(6) Russ. Cr. 5th Ed. 110; Spigurnal's case, I Hale 26.

(7) 1 Russ. Cr. 5th Ed. 110,-112. York's case Fost. 70 et seq.

3. Every one shall be presumed to be sane at the time of doing or omitting to do any act until the contrary is proved.

It will be seen by this section that the defence of insanity, in order to be of any avail must be supported by evidence establishing that the accused committed the offence, either

(1) While laboring under natural imbecility or disease of the mind to such an extent that he could not appreciate the nature and quality of his act, and could not know that it was wrong, or

(2) While laboring under specific deluslons causing him, though sane in other respects, to believe in the existence of some state of things which if it existed would justify or excuse his act.

So that, if the defence be actual insanity, the mere fact of the accused being insane would not of itself be sufficient. It must be shewn also that when he committed the offence the accused was so insane, insane to so great an extent, as to render him incapable of appreciating the nature and quality of his act and to prevent him from knowing that it was wrong; and if the defence be that the accused, though sane in other respects, was when he committed the offence laboring under some delusion, it must be shewn that the specific delusion under which be was laboring caused him to believe that there then existed a state of things which if it had existed in reality would have justified or excused his act.

Taking the law therefore as here expressed a man may be insane and still be convicted of an offence in others words notwithstanding his insanity he will be held responsible and punishable, unless his insanity was such that it rendered him incapable of knowing that what he did was wrong; and although a man may be laboring under some delusion when he commits an offence he may still be convicted of and punished for that offence, unless the delusion were such that it made him believe that something then existed which if it had been a reality would have justified or excused what he did, as for instance a delusion that he was being violently attacked and in danger of being murdered, and that he was obliged in self defence to kill his supposed antagonist.

Medical experts assert that, a knowledge of the wrongfulness of an act may co-exist with insanity, that, in all lunatics and in the most degraded idiots the feeling of right and wrong may be proved to exist," and that,

66

the whole management of insane asylums presupposes a knowledge of right and wrong on "the part of their inmates." (1) On this account it is contended by some that the legal rule of responsibility should include "not only the knowledge of good and

evil but the power to choose the one and refrain from the other"; (2) and that therefore it should be a good defence to establish that the accused's insanity prevented him from controlling his actions and rendered him unable to refrain from doing the act, although he knew it tobe wrong. (3) This is said to be the law under the French and the German Codes; and the same principle has been adopted by some American Courts. (4) Sir James F. Stephen has stated that it is even the law of England. For, although the foregoing article of our code is identical, in meaning, if not in exact wording, with section 22 of the Draft of the English Criminal Code, as revised by the four Royal Commissioners appointed to consider and report thereon, and although in their joint report those Commissioners declared that section 22, as so revised by them, expressed the existing law, Sir James F. Stephen, -who was one of the Commissioners,

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

(1) Bucknill Cr. Lun., 59; Guy and F. Forensic Med., 220.

Woodman & Tidy, For. Med., 874,875; Miller's case, 3 Couper, 16-18.

1 Bish. New Cr. Law Com., pp. 232-7.

1 Beck. Med. Jur., 10 Ed., 723, 724.

(2) Browne's Med. Jur. of Ins., s.s. 13-18; Ray Med. Jur., s.s. 16-19; Whart. & Stiles Med. Jur., s. 59.

(3) Com. v. Mosler. 4 Pa., 264, 267; 1 Bish. New Cr. Com., p.p. 224, 239, 240. (4) 13 Cr. Law Mag., 28; Bradley v. State, 31 Ind. 492; Parsons v. State (Ala ), 9 Cr. Law Mag., 812-828.

« EelmineJätka »