Greaves' MSS. note on new trials and venire de novo. questioned, that a venire de novo will lie upon an imperfect verdict" in felony: per Blackburn, J., R. v. Winsor, 14 L. T. 203; 10 Cox, 276. It is clear that in every case of a special verdict, the merits of the case are considered, and if they are sufficiently stated, judgment on the one side or the other is given, but if they are insufficiently stated, a venire de novo must issue. In R. v. Sykes, T. Raym. 202, in an information for perjury the record of the trial, on which the perjury was committed, varied from the statement of it in the information, and at the assizes, it was found specially. It was held that the judges at the trial ought to have determined it, and that a venire de novo ought to issue. This case is a clear decision that venire de novo ought to issue upon the merits. It is just like the case of admitting or rejecting evidence improperly, which in civil cases is a ground for a venire de novo: Davies v. Pierce, 2 T. R. 125. And in Campbell v. R., 11 Q. B. 824, it was asserted that there is no distinction on this point between criminal and civil cases. If then a venire de novo can be granted on the merits in felony, it strongly supports the powers of granting a new trial on the merits, for the difference between the two really consists merely in the form in which the question is brought before the

court.

"

A sort of vague notion seems to have existed that there was some distinction between felony and misdemeanor on these questions; and the dictum of Lord Kenyon, C. J., in R. v. Mawbey, referring to "a class of offences greater than misdemeanors " may have given countenance to this supposition. But any such distinction is clearly unfounded, for there is no doubt, whatsoever, that in every case of felony where there is any fatal formal defect, a new

Greaves' MSS. note on new trials and venire de novo.

trial or a venire de novo (as the case may be) may be granted exactly in the same way as in misdemeanors, and it was well observed by Cockburn, C. J., in R. v. Winsor with reference to R. v. Davison, 2 F. & F. 250, that "it is very true that that was a case of misdemeanor, and this is a case of felony; but I can see no real distinction whatever between the two classes of cases. The trial by jury is the same, and the principles on which it is to be administered are the same, whether the case is one of felony or misdemeanor; and I am utterly at a loss to see any distinction that can exist in point of principle between the two cases."

There is, however, one very important distinction in favor of a prisoner charged with felony-the right to challenge jurymen peremptorily-which does not exist in misdemeanor, and this affords a strong argument for there being at least as large a power to correct the errors of jurors, on the merits, in cases of felony as in misdemeanors.

I have dealt thus fully with this question, because it does seem to me most unreasonable that there should be power to grant a new trial in misdemeanors, both on the merits and for matters of form, and in felony also, for matters of form, but not on the merits; in other words that there should be no such power on the most momentous questions on which the guilt or innocence of the prisoner may turn, although it exists in the less important matters, which in no way whatever bear on his guilt or innocence."

SPECIAL PROVISIONS.

269. Any judge, retired judge, or Queen's counsel, presiding at any sittings of the High Court of Justice of Ontario, may reserve the giving of his final decision on questions raised at the trial; and his decision, whenever given, shall be considered as if given at the time of the trial.-46 V., c. 10, s. 1.

270. The practice and procedure in all criminal cases and matters whatsoever in the said High Court of Justice shall be the same as the practice and procedure in similar cases and matters, before the establishment of the said High Court.— 46 V., c. 10, s. 2.

271. If any general commission for the holding of a court of assize and nisi prius, oyer and terminer or general gaol delivery, is issued by the Governor General for any county or district in the Province of Ontario, such commission shall contain the names of the justices of the supreme court of judicature for Ontario, and may also contain the names of the judges of any of the county courts in Ontario, and of any of Her Majesty's counsel learned in the law, appointed for the Province of Upper Cana la, or for the Province of Ontario, and if any any such commission is for a provisional judicial district such commission may contain the name of the judge of the district court of the said district:

2. The said courts shall be presided over by one of the justices of the said supreme court, or in their absence by one of such county court judges or by one of such counsel, or in the case of the said district by the judge of the said district court.-46 V., c. 10, s. 4.

272. It shall not be necessary for any court of General Sessions in the Province of Ontario to deliver the gaol of all prisoners who are confined upon charges of simple larceny, but the court may leave any such cases to be tried at the next court of oyer and terminer and general gaol delivery, if, by reason of the difficulty or importance of the case, or for any other cause, it appears to it proper so to do.-C. S. U. C., c. 17, s. 8.

