Brisebois v. The Queen

Sir W. J. RITCHIE C.J.-This was a case reserved under the Revised Statutes ch. 114 sec. 259 which enacts that every court before which any person is convicted on indictment for any treason, felony or misdemeanor, and every judge within the maeaning of "The Speedy Trials Act," trying any person under such act, may, in its or his discretion,. reserve any question of law which arises on the trial, for the consideration of the justices of the court for crown cases reserved, and thereupon may respite execution, &c."

I am of opinion this was not a question arising at the trial, but it was an objection raised subsequent to the trial, and which could only be determined on a writ of error and could not be reserved and disposed of in a summary manner on affidavits. I am therefore of opinion that as this was not a question arising on the trial which could be reserved, the Court of Queen's Bench in Montreal had no jurisdiction to adjudicate the case and consequently we have none, the prisoner's remedy, if any, being by writ of error.

Mr. Justice Gwynne has permitted me to peruse what he has written and will read on this point, and as he has discussed the point so fully and I entirely agree with what he has written and with the conclusion at which he has arrived I have nothing further to add. I do not wish it, however, to be understood that there should be a writ of error granted in this case, or to express any opinion as to what should or would be the result, if a writ of error was granted.

It has been also contended that this case comes within and is covered by sec. 246 of ch. 174 of the R. S. C. which enacts inter alia: " Judgment, after verdict upon " an indictment for any felony or misdemeanor shall "not be stayed or reversed *

* for any misnomer mis-description of the officer returning such process "(jury 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." If I am right in the view I take upon the first point the determination of this question is not necessary for the disposal of this case, therefoxe without expressing a positive opinion I may say I incline very strongly to the view that if this case does not come -within the very words of the act it is within the spirit and scope of the enactment and within the intent, policy and object if the legislature or, as Lord Coke expressed it, to suppress the mischief and advance the remedy. J.-I am of opinion that we ought to allow this appeal, quash the conviction and order a new trial.

The prisoner was indicted for a statutory felonyadministering poison with intent to commit murderand was- convicted.

At the conclusion of the trial and before sentence, it was discovered that Moise Lamoureux, one of the jurymen by whom he had been tried, had not been returned on the panel, but had either by mistake or design, which it does not appear, answered to the name of Joseph Lamoureux, a juryman who * had been duly returned on the panel, and thus by personating the latter had been sworn in his place. The learned judge before whom the trial took place reserved the case for the opinion of the Court of Queen's Bench on its appeal side pursuant to section of the Criminal Procedure Act. The case having been argued before the Court of Queen's Bench, that court affirmed the conviction ; one of the learned judges however, Mr. Justice Tessier, having differed from his colleagues, the prisoner was enabled to appeal to this court, which he has done,

I am of opinion that Mellor's case which has been relied on as a conclusive authority against this appeal, has no application here.

In the first place, the-learned judges who there held there had been no mis-trial, did so on the ground that William Thorniley, who by mistake appeared and was sworn in answer to the name of Joseph Henry Thorne, the person actually called, was himself a juror, whose name was contained in the panel duly returned by the sheriff. The prisoner in that case was not able toTHE make the objection that he was tried by a jury, one of S whom had no authority to try him. The case there J. was merely one where one juror was mistaken for another, and it is upon this circumstance that the judgments of those judges who held there had been no mis-trial were principally rested, as will be seen from the clear statement of the argument from that point of view presented in the judgment of Mr. Justice Byles.

The same argument is not available here, in answer to the prisoner's objection that he has been illegally tried, for it is manifest that only eleven out of the twelve jurors who had the prisoner in charge had.

authority to try him.

Next, I cannot agree with the learned chief justice of the Queen's Bench in the opinion that this is an objection covered by the 246 section of the Criminal Procedure Act, (R. C. cap. 174).

That section is a transcript, so far as the clause is concerned which enacts that a verdict shall not be " stayed or reversed because any person has served upon the jury who was not returned as a juror by the sheriff or other officer," of the English Statute Geo. 4 64 s. 21. This enactment was not referred to in Mellor's case for the very obvious reason that it did not apply since both the juror called and the juror who presented himself and was sworn in his stead had been legally " returned as jurors by the sheriff," and therefore, the case did not come within the terms of the statute. Here, however, the person sworn on the jury was not duly returned and therefore it has been said that the statute applies.

There is,.however, in the present case something more than the irregularity which the statute was designed to cure, the mere serving on the jury of a person not duly returned by the sheriff to serve. Not only was BISnozs the juror who illegally served here not duly returned, but he personated one who was duly returned, and in that way a wrong has been practised on the prisoner, a wrong which, if done knowingly, was undoubtedly a high contempt of court and an indictable offence, and if done innocently and by mistake may nevertheless have greatly prejudiced the prisoner on his trial. If section 246 covers a case like this, so it would also cover a case where the personation of the juror was the result of a deliberately planned fraud, a conspiracy between the juror actually summoned and a stranger personating him, with the very purpose and design of introducing upon the jury a person whose object it might be corruptly to convict the prisoner. It is impossible to suppose that the statute could apply to validate the trial in such a case, and if it would not it must also be inapplicable in the present case.

The whole tenor of the reasoning of the judges who thought there was no mis-trial in Mellor's case favors this view.

Further Mellor's case can be no authority against the prisoner on the question of mis-trial.

Of the fourteen learned judges who composed the court in that case, two, Chief Baron Pollock and Mr. Justice Williams, gave no opinion on this point, but rested their judgments exclusively on the ground that the court had no jurisdiction to entertain the question reserved. The remaining twelve judges were equally divided this point-six, including Lord Campbell C.J., Cockburn C.J., Coleridge and Wightman JJ., and Watson and Martin BB., holding distinctly that there had been a mis-trial, whilst the remaining six judges were of a contrary opinion.

It is evident, therefore, that on this point of the nullity or validity of the trial Mellor's case can be of no decisive 'authority, and we are thrown back on the preceding authorities and on the reasons, apart from authority,for and against the view contended for on behalf of the prisoner, reasons which are stated with great force and lucidity in the oppos- ing judgments delivered in Mellor's case.

As regards Strong J. the effect which this case of Mellor ought to have upon. our decision on this appeal, I cannot, however, refrain from saying that although their judgments were neutralized by the voices of an equal number of judges on the opposite side, yet the weight of high authority and of great names is decidedly with the six judges who pronounced for the prisoner, and I more especially refer to the two most distinguished judges whose names head the' list, who successively filled the office of Lord Chief Justice of England, and whose pre-eminence as great common law judges cannot be questioned,-Lord Campbell and Sir Alexander Cockburn.

