At the request of the defence the trial Judge reserved for the consideration of this Court the following question: "Had the jury power to find a verdict of 'common assault' upon this indictment for rape?"

Section 951 of the Criminal Code provides that "every count shall be deemed divisible; and if the commission of the offence charged. as described in the enactment creating the offence or as charged in the count, includes the commission of any other offence, the person accused may be convicted of any offence so included which is proved, although the whole offence charged is not proved."

Rape is defined in sec. 298 as follows: "Rape is the act of a man having carnal knowledge of a woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman's husband, or by false and fraudulent representations as to the nature and quality of the act."

An assault is included in every case of rape as a necessary ingredient. The usual form of an indictment for rape is that "A. did assault B., a woman who was not his wife, and did then and there have carnal knowledge of her without her consent." See Regina v. Edwards, 29 O.R. 451, 2 Can. Cr. Cas. 96, and Regina v. Guthrie, L.R. 1 C.C.R. 241. This question should be answered in the affirmative.

The complainant, on cross-examination, was asked whether, before the date of the alleged crime, she had not been living with her future husband as his wife, which she denied. The Judge allowed the defence to bring witnesses to prove that she had done so. At the request of the Crown he has asked of this Court the further question: "Was I right in admitting this evidence?"

The question put to the complainant was one that was not relevant to the issue of rape that was being tried. Whether or not the complainant had been doing what was suggested by the question did not relate to the question of rape. The crime might be committed against her in either event. It has long been settled that when an irrelevant question of this nature is put to a witness of the opposite party, and is answered, the party putting the question

is bound by the answer and cannot be allowed to produce witnesses to prove that the answer is false. Taylor on Evidence, sec. 1439, says: "The rule is founded on two reasons: first, that a witness cannot be expected to come prepared to defend all the actions of his life; and next, that to admit contradictory evidence on such points would of necessity lead to inextricable confusion, by raising an almost endless series of collateral issues."

.

I am of opinion that this question should be answered in the negative.

In the event of the first question being answered in the negative, a third question was asked, viz., whether there should be a new trial; but this has become unnecessary in view of the affirmative answer suggested above to that question.

GARROW and MAGEE, JJ.A., concurred.

MEREDITH, J.A.:-There cannot, I think, be any doubt or difficulty involved in any of the questions asked.

Under the Criminal Code, "The distinction between felony and misdemeanour is abolished, and proceedings in respect of all offences," except so far as they are therein varied, "shall be conducted in the same manner:" sec. 14; and, "Every count shall be deemed divisible; and if the commission of the offence charged, as described in the enactment creating the offence or as charged in the count, includes the commission of any other offence, the person accused may be convicted of any offence so included which is proved, although the whole offence charged is not proved; or he may be convicted of an attempt to commit any offence so included;" but, "on a count charging murder, if the evidence proves manslaughter but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter, but shall not on that count find the accused guilty of any other offence:" sec. 951.

In view of the changes thus wrought in procedure in criminal cases, and of the very plain words of the enactment, which I have quoted, there can be no other answer than "yes" to the abstract question: Is there power to find a verdict of "common assault"

upon an indictment for rape? Rape necessarily "includes" an assault. The cases to which I referred during the argument, but was unable to name, are Wilkinson v. Dutton (1863), 32 L.J.M.C. 152, and Re Thompson (1860), 6 H. & N. 193.

The question as to the admissibility of evidence seems to me to be equally free from doubt. The question which was asked the prosecutrix was not material to the issue, and her answer was conclusive. Upon principle and upon the authorities, this is plainly so it may be that some cases have encroached upon the principle involved to some extent, but there is nothing that warrants, in these days, the admission of such evidence. If it were open to the defence to prove every separate improper act in the life of a witness for the prosecution, or of a prosecutrix, why not also every such act of the accused? Doubtless juries might think such evidence helpful to them, and in some cases it might be very much so, but there are other things to be considered; fair play would require that notice should be given of the intention to prove such things, and that the witness should have opportunity to meet the charge; and so one case might include the trial of many, which would be practically impossible, as well as perhaps more often distracting than helpful to the minds of the jury. The evidence admitted was adduced for the one purpose of proving a single immorality on the part of the witness, and was, in my opinion, plainly inadmissible.

