posed of without considering them; in this case it is not necessary that the third question should be answered. As to the admissibility of the evidence, the point is not that it would prove another indictable offence merely, but is, that it would prove, and render the prisoner liable to conviction upon, another indictable offence of which he had been acquitted. The former acquittal absolved the prisoner from all omissions for which he might have been convicted upon that prosecution. To permit him to be, now, subject to conviction upon any such omission would be, in the circumstances of this case, to permit a conviction for an offence of which he had been acquitted. Upon the other point, it is not now contended that ability to perform the duty is not an ingredient of the crime. The ruling of the learned Chairman of the General Sessions upon this point -that inability was immaterial upon any question for the jury, and to be taken into consideration only by him in imposing the punishment in case of a verdict of guilty-was erroneous. It would be extraordinary if one were to be adjudged guilty of a crime for omitting to do that which was impossible, in such a case as this. If the wife were living with the prisoner, and as helpful to him as she could be, it may be that they would have enough for the support of both; but, as it was, the evidence upon the question of the man's ability was such that that question could not properly have been withdrawn from the jury: there was no suggestion at the trial that such was not the case, if it were a question for the jury. In The Queen v. Ryland, L.R. 1 C.C.R. 99, it was decided that the word "neglect" imported ability, in a case of neglecting to provide food and clothing for a child: see also Regina v. Chandler, Dears. C.C. 453; Regina v. Rugg, 12 Cox. C.C. 16; and The Queen v. Shepherd (1862), 31 L.J.M.C. 102. I would answer the first question, no, and the second, yes, and discharge the prisoner. GARROW, MACLAREN, and MAGEE, JJ.A., concurred. Prisoner discharged. Note: Continuing offences-Previous acquittal or conviction for similar offence charged as of prior date. Similar facts which, though not strictly constituting the main fact in issue are yet closely connected with and explanatory of it are admissible. Phipson on Evid., 4th ed., 45 (R. v. Ellis, 6 B. & C. 145; R. v. Egerton, R. & R. 375). The particulars receivable, however, will necessarily vary with each individual case. The main conditions of admissibility are, that the matters tendered should form the natural incidents of the act; that they should be substantially contemporaneous with it; and should qualify, explain, or complete it in some material respect. Greenleaf, sec. 108; Whart. Civ. Ev., ss. 258-259. To prove the stealing of gas from the prosecutor's main on a certain date, by means of a pipe inserted in the main, the abstraction of gas intermittently for several years by the same method is admissible, as forming one continuous taking. R. v. Firth, 38 L.J.M.C. 54; Lush, J., remarked that the means and the intent were continuous. To prove the stealing of coal by A., a mine owner, from B., an adjoining owner;-evidence that A. had stolen coal intermittently for four years from B. and thirty other adjoining owners, held admissible to shew A.'s intent, as one continuous transaction, all the coal being raised at one shaft. R. v. Bleasdale, 2 C. & K. 765. So, as to a continuous false representation. R. v. Welman, 22 L.J.M.C. 118. A. is charged with setting fire to B.'s rick. Evidence that he set fire to two other adjoining ricks belonging to C. and D. immediately afterwards, held admissible, as the act constituted one entire transaction. R. v. Long, 6 C. & P. 179. Evidence A. is charged with stealing four articles from B. that A. entered B.'s shop and took away one of the articles, but returned with it two minutes later, and then took it away again together with two more of the articles, having been admitted as proving one continuous taking,-evidence that A. returned again, half an hour later, and took away the fourth article-held inadmissible as relating to a distinct offence. R. v. Birdseye, 4 C. & P. 386. A. is charged with stealing (marked) shilling from B. A constable on arresting A. and finding the shilling upon him, asked if he had any more of B.'s property upon him, whereupon A. gave up some more money and made a statement as to it. Note-Continued. Continuing offences-Previous acquittal or conviction for similar offence charged as of prior date. Held that this statement was inadmissible as referring to a distinct felony. R. v. Butler, 2 C. & K. 221. A. is charged with rape upon B. in a boat. Evidence having been given of several rapes committed on B. in the same boat, other rapes committed in another boat to which B. was carried from the first boat, were not offered in evidence, being the subject of a separate charge. R. v. Lea, 3 Rus. Cr., 6th ed., 407. A. is charged under the Children's