The only authority in which the facts resemble those in the present case, where a juryman whose name was on the panel and who had been duly summoned in his proper name was personated by a stranger whose hame was not on the panel and who had received no summons to serve, is the civil case of Hill v. Yates (1), where the Court of Queen's Bench did certainly refuse a rule nisi for a new trial on this ground.

I consider that case, however, to be virtually disposed of in the judgment of Lord Campbell in Mellor's case where its unsoundness is most conclusively demonstrated. The reasons thus given by Lord Campbell are in the main the same as those which I have already stated as being an answer to the argument raised on behalf of the crown that the prisoner's objection in the present case was met by the 246th section of the Criminal Procedure Act, viz., that if the irregularity were to be con- (1) East sidered as a ground of challenge only, and as not invalidating the trial, the consequence would be, that .

there would be no remedy, where the wrongful sub- stitution of a stranger for a juror took place with the deliberate and malicious intent of prejudicing the prisoner on his trial. These reasons seem to me unanswerable in a case like the piesent, where the juror regularly called has been personated by one who was not himself on the panel whatever weight they ought to have in a case like Mellor's where the person substituted was himself a juror, duly summoned and the panel, and thus legally selected and having authority for the trial of the prisoner subject only to the latter's right of challenge. I am of opinion, therefore, that we ought not to consider ourselves bound by Hill v. Yates, more especially as that case was not a decision of a Court of Error or Appeal but of a court of first instance only, and moreover a decision pronounced in a civil cause and on a motion for a new trial.

As regards the comparative weight of the reasoning. apart from authority, upon which the respective views of the learned judges in Mellor's case are supported, it seems to me that the reasons of Lord Campbell and the judges who agreed with him far outweigh the arguments put forward by those who held opposite opinions.

In Mellor's case the arguments against the prisoner on the point of mis-trial appear to have been principally of two kinds, first those which depended on the important circuinstance, which distinguishes that case from the present, that the person who was there substituted for the juror called was himself a juror, whose name was regularly upon the panel, a consideration which makes all the reasons so based entirely inapplicable here, and secondly arguments deduced from considerations of public policy, and the inconvenience of a judicial decision which might open the door to a class of frivolous, technical objections tending in some instances to a failure of justice in the administration of the criminal law. That public inconven- J. ience may possibly be occasioned by holding the objection now raised by the prisoner a ground for invalidating the conviction, may to a certain extent be true but that does not constitute a sufficient reason why a prisoner should be deprived of a fair trial, as he certainly might be if the contrary rule should now be enunciated by authority. The fallacy in the argument thus derived from public policy and convenience is that those who advance it contemplate that this species of fraud on the law, by the personation of jurors in criminal cases will only be perpetrated in the interest of prisoners, whereas it is apparent that it may also be resorted to by those who may seek to injure and prejudice prisoners in their trials, and so long as the last alternative is possible an argument derived from the mere probability that such an abuse of justice will be more frequently practised on behalf of accused persons than against them ought not to prevail. In other words, there is no higher policy known to the common law of England than that which seeks to assure to every person brought under criminal accusation an absolutely fair and impartial trial. The courts have it in their own power to protect themselves, at least in a great degree, against any misapplication of a rule of procedure, involved in a decision of this appeal in favor of the prisoner, by enforcing greater caution and diligence on their own officers, by seeing that proper accommodation is provided for jurynen summoned on the panel so that they may be kept apart from the crowd of mere spectators who throng the courts, and by enforcing exemplary punishment when a case of wilful personation is discovered; by these means the anticipated evil B oRs which, after all, is probably chimerical, will seldom be *.

likely to cause a failure of justice. But even though the danger were a hundredfold greater it ought not, Strong J. in my judgment, to weigh for a moment against the sacred right of a prisoner to have a fair trial, a right which it is impossible he can in the future enjoy if the-judicial sanction of a court of appeal is now given to proceedings by which the prisoner was not only deprived of his right of challenge but possibly tried and convicted by a juror who may have introduced himself upon the jury for the express purpose of prejudicing the trial against him. Lord Campbell, in his judgment in Mellor's case, answers this argument from public inconvenience thus conclusively:

I have never read or heard that either of the chief justices was liable to be influenced by sentimental considerations in favor of prisoners; the traditions of the profession ae, as I have always heard, rather to the contrary; we may therefore safely assume, that in a case like the present they would have considered the nullity of the trial beyond all doubt or question. In short Mellor's case, so far from being an authority against the prisoner on this point as to the validity of the trial, is in truth strong one in his favor, inasmuch as the opinions of the six judgesr. (including the two chief justices) who there pronounc- ed for the prisoner are, a fortiori, applicable here, whilst J. the opinions of the six judges, who were there against the prisoner applied to an- irregularity of a, totally different kind from that which. occurred on the trial now under consideration.

I am, therefore, of opinion that there was such a miscarriage in the trial of the appellant that at common law the whole proceeding was a nullity. Further, I hold that the trial having thus been illegal and void at common law, the 246th sec. of the Criminal Procedure Act does not, for the reasons before stated, cure such irregularity and that it has therefore no application whatever to the case.

Next it is argued for the crown that the 259th sec. of the Criminal Procedure Act providing for the reservation of questions of law arising on the trial of indictments does not apply, and Mellor's case is again invoked as an authority for this proposition also. Here, again, I have to determine against the crown.

The great argument against the jurisdiction in Mellor's case was that there was no power conferred on the court to issue a venire de novo, so that if the conviction should have been quashed the prisoner must have gone free.

The court there, like the court for crown cases reserved under the present statute, was a purely statutory court, and had no authority save such as was conferred upon it by the express words, or by necessary implication from the express words, of an act of Parliament. Had the facts been as here showing ind-abitably that there had been a- mis-trial, and had the statute conferred the powers now given by sec. 268 of the Criminal Procedure Act, and which applied to the C6urt of Queen's Rench as well as it applies to this court, authorizing the granting of a new trial, (a substitution for the common law remedy of a venire de novo) where " the conviction is declared bad for a cause which makes the former trial a nullity so that there Strng J. " was no lawful trial in the cause ;" had, I say, the English statute conferred such a power as this the principal ground of the argument against the jurisdiction in Mellor's case would have entirely failed. As the act of parliament now enables the courts here to do justice by remanding the prisoner for a new trial, I can see no objection to holding that the Court of Queen's Bench had jurisdiction to entertain this objection to the validity of the conviction as " a question arising on the "trial," as I feel assured the English court would also have done in Mellor's case, had the opinion of Lord Campbell and those who agreed with him, that there had been a. mis-trial, prevailed and had the statute in terms conferred the po.wer to order a venire de novo, or the power which this court and the Court of Queen's Bench now possess of ordering a new trial.

