515.

PLEADING. See sub "Practice."

POISON.-Vermin killer-Poisonous vegetable alkaloid compound · Resolution of Pharmaceutical Society - Pharmacy Act, 1868 (31 & 32 Vict. c. 121), ss. 2, 17, sched. A. parts 1 and 2.-By sect. 17 of the Pharmacy Act, 1868: "It shall be unlawful to sell any poison either by wholesale or retail unless the box, bottle, vessel, wrapper, or cover in which such poison is contained be distinctly labelled with the name of the article and the word 'Poison,' and with the name and address of the seller of the poison; and it shall be unlawful to sell any poison of those which are in the first part of sched. A to this Act, or may be hereafter added thereto under sect. 2 of this Act, to any person unknown to the seller unless introduced by some person known to the seller"; and certain formalities are to be observed. Part 1 of the schedule comprises (inter alia) "all poisonous vegetable alkaloids and their salts." By sect. 2: "The several articles named or described in the sched. A shall be deemed to be poisonous within the meaning of the Act, and the Council of the Pharmaceutical Society of Great Britain

may

from time to time, by resolution, declare that any article in such resolution named ought to be deemed a poison within the meaning of this Act. In pursuance of sect. 2 the society on the 1st Dec., 1869, declared by resolution that certain articles named therein ought to be deemed poisons within the meaning of the Act, which resolution was duly approved and advertised. The articles were (in'er alia) every compound containing any poison within the meaning of the Pharmacy Act, 1868, when prepared or sold for the destruction of vermin, and the resolution further declared certain other articles ought to be deemed poisons in the first part of sched. A. The appellant sold a compound prepared and sold for the destruction of vermin, which compound contained a poisonous vegetable alkaloid. Held, that there had not been a sale of a poison within part 1 of sched. A. (Brown, app. v. Leggett, resp. Dec. 18 and 19, 1905. ̃K. B. Div.) 114.

POST OFFICE PROTECTION ACT. See sub. "Misdirection."

-Criminal case-Lapse of time. In a criminal case in which more than three years had elapsed since the expiration of the sentence on the petitioner, and there was no prima facie case of a miscarriage of justice disclosed, leave to appeal was refused. (Badger v. Attorney-General for New Zealand. July 31, 1907. Privy Council.) 539.

Appeal upon question of fact-Right to be present at hearing of appealCriminal Appeal Act, 1907 (7 Edw. 7, c. 23), 8 11 (1).-Where an appellant has obtained leave to appeal either against conviction or sentence upon a question of fact he has an unconditional right to be present at the hearing of the appeal. (Rex v. Dunleavey. Nov. 27, 1908. Ct. Crim. App.) 760.

Misdirection —

Appeal - Larceny Calling further evidence-Case not set up at Trial-Animus furandi-Sentence increased Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), sec. 9 (a).-On appeal from a conviction of larceny, an application was made to call further evidence on the prisoner's behalf. In support of the appeal it was contended that in order to convict the prisoner of larceny, it must be shown that an animus furandi existed in his mind when he first obtained possession of the property. Misdirection was alleged on the ground that the above rule of law was never presented to the jury. Held, with regard to the application, that the power to call further evidence given to the Court under sect. 9 (a) of the Criminal Appeal Act, 1907, was not to be exercised for the purpose of supplementing the case made at the trial; that, with regard to the appeal, the doctrine that the animus furandi must exist at the time of gaining possession must not be carried too far. (Rex v. Mortimer. June 5, 1908. Ct. Crim. App.) 677.

Conviction-Ill-treating five cowsOne or five offences-One convictionCruelty to Animals Act, 1849 (12 & 13 Vict. c. 92), s. 2.—A conviction for an offence under sect. 2 of the Cruelty to Animals Act, 1849, stated that the defendant "did cruelly ill-treat, abuse, and torture five cows by causing the same to be overstocked with milk." Held, that the conviction was good. (Rex v. Cable; parte O'Shea. April 4 and 5, 1906. K. B. Div.) 186.

Evidence Character - Defence in-
volving imputations on prosecution - Pre-
vious convictions-Criminal Evidence Act,
1898 (61 & 62 Vict. c. 36), s. 1 (f).—If, at
his trial, an accused person makes a state-
ment imputing motives to the prosecution,
but such statement is only made to develop
the defence and is relevant thereto, the
prosecution is not entitled to give evidence
of previous convictions. (Rex v. Preston.
Feb. 1 and 2, 1909. Ct. Crim. App.) 773.

