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been committed after a conviction for a previous offence. In providing a heavier punishment for again committing an offence after being already convicted, the law proceeds upon the principle that the offender in repeating the offence is treating his previous conviction with contempt; but if the repetition of the offence takes place without his having been convicted he cannot be said to treat with contempt a conviction which has had no existence: so that each repetition of an offence before any actual conviction is dealt with as a first offence (1)

See Article 676, post, as to procedure. And see Article 694, post, as to proof of previous conviction.

For forms of indictment in such cases, see pp. 471, 491 and 492, post.

629. Objections to an indictment.-Every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer, or motion to quash the indictment, before the defendant has pleaded, and not afterwards, except by leave of the court or judge before whom the trial takes place, and every court before which any such objection is taken may, if it is thought necessary, cause the indictment to be forthwith amended in such particular, by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared; and no motion in arrest of judgment shall be allowed for any defect in the indictment which might have been taken advantage of by demurrer, or amended under the authority of this Act.

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In the Imperial Act (14 & 15 Vict. c. 100, sec. 25), from which this provision is derived, the word defect is qualified by the adjective formal"; and although the word is not so qualified in the above Article, there can be no doubt that it has reference only to formal defects, and imperfect averments, and not to matters of substance, or to entire omissions of essential allegations. It does not mean, that,―upon the defendant demurring or moving to quash,—amendments may be made so as to cure defects or supply omissions in an indictment which does not charge any indictable offence, (2) or which charges an act that is no offence at all; (3) as, for instance, an indictment for attending a prize fight, (4) which, though an offence, is not indictable, or an indictment meant for a charge of rape, but alleging only the carnal knowledge, and omitting to state that it was without the woman's consent, or an indictment,―for seduction of an unmarried woman under twenty one, under promise of marriage,―omit ting to state that the defendant was above the age of twenty one. (5)

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If the defendant wishes to attack the indictment for defects apparent on its face, and amendable under the above Article, he must do so by demurrer or petition to quash, before pleading to the merits. He cannot do so afterwards, except by leave of the Court. Not only is he precluded by the above Article from doing so but, under Article 734, post, all formal defects are cured by the

verdict.

When the defects are matters of substance, the defendant may either attack them at once by demurrer or petition to quash, or he may wait till after verdict and attack them by motion in arrest of judgment under Article 733, post, clause 2 of which provides that the accused may, at any time before sentence, move in

(1) See Lambe v. Hall, & Hall, Petitioner, and other cases, cil. at p. 433, ante. (2) R. v. Bainton, 2 Str. 1088; R. v. Hewitt, R. & R. 158. R. v. Rigby, 8 C. & P. 770.

(3) R. v. Philpotts, 1 C. & K. 112.

(4) Being present at a prize fight is a non-indictable offence, punishable summarily. (See Article 95, ante.)

(5) See Article 182, ante.

arrest of judgment, on the ground that the indictment does not state any indictable offence.

The application by motion to quash an indictment is made to the Court where the bill is found; but it has been usual, in England, in cases of indictments at sessions or in other inferior courts, to make the application to the Court of Queen's Bench, the record being previously moved there by certiorari. It has been decided, however, that, before plea pleaded, the Court of Quarter Sessions has itself authority to quash an indictment found there. (1)

Not only must a motion to quash be made before plea, when it is based upon formal defects, but this is also the rule even when the application is based upon any other grounds; (2) It has, however, been held that when it is clear that an indictment has been found, without jurisdiction, the court will quash it, on motion by the defendant, after a plea to the merits. (3)

When an indictment is attacked for formal defects, by demurrer, or motion to quash. it may, under the above article, 629, be amended; but when so attacked for defects in matters of substance, the granting of the motion to quash or the maintaining of the demurrer has the effect of setting the indictment aside; (4) in which case, however, the prosecution may prefer a new indictment.

