Page images
PDF
EPUB

1. The evidence of a juryman upon a former trial at which the jury disagreed is admissible to prove the physical condition of an exhibit when it was put in evidence at the former trial.

DECIDED: December 15, 1909.

Motion by the defendants Joseph Roso and Plaso for leave to appeal to the Court of Appeal from their conviction at a trial before RICHARDS, J.A., and a jury.

RICHARDS, J.A., refused to state a case, and gave the following certificate:

:

During the fall assizes held by me in November, 1909, Tony Roso, Joseph Roso, and Angelo Plaso were placed on trial for having on the 22nd September, 1909, under arms, in the city of Winnipeg, robbed Dominic Farnare, Mike Walczyszyn, and John Ciupak of certain moneys and certain personal articles, amongst which was a leather purse.

At the trial Mike Walczyszyn deposed that he had been threshing in the country, and that he had the purse with him whilst threshing, and that he had come from the threshing fields to Winnipeg a few days before he was robbed.

A purse was found in the bedroom of the prisoner, Joseph Roso, which this prisoner claimed to be his own property, but which Mike Walczyszyn identified as the purse stolen from him. This purse was made an exhibit at the trial, and was taken into the jury-room by the jury whilst they deliberated over their verdict.

On the 9th November the jury brought in a formal verdict of "not guilty" against Tony Roso, but were unable to agree as to the other two prisoners, and I discharged the jury.

The other two prisoners, Joseph Roso and Angelo Plaso, were, later on at the same assizes, placed on trial a second time, and similar evidence was given by Mike Walczyszyn as to his having been threshing, and the same purse was again

put in evidence. This purse was again claimed by both Mike Walczyszyn and Joseph Roso.

At the second trial the Crown called as additional witnesses two of the jurymen who had acted on the jury at the first trial, who testified that, whilst they and the other members of the jury at the first trial were in the jury-room considering their verdict, they observed that in the purse were several barley-ends. Attached hereto is the evidence of the said jurymen.

On the 18th November, 1909, the jury on the second trial brought in a verdict of guilty against both prisoners, Joseph Roso and Angelo Plaso.

I believe that the above mentioned evidence of the finding of the barley-ends in the purse had considerable weight with the jury in finding Joseph Roso guilty, and it may have influenced the jury in finding Angelo Plaso guilty, as matters tending to shew that he was with Joseph Roso on the night of the robbery were stated in evidence.

Application was made to me by the prisoners' counsel, prior to my passing sentence on the prisoners, to state a case for the opinion of the Court of Appeal, and since the assizes ended such application has again been made.

The grounds for such application were that the evidence of the said two jurymen was improperly admitted at the second trial for the following reasons: (a) that these witnesses were jurymen at the first trial of the prisoners and deposed to what had taken place or what they had seen in their jury-room; and (b) that their evidence referred to the condition of the purse on the 9th November, 1909, and, as Mike Walczyszyn's purse was last in his possession on the 22nd September, 1909, there was no chain of evidence connecting the conditions of the purse between the said dates.

I refused to state a case thereon, and this certificate of such refusal is given in order that the prisoners' counsel may move the Court of Appeal for leave to appeal, without first getting the whole of the evidence extended.

WINNIPEG, December 15, 1909.

E. R. Levinson, for the defendant, Joseph Roso.

P. E. Hazel, for the defendant Plaso.

G. Patterson, K.C., for the Crown.

Woodward v. Leavett, 107 Mass. 453, and Am. & Eng. Encyc. of Law, vol. 11, p. 546, were referred to on the argument.

The Court refused the application.

Leave refused.

[COURT OF KING'S BENCH, QUEBEC.]

CRIMINAL SIDE.

DISTRICT OF BEAUHARNOIS.

BEFORE THE HONOURABLE MR. JUSTICE MERCIER.

THE KING v. ROULEAU.

Indictment--Motion to quash-Preliminary enquiry-Reading depositions -Criminal Code secs. 683, 684.

1. The provisions of article 684 of the Criminal Code, respecting the second reading of the depositions of witnesses for the prosecution do not apply where the proceedings on the preliminary enquiry before the magistrate are taken down in shorthand, but only where the depositions are transscribed in longhand.

2. When the depositions are authenticated as provided by the Code, it makes no difference whether they were transcribed and certified by the magistrate before or after the accused had been put upon his defence, as the accused is not prejudiced thereby.

3. The accused may waive the reading of depositions at the preliminary enquiry.

19-c.c.c. XVII.

VALLEYFIELD, QUE., February 7, 1910.

(Translation.)

MERCIER, J.-The Court having heard the accused by his attorney M. Numa E. Brossoit, and the Crown represented by M. L. Codebecq, representing the Honourable Attorney General, upon the motion of the said accused made to this Court on the third of February instant, and having taken it into consideration;

Seeing that the accused in this case by his motion demands that the commitment and the indictment found against him on the 2nd of February instant, by the grand jury sitting in and for the present assizes, should be quashed and set aside for the reasons following, to wit:

1. That on the 21st October, 1907, he appeared before M. Husmer Lanctôt, magistrate of the district, upon an information laid by one Antoine Bourdeau;

2. That the magistrate proceeded to hold a preliminary inquiry in the matter, the evidence of the witnesses for the prosecution being taken down in shorthand;

3. That on the 4th November 1907, these depositions were not transcribed, and were not signed by the magistrate, nor by the stenographer;

4. That on the 4th November, 1907, these depositions were not yet on the record, and the magistrate proceeded then to take the evidence on behalf of the accused, and the latter was then sent before the Court of the King's Bench, Criminal Side, to stand his trial;

5. That the preliminary inquiry is irregular, illegal, and void, and that, therefore, the accused has been illegally sent before the Criminal Court without the preliminary inquiry intended by law;

6. That the indictment sent before the grand jury and found well founded is illegal and void, and that the accused cannot be obliged to plead before this Court;

Seeing that the facts alleged above appear on the record and. are proved;

Considering that when, as provided by the 2nd sub-sec. of art. 683 of the Criminal Code of 1906, the depositions were taken in shorthand by a stenographer, previously sworn to take them, it is not necessary that they should be read in presence of the accused and of the magistrate to the witnesses, and signed by them, as in the case where the depositions are taken down in longhand according to the provisions of art. 682 of the said Criminal Code, and that it is sufficient that these depositions should, before being transmitted to the clerk of the peace be authenticated by the signature of the presiding magistrate, and, that they should at the same time be accompanied by a deposition of the stenographer establishing that his transcript is an exact report of the said depositions;

Considering that the provisions of art. 684 of the Criminal Code of 1906, which provide for a second reading of the depositions of the witnesses for the prosecution do not apply to the case where the proceedings before the magistrate are taken down in shorthand, but only to the case where he has held the enquête au long, with the ordinary writing, which appears, moreover, from the terms "read again" and "to read again," that is found in the said art. 684, which indicates by implication a first reading, which is required when the proceedings are in longhand, and not in the case where they are taken in shorthand; Article 683 specially providing that in the latter case, it would not be necessary for the depositions to be read in the presence of the accused and of the magistrate to the witnesses and signed by them;

Considering that the proviso contained in art. 683 of the Criminal Code, which permits the proceedings to be taken down in shorthand, was introduced into our criminal law in 1892, when the law was codified, and that if the legislature had wished to apply these provisions of art. 684 (then art. 591, Criminal Code of 1892), it would have modified the phraseology of this article

« PreviousContinue »