Kelly v. The King

Kelly v. The King
Collection
Supreme Court Judgments
Date
1916-11-07
Report
(1916) 54 SCR 220
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Manitoba
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Kelly v. The King, (1916) 54 S.C.R. 220
Date: 1916-11-07
Thomas Kelly Appellant;
and
His Majesty the King Respondent.
1916: October 10 13; 1916; November 7.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA.
Criminal law—Indictment—Separate counts—Verdict—Conspiracy—Extraditable offence—Inadmissible evidence—Conviction—Inconsistency—Irregularity of procedure—Charge to jury—Address of counsel—Substantial wrong or miscarriage—New trial—"Criminal Code," s. 1019—Penalty.
On an indictment containing several counts, including charges for theft, receiving stolen property and obtaining money under false pretences, in respect of which the person accused had been extradited from the United States of America, evidence was admitted on behalf of the Crown, for the purpose of shewing mens rea, which involved participation of the accused in an alleged conspiracy. The principal objections urged against a conviction upon the charges mentioned were (a) that by the manner in which the trial had been conducted the jury may have been given the impression that the accused was on trial for conspiracy, a non-extraditable offence; (b) that misstatements and inflammatory observations had been made by counsel for the Crown in addressing the jury; and (c) that, in his charge, the trial judge had failed to correct impressions which may have been thus made on the minds of the jury or to instruct them that portions of the evidence admitted in regard to other counts ought not to be considered by them in disposing of the charge of obtaining money under false pretences.
Held, that, as there was sufficient evidence to support the verdict of the jury on the charge of obtaining money under false pretences, quite apart from the irregularities alleged to have taken place at the trial, no substantial wrong or miscarriage had been occasioned and there could be no ground for setting aside the conviction or directing a new trial under the provisions of section 1019 of the Criminal Code.
Judgment appealed from (11 West. W.R. 46), affirmed. APPEAL from the judgment of the Court of Appeal for Manitoba[1], upon a reserved case submitted by Mr. Justice Prendergast, the presiding judge at the trial of the appellant who was convicted upon four of the counts of the indictment preferred against him.
The accused was tried on five counts of an indictment, in substance as follows: (1) Theft of money, valuable securities and other property, belonging to the King, in the right of the Province of Manitoba; (2) unlawfully receiving money, valuable securities or other property belonging to the King which had been embezzled, stolen or fraudulently obtained by means of a conspiracy between the accused and others to defraud the King, the accused then knowing the same to have been so embezzled, etc., by means of said conspiracy; (3) a count similar to the second count, but naming two additional co-conspirators; (4) obtaining moneys by false pretences from His Majesty for the accused and others; (5) unlawfully receiving moneys of His Majesty which had to the knowledge of the accused been obtained by false pretences with intent to defraud.
The jury acquitted the accused on the third count, but brought in a verdict of guilty on all the others.
The issues raised on the present appeal are stated in the judgments now reported.
The questions reserved for consideration by the Court of Appeal for Manitoba, with the answers ordered to be returned thereto by that court were as follows:—
"1. Was I right in refusing to quash the whole indictment on the motion of counsel for the accused upon the grounds urged by them in their argument before me? A. Yes. "2. Was I right in refusing to quash the first count in the indictment upon the motion of counsel for the accused upon the grounds urged by them in their argument before me? A. Yes.
"3. Was I right in refusing to quash the second count in the indictment upon the motion of counsel for accused upon the grounds urged by them in their argument before me? A. Yes.
"4. Was I right in refusing to quash the fourth count in the indictment upon the motion of counsel for the accused upon the grounds urged by them in their argument before me? A. Yes.
"5. Was I. right in refusing to quash the fifth count in the indictment upon the motion of counsel for the accused upon the grounds urged by them in their argument before me? A. No.
"6. If any of the said counts should have been quashed or otherwise dealt with by me, either before or during the trial, has there been a mis-trial of the accused on any other count or counts by reason of the admission of evidence upon such count or counts as should have been quashed or otherwise dealt with by me? A. No.
