Of course, when possible, it seems better that the sentence of death, and, in fact, any sentence, be passed by the judge who held the trial; but it is not an absolute necessity, and any judge of the same court may pronounce the sentence: 2 Hale, 405; 1 Chit. 697; R. v. Camplin, 1 Den. 89, as cited in R. v. Fletcher, Bell, 65.

If a case reserved is undecided, or if a writ of error is still pending, or if the Governor has not yet given his decision upon the case, or if a woman sentenced to death is pregnant, or if the prisoner becomes insane after the sentence, a reprieve may be granted either by the Governor, or any judge of the court where the trial was held, in term or in vacation: 1 Chit. 758; 2 Hale, 412.

It is clear that if, from any mistake or collusion, the criminal is cut down before he is really dead, and afterwards revives, he ought to be hanged again, for the judgment being "to be hanged by the neck till he be dead," is satisfied only by the death of the criminal: 1 Chit. 788; 2 Hale, 412.

PART LXIII.

IMPRISONMENT.

950. Every one who is convicted of any offence not punishable with death shall be punished in the manner, if any, prescribed by the statute especially relating to such offence. R. S. C. c. 181, s. 23.

951. Every person convicted of any indictable offence for which no punishment is specially provided, shall be liable to imprisonment for five

years.

2. Every one who is summarily convicted of any offence for which no punishment is specially provided, shall be liable to a penalty not exceeding fifty dollars, or to imprisonment, with or without hard labour, for a term not exceeding six months, or to both. R. S. C. c. 181, s. 24 (as amended in 1893).

Imprisonment for life was the penalty for felonies by the repealed clause. By the above clauses, such felodies as

those enacted by s. 212, c. 32, and s. 94, c. 34, R. S. C. are now punishable only by five years or a mere fine; s. 958, post.

Twenty dollars and three months was the maximum on summary convictions in the repealed clause.

Imprisonment for one calendar month how computed: Migotti v. Colville, 4 C. P. D. 233, 14 Cox, 263, 305; Henderson v. Preston, 16 Cox, 445.

952. Every one who is convicted of an indictable offence not punishable with death, committed after a previous conviction for an indictable offence, is liable to imprisonment for ten years, unless some other punishment is directed by any statute for the particular offence,-in which case the offender shall be liable to the punishment thereby awarded, and not to any other. R. S. C. c. 181, s. 25. (Amended).

This is a singular piece of legislation if it means anything. All and every one of the indictable offences for which no special statutory punishment is provided, whether falling under this code or otherwise, are to be punished more severely if committed by one who has previously been convicted of an indictable offence. But for those falling under the code, and where the punishment is provided for, that is for every one of them, except a few, where the punishment has been "clerically" forgotten, (ss. 113, 137, 143, 501, for instances), a previous conviction of an indictable offence does not, as a rule, render an offender liable to a greater punishment. Section 356, which amends the law so as to limit it to previous convictions for theft, and ss. 418 & 478 as to burglary and offences against the coin are the only ones that provide for a greater punishment after a previous conviction. Why such a distinction? Evidently, we have here another piece of legislation by inadvertence. Bribery, undue influence and subornation of personation at federal elections, for instance, are under ss. 951 and 952 punishable by five years penitentiary, and, if the offender has been previously convicted of an indictable offence, by ten years.

A train conductor drunk on duty, or who allows any baggage or freight car to be placed in the rear of the passenger cars (51 V. c. 29, ss. 291, 292) is likewise punishable by five years penitentiary, and, upon a second conviction, by ten years, whilst the forgery of a custom house mark or brand is only punishable upon summary conviction by a two hundred dollars fine: s. 210, c. 32, R. S. C.

MINIMUM TERM OF IMPRISONMENT.

953. Every one who is liable to imprisonment for life, or for any term of years, or other term, may be sentenced to imprisonment for any shorterterm: Provided, that no one shall be sentenced to any shorter term of imprisonment than the minimum term, if any, prescribed for the offence of which he is convicted. R. S. C. c. 181, s. 26.

CUMULATIVE PUNISHMENTS.

954. When an offender is convicted of more offences than one, before the same court or person at the same sitting, or when any offender, under sentence or undergoing punishment for one offence, is convicted of any other offence, the court or person passing sentence may, on the last conviction, direct that the sentences passed upon the offender for his several offences shall take effect one after another. R. S. C. c. 181, s. 27.

See R. v. Wilkes, 4 Burr. 2577; R. v. Williams, 1 Leach, 536; R. v. Orton, 14 Cox, 436 and 546.

PENITENTIARY, ETC.

955. Every one who is sentenced to imprisonment for life, or for a term of years, not less than two, shall be sentenced to imprisonment in the penitentiary for the province in which the conviction takes place.