I am of opinion that the trial of the appellant should (in the words of the statute) be declared to have been a "nullity," that the conviction should be quashed and a new trial ordered.

FOURNIER J.-Aux assises du district de Terrebonne, tenues en janvier dernier, Osias Brisbois a subi son procks pour avoir f6lonieusement administr6 un certain poison & F. X. Denis dans 1'intention de commettre un meutre, et un verdict de coupable a t6 prononc6 contre lui. Aprbs ce verdict, le prisonnier a fait, par le minist~re de son avocat, une motion en arr~t de jugement pour faire annuler le verdict, ordonner sa mise en libert6, ou pour un nouveau prochs.

L'unique raison donn6e i 1'appui de cette motion est que le nom de Moise Lamoureux, qui a fait partie du petit jury qui 1'a trouv6 coupable, ne se trouve pas sur la liste des jur6s assign6s pour le terme pendant lequel le prisonnier a subi son prochs.

Le nom de Joseph Lamoureux, son frbre, s'y trouve; mais celui-ci n'ayant pas t6 assign6, a, comIne de raison, fait d6faut chaque fois que son nom a 6t6 appel6 comme jur6. A FournierJ. chacun de ces appels, MoIse Lamoureux, qui avait requ, par erreur, 1'assignation destin~e a Joseph, s'est pr~sent6 A la place de celui-ci et a ill6galement preth serment domme jur6, si6g6 comme tel, pris part au verdict-sous le nom de son frbre-sans avoir prt6 serment sous son nom, ni rv616 son identit6 en aucune manibre.

Cette 6trange irr6gularit6 n'a 6t dbcouverte qu'apris le verdict, mais avant que aucune sentence n'e-it encore 6t prononc6e.

O'est en se fondant sur ce fait que le prisonnier demande 1'arr6t du jugement et 1'annulation du verdict.

L'honorable juge H. T. Taschereau, qui prisidait au prochs de 1'accus6, apr~s 1'expos6 des faits contenus dans la motion et apris leur v6rification par affidavits, en a fait rapport A la cour du Banc de la Reine, r6servant A cette dernibre cour la d6cision de la question. ainsi soulev6e.

La majorit de la cour du Banc de la Reine a rejet6 cette motion pour le motif qu'elle considbrait l'irr6gularit6 invoqu6e comme insuffisante pour faire annuler le verdict. En cons6quence de ce renvoi, appel A cette court La question A decider est done de savoir si le fait de Moise Lamoureux, dont le nom n'6tait pas sur la liste des jur6s, appel6 et r6pondant an nom de Joseph Lamoureux, dont le nom se trouvait sur cette liste, pr~tant serment et si6geant sous le nom de Joseph Lamoureux, sans avoir lui-m~me prt6 serment sons son propre nom, constitue une irr6gularit6 suffisante pour faire d6clarer le procks nul (mis-trial).

Cette question n'est pas nouvelle.

Elle a 6t6 sonlev6e bien des fois en Angleterre. L'honorable juge lIamsay dan ses notes sur la. cause de Feore en a ]

cRISEBOIB

Cit6 pluRsieurs d'ot iI a. COnOu:.

I it, that that statute the Cette dernibre section est maintenant remplac6e par 1a 246me section du chapitre- 174, Statuts revis6s du Canada, d6clarant que nul jugement aprs verdict ne sera atrit6, ni ifrm& pour diverses raisons et entre autres suivante

9i past6 Comme on le voit, le texte qui concerne la question soulev~e ici se borne A dire que le jugement ne sera pas arrt6 parce qu'une personne dont le nom n'4tait pas, sur la liste des jurbs aura servi comme tel. Ce serait bien de faire application de cette dis iosition, si Moise Lamoureux, dont le nom n'6tait pas sur la liste, efit t6 soit par m6prise on par une erreur quelconque, appelk pax. son v6ritable nom A faire partie du jury. Une telle irr6gularit6 aurait t6 sans doute couverte par la section 246.

Mais les choses sont loin de s'6tre ,pass~es de cette manibre. Joseph Lamouieux dont le nom se trouvait r~gulibrement sur la liste 6tant appel6, c'est Moise qui se pr6sente A sa place et le personnifie. II prte serment sous un nom qui n'est pas le sien et s'ouvre ainsi l'entr6e du jury.par un faux serment. r6pete cette imposture A chaque fois que Joseph Lamoureux est appel6, et il a le soin de si bien. cacher son identit6 qu'elle n'est d6couverte qu'apres le verdict. Est-ce une de ces irr6gularit6s couverte par la clause 246? Evidemment non; la loi pr6sume que le jur6 dont le nam n'est pas sur la liste a -da &tre ;appel6 par son nom. Elle ue peut certainement pas ts'inAterpr6ter de munibre A couvrir le cas do celui qrfi a faussement pnis. nom d'un autre et jure faussement qu'fl est an Fo r.J. tel, taudis qu'il est une autre personne. O'est :grtoe &, ,leux offenses criminelles bien graves : au Iaux seriaent etA la personaification, que.Moise Lazoureux a r6ussi A p~n6tror dans le jury.

Baut-oin dire que la lai centeuait traiter comme simple irrfgularith le fait domt Moise Lamoiureux s'.est rendu coupable? sette supercherie, -il.a empboh6 le \prisonnier de se prjvaloir de :son druit de Trbesation.

ponivait ulavoir ,aucun motif de srCuser Joseph, maif il pouvait -en avoir contre celni qui cachait son nou sons celui de Joseph et e'introduisaitd'une maniere aussi extraQrdinaire dans jury. Quel pourait tre ses saotifsed'en agir.atijsi? Nous les -ignorons; mais 1'4trangett et l'ill6galit&de sa conduite ne font pr6sumer rien de bon en sa faveur. On ne devrait pas en Atre rbduit uppositions pour :s':assurer si prisonmier .a proads et impartial.