"7. Was I right in my charge to the jury on the first count of the indictment as to theft or was my charge insufficient in law so as to be prejudicial to a fair trial of the accused? A. To the first part of question preceding the word 'or'—Yes; to remainder of question—No.
"8." Was I right in my charge to the jury on the fourth count of the indictment as to what constituted the offence of obtaining money by false pretences or was my charge insufficient in law so as to be prejudicial to a fair trial of the accused? A. To first part of question preceding the word 'or'—Yes; to remainder of question—No. "9. Was I right in admitting evidence as to acts, conduct, admissions, conversations and facts relating to some one or more of those named in the second count, namely: Rodmond P. Roblin, Walter H. Montague (since deceased), James H. Howden, George R. Coldwell, R. M. Simpson and Victor W. Horwood, to which the accused was not a party, and, if I have erred, was the same prejudicial to a fair trial of the accused? A. To first part of question down to and including the word 'party'—Yes; to remainder of question—No.
"10. Was there evidence upon which a jury could properly convict the accused—(a) On count Number 1; (b) On count Number 2; (c) On count Number 4; (d) On count Number 5. A. Yes.
"11. The jury having found the accused Thomas Kelly not guilty on the third count in the indictment, and evidence having been admitted on said count upon the trial, was the admission of such evidence prejudicial to a fair trial of the accused on the remaining four counts in the indictment upon which he was found guilty? A. No.
"12. Was I right in permitting the affidavits on production of Thomas Kelly, Lawrence Kelly and Charles Kelly, Exhibits 62 and 63, in a civil action of the Attorney-General of Manitoba against Thomas Kelly & Sons to be put in evidence in the manner disclosed by the record against the accused Thomas Kelly, and, if not, was the same prejudicial to a fair trial of the accused? A. To first part of question down to words 'and, if not'—Yes; to remainder of question—No.
"13. Was I right in the admission of certain documents (as so called secondary evidence) at the instance of the Crown, and, if so, was the admission of such documents or of any other exhibits filed prejudicial to a fair trial of the said Thomas Kelly as set out in Schedule 'D'? A. To first part of question down to and including the word 'Crown'—Yes; to remainder of question—No.
"14. Was any evidence admitted or allowed to be given which should not have been admitted or allowed to be given and which was prejudicial to a fair trial of the said Thomas Kelly, in regard to the matters set out in Schedule 'E'? A. No.
"15. Was I right in my comments upon the statement of the accused to the jury, with respect to it not being-made under oath, and, if so, was this prejudicial to a fair trial of the accused or a violation of the "Canada Evidence Act?" A. To first part of question down to and including the word 'oath'—Yes; to remainder of question—No.
"16. Similarly were any of the observations of counsel for the Crown so inflammatory or improper as to prejudice the fair trial of the accused or to be a violation of the "Canada Evidence-Act?" A. The first part of this question 'Were any of the observations of counsel for the Crown so inflammatory or improper as to prejudice the fair trial of the accused?' is not a question of law that may be reserved for the Court of Appeal under the Criminal Code. To the second part of the question—No.
"17. Was there in any respect, on my part, either a failure to direct the jury or an inaccurate direction to the jury with regard to the difference between a statement made by the accused to the jury and an address made on his behalf to a jury; or as to the weight that a jury is entitled to attach to the statements of the accused which are not made under oath or as to pointing out evidence favourable to the accused or in regard to correcting any mis-statements as to law or fact made by the Crown counsel during the trial or any addresses to the jury? A. No."
The majority of the Court of Appeal for Manitoba, upon the rendering of the judgment appealed from, by which the above answers were returned, consisted of His Lordship Chief Justice Howell and their Lordships Justices Perdue and Cameron. Their Lordships Justices Richards and Haggart dissented and were of opinion that there should be a new trial and that such new trial should be upon the fourth count of the indictment only.
