A nolle prosequi does not operate as an acquittal, and a fresh indictment may be preferred; but it puts an end to the indictment upon which it is fyled: R. v. Mitchell, 3 Cox, 93, and cases there cited. There is no plea of lis pendens or autrefois arraigned allowed in criminal cases, and that an indictment for the same offence is pending is no bar. The court will see that the defendant is not punished twice or unjustly harassed: see R. v. Sirois, 27 N. B. Rep. 610.

MOTION IN ARREST OF JUDGMENT.

733. If the jury find the accused guilty, or if the accused pleads guilty, the judge presiding at the trial shall ask him whether he has anything to say why sentence should not be passed upon him according to law; but the omission so to ask shall have no effect on the validity of the proceedings.

2. The accused may at any time before sentence move in arrest of judg ment on the ground that the indictment does not (after any amendment which the court is willing to and has power to make) state any indictable offence.

3. The court may in its discretion either hear and determine the matter during the same sittings or reserve the matter for the Court of Appeal as herein provided. If the court decides in favour of the accused, he shall be discharged from that indictment. If no such motion is made, or if the court decides against the accused upon such motion, the court may sentence the accused during the sittings of the court, or the court may in its discretion discharge him on his own recognizance, or on that of such sureties as the court thinks fit, or both, to appear and receive judgment at some future court or when called upon. If sentence is not passed during the sitting, the judge of any superior court before which the person so convicted afterwards appears or is brought, or if he was convicted before a court of general or quarter sessions, the court of general or quarter sessions at a subsequent sitting may pass sentence upon him or direct him to be discharged.

4. When any sentence is passed upon any person after a trial had under an order for changing the place of trial the court may, in its discretion, either direct the sentence to be carried out at the place where the trial was had or order the person sentenced to be removed to the place where his trial would have been had but for such order, so that the sentence may be there carried

out.

Sections 743, et seq., provide for reserving a case for the Court of Appeal. The court has no power to make any amendment on a motion in arrest of judgment. S-s. 4 relates to a change of venue under s. 651.

The defendant, after conviction, may move at any time in arrest of judgment before the sentence is actually pronounced upon him. This motion can be grounded only on

some objection arising on the face of the record itself, and no defect in the evidence, or irregularity at the trial, can be urged at this stage of the proceedings But any want of sufficient certainty in the indictment, as in the statement of time or place (where material), or of the facts and circumstances constituting the offence, by omitting to state or not stating definitely anything requisite to constitute the offence, or by omitting to negative any exception which ought to have been negatived or otherwise, will be a ground for arresting the judgment, if not amended before verdict or cured by the verdict.

The court will, ex proprio motu, arrest the judgment, even if the defendant omits to move for it, when it is satisfied that the defendant has not been found guilty of any offence in law. If a substantial ingredient of the offence does not appear on the face of the indictment the court will arrest the judgment: R. v. Carr, 26 L. C. J. 61. Judgment will also be arrested if the court does not appear by the indictment to have had jurisdiction over the offence charged: 8th Crim. L. Com. Report, 162; R. v. Fraser, 1 Moo. 407; R. v. Lynch, 20 L. C. J. 187.

A party convicted of felony must be present in court, in order to move in arrest of judgment; so a party convicted of a misdemeanour unless his presence be dispensed with at the discretion of the court: 1 Chit. 663; Cr. L. Com. Rep. loc. cit.

If the judgment be arrested the indictment and all the proceedings thereupon are set aside and judgment of acquittal is given by the court, but such acquittal is no bar to a fresh indictment: Archbold, 170; 8th Cr. L. Com. Rep. 163; 3 Burn, 58.

Section 245, c. 174, R. S. C. as to formal defects cured by verdict has not been re-enacted.

When the verdict is quashed for informalities, or any other grounds than the real merits of the case, the entry on the record should state it in these words, "and because it

appears that the said indictment is not sufficient (or as the case may be), therefore it is considered and adjudged that the defendant go thereof without delay," so as to prevent a plea of "autrefois acquit": 1 Chit. 719.

See cases under next section.

JUDGMENT NOT TO BE ARRESTED FOR FORMAL DEFECTS,

734. Judgment, after verdict upon an indictment for any offence against this Act, shall not be stayed or reversed for want of a similiter, nor by reason that the jury process has been awarded to a wrong officer, upon an insufficient suggestion-nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors,-nor because any person has served upon the jury who was not returned as a juror by the sheriff or other officer; an 1 where the offence charged is an offence created by any statute, or subjected to a greater degree of punishment by any statute, the indictment shall, after verdict, be held sufficient, if it describes the offence in the words of the statute creating the offence, or prescribing the punishment, although they are disjunctively stated or appear to include more than one offence, or otherwise. R. S. C. c. 174, s. 246. 7 Geo. IV. c. 64, s. 21 (Imp.).