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Evidence Shooting Pistol
Attempt to murder-Drawing trigger or
otherwise-Intent to shoot (24 & 25 Vict.
c. 100), s. 14.-To do the first of a series of
acts intended to result in the murder of
another is to attempt murder. L. was
indicted for an attempt to shoot H. It
was proved that L. had come to H. armed
with a revolver which he carried in his
pocket; that he placed his hand on the
revolver, drew it from his pocket, and
would have aimed it at H. if H. had not
seized him. It was also proved that L.
intended to shoot H. Held, that L. was
properly convicted of attempting to dis-
charge a firearm at H. though he had not
drawn the trigger nor aimed the revolver
at H. (Rex v. Linneker. April 30, 1906.
C. C. R.) 196.

Felony-Misdemeanour - Indictment
-Receiving stolen goods-Receiver-Goods |
stolen by married woman-Necessary aver-
ment-Larceny Act, 1861- Married
Woman's Property Act, 1882-24 & 25
Vict. c. 96, s. 91; 45 & 46 Vict. c. 75, ss.
12, 16.-Receiving goods stolen by a mar-
ried woman from her husband is a mis-
demeanour at common law. Receiving
stolen goods is made felony by the Larceny
Act, 1861 (24 & 25 Vict. c. 96), s. 91, only
when the stealing amounts to a felony
either at common law or under that Act.
Stealing by a married woman from her
husband, being larceny only because of the
provision in the Married Woman's Pro-
perty Act, 1882 (45 & 46 Vict. c. 75), ss.

12 and 16, is not a stealing which makes
the receiver indictable for felony under the
Larceny Act, 1861. An indictment which
charges receiving goods stolen by a mar-
ried woman from her husband as a mis-
demeanour is therefore good. Semble, an
indictment charging this offence should
aver that the goods were stolen by a mar-
ried woman from her husband. (Rex v.
Payne. Dec. 9, 1905. C. C. R.) 121.

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Indictment - Amendment — Altering
offence-False pretences-Obtaining credit
by fraud-Debtors Act, 1869 (32 & 33 Vict.
c. 62), 88. 13, 17-Criminal Procedure Act,
1851 (14 & 15 Vict. c. 100), s. 1.—An in-
dictment cannot be so amended as to alter
the offence charged. The power of amend-
ment given by the Criminal Procedure
Act, 1851, s. 1, is not a power to amend
the offence, so as to permit of an amend-
ment which will allow the trial of a
prisoner on a charge other than that which
has been before the grand jury and on
which a true bill has been found. B. was
indicted for obtaining goods by false pre-
tences, and an amendment of the indict-
ment was allowed by which words relating
to the description of the false pretence
were struck out and the words "by means
of fraud " substituted. Held, that this
amendment was not permissible. (Rex v.
Benson. April 14, 1908. C. C. R.) 631.

Indictment

Pleading Proviso-
Necessary averment-Bigamy - Marriage
abroad. Where a British subject has con-
tracted a bigamous marriage abroad and is
tried in England for bigamy, it is not
necessary to aver in the indictment that
the accused is a British subject, although
the proviso to sect. 57 of 24 & 25 Vict. c.
100, which section creates the offence, pro-
vides that the section shall not apply to a
second marriage contracted elsewhere than
in England and Ireland by any other than
a subject of His Majesty. It is not neces-
sary in an indictment for an offence under
a statute which contains an exception by
way of proviso to aver that the accused is
not within the proviso. (Rex v. Audley.
Dec. 19, 1906. C. C. R.) 374.

