that has not been expressly affirmed, and the affirmative of everything which has not been expressly negatived": Saunders.

If there be any exception contained in the same clause of the Act which creates the offence the indictment must show negatively that the defendant does not come within the exception: R. v. Earnshaw, 15 East 456; R. v. Baxter, 5 T. R. 83; R. v. Pearce, R. & R. 174. If, however, the exception or proviso be in a subsequent clause or statute, or, although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, it is matter of defence, and need not be negatived in the indictment: R. v. Hall, 1 T. R. 320; Steel v. Smith, 1 B. & Ald. 94; R. v. White, 21 U. C. C. P. 354; R. v. Strachan, 20 U. C. C. P. 182; R. v. MacKenzie, 6 O. R. 165.

In an indictment under s. 431 of this Code, for instance, it must be averred that the defendant made the document with intent to defraud and without lawful authority or excuse. An indictment, however, which would negative only "lawful excuse" and not "lawful authority" would be sufficient: R. v. Harvey, L. R. 1 C. C. R. 284. As to the rules of evidence in such cases, see Taylor, Ev. par. 344, et seq.

An indictment for indecent assault by a male on another male (see s. 260 ante) is defective, even after verdict, if it does not aver that defendant is a male: R. v. Montminy, Quebec, Q. B. May, 1893.

Such are the rules that have heretofore been recognized in the framing of indictments. How far this Code alters them remains to be settled by the jurisprudence. But it must not be lost sight of that it is technical objections only that the Imp. Commissioners report as being put an end to by the Code. That every indictment must charge an offence, and that every accused person is entitied to know what he is accused of, still remains the law, it must be assumed: R. v. Clement, 26 U. C. Q. B. 297; see case of R. v. Cummings under s. 933 post. Parliament has undoubtedly the right to decree that such shall not be the

law any longer, but when they come to that determination the courts of the country will probably require that such determination be expressed in clear and unequivocal terms. S-s. 2 of this s. 611 assumes negatively that all matter of fact necessary to be proved must be alleged in the indictment. It still remains the rule that an indictment which does not substantially set down all the elements of the offence is void see 1 Bishop, Cr. Proc. 98.

OFFENCES MAY BE CHARGED IN THE ALTERNATIVE. (New).

612. A count shall not be deemed objectionable on the ground that it charges in the alternative several different matters, acts or omissions which are stated in the alternative in the enactment describing any indictable offence or declaring the matters, acts or omissions charged to be an indictable offence, or on the ground that it is double or multifarious: Provided that the accused may at any stage of the trial apply to the court to amend or divide any such count on the ground that it is so framed as to embarrass him in his defence.

2. The court, if satisfied that the ends of justice require it, may order any count to be amended or divided into two or more counts, and on such order being made such count shall be so divided or amended, and thereupon a formal commencement may be inserted before each of the counts into which it is divided,

Though the statute is in the disjunctive the offence may be charged in the conjunctive. An indictment under s. 436 for instance, which charges that the defendant did destroy, deface and injure a register is not bad for duplicity or multifariousness, though the section says "destroy, deface or injure ": R. v. Bowen, 1 Den. 22, and cases there cited; also R. v. Patterson, 27 U. C. Q. B. 142. The above section permits of an alternative charge only where the statute itself describes the offence in the alternative. A charge made in the alternative as a general rule is no charge at all; the defendant either did one thing or the other; per Gurney, B., in R. v. Bowen, ubi supra. An indictment that would charge an offence in the disjunctive would be bad, if not amended, though the defect would be cured by verdict under s. 784.

See R. v. Baby, 12 U. C. Q. B. 346, and Cotterill v. Lempriere, 17 Cox, 97.

CERTAIN OBJECTIONS NOT FATAL. (New).

613. (As amended in 1893). No count shall be deemed objectionable or insufficient on any of the following grounds; that is to say:

(a) that it does not contain the name of the person injured, or intended, or attempted to be injured; or

(b) that it does not state who is the owner of any property therein mentioned; or

(c) that it charges an intent to defraud without naming or describing the person whom it was intended to defraud; or

(d) that it does not set out any document which may be the subject of the charge; or

(e) that it does not set out the words used where words used are the subject of the charge; or

(f) that it does not specify the means by which the offence was committed; or

(g) that it does not name or describe with precision any person, place or thing: or

(h) in cases where the consent of any person is required before a prosecution can be instituted, that it does not state that such consent has been obtained :

Provided that the court may, if satisfied that it is necessary for a fair trial, order that a particular further describing such document, words, means, person, place or thing be furnished by the prosecutor.

These are extended re-enactments of various clauses of the Procedure Act, c. 174, R. S. C. ss. 112, 114. 116, 117, 130. S-8. (c) assumes that it is necessary in some cases to allege an intent to defraud. See post, under s. 617, for the case where particulars have been ordered.

INDICTMENTS FOR HIGH TREASON.

614. Every indictment for treason or for any offence against Part IV. of this Act must state overt acts, and no evidence shall be admitted of any overt act not stated unless it is otherwise relevant as tending to prove some overt act stated.

