2ND EDIT. REVISED STATUTES 1906 REMARKS in sections 378 and 424, it shall be sufficient to lay the property in His Majesty, or in any person or corporation, in different counts in such indictment. (19) Sec. 622. Sec. 867. Indictment for offences in respect of post Unchanged. cards, etc. Sec. 623. Sec. 868. Indictment for theft by public employees. Unchanged in meaning. Sec. 624. Sec. 869. Indictments for offences respecting letter bags and other mailable matter. When an offence is committed in respect of a post letter bag, or a post letter, or other mailable matter, chattel, money or valuable security sent by post, the property of such post letter bag, post letter, or other mailable matter, chattel, money or valuable security may, in the indictment preferred against the offender, be laid in the Postmaster General; and it shall not be necessary to allege in the indictment, or to prove upon the trial or otherwise, that the post letter bag, post letter or other mailable matter, chattel or valuable security was of any value. 2. The property of any chattel or thing used or employed in the service of the post office, or of moneys arising from duties of postage, shall, except in the cases aforesaid, be laid in His Majesty, if the same is the property of His Majesty, or if the loss thereof would be borne by His Majesty, and not by any person in his private capacity. (20) PREFERRING INDICTMENT. Sec. 870. Order by Judge, for prosecution, when perjury committed before him. Any judge of any court of record, before whom any inquiry or trial is held, and which he is by law required or authorized to hold, may, if it appears to him that any person has been guilty of wilful and corrupt perjury in any evid (19) Taken from the first half of the old section 621; the latter half of that old section being made into section 893, post. (20) Taken from the first two paragraphs of the old section 624, the third paragraph of which is made into section 850, ante. - 2ND EDIT. REVISED STATUTES 1906 REMARKS ence given, or in any affidavit, affirmation, declaration, deposition, examination, answer or other proceeding made or taken before him, direct such person to be prosecuted for such perjury, if there appears to such judge a reasonable cause for such prosecution. 2. Such judge may commit such person until the next term, sittings or session of any court having power to try for perjury, in the jurisdiction within which such perjury was committed, or permit such person to enter into a recognizance, with one or more sufficient sureties, conditioned for his appearance at such next term, sittings or session, and that he will then surrender and take his trial and not depart the court without leave. 3. Such judge may require any person he thinks fit to enter into a recognizance conditioned to prosecute or give evidence against the person so directed to be prosecuted. (21) Sec. 641. Sec. 871. Any one bound over may prefer indictment. Any one who is bound over to prosecute any person, whether committed for trial or not, may prefer a bill of indictment for the charge on which the accused has been committed, or in respect of which the prosecutor is so bound over, or for any charge founded upon the facts or evidence disclosed on the depositions taken before the justice. 2. The accused may at any time before he is given in charge to the jury apply to the court to quash any count in the indictment on the ground that it is not founded on such facts or evidence, and the court shall quash such count if satisfied that it is not so founded. 3. If at any time during the trial it appears to the court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of such count remaining in the indictment, the court may then quash such (21) Taken from the R. S. C., 1886, c. 154, sec. 4, set forth at page 140 of the Author's second edition. 2ND EDIT. REVISED STATUTES 1906 REMARKS count and discharge the jury from finding any verdict upon it. (22) Sec. 872. Crown Counsel may prefer indictment. The counsel acting on behalf of the Crown at any court of criminal jurisdiction may prefer against any person who has been committed for trial at such court a bill of indictment for the charge on which the accused has been so committed or for any charge founded on the facts or evidence disclosed in the depositions taken before the justice. (22) Sec. 873. Attorney General, or any one by his direction, or any one with a Judge's written consent, or with consent of Attorney General, or by order of the Court, may prefer an indictment. The Attorney General or any one by his direction or any one with the written consent of a judge of any court of criminal jurisdiction or of the Attorney General, may prefer a bill of indictment for any offence before the grand jury of any court specified in such consent. 2. Any person may prefer any bill of indictment before any court of criminal jurisdiction by order of such court. 3. It shall not be necessary to state such consent or order in the indictment and an objection to an indictment for want of such consent or order must be taken by motion to quash the indictment before the accused person is given in charge. 