ground that the depositions disclose statements and confessions made by one prisoner implicating another which are calculated to prejudice the jury, and that there is no legal evidence disclosed against the other prisoner: R. v. Blackburn, 6 Cox, 333.

The prosecution has always a right to a separate trial: 1 Bishop, Cr. Proc. 1034; 2 Hawk. c. 41, par. 8.

See, on the question, 1 Chit. C. L. 535; 1 Starkie, Cr. Pl. 36; 1 Bishop, Cr. Proc. 463, 1018; 1 Wharton, 433; R. v. Payne, 12 Cox, 118; O'Connell v. R., 11 Cl. & F.

155.

For conspiracy and riot there can be no severance of trial: 1 Wharton, 434; Starkie's Cr. Pl. 26, et seq.

Each count must by itself disclose an offence, and the allegations in one count cannot help the other counts: R. v. Samuels, 16 R. L. 576.

ACCESSORIES AFTER THE FACT AND RECEIVERS. (Amended).

627. Every one charged with being an accessory after the fact to an offence, or with receiving any property knowing it to have been stolen, may be indicted, whether the principal offender or other party to the offence or person by whom such property was so obtained has or has not been indicted or convicted, or is or is not amenable to justice, and such accessory may be indicted either alone as for a substantive offence or jointly with such principal or other offender or person.

2. When any property has been stolen any number of receivers at different times of such property, or of any part or parts thereof, may be charged with substantive offences in the same indictment, and may be tried together, whether the person by whom the property was so obtained is or is not indicted with them, or is or is not in custody or amenable to justice. R. S. C. c. 174, ss. 133, 136 & 138. 24-25 V. c. 96, ss. 6, 91 & 93 (Imp.).

See ss. 63, 314, 531, & 532, ante; also, ss. 715, 716, This enactment does not seem to apply to the receiving of property obtained by false pretenses.

& 717, post, as to trial of receivers.

AFTER A PREVIOUS CONVICTION.

628. In any indictment for any indictable offence, committed after a previous conviction or convictions for any indictable offence or offences or for any offence or offences (and for which a greater punishment may be inflicted on that account), it shall be sufficient, after charging the subsequent offence, to

state that the offender was at a certain time and place, or at certain times and places, convicted of an indictable offence, or of an offence or offences, as the case may be, and to state the substance and effect only, omitting the formal part of the indictment and convicti n, or of the summary conviction, as the case may be, for the previous offence, without otherwise describing the previous offence or offences. R. S. C. c. 174, s. 139

See s. 676, post, as to trial, and s. 694 as to proof.

This clause is taken from s. 116 of the English Larceny Act, 24 & 25 V. c. 96, s. 37 of the English Coin Act, 24 & 25 V. c. 99, and of s. 9, 34 & 35 V. c. 112. The words in italics are not in s. 116 of the English Larceny Act but are in s. 37 of the Coin Act. They clearly take away the necessity, before existing, of setting out at length the previous indictment, etc., and of giving in evidence a copy of that indictment.

"The proceedings on the arraignment and trial are to be as follows; (see s. 676, post):

"The defendant is first to be arraigned on that part only of the indictment which charges the subsequent offence; that is to say, he is to be asked whether he be guilty or not guilty of that offence. If he plead not guilty, or if the court order a plea of not guilty to be entered for him, then the jury are to be charged in the first instance to try the subsequent offence only. If they acquit of that offence the case is at an end; but if they find him guilty of the subsequent offence, or if he plead guilty to it on arraignment, then the defendant is to be asked whether he has been previously convicted as alleged, and if he admit that he has he may be sentenced accordingly; but if he deny it, or stand mute of malice, or will not answer directly to such question, then the jury are to be charged to try whether he has been so previously convicted, and this may be done without swearing them again, and then the previous conviction is to be proved in the same manner as before this Act passed."

The proviso as to giving evidence of the previous conviction if the prisoner gives evidence of his good character remains unaltered": Greaves' note.

See R. v. Martin, 11 Cox, 343; R. v. Thomas, 13 Cox, 52; R. v. Harley, 8 L. C. J. 280; form of indictment under 8. 337, p. 379 ante, and Greaves' note, in 2nd edit. of this work, p. 754.

In R. v. Clark, Dears. 198, it was held that any number of previous convictions may be alleged in the same indictment, and, if necessary, proved against the prisoner; by the aforesaid section this is undoubtedly also allowed.

