CHAPTER I.

CRIMES IN GENERAL.

IN the present work it is proposed to treat in the first place of the subject of crimes in general, and the distinctions between a public and a private injury; secondly, of the persons capable of committing crimes, and their several degrees of guilt, as principals or accessories; thirdly, of the several species of crimes recognized by law; after which will follow annotations of the Canadian statutes on Criminal Law and dissertations on the subjects of evidence, pleading and practice, as developed in our own

cases.

A crime is the violation of a right when considered in reference to the evil tendency of such violation as regards the community at large. (a)

The proper meaning of the term "crime" is an indictable offence, (b) and it is said that the test of an act being a crime, is whether an indictment will lie for it. (c)

Where an Act declared that every person having a distilling apparatus in his possession, without making a return thereof as therein provided, should forfeit and pay a penalty of $100, and rendered the apparatus liable to seizure, and forfeiture to the Crown: Held that an infringement of this Act was a crime. (d) The violation of a statute containing provisions of a public nature, and more particularly so when that violation is spoken of as

(a) Ste. Bla. Com., Bk 6, p. 94.

(b) Atty. Gen. v. Radloff, 10 Ex. 96, per Martin, B.

(c) Re Lucas & McGlashan, 29 U. C. Q. B., 92, per Wilson, J.; Bancroft v. Mitchell, L. R. 2, Q. B. 549. Rey v. Master, L. R. 4 Q. B. 289, per Mellor, J. (d) Re Lucas & McGlashan, supra, and see Reg. v. Boardman, 30 U. C. Q. B 553.

an offence, and is punishable by fine, or imprisonment as substitutionary for the fine, is a crime in law. (a) When an offence is made a crime by statute, the proceedings instituted for the punishment thereof are criminal proceedings. (b) The distinction between civil and criminal proceeding is this, if the subject matter be of a personal character, that is, if either money or goods are sought to be recovered by the proceeding, that is a civil proceeding; but if the proceeding is one which may affect the defendant at once by the imprisonment of his body, in the event of a verdict of guilty, so that he is liable, as a public offender, that is a criminal proceeding. (c) An information by the AttorneyGeneral for an offence against the revenue laws is a criminal proceeding, being instituted by the Crown for the punishment of a crime. (d)

Offences against the customs and excise laws are not ordinarily treated as criminal proceedings but as penal actions; and the contingent liability to fine and imprisonment does not alter the character of the offence. (e) A proceeding to obtain an order of affiliation under the (N. B.) 1 rev. stat. c. 57, is not a criminal proceeding, in which the party charged is punishable on indictment or summary conviction, (ƒ) bastardy not being a crime punishable in this manner. (g)

It is an established principle of the common law that all crimes are considered local, and cognizable only in the place where they were committed. (h) The distinc

(a) Re Lucas & McGlashan, 92, per Wilson, J.

(b) Ib. 92, per Wilson, J. Bancroft v. Mitchell, L. R. 2 Q. B. 555, per Blackburn, J.

(c) Ib. 86-7, per Richards, C. J.

(d) Re Lucas & McGlashan, 89, per Richards, C. J.

(e) Ex parte Parks, 3. Allen, 240, per Carter, C. J.

(f) Ex parte Cooke 4 Allen, 506.

(g) Ib.

(h) The Chesapeake case, 44 per Ritchie, J. Mure v. Kaye,* 4 Taun. 43, per Heath, J.

tion of public wrongs from private, of crimes from civil injuries, principally consists in this, that private wrongs are an infringement or privation of the civil rights of individuals, considered as such: public wrongs or crimes and misdemeanors, are a violation of the same rights, considered in reference to their effect on the community in its aggregate capacity. (a)

The doctrine that all crimes concern the public prevails to such an extent, that by the policy of the law if a civil action is instituted, and it appears on the evidence that the facts amount to felony, the judge is bound to stop the proceedings, and nonsuit the plaintiff, in order that the public justice may be first vindicated by the prosecution of the offender. (b)

The true ground of this rule is to prevent the criminal justice of the country from being defeated, (c) and the principle on which it rests is, not that the felony appearing constitutes any defence to the action, but that by the rule of law the civil remedy is suspended until the defendant charged with the felony shall have been acquitted or convicted in due course of law. (d) The rule applies, whether the plaintiff be the party upon whose person the alleged felony was committed, or a person who can sustain his cause of action only in virtue of a wrong done to him through another, by an act which, as between the defendant and that other, constitutes felony; (e) and it seems the rule equally applies in an action against third persons. (f) The civil remedy is only suspended until an acquittal or conviction after a bona

(a) Ste. Bla. Com.. Bk. 6, p. 94

(b) Walsh v Nattrass 19 U. C C. P. 453. Brown v. Dalby, 7 U. C., Q. B. Livingstone v. Massey, 23 U. C. Q. B 156. Williams v. Robinson, 20 U. C. C. P. 255. Pease v. M'Aloon, 1 Kerr. 111.

160

(e) Crosby v. Leng. 12 Ea 414 per Grose, J.

(d) Walsh v. Nattrass. 19 U. C C. P. 454, per Gwynne, J. Brown v. Dalby, 7 U. CQ B. 162. per Robinson. C J.

(e Walsh v. Nattrass Supra, 455, per Gwynne, J. (ƒ) Pease v. M'Aloon, 1 Kerr 118, per Parker, J.

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.

(c) Crosby v. Leng, 12, Ea. 413-4, per Lord Ellenborough, C. 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.

(g) 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. C. P. 453. Pease v. M'Aloon. 1 Kerr, 111.

(b) Pease v. M'Aloon, supra

Walsh v. Nattrass, 19 U. C.

(c) Williams v. Robinson. 20 U. C.. C. P. 256-7, per Hagarty, J. Brown v. Dalby 7U. 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. Williams v. Robinson 20 U. C. C. P. 255.

(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.