It is said in 1 Russ. 29: see R. v. Keary, 14 Cox, 143: "If a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner become mad he shall not be tried, as he cannot make his defence. If, after he is tried and found guilty, he loses his senses before judg ment, judgment shall not be pronounced, and if after judgment he becomes of non-sane memory execution shall be stayed; for, peradventure, says the humanity of the English law, had the prisoner been of sound memory he might have alleged something in stay of judgment or exe cution. And, by the common law, if it be doubtful whether a criminal who at his trial is, in appearance, a lunatic, be such in truth or not, the fact shall be investigated. And it appears that it may be tried by the jury who are charged to try the indictment, or by an inquest of office to be returned by the sheriff of the county wherein the court sits, or, being a collateral issue, the fact may pleaded and replied to ore tenus, and a venire awarded returnable instanter, in the nature of an inquest of office. See, now, s-s. 2 of s. 737. And if it be found that the party only feigns himself mad, and he refuses to answer or plead, he would formerly have been dealt with as one who stood mute, but now a plea of not guilty may be entered."

be

The above sections on the procedure in the case of insane prisoners are taken from the 39 & 40 Geo. III. c. 94, and the 3 & 4 V. c. 54.

Where, on a prisoner being brought up to plead, his counsel states that he is insane, and a jury is sworn to try whether he is so or not, the proper course is for the pri soner's counsel to begin the evidence on this issue, and prove the insanity, as the sanity is always presumed: R. v. Turton, 6 Cox, 385.

It has been seen, ante, under s. 668, that no peremp tory challenges are allowed on collateral issues.

The jury may judge of the sanity or insanity of the prisoner from his demeanour in their presence without any evidence R. v. Goode, 7 A. & E. 536.

The jury are sworn as follows:-"You shall diligently inquire and true presentment make for and on behalf of our Sovereign Lady the Queen, whether A. B., the prisoner, be insane or not, and a true verdict give according to the best of your understanding; so help you God."

If a prisoner has not, at the time of his trial, from the defect of his faculties sufficient intelligence to understand the nature of the proceedings against him, the jury ought to find that he is not sane, and upon such finding he may be ordered to be kept in custody: R. v. Dyson, 7 C. & P. 305.

A grand jury have no right to ignore a bill against any person on account of his insanity, either when the offence was committed or at the time of preferring the bill, however clearly shown: R. v. Hodges, 8 C. & P. 195; 1 Russ. 32; Dickinson's Quarter Sessions, 476.

If at any stage of the trial it is thought that the prisoner has not sufficient intelligence to understand the nature of the proceedings the jury should pass upon it under the above 8. 737 R. v. Berry, 13 Cox, 189.

PART LII.

APPEAL.

742. An appeal from the verdict or judgment of any court or judge having jurisdiction in criminal cases, or of a magistrate proceeding under section seven hundred and eighty-five, on the trial of any person for an indictable offence, shall lie upon the application of such person, if convicted, to the Court of Appeal in the cases hereinafter provided for, and in no others.

2. Whenever the judges of the Court of Appeal are unanimous in deciding an appeal brought before the said court their decision shall be final. If any of the judges dissent from the opinion of the majority an appeal shall lie from such decision to the Supreme Court of Canada as hereinafter provided.

WRIT OF ERROR ABOLISHED CASES RESERVED.

743. No proceeding in error shall be taken in any criminal case begun after the commencement of this Act:

2. The court before which any accused person is tried may, either during or after the trial, reserve any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto, or arising out of the direction of the judge, for the opinion of the Court of Appeal in manner hereinafter provided.

3. Either the prosecutor or the accused may during the trial either orally or in writing apply to the court to reserve any such question as aforesaid, and the court, if it refuses so to reserve it, shall nevertheless take a note of such objection.

4. After a question is reserved the trial shall proceed as in other cases, 5. If the result is a conviction the court may in its discretion respite the execution of the sentence or postpone sentence till the question reserved has been decided, and shall in its discretion commit the person convicted to prison or admit him to bail with one or two sufficient sureties, in such sums as the court thinks fit, to surrender at such time as the court directs.

6. If the question is reserved, a case shall be stated for the opinion of the Court of Appeal.

Section 259 c. 174, R. S. C., is the repealed clause on cases reserved.