Dewart K.C. and Harding for the appellant (Sweatman with them. The inflammatory and improper observations of counsel for the Crown to the jury afford ground for a new trial. In Pritchard's Practice of the Quarter Sessions, p. 22, it is laid down that prosecuting counsel addressing the jury ought to confine themselves to the simple statement of the facts expected to be proven; where prisoner has no counsel they should particularly refrain from stating any facts, proof of which may appear doubtful. Even where the prisoner has counsel, they should refrain from invective or appealing to the prejudices or passions of the jury, it being neither in good taste or right feeling to struggle for a conviction as is done in a civil court: Reg. v. Thursfield[2], per Gurney B. See also Archbold's Criminal Pleading, (24 ed.,) pp. 219-220; Reg. v. Holchester[3]; per Blackburn, J.; Reg. v. Berens[4]; Reg. v. Webb[5]; Rex v. Webb[6]; Ibrahim v. The King[7], at p. 616. We take objection to the comments and directions, or lack of directions, by the learned trial judge, particularly regarding theft and false pretences and the failure of the accused to testify. See Rex v. Hill[8] and Reg. v. Coleman[9], per McMahon J., at page 108. The trial judge failed to point out facts favourable to the accused: Rex v. Dinnick[10]; Rex v. Richards[11]; Rex v. Totty[12]; Reg. v. Parkins[13]; Rex v. Beauchamp[14]; Reg. v. Mills[15].
The learned trial judge failed to clearly point out to the jury the difference between the offences of theft and receiving and conspiracy and obtaining by false pretences, and what evidence was admissible under each offence charged, what evidence affected each count, and that evidence involving conspiracy could not affect the counts for theft or false pretences. He should have pointed out the inconsistency of a verdict on all four counts.: Rex v.Wong On[16]; Reg. v. Paul[17], per Hawkins J., at p. 211.
There was wrongful admission of evidence in several respects, more especially relating to earlier events and to later conspiracies: Reg. v. Blake[18]; Reg. v. Barry[19]. The admission of evidence, under the second count, upon a general charge of conspiracy relating to persons other than the accused; and of evidence under count three, relating to a conspiracy in which the sons of the accused were joined as parties, altogether apart from the question as to the admissibility of evidence of subsequent conspiracies, were admissible only upon a charge of conspiracy to defraud. That charge should not have been preferred and evidence tending to prove it was clearly prejudicial to a fair trial on the remaining counts of the indictment. This evidence was not admissible under the other counts and the jury should have been so directed. The view that, by holding that there was ample evidence of some offence and, consequently, no substantial wrong or miscarriage occurred cannot prevail; the court cannot be the judge of what may have influenced the minds of the jury where evidence of an important character was improperly admitted: Allen v. The King[20]; Bray v. Ford[21]; Makin v. Attorney-General of New South Wales[22], at pages 69-70.
The first count, which charges theft, is bad for duplicity: sec. 853, sub-sec. 3, Criminal Code; Halsbury, Laws of England, vol. 9, p. 340; Reg. v. Lamoureux[23], at p. 103; Archbold (24 ed.), pp. 75, 76, 81, 84; Rex v. Molleur[24]; Rex v. Michaud[25]; The judge should have charged the jury as to what constitutes theft, explained the nature of colour of right, that taking must be against the will of the owner, and also that these elements were lacking in the case.
The second count is bad for duplicity or for triplicity; both conspiracy and receiving are charged, an earlier conspiracy "theretofore," and a later receiving. It confuses charges for receiving what had been embezzled, what had been stolen, and what had been obtained by a conspiracy to defraud. See Halsbury, vol. 9, p. 678. Nowhere in the Extradition Treaty, signed at Washington on 12th July, 1889, is conspiracy to defraud mentioned; by article 3, no person surrendered may be tried for any offence other than that upon which he was surrendered. See also the "Extradition Act," R.S.C., 1906, ch. 155, secs. 30 to 32; and R.S.C., 1906, ch. 142, secs. 22 and 23; In re Gaynor and Greene[26].
As to count four, the judge did not explain to the jury that the money in question was not parted with upon the strength of any false representation made by the accused knowing it to be false. No payment was made except by authority of contract or order-in-council. There can.be no agency in crime: Reg. v. Butcher[27], at p. 19.
