TITLE VIII.

PROCEEDINGS AFTER CONVICTION.

PART LXI.

PUNISHMENTS GENERALLY.

PUNISHMENT AFTER CONVICTION ONLY.

931. Whenever a person doing a certain act is declared to be guilty of any offence, and to be liable to punishment therefor, it shall be understood that such person shall only be deemed guilty of such offence and liable to such R. S. C. c. 181, s. 1. punishment after being duly convicted of such act.

DEGREES IN PUNISHMENT.

932. Whenever it is provided that the offender shall be liable to different degrees or kinds of punishment, the punishment to be inflicted shall, subject to the limitations contained in the enactment, be in the discretion of the court or tribunal before which the conviction takes place. R. S. C. c. 181, s. 2.

LIABILITY UNDER DIFFERENT PROVISIONS.

933. Whenever any offender is punishable under two or more Acts or two or more sections of the same Act, he may be tried and punished under any of such Acts or sections; but no person shall be twice punished for the same offence. R. S. C. c. 181, s. 3.

This section enacts that where an offender is punishable under two or more Acts, or two or more sections of the same Act, he may be punished under either. This is taken from the Imperial Code, but the Imperial Code went further, and enacted that thereafter no offence should be indictable at common law. This s. 933 of this Code leaves the common law in force. The rule is, that if a common law misdemeanour is made subject to a greater punishment by statute it may still be proceeded against as a common law misdemeanour; but if a common law misdemeanour is made a felony the misdemeanour has ceased to exist; and where an offence punishable at common law is made by statute punishable by a summary conviction both remedies exist: Hamilton v. Massie, 18 O. R. 585; 2 Hawk. c. 25, s 4;

R. v. Wigg, 2 Salk. 460; R. v. Wright, 1 Burr. 543; R. v. Robinson, 2 Burr. 800; R. v. Carlile, 3 B. & Ald. 161; R. v. Gregory, 5 B. & Ad. 555; R. v. Crawshaw, Bell, 303; Bishop, Stat. Cr. par. 163 to 166 and s. 245; R. v. Dickenson, 1 Saund. 135. Also per Williams, J., in Eastern Archipelago Co. v. the Queen, 2 E. & B. 879; R. v. Adams, Car. and M. 299; R. v. Dixon, 10 Mod. 335; R. v. Buchanan, 8 Q. B. 883; R. v. Hall, 17 Cox, 278.

A prisoner should be able to gather from the indictment whether he is charged with an offence at the common law; or under a statute or, if there should be several statutes applicable to the subject under which statute he is charged, per Esten, V.-C., R. v. Cummings, 15 U. C. Q. B. 16.

FINE IMPOSED SHALL BE IN DISCRETION OF COURT.

934. Whenever a fine may be awarded or a penalty imposed for any offence, the amount of such fine or penalty shall within such limits, if any, as are prescribed in that behalf, be in the discretion of the court or person passing sentence or convicting, as the case may be. R. S. C. c. 181, s. 33.

PART LXII.

CAPITAL PUNISHMENT.

PUNISHMENT TO BE THE SAME ON CONVICTION BY VERDICT OR BY CONFESSION.

935. Every one who is indicted as principal or accessory for any offence made capital by any statute, shall be liable to the same punishment, whether he is convicted by verdict or on confession, and this as well in the case of acces sories as of principals. R. S. C. c. 181, s. 4.

FORM OF SENTENCE OF DEATH.

936. In all cases where an offender is sentenced to death the sentence or judgment to be pronounced against him shall be, that he be hanged by the neck until he is dead. R. S. C. c. 181, s. 5.

A judgment may be altered at any time during the assizes; and a reprieve may be granted or taken off by a

judge, although the session may be adjourned or finished, and this, by reason of common usage: 2 Hale, 412; Dyer,

205.

REPORT BY THE JUDGE.

937. In the case of any prisoner sentenced to the punishment of death, the judge before whom such prisoner has been convicted shall forthwith make a report of the case to the Secretary of State, for the information of the Governor General; and the day to be appointed for carrying the sentence into execution shall be such as, in the opinion of the judge, will allow sufficient time for the signification of the Governor's pleasure before such day, and if the judge thinks such prisoner ought to be recommended for the exercise of the royal mercy, or if, from the non-decision of any point of law reserved in the case, or from any other cause, it becomes necessary to delay the execution, he, or any other judge of the same court, or who might have held or sat in such court, may, from time to time, either in term or in vacation, reprieve such offender for such period or periods beyond the time fixed for the execution of the sentence as are necessary for the consideration of the case by the Crown. R. S. C. c. 181, s. 8.

TREATMENT OF PERSONS CONDEMNED TO Death.

