force in the several provinces in relation to the sale of liquors. An indictment under sec. 143 of the first mentioned statute for breaking a lock, etc., after other statements, alleged: In which said warehouse certain goods for and in respect of which a certain duty of excise was then and there by law imposed, were then and there kept and secured, without the knowledge and consent of the collector of inland revenue. It was held that the redundant expression, were then and there kept and secured," made the words which form the gist of the offence," without the knowledge and consent of the collector of inland revenue," apply apparently not to the opening of the lock, but to the keeping and securing of certain goods in the warehouse, and was therefore bad. (c) The indictment need not show the description of goods, nor that they are subject to excise, nor by whom the goods were kept and secured, nor that the goods were retained in any warehouse, under the supervision of any officer of inland revenue, nor that defendant opened a lock attached to a warehouse in which goods were so retained, nor that the excise duty was then and there unpaid, for all these allegations are mere surplusage. (d) A deputy revenue inspector may validly sign a plaint or information for selling liquor without a license. (e) The prosecutor is not bound to prove that the defen lant has no license, as he is not called on to prove a negative. (f) It seems the Crown is not obliged, under Acts relating to the excise, to proceed in the manner prescribed therein as a private individual would be, unless expressly included, but may institute proceedings in the superior courts by information. (g) (c) Reg. v. Bathgate, 13 L. C. J. 303. (d) Ibid. ; see also as to excise 31 Vic., cs. 49 & 50; 33 Vic., c. 9; and 34 Vic., c. 15. (e) Reynolds and Durnford, 7 L. C. J. 228. (f) Ex parte Parks, 3 Allen, 237; see post Evid; re Barrett, 28 U. C. Q. B. 561, per A. Wilson, J. (g) Reg. v. Taylor, 36 U. C. Q. B. 183, per A. Wilson, J. In prosecutions for selling liquor without license, the better opinion seems to be that the information should be under oath, even where the statute does not expressly require it. (h) If a form of conviction is given in the statute under which the prosecution is had, it is sufficient if that form be followed, even though, from a technical point of view, it is defective. (i) But, in the absence of such statutory guide, great care is required in the preparation of a conviction. It should show whether the offence is for selling without license, or during prohibited hours, or in illegal quantities; (j) if for selling "by retail" it should so state it; (k) if for selling during prohibited hours, or not keeping up a proper signboard, should aver that the defendant was properly licensed. (1) It seems the time, (m) place, (n) and to whom sold, (o) should also be stated; and if there are any exceptions in the Act, they should be negatived. (p) If for a second or third offence, the previous convictions should be recited and proved. (q) But it is not necessary to give the statute under which the conviction. takes place, (r) nor the kind or quantity of liquor sold. (s) The terms "spirituous liquor” and “intoxicating liquors” are convertible; (t) and "at" the hotel, is equivalent to "therein (h) Reg. v. McConnell, 6 U. C. Q. B. O. S. 629 ; but see ex parte Cousine; 7 L. C. J. 112. (i) Reid v. McWhinnie, 27 U. C. Q. B. 289; Reg. v. Strachan, 20 U. C. C. P. 182. (j) Reg. v. Hoggard, 30 U. C. Q. B. 152; ex parte Woodhouse, 3 L. C R. 93. (k) Ex parte Hebert, 18 L. C. J. 156. (1) Reg. v. French, 34 U. C. Q. B. 403; ex parte Birmingham, 2 P. & B. 564; McGilvery v. Gault, 1 P. & B. 641. (m) Reg. v. French, 2 Kerr, 121; but see Reg. v. Justices of Queen's, 2 Pugsley, 485. (n) Ex parte Hebert, 18 L. C. J. 156. (o) Reg. v. Cavanagh, 27 U. C. C. P. 537; but see Reg. v. Strachan, 20 U. C. C. P. 182. (p) Re Mills, 9 U. C. L. J. 246; Reg. v. White, 21 U. C. C. P. 354; Reg. v. Jukes, 8 T. R. 542; Reg v. White, 21 U. C. C. P. 354. (q) Reg. v. French, 34 U. C. Q. B. 403; Reg. v. Justices of Queen's, 2 Pugsley, 485. (r) Reg. v. Strachan, supra; Wray v. Toke, 12 Q. B. 492; Rex. v. Woodcock, 7 East, 146. (8) Reg. v. King, 20 U. C. C. P. 246. (t) Reid v. McWhinnie, 27 U. C. Q. B. 289. G or on the premises thereof." (u) A conviction which described the defendant as one "G. P. an innkeeper" was held bad, the word "innkeeper" amounting only to a description of the person, and not to an averment of his filling such a character; and the words "in and at his tavern" are held not to supply the deficiency, as those words are consistent with ownership without occupancy. (v) A conviction for that one H., on, etc., "did keep his bar-room open, and allow parties to frequent and remain in the same, contrary to law," was held clearly bad as showing no offence. (w) Where the statute limits the time within which proceedings under it are to be taken, it is sufficient if it appear from the statements in the conviction to have been begun in time without any averment of the fact. (x) The information is the commencement