When there are defects in matters of substance the defendant, instead of demurring or moving to quash, may plead to the merits, and then after standing the chance of an acquittal, he may still, in case of a conviction, move in arrest of judgment, unless the defects,-though in matters of substance,—are such as are cured by the verdict, either under the provisions of article 734, post, (5) or under the general rule of pleading by which, when an essential averment is not wholly omitted but imperfectly stated, it will,-though so defective as to be bad on demurrer,-be cured by a verdict found upon an issue involving that averment, if the verdict is such as could only be found upon actual proof of the averment, (6) or unless the defects in the indictment have been amended by order of the Court in the course of the trial. For, although defects in matters of substance cannot be ordered to be amended, when attacked by demurrer or motion to quash, it will be seen by clause 2 of article 723, that, "If there is in the indictment or in any count in it an omission to state or a defective statement of anything requisite to constitute the offence, or an omission to negative any exception which ought to have been negatived but that the matter omitted is proved by the evidence, the Court before which the trial takes place, if of opinion that the accused has not been misled or prejudiced in his defence by such error or omission, shall amend the indictment or count as may be necessary.)

When defects in substance have not been amended at the trial, under Article 723, and when they are not cured by verdict, the indictment must be set aside.

The rule with regard to defects in substance being cured by verdict will only apply to an averment imperfectly stated, that is, an averment which is stated, but which though stated is defective. The rule will not apply to the total omission of an essential averment.

If there is a total omission, so that the indictment charges no offence in law, the verdict is no cure. (7)

(1) R. v. Wilson, 6 Q. B. 620; 14 L. J. (M. C.) 3.

(2) R. v. Rookwood, Holt, 684.

(9) R. v. Heane, 4 B. & S 947; 33 L. J. (M. C.) 115; See also, R. v. James, 12 Cox 127; and R. v. Yates, 12 Cox 233.

(4) R. v. Burkett Andr. 230; R. v. Sermon, 1 Burr. 516, 543.

(5) See Nash v. R., 4 B. & S. 535; 33 L. J. (M. C.) 94.

(6) Heymann v. R., L. R. 8 Q. B. 105; R. v. Goldsmith, L. R. 2 C. C. R. 74 ;

42 L. J. (M. C.) 94; R. v. Stroulger, 17 QB D. 327; 55 L. J. (M. C.) 137.

(7) R. v. Aspinall, 2 Q. B. D. 58 ; 46 L. J. (M. C ) 149. See, R. v. Gray, L. & C. 365; R. v. Lynch, 20 L. C. J. 187; R. v. Carr., 26 L. C. J., 61; R. v. Norton, 16 Cox, 59; R. v. Waters, 1 Den. 356.

630. Time to plead to indictment.-No person prosecuted shall be entitled as of right to traverse or postpone the trial of any indictment preferred against him in any court, or to imparl, or to have time allowed him to plead or demur to any such indictment : Provided always, that if the court before which any person is so indicted, upon the application of such person or otherwise, is of opinion that he ought to be allowed a further time to plead or demur or to prepare for his defence, or otherwise, such court may grant such further time and may adjourn the trial of such person to a future time of the sittings of the court or to the next or any subsequent session or sittings of the court, and upon such terms, as to bail or otherwise, as to the court seem meet, and may, in the case of adjournment to another session or sitting, respite the recognizances of the prosecutor and witnesses accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence at such subsequent session or sittings without entering into any fresh recognizances for that purpose. R.S.C., c. 174, s. 141.

