A Treatise on Criminal Law as Applicable to the Dominion of Canada

fide prosecution of the criminal charge. When either event takes place, as the public justice will then be satisfied, the party may proceed with his civil action. (a) It has not been decided whether a complaint to a justice of the peace, and statement on oath of the facts, would or would not be a sufficient prosecution, if the justice should decline to interfere; but at all events it would be sufficient to prefer a bill before the grand jury, who would, of course, ignore it, if the prosecutor's evidence negatived the felonious intent, unless there should appear grounds for suspecting connivance or collusion. (b) A difference has been suggested between the case of a prior conviction and that of an acquittal, namely, that the latter may have been brought about by the defendant colluding with the prosecutor, and it seems evidence would be admissible to show this; (c) and that it would suspend the action. (d)

If there be two acts, the one felonious and the other not, and either one be sufficient to support the action, it may proceed, notwithstanding the evidence of the felony (e) for it seems that only an action brought to recover compensation for an injury, resulting from the felonious act, is suspended. (f) At all events in case of seduction, unless the loss of service, which is the gist of the action, directly springs from the very act supposed to be felonious, the civil remedy is not defeated. (g)

The question of felony or not cannot be tried by the jury, in the civil action, even though the judge

(a) Walsh v. Nattrass, Supra. 456, per Gwynne. J. Pease v. M'Aloon, 1 Kerr. 117. per Parker. J. Edwards v. Kerr, 13, U. C. C. P. 25, per Draper, C. J. Crosby v. Leng, 12 Ea. 409

(b) Pease v. M'Aloon, 1 Kerr. 117, per Parker. J.

(d) Ib.

(e Walsh v. Nattrass. 19 U. C. C. P. 457. per Gwynne, J. (f) Hayle v. Hayle, 3 U. C. Q. B. O. S. 295.

(9) Ibid.

may have a doubt on the evidence as to the facts showing a felony. (a) If a prima facie case is made out, and the evidence uncontradicted and unexplained, would warrant a jury in convicting for the felony, the judge should require the party to go before the criminal tribunal, before pursuing his civil remedy. (b)

If the judge is not morally satisfied that a felony has been committed, yet if the act were proved by only one witness, to have been feloniously done, and there were no circumstances inconsistent with such evidence, nothing that could make the disbelief of it otherwise than purely arbitrary, the judge would not be wrong in nonsuiting the plaintiff. (c) It is for the judge to decide whether the case shall go to the jury in the civil action. (d) If the judge has reason for doubting whether the act is felonious but, nevertheless, allows the case to go to the jury, and a verdict is found for the plaintiff, it will not be set aside, as this will only be done in the interests of public justice. (e)

We now proceed to notice the exceptions to the general rule suspending the civil remedy in case of felony. Under "The Temperance Act of 1864," 27 & 28 Vic., c. 18, ss. 40 and 41, the legal representatives of the party may maintain an action for damages against the innkeeper, although the act giving rise to the right of action is also a felony, and the innkeeper has neither been ac

(a) Williams v. Robinson, 20 U. C. C. P. 255. Walsh v. Nattrass, 19 U. C. C. P. 453. Pease v. M'Aloon. 1 Kerr, 111.

(b) Pease v. M'Aloon, supra.

(c) Williams v. Robinson. 20 U. C. C. P. 256-7, per Hagarty, J. Brown v. Dalby 7 U. C. Q. B. 162-3, per Robinson, C. J. See also Vincent v. Sprague, 3 U. v Q. B. 283.

(d) Walsh v. Nattrass, 19 U. C. C. P. 456, per Gwynne, J. Robinson 20 U. C. C. P. 255.

Williams v.

(e) Walsh v. Nattrass, supra. Brown v. Dalby supra. Williams v. Robinson. supra. See also on this subject Lutterell v. Reynall, 1 Mod 283. Stone. Marsh. 6 B. C. 551. Marsh v Keating. !. Bing. N. C. 198. Wellock v. Constantine. 7 L T N. S. 751, 32 L. J. Ex 285, 9 Jur. N. S. 232. Chowne v. Baylis, 8 Jur. N. S. 1028.

quitted nor convicted. (a) So by the Carriers' Act, (b) the plaintiff may reply that the carrier's servant feloniously broke the goods in respect of which the action is brought, which will, if shown, entitle him to recover, although the servant has not been prosecuted criminally. (c) So, under the Con. Stat. Can., c, 78, the civil action is maintainable, though the act causing the death amounts to felony, and the party has neither been acquitted nor convicted; (d) and, lastly, neither this rule nor the reasons for it apply to the Crown. (e) It is to be regretted that the decisions in Quebec are quite adverse to those in the other Provinces on the above points. This is the only branch of the Criminal Law upon which there is any serious conflict in the decisions of the dif ferent Provinces. It has been held in Quebec that the civil remedy is not suspended when a felony is disclosed in evidence, and this with reference to assault, perjury, arson, rape and felony in general. (ƒ)

By the general term crime, is meant such offences only as are punishable by indictment. Those of an inferior character, punishable on summary conviction before a justice of the peace, are usually designated offences. (g)

Crimes are divided into two classes, namely, felonies and misdemeanors. (h) Felony is defined as an offence which occasions a total forfeiture of either lands or goods, or both, at the common law, and to which capital or other punishment may be superadded, according to the

(a) McCurdy v. Swift, 17 U. C. C. P. 126.

