thing which may be required to be done in the cause (course) of such prosecution; and all provisions contained in the said Act shall be applicable to such prosecution in the same manner as if they were incorporated in this Act. The Act referred to is the 32-33 Vict., ch. 31. Sect. 124.-This Act shall commence and take effect on the first day of January, one thousand eight hundred and seventy. AN ACT FOR THE AVOIDANCE OF DOUBTS RESPECTING LARCENY OF STAMPS. 35 VICT., CHAP. 33. For the avoidance of doubts under the Act passed in the Session held in the thirty-second and thirty-third years of Her Majesty's reign and intituled "An Act respecting larceny and other similar offences," and "the Post-Office Act, 1867," Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. Every postal card, postage stamp and every other stamp issued or prepared for issue by the authority of the Parliament of Canada or of the Legislature of any Province in Canada, for the payment of any rate or duty on bills of exchange, or promissory notes, or law proceedings, or of any rate or duty whatever, and whether still in the posssession of the Crown, or of any person or corporation of (or) any officer or agent of the Government of Canada or of the Province by the authority of the Legislature whereof it was issued or prepared for issue, shall be held to be a chattel and " property" within the meaning of the Acts cited in the Preamble to this Act, and of the enactments and provisions thereof, and to be equal in value to the amount of the postage, rate or duty which can be paid by it, and is expressed on its face in words or figures, or both; and in any indictment or proceeding for larceny, or any other offence against either of the said acts, in respect of any such stamp, the property thereof may be laid in the person in whose possession, as the owner thereof, it was, when the larceny or offence was committed, or in the Crown, if it was then unissued or in the possession of any officer or agent of the Government of the Dominion, or of the Province by the authority of the Legislature whereof it was issued or prepared for issue. 2.-Nothing in this Act shall be construed as intending that such stamps as aforesaid were not, without this act, chattel property and subjects of larceny at common law, and under the Acts cited in the Preamble. AN ACT RESPECTING MALICIOUS INJURIES TO PROPERTY. 32-33 VICT. CHAP. 22. Whereas it is expedient to assimilate, amend and consolidate the Statute Law of the several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, relating to malicious injuries to property, and to extend the same as so consolidated to all Canada: Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows. SETTING FIRE TO A CHURCH OR CHAPEL, ETC., ETC. Sect. 1.-Whosoever unlawfully and maliciously sets fire to any church, chapel, meeting-house, or other place of divine worship, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.-24-25 Vict., ch. 97, s. 1, Imp. As to sureties for the peace, see sect. 74, post. As to solitary confinement, see 32-33 Vict., ch. 29, s. 94, Procedure Act of 1869. Indictment. The jurors for Our Lady the Queen, upon their oath present that J. S. on the ...... in the year ...... feloniously, unlawfully and maliciously did set fire to a certain church, situate at ...... in the parish of ...... in the district of ...... against the form of the Statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity. Though it is not necessary to prove malice against the owner, yet the indictment must allege the act to have been done "unlawfully and maliciously." If a Statute makes it criminal to do an act unlawfully and maliciously, an indictment must state it to have been done so: stating that it was done feloniously; voluntarily and maliciously is not enough.-1 Mood. 239, Rex. vs. Turner; 2 Russel, 1062, R. vs. Lewis. The definition of arson at common law is as follows: Arson is the malicious and wilful burning the house of another, and to constitute the offence there must be an actual burning of some part of the house, though it is not necessary that any flames should appear.-3 Burn's Just. 768. But now the words of the Statute are set fire to, merely; and, therefore it is not necessary in an indictment to aver that the house was burnt, nor need it be proved that the house was actually consumed. But within the Statute, as well as at common law, there must be an actual burning of some part of the house; a bare intent or attempt to do it is not sufficient. But the burning or consuming of any part of the house, however trifling, is sufficient, although the fire be afterwards extinguished. Where on an indictment it was proved that the floor of a room was scorched: that it was charred in a trifling way: that it had been at a red heat but not in a blaze, this was held a sufficient burning to support the indictment. But where a small faggot having been set on fire on the boarded floor of a room, the boards were thereby scorched black but not burnt, and no part of the wood was consumed, this was held not sufficient. -Archbold, 509. The time stated in the indictment need not be proved as laid if the offence be proved to have been committed at any time before or after, provided it be some day before the finding of the indictment by the grand jury, it is sufficient. Where the indictment alleged the offence to have been committed in the night time and it was proved. to have been committed in the day time, the judges held the difference to be immaterial. The parish is material, for it is stated as part of the description of the house burnt. Wherefore, if the house be proved to be situate in another parish, the defendant must be acquitted, unless the variance be amended. If a man intending to commit a felony, by accident set fire to another's house, this, it should seem, would be arson. If intending to set fire to the house of A. he accidentally set fire to that of B,, it is felony. Even if a man by wilfully setting fire to his own house, burns also the house of one of his neighbour, it will be felony for the law in such a case implies malice, particularly if the party's house were so situate that the probable consequence of its taking fire was that the fire would communicate to the houses in its neighbourhood. And generally, if the act be proved to have been done wilfully, it may be inferred to have been done maliciously, unless the contrary be proved.-Archbold, 508. It is seldom that the wilful burning by the defendant can be made out by direct proof: the jury, in general, have to adjudicate on circumstantial evidence. Where a house was robbed and burnt, the defendant's being found in possession of some of the goods which were in the house at the time it was burnt, was admitted as evidence tending to prove him guilty of the arson. So where the question is whether the burning was accidental or wilful, evidence is admissible to show that on another occasion, the defendant was in such a situation as to render it probable that he was then engaged in the commission of the like offence against the same property. But on a charge of arson, where the question was as to the identity of the prisoner, evidence that a few days previous to the fire in question, another building of the prosecutor's was on fire and that the prisoner was then standing by with a demeanour which showed indifference or gratification, was rejected. Archbold, 509. Upon an indictment for any offence mentioned in this chapter (except the attempts specially provided for as such) the jury may, under s. 49, 32-33 Vict., ch. 29, (Procedure Act, 1869) convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted on an indictment for such attempt. 2 Russell, 1054. |