Act, 1894, with cruelty to children between Nov. 9, 1900, and April 9, 1901." Evidence of cruelty to them on prior dates, held not admissible either (1) under sec. 19 of the Act, by which it is not necessary to specify the dates of the acts constituting a continuous offence; or (2) to rebut the theory of accident. R. v. Miller, 65 J.P. 313, per Phillimore, J. No reasons are stated; but it was said to be otherwise, perhaps, if dates had not been given; and the evidence was in fact admitted on A.'s cross-examination. Phipson on Evidence, 4th ed., 55. An acquittal or conviction of an offence which necessarily includes a minor crime is a bar to a subsequent prosecution for the latter. Reg. v. Gould, 9 C. & P. 364, 38 E.C.L. 217. An acquittal or a conviction of a crime is no bar to a subsequent indictment for the same offence or the same species of crime, where the latter is alleged to have been committed at a different date from that previously tried, unless the offence is continuous. R. v. Taylor, 3 B. & C. 502; Ex p. Whalen, 32 N. B.R. 274; 12 Cyc. 281; People v. Sinell, 131 N.Y. 571; Bliss v. U.S., 105 Fed. 508; 44 C.C.A. 324; 14 Century Digest (Am.) title Crim. Law 385. But where a continuous offence is charged between specified dates, if any portion of the time covered by the indictment has been used on or applied under a former indictment and has resulted in a conviction, the former conviction is a bar. 12 Cyc. 281. The keeping of disorderly houses and of gaming houses are continuous offences and a conviction of either crime bars all prosecutions covering the period up to the time of such conviction. Diron v. Washington, 7 Fed. Cases, 3935, 4 Cranch C.C. 114; United States v. Burch, 1 Cranch C.C. 36. A conviction for being the common seller of intoxicating Note-Continued. Continuing offences-Previous acquittal or conviction for similar offence charged as of prior date. liquors, for a continuous period is no bar to a prosecution for a date not included in it. Com v. Keefe, 7 Gray (Mass.) 332, and, seemingly, is not a bar for an illegal sale on a specific date included in such period. Com v. Hudson, 14 Gray (Mass.) 11. But it has also been held that a conviction as a common seller of liquor is a bar to all complaints for sales prior to the filing of the complaint. Com v. Cain, 14 Gray (Mass.) 9. The legislature may carve out of a single act or transaction, several crimes so that the individual may, at the same time and in the same transaction, commit several distinct crimes in which case an acquittal or a conviction of one will not be a bar to an indictment for the other. 12 Cyc. 282; Carter v. McLaughry, 183 U.S. 365. The general rule is that to constitute a legal identity between two offences, so as to make an acquittal or conviction of one available as a defence against a prosecution for the other, it is necessary that the averments of the second information should be such that, if proved, they would have warranted a conviction under the first. Wilson v. State, 24 Conn. 57. A conviction of a husband for the "abandonment" of his wife bars a subsequent conviction for the same abandonment, although prolonged beyond the first, for the whole of the continuous, unbroken abandonment is one offence. State v. Dunston, 78 N.C. 418; Commonwealth v. Markley, 5 Pa. Dist. 134, 17 Pa. Co. Ct. 254. [HIGH COURT OF JUSTICE, ONTARIO.] BEFORE THE HONOURABLE MR. JUSTICE RIDDELL. THE KING v. MICHIGAN CENTRAL RAILROAD COMPANY. Punishment on plea of guilty-Fine of corporation-Consideration of evidence before coroner-Carrying explosives without proper care-Railway carrying dynamite-Option of carrier to refuse dangerous consignments-Explosion resulting in death and injury-Common nuisance Omission to care for dangerous thing-Cr. Code secs. 221, 247, 1004. 1. On an indictment of a railroad company for omission to take reasonable care of a consignment of dynamite whereby life and property was endangered and fatalities resulted from an explosion, the trial Judge on a plea of guilty may consider the evidence taken at the coroner's inquest held concerning the resultant deaths at which the railroad company was represented by counsel and fix the appropriate fine with reference to the seriousness of the case as so appearing. 2. A fine of $25,000 was imposed where the railroad company knowing the consignment to consist of explosives shipped the same unattended in an ordinary freight car mixed with other freight and after learning that it was dynamite neglected to take any precautions en route, notwithstanding slight explosions and leakages being observed, as a result of which neglect two men were killed and forty others injured. DECIDED: October 25, 1907. Indictment of defendants under secs. 221 and 247 of the Criminal Code for a nuisance and for carrying dangerous explosives without proper precautions. E. Meredith, K.C., for the Crown. TORONTO, October 25, 1907. RIDDELL, J.-This is an indictment against the Michigan |