In R. v. Larkin, Dears. 365, it was held that if an indictment charging a felonious receiving of stolen goods does not aver that the prisoner knew the goods to have been so stolen, it is defective, and the defect is not cured by verdict.

An indictment under 14 & 15 V. c. 100, s. 49, for procuring the defilement of a girl by false pretenses, false representations or other fraudulent means, did not set out or allege what were the false pretenses, false representations or other fraudulent means. The defendant, having been found guilty, brought a writ of error on this ground, and the conviction was quashed: Howard v. R., 10 Cox, 54. See now, s. 616, ante.

In R. v. Warshaner, 1 Moo. 466, an indictment for having unlawfully in possession five florins, was held sufficient after verdict, though not showing what florins were and their value, it being a foreign coin, as the indictment described the offence in the words of the statute creating it.

After verdict defective averments in the second count of an indictment are cured by reference to sufficient averments in the first count: R. v. Waverton, 2 Den. 340.

Formerly, if in an indictment for obtaining property by false pretenses it did not appear who was the owner of the property so alleged to have been unlawfully obtained, the defect was not cured by verdict, and notwithstanding the above clause in such a case a conviction, upon a writ of error, would have been quashed; R. v. Bullock, Dears. 653; Sill. v. R., Dears. 132; R. v. Martin, 8 A. &. E. 481.

In R. v. Bowen, 13 Q. B. 790, the indictment was for obtaining by false pretenses, and did not contain the word 'knowingly" with "unlawfully" but the court held the conviction good after verdict, as the indictment was in the words of the statute: see Hamilton v. R., 9 Q. B. 271 and R. v. Martin, 8 A. & E. 481.

But an indictment for felony must always allege that the act which forms the subject matter of the indictment

was done feloniously; if an indictment for felony does not contain the word "feloniously" it is bad, though in the words of the statute creating the offence, and is not cured by verdict: R. v. Gray, L. & C. 365.

If an indictment under s. 83 of the Larceny Act, c. 164, R. S. C., alleges the goods to have been "unlawfully obtained, taken, and carried away, and that the receiver knew them to have been unlawfully obtained" instead of unlawfully obtained by false pretenses" the indictment is bad and not cured by verdict: see R. v. Wilson, 2 Moo. 52.

An indictment under the same section charged that defendant "unlawfully did receive goods which had been unlawfully, and knowingly, and fraudulently obtained by false pretenses with intent to defraud, as in this count before mentioned," but omitting to set out what the particular false pretenses were: held, that the objection, if at any time valid, was cured by the verdict of guilty: R. v. Goldsmith, 12 Cox, 479.

In R. v. Carr, 26 L. C. J. 61, the court quashed the indictment on the ground of the omission therein of the words "feloniously, wilfully, and of his malice aforethought," though the form given in the schedule of the Procedure Act then in force for the offence created by the clause under which the prisoner was indicted had not these words.

There is a difference between an indictment which is bad. for charging an act which as laid is no crime, and an indictment which is bad for charging a crime defectively. The latter may be aided by verdict, the former cannot: R. v. Waters, 1 Den. 356; see ante, remarks under s. 629.

it

When an indictment is quashed or judgment upon arrested for insufficiency or illegality thereof, the court will order that a new indictment be preferred against the prisoner, and may detain the prisoner in custody therefor: 1 Bishop, Cr. Proc. 739; 2 Hale, 237; 2 Hawk. 514; R. v. Turner, 1 Moo. 239; see Greaves' note in 3 Russ. 321.

In R. v. Vandercomb, 2 Leach, 708, the jury, by the direction of the court, acquitted the prisoners, as the charge as laid against them had not been proved; but as it resulted from the evidence adduced that another offence had been committed by the prisoners, and as the grand jury were not discharged, the prisoners were detained in custody in order to have another indictment preferred against them.

In R. v. Semple, 1 Leach, 420, the court quashed the indictment, upon motion of the prisoner, upon the ground of informality, but ordered the prisoner to be detained till the next session: see also 1 Chit. 304.

So, upon a demurrer, if the defendant succeeds he only obtains a little delay, for the judgment is that the indictment be quashed, and the defendant will be detained in custody until another accusation has been preferred against him, except, of course, where the demurrer has established that the defendant has not committed any legal offence. whatsoever, in which case he will be altogether discharged from custody: 1 Chit. 442.

In R. v. Gilchrist, 2 Leach, 657, the prisoner was found guilty of forgery, but, upon motion in arrest of judgment, the court held that the indictment, being repugnant and defective, the prisoner should be discharged from it, but that as the objection went only to the form of the indictment, and not to the merits of the case, the prisoner should be remanded to prison until the end of the session to afford the prosecutor an opportunity, if he thought fit, of preferring another and better indictment against him: see also R. v. Pelfryman, 2 Leach, 563.