The third question should, in my opinion, be answered in the affirmative; that is, that the Crown is entitled to a new trial. There having been a mistrial through the improper admission of evidence which may have affected and probably did affect the verdict, the Court should allow a new trial. I do not think that we are very much concerned with what the Crown intends to do; my concern is to deal with the case reserved. The trial Court cannot restrict the power of this Court under sec. 1018 of the Criminal

Code.

Verdict affirmed.

[SUPREME COURT OF NOVA SCOTIA.]

BEFORE TOWNSHEND, RUSSELL AND LONGLEY, JJ.

RE BURNS' BAIL.

Bail-Recognizance to appear in Court on adjourned enquiry-Default— Notice to perform condition-Estreat-Preliminary enquiry adjourned more than eight days-Consent of accused—Irregularity-Effect on recognizance-Nova Scotia Crown Rule 84-Cr. Code (1906) secs. 679, 681, 1097, 1102.

1. Where the accused fails to appear in Court as required by a recognizance entered into by himself and his bail, a notice to the bail requiring the performance of the condition which has already been broken is not necessary, and the recognizance may be estreated on notice to the bail of the default and of an application to estreat without serving a notice upon the bail under Nova Scotia Crown Rule No. 84 to perform the condition of the recognizance.

R. v. Barrett, 7 Can. Cr. Cas. 1, considered.

2. Where a preliminary enquiry is adjourned with the consent of the accused for a period of more than eight days contrary to Code sec. 679, the recognizance of the accused and of his bail then taken for his appearance at the adjourned hearing is not thereby invalidated.

3. The consent of the accused to the longer adjournment was a waiver of the irregularity and the bail having been expressly given for longer than eight days the surety could not complain.

DECIDED: December 15, 1906.

Motion to estreat bail referred by Graham, E.J., to the full Court.

A. G. Morrison, for the Crown.

J. J. Power, for the bail.

HALIFAX, December 15, 1906.

TOWNSHEND, J.:-The defendant Burns was arrested on a charge of stealing letters from the post-office, and brought before

the stipendiary magistrate. At his own request, and with the consent of the prosecuting officer, the examination was adjourned for ten days, on condition of his giving bail for his appearance. Mulcahy entered into a recognizance for that purpose. Defendant made default and did not appear.

The Crown thereupon gave notice to Mulcahy of such default, and of an application to estreat the bail before the Court. On making the motion, objection was taken for the bail that no notice had been served upon him requiring him to perform the condition of the recognizance. The presiding Judge re

ferred the whole question to the full Court.

The same question was before the Court in the case of Reg. v. Creelman, 25 N.S.R. 404, so far back as 1893. That decision, given as it was by a divided Court, has never been regarded as satisfactory, and I assume for that reason the presiding Judge in this case again referred the question to the full Court. I say so, for otherwise he would have followed the opinion of the majority of the Court. But he must also have been aware that the same question, ten years later in 1903, was again referred to the full Court, in Rex v. Barrett, and the Court divided once more in opinion. I regret that a larger Court did not hear the case now under consideration in the hope that the point might once for all be settled.

After considering all that has been urged by counsel for the bail, I see no reason for changing the opinion I gave in the case of Rex v. Barrett (1903), reported in 36 N.S.R. 135, 7 Can. Cr. Cas. 1, in which I set forth as fully as possible the grounds on which I agreed with Ritchie and Meagher, JJ., in Reg. v. Creelman, that notice was not legally necessary before estreating the bail, much less here where the only effect of notice would be to require the bail to perform an impossible condition.

In Reg. v. Schram, 2 U.C.R. 91, the Court adopted the same view under a similar statute; also in Re Talbot's Bail, 23 O.R. 65, and in Re McArthur's Bail (1897), 3 Can. Cr. Cas. 195. These cases are not in all respects similar, but serve to illustrate the point.