938. Every one who is sentenced to suffer death shall, after judgment, be confined in some safe place within the prison, apart from all other prisoners; and no person except the gaoler and his servants, the medical officer or surgeon of the prison and a chaplain or a minister of religion, shall have access to any such convict, without the permission in writing of the court or judge before whom such convict has been tried, or of the sheriff. R. S. C. c. 181, s. 9.

EXECUTION TO BE PRIVATE.

939. Judgment of death to be executed on any prisoner shall be carried into effect within the walls of the prison in which the offender is confined at the time of execution. R. S. C. c. 181, s. 10.

WHO MAY BE PRESENT.

940. The sheriff charged with the execution, and the gaoler and medical officer or surgeon of the prison, and such other officers of the prison and such persons as the sheriff requires, shall be present at the execution. R. S. C. c. 181, s. 11.

941. Any justice of the peace for the district, county or place to which the prison belongs, and such relatives of the prisoner or other persons as it seems to the sheriff proper to admit within the prison for the purpose, and any minister of religion who desires to attend, may also be present at the execution. R. S. C. s. 181, s. 12.

CERTIFICATE OF DEATH.

942. As soon as may be after judgment of death has been executed on the offender, the medical officer or surgeon of the prison shall examine the body of the offender, and shall ascertain the fact of death, and shall sign a CRIM. LAW-61

certificate thereof, in the form UUU in schedule one hereto, and deliver the same to the sheriff.

2. The sheriff and the gaoler of the prison, and such justices and other persons present, if any, as the sheriff requires or allows, shall also sign a declaration in the form VVV in the said schedule to the effect that judgment of death has been executed on the offender. R. S. C. c. 181, ss. 13 & 14. As to a false certificate of execution see s. 158, ante.

FORMS UNDER TITLE VIII.

UUU.-(Section 942.)

CERTIFICATE OF EXECUTION OF JUDGMENT OF DEATH.

I, A. B., surgeon (or as the case may be) of the (describe the prison), hereby certify that I, this day, examined the body of C. D., on whom judgment of death was this day executed in the said prison; and that on such examination I found that the said C. D. was dead,

(Signed), A. B. in the year

VVV.-(Section 942.)

DECLARATION OF SHERIFF AND OTHERS.

We, the undersigned, hereby declare that judgment of death was this day executed on C. D., in the (describe the prison) in our presence.

Dated this

day of

, in the year

943. The duties imposed upon the sheriff, gaoler, medical officer or surgeon by the two sections next preceding, may be and, in his absence, shall be performed by his lawful deputy or assistant, or other officer or person ordinarily acting for him, or conjointly with him, or discharging the duties of any such officer. R. S. C. c. 181, s. 15.

INQUEST BY CORONER.

944. A coroner of a district, county or place to which the prison belongs, wherein judgment of death is executed on any offender, shall, within twentyfour hours after the execution, hold an inquest on the body of the offender; and the jury at the inquest shall inquire into and ascertain the identity of the body, and whether judgment of death was duly executed on the offender; and the inquisition shall be in duplicate, and one of the originals shall be delivered to the sheriff.

2. No officer of the prison and no prisoner confined therein shall, in any -case, be a juror on the inquest. R. S. C. c. 181, ss. 16 & 17.

BURIAL OF THE BODY.

945. The body of every offender executed shall be buried within the walls of the prison within which judgment of death is executed on him, unless the Lieutenant-Governor in Council orders otherwise. R. S. C. c. 181, s. 18.

CERTIFICATE.

946. Every certificate and declaration, and a duplicate of the inquest required by this Act, shall in every case be sent with all convenient speed by the sheriff to the Secretary of State, or to such other officer as is, from time to time, appointed for the purpose by the Governor in Council; and printed copies of such several instruments shall, as soon as possible, be exhibited and shall, for twenty-four hours at least, be kept exhibited on or near the principal entrance of the prison within which judgment of death is executed. R. S. C. c. 181, s. 20.

As to false certificate see s. 158, ante.

No ILLEGALITY FROM CERTAIN OMISSIONS.

947. The omission to comply with any provision of the preceding sections of this part shall not make the execution of judgment of death illegal in any case in which such execution would otherwise have been legal. R. S. C. c. 181, s. 21.

948. Except in so far as is hereby otherwise provided, judgment of death shall be carried into effect in the same manner as if the above provisions had not been passed. R. S. C. c. 181, s. 22.

RULES AND REGULATIONS.

949. The Governor in Council may, from time to time, make such rules and regulations to be observed on the execution of judgment of death in every prison, as he, from time to time, deems expedient for the purpose, as well of guarding against any abuse in such execution, as also of giving greater solem. nity to the same, and of making known without the prison walls the fact that such execution is taking place.

2. All such rules and regulations shall be laid upon the tables of both Houses of Parliament within six weeks after the making thereof, or, if Parliament is not then sitting, within fourteen days after the next meeting thereof. R. S. C. c. 181, ss. 44 & 45.

The Imperial Act on capital executions is 31 V. c. 24.