The repealed section applied to any indictable offence. This one applies only to offences under the code.

See Heymann v. R., 12 Cox, 383, and R. v. Knight, 14 Cox, 31 as to aider by verdict and what defects are cured by verdict also Nash v. R., 9 Cox, 424.

Verdict will only cure defective statements. An absolute and total omission in the indictment is not cured by verdict: R. v. Bradlaugh, 14 Cox, 68. See R. v. Montminy, ante, p. 677.

No amendment allowed after verdict: R. v. Oliver, 13 Cox, 588.

In an indictment for perjury, alleged to have been committed in a certain cause, " wherein one Adrien Girardin, of the Township of Kingsey, in the district of Arthabaska, trader, and Thomas Ling, of the same place, farmer, was defendant." The omission of the words was plaintiff in the description of the plaintiff held fatal, and conviction quashed: R. v. Ling, 5 Q. L. R. 359, 2 L. N. 410.

In an indictment for obstructing an officer of excise under 27 & 28 V. c. 3: held, that the omission in the indictment of the averment that at the time of the obstruction

the officer was acting in the discharge of his duty under the authority of the said statute was not a defect of substance, but a formal error, which was cured by the verdict: Spelman v. R., 13 L. C. J. 154.

The defendant was indicted in the District of Beauharnois for perjury committed in the District of Montreal, but there was no averment in the indictment that he had been apprehended or that he was in custody in the District of Beauharnois at the time of finding the indictment: Held bad, even after verdict: R. v. Lynch, 20 L. C. J. 187, 7 R. L. 553.

A defect such as the omission of the word "company in an indictment for embezzling money from the Grand Trunk Railway Company of Canada is cured by verdict: R. v. Foreman, 1 L. C. L. J. 70.

Defect in an indictment cured by verdict: R. v. Stansfeld, 8 L. N. 123; also in R. v. Stroulger, 16 Cox, 85.

An indictment too vague and too general in its language is not cured by verdict: White v. R., 13 Cox, 318.

Under this clause, the first defect cured by verdict is the want of a similiter. The similiter is the joinder in issue, contained in the record (see ante, under s. 726 for form of a record) in these words: "And who prosecutes for our said Lady the Queen in this behalf, doth the like."

The second defect cured by verdict under this clause is the wrongful award of the jury process upon an insufficient suggestion. The jury process is usually directed to the sheriff, but if one of the parties represents that the sheriff is interested, or of kin to one of the parties, or in any way disqualified to act in the case, an entry of this suggestion is made on the back of the indictment first, and then on the record, when it is made up formally; and then the jury process is awarded to the coroner, if not disqualified, and if disqualified then to two elisors named by the court and sworn, in which last case the return is final, and no challenge. to the array is allowed: Jervis, Coroners, 54; 1 Chit. 514;

Wharton, Law Lexicon, Verbo "elisors;" Archbold, 154. By the above clause these formalities cannot be questioned or investigated after verdict, and no misnomer or misdescription of the officer returning the process or of any of the jurors can invalidate the verdict: see now s. 666, and remarks thereunder; see s. 735, post.

This clause says thirdly that no motion in arrest of judgment or writ of error will avail on the ground that any person has served upon the jury who was not returned as a juror by the sheriff or other officer: see Dovey v. Hobson, 2 Marsh. 154; R. v. Brisebois, 15 S. C. R. 427.

The fourth and most important part of this section consists in the words: "And where the offence charged is an offence created by any statute, or subjected to a greater degree of punishment by any statute, the indictment shall, after verdict, be held sufficient, if it describes the offence in the words of the statute creating the offence, or prescribing the punishment, although they be disjunctively stated or appear to include more than one offence, or otherwise": see ss. 611 to 626.

What is the meaning of these two last words " or otherwise," is not clear. "Although they be disjunctively stated" means "although the words be disjunctively stated" "as unlawfully or maliciously" instead of "unlawfully and maliciously."

The words or appear to include more than one offence" are not new law: see R. v. Ferguson, Dears. 427; R. v. Heywood, L. & C. 451; and remarks under s. 626, ante.

The words "subjected to a greater degree of punishment" mean greater than it was at common law.

The following decisions on the interpretation of the part of this clause rendering valid, after verdict, indictments describing the offence in the words of the statute creating it, or subjecting it to a greater degree of punishment, may be usefully inserted here.