of proceedings for this purpose. (y) Under R. S. Ont., c. 181, it would seem to be unnecessary to show such fact, as the clause of limitation is entirely distinct from those creating the offences and imposing the penalties. (z) A conviction which imposes a fine in excess of that allowed by the statute under which it is made, is bad. (a) An information charging several offences in the disjunctive is bad, and the defect will not be cured by the confession of the defendant. (b) The charge in a conviction must be certain, and so stated as to be pleadable in the event of a second prosecution for the same offence. (c) The conviction must be of the offence charged in the information, and not of a different offence, or of several offences in the conjunctive, charged in the disjunctive. (d) Therefore, (u) Reg. v. Cavanagh, 27 U. C. C. P. 537. (y) Reg. v. Lennox, 34 U. C. Q. B. 28. (z) Reg. v. Strachan, 20 U. C. C. P. 182; Wray v. Toke, 12 Q. B. 492; Rex v. Woodcock, 7 East, 146. (a) Reg v. Lennox, 26 U. C. Q. B. 141; Reg. v. French, 34 U. C. Q. B. 403. (b) Ex parte Hogue, 3 L. C. R. 94. (c) Reg. v. Hoggard, 30 U. C. Q. B. 152. (d) Ex parte Hogue, 3 L. C. R. 94. a conviction adjudging the defendant guilty of the several offences therein enumerated, and condemning him "for his said offences" to but one penalty, is bad; (e) and a conviction against two jointly is bad, nor can one penalty be awarded against two jointly, and such a conviction cannot be amended. (f) A conviction will lie against a partner alone for selling liquor without license, for all torts are several as well as joint. (g) When a conviction concludes contra formam statuti, it should first show something done which is contrary to the statute, and the conclusion should follow properly from the premises, otherwise a criminal charge would contain no certainty at all. (h) A conviction under 40 Geo. III., c. 4, for selling liquor without license, was quashed, because, among other reasons, it directed the defendant to pay the costs of the prosecution, without specifying the amount. (i) But it was no objection, under the 29 & 30 Vic., c. 51, s. 254, that the costs of conveying the defendant to gaol, in the event of imprisonment. in default of distress, were specified. (j) It is no ground for quashing a conviction that the information stated the offence to be " selling liquor without license" without the word "spirituous or other word descriptive of the quality of the liquor; (k) but it has been doubted whether such a clause would be sufficient in the conviction. (7) It is no objection to state the offence as selling to divers persons unknown to the informant, provided sales to particular persons be proved; (m) at any rate, if no objection be taken by the prisoner to the variance; (n) and the statute as to variances (0) would likely aid such defect. (e) Ex parte Hogue, 3 L. C. R. 94. (f) Reg. v. Sutton, 42 U. C. Q. B. (g) Mullins and Bellamere, 7 L. C. J. 228. (h) Wilson v. Graybiel, 5 Ú. C. Q. B. 229, per Robinson, C. J. (i) Rex v. Ferguson, 3 U. C. Q. B. O. S. 220. (j) Reid v. Mc Whinnie, 27 U. C. Q. B. 289. (k) Reg. v. Harshman, 1 Pugsley, 317. (1) Campbell v. Flewelling, 2 Pugsley, 403. (m) Reg. v. Harshman, supra. (n) Ibid. (o) 32 & 33 Vic., c. 31, s. 5. The exact day of selling need not be stated in the conviction. (p) Costs of commitment or conveying to gaol can only be imposed when expressly authorized by statute; and a conviction granting such costs without authority is bad. (q) So a conviction imposing, in default of fine, imprisonment without legislative authority, would be quashed. (r) A conviction for selling, &c., contrary to the Acts of Assembly, and stating the titles of the Acts, is sufficiently certain, one statute rendering the selling illegal and the other imposing the penalty. (s) An order of justices to condemn liquor with packages, &c. is indivisible, and if bad in part, is bad altogether. (t) The Ontario Act 44 Vic., c. 27, s. 9, if constitutional, authorizes the destruction of the vessels containing the liquor as well as the liquor itself. Magistrates cannot, where a formal existing license is produced, go behind it for the purpose of inquiring whether certain preliminary requisites have been complied with before its issue. (u) And the quashing of a by-law under which a certificate has been granted, does not, it seems, nullify a license issued under it. (v) Where the licensee to sell "in and upon the premises known as," &c., carried on the business of a tavern keeper in a honse at the front of a deep lot, for which house such license was granted, was held properly convicted of selling liquor without license on the lot in rear, which had for many years ben used as a fair ground. (w) It is within the competence of the local legislatures to impose penalties for selling liquor without license, though (p) Reg. v. Justices of Queen's, 2 Pugsley, 485. (q) Reg. v. Harshman, supra. (r) Ex parte Slack. 7 L. C. J. 6. (8) Reg. v. Harshman, 1 Pugsley, 317. (t) Ex parte Breeze, 3 Allen, 390. (u) Reg. v. Stafford, 22 U. C. C. P. 177. (v) Ibid. (20) Reg. v. Palmer, 46 U. C. Q. B. 262. |