The trial of an indictment will generally be postponed by the Court, upon the application of the prosecution or of the defendant, supported by affidavits shewing sufficient cause for the delay, such as the illness or unavoidable absence of a necessary and material witness, the existence of a prejudice in the jury, and the like. (1)

The production by the prosecution of evidence additional to that adduced before the Magistrate, and not communicated to the prisoner before the trial, may be a ground for postponement of the trial. (2)

The trial may be postponed, on the defendant's application, after the jury have been charged with the indictment, and before any evidence has been given in the case. (3)

Where a defendant was indicted for having carnal knowledge of a girl under ten years of age, an application by the prosecution for the postponement of the trial, with a view to the instruction of the girl, was refused. (4)

Where the application is made by the prosecutor, it is in the discretion of the Court either to detain the defendant in custody or admit him to bail, or to discharge him on his own recognizance. (5) But after a bill for a serious offence has been found, the Court will not admit the prisoner to bail. (6)

The judges of the Central Criminal Court postponed until the next session the presentment to the Grand Jury of a bill of indictment for a capital offence, upon the ground of the illness of a witness sworn to be material. (7)

(1) See, R v. Chevalier D'Eon, 2 Burr. 1514; R. v. Jolliffe, 4 T. R. 285; R. v. Morphew, 2 M. & Sel. 602; R. v. Streak, 2 C. & P. 413; R. v. Hunter, 3 C. & P. 591; R. v. Stevenson, 2 Leach 546; R. v. Bolam, 2 M. & Rob. 192; R v. Macarthy, C. & Mar. 625; R. v. Savage, 1 C & K. 75; R. v. Mobbs. 2 F. & F. 18; R. v. Lawrence, 4 F. & F. 901; R. v. Langhurst, 10 Cox, 353; R. v. Taylor, 1 Cox, 340; R. v. Dripps, 13 Cox, 25; cit. in Arch. Cr. Pl. & Ev., 21 Ed. 105.

(2) R v. Flannagan, 15 Cox, 403.

(3) Rv Fitzgerald, 1 C. & K. 201.

(4) R. v. Nicholas, 2 C. & K 246.

(5) R. v. Beardmore, 7 C. & P. 497; R. v. Parish, 7 C. & P. 782; R. v. Osborne, 7 C. & P. 799; R. v. Bridgeman, C. & Mar. 271.

(6) R. v. Chapman, 8 C. & P. 558; R. v. Owen, 9 C. & P. 83; R. v. Guttridge, 9 C & P. 228; R. v. Bowen, 9 C. & P. 509.

(7) R v. Palmer, 6 C. & P. 652.

In one case it was held by Lush, J., that the presentment of a bill to the Grand Jury could not be postponed to the next Assizes, on the ground that other and like charges might, before that time, be brought against the prisoner. (1)

Baggallay, J. postponed, to the next assizes, the presentment of a bill, on the ground that the witnesses were resident in a workhouse where there was smallpox, and that the attendance at the Assizes of such witnesses would be dangerous to the public, inasmuch as they might carry infection; and the prisoner was admitted to bail on his own recognizance to appear at the next Assizes. (2)

See Articles 757-759, post, for special provisions, as to the province of Ontario.

631. Special pleas.-The following special pleas and no others may be pleaded according to the provisions hereinafter contained, that is to say, a plea of autrefois acquit, a plea of autrefois convict, a plea of pardon, and such pleas, in cases of defamatory libel, as are hereinafter mentioned.

2. All other grounds of defence may be relied on under the plea of not guilty.

3. The pleas of autrefois acquit, autrefois convict, and pardon may be pleaded together, and if pleaded shall be disposed of before the accused is called on to plead further; and if every such plea is disposed of against the accused, he shall be allowed to plead not guilty.

4. In any plea of autrefois acquit or autrefois convict it shall be sufficient for the accused to state that he has been lawfully acquitted or convicted, as the case may be, of the offence charged in the count or counts to which such plea is pleaded, indicating the time and place of such acquittal, or conviction; R.S.C., c. 174, s. 146.

5. On the trial of an issue on a plea of autrefois acquit or autrefois convict to any count or counts, if it appear that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made which might then have been made, have been convicted of all the offences of which he may be convicted on the count or counts to which such plea is pleaded, the court shall give judgment that he be discharged from such count or counts.

6. If it appear that the accused might on the former trial have been convicted of any offence of which he might be convicted on the count or counts to which such plea is pleaded, but that he may be convicted on any such count or counts of some offence or offences of which he could not have been convicted on the former trial, the court shall direct that he shall not be convicted on any such count or counts of any offence of which he might have been convicted on the former trial, but that he shall plead over as to the other offence or offences charged.