2. Every one who is sentenced to imprisonment for a terin less than two years shall, if no other place is expressly mentioned, be sentenced to imprisonment in the common gaol of the district, county or place in which the sentence is pronounced, or if there is no common gaol there, then in that common gaol which is nearest to such locality, or in some lawful prison or place of confinement, other than a penitentiary, in which the sentence of imprisonment may be lawfully executed.

3. Provided that where any one is sentenced to imprisonment in a penitentiary, and at the same sittings or term of the court trying him is sentenced for one or more other offences to a term or terms of imprisonment less than two years each, he may be sentenced for such shorter terms to imprisonment in the same penitentiary, such sentences to take effect from the termination of his other sentence.

mili

4. Provided further that any prisoner sentenced for any term by any tary, naval or militia court-martial, or by any military or naval authority under any Mutiny Act, may be sentenced to imprisonment in a penitentiary; and if such prisoner is sentenced to a term less than two years, he may be sen

tenced to imprisonment in the common gaol of the district, county or place in which the sentence is pronounced, or in such other prison or place of confinement as is provided by sub-section two of this section with respect to persons sentenced thereunder.

5. Imprisonment in a penitentiary, in the Central Prison for the province of Ontario, in the Andrew Mercer Ontario Reformatory for females, and in any reformatory prison for females in the province of Quebec, shall be with hard labour, whether so directed in the sentence or not.

6. Imprisonment in a common gaol, or a public prison, other than those last mentioned, shall be with or without hard labour, in the discretion of the court or person passing sentence, if the offender is convicted on indictment, or under the provisions of Parts LIV. or LV. (Ss. 762, 782), or before a judge of the Supreme Court of the North-west Territories, and in other cases may be with hard labour, if hard labour is part of the punishment for the offence of which such offender is convicted--and if such imprisonment is to be with hard labour, the sentence shall so direct.

7 The term of imprisonment, in pursuance of any sentence, shall, unless otherwise directed in the sentence, commence on and from the day of passing such sentence, but no time during which the convict is out on bail shall be reckoned as part of the term of imprisonment to which he is sentenced.

8. Every one who is sentenced to imprisonment in any penitentiary, gaol, or other public or reformatory prison, shall be subject to the provisions of the statutes relating to such penitentiary, gaol or prison, and to all rules and regulations lawfully made with respect thereto. R. S. C. c. 181, s. 28; 53 V. c. 37, s. 31.

Under s-s. 7, a confinement in a lunatic asylum does not interrupt the sentence: Ex parte Armellini, 14 R. L. 311.

REFORMATORIES.

956. The court or person before whom any offender whose age at the time of his trial does not, in the opinion of the court, exceed sixteen years, is convicted, whether summarily or otherwise, of any offence punishable by imprisonment, may sentence such offender to imprisonment in any reformatory prison in the province in which such conviction takes place, subject to the provisions of any Act respecting imprisonment in such reformatory; and such imprisonment shall be substituted, in such case, for the imprisonment in the penitentiary or other place of confinement by which the offender would otherwise be punishable under any Act or law relating thereto : Provided, that in no case shall the sentence be less than two years' or more than five years' confinement in such reformatory prison; and in every case where the term of imprisonment is fixed by law to be more than five years, then such imprisonment shall be in the penitentiary.

2. Every person imprisoned in a reformatory shall be liable to perform such labour as is required of such person. R. S. C. c. 181, s. 29.

PART LXIV.

WHIPPING.

957. Whenever whipping may be awarded for any offence, the court may sentence the offender to be once, twice or thrice whipped, within the limits of the prison, under the supervision of the medical officer of the prison; and the number of strokes and the instrument with which they shall be inflicted shall be specified by the court in the sentence: and, whenever practicable, every whipping shall take place not less than ten days before the expiration of any term of imprisonment to which the offender is sentenced for the offence.

2. Whipping shall not be inflicted on any female. R. S. C. c. 181, s. 30.

PART LXV.

SURETIES FOR KEEPING THE PEACE, AND FINES.

958. Every court of criminal jurisdiction and every magistrate under Part LV. (s. 782) before whom any person shall be convicted of an offence and shall not be sentenced to death, shall have power in addition to any sentence imposed upon such person, to require him forthwith to enter into his own recognizances, or to give security to keep the peace, and be of good behaviour for any term not exceeding two years, and that such person in default shall be imprisoned for not more than one year after the expiry of his imprisonment under his sentence, or until such recognizances are sooner entered into or such security sooner given, and any person convicted of an indictable offence punishable with imprisonment for five years or less may be fined in addition to or in lieu of any punishment otherwise authorized, in which cuse the sentence may direct that in default of payment of his fine, the person so convicted shall be imprisoned until such fine is paid, or for a period not exceeding five years, to commence at the end of the term of imprisonment awarded by the sentence or forthwith as the case may require. R. S. C. c. 181. s. 31. (As amended in 1893).

The words in italics are new: see s. 934, ante, as to amount of fine when specified. "Security" defined by Interpretation Act, R. S. C. c. 1.