Ex Parte Smitheman

Ex PARTE, WILLIAM SMITHEMAN. *June ON APPLICATION, IN CHAMBERS, FOR A WRIT OF HABEAS CORPUS.

DAVIES J.-A motion was made before me at chambers for the discharge from custody of the prisoner Smitheman, now serving a term of imprisonment in Ex the Penitentiary at Dorchester N.B., for " unlawfully inflicting grievous bodily harm upon Fong Lem." Dai

The motion was made pursuant to an order of my brother Killam of the third of June instant setting down for hearing by a judge of this court in chambers a motion for the discharge of Smitheman from custody under a writ of habeas corpus which he ordered to be issued. The grounds upon which Mr. Power sought to sustain his motion were two and were each based upon alleged defects in the warrant of commitment' signed by the clerk of the County Court Judges' Criminal Court, at Halifax, N.S., returned by the warden of the Dorchester Penitentiary with the return to the writ of habeas corpus as the authority under which he detained and held Smitheman;- 1. That this warrant did not contain any allegation of the place where the prisoner committed the offence for which he was convicted and imprisoned; and That no time was stated in the warrant of commitment from which the imprisonment was to run. With respect to the last objection, it is sufficient to refer to section 955 (7) of the Criminal Code which prescribes that the term of imprisonment in pursuance of any sentence shall, unless otherwise directed in the sentence, commence on and from the day of the passing of the sentence, which day the commitment in question shewed to have been the fifth day of May, 1904.

With regard to the only other objection to the validity of the commitment, namely, the absence of any specific allegation of the place where the offence was committed, it is to be observed that the County Court Judges Criminal Court for the County of Halifax, District No. I, when exercising criminal jurisdiction under the provisions of part 54 of the Criminal Code, intituled, " Speedy Trials of Indictable Offences is declared, by section 7t)4, to be a court of record, and sub-section two enacts that

The jurisdiction of this criminal court is, by section 640, made, as regards the place of the commission of the offence, co-extensive with the Province of Nova Scotia and extends, by section 539, over all indictable offences excepting those specially reserved for the exclusive jurisdiction of the superior courts of criminal jurisdiction which do not include the offence of which this prisoner was convicted.

As regards " place," therefore, the jurisdiction of the court is not what is known as a limited one.

The general rule, no doubt, with regard to inferior courts is that stated in Paley on Convictions, (5 ed.) p. 204, that

But I am not prepared to hold that such rule would necessarily apply to a court having criminal jurisdiction co-extensive, as regards place, with the Supreme Court of the province. The same rule formerly prevailed with regard to the venue in indictments. But now, by section 609 of the Code,

This is not an offence requiring a local description and, therefore, if the question whether there was or was not a valid conviction in this case was before me, it would become necessary to determine whether this section 609 applied to the proceedings in this prosecution. In an ordinary indictment, the absence of the place the body of the indictment would be immaterial, being covered by that named in the margin. It would be curious, if by a technical limitation of the meaning of the word " indictment " to the proceedings of the Supreme Court of the province, this remedial section of the Code should not be held applicable to the proceedings of the County Court Jtidge's Criminal Court. Subsection 1" of the Interpretation Act, sec. 3 of the Code, says

I think, therefore, that the enactments of the Code are sufficient to meet this case where, even if the place was absent from the body of the record of the conviction, it would be covered by that named in the margin, viz. " County of Halifax ".

In this view, I am strengthened by the forms examples of the manner of stating offences given in the Code.

Section 982 declares that these forms shall be deemed good, valid and sufficient in law. The form adopted in the case before me seems to have followed one of the examples given in the Schedule "F.F." to the Code, (f.).

See also (M.M.)

But, apart from that, I am not satisfied that the document authorising the prisoner's detention in the penitentiary need necessarily contain every essential averment of a formal conviction. Section 42 of chapter 182 of the Revised Stagxtes of Canada, prescribes that the sheriff or other officer may convey the convict sentenced to the penitentiary and deliver him to the warden