On a invoqu6 contre la position prise par le prisonnier 'autorit.de la .d60ision dans lacause Mellor (@, dans laquelle une question analogue s'est soulevie

Cette d6cision .a t6 cit6e et discut6e dans la cour du Banc -de la Reine de Qubbec, dans la cause de Regina v. Feore;(2), _mais la majort6 de la couir Zia pasconsidiv4 qu'elle devait avoir toute l'importanced'un pr6cdent, parce que suT la question A d60ider par qa cour du Banc de la Reine, les juges anglais. s'4taient trouv6s divisas Agalement, six d'nn c.t6 et six .e

1'autre.

Deux des juges qui furent d'avis de maintenir le verdict, s'abstinrent de la question do savoir si 'objection eut t6 soulev6e d'une autre manibre, elleet fatale ou non. Je ne pas, pour les raisons donnies par R.19.

V0L 1V.]

1'honorable juge, Ramsay, que l'on doive non plus donner & la decision dans la cause de Mellor 1'autorit6 TE d'un pr6cdent applicable a celle-ci.

Les questions en d6bat, il est vrai, ont t6 trait6es avec beaucoup de science et de d6veloppement,- mais pour r6pondre aux arguments employ6s par les juges de la majorit6, il n'y a qu'd se servir des arguments encore plus solides donn6s par la minotif6.

A 1'objection faite, que la cour n'a pas juridiction pour adjuger sur une question r6serv6e, qui n'a 6t6 soulev6e qu'apr6s le verdict, je r6pondrai par 1'argument de 1'honorablejuge Ramsay sur la mime question dans la cause de Regina v. Feore. Dans la pr6sente cause, 1'objection a 6 faite et r6serv6e aprbs le verdict, il est vrai, mais avant qu'aucune sentence n'e-ht 6t6 prononc6e.

L'honorable juge s'exprima ainsi:

Pour tons ces motifs, je suis d'opinion que 1'appel devrait Atre accord'6.

J.-The appellant having been found guilty of feloniously having administered poison with intent to murder, moved to arrest the judgment on the ground that one of the jurors who tried the case had not been returned as such. As this' irregularity did not appear on the face of the record it could, clearly, not constitute a ground for a motion in arrest of judgment.

A case having, however, been reserved by the judge presiding at the trial, and determined . by the full court of Queen's Bench, we have, I pre- sume to consider it as properly before us on the facts as stated in the court below, assuming, here, of course, that the case could be reserved.

These facts are as follows. The general panel of jurors contained the two names of Joseph Lamoureux and of Moise Lamoureux.

The special panel for the term of the court at which the prisoner was tried contained only the name of Joseph Lamoureux. The sheriff, however, served Joseph Lamoureux's summons on Moise Lamoureux, but returned Joseph Lamoureux as the party summoned.

1Voise Lamoureux appeared in court, as a juror, during the whole term answering to the name of Joseph Lamoureux, and on this Brisebois', trial, went in the box without challenge, having likewise answered to the name of Joseph Lamoureux.

I am of opinion that this appeal should be dismissed on the ground, taken by the Court of Queen's Bench at Montreal, viz.: " that section 246, ch. 174 of the Rev. Stat. clearly covers the irregularity complained of by the appellant here."

This section in express terms enacts that judgment shall not be stayed or reversed because any person has served upon the jury who was not returned as a juror by the sheriff. Now, here, the only irregularity complained of is that Moise Lamoureux has served upon the jury, though not returned as a juror by the sheriff.

This is precisely what the statute says will not be a ground for staying or reversing the judgment.

The reason that in Mellor's case the corresponding Imperial enactment, 7 Geo. IV, c. 64, sec. 21 was not cited (1) 1Dears&B.468.

.

SUPRERS COURT OF CANADA.

is that the -enactment had, in that case, no application. There no question arose of a party serving as a juror T who had not been returned by the sheriff as such. Reg. -v. Feore -has also been relied upon by the appellant, but that case does not bind us, did it apply to the present one. The case of Dovey v. Hobson:(2) is in point, and would conclude this 3case even without the above clause of -our statute.

As to the question whether the point raised was one which could be reserved by the jidge at the trial, I .am of opinion with the Chief Justice and Mr. Justice Gwynne, that it was not one which could be reserved. I am -of opinies -that this appeal should he -dismissed. GWYNNE J.-In Mellor's case the Court of Crimina'l Appeals in crown cases reserved, upon the opinion of eight judges against six, affirmed the conviction. Seven of the eight were of opinion that the point submitted, which was similar to that submitted in the present case, did not come within the jurisdiction -of the court for hearing crown cases reserved; and that it coUld -only be Taised, if :at all, upon a writ of error, as error in fact -not error in law. Five -of the seven held that if so raised, the irregularity which was complained of, constituted no mis-trial, in which opinion the eighth also concurred, but he gave no opinion as to the jurisdiction of the .court farther than that he doubted its having any jurisdiction to award a venire de novo; and the other -two gave no opinion -upon the question of mis-trial of -no mis-trial, because the point was not properly before them, -not coming up on a writ of error. Of the other six who were of opinion that the court had jurisdiotion, and That the :irregularity -complained of did.constitute mis-trial, two namely, Cockburrn C.1 and Watson B. expressed themselves as having'arrived at this opinion with great .doubt and a third Martin B. rested his judgment upon the principle which he laid on down, namely, that in these-cases -of questions of law reserved under the statute for the opinion -of the court of crown cases reserved, the statement of the judge as . to the facts upon which the question.of law submitted by him.depends must be received by the court as ahsolute verity. If the questions which can be reserved under the statute.are limited to .questions upon matter appearing-on the record, as in arrest of judgmRent, questions -of law arising during the progress of the trial which the judge presiding at the trial might have judicially determined himself if he had been so minded, the principle that the judge's statement -of the facts upon which he wished to submit .a question of law to the opiion ofthe-court should be-eceidved by the court as absolute verity seems to be perfectly sound; hut if the statement of facts made by the judge is, in cases submitted under the statute to be received as absolute verity, that to my mind affords a conclusive argument against the question which was submitted in Mellor's case and that which is submitted in the .present case being -within the contemplation of -the statute; for, in the absence of any provision in the statute authorizing or enabling a judge to collect- material after verdict, upon which to make a statement of facts for the purpose of -submitting thereon a question of law, the decision of which, may affect the verdict, I cannot recognize the principle upon which such a statement should be received as absolute verity ; or why either the prisoner or the crown should be deprived of their right to dispute the truth of the facts as stated by the judge, or if of lisplacing them by other -facts proposed to be put in course of judicial enquiry as they would have the right to do in the case of a writ of error in fact; which appears to be the only proceeding by which the VOL. KY:]

truth of the facts relied upon as being sufficient to BISEn0is vacate the verdict, or of other facts pleaded or relied .

upon as displacing the effect of the former, assuming THE QUEEN.

