THE CRIMINAL LAW CONSOLIDATION AND AMENDMENT ACTS OF 1869, 32-33 VICT., FOR THE DOMINION OF CANADA, AS AMENDED AND IN FORCE ON THE 1ST DAY OF NOVEMBER, 1874, IN THE PROVINCES OF ONTARIO, QUEBEC, NOVA SCOTIA, NEW BRUNSWICK, HENRI ELZÉAR TASCHEREAU, ONE OF THE JUDGES OF THE SUPERIOR COURT FOR THE PROVINCE OF QUEBEC. PRINTED BY HUNTER, ROSE & CO., WELLINGTON STREET. 1875. Entered according to Act of the Parliament of Canada, in the year of our Lord one thousand eight hundred and seventy-five, by HENRI Elzéar 7354 02-3 20-2 PREFACE. This Volume will be found to contain the Criminal Law Procedure Act of 1869, with extensive annotations. For easy reference, the Statutes extending the Criminal Law Consolidation Acts to British Columbia and Manitoba have been inserted in this Volume: all the Statutes on Criminal Law, of general importance, passed since 1869, and not inserted in the first Volume, will also be found in the following pages, including those passed at the last Session of Parliament (1875). The text of the Statutes of 1869, following the Procedure Act, including the General Repeal Act, has also been given, with the exception of the "Acts respecting Justices of the Peace," 32-33 Vic. chapters 30 and 31, which belong to a separate branch of our Criminal Laws. The following note from C. S. Greaves, Esq., Q. C., who, before the Select Committee of the House of Commons, in England, on the Homicide Bill, was called "the most eminent living writer on the subject" (of Criminal Law), will perhaps induce our law-givers to review the new clauses of the Larceny and Forgery Acts, to which objection was taken in the first Volume. Mr. Greaves' reply to the remarks (page 534 of the 1st Vol.) on Leonard's case will be read with interest. The principles of the law on the subject, as exposed by Mr. Greaves, are clear and undeniable. The difficulty lies in their application : "11, Blandford Square, "February 18th, 1875. "Mr. Greaves presents his respectful compliments to Mr. Justice Taschereau, and begs very cordially to thank him for his very valuable present, and still more so for the very great attention and weight which he has given to Mr. Greaves' notes and observations. It is indeed a very great gratification to Mr. Greaves to think that he may have been of some use towards the completion of the Canada Criminal Law. Mr. Greaves has not been able to do more than cursorily look into the book; but he has seen quite enough to satisfy him that it has been prepared with great care and ability; and he fully agrees with almost every remark in it, and especially with the objections to the new Larceny and Forgery clauses. On one point only, Mr. Greaves would crave leave to make the enclosed reply. Page 534 (of first Volume).-Greaves replies: "When an offence is committed through the agency of an innocent person, the employer, though absent when the act is done, is answerable as principal.-1 Russell, C. & M. 53; Kel. 52. If a madman, or a child not at years of discretion, commits murder or other felony on the incitement of another, the latter, though absent, is guilty as principal; otherwise he would be wholly unpunishable.—Foster, 349. Every act done by an innocent agent is in point of law exactly the same as if it were done at the same time and place by the employer. In burglary, if a man in the night breaks a window and inserts an instrument through the hole, and draws out any chattel, he is not only guilty of burglary with intent to steal, but of burglary and stealing in the house. The amotion by the instrument is the same as if it were by the prisoner's hand. Now, an innocent agent is merely the living instrument (Euxov ópyavov. Arist. Eth. 8, c. 13) of the employer. Then it is clear that any terror, which is sufficient to overpower a reasonably firm mind, will make an innocent agent; and the threats of an armed mob to a single individual are certainly sufficient to constitute such terror. In Leonard's case, therefore, the prosecutor was an innocent agent; and the moment he asported any of the provisions in the house a single inch, a larceny was committed in the house; and that was a larceny by the prisoner, for the prosecutor was his innocent agent. In the case put, therefore, the prisoner was guilty of larceny, though he never had the provisions; just as the inciter of an innocent agent is guilty of murder, though he may be miles off when the murder is committed. The rule as to innocent agency is exactly the same, whether the offence consists of an asportation, as in larceny, or of a single act, as in murder, by stabbing or shooting, The act is the act of the inciter in every case alike." In Farrell's case, 2 East, P. C. 557 (ante, Vol. I., 462), the defendant, upon meeting a man carrying a bed, told him to lay it down or he would shoot him, and the man accordingly laid down the bed; but the defendant, before he could take it up so as to remove it from the place where it lay, was apprehended. The Judges held that the robbery was not complete. Was there not amotion of the bed, from the prosecutor's hands or arms to the ground? Was not the prosecutor then under the influence of terror caused by the defendant? Was not then, in law, the act by the prosecutor, in laying down the bed, the act of the prisoner? If so, ought not the prisoner to have been held guilty? FRASERVILLE, RIVER DU LOUP, EN BAS, P.Q.. 2nd November, 1875. |