In R. v. Fox, 10 Cox, 502, upon a writ of error by the Crown to increase the sentence, the Irish court of criminal appeal perceived that it appeared from the record that the provisions of s. 116 of the Larceny Act, under which the indictment had been tried, as to the arraigning of the prisoner, etc., had been neglected, and, thereupon, quashed the conviction.

In R. v. Spencer, 1 C. & K. 159, it was held that the indictment need not state the judgment, but the introduction of the words given in italics supra, in clause 628, seems to require the statement of the judgment. It will certainly be more prudent to allege it.

The certificate, s. 694, must state that judgment was given for the previous offence and not merely that the prisoner was convicted: R. v. Ackroyd, 1 C. & K. 158; K. v. Stonnell, 1 Cox, 142; for the judgment might have been arrested, and the statute says the certificate is to contain the substance and effect of the indictment and conviction for the previous offence; until the sentence there is no perfect conviction.

At common law a subsequent offence is not punishable more severely than a first offence; it is only when a statute declares that a punishment may be greater after a previous conviction that this clause 628 applies. So in an indictment for a misdemeanour, as for obtaining money by false pretenses, a previous conviction for felony cannot be charged: R. v. Garland, 11 Cox, 224. And then this clause does not prevent the prosecution from disregarding, if it chooses, the

fact of a previous conviction and from proceeding as for a first offence. But the court cannot take any notice of a previous conviction, unless it were alleged in the indictment and duly proved on the trial, for giving a greater punishment than allowed by law for the first offence: R. v. Summers, 11 Cox, 248; R. v. Willis, 12 Cox, 192.

To complete the proof required on a previous conviction charged in the indictment, when the prisoner does not admit it, it must be proved that he is the same person that is mentioned in the certificate produced, but it is not necessary for this to call any witness that was present at the former trial; it is sufficient to prove that the defendant is the person who underwent the sentence mentioned in the certificate: R. v. Crofts, 9 C. & P. 219; 2 Russ. 322.

By s. 676, post, it is enacted that if upon such a trial for a subsequent offence, the defendant gives evidence of his good character, it shall be lawful for the prosecutor to give in reply evidence of the previous conviction before the verdict on the subsequent offence is returned, and then the previous conviction forms part of the case for the jury on the subsequent offence.

It has been held on this proviso that if the prisoner cross-examines the prosecution's witnesses, to show that he has a good character, the previous conviction may be proved in reply: R. v. Gadbury, 8 C. & P. 676.

This doctrine was confirmed in R. v. Shrimpton, 2 Den. 319, where Lord Campbell, C.J., delivering the judgment of the court, said: "It seems to me to be the natural and necessary interpretation to be put upon the words of the proviso in the statute, that if, whether by himself or by his counsel, the prisoner attempts to prove a good character, either directly, by calling witnesses, or indirectly, by crossexamining the witnesses for the Crown, it is lawful for the prosecutor to give the previous conviction in evidence for the consideration of the jury." In the course of the argument Lord Campbell said that, however, he would not admit

evidence of a previous conviction if a witness for the prosecution, being asked by the prisoner's counsel some question which has no reference to character, should happen to say something favourable to the prisoner's character.

It is said in 2 Russ. 354: "It is obvious, that where the prisoner gives evidence of his good character the proper course is for the prosecutor to require the officer of the court to charge the jury with the previous conviction, and then to put in the certificate and prove the identity of the prisoner in the usual way. If the prisoner gives such evidence during the course of the case for the prosecution then this should be done before the case for the prosecution closes; but if the evidence of character is given after the case for the prosecution closes then the previous conviction must be proved in reply." See s. 952, post, as to punishment in certain cases.

PRELIMINARY OBJECTIONS TO INDICTMENT. (Amended).

629. Every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer, or motion to quash the indictment, before the defendant has pleaded, and not afterwards, except by leave of the court or judge before whom the trial takes place, and every court before which any such objection is taken may, if it is thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared; and no motion in arrest of judgment shall be allowed for any defect in the indictment which might have been taken advantage of by demurrer, or amended under the authority of this Act. R. S. C. c. 174, s. 143.

The words in italics are new and, it seems, relate to an objection taken at the trial, and must be read in connection with s. 723, post. S. 733, post, gives the right to move in arrest of judgment when the indictment (as amended, when amended) does not charge an indictable offence. "Indictment" defined, s. 3, and includes pleas: see R. v. Creighton, 19 O. R. 339. When should a motion to quash be made? R. v. Chapple, 17 Cox, 455. That case, how. ever, only applies to defects that are cured by verdict: see R. v. Howes, 5 Man. L. R. 339.

"It may be observed, that as the power to amend is vested entirely in the discretion of the courts, a case can