(b) 11 Geo 4, and 1 Wm. 4, c. 68, s. 8.

(d) Ib 136. per A Wilson. J. Clarke v. Wilson, Rob. Dig. 260. (e) Reg. v. Reifenstein, 6 C. L. J. N. S. 38; 5 U. C. P. R 175.

(f) Dagenay v. Hunter, Rob. Dig. 128. Lamothe v. Chevalier, 4 L. C. R. 160. Fortier v. Mercier, Rob. Dig. 127. Peltier v. Miville. ib. McGuire v. Liverpool and London Assurance Company, 7 L. C. R. 343. Neill v. Taylor, 15 L. C. R 102.

(g) Ste. Bla. Com., Bk. 6, p. 96

(h) Re Lucas & McGlashan, 29 U. C. Q. B., 92, per Wilson, J.

degree of guilt. (a) All crimes which are made felonies by the express words of a statute, or to which capital punishment is thereby affixed, become felonies, whether the word "felony" be omitted or mentioned. (b) Where a statute declares that the offender shall, under the circumstances, be deemed to have feloniously committed the act, it makes the offence a felony, and imposes all the common and ordinary consequences attending a felony. (c) So where a statute says, that an offence, previously a misdemeanor, "shall be deemed and construed to be a felony," instead of declaring it to be a felony in distinct and positive terms, the offence is thereby made a felony. (d) An enactment that an offence shall be felony, which was felony at common law, does not create a new offence. (e) But an offence shall never be made felony by the construction of any doubtful and ambiguous words of a statute; and, therefore, if it be prohibited under 'pain of forfeiting all that a man has,' or of forfeiting body and goods,' or of being at the King's will for body, lands and goods,' it shall amount to no more than a high misde meanor; (f) and though a statute make the doing of an offence felonious, yet, if a subsequent statute make it penal only, the latter statute is considered as a virtual repeal of the former, so far as relates to the punishment of the offence (g). So if an offence be felony by one statute, and be reduced to a misdemeanor by a later statute, the first statute is repealed (h). When a statute

on which the indictment is framed is repealed, after the

(a) 4 Bla. Com 95.

(b) Russ. Cr. 4. Edn. 78. Reg. v. Horne. 4 Cox. C. C. 263.

(d) Rex v. Salomons, R & M. C C R. 292, overruling Rex v. Cale, R.

& M. C C R. 11.

(h) Reg v. Sherman, 17 U. C. C. P. 171, per A. Wilson, J. Rex v. Davis 1 Leach, 271.

bill has been found by the grand jury, but before plea, the judgment must be arrested (a); and where a statute creating an offence is repealed, a person cannot afterwards be proceeded against for an offence within it, committed while it was in operation, even though the repealing statute re-enacts the penal clauses of the statute repealed (b). If a later statute expressly alters the quality of an offence, as by making it a misdemeanor instead of a felony, or a felony instead of a misdemeanor, the offence cannot be proceeded for under the earlier statute (c); or if a later statute again describes an offence created by a former statute, and affixes to it a different punishment, varying the procedure, and giving an appeal where there was no appeal before, the prosecutor must proceed for the offence, under the latter statute (d). If, however, in the case of a common law misdemeanor, a new mode of punishment, or new mode of proceeding, merely be directed, without altering the class of the offence, the new punishment, or new mode of proceeding, is cumulative, and the offender may be indicted as before for the common law misdemeanor. (e) Where a statute makes a second offence felony, or subject to a heavier punishment than the first, it is always implied that such second offence ought to be committed after a conviction for the first; (f) and where a statute makes an offence felony which was before only a misdemeanor, an indictment will not lie for it as a misdemeanor, (g) for the lesser offence merges in the greater. But now,

(a) Reg v. Denton, 17 Jur. 454. Reg. v. Swan, 4 Cox C. C. 108. (b) Reg. v. Cummings, 4 U. C. L. J. 187. per Macaulay. C. J.

(c) Michell v. Brown, 1 E. & E. 267; 28 L. J. (MC) 53. Reg. v. Sherman, 17 Ú. C. C. P, 169, per A. Wilson, J. Rex v. Cross, 1 Ld. Rayın. 711, 3 Salk., 193.

(d) Michell v. Brown, supra.

(e) Rex v. Carlile, 3 B. & Ald. 161, Arch. Cr. Pldg. 17 edn. 3.

Reg. v. Palliser, 4 L. C. J. 276.

(f) Russ. Cr. 79.

(g) Rex v. Cross, 1 Ld. Raym. 711, 3 Salk., 193.

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