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

A commitment under the 28 Vic., c. 2, stating the offence as follows:- For that he on, etc., at, etc., did attempt to procure A. B. to serve in a warlike or military operation, in the service of the Government of the United States of America, omitting the words "as an officer, soldier, sailor, etc.," is bad. (a)

A judgment for too little is as bad as a judgment for too much, and a condemnation to pay $100 and costs— the Statute imposing $200 and costs-is bad. (b) So a commitment for the penalty and costs, not stating, in the body of the commitment, or a recital in it, the amount of costs, is bad. (c) A quære is added to this case, whether the jurisdiction conferred by the 28 Vic., c. 2, is a general or local one. But a warrant of commitment, on a conviction had before a Police Magistrate for the Town of Chatham, in Ontario, under the 28 Vic., c. 2, averring that, on a day named, "at the Town of Chatham, in said county, he, the said Andrew Smith, did attempt to procure A. B. to enlist to serve as a soldier in the army of the United States of America, contrary to the Statute of Canada in such case made and provided," and then proceeding, "and whereas the said Andrew Smith was duly convicted of the said offence before me, the said Police Magistrate, and condemned," sufficiently shews jurisdicdiction. (d) A direction to take the prisoner "to the common gaol at Chatham," the warrant being addressed "to the constables, etc., in the County of Kent, and to the keeper of the common gaol at Chatham, in the said county," is sufficient. (e) A warrant, as above set out, sufficiently contains an adjudication as to the offence, though by way of recital. The words "to enlist to

(a) Re Bright, 1 U. C. L. J. N. S. 240.

(b) Ib.; Lex. v. Solomons, 1 T. R. 249; Whitehead, v. Reg. 7 Q. B. 582.

(d) Re Andrew Smith, 1 U. C. L. J. N. S. 241.

(e) Ib.

serve" do not shew a double offence, so as to make a warrant of commitment bad on that ground. The offence created by the Statute is sufficiently described in a warrant as above set out, and such a warrant is not bad as to duration or nature of imprisonment.

The commitment for the further time beyond six months should be at hard labour. (a) It was also held, in this case, that the amount of costs was sufficiently fixed in the warrant of commitment, being, in addition to $4.50 for costs, all costs and charges of commitment, and conveying him, the said Andrew Smith, to the said common gaol, amounting to the further sum of $1. The Statute inflicts a penalty, "with costs," and in such case the costs of conveying the defendant to prison may be lawfully added. The Statute was intended to allow both fine and imprisonment, or either, and it is not compulsory to award both. So there is power to commit for non-payment of costs. (b)

During the late war between the North German Confederation and France, a Prussian merchant vessel was captured in the English Channel, as prize of war, by a ship in the service of the Government of France. A prize crew, under the command of an officer in the French naval service, was put on board the prize. Afterwards, the prize was driven, by stress of weather, to the Downs; and on the 24th of November, by order of an Admiral in the French naval service, she anchored off Deal, within three marine miles of the shore. On the 26th of November, the Collector of Customs at Deal told the French Consul there that it was time the prize left British waters. The French Consul, having found the Gauntlet, a British steam tug, by accident, at anchor

(a) Re Andrew Smith, 1 U. C. L. J. N. S. 241. (b) Ib.

in the Downs, the steam tug, in pursuance of an agreement made between her master and the officer in command of the prize, and under the direction of such officer, towed the prize to Dunkirk roads, for the ordinary towage remuneration, which was afterwards paid by the French Consul-General in London. At the time the agreement was made, the master, who was one of the owners of the steam tug, had reasonable cause to believe that the prize was a prize of war, captured by the French. In a suit for condemnation of the steam tug, it was held that no offence against the Act had been committed. (a) Semble, the steam tug was not employed in the military or naval service of France. (b)

It would seem that a ship employed in the service of a foreign belligerent State, to lay down a submarine cable, the main object of which is, and is known to be, the subserving the military operations of the belligerent State, is employed in the military or naval service of that State, within the meaning of the Act. (c) When a cause is instituted against a ship in the Admiralty Court, for an offence under this Act, the Court may, with the consent of the Crown, order the ship to be released on bail. (d)