The practice adopted of including in one indictment many different offences is vicious, because the evidence admitted upon any count has a prejudicial effect against the prisoner on other counts, and particularly so where different kinds of crimes are charged with an alternative count of receiving: Per Hawkins J. in Reg. V. King[28], at p. 216.
The accused cannot be guilty of all four offences as found by the jury. The conviction could only be on one of these counts, but there is a specific verdict of guilty on each count: Reg. v. Russett[29]; Rex v. Fisher[30]. He cannot be guilty of any two offences. The penalties vary. The whole conviction is bad. One guilty of stealing goods as a principal cannot be convicted of receiving them: Halsbury, vol. 9, page 678 (footnote n). To be guilty of receiving stolen property it must have been taken by a person other than the person accused of receiving: Reg. v. Lamoureux[31]; Reg. v. Coggins[32]; Reg. v. Perkins[33].
The indictment is also bad for duplicity. Cyc, vol. 22, 376: "An indictment or information must not in the same count charge the prisoner with the commission of two or more distinct and separate offences and in case it does so it is bad for duplicity." The jury having found the prisoner guilty of theft, four kinds of receiving and false pretences, at the same time found him to be a conspirator. The Crown deliberately went to trial upon an indictment defective and bad for duplicity, triplicity and improper joinder, without considering the reservations made by Mr. Justice Holmes' judgment in the Supreme Court of the United States. The Crown should stand or fall by its own deliberate action. The conviction should be quashed.
The object of a motion to quash before trial is to preserve the rights of the accused at all stages, and particularly in the event of a verdict against the accused. The Crown has the right to amend, to sever, to elect which counts shall be proceeded upon—if necessary to prefer a new indictment or new indictments. But the Crown did not do so and the accused is entitled to the benefit of all the preliminary objections taken upon the motion to quash the indictment. The indictment was preferred and found when appellant was outside the Dominion of Canada, to the knowledge of the Attorney-General of Manitoba. The motion that was made under section 898 of the Criminal Code was absolutely necessary to preserve the rights of the accused as to any defects. The objection then taken was that the indictment had been preferred by the Attorney-General without legal authority. The Attorney-General knowing that the accused was not in Canada, in his absence, and while extradition proceedings were in progress, caused the indictment to be laid. The Attorney-General had no right to avail himself of the power to prefer an indictment in the absence of the accused and while he had himself undertaken proceedings under the "Extradition Act." His consent to preferring the indictment is not a mere formality: Reg. v. Bradlaugh[34].
J. B. Coyne K.C. and R. W. Craig K.C. for the respondent. The appeal to the Supreme Court of Canada can only be based on the grounds as to which there was a dissent in the Court of Appeal for Manitoba: Mcintosh v. The Queen[35]; Eberts v. The King[36]; Mulvihill y. The King[37]; See also Rice v. The King[38]; Gilbert v. The King[39]. The second count is not in contravention of the "Extradition Act" and the treaty. It is in the exact terms of the Canadian warrant for Kelly's apprehension, of the American complaint or information, of the American warrant for his apprehension, and of the extradition commissioner's recommendation to the Secretary of State; the accused was surrendered for trial on this charge.
As to conspiracy, see Russell on Crimes (7 ed.), pp. 146 and 191; Reg. v. Parnell[40], at p. 515; Taylor on Evidence (10 ed.), sec. 591. The offence is complete when the agreement is made: Reg. v. Connelly[41]; Rex v. Parsons[42]. If, therefore, two persons pursue by their acts the same object, often by the same means, one performing one part of the act and the other another part so as to complete it with a view to the attainment of the common object they were pursuing, the jury are free to infer that they had been engaged in a conspiracy to effect that object: Reg. v. Murphy[43], per Coleridge J.; Rex v. Cope[44]; Rex v. Pollman[45] at page 233.
A person concerned in any part of the transaction alleged as conspiracy may be found guilty, though there is no evidence that he joined in concerting a plan until some of the prior parts of the transaction were complete: Rex v. Lord Grey[46]; Rex v. Hammond[47]; Stephen's Digest of Evidence (4 ed.), pages 6 and 7.