In Archbold, page 166, it is said: Upon the delivery of the verdict, if the defendant be thereby acquitted on the merits, he is forever free and discharged from that accusation, and is entitled to be immediately set at liberty, unless there be some other legal ground for his detention. If he be acquitted from some defect in the proceedings, so that the acquittal could not be pleaded in bar of another indict

ment for the same offence, he may be detained to be indicted afresh. So in 1 Chit. 649, and R. v. Knewland, 2 Leach,

721.

An indictment having been held bad on demurrer it was quashed so that another indictment might be preferred, not that defendants be discharged: R. v. Tierney, 29 U. C. Q. B.

181.

In R. v. Bulmer, Montreal, Nov., 1881, though the indictment had been quashed on demurrer, the court refused to liberate the prisoner, and ordered his detention till the following term.

In R. v. Woodhall, 12 Cox, 240, the verdict was held to be illegal, but the prisoners were bound over to appear at a future session.

CERTAIN OMISSIONS AS TO JURORS NOT FATAL.

735. No omission to observe the directions contained in any Act as respects the qualification, selection, balloting or distribution of jurors, the preparation of the jurors' book, the selecting of jury lists, the drafting panels from the jury lists or the striking of special juries, shall be a ground for impeaching any verdict, or shall be allowed for error upon appeal to be brought upon any judgment rendered in any criminal case. s. 247. (Amended in 1893.)

R. S. C. c. 174,

This is a statute of Upper Canada extended to all the Dominion. This clause does not take away the right of challenging the array.

A conviction, not by a special jury, in cases where the statute enacts that an offence shall be tried by special jury, is a nullity: R. v. Kerr, 26 U. C. C. P. 214.

INSANITY.

736. Whenever it is given in evidence upon the trial of any person charged with any indictable offence that such person was insane at the time of the commission of such offence, and such person is acquitted, the jury shall be required to find, specially, whether such person was insane at the time of the commission of such offence, and to declare whether he is acquitted by it on account of such insanity; and if it finds that such person was insane at the time of committing such offence the court before which such trial is had shall order such person to be kept in strict custody in such place and in such manner as to the court seems fit, until the pleasure of the Lieutenant-Governor is known. R. S. C. c. 174, s. 252.

737. If at any time after the indictment is found, and before the verdict s given, it appears to the court that there is sufficient reason to doubt whether the accused is then, on account of insanity, capable of conducting his defence, the court may direct that an issue shall be tried whether the accused is or is not then on account of insanity unfit to take his trial.

2. If such issue is directed before the accused is given in charge to a jury for trial on the indictment such issue shall be tried by any twelve jurors. If such issue is directed after the accused has been given in charge to a jury for trial on the indictment such jury shall be sworn to try this issue in addition to that on which they are already sworn.

3. If the verdict on this issue is that the accused is not then unfit to take his trial the arraignment or the trial shall proceed as if no such issue had been directed. If the verdict is that he is unfit on account of insanity the court shall order the accused to be kept in custody till the pleasure of the LieutenantGovernor of the province shall be known, and any plea pleaded shall be set aside and the jury shall be discharged.

4. No such proceeding shall prevent the accused being afterwards tried on such indictment. R. S. C. c. 174, s. 252.

738. If any person before the passing of this Act, whether before or after the first day of July, one thousand eight hundred and sixty-seven, was acquitted of any such offence on the ground of insanity at the time of the commission thereof, and has been detained in custody as a dangerous person by order of the court before which such person was tried, and still remains in custody, the Lieutenant-Governor may make a like order for the safe custody of such person during pleasure. R. S. C. c. 174, s. 254.

739. If any person charged with an offence is brought before any court to be discharged for want of prosecution, and such person appears to be insane, the court shall order a jury to be empanelled to try the sanity of such person, and if the jury so empanelled finds him insane the court shall order such person to be kept in strict custody, in such place and in such manner as to the court seems fit, until the pleasure of the Lieutenant-Governor is known. R. S. C. c. 174, s. 256.

740. In all cases of insanity so found the Lieutenant-Governor may make an order for the safe custody of the person so found to be insane, in such place and in such manner as to him seems fit. R. S. C. c. 174, ss. 253 & 257.

741. The Lieutenant-Governor, upon such evidence of the insanity of any person imprisoned in any prison other than a penitentiary for an offence, or imprisoned for safe custody charged with an offence, or imprisoned for not finding bail for good behaviour or to keep the peace, as the Lieutenant-Governor considers sufficient, may order the removal of such insane person to a place of safe-keeping; and such person shall remain there, or in such other place of safe-keeping, as the Lieutenant-Governor from time to time orders, until his complete or partial recovery is certified to the satisfaction of the LieutenantGovernor, who may then order such insane person back to imprisonment, if then liable thereto, or otherwise to be discharged. R. S. C. c. 174, s. 258.