Note-Continued.

Autrefois acquit-Summary conviction-Identity of charge
-Onus.

The proper course in such a case was to amend the information and adjourn the hearing.

[SUPREME COURT OF NEW BRUNSWICK.]

BEFORE BARKER, C.J., AND LANDRY, MCLEOD, WHITE, BARRY, AND MCKEOWN, JJ.

Ex parte CORMIER.

Magistrate Jurisdiction—Another magistrate sitting for a police magistrate at his request-Statute authorizing in case of police magistrate's "absence"-Keeping liquor for sale-Canada Temperance Act, R.S.C. 1906, ch. 152.

1. A statute authorizing another magistrate to act in the place of a police magistrate in the latter's "absence" is to be construed as conferring jurisdiction in a case in which the police magistrate was unable to preside because his attendance was required before another tribunal and asked the other magistrate to sit for him and this notwithstanding the presence of the police magistrate in the Court room during a part of the proceedings.

ARGUED: November 3, 1909.

DECIDED: November 19, 1909.

Application on certiorari and orders nisi to quash two convictions made by Chipman A. Steeves, sitting police magistrate for the city of Moncton, against the defendant Henri Cormier for keeping intoxicating liquor for sale, contrary to the provisions of the Canada Temperance Act, R.S.C. 1906, ch. 152. The grounds on which the orders were granted were stated in the judgment of the Court.

It appeared by affidavit that police magistrate Kay was attending the enquiry into his official conduct by commissioner M. G. Teed, K.C., and was therefore unable to try these cases and requested Chipman A. Steeves, sitting police magistrate of the city of Moncton, to act for him. The police magistrate was in the court room during part of the trials. It was stated in the proceedings that the matter was tried before Chipman A. Steeves, a justice of the peace for the county of Westmorland and sitting police magistrate for the city of Moncton, "acting in the absence of James Kay, a justice of the peace and stipendiary and police magistrate in and for the county of Westmorland.”

FREDERICTON, November 3, 1909.

Chandler, K.C., shewed cause:-Absence means absence from the bench, not necessarily absence from the Court or jurisdiction. Bryne v. Arnold, 24 N.B.R. 161 at p. 164; Reg. v. Perkin, 7 Q.B. 165. In Ex parte Gallagher, 39 N.B.R. 4, this Court held that the statement in the proceedings that the sitting magistrate was acting for the police magistrate "he being disqualified" is sufficient to give the sitting magistrate jurisdiction. See also Reg. v. McDonald, 5 Can. Cr. Cas. 97.

Sweeney, K.C., in support of the orders nisi:—The sitting magistrates are justices of the peace for the county. They have not the power of two justices. If James Kay is not absent, then Steeves has no jurisdiction. Kay must delegate Steeves under a certain state of facts. As a matter of fact Kay was actually in the court room during the trial of these cases, therefore it could not be said that he was absent.

BARKER, C.J.:-Suppose Kay is away and Steeves begins the trial, would Steeves lose his jurisdiction if Kay returned?

Sweeney, K.C.:-I say that Kay being present when the trial began Steeves never had jurisdiction. It is Kay's duty to try cases when in the city. He cannot delegate Steeves to perform his duties when he is able to perform them himself. If there was any other reason than absence from the jurisdiction it should be shewn in the proceedings.

MCLEOD, J. :—These cases involve the same points and may be decided togther. In one case the defendant Henri Cormier was convicted of having kept for sale on August 14, 1909, intoxicating liquor in Moncton in the county of Westmorland, contrary to the provisions of the Canada Temperance Act then in force in the said county, and was fined $50 and $12.50 costs. In the other case he was convicted of having sold intoxicating liquor in Moncton between July 1 and August 8, 1909, contrary to the provisions of the said Act, and was fined $50 and $3.25 costs.

The objections to the convictions are:-That the sitting magistrate had no jurisdiction to hear the case as the police magistrate was not absent within the meaning of the Act, and further that the proceedings do not shew that the sitting magistrate was acting for the police magistrate.

