prove that his witness made at any time a different account of the same transaction seems to be new law according to the said case of R. v. Ball, ubi supra. See R. v. Little, 15 Cox, 319.

FORMER WRITTEN STATEMENTS BY WITNESS.

700. Upon any trial a witness may be cross-examined as to previous statements made by him in writing, or reduced to writing, relative to the subject-matter of the case, without such writing being shown to him; but if it is intended to contradict the witness by the writing his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him; and the judge, at any time during the trial, may require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he thinks fit: Provided that a deposition of the witness, purporting to have been taken before a justice on the investigation of the charge and to be signed by the witness and the justice, returned to and produced from the custody of the proper officer, shall be presumed prima facie to have been signed by the witness. R. S. C. c. 174, s. 235.

The words " upon any trial" mean upon any trial in any criminal case." This enactment is reproduced from s. 5 of 28 V. c. 18 of the Imperial statutes, An Act for Amending the Law of Evidence and Practice on Criminal Trials: upon which see 2 Taylor Ev. pars. 1301, 1302, 1303; 3 Russ. 550. The general rule was that, when a contradictory statement alleged to have been made by the witness was contained in a letter or other writing, the cross-examining party should produce the document as his evidence, and have it read, in order to base any questions to the witness upon it. The above clause abrogates this rule, under which was excluded one of the best tests by which the memory and integrity of a witness can be tried: 2 Taylor Ev. par. 1301. Before the abrogation of the rule the witness could not be asked whether he did or did not state a particular fact before the magistrate, without first allowing him to read, or have read to him, his deposition: R. v. Edwards, 8 C. & P. 26. And it was irregular to question a witness as to the contents of a former declaration, affidavit, letter or any writing made or written by him, or taken in writing as his declaration or deposition, without first having the said writing read: The Queen's case, 2 Brod. & B. 288.

The prosecution cannot use or refer to the depositions without putting them in: R. v. Muller, 10 Cox, 43.

But if the former declarations of the witness were not in writing, but merely by parol, he may be cross-examined on the subject of it, and if he deny it another witness may be called to prove it, if it be a matter relevant to the issue; if not relevant to the issue, the witness' answer is conclusive: 2 Taylor Ev. par. 1295.

PROOF OF CONTRADICTORY STATEMENT BY WITNESS.

701. If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness and he shall be asked whether or not he did make such statement. R. S. C. c. 174, s. 236.

This enactment is taken from s. 4 of the 28 V. c. 18 of the Imperial statutes.

Formerly there was some difference of opinion as to whether, in such a case, proof might be given that the witness had made the statement denied by him. It must be observed that the clause applies only to a statement relative to the subject matter of the case. If it is not relative to the subject matter of the case the answer given by the witness must be taken as conclusive. It seems that questions respecting the motives, interest or conduct of the witness, as connected with the cause or with either of the parties, are relevant quoad this enactment, though Coleridge, J., in R. v. Lee, 2 Lewin, 154, held that if a witness denies that he has tampered with the other witnesses evidence to contradict him cannot be received. This case was before the statute, and does not specially apply to a former statement made by a witness. As to the last part of the clause it is based on a principle always received under the rules of evidence. It was held in the Queen's case, 2 Brod. & B. 311, that where a witness for a prosecution has been examined in chief, the defendant cannot afterwards give evidence

of any declaration by such witness, or of acts done by him, to procure persons corruptly to give evidence in support of the prosecution, unless he has previously cross-examined such witness as to such declarations or acts.

EVIDENCE-COMMON GAMING-HOUSE.

702. When any cards, dice, balls, counters, tables or other instruments of gaming used in playing any unlawful game are found in any house, room or place suspected to be used as a common gaming-house, and entered under a warrant or order issued under this Act, or about the person of any of those who are found therein, it shall be prima facie evidence, on the trial of a prosecution under section one hundred and ninety-eight, that such house, room or place is used as a common gaming-house, and that the persons found in the room or place where such tables or instruments of gaming are found were playing therein although no play was actually going on in the presence of the chief constable, deputy chief constable or other officer entering the same under a warrant or order issued under this Act, or in the presence of those persons by whom he is accompanied as aforesaid. R. S. C. c. 158, s. 4. 8-9 V. c. 109, s. 2 (Imp.).

This provision applies to prosecutions under s. p. 134, ante. As to search warrant see s. 575, p. 643. next section.

198,

See

Sections 9 & 10 R. S. C. c. 158, on the same subject are unrepealed.

703. It shall be prima facie evidence in any prosecution for keeping a common gaming-house under section one hundred and ninety-eight of this Act that a house, room or place is used as a common gaming-house, and that the persons found therein were unlawfully playing therein

(a) if any constable or officer authorized to enter any house room or place, is wilfully prevented from, or obstructed or delayed in, entering the same or any part thereof; or

(b) if any such house, room or place is found fitted or provided with any means or contrivance for unlawful gaming, or with any means or contrivance for concealing, removing or destroying any instruments of gaming. R. S. C. c. 158, s. 8. 17-18 V. c. 38, s. 2 (Imp.).

EVIDENCE OF GAMING IN STOCKS.

704. Whenever, on the trial of a person charged with making an agree. ment 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 bona fide intention to acquire or to sell such goods, wares or merchandise, or to deliver or to receive delivery thereof, as the case may be, shall rest upon the person so charged. 51 V. c. 42, s. 2.

See s. 201, ante.

EVIDENCE IN CERTAIN CASES OF LIBEL

705. 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 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. Amendment of 1893.

EVIDENCE OF POLYGAMY.

706. 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. See s. 278, ante.

EVIDENCE OF STEALING MINERALS.

707. 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, s. 30.

See s. 571 as to search warrant.

of metals, etc., see s. 343.

As to stealing of ores

EVIDENCE UNDER SECTION 338.

708. In any prosecution, proceeding or trial for any offence under section three hundred and thirty-eight 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 prima 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. R. S. C. c. 174, s. 228.

The Act respecting the marking of timber is c. 64, R. S. C. See ss. 338 and 572, ante.

EVIDENCE UNDER SECTIONS 385, ET SEQ.

709. In any prosecution, proceeding or trial under sections three hundred and eighty-five 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. 38-39 V. c. 25 (Imp.).

See ss. 384, et seq.

EVIDENCE OF FRAUDULENT TRADE MARKS.

710. 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.

See ss. 443, et seq.

VERDICT OF ATTEMPT.

711. 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, ss. 183, 185.

This section does not apply to murder, s. 713. See remarks under ss. 64 and 529; and as to punishment, in cases not specially provided for, ss. 528, 529 and 951. Under s. 713 the defendant may be convicted of attempting to commit any offence included in the offence charged.

This clause is taken from s. 9 of 14 & 15 V. c. 100 of the English statutes, upon which Greaves has the following remarks:

"As the law existed before the passing of this Act (except in the case of the trial for murder of a child, and the offences falling within the 1 V. c. 85, s. 11,) there was no power upon the trial of an indictment for any felony to find a verdict against a prisoner for anything less than a felony, or upon the trial of an indictment for a misdemeanour to find a verdict for an attempt to commit such misdemeanour: see R. v. Catherall, 13 Cox, 109; R. v. Woodhall, 12 Cox, 240;