See also Rex v. Wilson[48]; Reg. v. Shellard[49]; Reg. v. Blake[50].
The evidence is admitted on the ground that the act or declaration of one is the act or declaration of all when united in one common design. It is the principle of agency which, once established, combines the conspirators together and makes them mutually responsible for the acts and declarations of each: Wright, Criminal Conspiracy, p. 213, and pp. 212, 216; Russell on Crimes, p. 192; Roscoe, 355 at foot; Rex v. Johnston[51]; Rex v. Nerlich[52]; Reg. v. Jessop[53]; Reg. v. Charles[54], at p. 502; Reg. v. Desmond[55]. There is direct evidence of Kelly's part in tampering with witnesses, fabricating and suppressing evidence, and upholding the fabricated evidence before the Public Accounts Committee.
When a criminal act has been proved and it is desired to connect the accused therewith it is relevant to shew that he had or had not a motive for the act or means and opportunity of doing it or that he had made preparations with that end in view or had threatened to do the act; the subsequent conduct of the accused often furnishes still further cogent evidence of guilt, e.g., possession of recently stolen property, flight, or the fabrication or suppression of evidence: 13 Halsbury, pp. 447, 448; Wigmore on Evidence, sec. 278; Moriarty v. London Chatham and Dover Rway. Co.[56]. The fabrication or suppression of evidence is none the less admissible because the accused called others to his assistance. If conspiracy were the charge it would not be necessary to set out the overt acts: Reg. v. Blake[57], at page 133; Rex v. Hutchinson[58]; Reg. v. O'Donnell[59] Rex v. Gitt[60]. And if some overt acts were set out, the Crown would not be confined to them, but might prove others: Reg. v. Stapylton[61], per Wightman J., at p. 71.
Crown counsel's address was not an appeal to prejudice, but a plain and decided statement of the evidence. There can be no wrong done when statements are founded on evidence. The jury could not possibly have come to any other conclusion than that of the guilt of the accused on the evidence submitted irrespective altogether of the language of Crown counsel complained of. This is not a question which can be reserved for the opinion of the court of appeal: Rex v. Nerlich[62], per Hodgins J. at p. 317; Rex v. Banks[63].
As to clause 15 of the reserved case and the charge of trial judge regarding the statement of accused to the jury not being made under oath. The accused had no right to make a statement. He had the right to go into the witness-box and give his evidence on oath. There is a distinction between the English and Canadian Acts. The former has a saving section, negativing what would otherwise be the law, and providing that, notwithstanding the fact that he may give evidence on oath, the accused may still make an unsworn statement: Rex v. Krafchenko[64]., at pp. 658, 659. As to what would be considered comments, see Rex v. King[65], at page 434; and Rex v. McGuire[66]. The remarks complained of do not constitute a comment prohibited by the "Canada Evidence Act," section 4, sub-section 5: in Rex v. Hill[67] and in Reg v. Coleman[68] there was direct comment on failure to testify. See Reg. v. Weir[69], at pages 269-271; Rex v. Aho[70]; Rex v. Guerin[71].
The powers of the appellate court are stated in the Criminal Code, secs. 1018, 1019 and 1020. Some substantial wrong or miscarriage must have been occasioned at the trial. The court may give separate directions as to each count and may pass sentence on any count unaffected by any wrong or miscarriage which stands good, or may remit the case to the court below with directions to pass such sentence as justice may require. A new trial is not justified here under sec. 1019.
There was no reserve case submitted on joinder of counts and argument on that point must be eliminated. Rex v. Hughes[72], at 454. There was no dissent in the Court of Appeal on this point. There was no objection to joinder before pleading, as required by the Code, sec. 898: Reg. v. Flynn[73]. Counts may be joined as in this indictment: Rex v. Lockett[74]; Rex v. Seham Yousry[75]; Reg. v. Poolman[76]; Rex v. Beauchamp[77]; Reg. v. Smith[78]. Under the Code, sec. 857, this is a matter in the discretion of the trial judge, and is not subject to review. There was a conviction on counts 1, 2, 4 and 5. No question was reserved for the Court of Appeal as to whether such verdict was inconsistent.