273. If any person is prosecuted in either division of the high Court of Justice for Ontario, for any misdemeanor, by information there filed or by indictment there found, or removed into such court and appears therein in term time, in person, or in case of a corporation, by attorney, to answer to such information or indictment, such defendant, upon being charged therewith, shall not imparl to a following term, but shall plead or demur thereto, within four days from the time of his appearance; and in default of his pleading or demurring within four days as aforesaid, judgment may be entered against such defendant for want of a plea.-C. S. U. C., c.108, s. 1.

274. If such defendant appears to such information or indictment by attorney, such defendant shall not imparl to a following term; but a rule, requiring him to plead, may forthwith be given and served, and a plea to such information or indictment may be enforced, or

judgment in default may be entered, in the same manner as might, have been done formerly in cases in which the defendant had appeared to such information or indictment by attorney in a previous term; but the court, or any judge thereof, upou sufficient cause shown for that purpose, may allow further time for such defendant to plead or demur to such information or indictment.-C. S. U. C., c. 108, s. 2.

275. If any prosecution for misdemeanor instituted by the Attorney General for Ontario in the said court, is not brought to trial within twelve months next after the plea of not guilty has been pleaded thereto, the court in which such prosecution is depending, upon application made on behalf of any defendant in such prosecution, of which application twenty days previous notice shall be given to such Attorney General, may make an order, authorizing such defendant to bring on the trial of such prosecution; and thereupon such defendant may bring on such trial accordingly, unless a nolle prosequi is entered to such prosecution.-C. S. U. C., c.108, s. 4.

276. In the Province of Nova Scotia a calendar of the criminal cases shall be sent by the clerk of the Crown to the grand jury in each term, together with the depositions taken in each case and the names of the different witnesses, and the indictments shall not be made out, except in Halifax, until the grand jury so directs.-R. S. N. S. (3rd S.), c. 123, s. 17.

277. A judge of the supreme court of Nova Scotia may sentence convicted criminals on any day of the sittings at Halifax, as well as in term time.-R. S. N. S. (3rd S.), c.171, s. 75.

GENERAL PROVISIONS.

278. The several forms in the schedules to this Act, or forms to the like effect, shall be good, valid and sufficient in law, and the forms of indictment contained in the second schedule to this Act may be used, and shall be sufficient as respects the several offences to which they respectively relate; and as respects offences not mentioned in such second schedule, the said forms shall serve as a guide to show the manner in which offences are to be charged, so as to avoid surplusage and verbiage, and the averment of matters not necessary to be proved, and the indictment shall be good if, in the opinion of the court, the prisoner will sustain no injury from its being held to be so,

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and the offence or offences intended to be charged by it can be understood from it.-32-33 V., c. 29, s. 27; and c. 30, s. 66.

279. Nothing herein contained shall alter or affect any of the laws relating to the government of Her Majesty's land or naval forces.—3233 V., c. 29, s. 137.

The enactment in section 278, so far as it relates to the forms contained in the first schedule, is taken from the 11-12 V., c. 42, s. 28, Imp. The cases of Barnes v. White, 1 C. B. 192, in re Allison, 10 Ex. 561, R. v. Johnson, 8 Q. B. 102, and R. v. Sansome, 1 Den. 545, seem to support the contention that where a statute gives a form it is sufficient to follow it. In R v. Johnson, ubi supra, however, it was said, by the judges, that a statutory form is insufficient, if it does not give a complete description of the offence.

In R. v. Kimber, 3 Cox, 223, the judges doubted if a certain document under the Jervis act was sufficient though it had been drawn exactly in the form given by the statute. In Egginton's Case, 5 E. & B. 100, it was held that if a form is given by a statute, it can be followed. So, in R. v. Bain, Ramsay's App. Cases 191, for perjury; and R. v. Davis, 18 U. C. Q. B. 180, for false pretences.

REMARKS ON FORMS IN THE SECOND SCHEDULE.

Murder and Manslaughter.-Venue in the body of the indictment unnecessary. S. 104, Procedure Act.

Bodily harm.-Venue unnecessary.—Indictment under sec. 8, c. 162 need not aver" and did thereby cause bodily harm." But if it does "grievous bodily harm" are the words of the section.-Then "with intent to commit murder," or "with intent feloniously, wilfully and of his malice aforethought to kill and murder" are necessary.

See R. v. Carr, 26 L. C. J. 61.