An affidavit of the police magistrate was read, giving his reasons for being absent and saying that in consequence of his enforced absence from the Court he asked the sitting magistrate to attend to the business of the Court. The absence intended by the Act, 53 Vict. ch. 60, sec. 65, is not actual absence from the jurisdiction or even from the place of trial, but it includes inability to attend to the business of the Court such as was proved in this case.

As to the second ground the convictions shew on their face that the sitting magistrate was acting in the absence of the police magistrate and following Ex parte Gallagher recently decided by this Court, 39 N.B.R. 4, the orders nisi in this case must be discharged.

Order nisi discharged.

[SUPREME COURT OF NEW BRUNSWICK.]

BEFORE LANDRY, J., PRESIDING AT THE SAINT JOHN CIRCUIT.

THE KING v. ROSSI.

Murder Assault and Robbery-Arrest on minor charge-Interrogation of prisoner by police officer-Warning to accused without stating that homicide might be charged-Admissions and confessions-Cr. Code secs. 263, 685.

1. A confession obtained from a person under arrest for assault and robbery will be admitted in evidence on a charge of murder if the accused was warned that he need not answer and that what he said might be used against him, although he was not told that he would be charged with homicide.

DECIDED: September 28, 1910.

The prisoner, an Italian, was indicted for the murder of another Italian and pleaded not guilty. At the trial it was proposed to give in evidence a statement made by the prisoner to Deputy Chief of Police Jenkins in answer to questions put by Detective Killen, after the accused had been taken into custody and warned as follows: "Andy Rossi, I am going to ask you some questions, but before I do I will warn you as the law directs. At present I have arrested you for assault causing actual bodily harm to Diego Saracusa at his house 37 North Street, morning 26th inst., and robbing him, and the charge may be more serious than assault. Now you need not answer me unless you wish, but anything you do say to me the Deputy Chief will take it down in writing, and I may use it in evidence against you at your trial."

Hazen, K.C. (A.G.), for the Crown.

Baxter, K.C., and G. Earle Logan, for the prisoner.

Baxter, K.C., objected to the statement being received on the ground that a constable had no right to interrogate a pri

soner even if he gave the accused the customary warning. R. v. Kay, 9 Can. Cr. Cas. 403, 11 B.C.R. 157; R. v. Bodkin, 9 Cox C.C. 403; R. v. Male and Cooper, 17 Cox C.C. 690; R. v. Stokes, 17 Jurist 192, referred to.

Hazen, K.C., contra, cited R. v. Best, 25 Times L.R. 280.

ST. JOHN, N.B., September 28, 1910.

LANDRY, J., while expressing some doubt, admitted the evi

dence.

NOTE: The jury disagreed upon this trial and were discharged and the case stands for trial by another jury.

Note: Confession or admission of accused as evidence.

See R. v. Bruce, 12 Can. Cr. Cas. 275; R. v. Choney, 13 Can. Cr. Cas. 289; R. v. White, 15 Can. Cr. Cas. 35; R. v. Daley, 16 Can. Cr. Cas. 168; R. v. Bonnevie, 10 Can. Cr. Cas. 376; R. v. Elliott, 3 Can. Cr. Cas. 95; R. v. Charcoal, 4 Can. Cr. Cas. 93.

[COURT OF APPEAL FOR ONTARIO.]

BEFORE THE HONOURABLE SIR CHARLES MOSS, CHIEF JUSTICE OF ONTARIO, AND GARROW, MACLAREN, MEREDITH, AND MAGEE, JJ.

THE KING v. VENTRICINI.

Murder by stabbing-Evidence-Finding of knives belonging to accusedTrial Judge stating to jury his impressions from the evidence-Calling back jury while deliberating-Hurrying the verdict-Suggestion of report after five minutes' additional conference-Suggestion of power to recommend to mercy-Cr. Code secs. 263, 945, 946.

1. On a trial for murder by stabbing, it is not error to admit evidence of the finding in the prisoner's room, where he was arrested, of knives belonging to him capable of producing the fatal wound.