As to the charge on count 1 as to theft, and as to colour of right. The fraudulent contracts constituted no colour of right: Reg. v. Kenrick[79]. As for "against the will of the owner," there was no question as to that in the evidence. The evidence was that the funds were wrongfully taken and converted.
As to count 4, obtaining money by false pretences, the statement of the law by the trial judge was sufficient to guide the jury in reaching a verdict so long as there was evidence to convict on such a charge.
The opinions of the Chief Justice and Davies J. are delivered by Anglin J. Dewart K.C. and Harding for the appellant
J. B. Coyne K.C. and R. W. Craig K.C. for the respondent.
Idington J.—This appeal arises out of a reserved case in which the learned trial judge had submitted to the court below seventeen questions. On the hearing of that appeal two of the learned judges hearing it, dissented, on points hereinafter referred to, from the judgment of the Court of Appeal.
Under the authorities cited in argument, including Reg. v. McIntosh[80]; Rice v. The King[81]; Gilbert v. The King[82]; Curry v. The King[83]; Eberts v. The King[84], at p. 26; Mulvihill v. The King[85], and other cases cited in the reports of these decisions, I do not think there can longer be a doubt that our jurisdiction to hear an appeal from a court of appeal in a criminal case is bounded by the lines of clear dissent on any point raised therein relative to any of the questions of law properly involved in the submission of the reserved case.
A dissenting opinion relative to something outside that which can properly be made part of a reserved case or fails to bear upon the points of law properly involved in such case as reserved, can form no part of what we are concerned with.
I respectfully submit that the expressions of the dissents herein are, as I read them, not clearly confined within these lines. For example: as regards the grounds taken relative to the questions raised by the matter in the address of counsel for the Crown I doubt if such an address can be in itself the subject of a reserved case. I shall presently deal at length with that subject and the arguments founded on what for brevity's sake I may call the conspiracy aspect of the case, when what I refer to will more fully appear. I merely desire here to submit, respectfully, that for want of that definite application of each dissent to the reserved question it relates to, or what the exact grounds are intended to be covered thereby, and as the dissents may have implied more than I might find appears, in order to avoid mistakes, I shall proceed to deal consecutively with each question in the whole reserved case. I am not, therefore, to be assumed as departing from what I have just now said of the limits of our own jurisdiction to act.
There is another boundary to our jurisdiction expressed in the language of sec. 1019 of the Criminal Code, which is as follows:—
1019. No conviction shall be set aside nor any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was done at the trial or some misdirection given, unless, in the opinion of the court of appeal, some substantial wrong or miscarriage was thereby occasioned on the trial: Provided that if the court of appeal is of opinion that any challenge for the defence was improperly disallowed, a new trial shall be granted: 55-56 Vict. ch. 29, sec. 746.
Applying this section enables me, for my part, to dispose of the case, without entering at length, and in minute detail, upon some of the nice questions which may be involved in the dissenting opinions.
There was a motion made by counsel for the appellant to quash the indictment, and refused by the learned trial judge.
The first six questions submitted concern the validity of this refusal and raise the further question of whether or not, if there be in any case an error therein, there was as a consequence thereof and the admission of objectionable evidence a mistrial.
There are six counts in the indictment. The sixth, which is for perjury, was, with the consent of the Crown, directed to stand over and not to be tried with the others. The fifth has been disposed of by the Court of Appeal.
The first and fourth are ordinary counts for theft and false pretences, respectively, and I fail to see how any serious question can have been raised as to them.
The second and third counts may be open to the criticism that they are of doubtful import, but as the first and fourth counts enabled the whole of the evidence to be given, which was properly admissible on the trial, there cannot now, in face of the section quoted above, be any question of serious import raised as to the validity of the learned judge's refusal to quash.
The attempt to use the particulars delivered ten days later than this motion to quash, illustrates how absurd this part of the contention in the case is.