G e them to be true, can be judicially established. The decision in Mellor's case has never been questioned that I have been able to find except in the case of The Queen v. Feore- (1), in which case, with great deference I say it, the learned judges who set aside the verdict' do not seem to me to have correctly appreciated the grounds upon which the judgments of the learned judges who affirmed the conviction in Mellor's case proceeded. The case is cited as law in the edition of Rosche's Criminal Evidence by Horace Smith of 1884 (2), and in a note to Chitty's Statutes, 4th edition by Lely (3). The reasoning of those learned judges upon both points is to my mind most conclusive.

Pollock C.B. says: Apart from the statute which created this tribunal 11-12. Vic. ch. 78, the objection, if any, could not have been taken except on a writ of error, and the error, if error it be, is error in fact and not error in law. In my judgment the statute was clearly not intended to supersede the Court of Error and to confer upon this court all its functions

The authority and jurisdiction of the court is, in my opinion, limited to matters of law occurring upon the trial, of which the judge can take judical notice, and in providing for giving effect to the decision of this court and the certificate founded thereon, there are express directions given as to what shall be done in each case. It appears to me that the statute contemplated the final determination of the matter and never contemplated any new trial or any venire de novo.

After reading the terms of the statute which I may here observe are substantially identical with ours, the learned Chief Baron proceeded:

It appears to me that the statute never contemplated any new trial, and I think that will be clear when we come to consider what are the provisions made in the act, for they are very express and direct as to what shall be done upon the certificate going down to (1) 3 Q. L. R. 219.

(2) P. 217.

the court in which the point arose.

Referring then to the words of the statute that the BaRnsoxs court is:-to make such other order as justice may re- E. quire, he referred to Regina v. Faderman (1); in which it was held that those words only enable the court to Gwynne . order a party to be let out on bail or to do any other thing of the li)Ke. kind which justice may seem to demand, and he adds:

If this part of the act which enables us to make " any other order such as justice may require," is to be taken to apply to a case like the present I should be glad to know why, if we can award a ,enire de novo, we cannot grant a new trial in any case where improper evidence has been received, but which in reality was not calculated to have any influence upon the verdict. .If we are to award a venire de novo, because the prisoner may have lcst some benefit, of which there is no suggestion before us, then I would ask, in a case where, in the opinion of this court, improper evidence has been received and where an entry upon the record would be that the evidence having been so received the accused party was improperly con. victed, what does justice require in such a case?

Why, manifestly that the prisoner, guilty of some atrocious crime, should not thereby escape justice, and yet, I apprehend it will be conceded on all sides (and I do not imagine from the communications which have taken place among us that one single member of this court is of a different opinion) that however much we might all think that justice would require a new trial we should be incompetent to grant it. The act of Parliament provides expressly what shall be done where the conviction is vitiated: We cannot order a new trial in such a case ; we can. not order a venire de novo to issue, we can only vacate the conviction. And now I come to the second point, that of providing for giving effect to the decision of the.court and the certificate founded upon it. I shall read the very words of the act.

The learned Chief Baron read from the statute which, it may be observed, is substantially identical with our own sec. 262 of ch. 174, which is as follows:- And the said certificate shall be sufficient warrant to such sheriff or gaoler and all other persons for the execution of the judgment as so certified to have been affirmed or amended and execution shall thereupon be carried out 'on such judgment, or if the judment has been reversed, avoided or arrested the person convicted shall be discharged from further imprisonment, and the court before which (1) 1 Den. C.

he was convicted shall at its next session vacate the recognizance of bail if any.

The Chief Baron then proceeds- TeasQOUN.

This difficulty may arise; if we send back a certificate that this Gwynne.J. conviction is bad, I am not sure that the man would not be entitled to a habeas corpus -to know why he is detained, and why the.sheriff does not insantly discharge him ; .and it might be a most serious question whether he ought not, from the plain, manifest and clear words of the act, instantly to be discharged * * there is provision for everything which is really con templated by the act. The sheriff is called on to discharge the prisoner if the conviction is avoided. (In * the event of the judgment being affirmed and amended then execution is to issue upon the judgment so affirmed and amended, But there is not a syllable in the act that points to any power -in the sheriff, or anybody else to detain the prisoner or in any court to try him in the event of a venire de novo issuing.

On these grounds, in my judgment, this court is not competent to award a venire de novo, and, Ithink, that the remark, in a case I have -already cited, that the prisoner ought not to be deprived -of his wiiit ofterror, applies with equal strength -to the prosecution.

And he condludes his -most exhaustive judgment th>us:

In my judpment the prisoner ought to be left to his writ of error, and as that is my opinion in point of law, giving to the statute my most anxious and deliberate cousideratton, L abstain from giving any opinion whether a writ of erroroght,.or.ought not, toabe granted, or what .ought to .be the result of a writ of error if it were granted, assuming the facts to be true. These matters are not in my judgment properly now before the court and I think it best to abstain from giving any opiuiou upon them. In my judgment this court has no authority.to interfere, and I am clear ly.of opinion without the slightest doubt orhesitation that this court baa not any power to award a venire de novo and, in that way, grant a new trial. I think the .awarding of a venire de novo belongs exclusively to a court of error. This court by otherwise construing -the words which -have been referred to "to aakesAdh Oyder-as justice may require "1would not be expounding the act, which alone ithas the province to do; but would, in fact, be legislating and taking to itself an authority which the legislature never intended to confer upon it.

The judgmelnLt -of Erle J. is pronounced with equal force, that the objeption taken constituted neither ground.of error upon a writ of error, nor lad the court under the statute constituting it a court for the con- [VOL1.

It is alleged that the- prisoner may have intended to challenge

* Thornileyand have lost the opportunfty because Thorne was called, THE and that this posssble loss of challenge is error vitiatiig the frial. Gwynne J. No authority,

He proceeds:

has been adduced to shew that such a mistake has ever been held to be a ground of error.

He then reviews all the civil cases wherein a similar mistake had occurred and thus states the conclusion to be deduced from them.