Under this Article, a plea of autrefois convict or of autrefois acquit may be proved by shewing either that the offence, of which the defendant was pre

1) R. v. Heeson, 14 Cox, 40.

) R v. Taylor, 15 Cox, 8.

viously convicted or acquitted, was the same offence as that which is charged against him in the indictment pleaded to, or that he was convicted or acquitted as the case may be, of some offence of which he might be convicted upon the indictment pleaded to. For instance, suppose A,-having been indicted tried and convicted of the manslaughter of B., or of concealing the birth of B.,-is afterwards indicted for the murder of B., a plea of autrefois convict, setting up such previous conviction, would be a good plea, because, although it was not a conviction for murder, and therefore not the identical offence charged in the indictment pleaded to, it was a conviction for an offence of which she might be again convicted under the new indictment; for a person charged with murder may be found guilty, under Article 713, post, of manslaughter, or under Article 714, of concealment of birth; and Article 633, post, expressly declares that a previous conviction or acquittal for murder shall be a bar to a second indictment for the same homicide, charging it as manslaughter, and vice versa.

It is said that the true test of whether such a plea is a sufficient bar, in any particular case, is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first. (1)

It is a well established principle of our criminal law that a series of charges shall not be preferred, and, whether a person accused of a minor offence be acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form. (2)

The rule is equally applicable though the first indictment be against the defendant jointly with others, and the second against him alone, for upon such second indictment he may be convicted of an offence committed by him separately or jointly with the others. (3)

There must have been a former conviction or acquittal upon trial; and therefore where a Coroner's jury returned a verdict of accidental death, a defendant who was afterwards indicted for the homicide was not entitled to plead autrefois acquil, on the strength of the verdict of the Coroner's jury. (4)

It appears also that, as a general rule, the previous conviction or acquittal must have been valid, and that if there was any defect or insufliciency in the first indictment, or trial, so that the defendant was not legally liable to suffer judgment for the offence charged in the indictment, as it stood when the verdict was rendered, and was, therefore, never really placed in jeopardy, the previous conviction or acquittal will be no bar to a second indictment. (5) But this rule seems, now, to be greatly modified by the above Article, 631, which expressly declares, (see clause 5), that the defendant shall succeed on his plea of autrefois acquil or autrefois convict, "if it appear that the matter on which the accused was given in charge on the former trial is the same, in whole or in part, as that on which it is proposed to give him in charge, and that he might, on the former trial, if all proper amendments had been made, - have been convicted of all the offences of which he may be convicted on the count or counts," pleaded to.

So, that, even if the former indictment were too defective and insufficient in law to sustain a conviction, yet, if the defects were such as might have been amended, for instance, under Article 723, post, although not actually amended,

(1) R. v. Clark, 1 Brod. & B. 473; See also, R. v Emden, 9 East, 437; R. v. Sheen? C. & P. 634; R. v. Bird, 2 Den. 94; 20 L. J. (M. C.) 70; R. v. Miles, 24 Q. B. D. 423; 59 L. J. (M. C) 56.

(2) Per Cockburn, C. J. in R. v. Elrington, 1 B. & S. 688.

(3) R. v. Dann, 1 Mood, C. C. 424.

(4) R. v. Labelle, (Q. B., Montréal, 1892), 1 Mon. Law Dig. 433; 16 L.N. 187. (5) R. v. Drury, 3 C. & K. 190; 18 L. J. (M. C.) 189; R. v. Green, Dears. & B. 113; 26 L. J. (M. C.) 17. See, also, R. v. Coogan, Leach, 448; R. v Taylor, 3 B. & C. 502; R. v. Champneys, 2 M. & Rob. 26; and other cases cit. in Arch. Cr. Pl. & Ev. 21 Ed. 149, 150.

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