The complaint made that the learned trial judge did not, in his charge, enter upon a specific attempt to deal in detail with, and direct the jury as to, each of these counts, and what they mean and might be held to imply, seems unfounded, for his mode of treatment left the appellant without any ground of complaint in regard thereto. Had he done as suggested I imagine there might have been some ground for suggesting that the minds of the jury had been thereby confused.
The case was presented by him in his charge as one of stealing, or receiving that stolen, or of obtaining by false pretences. He wisely abstained from needlessly entering upon such a field of mystification as we have had presented to us to deal with and hence his charge misled nobody.
There was at the close of the trial a distinct question put by the foreman of the jury which led the learned judge to tell the jury they could not bring in a verdict of guilty on both these second and third counts, but must, if either included in a verdict of guilty, select one or other thereof.
Their verdict was guilty on the first, second, fourth and fifth counts.
There was, therefore, no substantial wrong or miscarriage in the refusal to quash or in consequence thereof.
As to question 7, which is as follows:—
7. Was I right in my charge to the jury on the first count of the indictment as to theft or was my charge insufficient in law so as to be prejudicial to a fair trial of the accused?
There is raised thereby perhaps the most important and difficult question in the reserved case.
The learned judge relied upon section 347 of the Criminal Code and I think he was right in doing so. It is a most comprehensive definition of theft and is as follows:—
347. Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, any thing capable of being stolen, with intent,—
(a) to deprive the owner, or any person having any special property or interest therein, temporarily, or absolutely, of such thing, or of such property or interest; or,
(b) to pledge the same or deposit it as security; or
(c) to part with it under a condition as to its return which the person parting with it may be unable to perform; or,
(d). to deal with it in such a manner that it cannot be restored to the condition in which it was at the time of such taking and conversion.
2. Theft is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it.
3. The taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment.
4. It is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person converting: 55-56 Vict., ch. 29, sec. 305.
"Anything capable of being stolen" might not cover money in the bank to the credit of any person, but surely it does include a cheque to draw that money. I think a cheque being an order for money is a valuable security within the words of the indictment. Can it be said that the fraudulent means resorted to in order to induce the Lieutenant-Governor and others to do those acts which resulted in the preparation of the cheque and its due signature having preceded its existence, therefore the appellant guilty with others in bringing those acts about, can have acquired a colour of right to use it or convert it to his use?
I think not, and that if the appellant by reason of his fraudulent acts was not entitled to have received any of the cheques issued to him, he had no right to convert them to his use.
They each remained the property of the Crown recoverable by respondent, if so advised, from appellant at any instant until passed into the hands of the bank without notice. The language of sub-sec. 4 seems clearly to bear this out and to cover just such cases as this.
The later sections dealing with what used to be called embezzlement are in harmony with this view. The evident purpose of the section, as a whole, was to make clear that the fraudulent nature of the dealing was to be the test of whether or not the wrongful conversion was to be treated as theft or not.
Counsel for respondent in their factum suggest that the moneys had been stolen by the Minister and thereby there was a conversion of the money to which appellant was a party as accessory and hence he was liable as a principal.
My difficulty is in extending the section to a theft of money in the bank for it contemplates a taking which could not, I submit, be within the meaning of the section. The same counsel in, argument also submitted the amendment to the English "Larceny Act" in 1861, section 70, aimed at officers of the government, and that such amendment was introduced by the Act introducing English law into Manitoba.
In my view it is not necessary to pass any opinion upon this contention.
If appellant could be guilty of stealing the cheques, then there is no need for prosecuting the inquiry.
The eighth question seems upon the evidence hardly arguable.
Clearly there was an obtaining of money by false pretences whatever may be said of the other charges as a matter of law.
The ninth question, which is as follows:
9. Was I right in admitting evidence as to acts, conduct, admissions, conversations and facts relating to some one or more of those named in the second count, namely: Rodmond P. Roblin, Walter H. Montague (since deceased), James H. Howden, George R. Coldwell, R. M. Simpson and Victor W. Horwood, to which the accused was not a party, and if I have erred, was the same prejudicial to a fair trial of the accused?
raised at first, in argument, a doubt in my mind, when it was urged by counsel for appellant that the moneys obtained had all been obtained before the end of December, 1914, and the offences charged had then been completed and much of the evidence here in question related to later events.