Even in cases of misdemeanours, and where the prisoner was on bail before his trial, the court is not bound to admit the prisoner to bail during the pendency of a reserved case R. v. Bird, 5 Cox, 11; see as to intermediate effects of an appeal, s. 749, post.

APPEAL WHEN A RESERVED CASE REFUSED. (New).

744. If the court refuses to reserve the question the party applying may, with the leave in writing of the Attorney-General, move the Court of Appeal as hereinafter provided. The Attorney-General may in his discretion give or refuse such leave.

2. The Attorney-General, or any person to whom such leave as aforesaid is given, may on notice of motion to be given to the accused or prosecutor, as the case may be, move the Court of Appeal for leave to appeal. The Court of Appeal may upon the motion, and upon considering such evidence (if any) as they think fit to require, grant or refuse such leave.

3. If leave to appeal is granted a case shall be stated for the opinion of the Court of Appeal as if the question had been reserved.

4. If the sentence is alleged to be one which could not by law be passed, either party may without leave, upon giving notice of motion to the other side, move the Court of Appeal to pass a proper sentence.

5. If the court has arrested judgment, and refused to pass any sentence, the prosecutor may without leave make such a motion.

EVIDENCE FOR COURT OF APPEAL.

745. On any appeal or application for a new trial the court before which the trial was had shall, if it thinks necessary, or if the Court of Appeal so desires, send to the Court of Appeal a copy of the whole or of such part as may be material of the evidence or the notes taken by the judge or presiding justice at the trial. The Court of Appeal may, if only the judge's notes are sent and it considers such notes defective, refer to such other evidence of what took place at the trial as it may think fit. The Court of Appeal may in its discretion send back any case to the court by which it was stated to be amended or re-stated. R. S. C. c. 174, s, 264.

POWERS OF COURT OF APPEAL.

746. Upon the hearing of any appeal under the powers herein before contained, the Court of Appeal may

(a) confirm the ruling appealed from; or

(b) if of opinion that the ruling was erroneous, and that there has been a mis-trial in consequence, direct a new trial; or

(c) if it considers the sentence erroneous, or the arrest of judgment erroneous, pass such a sentence as ought to have been passed or set aside any sentence passed by the court below, and remit the case to the court below with a direction to pass the proper sentence; or

(d) if of opinion in a case in which the accused has been convicted that the ruling was erroneous, and that the accused ought to have been acquitted, direct that the accused shall be discharged, which order shall have all the effects of an acquittal; or

(e) direct a new trial; or

(f) make such other order as justice requires: Provided that no conviction shall be set aside nor any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was CRIM. LAW-55

done at the trial or some misdirection given, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage was thereby occasioned on the trial: Provided that if the Court of Appeal is of opinion that any challenge for the defence was improperly disallowed a new trial shall be granted.

2. If it appears to the Court of Appeal that such wrong or miscarriage affected some count only of the indictment the court may give separate directions as to each count and may pass sentence on any count unaffected by such wrong or miscarriage which stands good, or may remit the case to the court belone with directions to pass such sentence as justice may require.

3. The order or direction of the Court of Appeal shall be certified under the hand of the presiding chief justice or senior puisne judge to the proper officer of the court before which the case was tried, and such order or direction shall be carried into effect. R. S. C. c. 174, s. 263.

The words "Court of Appeal" and "Attorney-General," defined, s. 3.

Writs of error are abolished in all the cases begun after the commencement of this Act.

Only the grounds upon which the Court of Appeal are not unanimous are open to the appellant in a criminal case before the Supreme Court: per Ritchie, C.J., R. v. Cunningham, Cass. Dig. 107.

A case should not be reserved on frivolous grounds: R. v. Ferguson, Dears. 427; R. v. Tew, Dears. 429.

The passages of the above sections 742, et seq., which are in italics, are those where it is thought that the law is either altered, extended, or settled on doubtful points.

As heretofore, no question of practice, or on points left to the discretion of the judge, and only questions of law, can be reserved by the judge at the trial, or brought before the Court of Appeal. The only exception to this rule is

contained in s-s. 5 of s. 723.

Section 783, post, which allows a judge to reserve his final decision on questions raised at the trial of offences under the code, applies now to all the Dominion. It previously applied only to Ontario, but to all trials what

ever.

It seems to apply to all questions raised at the

trial, not only to questions of law.

Question whether there is sufficient evidence to support charge cannot be reserved, being a question for the jury;