Aceording to these authorities a misnomer appearing 6n- the record is always ground of error if not amended, but it is no ground of new trial if the person who was sworn was a person that was subymoned and no injustice was done;- The cases further shew that if a person not summoned was sworn in the, name of 6ae who was sum, moned, it might or might not be grownd of new trial according to the discretion of the the court, or if a person not-on the panel answers to the name of a person on the panel, such personation may or may not be ground of new trial according to the discretion of the court.

As however all these cases were civil cases he adds:

As they relate to verdicts at Niri Prfus they difer materially fiom a verdict under a commission of Oyer and Teratiner; with respect to such a verdict one case only has been-found, namely, the ease of a juryman (1), where Joseph Currie answered to the name of Robert Carrie on the panel and the conviction was affirmed by twelve judges unanimously, the summons having been served on

Joseph Ourrie and the bailiff intending he should serve.

This unanimous opinion (he says) of the whole body of judges is a decision against the principle relied on for the prisoner, viz: That the variance between the name of the person calfed and the name of the person sworn may have misled him in his challenge.

The possible hardship of having lost a challenge from ignorance is no ground for vitiating a verdict as was said in Rex v. Swtton (2);

where an alien was sworn on the jury without the knowledge of the defendant.

(1) 8 B. & C. 418.

Thus far I have considered the question as if the court was in the present state of the record legally qualified to decide whether a venire de novo should be granted, but that writ is not lawful without THE an entry on the record shewing a valid ground for issuing it. See Corner v. Shew (1).

If in this case it issued without legal ground Gwynne J. appearing on the record the new trial would be erroneous, and the verdict thereon no ground for judgment. It is therefore necessary to see what entry could be made.

And upon this point he says:

The entry must be according to the supposed fact and ought to be traverseable so that the truth should be legally ascertained. That entry is essential for a judgment in error, and I cannot assent to the notion that every judicial officer who tries an indictment may receive a rumor and if he believes it, make an entry accordingly, to vitiate a record otherwise correct and so bind other parties and courts by an assumption which may be disputed ; thus in point of substance there is no ground of error and in point of form no ground of error appears on this record.

Then as to the statute under which the court of criminal appeal for hearing reserved cases sat, he says: The provisions of 11-12 Vic., ch. 78 are in terms confined to judgments after conviction,there is no authority given to alter the verdict in any way-none to treat a verdict as a nullity and to grant a new trial. The authority is express to vary the judgment in any way, and even to enter an adjudication that the prisoner ought not to have beert convicted, but the verdict is to be left to stand notwithstanding such entry. It is true there is a general power to make such order as justice may require; but this general power follows after specific powers relating to judgments only, and the general words, are to be restricted by the proceeding words and construed to be ejusdem generia.

Williams J. was also of opinion that the point reserved did not come within the statute 11- 12 Vic., ch. 18.

The questions contemplated by the statute as authorized to be reserved were, in his opinion, questions of law which the judge before whom the case is tried may reserve in his discretion, but he cannot reserve a point which he could not have decided finally. If, he says, the alleged mis-trial could have been cured by a verdict, it would have been helped by the verdict which has been given; I only mention this, he says, to show that the point as it stands before us must be regarded as oc.

curring after verdict. If that be so it seems to me to follow that it is not a question of law which has arisen at the trial, within the B meaning of the statute. Now, he continues, in the. present case, if the point had been one which could have formed ground for arresting judgment tho presiding judge might have decided it, for I do not mean to say that such aspoint may not be regarded as arising at Gwynne J. the trial within the meaning of the statute; but a point like the present could not be raised in arrest of judgment. It could only in the ordinary course of law be made the subject of a writ of error in fact; and I am of opinion that it was not intended by the statute to substitute this court for a court of error, as to errors in fact. I do not see any thing in the statute that enables the presiding judge to collect the materials for such a tribunal. It is said the point was brought to the attention of the judge while he was still acting under the commission in the assize town; but 1 am at a loss to know what power his commission gave him to act in the matter. I think he might just as well have acted after as during the assizes. There is no doubt that if his object were only to recommend the prisoner to the crown for a pardon, on the ground that he had not been fairly tried, the judge might collect information for the purpose at any time, and from any source on which he though it right to rely. But when the object is to ascertain whether a venire de novo ought to be awarded on the ground that there was error in fact, constituting a mistrial I can see no function the presiding judge whether at or after the assize has to perform in the matter or which it was meant by the statute to transfer from him to this coart in any event. The learned judge was further of opinion that it was unnecessary for him to consider the question whether, if the point was before the court expanded on the record on a writ of error, there ought to be a venire de no vo, as to this he says- It would be unbecoming in me, aware, as I am, of the conflicting opinions of my brother judges, to treat this question other than as a very doubtful one. I will only observe that if the facts stated for our consideration had been assigned as error in the ordinary course the question might have assumed a very different aspect if the crown had pleaded in answer to them (as perhaps it might,) that the juryman, William Thorniley, was personally well known to the prisoner, and was seen by him to go to the book to be sworn, and that he never had any intention or wish to challenge that man.

Crompton J. was of opinion that there was no ground which, in point of law, justified the court to interfere with the conviction. He says:

The present seems to me one of those cases where an irregularity has occurred- in the course of the proceedings which does not neces- ESasose sarily vacate the verdict, but where the court in which the record THE QUEEKR.

is, in a civil action, or the crown in the exercise of its prerogative may interfere if any unfairness or real prejudice has occurred but Gwynne J. where such interference is only matter of discretion. And, agAin, the argument for the prisoner is that he may have been prejudiced by supposing, from the fact of the name of the other persou having been called, that the juryman he had the opportunity of challenging was the person whose name was really called, and so that he may have lost the opportunity of challenging the one whom he would have wished to challenge. I think the case is the same in principle as that of the juryman in the note to Hill v. Yates (1).

If, (he says further) the case is not precisely one of misnomer the alleged prejudice to the prisoner seems to me precisely the same. I am not aware of any authority or case in which the fact that a prisoner has been ignorant of some matter which might have caused hm to challenge a, person who came to the book to be sworn, has been held to vitiate a verdict in point of law, and I apprehend that it would not do so even if it appeared that the prisoner had been purposely misled, though it would be matter for the consideration of the court in a clvil case, in exercising their discretion in granting a new trial, or for the advisers of the crown in the exercise of the prerogative of mercy. It would be, he adds, most mischevous if every irregularity of this nature, however happening, and even if contrived by or assented to by the prisoner or his friends would, necessarily vacate a verdict; if it would neces-sarily have that effect the same principle would apply to the case of an acquittal, even thongh the irregularity were caused by the prosecution,- I am not aware that. any case has carried the doctrine so far as would be necessary to support the objection in question and in no criminal cases has any similar objection prevailed that f am aware of. As to awarding a venire de novo he says,

The books are full of authority to show that no venire de noeo can issue except on matter appearing on the recrd sufficient to justify ach award, and if it be improperly awarded it is errbr.