4. Except as in this Part previously provided no bill of indictment shall be preferred in any province of Canada. (22) Sec. 8734. Mode of charge in Saskatchewan and Alberta. In the provinces of Saskatchewan and Alberta, it shall not be necessary to prefer any bill of indictment before a grand jury, but it shall be sufficient that the trial of any person charged with a criminal offence be commenced by a formal charge in writing setting forth, as in an indictment, the offence with which he is charged. (22) The old section, 641, is divided into these three new sections, 871, 872 and 873. without any material alterations. 2ND EDIT. REVISED STATUTES 1906 REMARKS 2. Such charge may be preferred by the Attorney General, or by any person with the written consent of the judge of the court or of the Attorney General, or by order of the Court. (Added by the Criminal Code Amendment Act 1907, 6 and 7 Ed. VII, c. 8). Where the order or consent of the presiding judge is necessary to validate the preferring of an indictment, such order or consent must be put in writing before the indictment is brought in, and it cannot be afterwards made nunc pro tunc. (23) Sec. 642. No trial upon a Coroner's Inquisition. PROCEEDINGS BEFORE THE GRAND JURY. Sec. 643. Sec. 874. Oath of a witness before a grand jury need not be taken in open court. Unchanged. Sec. 875. Oath may be administered by foreman. Unchanged. Sec. 644. The swearing of the grand jury should take place after its members are duly empanelled, and the foreman's oath should be taken in the presence of the other grand jurors, they being afterwards sworn to observe the same oath. (25) It is not necessary for the prisoner to be present in court when the grand jury is sworn. (26) In the province of British Columbia it is imperative that thirteen jurors should be summoned for service on the grand jury, although seven of those appearing are sufficient to constitute a grand jury; and where the sheriff summoned only twelve, and omitted to summon the thirteenth because he was informed that the latter had become demented, seven of such twelve do not constitute a grand jury; and they are not competent to find an indictment. (27) Objections to the constitution of the grand jury are, by sec. 899, post, restricted to cases where the accused is prejudiced by the irregularity; but this restriction or limitation does not apply where a grand jury was never legally constituted. (28) Where the provincial statute governing the selection of jurors requires that only the first six names on the previous grand jury list shall be omitted and that six new selections be made to fill (23) R. v. Beckwith, 7 Can. Cr. Cas., 450. (24) And transferred to section 940, post. (25) R. v. Belanger, 6 Can. Cr. Cas., 275. (26) R. v. Mathurin, 8 Can. Cr. Cas., 1. (27) R. v. Hayes, 7 Can. Cr. Cas.. 453; 11 B. C. R., 4. (28) Ib. 2ND EDIT. REVISED STATUTES 1906 REMARKS their places, the drawing of twelve new men as grand jurors is ineffectual to constitute a grand jury, and an indictment brought in by them while assuming to act as a grand jury will be quashed on motion. (29) Sec. 645. Sec. 876. Names of witnesses to be endorsed on bill. Unchanged. The requirement that the foreman of the grand jury shall initial upon the bill of indictment the names of the witnesses examined before the grand jury is imperative, and not merely directory; and the failure to observe such requirement is good ground for quashing the indictment. (30) The omission to endorse, upon the bill of indictment, the names of witnesses summoned by the grand jury of its own motion does not invalidate the indictment; but the court may send for the grand jury and direct the names of such additional witnesses to be endorsed and initialled, so that the accused may have notice upon whose testimony a true bill has been found. (31) Sec. 646. Sec. 877. Names of witnesses must be submitted to Unchanged. grand jury. Depositions taken at the preliminary enquiry can only be read to the grand jury in cases where such depositions can be used as evidence before a petty jury at the trial. (32) The evidence taken under a commission is admissible before the grand jury. (33) The grand jury is at liberty to examine the Crown witnesses in any order they see fit, and the examination of a single one of the witnesses constitutes neither an irregularity nor an illegality, when it is admitted that this witness was in a position to establish full admission on the part of the prisoner. (34) The presence in the grand jury room during the deliberations of the grand jury, of an unauthorized person, (summoned as a grand juror but not impanelled), will not invalidate an indictment then under consideration, if such person was excluded from the grand jury room before the presentment, unless it be shewn that the accused was thereby prejudiced. (35) On discovery that a person summoned as a grand juror and coming into Court with the grand jury to present an indictment had not been sworn and had been admitted to the grand jury room dur (29) R. v. McDougall, 8 Can. Or. Cas., 283. (30) R. v. Belanger, supra. (31) R. v. Holmes, 6 Can. Cr. Cas., 402. (32) R. v. Belanger, supra. (33) R. v. Venot, Can. Cr. Cas., 471. (34) R. v. Mathurin, 8 Can. Cr. Cas., 1. (35) R. v. Kelly, 9 Can. Cr. Cas., 130; Can. Ann. Dig., (1905), 172. |