Smitheman v. The King

See Endlich on Statutes, sec. 71, pp. 91-92. A form given in a schedule, especially if there is no reference to it in the body of the Act, is to be regarded merely as an example.

See also. the foot note 77, on page 92.

Every element must be stated in an indictment as heretofore required by law.

Smith v. .Moody at page 60-63, per Alverstone C.J., and Wills and Channell JJ.

The words " County of Halifax" in the margin must denote either (a) the place where the document was drawn up; 1 Burns's Justices of the Peace (30 ed.) 1118, and Austin's Case (2); or (b) the venue as laid down in section 609 of the Code. The venue is intended to shew where the facts were alleged to have occurred and that the court and jury had jurisdiction in the matter. It was formerly necessary to state the venue expressly in the indictment, or by reference to the venue in the margin in every material allegation. Now, by virtue of sec. 609 of the Code [taken from 18 Vict. c. 92, (U. C.) R. C. ch. 174, sec. 104, and 14 & 15 Vict. (Imp.) ch. 100, s. it is not necessary to state any venue in the body of any indictment. Section 661 of the Code relates to procedure only, and does not authorize any order for the change of the place of trial of a prisoner, in any case where any such change would not have been granted under the former practice; it does away with the old practice of removing the case, by certiorari, into the Queen's Bench, and then moving to change the venue.

But if the venue be changed, what of the marginal " place" as indicating where the crime was comnitted.

is submitted, at all events, that the words "any record" referred to in s.s. (1) of sec. 3 of the Criminal Code means "any nisi prius record."

See sec. 30 14 & 15 Vict. (Imp.) ch. 100.

By sub-sec. of sec. 764 of the Code the record in any case must be filed in the court. The warrant is a certificate under sec. 42 the "Penitentiary Act," and is given to the warden of the penitentary through the officer who carries the prisoner, the act of a ministerial officer; it is not a "record," and therefore, is not covered by sec. 609 and sub-sec. (1) of sec. 3 of the Code.

As to the distinction of courts of general and limited jurisdiction, see the Lefroy Case and Am. & Eng. Ency. of Law, (2 ed.) pages 37, 38.

Jurisdiction in the County Court Judge's Criminal Court depends on (a) committal for trial or binding over; Code secs. 596, 601, 765; The King v. Komiensky (2); (b) certain crimes; sec. 765; or (c) consent of prisoner; secs. 765-767.

We also refer to Christie v. Unwin at p. 379 J.-We are all of the opinion that this appeal should be dismissed.

By sec. 609 of the Criminal Code,

The word " venue" in this section means the place where the crime is charged to have been committed. See Taschereau's Criminal Code, page 671, and 22 Enc. PI. & Pr., page 819.

By sec. 764 of the Criminal Code, and R. S. N. S. (1900) 157, county court judges' criminal courts are courts of record. The forms of records for these courts given by the Criminal Code, and NN, do not state any place of commitment of the offence.

By sec. 3, sub-sec. of the Criminal Code, the word " indictment " includes " any record."

The offence of which the appellant was convicted was not one for which local description was required.

The venue in the margin of the record was: There was, then, by force of the statute, an implied allegation that the offence was committed in the County of Halifax and the Province of Nova Scotia.

This was sufficient to show the jurisdiction of the court, and it is unimportant whether that court should or should not be considered an inferior court.

By the Penitentiary Act, R. C. c. 182, sec. 42, the officer conveying a convict to a penitentiary is to deliver him over without any further warrant than a copy of the sentence taken from the minutes of the court before which the convict was tried and certified by a judge or by the clerk or acting clerk of such