I will not undertake to say how far any such objection as the present could properly be put upon the record if a writ of error were brought, and the judgment and proceeding had to be formally entered on the record.

In Iales's Pleas of ther Crown (2) it appears that if a juryman be returned as sworn, it cannot be assigned for error that he was not (1) 12 East 230.

(2) P. 296.

Crowder J was of opinion that the case did not come within the statute but, assuming it to do so, that there had been no mis-trial and that, before he could arrive at the conclusion that the verdict was a nullity, for the objection taken he must be satisfied that there exists some stringent and inflexible rule of law which goes the length of avoiding every criminal trial when such a mistake (however unattended with the slightest mischief) has occurred, and if there were any such rule of law which would render such a mistake per se fatal, he should contemplate with the utmost alarm the awful consequences which might ensue from it to the administration of criminal justice throughout the country. Prisoners if convicted might have another chance of escape or if acquitted might have their lives and liberty again imperilled, for that if such a mistake be fatal it is equally so whether the accused be acquitted or convicted and whatever might be the nature of the crime with which he should be charged. "But," he says, " I can find no such rule of law." Then, referring to the case of a juryman, he says:

prejudiced because he may have desired to challenge the name of William Thorniley but not that of Joseph Henry Thorne and may BRSHsols have known neither of them personally, and so in the case of a jury TB QUEN. man the prisoner might have had cause of challenge against Robert - Currie and thus the prisoner might have had his right of challenge Gwynne J. curtailed if.ho knew neither of the men personally-the trial, how. ever, was held valid by all the judges.

Willes J. as to the construction of the statute concurred in the judgment of the Lord Chief Baron Pollock, and in the review of the cases relied upon by the prisoner he concurred with the judgment of Erle J. and he adds:

If a foreigner had been on the jury unknown to the prisoner the conviction would have been unobjectionable even though the prisoner were proved to have disliked foreigners, and to be sure to have challenged one if he knew to him to be so; citing Rex v. Sutton (1). Again, if the juryman had been described on the panel by a wrong Christian name, and had been called merely in court and sworn upon the jury the conviction would have been valid. Yet such a mistake might, equally with that in question, have misled the prisoner and prevented him from challenging.

If this was a mis-trial, the prisoner having been convicted, it would equally have been a mis-trial in case of acquittal; but to order a venire de novo in the latter case would be scandalous and oppressive. It is not suggested that the prisoner has not had a fair trial,nor that he has sustained any prejudice. Far from its appearing that he was deprived of his challenge it is even consistent with the facts that he may have known who was about to be sworn and advisedly abstained from objecting to him.

Channell B. was of opinion that there was no mistrial, and he concurred in the opinion of Erle J. and in the reasons upon which that opinion was formed-and he adds that he was unable to distinguish the case from the case of a juryman upheld and supported as he considered it was by Hill v. Yates (2).

He says:- The case of a juryman was the case of a capital felony. Bill v. Yates was a civil action; but it is clear from the report that the court in the last case had in its mind criminal as well as .civil cases, and that the objection was considered with reference to both classes of cases. Iconclude that in the case of Hill v. Yates, in the year 1810, (1) 8 B. & 0. 417,

the then 12 judges fully recognized and sanctioned the opinion of the 12 judges their predecessors in the case of a juryman come to 27 Ba ols years before. With great deference to the Lord Chief Justice, I cannot bring myself to doubt that the subject was in these cases fully considered, or that they are to be treated otherwise than cogent authorities upon the question now before us. Assuming that there has Gwna J. been an irregularity or a mis-trial,it seems to me the objection would only be ground of error.

As to the jurisdiction of the court under the statute to entertain the question, he says:- By the statute referred to, the court is empowered with resped to questions of law reserved to hear and finally determine the same and therefore to reverse, affirm or amend any judgment, or to avoid such judgment and order an entry to be made that the party ought not to have been convicted, or to arrest the judgment, or order judgment to be given at some other session of Oyer and Terminer if no judgment shall have been previously given, or to make such other order as justice may require; it seems to me that the statute contemplates a final decision of the case without any ulterior proceedings except such as may be necessary to give effect to the judgment of this court, and that it did not contemplate or authorize any proceed, ings in the shape of a venire de noso or in the nature of a new triaL He did not, he said, attach much weight to the objection as to the time at which the discovery of the alleged irregularity was made, and to the consequent objection that the question raised was not reserved at the trial.

Byles J., while expressing no opinion upon the construction of the statute beyond expressing considerable doubt whether it authorized the court to grant a venire de novo, entertained a clear opinion that the irregularity complained of did not constitute a mis-trial.

It is, he said, an old and rational rule of law that where the parties to a transaction or the subject of a transaction are actually corporeally present, the calling of either of them by a wrong name is immaterial, presentia corporis tollit errorem nominis.

In this case there was, as soon as the prisoner omitted the challenge and thereby in effect said" I do not object to the man standing there " a compact between the crown and the prisoner that the individual juryman there standing corporeally present should try the case. A mere possibility of prejudice cannot vitiate the trial, the case in VOL. XY.]