2. The power of amending indictments herein contained shall not extend to authorize the court to add to the overt acts stated in the indictment.

This should apply only to ss. 65 & 69. It is erroneously made to apply to all the sections of part IV.

INDICTMENTS FOR LIBEL.

615. No count for publishing a blasphemous, seditious, obscene or defamatory libel, or for selling or exhibiting an obscene book, pamphlet, newspaper or other printed or written matter, shall be deemed insufficient on the ground that it does not set out the words thereof: Provided that the court may order that a particular shall be furnished by the prosecutor stating what passages in such book, pamphlet, newspaper, printing or writing are relied on in support of the charge.

2. A count for libel may charge that the matter published was written in a sense which would make the publishing criminal, specifying that sense with

out any prefatory averment showing how that matter was written in that sense. And on the trial it shall be sufficient to prove that the matter published was criminal either with or without such innuendo,

See form of indictment for a defamatory libel under s. 611, ante.

INDICTMENTS FOR PERJURY AND OTHER OFFENCES. (New).

616. No count charging perjury, the making of a false oath or of a false statement, fabricating evidence or subornation, or procuring the commission of any of these offences, shall be deemed insufficient on the ground that it does not state the nature of the authority of the tribunal before which the oath or statement was taken or made, or the subject of the inquiry, or the words used or the evidence fabricated, or on the ground that it does not expressly negative the truth of the words used: Provided that the court may, if satisfied that it is necessary for a fair trial, order that the prosecutor shall furnish a particular of what is relied on in support of the charge,

2. No count which charges any false pretense, or any fraud, or any attempt or conspiracy by fraudulent means, shall be deemed insufficient because it does not set out in detail in what the false pretenses or the fraud or fraudulent means consisted: Provided that the court may, if satisfied as afore said, order that the prosecutor shall furnish a particular of the above matters or any of them.

3. No provision hereinbefore contained in this part as to matters which are not to render any count objectionable or insufficient shall be construed as restricting or limiting in any way the general provisions of section six hundred and eleven. R. S. C. c. 174, ss. 107, 108. 14-15 V. c. 100, ss. 20, 21 (Imp.).

See R. v. Dunning, 11 Cox, 651; and R. v. Hare, 13 Cox, 174. See forms of indictments for false pretenses and for perjury in form FF of schedule 1, under s. 611, ante. The sections on perjury are 145, et seq. on false pretenses, 358, et seq.; for conspiracies see under s. 527; Howard v. R., 10 Cox, 54, cannot now be followed.

PARTICULARS. (New).

617. When any such particular as aforesaid is delivered a copy shall be given without charge to the accused or his solicitor, and it shall be entered in the record and the trial shall proceed in all respects as if the indictment had been amended in conformity with such particular.

2. In determining whether a particular is required or not, and whether a defect in the indictment is material to the substantial justice of the case or not, the court may have regard to the depositions.

See R. v. Hamilton, 3 Russ. 173, and Greaves' note where particulars were ordered by the court: R. v. Stapylton, 8 Cox, 69; R. v. Hodgson, 3 C. & P. 422; R. v. Bootyman,

5 C. & P. 300. Any bill of particulars may itself be amended at the trial under s. 723. An application for particulars should be made before the trial, but the court has full discretionary powers in the matter: s-s. 3, s. 723.

INDICTMENT UNDER SECTION 361.

618 It shall not be necessary to allege, in any indictment against any person for wrongfully and wilfully pretending or alleging that he inclosed and sent, or caused to be inclosed and sent, in any post letter, any money, valuable security or chattel, or to prove on the trial, that the act was done with intent to defraud. R. S. C. c. 174, s. 113.

This enactment is useless. It was in the original statute of 1869, because there the offence was made one of obtaining money under false pretenses. But now s. 361 does not contain such an enactment, and does not require an intent to defraud.

INDICTMENTS IN CERTAIN CASES. (Amended).

619. An indictment shall be deemed sufficient in the cases following:

(a) If it be necessary to name the joint owners of any real or personal property, whether the same be partners, joint tenants, parceners, tenants in common, joint stock companies or trustees, and it is alleged that the property belongs to one who is named, and another or others as the case may be ;

(b) If it is necessary for any purpose to mention such persons and one only is named ;

(c) If the property in a turnpike road is laid in the trustees or commissioners thereof without specifying the names of such trustees or commissioners;

(d) If the offence is committed in respect to any property in the occupation or under the management of any public officer or commissioner, and the property is alleged to belong to such officer or commissioner without naming him;

(e) If, for an offence under section three hundred and thirty-four, the oyster bed, laying or fishery is described by name or otherwise, without stating the same to be in any particular county or place. R. S. C. c. 174, ss. 118, 119, 120, 121 & 123.

Sub-sections (a) & (b) are taken from the Imperial Act, 7 Geo. IV. c. 64, s. 14. Formerly, where goods stolen were the property of partners, or joint-owners, all the partners or joint owners must have been correctly named in the indictment, otherwise the defendant would have been acquitted.

The word "parceners" refers to a tenancy which arises. when an inheritable estate descends from the ancestor to