It was alleged that what transpired later was in fact nothing but evidence of a new conspiracy and neither had nor could have had any direct relation to or be in any way a necessary result of the original conspiracy.
If the facts would justify this or some such way of looking at the admissibility of the later evidence I agree a grave question would have arisen. It is, however, quite clear when one is enabled by a knowledge of the evidence to grasp the actual situation that this contention of appellant is hardly worthy of serious consideration.
The Crown alleges in fact the existence of a conspiracy on the part of those named, or some of them, including the accused, to use the opportunity of the erection of the public buildings—known as Parliament Buildings—for the improper purpose of diverting funds ostensibly voted by the legislature for that purpose, and the property of the Crown as charged, into the hands of some one for the purpose of forming part of a political campaign fund, or possibly dividing or distributing amongst them, or some of them, moneys so diverted.
It matters not what the purpose was so long as moneys were, from time to time during the progress of such works, to be diverted from their proper purpose as designated by the legislature.
There was evidence that justified such an inference and it was of such weight as to entitle the Crown to have the whole relative thereto fully developed.
Touching the mere questions of admissibility of such evidence the learned trial judge had to consider the nature of the charges either as alleged in the pleadings or presented by counsel for the Crown, and then the evidence already presented tending to support any such pretensions and determine whether in view of all that had preceded such later developments could reasonably be connected therewith.
In default of that being quite apparent from the case as developed, learned trial judges often, for convenience sake, have to rely upon the undertaking of the counsel presenting such like evidence that it will be connected with that preceding or to follow in such a way as to be relevant to the issues in question and maintain the contention put forward.
The mere technical questions of admissibility as presented in the question does not therefore go very far.
If, however, it should in such case turn out that the evidence could not be connected with other evidence in a way to form an arguable case, the consequences would have to be dealt with effectively to see that there was no miscarriage of justice. Here it is not merely the admissibility as that is put in the question that might have been involved.
Not only was it contended that the evidence of the later acts I have referred to were inadmissible, but also that the whole evidence of conspiracy, or to put it in another and less controversial form, of agreement to act together in pursuance of the common purpose of diverting a part of the money appropriated for said buildings, so attacked was quite inadmissible unless appellant was present.
I cannot assent thereto. Whatever our reason will maintain as fairly inferable from the circumstances presented must be the test. The accused, of course, must be so connected with those circumstances or part thereof as to justify, by that test, the maintenance of the inference argued for.
But, unfortunately for the appellant, his connection with the later developments has been shewn in fact to be so intimate and close that there is no need for straining the application of the principles I am relying upon to bring home to him the desire to destroy evidence and hinder its production and promote thereby the concealment of all that had transpired which might tend to shew him and others as having designed by their co-operation to divert and to have succeeded in diverting moneys from their destined purpose.
And the desire to destroy, when existent in some bosoms, seems soon to produce destruction.
In each of the sections 69 and 70 of the Criminal Code there has been formulated a legislative guide expressive of the law which may be relied upon as an effective answer to all that has been put forward or that may be implied therein, in any way, bearing upon the many questions or many forms of the same question in contending against the use of anything done by others unless clearly and expressly directed by him.
The second sub-section of said section 69, is as follows:—
2. If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was, or ought to have been known to be a probable consequence of the prosecution of such common purpose: 55-56 Vict., ch. 29, sec. 61.
The general and comprehensive declaration of the law binds and goes a long way to define what may be admitted in evidence in cases of this kind.
It is but a deduction of that which in reason, must necessarily open the way to the introduction of evidence, in order to lay before the court those circumstances, from which it may be reasonable to infer concurrence of action on the part of the accused in regard to what is in question.
It is quite clear from the evidence that though the moneys got had been paid before the end of December, 1914, yet the scheme, as a whole, was far from complete, and had been only interrupted by steps in the way of inquiry before a committee of the legislature, which seemed likely to lead to an exposure that would prevent it