In Reg. v. Feore (2) the learnedjudge who pronounced the judgment of the majority of the court seems to have been of opinion that the ground upon which the majority of the court in Mellor's case rested their judgment that the question there raised was that the question was not raised until after sentence had been passed; for he says that this point did not arise in Reg v. Feore for the reason that in that case and here he treats the trial as not ended by the verdict. But from the extracts above quoted from the judgments delivered by the learned judges in Mellor's Case (3) it is apparent that none of them rested his judgment upon any such ground. The grounds upon which they proceeded as most clearly and emphatically expressed by them were: That the jurisdiction of the court was limited by the statute to questions of law arising upon the trial, either out of matter appearing upon the record or in the evidence brought to the judge's notice during the trial, which question of law the judge might himself have judicially determined finally, or might in his discretion reserve for the con- * sideration of the court instead of determining it himself-that the statute does not apply when the judgment of the court upon the question submitted by the judge who tried the case Would not finally dispose of the case or where anything remained to be done beyond giving effect to such final decision; that after verdict the judge before whom the case had been tried had no jurisdiction or authority whatever to collect material-that is, to receive information in any manner of any matters alleged to be facts, upon which as established facts to make a statement for the purpose of submitting thereon a question of law-that the statute does-not point to any power in any body to try GwynneJ. the prisoner again, or empower the court to dispose of any matters not judicially ascertained to be facts, or directly or by implication deprive the crown of the right and opportunity it would have upon a writ of error to aver and prove that the allegations upon which the contention that there had been a mis-trial was rested were not founded on fact, or to displace the effect of such allegations, if true, by submitting to judicial inquiry other facts pleaded-as for example that the prisoner had not been deprived of an opportunity to challenge the juryman of whose presence on the jury he complains, for that in point of fact the prisoner knew the juryman personally, and that he never intended or wished to challenge him, and that upon the juryman being presented to him personally, the prisoner well knowing him, voluntarily accepted him as a juror upon his trial, and declined challenging himthat the statute gives no jurisdiction over a case of mis-trial-none to alter a verdict-none to treat a verdict as a nullity or to grant a new trial-either by means of a venire de novo or otherwise-that the authority conferred by the statute is confined to judgments after conviction, which judgments may be affirmed, amended or avoided, but that the affirmance, amendment or avoidance must be a final disposition of the case-that the statute never contemplated substituting the Court of Criminal Appeal for a Court of Error, as to errors in fact-and that the irregularity complained of, if objectionable at all, was so only as error in fact which could only be enquired of on a writ of error.

These were the grounds upon which the judgmente of the majority of the learned judges in Mellor's case proceeded, and not as suggested in Reg v. Feore (1) that the question did not arise upon the trial because of the objection not having been taken until after G sentence had been passed. Now in the case as submitted by the learned judges to the Court of Queen's Bench on its appeal side, which is the court for crown cases reserved in the Province of Quebec, the learned judge says that after verdict counsel for the prisoner moved in arrest of judgment not upon any matter appearing on the record but stated in an affidavit or affidavits, and that the verdict rendered against the the prisoner should be set aside and annulled, and that the prisoner if not liberated and discharged should be afforded a new trial upon the grounds stated in the affidavits.

The learned judge further says that by affidavits and documents produced to the court upon behalf of the prisoner on the above motion and by the deputy of the Attorney General certain facts were established which the learned judge states to be as follows (2):- Now as to this statement it is to be observed: 1st. that the matter complained of does not constitute ground for arrest of judgment and therefore the learned judge could not upon the ground suggested have entertained the motion in arrest of judgment. 2ndly. As a motion in arrest of judgment can be entertained only upon matter appearing upon the record, affidavits stating new matter not appearing upon the record cannot be received upon such a motion; in so far, therefore, as arrest of judgment was concerned the matter stated in the affidavits was not judicially before the learned judge.

3rdly. The learned judge had no jurisdiction to grant a new trial or to hear and determine the motion so far as it asked for the discharge of the prisoner or for a new trial; the matter stated in the affidavits therefore was not judicially before the learned judge for any of the purposes for which the motion was made or, indeed, for any purpose, and here applies one of the reasons so strongly pressed by the learned judges constituting the majority in Mellor's Case (1) :that the learned judge could not reserve a question of law which he could not himself have finally determined, or a question founded upon facts which did not appear judicially before him upon the trial nor had he any jurisdiction after verdict to collect material-or to receive information in any manner of any matter alleged to be facts upon which, as if they had been judicially established, he should submit a question of law to the court.

4thly. That the matters stated by the learned judge to have been established by the affidavits and the documents therein referred to were only cognizable in a court of error as error in fact, and that there is nothing in the statute to deprive the crown of the right to dispute the truth of such matters or to displace them, assuming them to be true, by pleading that the prisoner had lost no challenge or opportunity of challenge, for that he personally knew Moise

Lamoureux and had no intention or wish to challenge him, and that he was given an opportunity of doing so which he knowingly and voluntarily declined to avail himself of; the truth of which, as appears by the learned judge's statemeint assuming it to be correct, could readily have been established.

In fact the case is almost identical with the case of

The Juryman for Moise Lamoureux was the person served with a summons to attend as a juryman during the court.

He was duly qualified.

He was served with the summons by the sheriff at his dwell- (1) 1 Dears.

(2) East ing house situate in the concession from which the sheriff appears to have been summoning the jurors. We may assume without prejudice, although it is not expressly stated in the case, that the summons with which he was served was addressed to Joseph Lamoreux, a fact which probably Moise did not know, for he may.not have been able to read the summons, &c. The case then is simply this, that Molse Lamoureux, a qualified juryman was summoned by the sheriff to attend the court as a juryman, and was placed upon the panel in, and answered to, the name of Joseph, thus shewing a plain case of misnomer precisely, as appears to me, within the decision of the case of The .Turyman He was well known personally to the prisoner, whether the latter knew his christian name or not. It is plain, therefore, from the statement of the learned judge that there was no mis-trial and that the prisoner suffered no prejudice whatever. Indeed, it seems highly probable from the manner in which the motion was made and the form of the motion supported by affidavits that Moise's christian name was known to the prisoner or that at least he was known not to be Joseph, to which name he answered, and that he was accepted by the prisoner as ajuror to sit upon his trial with the reserved intention in the mind of the prisoner or of his friends in case of conviction to have the mo: tion made which was made; but however that may be, it appears to me to be clear upon principle and the authority of Mellor's case that the court of crown cases reserved had no jurisdiction to entertain the question, and that it only could be raised upon a writ of error in fact; and that, upon principle and the authority of The Case of a Juryman there was no mis-trial. I am clearly of opinion also that the case comes precisely within sec. 246 of ch. 174 of the Revised Statrifee [VOL. 17. which enacts that:

In Mellor's Case (1) the act 7th Geo. 4, ch. 64, sec. 21 from which the above sec. 246 of ch. 174 R. S. C. origiginally was taken did not apply because both Thorne and Thorniley were duly returned by the sheriff and entered upon the panel in their own proper names respectively, and the mistake there was that one answered when the other was called, but here Moise Lamoureux who was summoned to attend was not entered on the panel and he answered to the name of Joseph Lamoureux, who had not been summoned but whose name was upon the panel, and thus Molse who was not returned by the sheriff served upon the jury -the identical case mentioned in the statute.

For the above reasons, I am of opinion that the appeal should be dismissed,-the conviction affirmed and the case remitted.