Indictment-Pleading-Larceny-Re-
ceiving stolen goods-Necessary averment—
Animal feræ naturæ Eggs of animal
feræ naturæ · Stealing pheasants' eggs-
Larceny Act, 1861 (24 & 25 Vict. c. 96), s.
91. In an indictment for stealing au
animal feræ naturæ it is sufficient if the
indictment avers that the animal is "of the

goods and chattels of and of and belonging
to" the owner without any further averment
that the animal has been reduced into
possession. It is not necessary to aver
in an indictment for receiving stolen goods
that the stealing was a felony at common
law or by virtue of the Larceny Act, 1861.
S., a gamekeeper, was indicted for stealing
1000 pheasants' eggs "the goods and
chattels of and of and belonging to" Sir
W. G., and M. was indicted for receiving
the eggs knowing them to have been stolen.
It was objected that the indic:ment was
bad as against S. because it did not aver
that the pheasants' eggs had been reduced
into possession, and bad as against M.
because it did not aver that the stealing by
S. was a felony at commo 1 law or by virtue
of the Larceny Act, 1861. Held, that the
indictment was good as against both de-
fendants, as against S. because the aver-
ment that he had stolen 1000 pheasants'
eggs of and belonging to was a sufficient
averment that the eggs had been reduced
into possession, inasmuch as the quantity
was too great to have been taken from the
nests by a thief and because the eggs could
not belong to Sir W. G. without having
been reduced into possession, and as against
M. because it is not necessary to aver in an
indictment for receiving that the stealing
was a felony. (Rex v. Stride and Millard.
Jan. 11, 14, 1908. C. C. R.) 563.

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Indictment - Amendment - Material
variation-Prejudice to prisoner — Wife's
goods stolen from husband's house-Property
laid in husband-14 & 15 Vict. c. 100, s. 1
-Married Women's Property Act, 1882
45 & 46 Vict. c. 75), s. 1.-The power to
amend an indictment given to the Court by
14 & 15 Vict. c. 100, s. 1, is a power to
amend an indictment in the case of a
material variance, and ought to be exer-
cised to remedy any technical flaw in the
indictment. That a prisoner charged on a
defective indictment can be convicted if
an amendment is allowed is not a reason
for refusing to amend the indictment.
Certain persons were convicted on an in-
dictment which charged housebreaking and
stealing from the house goods averred to
be the property of H. At the trial it was
proved that the property in the goods was
wrongly laid in H., for, though in his
house, the goods were the separate property
of his wife. Held, that the Court should
have amended the indictment by substi-
tuting the name of the wife as the owner
of the goods. But that, inasmuch as the
amendment had not been made, the indict-

ment was bad, for the property in the
goods should have been laid in the wife.
(Rex v. Murray and others. May 26, 1906.
C. C. R.) 230.

-Perjury-Indictment—Commissioners
for Oaths Act, 1889 (52 & 53 Vict. c. 10), ss.
2, 7.—Iu an indictment charging perjury
in an affidavit sworn before a Commissioner
acting under s. 2 of the Commissioners for
Oaths Act, 1889, it is not sufficient simply
to allege the general authority of the Com-
missioner to administer the oath the in-
dictment must state the circumstances
under which the oath was administered,
showing that the commissioner had autho-
rity to administer the oath in the particular
matter before him. (Rex v. John McDonald.
Nov. 25, 1905. Darling, J.) 70.

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Indictment · Count for separate
felony-Election-Variation of restitution
order-Right to appeal - Construction of
section.-Appeal against a conviction of
larceny upon the ground that a count had
been added to the indictment containing
a separate felony. Application, under
Criminal Appeal Act (7 Edw. 7, c. 23), s. 6
(2), on behalf of a party against whom an
order of restitution has been made at the
trial for variation of the order. Held, that
where more than one felony is included in
the indictment the judge at the trial may
either quash the indictment or make the
prosecution elect upon which count they
will proceed; that in this case the prose-
cution had elected, and therefore the in-
dictment was good. With regard to the
application, it was held that an appeal
against a conviction might necessitate the
varying of a restitution order, but, unless
the court determined to vary the order,
there is no right of appeal against it. (Rez
v. Elliott. May 22, 1908. Ct. Crim App.)
666.

Indictment-Particulars - Deposit of
particulars with indictment-Criminal law
-Libel-Obscene libel-Defamatory libel-
Unlawful publication of obscene matter-
Sufficient averment-Averment of intention
to debauch public morals-Law of Libel
Amendment Act, 1888 (51 & 52 Vict. c. 64),
s. 7.-It is not necessary to aver in an
indictment for obscene libel that the pub-
lication tended to debauch public morals if
it is averred that the matter is obscene and
was published unlawfully. The Law of
Libel Amendment Act, 1888, s 7, provides
that it shall not be necessary to set out in
any indictment or other judicial proceeding