Seducing Soldiers or Sailors to Desert.-The Con. Stat. U. C. C. 100, has been repealed, and the 32 & 33 Vic., c. 25, is now the governing enactment on this subject. The Imp. Mutiny Act did not override the Con. Stat. U. C. c. 100; but the latter was passed in aid of the former, and was in force, notwithstanding the Imp. Mutiny Act. The two Statutes were to be construed as if they had been both Canadian, or both English Acts. (e) The pun

(a) The Gauntlet, L. R. 3 Ad. & Ec. 381.

(b) Ib.

(e) Reg. v. Sherman, 17 U. C. C. P. 168, per J. Wilson, J.; 169, per A. Wilson, J.

ishment by fine and imprisonment imposed by the Provincial Act stood abolished as long as the Mutiny Act. was in force, and the imprisonment could in no case exceed six calendar months.

The power of trial by the Court of Oyer and Terminer, under the Con. Stat. U. C. c. 100, was not taken away by the Mutiny Act. It was, therefore, held no objection that a defendant had been tried by a Court of Oyer and Terminer, and sentenced to six months' imprisonment, and a fine of 10s. imposed; for this was merely a nominal compliance with the Statute, and the Court had power to pass the proper judgment, if an improper one had been given. (a)

The 32 & 33 Vic., c. 25, seems to give no power of trial to a Court of Oyer and Terminer, so that the above case will scarcely apply to it. The offender may be convicted in a summary manner, before any two Justices of the Peace, on the evidence of one or more credible witness or witnesses, etc. By s. 5, every offence against the Act is a misdemeanor, and may be prosecuted as such, and nothing in the Act shall be construed to prevent any person being prosecuted, convicted, and punished, under any Act of the Imperial Parliament in force in Canada. (b)

The defendant was indicted under the Con. Stat. U. C. c. 100, s. 2, and convicted of receiving and concealing a deserter from the Royal Navy. The Naval Discipline (Imp.) Act, 29 & 30 Vic., c. 109, s. 25, authorizes a summary conviction before Magistrates for this offence; but the 101st section expressly preserves the power of any Court, of ordinary civil or criminal jurisdiction, with respect to any offence mentioned in the Act punishable by common or statute law:-Held, therefore, that the

(a) Reg. v. Sherman, supra, 166–172; Daw v. Metro. Board Co., 12 C. B. N. S. 161, 8 Jur. N. S. 1040. (b) See also 34 Vic. c. 32, 33 Vic. c. 19.

defendant could be indicted under the Provincial Act, and that the conviction was right. (a) Where an indictment charged that the defendant did receive, conceal, or assist "one W., a deserter from the navy," the Court inclined to think that this was not sufficiently certain or precise; for although acts which would prove concealment must involve receiving, and still more certainly assisting, yet there might be acts of assistance quite apart from either concealment or receiving. (b) The Mutiny Act of 1867, 30 Vic., c. 13, has no applicability to the above case. The provisions of that Act relate only to soldiers, or to persons in connection with their conduct towards those who come within the meaning of the Act as soldiers. (c)

A warrant of commitment, in which it was charged that the prisoner, on the 20th June, 1864," and on divers other days and times," at the City of Kingston, did unlawfully attempt to persuade one James Hewitt, a soldier in Her Majesty's service, to desert, was held bad; for it was impossible to say, upon reading the warrant, how many offences he had committed, or how the punishment was awarded to each specific offence. And if the pri soner were brought up again, he would be unable to say whether he had been tried or not, for he could not tell for which attempt he had already been imprisoned:-Held, also, that there was no conviction to sustain the warrant of commitment, nor, in fact, any conviction to sustain an imprisonment at all; for if the very words were used in the commitment which were cited in the alleged convic tion, the commitment could not be sustained. (d)

When a soldier commits felony, by firing, without

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